Tennessee Gentleman
New member
BillCA said:
However, in Alabama and other may issue states it is not a problem. That is why I think it might survive if the state can show some objectivity.
Stevie-Ray said:
Not true. See Alabama.
Chicago Gun Case Incorporation Lawsuit
- Thread starter Al Norris
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However, in Alabama and other may issue states it is not a problem. That is why I think it might survive if the state can show some objectivity.
Not true. See Alabama.
As for the future after McDonald, we will spend decades litigating "bear" and "arms" just as we have spent decades litigating the 1st Amendment. Ilya Shapiro and Josh Blackman suggested that the courts may permit the states to ban either open or concealed carry, but not both. The courts may also permit registration, provided that it is shall-issue. I'm hoping that the courts will prevent states from imposing any kind of registration fee. The model here should be voting. If states can be prevented from collecting fees, that may discourage states from setting up a registry in the first place.
As for "arms", most handguns, rifles, and shotguns will probably be protected. The toughest ones will be weapons like machine guns and implements like silencers. Unless societal sentiment changes dramatically, don't expect much help from the courts.
Of the Heller restrictions (page 54), it's possible that in the future, the courts might loosen restrictions to allow non-violent felons to regain their firearm rights, though there still might be an application process. But this is probably in the distant future. As for "sensitive places," it's possible that restrictions like no gun zones that extend outside of a school's premises may be shot down. Eventually, the courts will have to articulate a standard regarding requirements on the purchase of firearms. I suspect a lot of the current restrictions will stay. Only until they significantly infringe upon the right to keep arms will the courts step in. The "common use" language is flexible enough to allow any number of interpretations and I consider it to be one of the strengths of the Heller opinion. The courts right now are not particularly favorable to gun rights. If they change to a more favorable composition in the future, then "common use" might be redefined more generously though I seriously doubt that the military and police will be counted among the gun-owning population for the purpose of defining that phrase.
One thing that I have been thinking about for some time is that gun owners should use veterans to advance their rights since veterans are among the most respected people in this country. (even the Supreme Court feels inclined to give veterans a break) Many of our servicemen in Iraq and Afghanistan come across antique or rare guns used by local insurgents that had to be destroyed. Perhaps the NRA can persuade Congress to allow our servicemen to bring back one weapon per person as personal trophies provided that they were seized from insurgents, would not be re-distributed to local security forces, and were scheduled to be destroyed? That may help increase the stock of "dangerous and unusual" weapons in the country thus making them more common and usual. Once they become common and usual, that will make it difficult for the states to ban or restrict their sale and carry.
As for "arms", most handguns, rifles, and shotguns will probably be protected. The toughest ones will be weapons like machine guns and implements like silencers. Unless societal sentiment changes dramatically, don't expect much help from the courts.
Of the Heller restrictions (page 54), it's possible that in the future, the courts might loosen restrictions to allow non-violent felons to regain their firearm rights, though there still might be an application process. But this is probably in the distant future. As for "sensitive places," it's possible that restrictions like no gun zones that extend outside of a school's premises may be shot down. Eventually, the courts will have to articulate a standard regarding requirements on the purchase of firearms. I suspect a lot of the current restrictions will stay. Only until they significantly infringe upon the right to keep arms will the courts step in. The "common use" language is flexible enough to allow any number of interpretations and I consider it to be one of the strengths of the Heller opinion. The courts right now are not particularly favorable to gun rights. If they change to a more favorable composition in the future, then "common use" might be redefined more generously though I seriously doubt that the military and police will be counted among the gun-owning population for the purpose of defining that phrase.
One thing that I have been thinking about for some time is that gun owners should use veterans to advance their rights since veterans are among the most respected people in this country. (even the Supreme Court feels inclined to give veterans a break) Many of our servicemen in Iraq and Afghanistan come across antique or rare guns used by local insurgents that had to be destroyed. Perhaps the NRA can persuade Congress to allow our servicemen to bring back one weapon per person as personal trophies provided that they were seized from insurgents, would not be re-distributed to local security forces, and were scheduled to be destroyed? That may help increase the stock of "dangerous and unusual" weapons in the country thus making them more common and usual. Once they become common and usual, that will make it difficult for the states to ban or restrict their sale and carry.
