NYC CCW case is at SCOTUS!

[jcutonilli]

Justice Scalia, set concealed carry is not protected in concrete, when he states that the right is not unlimited and the VERY FIRST example he gives, is the fact that a majority of 19th century courts have ruled that carrying concealed firearms is NOT protected under the 2nd Amendment. For those that have concluded that, the opposite of that statement is true, are really a bunch of dingdongs. Remember, there was ABSOLUTELY no reason for the court to bring that up as an example, as Heller had nothing to do with concealed carry.

DC v. Heller, 554 U.S. 570 (2008)

"Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333.

For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. "

There is no right to carry concealed firearms, and the court in this case will NOT conclude that there is a right to carry concealed firearms outside the home. Open carry is the protected right to carry firearms outside the home.

I think you need to reread Heller. It did not set prohibitions on concealed carry "in concrete". If fact the very next sentence acknowledges that "we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment" They use it as an example of what was prohibited, but do not put that prohibition in context.

The reason that SCOTUS brought this up was because "this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field". They acknowledge the historical prohibitions so that people do not get the idea that it is an unlimited right. Other cases are needed to put this historical prohibition into perspective.

Unfortunately this case does not provide much of a perspective as to the historical prohibition. The dissent in Young certainly put this historical prohibition into perspective.

 

[jcutonilli]

Between then and now, before we became so multicultural, there was little need for an armed citizenry, as most people were on the same page regarding crimes against people, and it was understood that the police were there to benefit society, and enforce the rules that most everyone agreed were necessary.

While I agree about the concealed carry paragraphs, I would take exception about the need for an armed citizenry. I think we started with the thought that an organized armed citizenry was needed. Over time we have realized that we no longer need an organized army citizenry. We still need an armed citizenry though because the police don't actually protect individual citizens. It is still up to the individual citizen to protect themselves.

Yet another issue that is missing from the amicus briefs in this case.

Well, that's pretty much what I said; open with armed citizens, stable society in the middle years, new need now that we're no longer of one mind about how the society should function.

Putting the middle years paragraph last made sense to me when writing it; it seemed important to contrast the extremes before mentioning the more civilised portion of our existence; most readers here never experienced life in the US before 1968.

I would again disagree. What we have now is an armed citizenry. This armed citizenry is as important today as it was during the founding because the police don't really protect us as individuals. What was envisioned was an ORGANIZED armed citizenry and the need for an ORGANIZATION has gone away not the need for an armed citizenry.

 

[777GSOTB]

I think you need to reread Heller. It did not set prohibitions on concealed carry "in concrete". If fact the very next sentence acknowledges that "we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment" They use it as an example of what was prohibited, but do not put that prohibition in context.

The reason that SCOTUS brought this up was because "this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field". They acknowledge the historical prohibitions so that people do not get the idea that it is an unlimited right. Other cases are needed to put this historical prohibition into perspective.

Unfortunately this case does not provide much of a perspective as to the historical prohibition. The dissent in Young certainly put this historical prohibition into perspective.

If you want to twist your brain into thinking such follies, go for it, but if you think Justice Scalia was so intellectually weak, as to state the historical prohibition of concealed carry, ruled upon by a majority of 19th century courts, was that they concluded that it didn't violate the 2nd Amendment, but that, that was not necessarily true, that would be coming from one mentally twisted Jurist right there...Sorry, not coming from Justice Scalia. Funny thing though, to put this into perspective, the SCOTUS hasn't taken a single concealed carry case since Heller. Even the Peruta case, which completely violated the core 2nd Amendment right of self defense, they didn't take. But as we all know, that case involved a concealed carry license and it wasn't a rights violation at all. You would also think that there would be at least one open carry case without a license out there, but nope, not a single one since 2008 Heller.

You do realize that machine guns and shot barreled firearms, well at least shotguns, were banned in the Heller decision, right? If you think otherwise, please explain how they, REALLY, weren't banned in the Heller case, would love to hear that. Nope it wasn't an exhaustive case study of the right, but machine guns and short barreled firearms that weren't even a part of the case somehow got prohibited...Along with anything that is " dangerous and unusual ", even though the handgun Heller had was far from being " dangerous and unusual ". Yup, it was one narrow ruling.

