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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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  #121  
Old 01-22-2019, 1:06 PM
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When Heller cert was granted,
....we had Scalia driving the bus. His replacements are good Justices, but they have nothing like his ability to persuade.
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  #122  
Old 01-22-2019, 1:06 PM
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Originally Posted by cockedandglocked View Post
Does anyone actually know which justices voted to grant this case cert?

That information would be critical to know before we jump to conclusions about why it was granted cert.

It seems unlikely the liberal SCOTUS wing would vote to grant cert to review a case that the anti-gun side won in the lower court.
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  #123  
Old 01-22-2019, 1:09 PM
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Originally Posted by IVC View Post
When Heller cert was granted, it was about some revolver or something else, in one city, that would only allow one guy to register or own just that one gun...

Except, we got "2A is a fundamental individual right" out of it...

Now, think about what this case will be about. Transport in NY or something about the right outside the home?
The issue in Heller was that the City required gun owners to keep their firearms unloaded and with the action disassembled and in a locked container, with ammunition to be kept in a separate room under lock and key, thus making the firearm unavailable for the core 2A right of self defense. This current case has nothing to do with self-defense per se, but with the right to "bear" arms outside the home for lawful purposes, which in particular involves leaving the City of New York with ones' firearms.

The question I have is whether FOPA is controlling over contrary state or local law--which is a big issue in NY since no one can transport firearms in one's luggage through the airports if the owner takes or has "possession" of the firearms while at the airport. FOPA should cover this as well, but the NYPD doesn't care.
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  #124  
Old 01-22-2019, 1:10 PM
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Originally Posted by cockedandglocked View Post
I'm sure it won't be that expansive, too. But we could get, for example, a clarification that states and localities aren't allowed to restrict vehicle transportation of lawfully-owned firearms.

Think about our destination requirements for Assault Weapons, the unloaded rifle/shotgun requirement, and the handgun locked container requirement, as a few examples.
They could also clarify that arms kept in the home must be held the highest level of review, which could have implications on more important 2A issues.
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  #125  
Old 01-22-2019, 1:14 PM
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It seems to me that this case, assuming we win, is a two part win:

1. People in New York gains some transportation rights.

2. To reach that win the court needs to decide that the test the lower court decided was incorrectly reviewed and the wrong standard was applied. Then SCOTUS would, in its opinion, apply the correct standard. Either true intermediate scrutiny or strict scrutiny. The Court then has demonstrated that the proper standard for even a relatively narrow case such as this is higher than most circuits are applying currently and that even a narrow restriction such as this impacts the "core" of the 2nd Amendment. The lower courts would all be on notice going forward that they have been effectively violation the standards of review set in Heller.

That seems important to me and to have a broader impact.
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  #126  
Old 01-22-2019, 1:15 PM
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The Court didn't take this case to tinker with the transportation laws, but to answer important constitutional question(s).

At the minimum, if the ban is overturned, we will get a confirmation that the 2A right extends outside the home and it forecloses completely the "in the home" misinterpretation. It will be the core case for all the pending "carry" cases.

What we can also get, if we are lucky, is something along the lines of "strict scrutiny" or a commerce clause based prohibition on certain regulations, etc.
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  #127  
Old 01-22-2019, 1:24 PM
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Originally Posted by wireless View Post
They could also clarify that arms kept in the home must be held the highest level of review, which could have implications on more important 2A issues.
Not likely. The case is about transportation and *outside* the home. Any effect on "in the home" will be incidental, e.g., we get scrutiny standard so it affects the "in the home" too.
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  #128  
Old 01-22-2019, 1:27 PM
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Originally Posted by MisterX9 View Post
2. To reach that win the court needs to decide that the test the lower court decided was incorrectly reviewed and the wrong standard was applied.
It can set the standard, or it can clarify the right. (Or, hopefully, both.)

My money is on the latter. Clarifying that the right extends outside the home answers a very important constitutional question, while remaining very clean and narrow. It would be the first domino for all "carry cases."
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  #129  
Old 01-22-2019, 1:33 PM
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I doubt Roberts will allow a broad response. Most likely he will only support a narrowly tailored decision. He's not known for taking hot issues lately.
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  #130  
Old 01-22-2019, 1:37 PM
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Originally Posted by IVC View Post
When Heller cert was granted, it was about some revolver or something else, in one city, that would only allow one guy to register or own just that one gun...

Except, we got "2A is a fundamental individual right" out of it...