The veteran idea is novel and has potential, but the problems presently are the individuals in control of house, senate, and Whitehouse are not receptive and don't seem to have as high of an opinion of veterans - as in the Homeland Security brief that essentially identified vets as a potential high risk domestic terrorist group. Yes they got slammed for it and backed off some, but its kind of emblematic. Perhaps mid-term elections might present an opportunity. Good idea to explore though.
I think with the NFA the way to start is with SBR and such - there really is little logical reason to the restrictions especially when one considers the penalties that put people in prison on a felony for the length of a stock or barrel.
The next NFA item to attack should be "sound suppressors" - again there are a lot of common sense arguments to be made - people complain about ranges being loud in more urban areas, easily available suppressors would be a simple method for sound abatement. Also a health issue - hearing loss - health care (taking care of ones health not govt healthcare) is very popular. Also can be pointed out that in many of the "civilized" countries of Europe sound suppressors are commonly available.
I feel that going after machine guns as covered by the NFA will fail - little chance of success either legally through the courts or legislatively; might suceed in modification of the required sign offs from law enforcement making it more along the lines of shall sign/issue if criteria is met.
Better chance to get the Hughes amendment from 1986 - though that will take time and work - basically the argument that NFA as it covers machine guns has been effective and Hughes is a complete ban of a type of firearm owned by citizens for almost 100 years.
The easiest hopefully will be a requirement on the bearing of arms - i.e. that state must allow either open or ccw - it can't ban both - and ccw would have to be shall issue with an objective standard - otherwise it would run afoul of equal protection. Might even be able to get state to state reciprocity as it is a "fundamental right."
Also with felons and Lautenberg - may be able to deep six Lautenberg (lifetime ban on a fundamental right for a misdemeanor) and lifetime ban on non-violent felons - as said with felons a review process with criteria for reinstatement.
And look forward to years of litigation and working to build documentation and public consensus.
I think with the NFA the way to start is with SBR and such - there really is little logical reason to the restrictions especially when one considers the penalties that put people in prison on a felony for the length of a stock or barrel.
The next NFA item to attack should be "sound suppressors" - again there are a lot of common sense arguments to be made - people complain about ranges being loud in more urban areas, easily available suppressors would be a simple method for sound abatement. Also a health issue - hearing loss - health care (taking care of ones health not govt healthcare) is very popular. Also can be pointed out that in many of the "civilized" countries of Europe sound suppressors are commonly available.
I feel that going after machine guns as covered by the NFA will fail - little chance of success either legally through the courts or legislatively; might suceed in modification of the required sign offs from law enforcement making it more along the lines of shall sign/issue if criteria is met.
Better chance to get the Hughes amendment from 1986 - though that will take time and work - basically the argument that NFA as it covers machine guns has been effective and Hughes is a complete ban of a type of firearm owned by citizens for almost 100 years.
The easiest hopefully will be a requirement on the bearing of arms - i.e. that state must allow either open or ccw - it can't ban both - and ccw would have to be shall issue with an objective standard - otherwise it would run afoul of equal protection. Might even be able to get state to state reciprocity as it is a "fundamental right."
Also with felons and Lautenberg - may be able to deep six Lautenberg (lifetime ban on a fundamental right for a misdemeanor) and lifetime ban on non-violent felons - as said with felons a review process with criteria for reinstatement.
And look forward to years of litigation and working to build documentation and public consensus.
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I'll agree with Mack that we'll see years of litigation ahead of us. Some will be wins and some will be losses. But if we chose the battles well, there'll be more wins.
"May issue" laws will work only as long as there isn't a way for the agency to reject without an explicit reason.
Defining "Arms" will be a source of entertainment as anti's attempt to disqualify or limit the right. Handguns, rifles & shotguns will be generally protected. Some knives/blades will be protected and some won't. I expect that swords, sabres, bayonets and even a battleaxe will be protected. Harder to persuade the court that they are protected will be things like body armor, helmets, night-vision gear will be
Arguing the definition of "bear" will provide even more amusement. The anti's will try to argue that the carrying of firearms outside one's home is an activity the State can regulate for public safety. The fun comes when they attempt to torture the meaning of "a right" in a way that would allow them to tax and/or curtail it. (Can the city/state suspend my open carry permit if I fail to pay for my dog or cat license?)