Hey gun community, lets do some more licensed concealed carry cases, because what Justice Scalia said, just can't be true about 19th century courts ruling that concealed carry can be prohibited...It just can't be. We won't do any open carry cases, just because, but we'll stick with licensed concealed carry cases, even though the SCOTUS has already ruled a fundamental right can't be licensed through a license tax..nope, just can't be true.

 

[Bob A]

I would again disagree. What we have now is an armed citizenry. This armed citizenry is as important today as it was during the founding because the police don't really protect us as individuals. What was envisioned was an ORGANIZED armed citizenry and the need for an ORGANIZATION has gone away not the need for an armed citizenry.

What was the nature of the envisioned organised armed citizenry you mention, and whose vision was it? I assume it has been fulfilled by local and state police organisations?

Are you talking about "militias" as the organised armed citizenry? If so, how would that differentiate itself, in terms of its goals, from something more along the lines of a city's "night watch"?

A citizen army, along Swiss lines would of course be unnecessary today, as we have a standing military, probably to the distress of the Founders.

A local constabulary, officially organised, did not exist in the early days of the nation; it was too high a degree of organisation for the population density of the time.

The Watch existed in one form or another from the mid-1600s, but it was not noteworthy for its table of organisation, far as I'm aware. Once the population expanded over a sufficient area, greater organisation would be necessary to deal with the larger scale involved. I'm not sure that this level of organisation existed much before the second quarter of the 19th century.

 

[press1280]

Actually, I'm hoping that the plaintiffs lose on the basis that they sought the privileged activity of carrying concealed weapons, of which a state can prohibit altogether. It only makes sense that a state can place whatever restrictions it wants on a licensed activity, if it can prohibit that activity outright...But the progressive courts are getting wishy washy on this stuff. As they stated, they will address the, self defense need issue at hand, for getting a permit. So, I guess it would be an equal protection issue.

The problem with a win on a pure equal protection basis (no 2A implications) is that it becomes a rational basis test and the state will win those almost every time, especially in a case like this.
There has to be a constitutional right implicated to raise the scrutiny to a level where plaintiffs can win.
Remember that both sides are in agreement here that CCW is a viable exercise of the right. The court would have to essentially hijack the arguments and steer them toward something else.

 

[press1280]

I think you need to reread Heller. It did not set prohibitions on concealed carry "in concrete". If fact the very next sentence acknowledges that "we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment" They use it as an example of what was prohibited, but do not put that prohibition in context.

The reason that SCOTUS brought this up was because "this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field". They acknowledge the historical prohibitions so that people do not get the idea that it is an unlimited right. Other cases are needed to put this historical prohibition into perspective.

Unfortunately this case does not provide much of a perspective as to the historical prohibition. The dissent in Young certainly put this historical prohibition into perspective.

I would agree with this assessment and add that the context of public carry is different than it was in the 19th century. I don’t recall this scenario (OC banned and CCW licensed) until the Sullivan Law which is basically what this law is. The scenario didn’t exist at the time of Baldwin v Robertson.

 

[jcutonilli]

If you want to twist your brain into thinking such follies, go for it, but if you think Justice Scalia was so intellectually weak, as to state the historical prohibition of concealed carry, ruled upon by a majority of 19th century courts, was that they concluded that it didn't violate the 2nd Amendment, but that, that was not necessarily true, that would be coming from one mentally twisted Jurist right there...Sorry, not coming from Justice Scalia. Funny thing though, to put this into perspective, the SCOTUS hasn't taken a single concealed carry case since Heller. Even the Peruta case, which completely violated the core 2nd Amendment right of self defense, they didn't take. But as we all know, that case involved a concealed carry license and it wasn't a rights violation at all. You would also think that there would be at least one open carry case without a license out there, but nope, not a single one since 2008 Heller.

You do realize that machine guns and shot barreled firearms, well at least shotguns, were banned in the Heller decision, right? If you think otherwise, please explain how they, REALLY, weren't banned in the Heller case, would love to hear that. Nope it wasn't an exhaustive case study of the right, but machine guns and short barreled firearms that weren't even a part of the case somehow got prohibited...Along with anything that is " dangerous and unusual ", even though the handgun Heller had was far from being " dangerous and unusual ". Yup, it was one narrow ruling.

