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Thread: A few cases throughout the U.S. on 2nd amendment issues

  1. #1
    Regular Member cowboyridn's Avatar
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    A few cases throughout the U.S. on 2nd amendment issues

    Cases throughout the U.S. on 2nd amendment issues, some of the cases below are what we might face if we don’t get Constitutional Carry. As an individual, if you’re denied a cc permit you will have to find an attorney to challenge the non-issue. In other words, having a cc with restrictions, will disallow some citizens of Wisconsin from getting a cc permit as the permits will probably be issued by local law enforcement.

    If you’re denied a cc permit for one reason or another, you will have to hire an attorney to fight for your Constitutional right. How much revenue for attorneys throughout Wisconsin is that going to bring in?
    Most of the legislatures have been attorneys, but, not all. So, when they decide on cc, they definitely think about the revenue that will be brought into the local law enforcement and attorneys.

    Read the cases at the link provided and see what troubles having restrictions on getting a cc permit can have, as several cases show, the local law enforcement department is the final decision maker on issuing you your permit.

    http://www.pirate4x4.com/forum/showthread.php?t=912676

    Don
    Last edited by cowboyridn; 11-13-2010 at 10:18 AM. Reason: url

  2. #2
    Founder's Club Member - Moderator Gray Peterson's Avatar
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    Quote Originally Posted by cowboyridn View Post
    Cases throughout the U.S. on 2nd amendment issues, some of the cases below are what we might face if we don’t get Constitutional Carry. As an individual, if you’re denied a cc permit you will have to find an attorney to challenge the non-issue. In other words, having a cc with restrictions, will disallow some citizens of Wisconsin from getting a cc permit as the permits will probably be issued by local law enforcement.
    A few issues here. First is that though there are some states which allow sheriffs just a little bit of discretion (dangerous persons/"naked man" provisions), there's a lot more states that basically state "If you're legally allowed to possess, you must be issued a license to carry". The states that I know off the top of my head that are like this is Washington State, Florida, Kansas, and Arizona (there's a lot more). If you're denied a license, your problems are bigger than just merely being unable to carry, you were not able to possess firearms at all beforehand under state law.

    There are also other states that do have the "dangerous persons" provision, but have attorneys fees and court cost recovery (Oregon), which keeps a check on such abuses (plus the burden of proof is on the defendant).

    It all depends on how the law is written.

    If you’re denied a cc permit for one reason or another, you will have to hire an attorney to fight for your Constitutional right. How much revenue for attorneys throughout Wisconsin is that going to bring in?

    Most of the legislatures have been attorneys, but, not all. So, when they decide on cc, they definitely think about the revenue that will be brought into the local law enforcement and attorneys.
    Most of the gun attorneys I know have good practices in other fields and do gun law stuff as a labor of love. For example, Don Kilmer in California primarily does family law (which makes him pretty good money), but he's better known to us as first person to have the 2nd amendment incorporated against the states (Nordyke v. King). He certainly is not making a profit on it, and good gun related civil rights attorneys are a rarity. They usually charge to an organization, not to the individual.


    Read the cases at the link provided and see what troubles having restrictions on getting a cc permit can have, as several cases show, the local law enforcement department is the final decision maker on issuing you your permit.

    Don
    With the exception of my case, all of those cases are may-issue states that have "good cause" or "proper cause for issuance". They are considered "may-issue" states in terms of carry licenses where the onus is on the plaintiff to prove their cause (unless you sue in federal court). My case is a statutory prohibition due to my lack of residency in the state of Colorado.

    Your arguments needs to be better if you're going to argue constitutional carry. If I can poke holes in your argument, so can people at the legislature.

