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Thread: So is Open Carry legal now?

  1. #1
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    So is Open Carry legal now?

    So, is open carry in a place like Chicago "legal" now?

    Would you be able to get a case thrown out, based on the Heller/MacDonald decisions?

    After all, the 2nd Amendment does say "keep and bear arms"....

    So, as long as you are not going into one of the areas the court said would be subject to "reasonable restrictions" (i.e., post office, courthouse,...), would you have a case?

  2. #2
    Regular Member AdamC's Avatar
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    Couldn't really put it any better than this:

    Quote Originally Posted by paul@paul-fisher.com View Post
    At the moment the case was remanded to the lower court so the law actually hasn't been struck down. If you read the strict interpretation of the court, they only said gun possession in the home was legal. Of course, what is frequently misunderstood is that the SCOTUS can only answer the question that they were asked.

    I would believe you will spend some quality time in jail and potentially get shot by the thugs in the Chicago PD if you OC in the city limits.
    (quote edited for spelling mistake)

  3. #3
    Regular Member Don Tomas's Avatar
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    I have to agree with Adam and Paul, considering Chicago is and has been outwardly hostile towards gun owners for the past 30 years or so, a fact which they seem to be proud of you'd be absolutely insane walking around that city while OC'ing. You would be arrested immediately. You could fight it in court, but then you'd be exhausting your money on legal fees and you'd probably end up losing anyway.

    CHICAGO+GUNS=JAIL A VERY BAD IDEA

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    Campaign Veteran StogieC's Avatar
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    See my reply to a similar question here: http://forum.opencarry.org/forums/sh...=1#post1298711

    Here's the catch 22. You can't challenge the prohibition on open carry without having standing to do so. You don't get standing without having your rights actively infringed when you try to exercise them. So basically, you have to go get yourself arrested for open carry to file a case...
    Last edited by StogieC; 07-02-2010 at 10:27 AM.

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    Quote Originally Posted by StogieC View Post
    See my reply to a similar question here: http://forum.opencarry.org/forums/sh...=1#post1298711
    Not sure I agree with that. I 'think' I have seen precident that holds that one need not commit a crime to challenge a law, i.e., to gain 'standing'. Standing only indicates that the plaintiff is subject to the law being challenged. Might have been in Heller or maybe McDonald.

    In terms of Chicago, untill the court below issues a 'corrected' decision, I think everything is in limbo.

    IANAL, and have been accused of having vegetable soup for a mind, so I might be wrong.

  6. #6
    Regular Member AdamC's Avatar
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    From Chicago's New Laws as of Today:

    Quote Originally Posted by iceman71 View Post
    The Mayor and Alderman had an emergency session due to Supreme Court ruling. $100 permit fee required, plus training. One gun a month can be purchased and only one working gun in house. "a shotgun is enough for an army" I believe the quote was by one alderperson. Oh ta almost forgot NO CARRYING OUTSIDE OF HOME. Obviously the city didnt understand what the supreme court said.

  7. #7
    Original poster:
    • Open carry is not yet legal in Chicago.
    • The Supreme Court did not explicitly find the law unconstitutional and technically reversed and REMANDED the case for further proceedings in accordance with the Opinion.
    • It is likely that the local law still binds law enforcement and the local residents until further conclusive notice.


    DISCLAIMER: UNTIL YOU CONSULT WITH AN ATTORNEY, DO NOT RELY ON ANY PURPORTED LEGAL ADVICE HEREIN SUGGESTED OR PROVIDED BY THIS POSTER or ANYONE ON THIS PUBLIC FORUM.

    Quote Originally Posted by Paul Fisher
    At the moment the case was remanded to the lower court so the law actually hasn't been struck down. If you read the strict interpretation of the court, they only said gun possession in the home was legal. Of course, what is frequently misunderstood is that the SCOTUS can only answer the question that they were asked.
    As Paul aptly points out, inferior courts are not bound by dicta propounded by courts that stand in a position of superior authority. Even though the question posed, or the issue presented may seem clear, the path that a court takes in reaching a holding is quite important and arguably constitutes binding law.

