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National 2nd Amend. Political & Legal Discussion Discuss national gun rights and 2A related political topics here. All advice given is NOT legal counsel.

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  #1041  
Old 08-24-2019, 12:28 PM
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Originally Posted by rplaw View Post
Every case in which the claim that the 2A covers CCW has been denied cert by the SCOTUS. Every case, regardless of the makeup of the bench. What does that tell you?

Then there's the voluminous amount of historical evidence which shows that concealed carry was disfavored and laws that restricted CC were lawful.

And yet you want to try it "one more time!" in the face of that reality. Because why? Again?
Because admitting to being wrong, the rot within the judiciary and our republic, and the implications for what that means we actually need to do is too much for a lot of boomers.
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  #1042  
Old 08-24-2019, 1:11 PM
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Because admitting to being wrong, the rot within the judiciary and our republic, and the implications for what that means we actually need to do is too much for a lot of boomers.
Usually a person who is arguing that Western Civilization has gotten it wrong that past 600 years is someone who we label as:

1. A Liberal
2. A Progressive
3. Someone who is carrying out a cultural war against Western Civilization, our society and way of life.

...or to keep it short:

A leftist.

Arguing that open carry may be banned in favor of concealed carry is a perfect example of this:

You are asking society and its legal system to declare criminally suspicious behavior - concealment - to be normal . . .

. . . and to declare open and honest behavior - openess - to be criminally suspicious behavior.


You cannot stand there and say to someone:

"I'm a conservative" OR "I'm a libertarian"

...and in the very same breath say:

"Open carry may be banned in favor of concealed carry."


One gives away that you not the other.


=8-|


Scalia was correct in Heller v. DC on that particular that we must look to history and tradition.

Having said that, I remind everyone again as a qualifier that Heller v. DC was flawed decision.

=8-|
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  #1043  
Old 08-24-2019, 1:21 PM
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Having said that, I remind everyone again as a qualifier that Heller v. DC was flawed decision.

=8-|
If I ever have a chance to meet Justice Thomas I will try to gift him a headsmanís axe to carry around.
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  #1044  
Old 08-24-2019, 1:51 PM
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If I ever have a chance to meet Justice Thomas I will try to gift him a headsman’s axe to carry around.
To be honest, I'm hoping we do hear more from him. I would like to hear HIM continue or expand on that quote which is my signature.

So if you do, please do cheer him on!

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  #1045  
Old 08-24-2019, 2:12 PM
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Iíd like to buy him a gym membership and some new pens so we can unleash his jurisprudence for the next decade.
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  #1046  
Old 08-24-2019, 6:18 PM
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Originally Posted by lowimpactuser View Post
Because admitting to being wrong, the rot within the judiciary and our republic, and the implications for what that means we actually need to do is too much for a lot of boomers.
So you blame 200 years of solid jurisprudence from the State trial courts all the way up to the SCOTUS on "rot within the judiciary and our republic"?
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  #1047  
Old 08-24-2019, 7:03 PM
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So you blame 200 years of solid jurisprudence from the State trial courts all the way up to the SCOTUS on "rot within the judiciary and our republic"?
Uh...

See comments Iíve made on Texas v. White being at least as far back as rot within judiciary. Many people point to Marbury as the moment the judiciary started the rot.

Your comments about state courts are your own bugaboo; SCOTUS has been overstepping and overstating what the constitution says for well over a century.

Iím not going to play qualification games of your bugaboo of 200 years; of state courts, etc.
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  #1048  
Old 08-25-2019, 5:01 AM
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Originally Posted by mrrabbit View Post
...


You are asking society and its legal system to declare criminally suspicious behavior - concealment - to be normal . . .
It is normal and not a bit suspicious. You are just in the wrong state.
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  #1049  
Old 08-25-2019, 6:57 AM
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Originally Posted by lowimpactuser View Post
Uh...

See comments Iíve made on Texas v. White being at least as far back as rot within judiciary. Many people point to Marbury as the moment the judiciary started the rot.

Your comments about state courts are your own bugaboo; SCOTUS has been overstepping and overstating what the constitution says for well over a century.

Iím not going to play qualification games of your bugaboo of 200 years; of state courts, etc.
1. This last sentence is a deflection from the issue under discussion.

2. Your statement was that the judiciary is filled with rot. Yet, somehow over the past 200 years that "rot" has been remarkably consistent in it's viewpoint, as well as chronicling history and widespread historical accounts by the people who actually lived during those times, which are directly opposite your modern views.

And yet you profess to say that your view is the correct one because of "rot" or an unspecified implied "corruption" which has been present in the entire judicial bench for 200 years. And in your viewpoint you believe another CCW case is going to get cert. A case with an issue that lower courts have deemed incorrect and one which SCOTUS has consistently rejected. One you believe it will get cert "this time".

