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Thread: "Wait for McDonald ruling"

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    "Wait for McDonald ruling"

    Does it seem ironic that many of the wise senior members on this forum more than 7 months ago advised everyone to wait to OC until after the McDonald ruling for the betterment of the movement. Then it comes out, the SCOTUS rules that you can have a gun in your house and that 2a applies to the states. Well in Kalifornia we have always been able to have a gun in a house. Many chief/sheriff LEO's say it is not going to change the way things are done here. More lawsuits get filed. In the meantime, while you have not been OC'ing, the legislature is on the way to take that option away from us via AB1934. We just pissed away the time and our rights. And of course, it is time to file another lawsuit.

    The next call will be "wait for SYKES", or "wait for NORDYKE" . By then the legislature will be done stripping OC and that law may be in effect. Am I the only one thinking it was a poor strategic move calling for not OC'ing?

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    Anti-Saldana Freedom Fighter bigtoe416's Avatar
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    I think Condition3 hit the nail on the head with an earlier thread which spoke about how the recommendation of "if you're going to open carry, please do it in groups" was a poor one. C3 thought if we would had continued open carrying daily, on an individual basis, that more people would be exposed to it and AB 1934 would never have arisen. I agree completely with his assessment.

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    Quote Originally Posted by bigtoe416 View Post
    I think Condition3 hit the nail on the head with an earlier thread which spoke about how the recommendation of "if you're going to open carry, please do it in groups" was a poor one. C3 thought if we would had continued open carrying daily, on an individual basis, that more people would be exposed to it and AB 1934 would never have arisen. I agree completely with his assessment.
    Hey Bigtoe and Oc4ever,

    I concurr with your opinions. I was critical of all who posted that McDonald was the end-all. The Supremes always rule on the narrowist of issues at hand--and nothing more. They gave us a little tidbit regarding the right to carry, wear, bear; however, they did not define it and they did not lay-out the gubmints right to regulate such (or not to regulate).

    Where are we now? We have a Neo-Marxist legislature who is hell-bent on controlling every aspect of our lives, including removing the ability to defend one's self.

    I know this is a told-ya-so, but our only hope, in the short-term, is for SchartzenKennedy to veto the bill.

    Yea, our legal right to have a gun in the house, in our tent, in our camper, or in our boat, if we are residing in such, still exists. It has now been re-codified as a natural right! THAT'S ALL THAT HAPPENED!

    markm

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    Regular Member Gundude's Avatar
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    Courts, even the Supreme Court only rule on the questions before them. Whether the Chicago gun ban was unconstitutional and whether the 2nd amendment was to be incorporated by way of the due precess clause or the priviliges or immunities clause of the 14th amendment. Nothing else. However, in incorporating the 2nd against all the states, it sets the stage for many lawsuits against many state regulations. There was no question before the Court that involved carrying of weapons. Heller stated that the core issue of the 2nd amendment is the right to keep and bear arms in the event of confrontation. Now we have to wait for this to ruled on by the lower courts. Any way you look at it, Heller and Chicago were monster cases for gun rights.
    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 never stopped OCing and I don't intend to stop.

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    I just popped back over and the same consensus remains - don't OC in CA, even post McDonald.

    "You can be prosecuted", "There's no 2RKBA in CA", "Do you know every school zone?", etc.

    A fundamental right is just that, fundamental. It should not be taken away lightly, and should never be given away.

    1. Just wait for McDonald
    2. Just wait for the Federal court to decide McDonald
    3. Just wait for Nordyke
    4. Just wait for Sykes
    ...
    5. Just wait for the XXX challenge to OC law

    10-15 years down the road, the consensus may be "yeah, we haven't seen a problem with OC and the courts seem to fully support the 2A in CA, so go ahead, but be careful about literal gun grabbers".

    Personally, I'm going to Wal-Mart and I'm going to OC like I always do. It just happens to be in Carson City NV

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    The 'Wait for McDonald' request was to accomplish two things for the RKBA community;

    * keep individuals from incurring defensive criminal charges which drained resources and could create bad case law before we had a 2A Rights Card to play.

