Palmer v. DC-- Adding Carry Rights to Heller

[Yellowfin]

The Palmer v. DC suit is underway and is essentially the third part of the Heller series. It's another Alan Gura case--that guy is not only brilliant and dedicated he is BUSY. The nuts and bolts of it is since you have to have a license in DC that's identical to a carry license in every other state just to have a pistol, it should go ahead and be a carry license because that's the common practice and there's no reason for it not to be.

Motion for Summary Judgement: http://www.archive.org/download/gov.uscourts.dcd.137887/gov.uscourts.dcd.137887.5.0.pdf
Memorandum for Support http://www.archive.org/download/gov.uscourts.dcd.137887/gov.uscourts.dcd.137887.5.1.pdf

Opposition's motion for Summary Judgement: http://www.hoffmang.com/firearms/palmer/DC-Opposition-MSJ-2009-09-09.pdf

This case supplements Heller and if it goes high enough, it can be part of the incorporation package which will then command states with no recognized right to carry--either at all or as an insiders only, Donald Trump and mayor's bodyguards and their favorite diamond brokers, lawyers, and judges system-- for the average citizen to open up for all lawful citizens. This means all states and cities MUST have one of the following: A. Vermont/Alaska system, B. Ohio/Pennsylvania unlicensed open carry and Shall Issue concealed carry, C. Florida/Texas no open carry but Shall Issue concealed carry or D. Wisconsin's no concealed carry but open carry legal. They have to pick one, they can't do what big cities of California, all of New Jersey, New York City, all of Maryland, all of Hawaii, or Illinois are doing which is insiders only privileged carry and nobody else has a chance. Shall Issue concealed carry is, in aggregate, the law of the land, and open carry is close to it. Basically this is to make official the conclusions reached individually upon sound interpretation of the Constitution we share in common.

 

[Tom Servo]

There's an ongoing discussion on Calguns, along with the documentation thus far.

Even with the right to "keep" arms nominally protected by Heller, the right to "bear" arms is still considered a privilege in precedent. This case is the first step towards changing that, though it'll likely be 2011 before SCOTUS hears it.

 

[ilbob]

tle 22. Criminal Offenses and Penalties. (Refs & Annos)

Subtitle VI. Regulation and Possession of Weapons.

Chapter 45. Weapons and Possession of Weapons. (Refs & Annos)

§ 22-4504.01. Authority to carry firearm in certain places and for certain purposes.



Notwithstanding any other law, a person holding a valid registration for a firearm may carry the firearm:

(1) Within the registrant's home;

(2) While it is being used for lawful recreational purposes;

(3) While it is kept at the registrant's place of business; or

(4) While it is being transported for a lawful purpose as expressly authorized by District or federal statute and in accordance with the requirements of that statute.

Seems to me that a reasonable reading of this statute would mean that a person with a valid registration could legally carry a firearm from home to business and back. This particular ordinance does not say the firearm has to be unloaded.

 

[Jim March]

Even with the right to "keep" arms nominally protected by Heller, the right to "bear" arms is still considered a privilege in precedent. This case is the first step towards changing that, though it'll likely be 2011 before SCOTUS hears it.

Correction: the right to bear arms CONCEALED is a privilege by precedent. The right to bear arms open-carry is another matter. See also the Heller case, footnote 9 for starters, also the Klein decision by the Ohio Supreme Court in 2003.

 

[Tom Servo]

Correction: the right to bear arms CONCEALED is a privilege by precedent. The right to bear arms open-carry is another matter. See also the Heller case, footnote 9 for starters, also the Klein decision by the Ohio Supreme Court in 2003

I wish that were true, but open carry remains verboten in Massachusetts and D.C., as well as in "free" states such as Florida and Texas.

While there are compelling sources of partial precedent and commentary (the Palmer case mentions Georgia and Alabama), those have not not stopped the above states from banning the practice.

I can open-carry in Virginia without a permit, but not neighboring Maryland. As it stands now, Virginia is extending me the privilege, while Maryland chooses not to. In practice, that's not a right.

Unfortunately, we'll probably need SCOTUS to affirm it. It saddens me that our elected governments need the courts to explain the Bill of Rights to them, but that's where we are.

 

[telcontar]

Tom,
There is nothing in the law of Massachusetts that forbids open carry.
It just isn't done in the more populated areas. You may get charged with a DC.
A lot of cops will just say conceal it.
I believe out in the western parts of the state people do open carry.

 

[Jim March]

I wish that were true, but open carry remains verboten in Massachusetts and D.C., as well as in "free" states such as Florida and Texas.