Again, the definition of insanity applies here.
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  #1050  
Old 08-25-2019, 7:46 AM
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Originally Posted by rplaw View Post
1. This last sentence is a deflection from the issue under discussion.

2. Your statement was that the judiciary is filled with rot. Yet, somehow over the past 200 years that "rot" has been remarkably consistent in it's viewpoint, as well as chronicling history and widespread historical accounts by the people who actually lived during those times, which are directly opposite your modern views.

And yet you profess to say that your view is the correct one because of "rot" or an unspecified implied "corruption" which has been present in the entire judicial bench for 200 years. And in your viewpoint you believe another CCW case is going to get cert. A case with an issue that lower courts have deemed incorrect and one which SCOTUS has consistently rejected. One you believe it will get cert "this time".

Again, the definition of insanity applies here.
Unless by some miracle SCOTUS suddenly decides to go roque and decide they got it all wrong before - I agree.

Who knows? It may . . . may being the key word.

Appeals and SCOTUS have already rejected any CCW case that argues for CCW as a right OR that OC and CCW are contingent upon one another - 13+ times by last count?

I've lost count . . .

However, I do think there is an avenue for a CCW case - but entirely from the equal protection / equal access / equal treatment angle.

Sure CCW is regulated as a privilege . . . but I like to think that regulated privileges have rules, standards, criteria, etc., that ALL citizens are capable of qualifying for.

Personally for me, it doesn't pass the smell test when one Sheriff slams the door on any CCW, another Sheriff gives it out to every Joe and Jane not in jail or with a record, while right here in Santa Clara County only corporate honchos and "community" big wigs that have written a check to a certain election campaign fund have a CCW.

Sure, California is a "may issue" state...I can respect that IF

"may" is proceeded by "meets or exceeds the following prerequisites, checks, training and tests requirements commonly held up and down the state.

=8-)
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  #1051  
Old 08-25-2019, 12:17 PM
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Originally Posted by rplaw View Post
1. This last sentence is a deflection from the issue under discussion.

2. Your statement was that the judiciary is filled with rot. Yet, somehow over the past 200 years that "rot" has been remarkably consistent in it's viewpoint, as well as chronicling history and widespread historical accounts by the people who actually lived during those times, which are directly opposite your modern views.

And yet you profess to say that your view is the correct one because of "rot" or an unspecified implied "corruption" which has been present in the entire judicial bench for 200 years. And in your viewpoint you believe another CCW case is going to get cert. A case with an issue that lower courts have deemed incorrect and one which SCOTUS has consistently rejected. One you believe it will get cert "this time".

Again, the definition of insanity applies here.
Youíve put so many words in my mouth youíre barely even talking to me except to stuff me up as a straw man to attack.
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  #1052  
Old 08-25-2019, 2:10 PM
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Unless by some miracle SCOTUS suddenly decides to go roque and decide they got it all wrong before - I agree.

Who knows? It may . . . may being the key word.

Appeals and SCOTUS have already rejected any CCW case that argues for CCW as a right OR that OC and CCW are contingent upon one another - 13+ times by last count?

I've lost count . . .

However, I do think there is an avenue for a CCW case - but entirely from the equal protection / equal access / equal treatment angle.

Sure CCW is regulated as a privilege . . . but I like to think that regulated privileges have rules, standards, criteria, etc., that ALL citizens are capable of qualifying for.

Personally for me, it doesn't pass the smell test when one Sheriff slams the door on any CCW, another Sheriff gives it out to every Joe and Jane not in jail or with a record, while right here in Santa Clara County only corporate honchos and "community" big wigs that have written a check to a certain election campaign fund have a CCW.

Sure, California is a "may issue" state...I can respect that IF

"may" is proceeded by "meets or exceeds the following prerequisites, checks, training and tests requirements commonly held up and down the state.

=8-)
I agree with this thinking. The unfortunate part is that the law cannot state a "test' definitively and any wiggle room winds up being discretionary and you still have the same problems we have now.

One need only look at other well established Constitutional Rights to see that if there is any possibility of the State restricting a Right, they'll take it even if it's clearly enumerated and well settled.
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  #1053  
Old 08-25-2019, 2:15 PM
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Originally Posted by lowimpactuser View Post
You’ve put so many words in my mouth you’re barely even talking to me except to stuff me up as a straw man to attack.
I am merely challenging you on the issue, not the personality or the person behind the issue.

