NYC CCW case is at SCOTUS!

PO2012 said:

There's a lot of pessimism in this thread and I understand it. I was born and raised in NY. Before I moved to MD I had an unrestricted carry permit so I know first hand how onerous the system is.

My prediction is that SCOTUS will strike down so called good cause or proper cause requirements leaving all the other components of current licensing schemes intact.

Where I respectfully disagree with the other posters is when it comes to how MD will react. I don't think they'll challenge the issue at all in court, nor do I believe they will raise the fees for a W&C permit or harass applicants with long wait times.

In my opinion, MD will make the W&C permit as difficult to obtain and as worthless as possible by imposing far more substantial training requirements than they do now in addition to putting as many locations off limits as they can possibly get away with.

Imagine a requirement for 96 hours of training, at least 16 hours of which are live fire with a requirement to move and shoot and expend oh, let's say, 2,000 rounds. And this training must all be completed within 30 days. That would deter a lot of people due to time and expense and I guarantee no court would ever strike such a requirement down.

So called sensitive areas are another issue. If you want a preview of what MD will do, look at Illinois: no carry in parks or nature areas, on public transit, amusement parks, restaurants that serve alcohol and on and on. Basically, you can carry to the grocery store and the bank. Obviously that's an oversimplification but not by much.

I think this case will be a victory but I think it will be an imperfect victory.

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This is what I said up thread

They will maliciously comply and make it so damned hard to get that most people won't

PO2012 said:

I think this case will be a victory but I think it will be an imperfect victory.

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"They" are playing the incrementalism card. Why shouldn't we?

jcutonilli said:

I believe most state constitutions were written like KY and the 2A in broad general statements.

Bliss demonstrated was possible to interpret these broad statements in ways that conflicted with what was envisioned. They needed to be changed to reflect what was envisioned because what was written was too broad.

If the broad general statements did include concealed carry then there would be no need to change anything because it was already written broad enough.

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Kind of makes my point. The BoR was written quite broadly and obviously didn’t allow for ALL speech, exc.
But Bliss found it did cover CC and of that founding generation were there laws barring CC?

press1280 said:

Kind of makes my point. The BoR was written quite broadly and obviously didn’t allow for ALL speech, exc.
But Bliss found it did cover CC and of that founding generation were there laws barring CC?

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IIRC, in historical context concealed carry was viewed as shady. Open carry was just fine.

teratos said:

IIRC, in historical context concealed carry was viewed as shady. Open carry was just fine.

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Shady perhaps but illegal?

press1280 said:

Shady perhaps but illegal?

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No, I don't think so. Here's proof.

Bliss v. Commonwealth (1822, Kentucky.) addressed the right to bear arms pursuant to Art. 10, Sec. 23 of the Second Constitution of Kentucky (1799): "That the right of the citizens to bear arms in defence of themselves and the state, shall not be questioned."

The act provides, that any person in this commonwealth, who shall hereafter wear a pocket pistol, dirk, large knife, or sword in a cane, concealed as a weapon

press1280 said:

Kind of makes my point. The BoR was written quite broadly and obviously didn’t allow for ALL speech, exc.
But Bliss found it did cover CC and of that founding generation were there laws barring CC?

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You seem to be missing the point. You correctly point out that the 1A was written broadly and OBVIOUSLY DIDN'T ALLOW ALL SPEECH. If we apply the Bliss argument to the 1A you would come to a different conclusion. Bliss would say that ALL SPEECH IS ALLOWED because there are no limitations written into the 1A.

If the Bliss argument became accepted, you would likely see court provide different explanations about why it was OBVIOUS NOT ALL SPEECH IS ALLOWED and states try and modify their constitution to address this issue. This is exactly what the courts and states did with respect to concealed carry.

jcutonilli said:

The law in question was apparently passed in 1813, the case was in 1822, and the constitution was changed in 1850. Apparently MO, NC, CO, MT, NM, KY, LA, MS and ID have or had language in their constitution that allowed the regulation of concealed carry. There appear to be a number of states that restricted concealed carry before Bliss was decided including LA, IN, TN. A total of 38 states regulated concealed carry in the 1800s.

TNs law was not challenged until 1840 and was upheld, as has any other concealed carry law to my knowledge.

Why did it take almost 10 years to challenge the KY law and almost 20 years to challenge the TN law? Where are the challenges to the IN law?

I have a hard time giving much weight to Bliss given the overwhelming amount of contradicting evidence.