    &

    *to not encourage a certain legislature from getting the needed momentum to pass a bill that we knew was in the works (the UOC ban). Inspiring the antis to create more obstacles that will require time/money to later tear down was not and is not good tactics.


    Now we are dealing with trying to keep the UOC ban from passing. UOCing in urban areas and getting press could help it pass the Senate. There is a very strong behind the scenes effort to block this bill there post McDonald (which does give us leverage we did not have before). If it fails in the Senate, I'd say go UOC. If it passes then we need to be playing politics with the Gov.'s office and that would require staying low profile through October(?).

    I love OC, and seeing LOC restored in CA is my personal goal.

    OC or is a great tool for the longer term effort of desensitizing the RKBA starved CA public to self defense carry, but will take time. Time we won't have if OC is further banned. But the public can not be 'turned' fast enough to effect the out come of the UOC ban. If it cannot be stopped post McD. in the Senate/Gov's office then it will have to happen in the courts which could take a very long time to resolve.

    Meeting in groups was encouraged because of 'safety in numbers'. Solo individuals or small groups were more 'vulnerable' to police/legal system abuse in the beginning of UOC. Group events were also fun and generated press that we thought was needed for the public relations effort. A lot of this happened before we 'grew up' and developed a wider RKBA understanding of the civil rights court legal process.

    Strategies need to change when the playing field changes. The introduction of the UOC ban bill and it's passage in the assembly requires a re-evaluation of tactics. We failed to not inspire it's introduction. And now we're trying to not inspire it's passage in the Senate.

    Continuing to UOC was/is seen by some as a selfish act form the smallest group in the RKBA coalition. I don't see it that way as I know our love of OC and our reasons behind it. But I do wish some could grasp the wider legal picture and understand the harm/set back that continuing to UOC prior to McD and now prior to the resolution of the ban did and can cause.

    Once the ban bill is resolved 'yea or nay' we'll have the choice of UOCing to celebrate it's defeat or UOCing till our sunset on 12/31/10. I'd rather have the former on the road to LOC.

  8. #8
    Anti-Saldana Freedom Fighter Sons of Liberty's Avatar
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    Quote Originally Posted by cato View Post
    [SNIP]Once the ban bill is resolved 'yea or nay' we'll have the choice of UOCing to celebrate it's defeat or UOCing till our sunset on 12/31/10. I'd rather have the former on the road to LOC.
    Times up.

    The Preamble to the Constitution states, "We the People...do ordain and establish this Constitution for the United States of America."

    Somewhere along the line, our government has forgotten who it is they serve. And somewhere along the line, some of the people have forgotten that it is they who are entrusted to keep and enforce the Constitution upon its government. Our President, our legislators, our judicial officials are not the keepers and interpreters of the Constitution...the people are.

    I, for one (and I know I am not alone), am appalled at how all branches of the government have placed themselves at the helm of a ship they were never intended to command and to spoon feed us our Constitutional portion that they deem fit to feed us. I am not interested in playing these court games like Mayor Daley is playing or in being brushed aside with the legislative shenanigans like Lori Saldana is orchestrating. This type of tomfoolery can go on forever if the people let it.

    It's time we take our stand!

  9. #9
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    Quote Originally Posted by Sons of Liberty View Post

    It's time we take our stand!
    Then I expect to read of your arrest for 12031 in the morning paper. Make sure you have about $250 in cash so something is on your books while you await the jury trial.

    I do wish I were an old man with nothing to loose. I'd apply for a CCW, get denied, and go LOC. When I got arrested I would not sign a ticket and push for a speedy jury trial by not waiving time while sitting in jail racking up damages.

  10. #10
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    Quote Originally Posted by cato View Post
    Then I expect to read of your arrest for 12031 in the morning paper. Make sure you have about $250 in cash so something is on your books while you await the jury trial.

    I do wish I were an old man with nothing to loose. I'd apply for a CCW, get denied, and go LOC. When I got arrested I would not sign a ticket and push for a speedy jury trial by not waiving time while sitting in jail racking up damages.
    I don't plan on getting arrested. And I am not advocating using a corrupt system of government to line my pockets with retirement money.

    I do think it's time to act. And the smallest most direct step is for those who disagree with the actions of government is to do the things they do not want you to do; one of them right now is to bear arms in public. Other actions will become evident as government moves further to oppress the rights of the people.