Now, think about what this case will be about. Transport in NY or something about the right outside the home?
Personally hoping for clarification on standard of review. If strict scrutiny is mandated for 2A cases based on the lower courts half assed review of this case, that would be a huge win. Not many regs would stand up to those beyond the "long standing" ones listed in Heller.
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  #131  
Old 01-22-2019, 1:37 PM
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Originally Posted by speedrrracer View Post
....we had Scalia driving the bus. His replacements are good Justices, but they have nothing like his ability to persuade.
We have not only Scalia's replacement, but we also have Kennedy's replacement who was a dissent in the AW case at a circuit level and who we know will overturn AWBs.

Roberts will certainly go along with "2A exists outside the home like any other fundamental civil right." That's sufficient for all future carry cases...

I'm quite optimistic. The only better thing that can happen is that they also take Pena.
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  #132  
Old 01-22-2019, 1:40 PM
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Originally Posted by IVC View Post
It can set the standard, or it can clarify the right. (Or, hopefully, both.)

My money is on the latter. Clarifying that the right extends outside the home answers a very important constitutional question, while remaining very clean and narrow. It would be the first domino for all "carry cases."
This is right on.
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  #133  
Old 01-22-2019, 1:42 PM
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Personally hoping for clarification on standard of review. If strict scrutiny is mandated for 2A cases based on the lower courts half assed review of this case, that would be a huge win. Not many regs would stand up to those beyond the "long standing" ones listed in Heller.
Which is precisely why I believe it's one of the less likely outcomes. There is a very narrow issue and ruling that would fit Roberts perfectly - "whether 2A extends outside the home." That would be a huge step forward for us, regardless of how narrow the ruling is. Strict scrutiny would be an icing on the cake...
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  #134  
Old 01-22-2019, 2:02 PM
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Originally Posted by IVC View Post
Which is precisely why I believe it's one of the less likely outcomes. There is a very narrow issue and ruling that would fit Roberts perfectly - "whether 2A extends outside the home." That would be a huge step forward for us, regardless of how narrow the ruling is. Strict scrutiny would be an icing on the cake...
I'll hold out hope for two reasons: 1) Roberts seems to be very concerned with the legitimacy of "his" court. Lower courts' continuous and blatant disregard for two constitutional cases (Heller and McDonald) that Roberts signed on to must chafe, at least a little bit, and certainly tarnishes his court's authority. 2) If the Supreme Court rules on level of scrutiny, they don't have to directly wade into the hot button issues of AWB, magazine capacity, licensing, etc. putting that burden (and rightly so) back on the lower courts with a "yes, we ****ing meant that the 2A is also a Constitutional right, incorporated against the states and review shall be strict scrutiny." That allows Robert's court to review the much more important egregious violations of that direction rather than every goddamn stupid gun law ever enacted that passed through appeals on deference to authority. Am I playing to his vanity? Yes. Yes, I am.

But I don't know **** from shinola. Fun to talk about, though, and I would most certainly be satisfied with carry outside of the home.
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  #135  
Old 01-22-2019, 2:06 PM
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Originally Posted by IVC View Post
Which is precisely why I believe it's one of the less likely outcomes. There is a very narrow issue and ruling that would fit Roberts perfectly - "whether 2A extends outside the home." That would be a huge step forward for us, regardless of how narrow the ruling is. Strict scrutiny would be an icing on the cake...
I don't get why this would get a cert to answer "whether 2A extends outside the home." when they had a clear cut chance to clear up the issue on "the level of scrutiny required" in 2A cases with the Silvester case. Certainly if a number of the judges don't want to clarify how 2A cases are to be decided, certainly they won't want to throw more confusion in the mix by saying the right extends outside the home sans guidance on how to do it.

Okay, some might argue, they could do both with the one case, however, based on Thomas's scathing dissent in Silvester v Bacerra, it doesn't seem like that is going to happen.
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  #136  
Old 01-22-2019, 2:23 PM
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I don't get why this would get a cert to answer "whether 2A extends outside the home." when they had a clear cut chance to clear up the issue on "the level of scrutiny required" in 2A cases with the Silvester case. Certainly if a number of the judges don't want to clarify how 2A cases are to be decided, certainly they won't want to throw more confusion in the mix by saying the right extends outside the home sans guidance on how to do it.

Okay, some might argue, they could do both with the one case, however, based on Thomas's scathing dissent in Silvester v Bacerra, it doesn't seem like that is going to happen.
Perhaps because at the time there was this Justice named Kennedy?
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  #137  
Old 01-22-2019, 2:30 PM
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Perhaps this has already been asked. But why is this thread in a forum which supposedly is for "Discuss California 2A related litigation and legal topics here."

??