As has been noted, there are 13+ (I didn't count or keep track so I'm basing this on mrrabbit's tally) modern challenges on behalf of CCW which have all been rejected by the SCOTUS. The SCOTUS is following its own precedent established over the past 200 years whereby it has consistently rejected the argument you put forth. As have State courts for the most part. As did most communities then and now.

Believing that they're going to change their minds and throw out all that weight of evidence and history on the basis that the bodies wearing the robes have changed, is more akin to faith than law. Trying to blame that on "rot" is just silly.

CCW is not the Right, has never been the Right, and will probably not be recognized as the Right under the 2A without major changes to the Amendment. Which is something I shudder to even consider given today's political climate.
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Life is like a discount bakery. Usually everything is just what you ordered. But, occasionally you come face to face with an unexpected fruitcake. Surprise!

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  #1054  
Old 08-25-2019, 2:20 PM
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Originally Posted by rplaw View Post
I am merely challenging you on the issue, not the personality or the person behind the issue.

As has been noted, there are 13+ (I didn't count or keep track so I'm basing this on mrrabbit's tally) modern challenges on behalf of CCW which have all been rejected by the SCOTUS. The SCOTUS is following its own precedent established over the past 200 years whereby it has consistently rejected the argument you put forth. As have State courts for the most part. As did most communities then and now.

Believing that they're going to change their minds and throw out all that weight of evidence and history on the basis that the bodies wearing the robes have changed, is more akin to faith than law. Trying to blame that on "rot" is just silly.

CCW is not the Right, has never been the Right, and will probably not be recognized as the Right under the 2A without major changes to the Amendment. Which is something I shudder to even consider given today's political climate.
Quote me putting forth an argument regarding CCW. Then try to find one arguing concealed carry is a right.

You’re bringing an argument up and attributing it to me when i haven’t even discussed it either way recently.
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  #1055  
Old 08-25-2019, 8:23 PM
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I find that I can't resist ...

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CCW is not the Right, has never been the Right, and will probably not be recognized as the Right under the 2A without major changes to the Amendment. Which is something I shudder to even consider given today's political climate.
You're right. CCW isn't the Right. The Supreme Court was explicit about what the Right is:

Quote:
Originally Posted by District of Columbia v. Heller, 554 US 570 at 2797
c. Meaning of the Operative Clause. Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation.
(emphasis mine)

The Court was also explicit in what the term "bear" in the 2nd Amendment means:

Quote:
Originally Posted by District of Columbia v. Heller, 554 US 570 at 2793
At the time of the founding, as now, to "bear" meant to "carry." See Johnson 161; Webster; T. Sheridan, A Complete Dictionary of the English Language (1796); 2 Oxford English Dictionary 20 (2d ed.1989) (hereinafter Oxford). When used with "arms," however, the term has a meaning that refers to carrying for a particular purpose—confrontation. In Muscarello v. United States, 524 U.S. 125, 118 S.Ct. 1911, 141 L.Ed.2d 111 (1998), in the course of analyzing the meaning of "carries a firearm" in a federal criminal statute, Justice GINSBURG wrote that "[s]urely a most familiar meaning is, as the Constitution's Second Amendment . . . indicate[s]: `wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.'" Id., at 143, 118 S.Ct. 1911 (dissenting opinion) (quoting Black's Law Dictionary 214 (6th ed.1990)). We think that Justice GINSBURG accurately captured the natural meaning of "bear arms."
Since the very definition of "bear" that the Supreme Court called out as being operative in the 2nd Amendment explicitly mentions a form of concealed carry ("in the clothing or in a pocket"), it follows that while CCW is not the Right, it is included in the Right. The Court clearly didn't have to choose that definition. It could have chosen one that was explicit about open carry. It didn't. That was a choice. To insist, then, that the Court explicitly excludes concealed carry from the right is to insist that the Court is, in the same decision, contradicting the very definition it chose to settle upon, a nonsensical position to say the least.

As to the notion that the Court's rejection of several prior concealed carry cases is indicative that the Court intends to reject concealed carry as part of the Right, that is disingenuous. The Court didn't merely reject concealed carry cases. Save for a single case (Caetano) where the plaintiff was a pitiable woman whose plight tugged at the heart strings of the liberals on the Court, the Court has rejected all 2nd Amendment cases, INCLUDING THE ONLY OPEN CARRY CASE THAT EVER REACHED IT (Norman). If rejection of cases is the standard by which one judges what the Court intends to convey about the right, then its past rejections make it clear that it intends to reject the entirety of the right to bear arms, the above in Heller notwithstanding.