And that's because we don't have incorporation yet. Add incorporation to Heller and the various "Loaded Open Carry" bans are in deep trouble, literally from Hawaii to New York.

It could be challenged in Guam right now if somebody wanted to take it to court.

 

[Yellowfin]

I can open-carry in Virginia without a permit, but not neighboring Maryland. As it stands now, Virginia is extending me the privilege, while Maryland chooses not to. In practice, that's not a right.

It's a right that isn't recognized by current law in that place in this present time. A right is something that as a human being you should be free to do barring any misconduct upon your part which forfeits your ability to do so in accordance with due process of law. I have a right to defend my life if I were in Britain, the same right as if I were here, but they do not acknowledge it. That doesn't mean it isn't a human right, nor that somehow I became not human or did something wrong by going there. Rights are a transcending absolute. It just so happens that some governments, thankfully most of the states of this country, respect them more than others. You can have a right to do something that can be unjustly denied you at the time but that doesn't degrade your rights as a human being, though you may suffer as if you yourself were degraded.

The perfect example is the 14th Amendment. It didn't say "blacks now have the right to vote, speech, religion, assembly, etc." it said those rights cannot be disregarded. The rights were preexisting. The 2nd Amendment is the same way: "the right of the people to keep and bear arms shall not be infringed." Not "The people do have the right to keep and bear arms", meaning that the right is dependent upon that amendment being there, but that they already had it. If you are born into this world as a human being, it's yours. You might have to do a bit of wriggling in some countries to get past the artificial obstructions to get to where you can exercise it, but it is still there waiting for you to get to it. When you are exercising RKBA, you are doing what you are meant to be able to do, enjoying what you were meant to have. It is cruel, unnatural, and arbitrary to have that denied to any person by flat decree.

 

[Dust Monkey]

I would argue that carrying concealed is a right not a priviledge. The 2a does not specify. Keep and bear arms. Not keep and bear arm openly. I have no evidence to support that other than the plain statement if the 2A.

 

[Yellowfin]

Ah yes, but here we get into a bit of history. The issue of concealed versus open goes back to the matter of the 14th Amendment and Jim Crow as well. Some will detour into the days of riverboat gambling and crime, and there's some merit to that, but I won't at this time. A big reason we have concealed carry as having a historical precedent of requiring a license is interfering with RKBA on a racial bias. Open carry CAN be labeled as "disturbing the peace", but that's an entirely subjective call on the part of law enforcement. So, if they weren't particularly keen on blacks (or Irish, or Italians, or Poles, or Natives) being armed, say for instance to protect themselves against oppression which was known to happen, they could disarm and/or arrest them for creating a public disturbance-- interestingly, which is exactly what PD's in leftist controlled states who don't like citizens' carry rights will do about OC today. (In recent decades the hate is simply shifted to law abiding gun owners in general, not of any specific race.) Naturally the obvious solution to avoid this persecution was to conceal their guns, but seeing this of course the state legislatures outlawed concealed carry, as no one they thought who should be able to carry a gun should need to conceal it. The need for a permit to conceal carry is to have legal permission to do something that is illegal otherwise--the outlawing of concealed carry itself has not in fact been reversed, but relieved.

 

[Al Norris]

For those of you that are just joining this 2A debate, here's a recap of what Alan Gura has done and is doing now.

First we have Parker v. D.C. which converted to D.C. v. Heller when D.C. appealed. Gura won. It is now precedent (on the federal level) that the 2A is an individual right. The collective rights argument is now dead.

Then immediately (within minutes of the Heller decision) Gura filed McDonald v. Chicage (7th Circuit). Cert granted.

With the short lived win in the 9th for incorporation, we have Peña v. Cid (04-30-2009). A case designed to overturn the CA "Safe Handgun List." Click here to read about this case.

Then a few short days later (05-07-2009) Alan Gura filed Sykes v. McGinness. This case attacks the "may issue" status of CA CCW laws. Go here to read the Sykes Wiki page.

Donald Kilmer (Nordyke) is co-counsel in the above two cases. NorDyke is on hold, awaiting a decision in McDonald. Meanwhile, the Peña and Sykes cases are on hold, pending a decision in Nordyke.

Earlier, on March 9, 2009, Gura filed suit in D.C. on their adopting the CA Handgun Roster. That case has been combined with the NRA's "Heller II" case (Stephan Halbrook is the attorney), despite objections by Gura. This case is in its early stages.

Finally (or is it?), Alan Gura files Palmer v. DC on 08-06-2009. This is a case for carry permits (the bear arms part of the 2A) in D.C. Click here. This case is still in the earliest stages.

Should McDonald be incorporated (and the chances are very, very good), these cases will push the envelope of defining the scope of our 2A rights.