What is the California angle?
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  #138  
Old 01-22-2019, 2:31 PM
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Riiiight. Did you actually read my post?
Yes, and unlike you I actually understood it. (since we are doing ad hominem here)

Last edited by Offwidth; 01-22-2019 at 3:00 PM..
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  #139  
Old 01-22-2019, 2:40 PM
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Quote:
Originally Posted by IVC View Post
Which is precisely why I believe it's one of the less likely outcomes. There is a very narrow issue and ruling that would fit Roberts perfectly - "whether 2A extends outside the home." That would be a huge step forward for us, regardless of how narrow the ruling is. Strict scrutiny would be an icing on the cake...

I'm not sure why it seems less likely. For the court to rule in our favor on the underlying issue they will have to apply some level of review. It seems very likely to be a higher level than the Second applied in the underlying case.
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  #140  
Old 01-22-2019, 2:42 PM
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Yes, and unlike you I actually understood it.
It sure doesn't seem like it, because I spoke about the possible far reaching implications this could have, and that a narrow case like this may be vastly different than Caentano, and your response was "Caentano didn't help us", when that's clearly not what I was saying or imply.
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  #141  
Old 01-22-2019, 2:45 PM
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Originally Posted by IVC View Post
The Court didn't take this case to tinker with the transportation laws, but to answer important constitutional question(s).

At the minimum, if the ban is overturned, we will get a confirmation that the 2A right extends outside the home and it forecloses completely the "in the home" misinterpretation. It will be the core case for all the pending "carry" cases.

What we can also get, if we are lucky, is something along the lines of "strict scrutiny" or a commerce clause based prohibition on certain regulations, etc.
Yep. This could be huge. The significance of the first real SCOTUS decision since 2010, with the McDonald v Chicago case, is not to be underestimated.

We will know one way or the other by June 2020 at the latest.
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  #142  
Old 01-22-2019, 2:54 PM
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https://reason.com/volokh/2019/01/22...amendment-case

David Kopel article
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  #143  
Old 01-22-2019, 3:06 PM
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.
What I dread is if the SCOTUS then deems it acceptable to allow States to "regulate" how/when/where arms are borne. If they do that we're screwed. And I mean BIG TIME SCREWED.
Yep. We are about to get a "long standing" restriction of "bearing" in a locked container separate from ammunition, to a government approved place.

Here is your "and bear".
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  #144  
Old 01-22-2019, 3:33 PM
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Originally Posted by gunsandrockets View Post
Perhaps this has already been asked. But why is this thread in a forum which supposedly is for "Discuss California 2A related litigation and legal topics here."

??

What is the California angle?
This thread lived in the National 2nd forum since last October and just got moved today.
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  #145  
Old 01-22-2019, 3:34 PM
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Having trouble getting a clickable link for the source where I got this quote from... (Chuck Michel's facebook page)

Quote:
Said CRPA President and chief legal counsel Chuck Michel:

“For one, a decision is likely to clarify the appropriate legal standard of review for Second Amendment challenges. Given the Ninth Circuit’s disparaging treating of pro-2A cases in the past, clarification of that standard could effectively “reset” existing and prior legal challenges to many of California’s anti-gun laws. The Supreme Court’s decision is also likely to have a significant impact on the current lawsuits challenging California’s restrictive “may-issue” CCW policies, arbitrary restrictions on magazines capable of holding more than 10 rounds, bans on so-called “assault weapons,” and more.
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  #146  
Old 01-22-2019, 5:21 PM
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It won't set us back (we won't lose IMO), except for a narrow win that does nothing other than knock down the one-of-a-kind law here and SCOTUS decides that's enough 2A cases for another decade.
If that were the case, what would be the point of SCOTUS granting cert in the first place?

You can't use Caetano as a yardstick here. That case involved a combination of plaintiff and circumstance that tugged at the heart strings of the liberals on the Court. That case was granted, and a per curiam decision issued, strictly to change the outcome because the liberals didn't like it -- nothing more.

What's the incentive for the liberals on the Court here to change the outcome? The answer is that there is none, while there's plenty of reason for them to reject the case. This isn't a stun gun case, it's a firearms case. It involves the very instrument the liberals on the Court loathe most. They would ensure that the current outcome remains in place if they were in control. But they're outnumbered.

And that means that it's the conservatives on the Court that granted cert to this. What possible incentive would they (even Roberts) have to take the case only to issue such a narrow decision as you claim they will? Seriously, that would simply be a complete waste of their time.


No, the situational logic very clearly indicates that the purpose of granting cert to this case goes well beyond merely knocking down a very specific law in a very specific way.