Kavanaugh's nomination changes the balance somewhat, and may be sufficient to swing the Court towards strengthening the 2nd Amendment's protection relative to what the lower courts have done (which is to say, raise the protection beyond mere possession in one's primary home). Only time will tell, but the very fact that the Court took the case that this thread is about is suggestive of a fundamental change in the Court. There's nothing about this particular case that makes me believe the Court would have taken it were Kennedy still present on the Court, particularly since it involves firearms. I don't think we have enough evidence to say what the Court with its present composition would think of concealed carry as part of the right, much less what it would think in the event Ginsburg is replaced by Trump. Will it reject concealed carry as part of the right? Maybe. But its prior history is plainly insufficient to make any kind of call on that.
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  #1056  
Old 08-25-2019, 8:53 PM
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Not to mention RBG described bear to include carriage in ones pocket - that's concealed.
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Old 08-25-2019, 10:01 PM
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Ah, I missed KCbrown. Not gonna lie, most of the reason I’m posting here is to see his thoughts.

Interesting thought experiment for those who think that enemies of our rights will abide by them if we make the right argument:

What evidence would it take for you to come around and agree the left just wants to take our rights and doesn’t have principles or any restraint beyond what they can get the votes for? How do you falsify your argument that the left respects open carry?

I think they’re more leery of banning it simply because the cat comes out of the bag at that point; and better to pursue this slowly. But seriously; is there any way to have it be proved to you the left just cares about winning?
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Old 08-25-2019, 10:58 PM
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Not to mention RBG described bear to include carriage in ones pocket - that's concealed.
Again, for the umpteenth time, Ginburg was merely providing a definition that all other justices agreed to . . .

. . . NOT a argument FOR OR AGAINST concealed.

https://www.supremecourt.gov/opinions/07pdf/07-290.pdf

The right is to keep and bear....as explained by the previous poster.

Both OC and CCW are encompassed by the 2A, but one (OC) receives lighter scrutiny while the other (CCW) receives much higher scrutiny due to its concealment and secret advantage nature - and has been treated in that manner for 600+ years as a matter of history and tradition.

Its the same for the 1A. Libel and slander are covered under the 1A - it's just that not everyone gets to practice libel and slander freely - as to who does is again a matter of privilege, regulation AND history and tradition.

=8-|
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Old 08-25-2019, 11:17 PM
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Originally Posted by mrrabbit View Post
Both OC and CCW are encompassed by the 2A, but one (OC) receives lighter scrutiny while the other (CCW) receives much higher scrutiny due to its concealment and secret advantage nature - and has been treated in that manner for 600+ years as a matter of history and tradition.

Its the same for the 1A. Libel and slander are covered under the 1A - it's just that not everyone gets to practice libel and slander freely - as to who does is again a matter of privilege, regulation AND history and tradition.
An interesting argument. But what makes you believe that libel and slander are covered under the 1st Amendment? Can you cite jurisprudence to that effect? It can't be part of the right, and thus covered by the 1st Amendment, unless it's protected (i.e., cannot legitimately be taken away) under at least some circumstances.

It's one thing to say that there are some circumstances under which a given type of exercise of a right is not protected. But that's not what you argue with respect to concealed carry. You argue that it's not protected at all, ever. There is no difference between saying that a given expression of a right is not protected at all and saying that the same expression is not part of the right. No difference whatsoever, for both yield exactly the same thing.

Conversely, if a given expression of a right is indeed part of the right, then there must be at least some circumstances under which that expression is protected and thus cannot legitimately be taken away. It can't be part of the right any other way, and that's that. To insist that something can be part of the right while also not being protected under any circumstances means that all expressions of the right can potentially fall under that same "logic", and that would mean that one could claim that the entire right can legitimately be eviscerated simply by declaring each individual expression of it as being unprotected while "still being part of the right". That eviscerates the entire meaning of a right, and I should note that this is precisely what some of these hostile courts have attempted to do. No, the very nature of a right is such that all expressions of it must be protected under at least some circumstances. Any expression which is not protected at all by definition cannot be part of the right. You can't utterly ban any expression of a right, nor can you "regulate" it in an arbitrary manner the way concealed carry is in California, for to do so is to contradict the very meaning of that expression being part of the right in the first place.

The Supreme Court defined the right in such a way as to make it clear that concealed carry is part of the right. They didn't have to state anything about concealment -- they could have simply said "wear or carry" without anything more -- but they chose to explicitly state conditions of concealment in their definition. If it's part of the right, then it must be protected by the 2nd Amendment under at least some circumstances, and that's that, because the 2nd Amendment protects the entire right to keep and bear arms -- it states no exceptions. To insist otherwise is to insist that the Supreme Court directly contradicted itself within the same decision. And while that's a possibility, the only time you can reasonably assert that is if both sides of the contradiction are supported by equally strong language. That's not the case here. The definition they used is direct and to the point, as is their statement of the right itself. The bits of the decision supporting the notion that concealed carry is not ever protected are indirect. Direct language beats indirect language, and that's that.
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Old 08-26-2019, 12:08 AM
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An interesting argument. But what makes you believe that libel and slander are covered under the 1st Amendment? Can you cite jurisprudence to that effect? It can't be part of the right, and thus covered by the 1st Amendment, unless it's protected (i.e., cannot legitimately be taken away) under at least some circumstances.