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To the degree that the contradicting evidence originates from the founding generation, your inclinations here are right, I think.

That said, it should be noted that, firstly, politicians are often inclined to pass laws to appeal to minority groups, so the presence of a law is most certainly not indicative of its majority support; and secondly, absence of majority support is not the same as active majority opposition, but it's the latter, and not the former, that's needed for a law to be legislatively struck (well, unless there's some "special interest" minority with a bunch of political influence that is also actively opposed to it). The point being that you can't use the presence of a law, even if it goes unchallenged, as an indication that the law reflects the thinking of the majority -- it only means that the majority doesn't have sufficient opposition to it to affect the political landscape.

So if the majority believed that concealed carry was "bad form" but didn't actively believe it should be illegal, and the politicians then made it illegal, it's likely that the majority wouldn't object terribly to that, despite their lack of belief that it should be illegal.

But that said, I suppose one could still legitimately conclude that the majority wouldn't, in those circumstances, believe that concealed carry was part of the right to bear, since a belief that something is a right usually results in active opposition to laws which forbid it. Then again, that conclusion could easily be a stretch. Consider "hate speech", for instance. A law forbidding it would probably not receive majority opposition even if most people believe it, at some level, to be a right. People are fickle creatures.

All of this ultimately adds a great deal of uncertainty as to how the founding generation actually thought about concealed carry. And if there's sufficient uncertainty about something which otherwise, per the plain meaning of the terms, is part of the right, then one should simply presume it to be part of the right and go from there. That is what presumption of liberty demands.

Heller defined "bear" to mean "carry" and more specifically "carrying for a particular purpose—confrontation"

Heller did not explicitly include concealed carry, it is simply a subset of carry.

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Do you think "or in the clothing or in a pocket" refers to some sort of new form of carry that none of us are aware of? That is an explicit part of the definition used in Heller.

The definition covers carry in general but explicitly talks about concealed carry (and open carry as well: "upon the person"). And that's the point: the definition that the Court uses for the 2nd Amendment's meaning of "bear" explicitly includes concealed carry. And if that definition includes concealed carry, then logically so does the 2nd Amendment's commandment that it shall not be infringed.

Heller, of course, is not without its internal contradictions, but nothing in it rises to the level of an explicit declaration that concealed carry prohibitions are allowable, only that they have been regarded that way by state courts in the past.

Everything hinges on the understanding of the right on the part of the founding generation and, especially, the reasons for that understanding.

I believe the acknowledgement of the concealed carry prohibitions were included to demonstrate that the right was not unlimited. They did not explicitly announce that those prohibitions are constitutional today because of the fact that concealed carry is accepted today. I don't believe they understood how to resolve this contradiction and did not need to resolve this contradiction to resolve the case.

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I agree with you on this, and that is my assessment as well, though I might go a bit further and say that modern experience has shown the reasoning behind the earlier prohibitions to be incorrect, and that provides additional reason to refrain from saying that concealed carry prohibitions are Constitutional today.

I gave them a way to resolve the conflict when I wrote my Young Amicus Brief.

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I'm going to have to go back and have a look at that. I believe I've read your Duncan brief but not your Young brief. If the latter is anything like the former, it'll make for an excellent read.

kcbrown said:

To the degree that the contradicting evidence originates from the founding generation, your inclinations here are right, I think.

I'm going to have to go back and have a look at that. I believe I've read your Duncan brief but not your Young brief. If the latter is anything like the former, it'll make for an excellent read.

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kcbrown. here it is. I agreed with John

pcfixer said:

kcbrown. here it is. I agreed with John

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Fantastic, thanks!

I did find John's original link to it, but it's useful to have it right here for others who might not be able to find it.

It's an excellent read. Highly recommended.

jcutonilli said:

You seem to be missing the point. You correctly point out that the 1A was written broadly and OBVIOUSLY DIDN'T ALLOW ALL SPEECH. If we apply the Bliss argument to the 1A you would come to a different conclusion. Bliss would say that ALL SPEECH IS ALLOWED because there are no limitations written into the 1A.

If the Bliss argument became accepted, you would likely see court provide different explanations about why it was OBVIOUS NOT ALL SPEECH IS ALLOWED and states try and modify their constitution to address this issue. This is exactly what the courts and states did with respect to concealed carry.

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All speech is allowed though. The only restrictions on speech are time, place & manner. I can say whatever I want to whomever I choose in any public public place. Including DC and Manhattan. I may not be allowed to use a bull horn. I may also be required to keep my clothes on. But I can say anything. And I can do so without a permit or a tax stamp.