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    Regular Member Gundude's Avatar
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    Quote Originally Posted by Sons of Liberty View Post
    I don't plan on getting arrested. And I am not advocating using a corrupt system of government to line my pockets with retirement money.

    I do think it's time to act. And the smallest most direct step is for those who disagree with the actions of government is to do the things they do not want you to do; one of them right now is to bear arms in public. Other actions will become evident as government moves further to oppress the rights of the people.
    Isn't this what Sykes v. McGinness if about?
    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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    Anybody who thinks the only thing McDonald did for us is give us a in-the-home-ONLY right is just wrong. My best guess is they either failed to actually read the decisions. Both McDonald and Heller have a lot of great language that implies how the 2A applies outside the home as well. But since these two cases were not about outside the home, the court isn't going to blatantly come out and say it.

    The bottom line is that the 2A says nothing about the home. The court determined the 2A applies to the states. This is a huge step forward in our fight for our rights.

    I'm just tired of all the naysayers shouting their "nays" from the rooftops. Truly makes me wonder if some among us are antis that are trying to demoralize and/or cause strife from within. Or maybe they're just hopelessly pessimistic. Sad either way.

    Me, I'm enjoying the sweet taste of victory. We won a big battle, and it may be the one that wins us the war in the long run.
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    Not a Naysayer, just a realist!

    Quote Originally Posted by CA_Libertarian View Post
    Anybody who thinks the only thing McDonald did for us is give us a in-the-home-ONLY right is just wrong. My best guess is they either failed to actually read the decisions. Both McDonald and Heller have a lot of great language that implies how the 2A applies outside the home as well. But since these two cases were not about outside the home, the court isn't going to blatantly come out and say it.

    The bottom line is that the 2A says nothing about the home. The court determined the 2A applies to the states. This is a huge step forward in our fight for our rights.

    I'm just tired of all the naysayers shouting their "nays" from the rooftops. Truly makes me wonder if some among us are antis that are trying to demoralize and/or cause strife from within. Or maybe they're just hopelessly pessimistic. Sad either way.

    Me, I'm enjoying the sweet taste of victory. We won a big battle, and it may be the one that wins us the war in the long run.
    Hey CA_libertarian,

    My post had a narrow point--I don't know if you are responding to me; however, I think you have it wrong. The court re-affirmed incorporation of 2A on the states. Thomas' opinion lays-out the history of the 14th A and how it was all about incorporating 2a (and other issues) onto freedmen who lived in the various states. Freedmen, who were suffering under restrictive gun laws and not able to protect themselves from the "cabin door" being broken-down by racists.

    My point stands--the Supremes ruled on a narrow issue--we can keep and bear arms in the home as long as we register, pay fees, have only one gun in operable condition, pay $550 to gubmint, and so-on. Mayor Daley does not think that McDonald was a broad victory for self-defense rights. (my examples are from DC's and Chicago's new and proposed ordinances regarding guns in the home for self-defense--post Heller/McDonald). Don't forget about the tests and shooting range requirement!

    Decades from now we will be having an argument with CATO on restraint and political correctness. CATO may think that if we "play nice" with neo-Marxists, they will be nice to us (I don't know if he thinks that way, it sure seems he does). BS!

    My so-called pessimistic opinion stands! Reality sucks!

    markm
    Last edited by MarkBofRAdvocate; 07-05-2010 at 11:05 AM. Reason: Added sentence re: tests and range requirements.

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    No, TTBOMK, the 2nd Amendment has NEVER been incorporated against the states. Do you have some SCOTUS opinion in the past to reference?

    Quote Originally Posted by MarkBofRAdvocate View Post
    Hey CA_libertarian,

    My post had a narrow point--I don't know if you are responding to me; however, I think you have it wrong. The court re-affirmed incorporation of 2A on the states. Thomas' opinion lays-out the history of the 14th A and how it was all about incorporating 2a (and other issues) onto freedmen who lived in the various states. Freedmen, who were suffering under restrictive gun laws and not able to protect themselves from the "cabin door" being broken-down by racists.