SBR's, SBS's and sound suppressors: I would think that the proper method to argue for a change to these laws would be to argue for very serious penalties for misusing them in a crime. Punish the misuse of the device enough to make its misuse a large risk.
I would expect to see legislatures focus on raising the penalties for crimes involving firearms. From ADW to brandishing to robbery, we can expect larger fines and longer jail terms. I'd expect some of the broadened definitions to cause some problems too.
"May issue" laws will work only as long as there isn't a way for the agency to reject without an explicit reason.
Defining "Arms" will be a source of entertainment as anti's attempt to disqualify or limit the right. Handguns, rifles & shotguns will be generally protected. Some knives/blades will be protected and some won't. I expect that swords, sabres, bayonets and even a battleaxe will be protected. Harder to persuade the court that they are protected will be things like body armor, helmets, night-vision gear will be
Arguing the definition of "bear" will provide even more amusement. The anti's will try to argue that the carrying of firearms outside one's home is an activity the State can regulate for public safety. The fun comes when they attempt to torture the meaning of "a right" in a way that would allow them to tax and/or curtail it. (Can the city/state suspend my open carry permit if I fail to pay for my dog or cat license?)
SBR's, SBS's and sound suppressors: I would think that the proper method to argue for a change to these laws would be to argue for very serious penalties for misusing them in a crime. Punish the misuse of the device enough to make its misuse a large risk.
I would expect to see legislatures focus on raising the penalties for crimes involving firearms. From ADW to brandishing to robbery, we can expect larger fines and longer jail terms. I'd expect some of the broadened definitions to cause some problems too.
Concealed carry licensing/registration is not going to go away. Nor are the fees that are associated with it, going to go away. What is more likely is that the Legislatures and/or the Courts will allow OC as an alternative carry method, should the fees and other requirements be found burdensome. That meets the minimums we are beginning to see.
For those States that really, really don't want to have their soccer moms in a tizzy, they will have to loosen the requirements (and associated fees) for CC.
"May Issue" is problematic in the very wording. It really doesn't matter if the law is (currently) treated as "shall issue," 'cause it ain't. That's the very case that Sykes makes in CA. A successful win there, will percolate throughout CA. It will become a creditable precedent even if it isn't appealed to the 9th Circuit.
A lot of things are being hammered out, right now. But they will take time and perseverance.
The one thing we all can do, while this is taking place, is to increase the membership of the gun culture. It is a uniquely American tradition. We can't afford to let it die.
For those States that really, really don't want to have their soccer moms in a tizzy, they will have to loosen the requirements (and associated fees) for CC.
"May Issue" is problematic in the very wording. It really doesn't matter if the law is (currently) treated as "shall issue," 'cause it ain't. That's the very case that Sykes makes in CA. A successful win there, will percolate throughout CA. It will become a creditable precedent even if it isn't appealed to the 9th Circuit.
A lot of things are being hammered out, right now. But they will take time and perseverance.
The one thing we all can do, while this is taking place, is to increase the membership of the gun culture. It is a uniquely American tradition. We can't afford to let it die.
~and~
It seems this could lead to a push for relaxation of those same concealed carry fees and requirements, if given enough time. (and an activist OC component)
I gather alot of people don't want to see open carry everywhere they go and when confronted only with choice A(open) or choice B (concealed), some might eventually prefer the whole carry thing stay concealed.
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green-grizzly
New member
What laws would be the best targets to flesh out the right to carry?
The only restriction I face in my day-to-day life is the regulation prohibiting carry in postal facilities. It is not authorized by any law, it is just a regulation made by the postal service. The regulation requires posting, so it does not really apply to public parking lots, but it does apply to the public area in the post office. While a lot of cases indicate that the government can ban guns in government bulidings such as fairgrounds and the like, the post office is a little different than most, inasmuch as it is a government monopoly that most people must use.
Is that a good target? I kind of think it would be better to go after the few places with absolute bans on carry, like DC and Illinois, first. Then states with bans on open carry and may issue laws.