Hey gun community, lets do some more licensed concealed carry cases, because what Justice Scalia said, just can't be true about 19th century courts ruling that concealed carry can be prohibited...It just can't be. We won't do any open carry cases, just because, but we'll stick with licensed concealed carry cases, even though the SCOTUS has already ruled a fundamental right can't be licensed through a license tax..nope, just can't be true.

There is no need to twist your brain into thinking such follies, you just need to understand the 2A. I have never stated that the historical prohibitions were incorrectly decided. They certainly were appropriately decided for the time that they were decided. This is because concealed carry was not part of the right, when those cases were decided.

What you fail to understand is whether those circumstances that led to those historical prohibitions are still applicable. They are not still applicable. When you read the dissent in Young, you will see the reason for the prohibition was that concealed carry was not a legitimate form of carry in society at the time. It was something only criminals would do. In other words it would have been considered dangerous and unusual.

In todays society concealed carry is considered normal and open carry is sometimes frowned upon (which is why states like NY and CA ban it). The basis for the prohibitions (unusual for society ie dangerous and unusual) is still the appropriate way to determine whether something is part of the right. It is just that circumstances may have changed. SCOTUS acknowledges that you do not just look at history to figure out what the requirements are, you need to understand why so that changes in society can be incorporated without changing the underlying reasoning.

Peruta, like most 2A cases, was poorly argued. They never really addressed the problems that needed to be corrected. Peruta never explained why concealed carry should be accepted today given the historical prohibition. The dissent in Young provides that information.

 

[jcutonilli]

What was the nature of the envisioned organised armed citizenry you mention, and whose vision was it? I assume it has been fulfilled by local and state police organisations?

Are you talking about "militias" as the organised armed citizenry? If so, how would that differentiate itself, in terms of its goals, from something more along the lines of a city's "night watch"?

A citizen army, along Swiss lines would of course be unnecessary today, as we have a standing military, probably to the distress of the Founders.

A local constabulary, officially organised, did not exist in the early days of the nation; it was too high a degree of organisation for the population density of the time.

The Watch existed in one form or another from the mid-1600s, but it was not noteworthy for its table of organisation, far as I'm aware. Once the population expanded over a sufficient area, greater organisation would be necessary to deal with the larger scale involved. I'm not sure that this level of organisation existed much before the second quarter of the 19th century.

The vision was from the founders belief in the citizenry playing the primary role in the security of the nation. It includes the militia as well as the city night watch. One of the three reasons for calling forth the militia was to "execute the Laws of the Union"

Expanding populations made reliance on the citizenry impractical. It certainly has not been fulfilled by local and state police organizations. Private security is much larger in terms of numbers than public police and augments the public police. Even then individual citizens are still not protected. An armed citizenry is still needed to ensure that individual citizens are protected.

 

[kcbrown]

If you want to twist your brain into thinking such follies, go for it, but if you think Justice Scalia was so intellectually weak, as to state the historical prohibition of concealed carry, ruled upon by a majority of 19th century courts, was that they concluded that it didn't violate the 2nd Amendment, but that, that was not necessarily true, that would be coming from one mentally twisted Jurist right there...Sorry, not coming from Justice Scalia.

The historical decisions that SCOTUS cited stated their reasoning for upholding bans on concealed carry. A decision is valid as SCOTUS precedent only insofar as its reasoning remains valid. Once that reasoning is no longer valid, the decision is no longer valid either.

And the reasoning in those historical court decisions on concealed carry prohibitions is no longer valid. The reasoning of those courts is that only criminals would have interest in carrying concealed. But modern developments have proven that assertion to be false. Since the assertion is false, so is the reasoning of those courts when applied today, and thus their decisions are invalid in the current context.

Furthermore, if Scalia intended to state that concealed carry prohibitions were allowable today, he would have, directly, because he did call out other specific prohibitions as explicitly being allowable (or, more precisely, not called into question by Heller) today. He excluded concealed carry prohibitions from that list. That was not an accident.