    My point stands--the Supremes ruled on a narrow issue--we can keep and bear arms in the home as long as we register, pay fees, have only one gun in operable condition, pay $550 to gubmint, and so-on. Mayor Daley does not think that McDonald was a broad victory for self-defense rights. (my examples are from DC's and Chicago's new and proposed ordinances regarding guns in the home for self-defense--post Heller/McDonald). Don't forget about the tests and shooting range requirement!

    Decades from now we will be having an argument with CATO on restraint and political correctness. CATO may think that if we "play nice" with neo-Marxists, they will be nice to us (I don't know if he thinks that way, it sure seems he does). BS!

    My so-called pessimistic opinion stands! Reality sucks!

    markm

    Straight from p2 of the Opinion:
    (b)
    The Bill of Rights, including the Second Amendment, originally applied only to the Federal Government, not to the States, see, e.g., Barron ex rel. Tiernan v. Mayor of Baltimore, 7 Pet. 243, 247, but the constitutional Amendments adopted in the Civil War’s aftermath fundamentally altered the federal system. Four years after the adoption of the Fourteenth Amendment, this Court held in the SlaughterHouse Cases, that the Privileges or Immunities Clause protects only those rights “which owe their existence to the Federal government, its National character, its Constitution, or its laws,” 16 Wall., at 79, and that the fundamental rights predating the creation of the Federal Government were not protected by the Clause, id., at 76. Under this narrow reading, the Court held that the Privileges or Immunities Clause protects only very limited rights. Id., at 79–80. Subsequently, the Court held that the Second Amendment applies only to the Federal Government in Cruikshank, 92 U. S. 542, Presser, 116
    U.
    S. 252, and Miller, 153 U. S. 535, the decisions on which the Seventh Circuit relied in this case. Pp. 5–9.
    From Cruikshank, as noted by SCOTUS, the 2nd only applied to the Fed. While part of the historical reason for the 14 might have been to incorporate, SCOTUS did not agree (at least under PorI).


    And as far as your ""register, pay fees, only one gun, so-on....," SCOTUS seems to disagree.
    From p5
    (ii) Despite all this evidence, municipal respondents argue that Members of Congress overwhelmingly viewed §1 of the Fourteenth Amendment as purely an antidiscrimination rule. But while §1 does contain an antidiscrimination rule, i.e., the Equal Protection Clause,it can hardly be said that the section does no more than prohibit discrimination. If what municipal respondents mean is that the Second Amendment should be singled out for special—and specially unfavorable—treatment, the Court rejects the suggestion. The right to keep and bear arms must be regarded as a substantive guarantee, not a prohibition that could be ignored so long as the States legislated in an evenhanded manner. Pp. 30–33.
    From this, I do not believe that SCOTUS will view such draconian regulations as a valid method of "reasonable." And I believe that a proper appeal of the current DC regs (and the pending Chicago regs) will be successful.


    http://www.supremecourt.gov/opinions/09pdf/08-1521.pdf

    This SCOTUS Opinion should be REQUIRED READING.


    One part that shows as very clear is the following:
    In Heller, and now in McDonald, SCOTUS upholds two key points
    1) The 2nd Amendment does protect an "individual right to keep and bear arms for self-defense"
    2) The 2nd Amendment is incorporated against DC and the states, and thus protects point one in the states.

    Note that Heller and now McDonald basically rule on those two points. In Heller, it ruled that the 2nd Amendment applied to the district, AND that it protected the RKBA for self-defense in the home; because that is what was challenged. McDonald ruled that the 2nd Am applies to the states, AND that it protects the RKBA for self-defense in the home; because that is what was challenged.

    Neither opinion limits the 2nd Amendment to ONLY the RKBA in the home; the rest of it was incorporated and not clarified in a granular manner. SCOTUS did not enumerate a bunch of types of RKBA in the opinion, because cert was granted for only the scope of the specific cases presented. This is "the foot in the door." The States will either respect incorporation, or they will attempt to deny it; leaving the opening for appeal.
    Last edited by wrightme; 07-05-2010 at 11:38 AM.
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    Do Courts make law or clarify law with real-life cases?