    In McDonald v. Chicago, the Court discussed Heller and how it recognized the right to possess a firearm in the home for self-defense purposes. However, McDonald goes much further. SCOTUS reaffirms that the Second Amendment encompasses an individual right and that the Second Amendment binds the Federal, State and Local governments.

    "We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as 'prohibitions on the possession of firearms by felons and the mentally ill,' 'laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.'” McDonald.

    I do not consider the excerpt above to be dicta, as it was necessary for the holding of the Court to flesh out this fundamental right. The underlying issue was the constitutional meaning of the Second Amendment and it is wholly within the purview of SCOTUS to define the constitutional limits of the Second Amendment, as it put forth a binding guide for future Second Amendment jurisprudence. Without saying anything more, the Court reversed the inferior court, acting in accordance with the legal analysis it put forth in McDonald.

    Finding that the Second Amendment is a fundamental right, SCOTUS has essentially guaranteed that judicial review of statutory law will be undertaken with 'Strict Scrutiny' in accordance with U.S. Supreme Court precedent.

    Additionally:
    The following types of laws will likely be upheld, so long as they are 'reasonable' and comport with the 'Strict Scrutiny' standard of review for statutory law:
    • Prohibitions on felons and mentally ill individuals;
    • Carrying of Firearms in sensitive places like schools and government buildings, and potentially other places; and,
    • Regulation of Commercial sale of firearms.
    Last edited by Joseph Mason; 07-04-2010 at 03:42 AM.

  8. #8
    Regular Member Thundar's Avatar
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    Quote Originally Posted by Joseph Mason View Post
    Original poster:
    • Open carry is not yet legal in Chicago.
    • The Supreme Court did not explicitly find the law unconstitutional and technically reversed and REMANDED the case for further proceedings in accordance with the Opinion.
    • It is likely that the local law still binds law enforcement and the local residents until further conclusive notice.


    DISCLAIMER: UNTIL YOU CONSULT WITH AN ATTORNEY, DO NOT RELY ON ANY PURPORTED LEGAL ADVICE HEREIN SUGGESTED OR PROVIDED BY THIS POSTER or ANYONE ON THIS PUBLIC FORUM.



    As Paul aptly points out, inferior courts are not bound by dicta propounded by courts that stand in a position of superior authority. Even though the question posed, or the issue presented may seem clear, the path that a court takes in reaching a holding is quite important and arguably constitutes binding law.

    In McDonald v. Chicago, the Court discussed Heller and how it recognized the right to possess a firearm in the home for self-defense purposes. However, McDonald goes much further. SCOTUS reaffirms that the Second Amendment encompasses an individual right and that the Second Amendment binds the Federal, State and Local governments.

    "We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as 'prohibitions on the possession of firearms by felons and the mentally ill,' 'laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.'” McDonald.

    I do not consider the except above to be dicta, as it was necessary for the holding of the Court to flesh out this fundamental right. The underlying issue was the constitutional meaning of the Second Amendment and it is wholly within the purview of SCOTUS to define the constitutional limits of the Second Amendment, as it put forth a binding guide for future Second Amendment jurisprudence. Without saying anything more, the Court reversed the inferior court, acting in accordance with the legal analysis it put forth in McDonald.

    Finding that the Second Amendment is a fundamental right, SCOTUS has essentially guaranteed that judicial review of statutory law will be undertaken with 'Strict Scrutiny' in accordance with U.S. Supreme Court precedent.