On the flip side, however, SCOTUS explicitly stated that Constitutional rights are enshrined with the scope they had at the time of their adoption. Since the evidence seems to suggest that the founding generation considered concealed carry to not be within that scope, the only way out of it is if the scope includes the reasoning for that scope. If it does, then it's the reasoning that is enshrined, not just the conclusions that follow from that reasoning.

Taken together, that raises the possibility that SCOTUS, in Heller, considered concealed carry to be circumstantially within the protected right.


And you also have to answer the question of why SCOTUS bothered granting cert to the case if it really intends to hold that concealed carry is entirely outside the scope of the protected right. Remember that the reframed question is about whether or not the license denial violates the 2nd Amendment. Not whether it violates equal protection. If SCOTUS intended to simply assert what Peruta did then it would not have bothered to take the case at all. It would have denied cert and granted cert to Young.


With all that in mind, it's difficult to see how one can justify any claim that SCOTUS currently adheres to the view that concealed carry has no 2nd Amendment protection at all.

 

[wjackcooper]

Open, the 2A protected manner of carry?

A relevant quote from Heller is:

“ For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues.”*

The below (well researched and persuasive) article makes a lengthy, detailed argument (supported by pre-civil war cases) that open carry historically was and therefore (using an originalism approach) now is the only 2A sanctioned, protected method of carry. ** I saw no case cited that would refute Heller/MacDonald’s indorsement of the orginal meaning of the word “bear” as including . . . “in the pocket”. . . “for . . . defensive action.”***

At any rate, that “concealed weapons prohibitions” were (and are) permissible shows no more than “manner” of carry historically (in cultural context, as pointed out by press1280 and kcbrown) was (and still is) subject to regulation. That states could (and can) regulate “manner” of carry by choosing open, or concealed, or both in conjunction with mandatory permit issue for “self-defense” to otherwise qualified applicants and be Heller compliant should not be controversial. The critical question that I see is . . . can N.Y., having picked a manner of carry, get approval from five SC Justices for may issue?

Given five conservative Justices (as opposed to progressive Judges in the lower courts) . . . the ruling is apt to include: “ in the clothing or in a pocket “ is ok . . . and “shall issue” to those, otherwise qualified and requesting a permit “for . . . defensive action “ (i.e., “self-defense” ).

I don’t see where the concealed v. open issue was raised in the briefs (i.e., arguments prepared by some of the most experienced, able lawyers in the country). Perhaps I missed it, any help would be appreciated. In the absence of a supporting brief it looks like the open carry argument might be a tempest in a teacup. In the unlikely event “manner of carry” somehow becomes the controlling issue and then somehow “open” becomes the only method supported by the 2A, the end result ought to be little old ladies on 5th Ave. sporting strapped on six-shooters . . . who here would then object? ****

Regards
Jack

*Heller: https://www.supremecourt.gov/opinions/07pdf/07-290.pdf p. 54
Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

**Yale Law Journal - Open Carry for All: Heller and Our Nineteenth-Century Second Amendment (2014)
https://www.yalelawjournal.org/note...r-and-our-nineteenth-century-second-amendment

***Heller: https://www.supremecourt.gov/opinions/07pdf/07-290.pdf p. 10 and p. 11
“In Muscarello v. United States, 524 U. S. 125 (1998), in the course of analyzing the meaning of “carries a firearm” in a federal criminal statute, JUSTICE GINSBURG wrote that “urely a most familiar meaning is, as the Constitution’s Second Amendment . . . indicate: ‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.’”

****The Top 10 Six-Shooters of All Time https://www.outdoorlife.com/top-10-six-shooters-all-time/

 

[jcutonilli]

A relevant quote from Heller is:

“ For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues.”*

The below (well researched and persuasive) article makes a lengthy, detailed argument (supported by pre-civil war cases) that open carry historically was and therefore (using an originalism approach) now is the only 2A sanctioned, protected method of carry. ** I saw no case cited that would refute Heller/MacDonald’s indorsement of the orginal meaning of the word “bear” as including . . . “in the pocket”. . . “for . . . defensive action.”***

At any rate, that “concealed weapons prohibitions” were (and are) permissible shows no more than “manner” of carry historically (in cultural context, as pointed out by press1280 and kcbrown) was (and still is) subject to regulation. That states could (and can) regulate “manner” of carry by choosing open, or concealed, or both in conjunction with mandatory permit issue for “self-defense” to otherwise qualified applicants and be Heller compliant should not be controversial. The critical question that I see is . . . can N.Y., having picked a manner of carry, get approval from five SC Justices for may issue?