    Quote Originally Posted by wrightme View Post
    No, TTBOMK, the 2nd Amendment has NEVER been incorporated against the states. Do you have some SCOTUS opinion in the past to reference?
    Thanks for your response,

    You and I have a difference of philosophcal proportions.
    Courts don't make constitutionally legal law. Courts don't "incorporate" anything.

    SCOTUS affirmed that 2A is incorporated as a matter of case law--they ruled that the intent of Congress and the states was to have the states follow 2A under Constitutional law, which includes amendments, that were passed by congress and ratified by states, namely the the 14th A.

    Case law is an explanation of existing law. If Congress' and the ratifying state's intent was not to incorporate 2A with the 14th A, then the court should have ruled for no affirmation of 2A in McDonald. Strict Contructionalist ideology forces that conclusion. I believe the 5 justices on our side are strict constructionalists; therefore, they believed the intent of congress and the ratifying states was for incorporation. Thomas' opinion paints a clear picture.

    Courts are not supposed to create law, they are supposed to interpret law as to Constitutionality of said law, based on the intent of the framers, congress, and the ratifying states.

    Philosophical difference of opinion--that is all!

    markm

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    Quote Originally Posted by MarkBofRAdvocate View Post
    Thanks for your response,

    You and I have a difference of philosophcal proportions.
    Courts don't make constitutionally legal law. Courts don't "incorporate" anything.
    SCOTUS only rules on cases as presented. In this case, had not "due process" been presented, "PorI" incorporation would have failed.

    Quote Originally Posted by MBRA
    SCOTUS affirmed that 2A is incorporated as a matter of case law--they ruled that the intent of Congress and the states was to have the states follow 2A under Constitutional law, which includes amendments, that were passed by congress and ratified by states, namely the the 14th A.
    Yet in Slaughterhouse, PorI was limited to scope, and in McDonald, SCOTUS refused to overturn Slaughterhouse.

    Quote Originally Posted by MBRA
    Case law is an explanation of existing law. If Congress' and the ratifying state's intent was not to incorporate 2A with the 14th A, then the court should have ruled for no affirmation of 2A in McDonald. Strict Contructionalist ideology forces that conclusion. I believe the 5 justices on our side are strict constructionalists; therefore, they believed the intent of congress and the ratifying states was for incorporation. Thomas' opinion paints a clear picture.
    Yet since SCOTUS had not yet presented the 2nd as incorporated against the states, operation of law in the states was as if there was NO incorporation. Otherwise, we would not have places like Chicago. SCOTUS could not re-affirm something that they have not affirmed already.

    Quote Originally Posted by MBRA
    Courts are not supposed to create law, they are supposed to interpret law as to Constitutionality of said law, based on the intent of the framers, congress, and the ratifying states.
    Correct. But as we all see, the lower courts are frequently at odds with this; otherwise, we wouldn't even need SCOTUS.

    Quote Originally Posted by MBRA
    Philosophical difference of opinion--that is all!

    markm
    Well, yes and no. It seems we have some fundamental differences as well. We just happen to be on the same side of the issue.
    "Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety." Benjamin Franklin

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    Keep dreaming!

    Quote Originally Posted by wrightme View Post
    No, TTBOMK, the 2nd Amendment has NEVER been incorporated against the states. Do you have some SCOTUS opinion in the past to reference?




    Straight from p2 of the Opinion:
    From Cruikshank, as noted by SCOTUS, the 2nd only applied to the Fed. While part of the historical reason for the 14 might have been to incorporate, SCOTUS did not agree (at least under PorI).


    And as far as your ""register, pay fees, only one gun, so-on....," SCOTUS seems to disagree.
    From p5

    From this, I do not believe that SCOTUS will view such draconian regulations as a valid method of "reasonable." And I believe that a proper appeal of the current DC regs (and the pending Chicago regs) will be successful.


    http://www.supremecourt.gov/opinions/09pdf/08-1521.pdf

    This SCOTUS Opinion should be REQUIRED READING.


    One part that shows as very clear is the following:
    In Heller, and now in McDonald, SCOTUS upholds two key points
    1) The 2nd Amendment does protect an "individual right to keep and bear arms for self-defense"
    2) The 2nd Amendment is incorporated against DC and the states, and thus protects point one in the states.