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There are arguments on the Commerce Clause and right-to-travel, I wonder if the libs may try to wipe out the 2A argument by trying to make a unanimous ruling against NYC based on these arguments only.
The conservatives have the majority now. As such, the resulting decision almost certainly will have a substantial 2A element to it, if only because that is the most undeveloped body of law. It may also address these other angles, but the body of law surrounding those elements is much more developed, and thus the questions raised here aren't likely to be as interesting or far-reaching.
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Last edited by kcbrown; 01-23-2019 at 12:29 AM..
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  #147  
Old 01-22-2019, 5:39 PM
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Originally Posted by cockedandglocked View Post
Or, at the very least, a win would prevent CA from implementing a future law similar to NYC's. Anything that helps rein in the CA government's ability to pass new restrictions is a good win, in my books.
This^^
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  #148  
Old 01-22-2019, 7:48 PM
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No, the situational logic very clearly indicates that the purpose of granting cert to this case goes well beyond merely knocking down a very specific law in a very specific way.
After a few years on this forum I am willing to bet on the likelihood of KC being right about this.
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  #149  
Old 01-22-2019, 10:24 PM
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No, the situational logic very clearly indicates that the purpose of granting cert to this case goes well beyond merely knocking down a very specific law in a very specific way.
Do I sense a hint of... dare I say, optimism?

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  #150  
Old 01-22-2019, 11:55 PM
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Originally Posted by kcbrown View Post
If that were the case, what would be the point of SCOTUS granting cert in the first place?

No, the situational logic very clearly indicates that the purpose of granting cert to this case goes well beyond merely knocking down a very specific law in a very specific way.
I like the way you think!
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  #151  
Old 01-23-2019, 12:27 AM
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Do I sense a hint of... dare I say, optimism?

Sshhh! We can't let that get out, can we?

Seriously, though, I can't rightfully conclude anything else given what we know. All other possibilities either look logically foreclosed or at least lack any reasonable justification, for one reason or another.
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  #152  
Old 01-23-2019, 1:08 AM
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If that were the case, what would be the point of SCOTUS granting cert in the first place?

You can't use Caetano as a yardstick here. That case involved a combination of plaintiff and circumstance that tugged at the heart strings of the liberals on the Court. That case was granted, and a per curiam decision issued, strictly to change the outcome because the liberals didn't like it -- nothing more.

What's the incentive for the liberals on the Court here to change the outcome? The answer is that there is none, while there's plenty of reason for them to reject the case. This isn't a stun gun case, it's a firearms case. It involves the very instrument the liberals on the Court loathe most. They would ensure that the current outcome remains in place if they were in control. But they're outnumbered.

And that means that it's the conservatives on the Court that granted cert to this. What possible incentive would they (even Roberts) have to take the case only to issue such a narrow decision as you claim they will? Seriously, that would simply be a complete waste of their time.


No, the situational logic very clearly indicates that the purpose of granting cert to this case goes well beyond merely knocking down a very specific law in a very specific way.


The conservatives have the majority now. As such, the resulting decision almost certainly will have a substantial 2A element to it, if only because that is the most undeveloped body of law. It may also address these other angles, but the body of law surrounding those elements is much more developed, and thus the questions raised here aren't likely to be as interesting or far-reaching.
Amen
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  #153  
Old 01-23-2019, 6:34 AM
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Originally Posted by cockedandglocked View Post
On the surface, yes it appears this case has a narrow scope that doesn't currently apply to us (Californians).

But the Court could use the opportunity to clarify how the 2A gets treated (in general) with regards to state and local laws.

Since Heller seems to be getting treated as "open to interpretation", this case could perhaps end some of the mis-interpretation that's been occurring in the lower courts for the last 9 years.

Or, at the very least, a win would prevent CA from implementing a future law similar to NYC's. Anything that helps rein in the CA government's ability to pass new restrictions is a good win, in my books.
Normally, CCWfacts and I are on different pages, but I have to agree in part here with him...

...on the narrowness aspect.

First off is this really a 2A case?

It does seem very narrow.

1. It is definitely about property rights.
2. It is definitely about the right to transport or move one's property.

But, can a state hold a person's property hostage to one city or even the state itself?

I think the fact that it is a "licensed" handgun is key here. That's regulation in effect by the state of the "privileged" type.

Can a state hold an exercise of a privilege hostage to its own state or municipalities?

Will SCOTUS treat the property and the licensing separately in their determination?

Does the state and its municipalities allow transport anywhere of "unlicensed" handguns?

To be determined...

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  #154  
Old 01-23-2019, 7:06 AM
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Originally Posted by mrrabbit View Post
Normally, CCWfacts and I are on different pages, but I have to agree in part here with him...

...on the narrowness aspect.

First off is this really a 2A case?

It does seem very narrow.