Given five conservative Justices (as opposed to progressive Judges in the lower courts) . . . the ruling is apt to include: “ in the clothing or in a pocket “ is ok . . . and “shall issue” to those, otherwise qualified and requesting a permit “for . . . defensive action “ (i.e., “self-defense” ).

I don’t see where the concealed v. open issue was raised in the briefs (i.e., arguments prepared by some of the most experienced, able lawyers in the country). Perhaps I missed it, any help would be appreciated. In the absence of a supporting brief it looks like the open carry argument might be a tempest in a teacup. In the unlikely event “manner of carry” somehow becomes the controlling issue and then somehow “open” becomes the only method supported by the 2A, the end result ought to be little old ladies on 5th Ave. sporting strapped on six-shooters . . . who here would then object? ****

Regards
Jack

*Heller: https://www.supremecourt.gov/opinions/07pdf/07-290.pdf p. 54
Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

**Yale Law Journal - Open Carry for All: Heller and Our Nineteenth-Century Second Amendment (2014)
https://www.yalelawjournal.org/note...r-and-our-nineteenth-century-second-amendment

***Heller: https://www.supremecourt.gov/opinions/07pdf/07-290.pdf p. 10 and p. 11
“In Muscarello v. United States, 524 U. S. 125 (1998), in the course of analyzing the meaning of “carries a firearm” in a federal criminal statute, JUSTICE GINSBURG wrote that “urely a most familiar meaning is, as the Constitution’s Second Amendment . . . indicate: ‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.’”

****The Top 10 Six-Shooters of All Time https://www.outdoorlife.com/top-10-six-shooters-all-time/

The problem is that the briefs do not answer the question that was presented to them.

Petition GRANTED limited to the following question: Whether the State's denial of petitioners' applications for concealed-carry licenses for self-defense violated the Second Amendment.

How can you consider the lawyers "able" when you cannot find where they answered the question presented to them by SCOTUS?

Open carry is not part of the issue that SCOTUS is addressing in this case.

The Yale Law Journal did not do a very through job with respect to why concealed carry was historically prohibited and ignored the reasons why concealed carry was prohibited in many of the antebellum cases. The dissent in Young does a more through job and looks at the numerous examples of why concealed carry was prohibited. The journal article did not do a good job of figuring out if circumstances has changed.

Presenting open carry over concealed carry misrepresents what is actually protected by the right and potentially make future case harder because of a distorted view of the right.

 

[press1280]

A relevant quote from Heller is:

“ For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues.”*

The below (well researched and persuasive) article makes a lengthy, detailed argument (supported by pre-civil war cases) that open carry historically was and therefore (using an originalism approach) now is the only 2A sanctioned, protected method of carry. ** I saw no case cited that would refute Heller/MacDonald’s indorsement of the orginal meaning of the word “bear” as including . . . “in the pocket”. . . “for . . . defensive action.”***

At any rate, that “concealed weapons prohibitions” were (and are) permissible shows no more than “manner” of carry historically (in cultural context, as pointed out by press1280 and kcbrown) was (and still is) subject to regulation. That states could (and can) regulate “manner” of carry by choosing open, or concealed, or both in conjunction with mandatory permit issue for “self-defense” to otherwise qualified applicants and be Heller compliant should not be controversial. The critical question that I see is . . . can N.Y., having picked a manner of carry, get approval from five SC Justices for may issue?

Given five conservative Justices (as opposed to progressive Judges in the lower courts) . . . the ruling is apt to include: “ in the clothing or in a pocket “ is ok . . . and “shall issue” to those, otherwise qualified and requesting a permit “for . . . defensive action “ (i.e., “self-defense” ).

