Kachalsky v. Cacase - NY Carry - Cert Filed

One can't be a gang-banger for long without accruing a felony. It's actually a right of passage in that world. Anyone who is a gang banger for any period of time will soon have a firearm prohibition, which, of course, they will ignore. The only difference is they can be locked up for a long time as a FIP.
 
Gura makes the point that current usage seems to have erroneously conflated "carry" with "concealed," such that anyone who mentions legal carry or permitted/licensed carry almost automatically and immediately jumps to "concealed carry." This is not the case. And there are faint hints at the distinction in the Heller decision, when Scalia discusses presumptively lawful restrictions.

Two states where this can be seen in operation today (among others, I'm sure) are Connecticut and Pennsylvania. Pennsylvania is an "open carry" state; except in the city of Philadelphia, open carry is legal without a license but a license is required for concealed carry. Within Philadelphia a license is required for open or concealed carry. On the PAFAO forum, there are regular reports of people who open carry being stopped and hassled by the police, both in and out of Philadelphia, because the police either don't know the law (usually the case outside of Philadelphia) or don't like the law (usually the case in Philadelphia). Often in PA police tell license holders that if they have a permit (in PA it is referred to in various parts of the law as both a license and a permit, furthering confusion) they MUST carry concealed. Which, of course, is not only wrong but also patently silly. ("You mean I can carry this hawgleg out in the open if'n I don't have a license, but if I git yer license I gotta conceal it? Is that whut yer a-tellin' me, Marshal Dillon?")

Connecticut, of the other hand, allows NO carry without a permit. But CT state law and the permit itself are silent regarding mode of carry. Thus, once someone has a CT carry permit, open carry is legal as well as concealed carry. Again, the police don't seem to like this and people have been arrested for open carry. The usual charge, since the police can't cite the carry law, is "disturbing the peace." These cases routinely get dismissed in court and the permit holder's permit is ordered restored, which makes the police even more unhappy because they claim the courts "aren't backing us up."

The situation in Ohio is perhaps the most instructive recent case that illustrates how this works. The Ohio state constitution includes a RKBA provision. Some years ago the Ohio supreme court ruled in a case that, because the state's constitution guarantees a right to bear arms, the State may not entirely prohibit doing so. Therefore, the court ruled, if the State wished to prohibit concealed carry (which Ohio had done, legislatively) the State could NOT prohibit open carry. Thus, Ohio became an "open carry" state. And the police were not happy. Activist citizens of Ohio began organizing open carry events, which made the police even more unhappy. Ultimately, several years ago the legislature either saw the light or caved in (depending on your point of view) and enacted concealed carry license legislation.

Al Norris, I believe, has commented on one of the western states (Utah, perhaps?) having done the same thing many years before.

So the legal premise is that the State may "regulate" the mode of bearing arms, but in the face of a constitutional guarantee of a RKBA the State may not prohibit the carrying of arms.

I don't remember which case, but I think in one of his briefs Gura made the point that a state could choose to allow concealed carry but prohibit open carry, or could choose to allow open carry while prohibiting concealed carry. Take your pick. (Most states seem to prefer concealed carry, since open carry -- they claim -- gets people upset.)
 
Aguila, the case was In Re Brickey, 8 Idaho 597 (1902).

Here, the Idaho Supreme Court interpreted our own RKBA and the 2A as an individual right to carry for defense of self, family and property. The Court went on to say that the State could regulate (to death) the practice of concealed carry but could not forbid the open carrying of lawful arms.

This case has been mentioned in passing by Gura in many of his briefs, but he has never gone into detail. Perhaps at some point, he will. I say this, because it stands as good law in the fight for carry in some form, openly or concealed.
 
Excellent summation. A (perhaps obvious) point would be that states like mine (NV) could, and have done both. (License for concealed and open carry for the unclean masses, as long as they are not prohibited)

I don't remember which case, but I think in one of his briefs Gura made the point that a state could choose to allow concealed carry but prohibit open carry, or could choose to allow open carry while prohibiting concealed carry.Take your pick. (Most states seem to prefer concealed carry, since open carry -- they claim -- gets people upset.)
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In re Brickey is a very short opinion. Nunn v. State GA 1848 http://www.constitution.org/2ll/bardwell/nunn_v_state.txt
is probably going to be one of the most cited cases by the court. Also remember in Heller the line about "Few laws in our nation's history come close to DC's, and some of those few have been struck down." They then explain GA's complete public carry ban and how the legislature can't ban both. The line about the few laws being struck down can only be construed as SCOTUS agreeing in Nunn's premise.
 
I don't think it was mentioned but this will be on the SCOTUS conference for April 12th(I'm guessing on the 15th we'll see if it gets cert, denied cert, or gets relisted).
 
I agree that Brickey is short. It is also to the point - some form of carry must be available to the people. The State may regulate only so far and no further.
 