    Additionally:
    The following types of laws will likely be upheld, so long as they are 'reasonable' and comport with the 'Strict Scrutiny' standard of review for statutory law:
    • Prohibitions on felons and mentally ill individuals;
    • Carrying of Firearms in sensitive places like schools and government buildings, and potentially other places; and,
    • Regulation of Commercial sale of firearms.
    These are three bright lines for laws that can survive strict scrutiny. Anything else, GAME ON!!!
    He wore his gun outside his pants for all the honest world to see. Pancho & Lefty

    The millions of people, armed in the holy cause of liberty, and in such a country as that which we possess, are invincible by any force which our enemy can send against us....There is no retreat but in submission and slavery! ...The war is inevitable–and let it come! I repeat it, Sir, let it come …………. PATRICK HENRY speech 1776

  9. #9
    Campaign Veteran StogieC's Avatar
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    Quote Originally Posted by Joseph Mason View Post
    Original poster:
    • Open carry is not yet legal in Chicago.
    • The Supreme Court did not explicitly find the law unconstitutional and technically reversed and REMANDED the case for further proceedings in accordance with the Opinion.
    • It is likely that the local law still binds law enforcement and the local residents until further conclusive notice.


    DISCLAIMER: UNTIL YOU CONSULT WITH AN ATTORNEY, DO NOT RELY ON ANY PURPORTED LEGAL ADVICE HEREIN SUGGESTED OR PROVIDED BY THIS POSTER or ANYONE ON THIS PUBLIC FORUM.



    As Paul aptly points out, inferior courts are not bound by dicta propounded by courts that stand in a position of superior authority. Even though the question posed, or the issue presented may seem clear, the path that a court takes in reaching a holding is quite important and arguably constitutes binding law.

    In McDonald v. Chicago, the Court discussed Heller and how it recognized the right to possess a firearm in the home for self-defense purposes. However, McDonald goes much further. SCOTUS reaffirms that the Second Amendment encompasses an individual right and that the Second Amendment binds the Federal, State and Local governments.
    "We made it clear in Heller that our holding did not cast doubt on such longstanding regulatory measures as 'prohibitions on the possession of firearms by felons and the mentally ill,' 'laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.'” McDonald.
    I do not consider the except above to be dicta, as it was necessary for the holding of the Court to flesh out this fundamental right. The underlying issue was the constitutional meaning of the Second Amendment and it is wholly within the purview of SCOTUS to define the constitutional limits of the Second Amendment, as it put forth a binding guide for future Second Amendment jurisprudence. Without saying anything more, the Court reversed the inferior court, acting in accordance with the legal analysis it put forth in McDonald.

    Finding that the Second Amendment is a fundamental right, SCOTUS has essentially guaranteed that judicial review of statutory law will be undertaken with 'Strict Scrutiny' in accordance with U.S. Supreme Court precedent.

    Additionally:
    The following types of laws will likely be upheld, so long as they are 'reasonable' and comport with the 'Strict Scrutiny' standard of review for statutory law:
    • Prohibitions on felons and mentally ill individuals;
    • Carrying of Firearms in sensitive places like schools and government buildings, and potentially other places; and,
    • Regulation of Commercial sale of firearms.

    PS Welcome Aboard!

  10. #10
    Quote Originally Posted by StogieC View Post
    PS Welcome Aboard!
    Thank you for having me.

    Quote Originally Posted by Thundar View Post
    These are three bright lines for laws that can survive strict scrutiny. Anything else, GAME ON!!!
    As for the guide that I mentioned before, I think the Opinion left open the possibility that the guide can be expanded by other judiciaries. However, I do not believe that there is any room for debate as to whether or not restrictions in firearm statutes are reviewed under strict-scrutiny - which is a pretty substantial burden for the government.
    Last edited by Joseph Mason; 07-03-2010 at 08:25 PM.

  11. #11
    Regular Member Maverick9110e's Avatar
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    I demand my right to BEAR ARMS!!!



    lol!!

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    Quote Originally Posted by Joseph Mason View Post
    Thank you for having me.



    As for the guide that I mentioned before, I think the Opinion left open the possibility that the guide can be expanded by other judiciaries. However, I do not believe that there is any room for debate as to whether or not restrictions in firearm statutes are reviewed under strict-scrutiny - which is a pretty substantial burden for the government.
    I think that these statutes SHOULD be reviewed under something close to strict scrutiny, but there has been a divide in the courts as to whether they will be. There is some law stating that even though a right in the abstract is fundamental, lower degrees of scrutiny can be applied.