I don’t see where the concealed v. open issue was raised in the briefs (i.e., arguments prepared by some of the most experienced, able lawyers in the country). Perhaps I missed it, any help would be appreciated. In the absence of a supporting brief it looks like the open carry argument might be a tempest in a teacup. In the unlikely event “manner of carry” somehow becomes the controlling issue and then somehow “open” becomes the only method supported by the 2A, the end result ought to be little old ladies on 5th Ave. sporting strapped on six-shooters . . . who here would then object? ****

Regards
Jack

*Heller: https://www.supremecourt.gov/opinions/07pdf/07-290.pdf p. 54
Like most rights, the Second Amendment right is not unlimited. It is not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose: For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues. The Court’s opinion should not be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

**Yale Law Journal - Open Carry for All: Heller and Our Nineteenth-Century Second Amendment (2014)
https://www.yalelawjournal.org/note...r-and-our-nineteenth-century-second-amendment

***Heller: https://www.supremecourt.gov/opinions/07pdf/07-290.pdf p. 10 and p. 11
“In Muscarello v. United States, 524 U. S. 125 (1998), in the course of analyzing the meaning of “carries a firearm” in a federal criminal statute, JUSTICE GINSBURG wrote that “urely a most familiar meaning is, as the Constitution’s Second Amendment . . . indicate: ‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.’”

****The Top 10 Six-Shooters of All Time https://www.outdoorlife.com/top-10-six-shooters-all-time/

I don't think you missed it at least in regards to the actual plaintiffs and defendants (an amicus may dive into that, IDK). The court doesn't need to go somewhere on a point that both sides agree on. It's just like Wrenn from the DC circuit. All sides (plaintiffs,defendants,court majority AND minority) conceded carrying concealed was a valid exercise of the right and that the disagreement was on qualifications to get the permit.

 

[press1280]

The problem is that the briefs do not answer the question that was presented to them.


How can you consider the lawyers "able" when you cannot find where they answered the question presented to them by SCOTUS?

Open carry is not part of the issue that SCOTUS is addressing in this case.

The Yale Law Journal did not do a very through job with respect to why concealed carry was historically prohibited and ignored the reasons why concealed carry was prohibited in many of the antebellum cases. The dissent in Young does a more through job and looks at the numerous examples of why concealed carry was prohibited. The journal article did not do a good job of figuring out if circumstances has changed.

Presenting open carry over concealed carry misrepresents what is actually protected by the right and potentially make future case harder because of a distorted view of the right.

I think a lot of this is semantics. The only issue here is that NY says they can regulate carry to the point of banning one form (OC) and rationing the other (CC) to the point where only a small subset of the population can qualify, which is the inverse of how its supposed to work.
Why spend a whole lot of space arguing something the other side has already conceded?
It's going to come down to can NY successfully defend a law that rations a constitutional right?

 

[jcutonilli]

I think a lot of this is semantics. The only issue here is that NY says they can regulate carry to the point of banning one form (OC) and rationing the other (CC) to the point where only a small subset of the population can qualify, which is the inverse of how its supposed to work.
Why spend a whole lot of space arguing something the other side has already conceded?
It's going to come down to can NY successfully defend a law that rations a constitutional right?

You are misunderstanding the question and what the other side is arguing. The question is not really about rationing a constitutional right, it is about whether concealed carry is really part of the right. Something Heller suggests is not part of the right based on history (which our side says is the appropriate way to determine the right).

NYS's position is essentially the same as the en banc Young majority. Concealed weapons are not part of the right so there can be no infringement. How they regulate such weapons are up to the state because of this.

The real problem is that there is some truth to the other sides position. I don't believe the other side is correct because times have changes, but our side has not really made that argument.

 

[press1280]

You are misunderstanding the question and what the other side is arguing. The question is not really about rationing a constitutional right, it is about whether concealed carry is really part of the right. Something Heller suggests is not part of the right based on history (which our side says is the appropriate way to determine the right).

NYS's position is essentially the same as the en banc Young majority. Concealed weapons are not part of the right so there can be no infringement. How they regulate such weapons are up to the state because of this.

The real problem is that there is some truth to the other sides position. I don't believe the other side is correct because times have changes, but our side has not really made that argument.