Tom Servo said:
That said, when it comes to carrying a firearm in public, the court will listen to arguments about potential public-safety consequences, and it will have an effect on whatever opinion they reach.
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I think the Heller 5 will stick to heightened scrutiny, and potential public-safety BS will be left for the other 4 hand-wringers.

In any event, the best science currently suggests carry is of net benefit to society, so even if the other 4 were going to go with rational basis (which they're not, they're intellectually dishonest about the RKBA issue), they should vote in favor of carry.
 
There has never been a trial in any of these cases that established the "best science." Rather, on motions for summary judgment (which are to be granted only if there is no disputed issue of material fact), the trial courts have accepted the self-serving declarations of city/police officials as sufficient to carry the day on the burden of proof, presumably disregarding as irrelevant counter declarations by plaintiffs that seek to establish that the opinions of these officials are not supported by any evidence. The usual proclamation goes that more guns=more crime, and thus the (public entity) has a great public interest in limiting the number of guns in public in order to protect the public. You know, the old "there'll be blood in the streets if we allow concealed carry." Only Moore has concluded that these broad and unsupported allegations are not sufficient to satisfy intermediate scrutiny, and that there must be some factual showing that the restriction will in fact promote public safety.
 
I think the Heller 5 will stick to heightened scrutiny, and potential public-safety BS will be left for the other 4 hand-wringers.
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It's not that cut and dry. While one of the "Heller 5," I worry that Justice Kennedy could be swayed by public safety arguments.
 
Tom Servo said:
It's not that cut and dry. While one of the "Heller 5," I worry that Justice Kennedy could be swayed by public safety arguments.
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I certainly didn't mean to imply there's anything cut and dry about any SCOTUS decision. Kennedy, now as then, is the key swing vote. While the public safety arguments are wildly in favor of allowing carry, I would never be so blind as to state the facts matter to the Court. Kennedy, as with all the justices, will vote based on his personal beliefs, not what the Constitution says or what the facts show.
 
This case has made SCOTUSBlogs 'Petitions to watch' as the first highlighted case... featuring "petitions raising issues that Tom has determined to have a reasonable chance of being granted""At its April 12, 2013 Conference, the Court will consider petitions seeking review of issues such as Second Amendment limits on licensing restrictions for carrying handguns outside the home"http://www.scotusblo...-april-12-2013/tick...tock... time is running out for the antis I think.
 
Sadly I expected this. Politically this was a hot potato and I believe Roberts would rather avoid it given the judicial yoga he already performed in the interest of politics last year.
 
If I were a control advocate in any other May-Issue state I'd start looking at the differences and similarities between our Issue, and NY's to see what, if any, changes would be necessary.
 
This just gave Illinois license to copy New York's statute.
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Legally, perhaps. Politically, ain't gonna happen. There's way more than enough pro-gun IL legicritters to block any may-issue bill. And if no new law happens, the whole state goes Vermont Carry...so the grabbers are the ones strongly motivated to make a deal.

Here's how I see the fallout:

* Illinois: Madigan now has to calculate whether to appeal the state's loss in Moore to the US Supremes. If she doesn't the 7th Circuit's holding in Moore stands, which means all existing IL carry bans (open or concealed) vanish in...what, July, right? And it's dicey whether any new law will replace them at all, and if it does it'll be shall-issue, not may-issue.

* California: there are now three carry cases before the 9th Circuit, two involving California. Because the Supremes have decided not to do anything (yet) they now have no grounds to hold off those decisions. In both the California cases lower-court Federal judges said that fair access to concealed carry could be withheld only so long as open-carry (unloaded) was legal. Well the next year, the morons in the California legislature banned unloaded open carry. Whoops. So those are now major hot potatos.

* Hawaii: This is probably the only state now at risk of going may-issue based on the "logic" in Kachalski. Technically they're may-issue now, in practice they're zero-issue (which is at issue in the 9th Circuit case involving them, right?).

* Maryland: Alan Gura is trying for a reconsideration in Woolard en banc. With the US Supremes side-stepping the question for now there's a better chance of an en banc hearing.

* The Remaining May-Issue States: Alabama is now finally going formally shall-issue (via legislation) after being practically shall-issue for years. The remaining may-issue states will rely on Kachalsky for a while...Mass, DE and what, a few others left?

Upshot: I think the US Supremes are going to let things shake out in the lower courts a little more before speaking on this issue. I think they want to see what the Woolard en banc thing holds, see what the 9th does in their three cases, etc. Remember, the exact method of saying there's a "right to bear arms" is complex: is it a right to "Vermont Carry"? A right to open carry where concealed permits aren't a right? And so on.

I think (I sure as hell hope!) that Kachalski just came too early in the cycle.
 
It's an evil thing to say, but for the sake of all of us, I'd ALMOST prefer Alabama went the other way... May-Issue, specific reason, with a bit of Jim Crow application. We all know May-Issue has inherent discrimination involved. The problem is, that discrimination isn't as visible and vilified as it needs to be to be recognized by the people not directly involved and affected.
 
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