It's one thing to say that there are some circumstances under which a given type of exercise of a right is not protected. But that's not what you argue with respect to concealed carry. You argue that it's not protected at all, ever. There is no difference between saying that a given expression of a right is not protected at all and saying that the same expression is not part of the right. No difference whatsoever, for both yield exactly the same thing.

Conversely, if a given expression of a right is indeed part of the right, then there must be at least some circumstances under which that expression is protected and thus cannot legitimately be taken away. It can't be part of the right any other way, and that's that. To insist that something can be part of the right while also not being protected under any circumstances means that all expressions of the right can potentially fall under that same "logic", and that would mean that one could claim that the entire right can legitimately be eviscerated simply by declaring each individual expression of it as being unprotected while "still being part of the right". That eviscerates the entire meaning of a right, and I should note that this is precisely what some of these hostile courts have attempted to do. No, the very nature of a right is such that all expressions of it must be protected under at least some circumstances. Any expression which is not protected at all by definition cannot be part of the right. You can't utterly ban any expression of a right, nor can you "regulate" it in an arbitrary manner the way concealed carry is in California, for to do so is to contradict the very meaning of that expression being part of the right in the first place.

The Supreme Court defined the right in such a way as to make it clear that concealed carry is part of the right. They didn't have to state anything about concealment -- they could have simply said "wear or carry" without anything more -- but they chose to explicitly state conditions of concealment in their definition. If it's part of the right, then it must be protected by the 2nd Amendment under at least some circumstances, and that's that, because the 2nd Amendment protects the entire right to keep and bear arms -- it states no exceptions. To insist otherwise is to insist that the Supreme Court directly contradicted itself within the same decision. And while that's a possibility, the only time you can reasonably assert that is if both sides of the contradiction are supported by equally strong language. That's not the case here. The definition they used is direct and to the point, as is their statement of the right itself. The bits of the decision supporting the notion that concealed carry is not ever protected are indirect. Direct language beats indirect language, and that's that.
Very simple:

Just like you have a right to keep and bear arms,

you have a right to freedom of speech, assembly, association and of religion.


Fail to exercise them properly - in the eyes of a jury for example, you've put yourself in legal jeopardy.


What constitutes the boundaries between proper and improper for that jury, OR officials....here we go with the circular again:

History and tradition.


A perfect example is the Kool-Stop advertisement showing a 6" nail being stopped by the Kool-Stop preventing a flat.

Someone could believe it at face value only to suffer a disappointment and take Kool Stop to a small claims court . . .

. . . only to have the jury point out that anyone with common sense would ascertain that the advertisement was an exaggeration and toss the case.

In other words, an example of what is called "legalized lying" - that businesses get away with everyday as a matter of practice.

It is also possible to libel and slander someone and get away with it because the jury let em OR as in the case of some nation states - the government is recognized as that party allowed the license to propagandize - even if it may mean innocents get harmed.

There's the right . . .

. . . and then there's accountability, regulation, privilege as a matter of history and tradition.

They are NOT one and the same.

This is a fundamental reason why I keep posting the Heller v. DC link - as a reminder that people need to read Scalia's writing of the majority opinion IN ITS CONTEXT.

=8-|
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Old 08-26-2019, 1:11 AM
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Obviously this should be pursued further in the open carry thread, so please direct further followups there.

Quote:
Originally Posted by mrrabbit View Post
There's the right . . .

. . . and then there's accountability, regulation, privilege as a matter of history and tradition.

They are NOT one and the same.
That's correct. They're not the same. The latter are limitations on the former.

But it is not a mere limitation that you claim is operable against concealed carry. You claim evisceration of it.

A right can be limited. Most rights are. But a right cannot be eviscerated, and neither can any part of a right. That's by definition of a right.


Quote:
This is a fundamental reason why I keep posting the Heller v. DC link - as a reminder that people need to read Scalia's writing of the majority opinion IN ITS CONTEXT.
Yes. In its context. Exactly. The context of the claim that concealed carry is not part of the right is indirect, the result of citation of cases that in the contexts of their citation means something else (e.g., that the right is not dependent upon militia service). But the context of the definition of "bear" and its inclusion into the stated right is direct.