Mr. Gura is working this in a very methodical manner. He is being funded by the Second Amendment Foundation and the CalGuns Foundation. So, if you want to donate to something worthwhile, think of one or both of these fine organizations.

 

[bob.a]

If I was considering having another kid, Gura would be on the short list for names.

I hop he can do something about the "may (not!) issue" situation in Maryland. I have too much junk and too many ties to move, I'm afraid, though Virginia might be doable.

 

[Al Norris]

Assuming Incorporation, and assuming both Sykes and Palmer are wins, there is a very strong case that every other "may issue" State will become "shall issue."

I have good reason to think we will get incorporation... It is the nature of the case that was granted cert. After that, there is little legal argument left for any "may issue" statutes to survive.

 

[Tom Servo]

After that, there is little legal argument left for any "may issue" statutes to survive.

My only worry is that Heller's "sensitive places" clause isn't strictly defined. We could see states declaring just about everything a "sensitive place," as Georgia does with the nebulous "public gathering" clause.

Though their clout has fallen off dramatically the last few years, the Brady Campaign makes this argument:

Even if the Court were to hold the Second Amendment applicable to states and localities, such a ruling is unlikely to change the crucial holding by the Supreme Court in Heller that a wide range of reasonable gun laws are presumptively constitutional, and that the Second Amendment right is narrowly limited to guns in the home for self-defense.

Though I doubt they'll have much success, state governments in places like New York and Maryland may push this interpretation to the hilt.

 

[maestro pistolero]

What other fundamental, individual right is confined to the home? It will be an easy matter to establish a greater likelihood of an attack necessitating self defense outside of the home. However sacred a man's castle, it is seldom the most dangerous place we occupy.

 

[wally626]

Even if the Court were to hold the Second Amendment applicable to states and localities, such a ruling is unlikely to change the crucial holding by the Supreme Court in Heller that a wide range of reasonable gun laws are presumptively constitutional, and that the Second Amendment right is narrowly limited to guns in the home for self-defense.

The ruling from the SC was limited to keeping arms in the home, the second amendment is not. The word bear does not just mean a fuzzy animal.

The SC did give ground for restricting concealed carry. But at a minimum states should have to issue permits on a shall basis for either open or concealed carry but perhaps not for both.

 

[Al Norris]

Five posts, dealing with the 14th amendment and incorporation, moved from this thread into the Chicago thread.

 

[Al Norris]

Palmer's reply to D.C.'s opposition is here.

D.C. has filed a reply to their reply. Here.

If you read nothing else, read that last PDF file. Lot's of laughs in that one!

 

[maestro pistolero]

Some of my favorites:

Plaintiffs continue to misread Heller v. District of Columbia . . . The Supreme Court did not hold that the Second Amendment right
identified there is fundamental. While the Court used the word “fundamental” three times in its decision, it did not use it in its conclusion or holding.

Justice Scalia, carefully avoided the phrase "Simon says", therefore clearly didn't mean what he said.

For all their sloganeering, plaintiffs barely discuss Heller. Plaintiffs insist that Heller held that the “right to bear arms” encompasses the right to carry guns in public

Not really, but the amendment does that well enough on it's own, thank you very much.

Then:

The Supreme Court explicitly noted that its decision in Heller was not meant to reveal everything the Second Amendment allowed, 128 S.Ct. at 2816, but only decided the single issue before the Court—the District’s prohibition which “totally bans handgun possession in the
home.”

Thanks for reiterating that on our behalf. But wait, not content to leave a salient point un-contradicted:

there is a range of permissible approaches that may be valid, so long as “they do not impair the core conduct upon which the right was premised.” In any event, the right defined by plaintiffs cannot be broader than that already found by the Supreme Court, “the right of law-abiding, responsible citizens to use arms in defense of hearth and home.”

You know, like freedom of speech and religion in the home, freedom from cruel and unusual punishment in the home, and the unenumerated, but universally embraced: life, liberty and pursuit of happiness, in the home.

The District does not argue that a legislature’s assertion that a gun regulation is reasonable is conclusive. The question is what the core right is; the handgun prohibition in Heller plainly infringed on that core right, the regulations at issue here do not.

There IS rehab for DC lawyers? Better schedule another stay, as you're going back soon; your recovery was successful but incomplete.

 

[Al Norris]

Anyone catch the argument over traveling and carry?

To add another note, every single "defense" that D.C. has put forward, postulates laws and States that are not incorporated into the 2A.... Not just pre-Heller, but pre-Incorporation (We all know McDonald will incorporate, we just don't know by what means). I'm surprised they didn't raise Presser!