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deminks

(11,006 posts)
Thu Jun 9, 2016, 12:36 PM Jun 2016

Appeals Court: No 2nd Amendment Right To Public Concealed Carry

http://talkingpointsmemo.com/livewire/appeals-court-no-2nd-amendment-right-concealed-carry?utm_content=bufferb646d&utm_medium=social&utm_source=twitter.com&utm_campaign=buffer

The gun rights movement was delivered a setback Thursday when an appeals court based out of San Francisco said there was no Second Amendment right for a member of the public to carry a concealed weapon in a decision upholding a California firearm restriction.

"As the uncontradicted historical evidence overwhelmingly shows, the Second Amendment does not protect, in any degree, the right of a member of the general public to carry a concealed weapon in public," the U.S. Court of Appeals for the Ninth Circuit said in its opinion. In a 7-4 vote, it upheld the previous ruling of a three-judge panel of the appeals court, which had been appealed to the full court.

"The Second Amendment may or may not protect to some degree a right of a member of the general public to carry a firearm in public. If there is such a right, it is only a right to carry a firearm openly," the opinion said. "But Plaintiffs do not challenge California’s restrictions on open carry; they challenge only restrictions on concealed carry."

The opinion noted the question of open carry had not been answered by the Supreme Court.

(end snip)
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Appeals Court: No 2nd Amendment Right To Public Concealed Carry (Original Post) deminks Jun 2016 OP
K&R... spanone Jun 2016 #1
ninth circuit .. what a surprise DustyJoe Jun 2016 #2
don't forget: A well regulated Militia, being necessary to the security of a free State, MariaThinks Jun 2016 #6
Actually TeddyR Jun 2016 #8
court rulings are based on who's doing the ruling. MariaThinks Jun 2016 #16
Of course TeddyR Jun 2016 #22
Also, in the case of guns, nothing is 'obvious' and there is no common sense MariaThinks Jun 2016 #18
You should recall:: jmg257 Jun 2016 #13
Maybe the post-Scalia court will have a better understanding of that phrase Orrex Jun 2016 #10
That's what i think MariaThinks Jun 2016 #17
we can hope someone can figure it out DustyJoe Jun 2016 #33
I'm hopeful that the post-Scalia court will come to its senses and reverse Heller Orrex Jun 2016 #34
A militia is made up of individuals. NutmegYankee Jun 2016 #37
Ah, yes. "Authoritarian." Orrex Jun 2016 #40
Just because the miltiia changed doesn't remove the right that was codified in 1791. NutmegYankee Jun 2016 #41
To be frank, I don't care about your position on any of that. Orrex Jun 2016 #42
Yawn. Heard that sophistry one too many times. NutmegYankee Jun 2016 #43
They will have to allow open or concealed, as they allude to. Socal31 Jun 2016 #3
Doesn't the 9th get over ruled a whole lot? braddy Jun 2016 #4
6th District is the current most overturned FreeState Jun 2016 #30
very sensible. MariaThinks Jun 2016 #5
Looks like universal open carry is where we are headed. nt hack89 Jun 2016 #7
I suspect that all of the criminal TeddyR Jun 2016 #9
You're absolutely right! Orrex Jun 2016 #11
Be interested to see TeddyR Jun 2016 #12
The answer should never be "easier access to guns" Orrex Jun 2016 #15
I'm pretty open to suggestions that might actually help curb firearm violence TeddyR Jun 2016 #21
What is the specific relevance of your suspicions in regards to this particular court ruling? LanternWaste Jun 2016 #19
you bet DustyJoe Jun 2016 #32
Silly... Either you can have it or you can't... TipTok Jun 2016 #14
Your most sincere concern was directly addressed in the court's ruling. Try reading it... LanternWaste Jun 2016 #20
Feel free to summarize... TipTok Jun 2016 #25
Uh oh. Gun nuts have to be freaking out with Herr Scalia Todt... MillennialDem Jun 2016 #23
No TeddyR Jun 2016 #27
It's so progressive to want to pull a gun on someone in an argument MillennialDem Jun 2016 #36
Lots of opinions from various judges. jmg257 Jun 2016 #24
Even Tony Scalia said the 2nd Amendment rights applied to a gun in a home. You could make the Hoyt Jun 2016 #26
By "Zimmerman types" TeddyR Jun 2016 #28
Zman is considered law-abiding citizen, and an icon by many gunners. In fact, his murder of Trayvon Hoyt Jun 2016 #29
If this is sustained, it's likely only to effect "constitutional carry" states (if any). Lizzie Poppet Jun 2016 #31
This opinion seems to favor open carry over concealed carry---which is a damned shame. Paladin Jun 2016 #35
Trumpies not liking this one. Kingofalldems Jun 2016 #38
Most of the Trumpies I know aren't gun owners nor really like them. NutmegYankee Jun 2016 #39