  3. #3
    Regular Member cowboyridn's Avatar
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    Argument

    Quote Originally Posted by Gray Peterson View Post
    A few issues here. First is that though there are some states which allow sheriffs just a little bit of discretion (dangerous persons/"naked man" provisions), there's a lot more states that basically state "If you're legally allowed to possess, you must be issued a license to carry". The states that I know off the top of my head that are like this is Washington State, Florida, Kansas, and Arizona (there's a lot more). If you're denied a license, your problems are bigger than just merely being unable to carry, you were not able to possess firearms at all beforehand under state law.

    There are also other states that do have the "dangerous persons" provision, but have attorneys fees and court cost recovery (Oregon), which keeps a check on such abuses (plus the burden of proof is on the defendant).

    It all depends on how the law is written.



    Most of the gun attorneys I know have good practices in other fields and do gun law stuff as a labor of love. For example, Don Kilmer in California primarily does family law (which makes him pretty good money), but he's better known to us as first person to have the 2nd amendment incorporated against the states (Nordyke v. King). He certainly is not making a profit on it, and good gun related civil rights attorneys are a rarity. They usually charge to an organization, not to the individual.




    With the exception of my case, all of those cases are may-issue states that have "good cause" or "proper cause for issuance". They are considered "may-issue" states in terms of carry licenses where the onus is on the plaintiff to prove their cause (unless you sue in federal court). My case is a statutory prohibition due to my lack of residency in the state of Colorado.

    Your arguments needs to be better if you're going to argue constitutional carry. If I can poke holes in your argument, so can people at the legislature.
    Was a week argument, but, I really didn't try to make an argument, just going on the cases I read on the site I listed. Agreed though, it was a week post for Constitutional carry, let me work on a better one, stay tuned, I love a good challenge.

    Don
    Last edited by cowboyridn; 11-13-2010 at 12:14 PM. Reason: add to the post

  4. #4
    Founder's Club Member - Moderator Gray Peterson's Avatar
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    Quote Originally Posted by cowboyridn View Post
    Was a week argument, but, I really didn't try to make an argument, just going on the cases I read on the site I listed. Agreed though, it was a week post for Constitutional carry, let me work on a better one, stay tuned, I love a good challenge.

    Don
    No problem.

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    The OP said:
    Read the cases at the link provided and see what troubles having restrictions on getting a cc permit can have, as several cases show, the local law enforcement department is the final decision maker on issuing you your permit.
    Except in MN, you have a right to appeal - sure it may cost some money, but assuming you are in the right and are issued a permit, the court will award you "reasonable costs and expenses including attorney fees." See MN 624.714 Subd 12.d.

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    Regular Member cowboyridn's Avatar
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    Much better Argument

    Here is a argument I wrote today, which i think is convincing.

    UNITED STATES DISTRICT COURT
    WESTERN DISTRICT OF WISCONSIN


    Citizens of Wisconsin;

    Plaintiff,

    V.

    XXXXXXXXXXXX, Attorney General of

    Wisconsin;


    Defendants,

    COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

    COMPLAINT

    COME NOW the Plaintiffs, citizens of Wisconsin by and through undersigned counsel, and complain of the defendants as follows:

    THE PARTIES

    1. Plaintiff’s are natural people and law abiding citizen of the United States and of the State of Wisconsin.

    2. Defendant XXXXXXXXXX is the Attorney General of Wisconsin and is responsible for executing and administering the State of Wisconsin laws, customs, practices, and policies at issue in this lawsuit; has enforced the challenged laws, customs and practices against plaintiffs, and is in fact presently enforcing the challenged laws, customs and practices against plaintiffs.

    JURISDICTION AND VENUE

    3. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. §§ 1331, 1343, 2201, 2202 and 42 U.S.C. § 1983.

    4. Venue lies in this Court pursuant to 28 U.S.C. § 1391.


    STATEMENT OF FACTS

    5. The Second Amendment to the United States Constitution provides: “A well regulated Militia being necessary to the security of a Free State, the right of the people to keep and bear Arms shall not be infringed.”

    6. The Second Amendment guarantees individuals a fundamental right to carry functional handguns in non-sensitive public places for purposes of self-defense.