I’ve heard auctioneers that may have to register themselves as bump stocks.

kcbrown said:

To the degree that the contradicting evidence originates from the founding generation, your inclinations here are right, I think.

That said, it should be noted that, firstly, politicians are often inclined to pass laws to appeal to minority groups, so the presence of a law is most certainly not indicative of its majority support; and secondly, absence of majority support is not the same as active majority opposition, but it's the latter, and not the former, that's needed for a law to be legislatively struck (well, unless there's some "special interest" minority with a bunch of political influence that is also actively opposed to it). The point being that you can't use the presence of a law, even if it goes unchallenged, as an indication that the law reflects the thinking of the majority -- it only means that the majority doesn't have sufficient opposition to it to affect the political landscape.

So if the majority believed that concealed carry was "bad form" but didn't actively believe it should be illegal, and the politicians then made it illegal, it's likely that the majority wouldn't object terribly to that, despite their lack of belief that it should be illegal.

But that said, I suppose one could still legitimately conclude that the majority wouldn't, in those circumstances, believe that concealed carry was part of the right to bear, since a belief that something is a right usually results in active opposition to laws which forbid it. Then again, that conclusion could easily be a stretch. Consider "hate speech", for instance. A law forbidding it would probably not receive majority opposition even if most people believe it, at some level, to be a right. People are fickle creatures.

All of this ultimately adds a great deal of uncertainty as to how the founding generation actually thought about concealed carry. And if there's sufficient uncertainty about something which otherwise, per the plain meaning of the terms, is part of the right, then one should simply presume it to be part of the right and go from there. That is what presumption of liberty demands.

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There certainly is not anything definitive about concealed carry, but the totality of the evidence does suggest that it was not part of the right.

Bliss does not really address the issue of concealed carry directly, the opinion was based on the lack of identified limits

Do you think "or in the clothing or in a pocket" refers to some sort of new form of carry that none of us are aware of? That is an explicit part of the definition used in Heller.

The definition covers carry in general but explicitly talks about concealed carry (and open carry as well: "upon the person"). And that's the point: the definition that the Court uses for the 2nd Amendment's meaning of "bear" explicitly includes concealed carry. And if that definition includes concealed carry, then logically so does the 2nd Amendment's commandment that it shall not be infringed.

Heller, of course, is not without its internal contradictions, but nothing in it rises to the level of an explicit declaration that concealed carry prohibitions are allowable, only that they have been regarded that way by state courts in the past.

Everything hinges on the understanding of the right on the part of the founding generation and, especially, the reasons for that understanding.

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"In the clothing or in a pocket" does not necessarily mean concealed. Concealed tends to mean totally concealed. "In the clothing or in a pocket may refer to partially concealed arms.

In any case, it is used to define the term "bear" and not to define the limits of the right to which it refers. One can "bear" or carry to illegally kill someone, but I don't believe anyone would consider that protected by the 2A.

HaveBlue said:

All speech is allowed though. The only restrictions on speech are time, place & manner. I can say whatever I want to whomever I choose in any public public place. Including DC and Manhattan. I may not be allowed to use a bull horn. I may also be required to keep my clothes on. But I can say anything. And I can do so without a permit or a tax stamp.

I’ve heard auctioneers that may have to register themselves as bump stocks.

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Allow is not the most precise word in this situation. I would use the term protected. Not all speech is protected by the 1A. https://en.wikipedia.org/wiki/Freedom_of_speech

common limitations or boundaries to freedom of speech relate to libel, slander, obscenity, pornography, sedition, incitement, fighting words, classified information, copyright violation, trade secrets, food labeling, non-disclosure agreements, the right to privacy, dignity, the right to be forgotten, public security, and perjury.

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Time, place and manner apply to all speech as long as it is applied in a content neutral manner. A permit may be required depending on circumstances such as a parade or gathering.

Taking your cloths off may not necessarily be pornography. I would consider it hate speech, which is protected except in the case of imminent violence.

jcutonilli said:

There certainly is not anything definitive about concealed carry, but the totality of the evidence does suggest that it was not part of the right.

Bliss does not really address the issue of concealed carry directly, the opinion was based on the lack of identified limits

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Huh? The law before the Bliss court was explicitly about concealed carry. Of course the decision addresses the issue of concealed carry directly. How could it not when its purpose was to render judgment on that very issue?

"In the clothing or in a pocket" does not necessarily mean concealed.