    Note that Heller and now McDonald basically rule on those two points. In Heller, it ruled that the 2nd Amendment applied to the district, AND that it protected the RKBA for self-defense in the home; because that is what was challenged. McDonald ruled that the 2nd Am applies to the states, AND that it protects the RKBA for self-defense in the home; because that is what was challenged.

    Neither opinion limits the 2nd Amendment to ONLY the RKBA in the home; the rest of it was incorporated and not clarified in a granular manner. SCOTUS did not enumerate a bunch of types of RKBA in the opinion, because cert was granted for only the scope of the specific cases presented. This is "the foot in the door." The States will either respect incorporation, or they will attempt to deny it; leaving the opening for appeal.
    Your distinction between Heller and McDonald is wrong--the court always rules on the narrowist of issues--they did not answer the intent/incorporation issue because it was not an issue before them.

    Yea, SCOTUS ruled, and in DC and Chicago, citizens have to pay fees, attend classes, prove proficiency with a gun, and keep all but one gun locked-up and unusable. Keep dreaming...reality sucks!

    Just because gubmint operates under unconstitutional law does not make it "constitutional" until the Supremes rule it "unconstitutional". Bad law is bad law.

    markm
    Last edited by MarkBofRAdvocate; 07-05-2010 at 11:57 AM.

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    Quote Originally Posted by MarkBofRAdvocate View Post
    Your distinction between Heller and McDonald is wrong--the court always rules on the narrowist of issues--they did not answer the intent/incorporation issue because it was not an issue before them.

    Yea, SCOTUS ruled, and in DC and Chicago, citizens have to pay fees, attend classes, prove proficiency with a gun, and keep all but one gun locked-up and unusable. Keep dreaming...reality sucks!

    markm
    Reality: The current (and in Chicago) draconian regulations have not been presented to SCOTUS and ruled upon.

    Where am I wrong? I stated that they DID only rule on what was in front of them. But, read the rulings before you call me incorrect. My information is directly FROM the rulings (actually, opinions).

    And where did I present "distinction between Heller and McDonald?" They are fundamentally the same; except one is in a District, and the other is in a State.
    "Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety." Benjamin Franklin

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    Mark,

    No disrespect intended, and I didn't mean to single you out. I've been reading over at CGF and here and between both websites I've just become fed up with the pessimism (or realism, as you call it).

    The bottom line is that now we can use the 2A as a defense in court. This is big news from the past 100+ years. SCOTUS didn't limit the 2A to ONLY in-the-home, fees-paid, blah blah blah. That's just what the case at hand was about. In the eyes of the Judicial branch of our government, it's a whole new ballgame when it comes to guns.

    It's really that simple.

    Oh, and all the legal eagles say that's how it works. No offense, but I'm gonna take the optimism of the "right people" over your less-knowledgeable pessimism.

    Again, McDonald is not the end-all victory, but as far as battling for our rights goes, we just won a key battle.
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    Quote Originally Posted by CA_Libertarian View Post
    Mark,

    No disrespect intended, and I didn't mean to single you out. I've been reading over at CGF and here and between both websites I've just become fed up with the pessimism (or realism, as you call it).

    The bottom line is that now we can use the 2A as a defense in court. This is big news from the past 100+ years. SCOTUS didn't limit the 2A to ONLY in-the-home, fees-paid, blah blah blah. That's just what the case at hand was about. In the eyes of the Judicial branch of our government, it's a whole new ballgame when it comes to guns.

    It's really that simple.

    Oh, and all the legal eagles say that's how it works. No offense, but I'm gonna take the optimism of the "right people" over your less-knowledgeable pessimism.

    Again, McDonald is not the end-all victory, but as far as battling for our rights goes, we just won a key battle.
    Concise explanation. And as I stated above:
    Quote Originally Posted by wrightme View Post
    SCOTUS did not enumerate a bunch of types of RKBA in the opinion, because cert was granted for only the scope of the specific cases presented. This is "the foot in the door." The States will either respect incorporation, or they will attempt to deny it; leaving the opening for appeal.
    "Those who would give up essential liberty to purchase a little temporary safety deserve neither liberty nor safety." Benjamin Franklin

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