DustyJoe

(849 posts)
2. ninth circuit .. what a surprise
Thu Jun 9, 2016, 12:46 PM
Jun 2016

Just another lower court that the SC will have to remind them what shall not be infringed means

MariaThinks

(2,495 posts)
6. don't forget: A well regulated Militia, being necessary to the security of a free State,
Thu Jun 9, 2016, 12:53 PM
Jun 2016

it says nothing about concealed, open, or even if the arms are working. Ammunition is certainly not included.

 

TeddyR

(2,493 posts)
8. Actually
Thu Jun 9, 2016, 01:14 PM
Jun 2016

The ownership of ammunition is protected by the Second Amendment:

From the Court’s reasoning [in Heller], it logically follows that the right to keep and bear arms extends to the possession of handgun ammunition in the home; for if such possession could be banned (and not simply regulated), that would make it “impossible for citizens to use [their handguns] for the core lawful purpose of self-defense.” By the same token, given the obvious connection between handgun ammunition and the right protected by the Second Amendment, we are hard-pressed to see how a flat ban on the possession of such ammunition in the home could survive heightened scrutiny of any kind. We therefore conclude that the Second Amendment guarantees a right to possess ammunition in the home that is coextensive with the right to possess a usable handgun there. The government has not taken issue with that conclusion….


http://volokh.com/2010/11/04/d-c-s-highest-court-holds-ammunition-ban-violates-second-amendment/

And the right own a working firearm is also protected. In Heller, the Supreme Court overturned the District of Columbia's ban on owning an operational firearm. From the summary of the decision:

District of Columbia law bans handgun possession by making it a crime to carry an unregistered firearm and prohibiting the registration of handguns; provides separately that no person may carry an unlicensed handgun, but authorizes the police chief to issue 1-year licenses; and requires residents to keep lawfully owned firearms unloaded and dissembled or bound by a trigger lock or similar device. Respondent Heller, a D. C. special policeman, applied to register a handgun he wished to keep at home, but the District refused. He filed this suit seeking, on Second Amendment grounds, to enjoin the city from enforcing the bar on handgun registration, the licensing requirement insofar as it prohibits carrying an unlicensed firearm in the home, and the trigger-lock requirement insofar as it prohibits the use of functional firearms in the home. The District Court dismissed the suit, but the D. C. Circuit reversed, holding that the Second Amendment protects an individual’s right to possess firearms and that the city’s total ban on handguns, as well as its requirement that firearms in the home be kept nonfunctional even when necessary for self-defense, violated that right.

Held:
***

3. The handgun ban and the trigger-lock requirement (as applied to self-defense) violate the Second Amendment . The District’s total ban on handgun possession in the home amounts to a prohibition on an entire class of “arms” that Americans overwhelmingly choose for the lawful purpose of self-defense. Under any of the standards of scrutiny the Court has applied to enumerated constitutional rights, this prohibition—in the place where the importance of the lawful defense of self, family, and property is most acute—would fail constitutional muster. Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional. Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement. Assuming he is not disqualified from exercising Second Amendment rights, the District must permit Heller to register his handgun and must issue him a license to carry it in the home.


https://www.law.cornell.edu/supct/html/07-290.ZS.html

 

TeddyR

(2,493 posts)
22. Of course
Thu Jun 9, 2016, 02:54 PM
Jun 2016

But I don't think there's any serious chance that Heller is reversed anytime soon, if ever. Here's a link to a post I started from a few days ago discussing an article in The Atlantic that basically makes the point that (1) Heller really didn't change anything (2) Heller permits most gun laws that have been challenged and there's little chance it will be reversed and (3) if it were reversed then there is a legitimate chance of a constitutional amendment clarifying that the right to keep and bear arms is an individual right that shall not be infringed - http://www.democraticunderground.com/1172195248. Excerpt from the article:

Plus, there is one really strong reason not to overturn Heller: It would spark a backlash that would make the political movement to reverse Roe seem like a schoolyard kerfuffle. The NRA would push for a constitutional amendment to enshrine gun rights and would likely include language, like it has in a series of recent amendments to state constitutions, making it much harder to restrict guns. Although most proposals to amend the Constitution are quixotic, gun politics are such that 38 states might well pass a new, stronger Second Amendment in a heartbeat.


