NYC CCW case is at SCOTUS!

press1280 said:

This would seem to be a non-starter. Almost all pistols today are concealable, including presumably the ones at issue in Heller and McDonald. People simply don't carry the horseman's pistols or army-navy repeaters anymore, which were the only ones that got protection in the cases NY wants to rely on.
Their arguments want to build up a boogeyman of concealed carry, yet they choose concealed carry over open carry.

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I am not sure it is a nonstarter. After all, the question presented is limited to concealed carry. NY is directly addressing the question, which is more than NYSRPA has done.

You keep bringing up the fact that open carry is banned, but that is not an aspect that is part of the question presented. I don't know of any precedent that allows a court to accept something that is not part of the right when they deny they right.

I certainly would not want to rely on an unknown like that especially when it is easy to demonstrate that the historical prohibition was to address a different issue and concealed carry was just the method chosen to accomplish the issue. The fact that NY now allows concealed carry strengthens this argument.

jcutonilli said:

I am not sure it is a nonstarter. After all, the question presented is limited to concealed carry. NY is directly addressing the question, which is more than NYSRPA has done.

You keep bringing up the fact that open carry is banned, but that is not an aspect that is part of the question presented. I don't know of any precedent that allows a court to accept something that is not part of the right when they deny they right.

I certainly would not want to rely on an unknown like that especially when it is easy to demonstrate that the historical prohibition was to address a different issue and concealed carry was just the method chosen to accomplish the issue. The fact that NY now allows concealed carry strengthens this argument.

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I don’t think you can really address the question of concealed carry in a vacuum which it sounds like you are suggesting.
Remember at least 2 justices are on record NOT wanting to view this in a vacuum. The question presented may merely reflect the bare facts of the case and not a direction as far as completely limiting all discussion to CCW alone.

press1280 said:

I don’t think you can really address the question of concealed carry in a vacuum which it sounds like you are suggesting.
Remember at least 2 justices are on record NOT wanting to view this in a vacuum. The question presented may merely reflect the bare facts of the case and not a direction as far as completely limiting all discussion to CCW alone.

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SCOTUS may or may not view concealed carry in a vacuum. If they don't then why should they choose concealed carry as the preferred option. Supreme Court precedent indicates that concealed carry is not part of the right. Why should they choose an option that is not part of the right over an option that is part of the right? Are there precedents that have accepted this issue?

jcutonilli said:

SCOTUS may or may not view concealed carry in a vacuum. If they don't then why should they choose concealed carry as the preferred option. Supreme Court precedent indicates that concealed carry is not part of the right. Why should they choose an option that is not part of the right over an option that is part of the right? Are there precedents that have accepted this issue?

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The easy answer is that both parties agree on that point (CCW preferred), and if you want to take it a step further all 50 states plus DC allow for CCW while a few of those do not allow open carry. And that trend was much more recent starting with FL in 1987, clearly showing a move away from OC which was and is still legal w/o permits in many states today.
We have Wrenn v. DC (plus a dissent), Norman v. State (FL) which have accepted plaintiffs' theory. There's also numerous IL cases post Moore v. Madigan that basically accepted this as well. Heck probably throw in Moore too, as the court never stipulated that IL had to allow open carry.
Let's also not lose sight of the individuals on the court. Do you see it more likely that Roberts would insist on open carry or accept plaintiff's theory and allow for the manner of the state's choosing as long as it's on a shall issue basis?

press1280 said:

The easy answer is that both parties agree on that point (CCW preferred), and if you want to take it a step further all 50 states plus DC allow for CCW while a few of those do not allow open carry. And that trend was much more recent starting with FL in 1987, clearly showing a move away from OC which was and is still legal w/o permits in many states today.
We have Wrenn v. DC (plus a dissent), Norman v. State (FL) which have accepted plaintiffs' theory. There's also numerous IL cases post Moore v. Madigan that basically accepted this as well. Heck probably throw in Moore too, as the court never stipulated that IL had to allow open carry.
Let's also not lose sight of the individuals on the court. Do you see it more likely that Roberts would insist on open carry or accept plaintiff's theory and allow for the manner of the state's choosing as long as it's on a shall issue basis?

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That might be an easy answer, but it is not a correct answer. NY is arguing that it is going above and beyond the right for concealed carry because concealed carry is not really part of the right.

Wrenn and Norman do not really answer the question either. They ignore the fact that concealed carry has been historically prohibited and evaluated both cases based on the governments ability to limit, but not prohibit carry.

I think Roberts is more concerned about the legacy of the court and ensuring that opinions are not politically based. It is why the court granted NYSRPA v NYC, but denied the other cases it was holding. One could legitimately argue that there was no data substantiating NYC's claims, which would violate intermediate scrutiny. The other cases would have required to court to figure out what to do, which isn't really the role of the court. I think Roberts will push for the narrowest possible ruling.