Direct language overrides indirect language when the two are in conflict, as is the case here.

Can concealed carry be regulated? Yep. Can it be limited? Yep, although not arbitrarily so (it couldn't be part of a right otherwise). Can it be eviscerated? No, not unless it's not part of the right at all. Since that last is a direct contradiction of what the Supreme Court directly stated (not merely cited), that last (that concealed carry is not part of the right) cannot be the case, whether you like it or not.

Now, I do agree that the generation that succeeded the founders determined that concealed carry could be eviscerated. But the generation that succeeded the founders is not the founding generation -- it's the one after it. And since it's the founding generation that matters as regards the scope of the right, and since the only case that could have been decided by the founding generation found concealed carry to be protected, it follows that between that and the Supreme Court's direct statement as to the protected right, we have to conclude that concealed carry is almost certainly protected in some way under some circumstances.

I also agree that as a matter of tradition, open carry fares better than concealed carry, which suggests at least that its protection should be broader and deeper. Nevertheless, evisceration of concealed carry is off the table if one is to be consistent with both the known understanding of the right by the founding generation and the Supreme Court's direct statements. Evisceration of open carry is most certainly off the table regardless, for if the founding generation believed evisceration of concealed carry to be off the table, then they must have believed that of open carry as well for the same reasons.
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Old 08-26-2019, 8:48 AM
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Can we not suffer through Mr Rabbits lack of understanding of Heller decision?
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Old 08-26-2019, 9:31 AM
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I'm willing to give Mr. Rabbits a pass if it generates a kcbrown response.
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Old 08-26-2019, 9:38 AM
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Yes, it was a good elaborate response. But even that did not get through
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Old 08-26-2019, 10:32 AM
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The explaining will continue until everyone agrees with Mr. Rabbit.
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Old 08-26-2019, 10:38 AM
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Originally Posted by kcbrown View Post

Now, I do agree that the generation that succeeded the founders determined that concealed carry could be eviscerated. But the generation that succeeded the founders is not the founding generation -- it's the one after it. And since it's the founding generation that matters as regards the scope of the right, and since the only case that could have been decided by the founding generation found concealed carry to be protected, it follows that between that and the Supreme Court's direct statement as to the protected right, we have to conclude that concealed carry is almost certainly protected in some way under some circumstances.
Excellent analysis.

The reason for the enumeration of a right in the Constitution is so a majority can't vote to eviscerate that right. How many Americans would be sufficient to vote to deny the right of Fox News to broadcast? The answer is It Doesn't Matter.

I believe that's what Justice Scalia would also say based upon his declaration that the Constitution is a dead document and not a living document that can be changed by current sensibilities which would leave our rights to the mercy of any temporary majority.
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Old 08-26-2019, 10:44 AM
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Welcome KC I always look forward to your posts.
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Old 08-26-2019, 11:05 AM
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Excellent analysis.

The reason for the enumeration of a right in the Constitution is so a majority can't vote to eviscerate that right. How many Americans would be sufficient to vote to deny the right of Fox News to broadcast? The answer is It Doesn't Matter.

I believe that's what Justice Scalia would also say based upon his declaration that the Constitution is a dead document and not a living document that can be changed by current sensibilities which would leave our rights to the mercy of any temporary majority.
Yep! A certain attorney right here in San Jose has already taken the opportunity during a debate at Stanford to remind people that our rights are not subject to popular opinion polls. I think the video of (Killmer) has been posted here once before.

=8-)
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Old 08-26-2019, 12:08 PM
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Quote me putting forth an argument regarding CCW. Then try to find one arguing concealed carry is a right.

Youíre bringing an argument up and attributing it to me when i havenít even discussed it either way recently.
I'm not making the argument that you made specific comments regarding CCW.

THE argument is that YOU SAID that there is "rot" in the judiciary and "that's the reason" why they haven't included CCW in the 2A, AND, now that the bench has changed, perhaps the new robe-wearers will "stop the rot" and "start deciding cases properly". (My paraphrasing.)

The bench has continually changed over the last 200 years and so far, NOT ONE CASE has included CCW as part of the Right guaranteed by the 2A.
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Old 08-26-2019, 12:24 PM
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The bench has continually changed over the last 200 years and so far, NOT ONE CASE has included CCW as part of the Right guaranteed by the 2A.
This, too, is disingenuous, if it's the Supreme Court you refer to as "the bench". So far, not one case heard by the Supreme court has included open carry as part of the right guaranteed by the 2nd Amendment, either, at least that I'm aware of. Corrections welcome, as usual.

