Thread: 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?
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
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 09:27 AM.
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.
- 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.
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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.Originally Posted by Paul Fisher
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.
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 02:42 AM.
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
Last edited by Joseph Mason; 07-03-2010 at 07:25 PM.
I demand my right to BEAR ARMS!!!
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 01:44 AM.
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.
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 02:33 AM.
Welcome Joseph Mason and well said. You may appreciate reading these other users,
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'!