Also marriage used to be between between man and a woman

Marriages between protestant and catholics used to be frowned upon

Marriage between blacks and whites were no Bueno.

Concealed carry was frowned upon.

Open carry is the traditional right, so looking forward to open carrying my rifle in NYC lol.

Ironically the NY brief says that history does not answer every question.

indeed...

press1280 said:

I don’t think you can really address the question of concealed carry in a vacuum which it sounds like you are suggesting.
Remember at least 2 justices are on record NOT wanting to view this in a vacuum. The question presented may merely reflect the bare facts of the case and not a direction as far as completely limiting all discussion to CCW alone.

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I think they wrote the question presented solely to prevent a repeat of NY mooting the case.

jcutonilli said:

You do seem very naive. Heller did not draw a line on the mode of carry. It was demonstrating that the right was not unlimited and used concealed carry as an example. When you actually read and understand the reasoning behind the historical prohibitions, you find that concealed carry was not a method that was considered common. It was looked at as something only criminals did. In today's society, the opposite is true. Open carry is prohibited by NYS law and concealed carry is the preferred method. You fail to account for changes in societal preferences over time.

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Your naivety is quite apparent, as to believe Justice Scalia would use concealed carry prohibitions as the first example in illustrating that the 2nd Amendment right is not unlimited, and also not necessarily true at the time he stated that, is equivalent to calling him an idiot. Yup, Justice Scalia had no idea what he was saying about concealed carry, according to you, but quoted the following cases in Heller:

"In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second Amendment as protecting the “natural right of self-defence” and therefore struck down a ban on carrying pistols openly. Its opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right:

“The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I. and his two wicked sons and successors, re-established by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Charta!”

"Likewise, in State v. Chandler, 5 La. Ann. 489, 490 (1850), the Louisiana Supreme Court held that citizens had a right to carry arms openly: “This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.”


Notice there wasn't any statement by any court quoted, that the concealed carry of firearms was any part of ones 2nd Amendment right...And then went on to say this:

"Few laws in the history of our Nation have come close to the severe restriction of the District’s handgun ban. And some of those few have been struck down.

In Nunn v. State, the Georgia Supreme Court struck down a prohibition on carrying pistols openly (even though it upheld a prohibition on carrying concealed weapons). See 1 Ga., at 251.

In Andrews v. State, the Tennessee Supreme Court likewise held that a statute that forbade openly carrying a pistol “publicly or privately, without regard to time or place, or circumstances,” 50 Tenn., at 187, violated the state constitutional provision (which the court equated with the Second Amendment). That was so even though the statute did not restrict the carrying of long guns. Ibid. See also State v. Reid, 1 Ala. 612, 616–617 (1840) (“A statute which, under the pretence of regulating, amounts to a destruction of the right, or which requires arms to be so borne as to render them wholly useless for the purpose of defence, would be clearly unconstitutional”)."

jcutonilli said:

Your analysis on permits has the same flaw. While there may have been a ruling against permits in the 20's, courts now a days seem to accept permits as long as they are reasonable.

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Talk about being naive, that isn't how a fundamental right can be regulated. Certainly not through a license tax, as the US Supreme Court in Murdock v Penn, 319 U.S. 105 (1943) explained that quite clearly. If you think your living constitution analysis is correct, that being, they've been licensing all carry for some time now, so it must be constitutional if reasonable, you must have forgotten that it hasn't been declared a right to carry firearms outside the home for self-defense, and what this litigation is all about...And you're telling me, I'm naive.

Here's to hoping that the state wins their case. Anyone thinking the fundamental right to carry firearms outside the home for self-defense, can or should be licensed, doesn't deserve any part of that right. If the license is all about the competency of the individual carrying a firearm, the state can issue a Certificate of Competence and not a license contract.

Bouvier's Law Dictionary
1856 Edition


LICENSE, contracts. A right given by some competent authority to do an act, which without such authority would be illegal. The instrument or writing which secures this right, is also called a license. Vide Ayl. Parerg, 353; 15 Vin. Ab. 92; Ang. Wat. Co. 61, 85.

CONTRACT. This term, in its more extensive sense, includes every description of agreement, or obligation, whereby one party becomes bound to another to pay a sum of money, or to do or omit to do a certain act; or, a contract is an act which contains a perfect obligation. In its more confined sense, it is an agreement between two or more persons, concerning something to be, done, whereby both parties are hound to each other, *or one is bound to the other. 1 Pow. Contr. 6; Civ. Code of Lo. art. 1754; Code Civ. 1101; Poth. Oblig. pt. i. c. 1, S. 1, 1; Blackstone, (2 Comm. 442,) defines it to be an agreement, upon a sufficient consideration, to do or not to do a particular thing. A contract has also been defined to be a compact between two or more persons. 6 Cranch, R. 136.