The only restriction I face in my day-to-day life is the regulation prohibiting carry in postal facilities. It is not authorized by any law, it is just a regulation made by the postal service. The regulation requires posting, so it does not really apply to public parking lots, but it does apply to the public area in the post office. While a lot of cases indicate that the government can ban guns in government bulidings such as fairgrounds and the like, the post office is a little different than most, inasmuch as it is a government monopoly that most people must use.
Is that a good target? I kind of think it would be better to go after the few places with absolute bans on carry, like DC and Illinois, first. Then states with bans on open carry and may issue laws.
Bartholomew Roberts
Moderator
You know, in my hurry to declare victory I forgot some of the basic facts in McDonald. As gc70 pointed out, there hasn't been any fact-finding at the District court level, we went right into "Is the Second incorporated against the States?" without addressing any of the other issues.
So why wouldn't the Court just say "Yes, it is incorporated through substantive due process" and remand to the lower court?
On the one hand, it wouldn't be the end of the world because cases like Palmer, etc. could go forward now and we would eventually get answers on scrutiny. On the other hand, given that the Seventh Circuit has agreed to rehear Sieyes en banc, I wouldn't be surprised if we get some conflicting standards of scrutiny that the Court might wait a bit to sort out.
Completely unrelated to the above post; but here is the ABA's take on McDonald. Not suprisingly, chock full of bias and less professional reporting than any of a half dozen amateur blogs; but that's the ABA for you.
So why wouldn't the Court just say "Yes, it is incorporated through substantive due process" and remand to the lower court?
On the one hand, it wouldn't be the end of the world because cases like Palmer, etc. could go forward now and we would eventually get answers on scrutiny. On the other hand, given that the Seventh Circuit has agreed to rehear Sieyes en banc, I wouldn't be surprised if we get some conflicting standards of scrutiny that the Court might wait a bit to sort out.
Completely unrelated to the above post; but here is the ABA's take on McDonald. Not suprisingly, chock full of bias and less professional reporting than any of a half dozen amateur blogs; but that's the ABA for you.
Tennessee Gentleman
New member
Antipitas said:
Al, I agree that there is a moral hazard with "May Issue" but that hazard may be mitigated by somewhat objective measures like requiring the CLEO to explain why the CCW application was turned down (you don't need one would NOT be suffcient) and allow some type of appeal option as well.
In short I think there would be a "middle ground" between lotty dotty everybody (military term
) getting a CCW in one state and only Robert Deniro gets one in another. I am not sure that the court would throw out a CCW law that allowed a local LEO who knows that citizen X is crazy/violent but hasn't been convicted of a felony to disapprove a CCW. I know folks on TFL would not like such a system but we are in the great minority and may not be in step with the courts on that issue.
After reading the orals again, I do not fully subscribe to the "P&I is dead" conclusion. I wrote out short paraphrases of each P&I question and looked at the list. The list is what you would expect: why reverse precedent; what would P&I do for (or to) rights; what does P&I encompass? And Gura did not give much in response to the questions - meaning that the Court will have to rely on the briefs in the case because he did not throw his tongue on the floor and trip over it.
maestro pistolero
New member
Thanks for that, Al. It's so easy to just hang out in my gun-buddy cocoon and not reach out to a newbie. I'm on the lookout for a candidate or two, now.
Agreed. We have no idea how the arguments are going to play out behind closed doors. If PoR becomes the bait for the liberal wing of the court, I'm not sure that Scalia wouldn't go along. He has already professed his reluctant acquiescence to DP incorporation, as well as his dislike of Slaughterhouse.
I can't help but wonder how much of the posturing at orals is really the justices taking a negotiating position for the private debate that is to ensue between the justices. I wouldn't be surprised at PoR emerging as the vehicle.
The appeal of it to the conservative and/or originalist members should be obvious, (though it certainly isn't) It would make a huge statement of the importance of 2A, if it were afforded PoR incorporation, a status that no other enumerated right has been given.
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Tennessee Gentleman:
For whatever it might be worth, re issuance of Concealed Cary Permits, in Pennsylvania, where I'm located, as I understand the law, the following governs:
1. The County Sheriff, an elected official, is the "issuing authority".
2. Here, a "shall issue" state, should the issuing authority opt to deny the applicant a permit/license to carry concealed, he must be prepared to defend his action in court.
3. Essentially, the boundaries around who will not be issued a carry permit or license are those that provide that a person is proscribed from gun ownership/possession in federal law.