I think it is a generally academic question because I agree that Heller won't be reversed, but I do wonder if a constitutional amendment would in fact pass. I think it might -- the only states I can think of that would absolutely oppose such an amendment are New York, New Jersey, Hawaii and California, perhaps Massachusetts. The trend is for less stringent gun laws and all of the states in the south, the Midwest (perhaps excluding Illinois), and the mountain west would likely support a constitutional amendment stating something like "the right to keep and bear arms for personal defense at home and in public shall not be infringed." I think it would be pretty easy to come up with a list of 38 states that would vote in favor of such an amendment.

MariaThinks

(2,495 posts)
18. Also, in the case of guns, nothing is 'obvious' and there is no common sense
Thu Jun 9, 2016, 02:12 PM
Jun 2016

it's a business and it's about the emotion of having guns. It was nothing to do with freedom, life, liberty or justice.

Only money and fear.

jmg257

(11,996 posts)
13. You should recall::
Thu Jun 9, 2016, 01:43 PM
Jun 2016

"The right to use a thing comprehends a right to the means necessary to its use, and without which it would be useless." --Thomas Jefferson to William Carmichael, 1790. ME 8 2

Orrex

(63,084 posts)
10. Maybe the post-Scalia court will have a better understanding of that phrase
Thu Jun 9, 2016, 01:30 PM
Jun 2016

Instead of, you know, rubber-stamping every NRA wet dream that rolled past his vile presence.

DustyJoe

(849 posts)
33. we can hope someone can figure it out
Thu Jun 9, 2016, 06:05 PM
Jun 2016
the right of the people to keep and bear Arms, shall not be infringed


The court ruled the amendment makes no mention of bearing a legal firearm concealed, but does not deny the fact that in order to bear a personal firearm it can only be under one of 2 conditions. In the open carried position or concealed. The right to bear the firearm is not the issue, just the mechanics of how it's carried. Like others have stated, let the states define their own rules, the federal amendment is quite clear of the right to carry, just not how.

Orrex

(63,084 posts)
34. I'm hopeful that the post-Scalia court will come to its senses and reverse Heller
Thu Jun 9, 2016, 06:34 PM
Jun 2016
A well regulated militia being necessary to the security of a free state,
A nation of every-gun-owner-for-himself is most certainly not a militia, much less a well regulated one.

If the court simply reads the text and correctly declares that the dubiously sacred amendment makes no mention whatsoever of an individual's right to stockpile weapons.

NutmegYankee

(16,177 posts)
37. A militia is made up of individuals.
Thu Jun 9, 2016, 09:21 PM
Jun 2016

And historically the members of a militia were expected to bring their own arms, including colonial era militias. The common citizenry have had a right to own firearms for hunting, self defense, and defense of the state since the colonial era. No court is going to get rid of that, the authoritarian dreams of some people notwithstanding.

Orrex

(63,084 posts)
40. Ah, yes. "Authoritarian."
Thu Jun 9, 2016, 09:40 PM
Jun 2016

How many posts until you call me a "gun grabber" while covertly consulting LaPierre's handbook of rhetorical witticisms?

Tell me--when the National Guard (our modern militia) is assembled, are individual members of that service branch required or expected to provide their own weapons? No? Then that argument is an irrelevant anachronism.

Gun advocates would have more credibility if they simply said "we want our guns because we want our guns" rather than trying to stuff 21st century reality into the quaint standards befitting flintlock muskets. That line of reasoning convinces no one other than fellow gun advocates.

NutmegYankee

(16,177 posts)
41. Just because the miltiia changed doesn't remove the right that was codified in 1791.
Thu Jun 9, 2016, 09:49 PM
Jun 2016

The structure of the national guard is irrelevant.