777GSOTB said:

Your naivety is quite apparent, as to believe Justice Scalia would use concealed carry prohibitions as the first example in illustrating that the 2nd Amendment right is not unlimited, and also not necessarily true at the time he stated that, is equivalent to calling him an idiot. Yup, Justice Scalia had no idea what he was saying about concealed carry, according to you, but quoted the following cases in Heller:

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IF you bothered to understand what is written in Heller you would understand what I have said. Scalia never states that concealed carry is CURRENTLY not part of the right. What he said was

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.

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IN THE PAST, it was true that concealed carry was prohibited and not part of the right. NOWHERE does he state that concealed carry is CURRENTLY not part of the right. There is no determination made about the CURRENT state concealed carry because it did not need to be determined in Heller.

777GSOTB said:

Talk about being naive, that isn't how a fundamental right can be regulated. Certainly not through a license tax, as the US Supreme Court in Murdock v Penn, 319 U.S. 105 (1943) explained that quite clearly. If you think your living constitution analysis is correct, that being, they've been licensing all carry for some time now, so it must be constitutional if reasonable, you must have forgotten that it hasn't been declared a right to carry firearms outside the home for self-defense, and what this litigation is all about...And you're telling me, I'm naive.

Here's to hoping that the state wins their case. Anyone thinking the fundamental right to carry firearms outside the home for self-defense, can or should be licensed, doesn't deserve any part of that right. If the license is all about the competency of the individual carrying a firearm, the state can issue a Certificate of Competence and not a license contract.

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Why does CA, NY and FL prohibit open carry, but allow concealed carry? The FL court in Norman determined that open carry could be prohibited because concealed carry is allowed. They cited Heller's acknowledgment that the right is not unlimited as part of the reason for making that determination.

Why do you think Dick Heller does not deserve to own firearms inside his home? He "conceded at oral argument that he does not 'have a problem with … licensing' and that the District’s law is permissible so long as it is 'not enforced in an arbitrary and capricious manner.'" Why would he say such a thing about the "core" part of the 2A? I think he understand the same thing I do.

when do we see orders from the 9/27 conference?

camo556 said:

when do we see orders from the 9/27 conference?

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All of the denials will likely be released next Mon 10/4. They may release grants before this, maybe Thurs 9/30.

They’re waiting a week now?

It is the "long" conference so it was on a Monday. The orders list are typically released on Mondays. Typical conferences are on Fridays

jcutonilli said:

IF you bothered to understand what is written in Heller you would understand what I have said. Scalia never states that concealed carry is CURRENTLY not part of the right. What he said was IN THE PAST, it was true that concealed carry was prohibited and not part of the right. NOWHERE does he state that concealed carry is CURRENTLY not part of the right. There is no determination made about the CURRENT state concealed carry because it did not need to be determined in Heller.

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That's true as far as it goes. But only that far.

The real problem here is that in a way, Heller takes the historical understanding being referred to here and brings it forth, unaltered, into the present. And it does so because:

District of Columbia v Heller said:

Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.

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The scope is enshrined. It is unchanging after the point of adoption. The scope of the right is precisely what defines what is within the right and what isn't. The 2nd Amendment flatly and unconditionally prohibits infringement upon whatever is within the right. This means the only way that something can legitimately be prohibited to law-abiding citizens is if it is outside the scope of the right.

There is some evidence that the scope of the right as understood by those who adopted the 2nd Amendment excluded concealed carry, the Court's definition of "bear" and its historical origins notwithstanding. However, modern developments have negated the conditions that went into the reasoning behind that exclusion from the scope of the right. In fact, it occurs to me that it may be that the the 2nd Amendment was worded the way it is with respect to "bear" precisely because the founders recognized the possibility of the scope changing due to changing developments altering the outcome of their reasoning when applied to those developments.

So, logically, everything hinges upon whether enshrinement of the scope of the right includes enshrinement of the reasoning behind that scope. If it does, then the actual scope of the right at any given point is dependent upon the reasoning, as it was understood at the time of adoption, that ultimately defined that scope. If it doesn't, then the scope of the right is itself static and unchanging, if we are to take the Supreme Court at its word here.

Which, as a practical matter, means one of two outcomes should be what we get, if the Supreme Court is truly true to its word:

1. Only open carry is protected, and concealed carry may be regulated to whatever degree the state sees fit, up to and including outright prohibition. The latter portion is the state's position on the matter, but the state obviously isn't going to acknowledge the former portion as being a natural consequence of it.
2. Neither open carry nor concealed carry may be prohibited or regulated in a way that constitutes infringement (the definition of which we've already debated, so let's not cover that ground here).