I would think that this "may issue" business is something best avoided, especially as rulings from USSC in the Chicago matter are already likely to turn out to amount to a welfare for lawyers proposition.
For whatever it might be worth, re issuance of Concealed Cary Permits, in Pennsylvania, where I'm located, as I understand the law, the following governs:
1. The County Sheriff, an elected official, is the "issuing authority".
2. Here, a "shall issue" state, should the issuing authority opt to deny the applicant a permit/license to carry concealed, he must be prepared to defend his action in court.
3. Essentially, the boundaries around who will not be issued a carry permit or license are those that provide that a person is proscribed from gun ownership/possession in federal law.
I would think that this "may issue" business is something best avoided, especially as rulings from USSC in the Chicago matter are already likely to turn out to amount to a welfare for lawyers proposition.
Tennessee Gentleman
New member
alan said:
Right, but I think the court may allow a "may issue" CCW law to stand that imposes stronger restrictions if the reasons are somehow objective and applied equally. FWIW I am not advocating "may issue" but I don't think the court will strike all applications of such down.
Antipitas writes in part:
The one thing we all can do, while this is taking place, is to increase the membership of the gun culture. It is a uniquely American tradition. We can't afford to let it die.
----------------
That sounds about right to me. The stronger The Gun Culture, the stronger our side.
The one thing we all can do, while this is taking place, is to increase the membership of the gun culture. It is a uniquely American tradition. We can't afford to let it die.
----------------
That sounds about right to me. The stronger The Gun Culture, the stronger our side.
What objective criteria might that be? Of good moral character? Good Cause? Nothing objective about either of those two common "may issue" examples.
In a jurisdiction of 12,000 people, just how well does my Sheriff really know anyone who has had no cause to draw official attention?
Short story:
When I renewed my CWP in 2008, I was presented with a form to fill out that highly resembled a form 4472. I politely asked the gal what this was about. She informed me that this was the NEW CWP renewal form. I asked her if this form was authorized by the State Police. She said, "No, this is Sheriff XXXX's new form." I told her I would renew on the State form but not this. She told me to fill out the form or I wouldn't get my permit renewed.
I made mention of I.C. 18-3302(1)
(2) - the form requirements. I also mentioned 18-3302(6) - Civil suit remedy for not following the State code. I again asked for the State application. Grudgingly, I received it. Surprise! They had it!!
The Sheriff didn't like my "attitude." If Idaho were a "may issue" State, how do you think that would have affected my renewal? We both know the answer to that question.
So I'm really interested in what objective criteria there might be.
In a jurisdiction of 12,000 people, just how well does my Sheriff really know anyone who has had no cause to draw official attention?
Short story:
When I renewed my CWP in 2008, I was presented with a form to fill out that highly resembled a form 4472. I politely asked the gal what this was about. She informed me that this was the NEW CWP renewal form. I asked her if this form was authorized by the State Police. She said, "No, this is Sheriff XXXX's new form." I told her I would renew on the State form but not this. She told me to fill out the form or I wouldn't get my permit renewed.
I made mention of I.C. 18-3302(1)
(2) - the form requirements. I also mentioned 18-3302(6) - Civil suit remedy for not following the State code. I again asked for the State application. Grudgingly, I received it. Surprise! They had it!!The Sheriff didn't like my "attitude." If Idaho were a "may issue" State, how do you think that would have affected my renewal? We both know the answer to that question.
So I'm really interested in what objective criteria there might be.
TG: A Zogby poll recently indicated 83 percent of the American people support concealed carry. We are not in a great minority. Just the opposite.
May issue is in deep, deep trouble as Al has indicated. The general rule for may issue is it doesn't allow for due process.
Why even argue that Alabama's may issue procedures are ok? They are not ok because the very nature of may issue is it is lacking in due process.
Leaving the ultimate decision up to the whim of a police chief, etc., does not meet due process on its face IMHO. So, if the SCOTUS rules for due process, how in the heck can may issue ever be ok?
Don't give these anti-gun schemes an "out". Fight them tooth and nail as being totally unconstitutional. That's what we did in Michigan for years and finally got it about 10 years ago.