    7. The Second Amendment right to keep and bear arms applies as against the states by operation of the Fourteenth Amendment.

    8. Wisconsin Statute 941.23 prohibits the public from carrying of functional handguns concealed and should be repealed as it is unconstitutional on its face and in violation of Article I, Section 25 of the Wisconsin Constitution and the Second and Fourteenth Amendments of the United States Constitution as was decided in the United States Supreme Court decisions in District of Columbia v. Heller, 128 S. Ct. 2783 (2008), McDonald v. City of Chicago No. 08-1521 (U.S. June 28, 2010, and most recently in Wisconsin under State v. Donald L. Schultz, 2010 WI App 124 Jon M. Counsell Circuit Court Judge presiding for Clark County.

    9. Currently carrying of a concealed handgun is a Class A misdemeanor offense, carrying a penalty for a Class A misdemeanor may include a fine up to $10,000, or imprisonment for up to 9 months, or both.
    10. If the legislature and governor approve a bill with government mandated regulations, citizens may have to qualify for a handgun carry permit, establish that he or she is an adult; has not been convicted, without pardon, of a felony or misdemeanor for which a term of over 1 year imprisonment has been imposed; has not been convicted of drug crimes; is not an alcoholic or drug addict; and has not exhibited a propensity for violence or instability that may render the applicant’s possession of a handgun dangerous.

    11. Additionally, the (issuing authority) might be required to determine that the applicant “has good and substantial reason to wear, carry, or transport a handgun, such as a finding that the permit is necessary as a reasonable precaution against apprehended danger.

    12. Plaintiff’s are law abiding citizens and currently have Constitutional open carry without government mandated regulation and should not be subjected to government mandated regulations for concealed carry of a functional firearm.

    COUNT I
    U.S. CONST., AMEND. II, 42 U.S.C. § 1983

    13. Paragraphs 1 through 12 are incorporated as though fully stated herein.

    14. Individuals cannot be required to prove their “good and substantial reason” for the exercise of fundamental constitutional rights, including the right to keep and bear arms.

    15. Individuals cannot be required to demonstrate that carrying a functional handgun concealed is “necessary as a reasonable precaution against apprehended danger,” or that they face a greater than average level of danger, as a prerequisite for exercising their Second Amendment rights.

    16. Wisconsin’s Public Safety regulation that functional handgun concealed carry permit applicants demonstrate “good and substantial reason to wear, carry, or transport a handgun, such . . . that the permit is necessary as a reasonable precaution against apprehended danger,” violates the Second Amendment to the United States Constitution, damaging Plaintiffs in violation of 42 U.S.C. § 1983. Plaintiffs are therefore entitled to permanent injunctive relief against the enforcement of this provision.

    17. Defendants’ application of Wisconsin’s Public Safety regulation that functional handgun concealed carry permit applicants might be required to demonstrate “good and substantial reason to wear, carry, or transport a functional handgun, such . . . that the permit is necessary as a reasonable precaution against apprehended danger,” violates the Second Amendment to the United States Constitution, damaging Plaintiffs in violation of 42 U.S.C. § 1983. Plaintiffs are therefore entitled to permanent injunctive relief against a bill that has governmental mandated regulations.

    COUNT II
    U.S. CONST., AMEND. XIV, EQUAL PROTECTION, 42 U.S.C. § 1983

    18. Paragraphs 1 through 17 are incorporated as though fully stated herein.

    19. Wisconsin’s Public Safety requirement that functional handgun concealed carry permit require applicants demonstrate cause for the issuance of a permit violates Plaintiffs’ Fourteenth Amendment right to equal protection of the law, damaging them in violation of 42 U.S.C. § 1983.