If it's not merely the Supreme Court you speak of here, but the state judiciaries as well, then Bliss blows your claim out of the water.
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Old 08-26-2019, 12:40 PM
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Originally Posted by kcbrown View Post
I find that I can't resist ...

You're right. CCW isn't the Right. The Supreme Court was explicit about what the Right is:

(emphasis mine)

The Court was also explicit in what the term "bear" in the 2nd Amendment means:

Since the very definition of "bear" that the Supreme Court called out as being operative in the 2nd Amendment explicitly mentions a form of concealed carry ("in the clothing or in a pocket"), it follows that while CCW is not the Right, it is included in the Right. The Court clearly didn't have to choose that definition. It could have chosen one that was explicit about open carry. It didn't. That was a choice. To insist, then, that the Court explicitly excludes concealed carry from the right is to insist that the Court is, in the same decision, contradicting the very definition it chose to settle upon, a nonsensical position to say the least.

As to the notion that the Court's rejection of several prior concealed carry cases is indicative that the Court intends to reject concealed carry as part of the Right, that is disingenuous. The Court didn't merely reject concealed carry cases. Save for a single case (Caetano) where the plaintiff was a pitiable woman whose plight tugged at the heart strings of the liberals on the Court, the Court has rejected all 2nd Amendment cases, INCLUDING THE ONLY OPEN CARRY CASE THAT EVER REACHED IT (Norman). If rejection of cases is the standard by which one judges what the Court intends to convey about the right, then its past rejections make it clear that it intends to reject the entirety of the right to bear arms, the above in Heller notwithstanding.

Kavanaugh's nomination changes the balance somewhat, and may be sufficient to swing the Court towards strengthening the 2nd Amendment's protection relative to what the lower courts have done (which is to say, raise the protection beyond mere possession in one's primary home). Only time will tell, but the very fact that the Court took the case that this thread is about is suggestive of a fundamental change in the Court. There's nothing about this particular case that makes me believe the Court would have taken it were Kennedy still present on the Court, particularly since it involves firearms. I don't think we have enough evidence to say what the Court with its present composition would think of concealed carry as part of the right, much less what it would think in the event Ginsburg is replaced by Trump. Will it reject concealed carry as part of the right? Maybe. But its prior history is plainly insufficient to make any kind of call on that.
I disagree with both your blanket interpretation of "the Right" as well as your belief that merely changing bodies changes the potential outcome. Let's take a look at the 4th Amendment and how it's been interpreted to see what I'm talking about.

4th Amendment jurisprudence includes a LOT of things that the 4A doesn't mention. Things that a simple reading of the text would lead one to conclude that they are protected against all kinds of things the Gov can't Constitutionally do. Like search or seize without a warrant.

Quote:
... shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things ...
That seems pretty clear that "the Right" is to be free of unreasonable searches and seizures and that no "reasonable" searches/seizures will happen UNLESS the Gov has a warrant, issued by a Court of law under specific circumstances, and such a right "shall not be violated" (ie "infringed"). Yet, somehow, we got "exigent circumstances" where no warrant is "necessary" because... why? (Think about that in the context of "reasonable searches/seizures need a warrant" and there shall be "no unreasonable searches/seizures period". How does one get a "reasonable" search/seizure without also requiring a warrant? More to the point, wouldn't all "warrantless" searches/seizure be defacto "unreasonable" and thus prohibited by the express language? Yet...)

Applying that same interpretation scheme to the 2A, then certainly one can conclude (based on existing 4th Amendment jurisprudence and interpretation on how much is "within the Right") that "the Right" in the 2A isn't so clear cut about what can be carried, and "how" merely because the text doesn't specifically include or exclude something.

Now, we go back to Heller which affirms that "the Right" in the 2A "isn't unlimited". From there we use the instruction in the Heller decision to look to history and culture to see what the framers intended. And we find that CCW was disfavored even during that time period. Then we look at the list of cases which were appealed to the SCOTUS and see that they've never granted Cert for those cases in which the issue was the bearing of concealed arms. Not once.

It seems that SCOTUS hasn't felt the need to "interpret the 2A" in regards to CCW because all of the lower court decisions are in line with history and the beliefs of the people, including the framers.

That's a pretty significant logic train that's been running on those same rails for a couple of centuries now in regards to ALL the Amendments, despite the makeup of the court and which party has the majority. Believing that there's a "possibility" that will change because the makeup of the court changed (as it has in the past) isn't logical. Instead, it's "blind faith" in something for which there is no evidentiary support and tons of facts and evidence against such a position.
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Old 08-26-2019, 12:49 PM
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Originally Posted by kcbrown View Post
This, too, is disingenuous, if it's the Supreme Court you refer to as "the bench". So far, not one case heard by the Supreme court has included open carry as part of the right guaranteed by the 2nd Amendment, either, at least that I'm aware of. Corrections welcome, as usual.