As for authoritarian, I oppose anyone who wishes to destroy individual liberties and rights. It doesn't matter if it's the religious right and their persecution of LGBT individuals and their sick devotion to the enslavement of women as baby incubators by trying to ban abortion or those who support the classical right wing ideology that the common man is incapable of owning something like a firearm and must defer to his betters, the wealthy and powerful. I believe in the egalitarian philosophy so much I've been a card carrying member of the ACLU my entire adult life, despite my occasional disagreements on some policies. I'm proud to be called a Liberal.

Orrex

(63,084 posts)
42. To be frank, I don't care about your position on any of that.
Thu Jun 9, 2016, 10:24 PM
Jun 2016

Every argument in favor of so-called "gun rights" must first and foremost account for the thousands and thousands and thousands of gun murders committed each and every year, many committed by people who were "responsible gun owners" just minutes prior.

I have never once heard or read or seen a gun advocate give a credible response to the epidemic of gun violence that didn't boil down to "criminals ignore laws blah blah militia blah mental health blah blah blah liberty and freedom." That's true of DU, and it's true of this very thread.

I want a nuclear warhead and a bank of anti-aircraft missiles. Who the hell has the authority to tell me that I can't own one? Which scoundrel is destroying my individual liberty and rights?

NutmegYankee

(16,177 posts)
43. Yawn. Heard that sophistry one too many times.
Thu Jun 9, 2016, 10:38 PM
Jun 2016

I support curing the violence inherent to our society due to social and economic causes without resorting to eliminating individual liberties. Obviously we disagree in our approach.

 

TeddyR

(2,493 posts)
9. I suspect that all of the criminal
Thu Jun 9, 2016, 01:23 PM
Jun 2016

Gangsters in California will realize that by carrying a concealed weapon they are violating the law and immediately cease doing so. Right?

 

TeddyR

(2,493 posts)
12. Be interested to see
Thu Jun 9, 2016, 01:42 PM
Jun 2016

If the case goes to the Supreme Court, though I doubt they would accept cert because you would most likely end up with a 4-4 split at this point.

So you are ok with taking guns away from law-abiding citizens so that only criminals can have them? I've never found the notion that we'll hamstring the right of an individual to protect him or herself to be very progressive. Thankfully California is an outlier on the gun rights issue (gun laws are becoming more permissive/progressive in almost every state except California and New York).

Orrex

(63,084 posts)
15. The answer should never be "easier access to guns"
Thu Jun 9, 2016, 02:10 PM
Jun 2016

Perhaps it won't have an immediate effect on reducing availability of guns in criminals' hands, but it might reasonably cut back on the number of firearms used in crimes of passion, for instance. If the net effect is to eliminate a few hundred domestic violence-related gun murders annually, then I'd say that it's worth it.

I've previously posted a number of suggestions by which gun owners might be held more fully to account for their weapons, but these suggestions have generally been dismissed by gun advocates who offer no alternatives beyond a vague call to "improve mental healthcare."

So you are ok with taking guns away from law-abiding citizens so that only criminals can have them?
That's not my framing of it, no. I wouldn't generally advocate the seizure of weapons from law-abiding citizens, but I also don't buy into the propaganda that private firearm ownership is a serious deterrent to crime.

 

TeddyR

(2,493 posts)
21. I'm pretty open to suggestions that might actually help curb firearm violence
Thu Jun 9, 2016, 02:45 PM
Jun 2016

In my mind a large part of the violence stems from (1) poverty and (2) the "war on drugs." Providing education, jobs, etc. would help with the first, and we just need to legalize some drugs (I'm looking at you marijuana) and figure out how to address others (meth has to stay banned, along with other dangerous drugs). Anyway, I appreciate your reasoned response, and I was perhaps a little over the top in my previous one.

 

LanternWaste

(37,748 posts)
19. What is the specific relevance of your suspicions in regards to this particular court ruling?
Thu Jun 9, 2016, 02:39 PM
Jun 2016

What is the specific relevance of your suspicions in regards to this particular court ruling?

Right?

 

TipTok

(2,474 posts)
14. Silly... Either you can have it or you can't...
Thu Jun 9, 2016, 01:50 PM
Jun 2016

You can carry it on your head or in your waisband...

Unless the right is explicitly restricted, people should have it by default.

Probably a legal concept for that which escapes me at the moment.