Tidbit: In Michigan a local PD cannot do what they tried to do with Al when he renewed his CPL. That is clearly the type of crap you get with may issue States. In Michigan that would be unlawful and I'm not even sure the application would even be honored by the State Police if it was an application created by some local PD.
And you can see, even in shall issue Idaho, these anti-gun schemes still raise their ugly heads. You have to fight those schemes and not say "well it might be ok if it is objective enough".
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Originally posted by Tennessee Gentleman
I'm not sure I completely understand what you're trying to say, so please bear with me. "May Issue" could possibly stand so long as denied permits are denied because of certain objective criteria. If such objective criteria to deny the permit cannot be found, then the permit must be issued? Have I got it right?
If I'm understanding you correctly, what you're describing sounds an awful lot like "shall issue" to me.
In my understanding, many things besides a felony are ground for denial of a CCL in many "shall issue" states. Examples of such include documented histories of certain mental illnesses and certain misdemeanors.
But if citizen X has no documented reasons to deny his permit like a felony or admission to a psychiatric ward, how could he be objectively classified as crazy or violent?
Basically what I'm getting at here is that "may issue" by its very nature is highly subjective. It seems to me that if "may issue" were objectified as you describe, it would basically be "shall issue."
I'm not sure I completely understand what you're trying to say, so please bear with me. "May Issue" could possibly stand so long as denied permits are denied because of certain objective criteria. If such objective criteria to deny the permit cannot be found, then the permit must be issued? Have I got it right?
If I'm understanding you correctly, what you're describing sounds an awful lot like "shall issue" to me.
In my understanding, many things besides a felony are ground for denial of a CCL in many "shall issue" states. Examples of such include documented histories of certain mental illnesses and certain misdemeanors.
But if citizen X has no documented reasons to deny his permit like a felony or admission to a psychiatric ward, how could he be objectively classified as crazy or violent?
Basically what I'm getting at here is that "may issue" by its very nature is highly subjective. It seems to me that if "may issue" were objectified as you describe, it would basically be "shall issue."
Tennessee Gentleman
New member
Antipitas said:
Say it ain't so! Al, were you uppity with the Sheriff? You rabble rouser!
OK, lots of things here I guess. First of all I AM NOT an advocate of "shall issue" but that doesn't mean it won't withstand court challenge and that was my comment before so don't jump on me to get me to defend "shall issue"!
I should start by saying I suspect there is somedivergence between states on what "may issue" and "shall issue" mean.
For arguments sake I would say (and I could well be off base) that with "shall issue" is it's strictest sense if you meet the criteria to own a gun then you must be issued the permit, no LEO descretion whatsoever.
So, if you don't have a felony conviction but have a very violent history and are considered the village idiot but just haven't been convicted of a felony, domestic battery or involuntarily committed to a mental institution then you could get the permit.
I know this may vary from state to state. In Alabama virtually everybody gets one and in New York City virtually no one does so it is not the same state to state. So, "shall issue" and "may issue" may not always mean the same thing in every state.
Where "may issue" would be appealing to a court would in the same vein as the CLEO sign off for the FA Tax Stamp application in that the local LEO may have particular knowledge of a person being a danger to the public who is not be "in the system" that would keep him from getting the permit?
So if a state had a "may issue" system and had some objective criteria like I mentioned before with a real appeal process, explanation required as to why you were turned down, and perhaps other rather than whether the sheriff likes you or not it might withstand scrutiny for the court.
IMO, I think the court may find the right to keep a handgun in the home for self defense and carrying one round publicly quite different and might allow more regulation. So, I wouldn't go on this thread and say with great confidence that "may issue" is dead as I would say that we will win McDonald. However, I will be interested to see how the tougher CA-like may issue laws are challenged.
RDak said:
Haven't seen that poll. Is that the same one the antis quote when they say the majority of Americans want "assault weapons" banned? I wouldn't put too much faith in those polls particularly since as gun owners we are surely in the minority. I suspect it is true with CCW as well. Voters may tolerate it but not really "support" it either.
Tennessee Gentleman
New member
Webleymkv said:
I think it is a matter of degree Webley. Not sure that the definitions are that cut and dried. As stated, Alabama is "may issue", New York is also but the application of that standard is done quite differently in those two states and so the courts might accept it if there is some objectivity and due process in a particular state.
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