If it's not merely the Supreme Court you speak of here, but the state judiciaries as well, then Bliss blows your claim out of the water.
It's not disingenuous. You're trying to say that because "one method" hasn't been considered, then "ALL methods" haven't been included in the "one". This is ridiculous because until recently no one questioned whether anyone had the right to bear arms openly in public. It's only been since the advent of laws prohibiting the bearing of arms that this issue has arisen.

Laws against the concealed bearing of arms have existed since the founding. Thus, comparing the two as "equal" because the Court hasn't heard a case about "open carry" in the past is an attempt to conflate the two as the same issue when they are not.

I know about Bliss. I like Bliss. But the fact is, Bliss isn't within the majority of the thinking even at the time it was decided. It is, in fact, an aberration rather than the norm. Pointing to an exception doesn't make it the rule. Nor was Bliss about concealed carry of a firearm but instead the bearing of a sword cane, which at the time was rather common, while bearing concealed arms was (again) a disfavored practice.
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Old 08-26-2019, 12:55 PM
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I'm not making the argument that you made specific comments regarding CCW.

THE argument is that YOU SAID that there is "rot" in the judiciary and "that's the reason" why they haven't included CCW in the 2A, AND, now that the bench has changed, perhaps the new robe-wearers will "stop the rot" and "start deciding cases properly". (My paraphrasing.)

The bench has continually changed over the last 200 years and so far, NOT ONE CASE has included CCW as part of the Right guaranteed by the 2A.
I never mentioned CCW and ruling on the issue as indicative of the rot I talked about. I also never claimed 200 years. Hence Iím accusing you of putting words in my mouth.
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Old 08-26-2019, 12:55 PM
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Something I realized in re-reading my two posts above, there is Cataeno.

Now, Cataeno doesn't actually have an "opinion" but, if one were to read the companion majority rationale that accompanied the GVR, one can certainly ask oneself;

Did Cataeno not get cert BECAUSE it raised the issue of carrying a "concealed" non-lethal arm?

By going the GVR route, the SCOTUS didn't have to deal with that issue yet it is the core issue in Cataeno because she was arrested for bearing an unlawful arm (the stun gun) and did so in a concealed manner.

This raises the specter of an issue on whether the "Right" encompasses the ability to bear certain arms in a concealed manner and the Court just didn't feel ready to "go there". Technology has changed the definition of "arms". In the past, all "arms" tended to be lethal. Today that is not the case. This alters the landscape in a major way and it is possible to conclude that "some arms" are ok to be carried concealed.

Which also raises the corollary question, if "some arms" can now be carried openly without a permit (AFAIK most jurisdictions don't require a permit for stun guns and they can be carried openly) then why is this not applicable to "all arms"?
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Old 08-26-2019, 12:56 PM
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I never mentioned CCW and ruling on the issue as indicative of the rot I talked about. I also never claimed 200 years. Hence Iím accusing you of putting words in my mouth.

Just stop. All you're doing is arguing for the sake of arguing.
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Old 08-26-2019, 12:59 PM
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Just stop. All you're doing is arguing for the sake of arguing.
Actually you’re the one who picked a fight with me so don’t project.
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Old 08-26-2019, 1:01 PM
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Actually youíre the one who picked a fight with me so donít project.

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Old 08-26-2019, 1:06 PM
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Alright; point blank question for you without putting words in your mouth:

Do you believe RBG wouldn’t join or write an opinion banning all carry of firearms outside the home?
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Old 08-26-2019, 1:11 PM
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Alright; point blank question for you without putting words in your mouth:

Do you believe RBG wouldnít join or write an opinion banning all carry of firearms outside the home?
She almost certainly would since she has publicly disavowed the entire US Constitution as being "applicable in today's world". (My words, not hers but the context is the same.)

She has also stated that the NYC case has a "split opinion" before the case was even briefed. Thus indicating that she is not in favor of the Amendment under any circumstances despite her "definition" of the meaning of "bear" in Heller.
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Old 08-26-2019, 1:18 PM
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She almost certainly would since she has publicly disavowed the entire US Constitution as being "applicable in today's world". (My words, not hers but the context is the same.)

She has also stated that the NYC case has a "split opinion" before the case was even briefed. Thus indicating that she is not in favor of the Amendment under any circumstances despite her "definition" of the meaning of "bear" in Heller.
So if you do believe RBG would completely throw out any prior meaning of the constitution etc etc, then why do you think that open carry vs concealed carry matters as far as securing our rights to carry?
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