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It does not always mean "completely concealed". But it includes "completely concealed", as well as "partially concealed".

At this point you're going beyond the ordinary meaning of the terms used, using unusual situations (most of the time, those who conceal their arms do so completely) to escape the plain meaning of the wording the Court intentionally used.

Concealed tends to mean totally concealed. "In the clothing or in a pocket may refer to partially concealed arms.

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There's a wide range of laws on this. Some concealed carry laws forbid carry (at least without a license) if the weapon is even partially concealed, with the exception of the weapon being obscured by its holster. As such, "concealed" can, depending on the law, actually include partial concealment.

And sure, the words the Court used can refer to partial concealment, but to insist on that subset alone as the conferred meaning is to insist on something other than the ordinary meaning of the words. If the Court intended the words to be limited to a subset of the ordinary meaning they convey, I fully expect it to say as much. It didn't, and therefore fully concealed carry is most certainly included because the words most certainly include that even if the phrase in question doesn't exclusively mean that.

In any case, it is used to define the term "bear" and not to define the limits of the right to which it refers.

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It's true that the definition doesn't fully define the limits of the right. But if the intentionally chosen definition explicitly includes something, as it does here, then it is disingenuous to later claim that said included thing is not referenced by the very text (here, that of the 2nd Amendment) that makes use of the term.

One can "bear" or carry to illegally kill someone, but I don't believe anyone would consider that protected by the 2A.

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That's a distinction without a difference, something that is generally knowable only in hindsight. And in any case, even if/when it is knowable in advance, it is not the carry itself that is at issue, it is the intent to offensively do harm that is. The 2nd Amendment protects your right to carry. It doesn't protect your right to use arms, or plan to use arms, in an offensive manner.

I love how our resident legal experts are splitting hairs about what's what when we have absolutely no idea how SCOTUS is ultimately going to rule on this, or why.

trickg said:

I love how our resident legal experts are splitting hairs about what's what when we have absolutely no idea how SCOTUS is ultimately going to rule on this, or why.

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They need something to pass the time with until next year.

trickg said:

I love how our resident legal experts are splitting hairs about what's what when we have absolutely no idea how SCOTUS is ultimately going to rule on this, or why.

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So we should discuss more important things like
https://www.mdshooters.com/showthread.php?t=256471
https://www.mdshooters.com/showthread.php?p=6303881#post6303881

jcutonilli said:

So we should discuss more important things like
https://www.mdshooters.com/showthread.php?t=256471
https://www.mdshooters.com/showthread.php?p=6303881#post6303881

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He has a great point

Bertfish said:

jcutonilli said:

So we should discuss more important things like
https://www.mdshooters.com/showthread.php?t=256471
https://www.mdshooters.com/showthread.php?p=6303881#post6303881

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He has a great point

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Does he though? At least we can discuss the other with without having to actually know the law. The armchair barristers here are unreal, and the simple truth is, we have no idea what direction this is going to go, or what cases or writings are going to be cited as precedent. I'm actually a bit scared about this case - if it's ruled against us, we're kind a screwed from this point forward don't you think? I sure as hell hope that this case is watertight.

I love how you referenced a specific post I made. I apologize if I have a better memory than most of you, and shared the reference that Teratos made. I didn't start that thread - I only posted in it. FWIW, it seems to me that the thread in question is discussing the erosion of societal morals and ethics, and the other widespread problems that "progressivism" is creating. But hey, what do I know, right?

But what I won't do in this thread is pretend that I'm some kind of legal eagle who knows what's what, because I'm not. Can't tell you the the number of times I've posted something with the disclaimer, "IANAL."

Again, I hope this case breaks in our favor, but we've suffered so many defeats at the hands of the courts in the last 5-7 years, that I don't have much faith that it will.

HaveBlue said:

All speech is allowed though. The only restrictions on speech are time, place & manner. I can say whatever I want to whomever I choose in any public public place. Including DC and Manhattan. I may not be allowed to use a bull horn. I may also be required to keep my clothes on. But I can say anything. And I can do so without a permit or a tax stamp.

I’ve heard auctioneers that may have to register themselves as bump stocks.

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Nope. You can’t defame someone. You also can’t issue threats of violence. A court would weigh in how imminent the threat of violence is or intention to intimidate.

If the nature of the speech is communication of a criminal conspiracy that also isn’t legal.

Speech is still regulated by the government and the constitution is clear some of that is fine. The rest SCOTUS has agree is not protected speech over the centuries. A lot of since
The early days.