 

LanternWaste

(37,748 posts)
20. Your most sincere concern was directly addressed in the court's ruling. Try reading it...
Thu Jun 9, 2016, 02:40 PM
Jun 2016

Your most sincere concern was directly addressed in the court's ruling. Try reading it... it allows additional and relevant information that also seems to escape you at the moment.

 

TeddyR

(2,493 posts)
27. No
Thu Jun 9, 2016, 03:47 PM
Jun 2016

I doubt "gun nuts" are freaking out, though I imagine there are some folks in California who aren't happy with this decision. Thankfully though, most states are much more progressive when it comes to firearms and concealed carry. No state completely bans concealed carry and only a handful (California, New York, Maryland, New Jersey, perhaps Hawaii) require a showing of "good cause."

jmg257

(11,996 posts)
24. Lots of opinions from various judges.
Thu Jun 9, 2016, 03:37 PM
Jun 2016

U.S. judge strikes down D.C. concealed-carry gun law as probably unconstitutional

https://www.washingtonpost.com/local/public-safety/us-judge-strikes-down-dc-concealed-carry-gun-law-as-likely-unconstitutional/2016/05/17/d36d35dc-1c49-11e6-8c7b-6931e66333e7_story.html?hpid=hp_local-news_dcgunban1255pm%3Ahomepage%2Fstory

"A federal judge ruled Tuesday that a key provision of the District’s new gun law is probably unconstitutional, ordering D.C. police to stop requiring individuals to show “good reason” to obtain a permit to carry a firearm on the streets of the nation’s capital."

The Tuesday ruling imposed a preliminary injunction, pending further litigation. The decision means the city cannot deny concealed-carry permits to residents who do not show a good reason for needing a gun but otherwise would qualify for the permits.
...
"Leon’s opinion reignited a running debate over the Second Amendment in the District and its courts; three different judges have come to different conclusions about the law, and gun rights advocates have made the city a main front in battles over gun-control measures."


USSC will have an important decision, and set a major precedence, if any of these cases get that far.


 

Hoyt

(54,770 posts)
26. Even Tony Scalia said the 2nd Amendment rights applied to a gun in a home. You could make the
Thu Jun 9, 2016, 03:46 PM
Jun 2016

argument that he didn't address tucking one in your pants so you feel safe enough to go to the store, but all he said was "home." Fact is, people are tired of george zimmerman types walking around with a gun in their pants.

 

TeddyR

(2,493 posts)
28. By "Zimmerman types"
Thu Jun 9, 2016, 03:55 PM
Jun 2016

I assume you meant criminals who carry guns and use them to commit crimes, not law-abiding citizens? And yeah, I've seen arguments that the 2d only applies to guns in homes. The 9th Circuit seems to think that is the case, at least for concealed carry.

 

Hoyt

(54,770 posts)
29. Zman is considered law-abiding citizen, and an icon by many gunners. In fact, his murder of Trayvon
Thu Jun 9, 2016, 04:02 PM
Jun 2016

Martin is considered in the statistics that supposedly show how often guns are used to protect someone. Personally, I believe most shootings by what you want to call "law-abiding citizens" could have been handled differently if the gun toter hadn't invested so much time and money preparing to shoot someone.

 

Lizzie Poppet

(10,164 posts)
31. If this is sustained, it's likely only to effect "constitutional carry" states (if any).
Thu Jun 9, 2016, 04:07 PM
Jun 2016

That is, those states in which no special permit is needed to carry concealed. The majority of states have concealed carry statutes requiring permits, and those permits must be issued if the applicant is legally qualified. They don't depend (directly) on the Second Amendment. California is in the rather extreme minority of states without a "must issue" concealed permit statute (that is, you can't get such a permit unless you are spectacularly well-connected).

Paladin

(28,202 posts)
35. This opinion seems to favor open carry over concealed carry---which is a damned shame.
Thu Jun 9, 2016, 06:50 PM
Jun 2016

The open carry types are far more extreme, more of a danger to the public. They're carrying their firearms in plain view because they really, really want to use them against other people.

NutmegYankee

(16,177 posts)
39. Most of the Trumpies I know aren't gun owners nor really like them.
Thu Jun 9, 2016, 09:31 PM
Jun 2016

His supporters tend to be authoritarians who like rigid social hierarchies and have the "daddy protect me" complex. A lot of them don't really believe in personal/individual freedoms. The ones I know are very supportive of the drug war for instance.

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