    20. Wisconsin’s Public Safety regulation that functional handgun concealed carry permit require applicants to qualify for a handgun carry permit, establish that he or she is an adult; has not been convicted, without pardon, of a felony or misdemeanor for which a term of over 1 year imprisonment has been imposed; has not been convicted of drug crimes; is not an alcoholic or drug addict; and has not exhibited a propensity for violence or instability that may render the applicant’s possession of a handgun dangerous.

    Plaintiffs are therefore entitled to permanent injunctive relief against the enforcement of a bill that has Government mandated regulations.

    PRAYER FOR RELIEF

    WHEREFORE, Plaintiffs request that judgment be entered in their favor and against
    Defendants as follows:

    1. An order permanently enjoining defendants, their officers, agents, servants, employees, and all persons in active concert or participation with them who receive actual notice of the injunction, from enacting a bill under the Wisconsin’s Public Safety regulation that require applicants to qualify for a functional handgun carry permit, establish that he or she is an adult; has not been convicted, without pardon, of a felony or misdemeanor for which a term of over 1 year imprisonment has been imposed; has not been convicted of drug crimes; is not an alcoholic or drug addict; and has not exhibited a propensity for violence or instability that may render the applicant’s possession of a handgun dangerous.

    2. An order permanently enjoining defendants, their officers, agents, servants, employees, and all persons in active concert or participation with them who receive actual notice of the injunction, from enacting a bill that would deny a permit to carry a functional concealed firearms on grounds that the applicant does not face a level of danger higher than that which an average person would reasonably expect to encounter.

    3. An order commanding Defendants to repeal Wisconsin Statute 941.23 as unconstitutional.

    4. Costs of suit, including attorney fees and costs pursuant to 42 U.S.C. § 1988;

    5. Declaratory relief consistent with the injunction; and

    6. Any other further relief as the Court deems just and appropriate.


    Sincerely,

    Attorney representing citizens of Wisconsin
    Last edited by cowboyridn; 11-13-2010 at 02:47 PM. Reason: wording

  7. #7
    Regular Member Beretta-m9's Avatar
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    Quote Originally Posted by Gray Peterson View Post
    A few issues here. First is that though there are some states which allow sheriffs just a little bit of discretion (dangerous persons/"naked man" provisions), there's a lot more states that basically state "If you're legally allowed to possess, you must be issued a license to carry". The states that I know off the top of my head that are like this is Washington State, Florida, Kansas, and Arizona (there's a lot more). If you're denied a license, your problems are bigger than just merely being unable to carry, you were not able to possess firearms at all beforehand under state law.

    There are also other states that do have the "dangerous persons" provision, but have attorneys fees and court cost recovery (Oregon), which keeps a check on such abuses (plus the burden of proof is on the defendant).

    It all depends on how the law is written.



    Most of the gun attorneys I know have good practices in other fields and do gun law stuff as a labor of love. For example, Don Kilmer in California primarily does family law (which makes him pretty good money), but he's better known to us as first person to have the 2nd amendment incorporated against the states (Nordyke v. King). He certainly is not making a profit on it, and good gun related civil rights attorneys are a rarity. They usually charge to an organization, not to the individual.




    With the exception of my case, all of those cases are may-issue states that have "good cause" or "proper cause for issuance". They are considered "may-issue" states in terms of carry licenses where the onus is on the plaintiff to prove their cause (unless you sue in federal court). My case is a statutory prohibition due to my lack of residency in the state of Colorado.

    Your arguments needs to be better if you're going to argue constitutional carry. If I can poke holes in your argument, so can people at the legislature.
    I believe the easy explination is some states are "shall" issue while others are "may" issue.

  8. #8
    Founder's Club Member - Moderator Gray Peterson's Avatar
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    Quote Originally Posted by Beretta-m9 View Post
    I believe the easy explination is some states are "shall" issue while others are "may" issue.
    None of the lawsuits that were filed by SAF/Gura and company are against shall-issue states. Only my case has been filed against a shall-issue state's political subdivision, and that's because of a narrow issue of denying residents of other states the ability to bear arms.

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