I would look at NY's BIO, check the section pertaining to Moore v. Madigan. They're clearly trying to distance themselves from that opinion by pointing out the IL law at the time was a flat ban but the NY law was "measured".
Also look at how they tried to create the illusion that the DC law in Wrenn was somehow miles apart from theirs.
I do not see how that can be read as anything other than NY:

1) Is taking a position that a flat carry ban is impermissible under the 2A
2) Banning open carry but allowing CC to those who prove a "need" IS permissible

Granted the Young opinion came out after the BIO was filed, but at this late stage can NY really turn around now and say that we change our theory of the case and now support the Young majority opinion?

 

[Occam]

but at this late stage can NY really turn around now and say that we change our theory of the case and now support the Young majority opinion?

But the court’s not really in the business of saying, “Hey, didn’t you say something different last time you were in here?” They rule on what’s before them, not WHO is before them, with a memory of previous arguments (unless the current case flows directly from the previous case in some way).

 

[delaware_export]

Between NY NJ and HI CA it all seems like a 100% ban on an average law abiding citizen possessing a firearm outside of his home. Period. Emphasis on HI and the 9th circus cases. HI has never met a good cause that was good enough.

That doesn’t seem to be regulation. That’s a ban. Add that to the rulings that say .gov has zero requirement/responsibility/accountability to protect any person. Or for failure to protect.

Factor in government that purposely abandons citizens to attacks as we’ve seen many times in the last 2 years.

Seems like they, the courts, want to exist in a vacuum of circuitous arguments of one point cases and denying that the other points exist and that they all interact.

 

[press1280]

But the court’s not really in the business of saying, “Hey, didn’t you say something different last time you were in here?” They rule on what’s before them, not WHO is before them, with a memory of previous arguments (unless the current case flows directly from the previous case in some way).

I'm not going back to previous cases, we're talking about THIS case's arguments all the way from the district through the appeals court up until now.
We've seen litigants try to bring up arguments at late stages and get shot down by the court. I don't know if that applies here or not since this is from defendants, not plaintiffs.

 

[press1280]

Between NY NJ and HI CA it all seems like a 100% ban on an average law abiding citizen possessing a firearm outside of his home. Period. Emphasis on HI and the 9th circus cases. HI has never met a good cause that was good enough.

That doesn’t seem to be regulation. That’s a ban. Add that to the rulings that say .gov has zero requirement/responsibility/accountability to protect any person. Or for failure to protect.

Factor in government that purposely abandons citizens to attacks as we’ve seen many times in the last 2 years.

Seems like they, the courts, want to exist in a vacuum of circuitous arguments of one point cases and denying that the other points exist and that they all interact.

It's effectively the inverse of how rights work. The government essentially acts as a gatekeeper of the right and allows it only to those it deems worthy. It's always noted that the "need" provision means some kind of danger for the applicant that sets them apart from the public at large.
Well, the public at large is supposed to be the ones who are supposed to be exercising the right, not a small subset of the population.

 

[jcutonilli]

I would look at NY's BIO, check the section pertaining to Moore v. Madigan. They're clearly trying to distance themselves from that opinion by pointing out the IL law at the time was a flat ban but the NY law was "measured".
Also look at how they tried to create the illusion that the DC law in Wrenn was somehow miles apart from theirs.
I do not see how that can be read as anything other than NY:

1) Is taking a position that a flat carry ban is impermissible under the 2A
2) Banning open carry but allowing CC to those who prove a "need" IS permissible

Granted the Young opinion came out after the BIO was filed, but at this late stage can NY really turn around now and say that we change our theory of the case and now support the Young majority opinion?

I think you are missing WHY banning open carry but allowing CC is permissible. Both Moore and Wren are in the split isn't real section. This section is about simply looking at differences between the cases to demonstrate that they are different and there really isn't a split.

The reasons why NYS thinks NY's laws are correct is listed in reason III (why the decision is correct) Reason III.A demonstrates that they believe history and tradition show that the decision is correct, which is the same type of reasoning found in the Young en banc majority opinion.

I have not done a detailed comparison between the Young majority opinion and the reasons listed in reason III.A of the BIO, but they do seem similar based on my recollection and do not appear to be any appreciable change in their theory.