1. It is definitely about property rights.
2. It is definitely about the right to transport or move one's property.

But, can a state hold a person's property hostage to one city or even the state itself?

I think the fact that it is a "licensed" handgun is key here. That's regulation in effect by the state of the "privileged" type.

Can a state hold an exercise of a privilege hostage to its own state or municipalities?

Will SCOTUS treat the property and the licensing separately in their determination?

Does the state and its municipalities allow transport anywhere of "unlicensed" handguns?

To be determined...

=8-|
Does the State limit the transportation of any other item, other than firearms?
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Old 01-23-2019, 7:08 AM
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Normally, CCWfacts and I are on different pages, but I have to agree in part here with him...

...on the narrowness aspect.

First off is this really a 2A case?

It does seem very narrow.

1. It is definitely about property rights.
2. It is definitely about the right to transport or move one's property.

But, can a state hold a person's property hostage to one city or even the state itself?

I think the fact that it is a "licensed" handgun is key here. That's regulation in effect by the state of the "privileged" type.

Can a state hold an exercise of a privilege hostage to its own state or municipalities?

Will SCOTUS treat the property and the licensing separately in their determination?

Does the state and its municipalities allow transport anywhere of "unlicensed" handguns?

To be determined...

=8-|
There is also the right to travel. You have the right to bear arms and you have the right to travel, but not to travel while bearing arms.

Playing to Thomas’s disfavored right. You have the right to free speech and the right to travel, but not to travel while speaking.

Maybe I am over simplifying, but that doesn’t play out logically.
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Old 01-23-2019, 7:09 AM
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Does the State limit the transportation of any other item, other than firearms?
You can’t bring fruits to Hawaii for example.

Last edited by Offwidth; 01-23-2019 at 7:11 AM..
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Old 01-23-2019, 7:29 AM
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You can’t bring fruits to Hawaii for example.
Actually you can, you just have to have them declared before travelling, inspected upon arrival...

In other words...regulated.

...most individuals don't bother - maybe only a few businesses.

=8-|
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Old 01-23-2019, 7:40 AM
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Opposition piece from Slate:

https://slate.com/news-and-politics/...ase-heller.amp

The antis see the potential of this case. There’s some “chicken little” sensationalism for sure, but the potential of this case extending far beyond the nuances of firearm transport rules is underscored.

We see it. They see it. The antis tried and failed to keep Kavanaugh off the bench. The reason they pushed so hard was his stern opposition to gun control.

https://www.google.com/amp/s/thehill...me-court%3famp

“When you aim for the king, you better not miss.”

The antis missed. They will now reap what they have sown.

In my personal opinion, it will take extraordinary emotional restraint by justice Kavanaugh to not serve up a cold dish of revenge to the antis on this case. He might as well do so, they still want him investigated and impeached.
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Old 01-23-2019, 7:42 AM
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Originally Posted by Prwterbird View Post
There is also the right to travel. You have the right to bear arms and you have the right to travel, but not to travel while bearing arms.

Playing to Thomas’s disfavored right. You have the right to free speech and the right to travel, but not to travel while speaking.

Maybe I am over simplifying, but that doesn’t play out logically.
Actually, you are too logical - and perhaps that's one direction SCOTUS might go in when taking up cases.


NJ for example: All handguns are licensed, NOT just those that are concealable.

NY example: Property that is used under a license cannot leave the city.


In both examples, one is being held hostage to the other.


At some point, higher courts have to come out and say:

"Um, wait a second, property is property, and not all handguns are concealable or unusually dangerous. You can't use a blanket licensing requirement and related regulation to take away one's control of personal property or to classify something for which it is not in order to effect a ban on free exercise."

Understand...that as much as we are focusing on NJ and NY, Texas is under scrutiny as well.

=8-)
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Old 01-23-2019, 7:52 AM
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Quote:
Originally Posted by GPMG Gunner View Post
Opposition piece from Slate:

https://slate.com/news-and-politics/...ase-heller.amp

The antis see the potential of this case. There’s some “chicken little” sensationalism for sure, but the potential of this case extending far beyond the nuances of firearm transport rules is underscored.

We see it. They see it. The antis tried and failed to keep Kavanaugh off the bench. The reason they pushed so hard was his stern opposition to gun control.

https://www.google.com/amp/s/thehill...me-court%3famp

“When you aim for the king, you better not miss.”

The antis missed. They will now reap what they have sown.

In my personal opinion, it will take extraordinary emotional restraint by justice Kavanaugh to not serve up a cold dish of revenge to the antis on this case. He might as well do so, they still want him investigated and impeached.
I love the hysterical headline of that Slate hit piece!
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