  13. #13
    Quote Originally Posted by The Donkey View Post
    I think that these statutes SHOULD be reviewed under something close to strict scrutiny, but there has been a divide in the courts as to whether they will be. There is some law stating that even though a right in the abstract is fundamental, lower degrees of scrutiny can be applied.
    In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the "liberty" specially protected by the Due Process Clause includes the rights to marry, Loving v. Virginia, 388 U.S. 1 (1967); to have children, Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535 (1942); to direct the education and upbringing of one's children, Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925); to marital privacy, Griswold v. Connecticut, 381 U.S. 479 (1965); to use contraception, ibid; Eisenstadt v. Baird, 405 U.S. 438 (1972); to bodily integrity, Rochin v. California, 342 U.S. 165 (1952), and to abortion, Casey, supra.
    Wash. v. Glucksberg, 521 U.S. 702.

    The Second Amendment, by being part of the Bill of Rights - its very location in the Constitution, has made it a fundamental right and freedom as illustrated in cases like Wash v. Glucksberg and impliedly established in cases leading up to Lawrence v. Texas. The major dilemma was recognizing an individual right and incorporating the Amendment against the States. Although the dissent in Heller suggests that the majority implicitly foreclosed Strict Scrutiny by suggesting possible restrictions, this notion would unlikely withstand argument. This necessitates a Strict Scrutiny analysis for offending government statutes and actions.
    Last edited by Joseph Mason; 07-04-2010 at 02:44 AM.

  14. #14
    Campaign Veteran Cavalryman's Avatar
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    Although courts are pretty generally populated by socialist ********** and you can never predict with certainty what they will do...

    I think it most likely that Chicago's and Washington, D.C.'s draconian regulations will be struck down. The SCOTUS affirmed that Americans have a "fundamental right" to have handguns in their homes for self defense. If it is a "fundamental right," it can't be regulated to any significant degree. The courts have pretty consistently held that putting restrictions on a fundamental right won't fly. I think it very likely that courts will continue to allow pretty significant restrictions upon the carrying of firearms in public.

  15. #15
    Quote Originally Posted by Cavalryman View Post
    Although courts are pretty generally populated by socialist ********** and you can never predict with certainty what they will do...

    I think it most likely that Chicago's and Washington, D.C.'s draconian regulations will be struck down. The SCOTUS affirmed that Americans have a "fundamental right" to have handguns in their homes for self defense. If it is a "fundamental right," it can't be regulated to any significant degree. The courts have pretty consistently held that putting restrictions on a fundamental right won't fly. I think it very likely that courts will continue to allow pretty significant restrictions upon the carrying of firearms in public.
    You are correct in noting that it is difficult to predict, ultimately, how a judicial body will rule. However, common-law and the latest trend in the Court dictates that government actions infringing on the Second Amendment will be analyzed under the Strict Scrutiny standard. There are weak arguments for implementing other forms of review.

    Almost any stable and modern judiciary seeks to provide predictability and consistency. Setting forth bad precedent and inconsistent jurisprudence diminishes the Court's effectiveness and harms juridical value. As seen by the issues involving Due Process and Privileges and Immunities under the Constitution, some Justices do not want to explicitly meddle with cases of historical significance, even if they feel that is would be justified, as such drastic reinterpretations of the Constitution can have wide-spread and significant long-term effects.
    Last edited by Joseph Mason; 07-04-2010 at 03:33 AM.

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    Welcome Joseph Mason and well said

    Welcome Joseph Mason and well said. You may appreciate reading these other users,

    http://forum.opencarry.org/forums/member.php?37352-user

    and

    http://forum.opencarry.org/forums/member.php?28038-jrm

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    Why/How does post offices keep getting a free pass.

    They are no more a no carry zone than city hall but no one wants to be the test case.

    One of the laws regarding post offices says something about carrying there 'for/by lawful means'!

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