The latter is there because if the reasoning behind the scope of the right is what is enshrined and what thus defines the operative scope, then neither open carry nor concealed carry can rightly be regarded as something only criminals would be inclined to do, because neither actually is something only criminals do today. The modern law-abiding citizenry of the nation engages in both open carry and concealed carry of concealable arms, with only the law itself being the limiting factor in who actually engages in either. And the mere presence of the law cannot legitimately be used to bootstrap its own Constitutionality, so you cannot use the side effects of the law as the basis for its own after-the-fact Constitutionality (as applied here, this means you cannot use the fact that the law in a jurisdiction makes criminals of those who openly carry as the basis for declaring that only criminals carry openly in that jurisdiction).

Why does CA, NY and FL prohibit open carry, but allow concealed carry? The FL court in Norman determined that open carry could be prohibited because concealed carry is allowed. They cited Heller's acknowledgment that the right is not unlimited as part of the reason for making that determination.

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That is true, but (as far as I am aware), the Norman court didn't argue that the scope of the right today is consistent with the scope of the right as understood by the founding generation. The fact that the scope of the right is not unlimited cannot of itself be used to justify any and every restriction, but in the absence of more than what you call out here, that is exactly what the Norman court seemingly did.

Why do you think Dick Heller does not deserve to own firearms inside his home? He "conceded at oral argument that he does not 'have a problem with … licensing' and that the District’s law is permissible so long as it is 'not enforced in an arbitrary and capricious manner.'" Why would he say such a thing about the "core" part of the 2A? I think he understand the same thing I do.

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Did it not occur to you that his position might have been a tactical one, designed to limit the scope of the case so as to increase his chances of winning it? The broader the scope of the challenge, the less likely you are to win it. To answer in any other way would have resulted in inclusion of the question of permits into the decision itself, which could easily (particularly seeing how the resulting decision was 5-4) have lost him the case.

kcbrown said:

That's true as far as it goes. But only that far.

The real problem here is that in a way, Heller takes the historical understanding being referred to here and brings it forth, unaltered, into the present. And it does so because:



The scope is enshrined. It is unchanging after the point of adoption. The scope of the right is precisely what defines what is within the right and what isn't. The 2nd Amendment flatly and unconditionally prohibits infringement upon whatever is within the right. This means the only way that something can legitimately be prohibited to law-abiding citizens is if it is outside the scope of the right.

There is some evidence that the scope of the right as understood by those who adopted the 2nd Amendment excluded concealed carry, the Court's definition of "bear" and its historical origins notwithstanding. However, modern developments have negated the conditions that went into the reasoning behind that exclusion from the scope of the right. In fact, it occurs to me that it may be that the the 2nd Amendment was worded the way it is with respect to "bear" precisely because the founders recognized the possibility of the scope changing due to changing developments altering the outcome of their reasoning when applied to those developments.

So, logically, everything hinges upon whether enshrinement of the scope of the right includes enshrinement of the reasoning behind that scope. If it does, then the actual scope of the right at any given point is dependent upon the reasoning, as it was understood at the time of adoption, that ultimately defined that scope. If it doesn't, then the scope of the right is itself static and unchanging, if we are to take the Supreme Court at its word here.

Which, as a practical matter, means one of two outcomes should be what we get, if the Supreme Court is truly true to its word:

1. Only open carry is protected, and concealed carry may be regulated to whatever degree the state sees fit, up to and including outright prohibition. The latter portion is the state's position on the matter, but the state obviously isn't going to acknowledge the former portion as being a natural consequence of it.
2. Neither open carry nor concealed carry may be prohibited or regulated in a way that constitutes infringement (the definition of which we've already debated, so let's not cover that ground here).

The latter is there because if the reasoning behind the scope of the right is what is enshrined and what thus defines the operative scope, then neither open carry nor concealed carry can rightly be regarded as something only criminals would be inclined to do, because neither actually is something only criminals do today. The modern law-abiding citizenry of the nation engages in both open carry and concealed carry of concealable arms, with only the law itself being the limiting factor in who actually engages in either. And the mere presence of the law cannot legitimately be used to bootstrap its own Constitutionality, so you cannot use the side effects of the law as the basis for its own after-the-fact Constitutionality (as applied here, this means you cannot use the fact that the law in a jurisdiction makes criminals of those who openly carry as the basis for declaring that only criminals carry openly in that jurisdiction).




That is true, but (as far as I am aware), the Norman court didn't argue that the scope of the right today is consistent with the scope of the right as understood by the founding generation. The fact that the scope of the right is not unlimited cannot of itself be used to justify any and every restriction, but in the absence of more than what you call out here, that is exactly what the Norman court seemingly did.




Did it not occur to you that his position might have been a tactical one, designed to limit the scope of the case so as to increase his chances of winning it? The broader the scope of the challenge, the less likely you are to win it. To answer in any other way would have resulted in inclusion of the question of permits into the decision itself, which could easily (particularly seeing how the resulting decision was 5-4) have lost him the case.

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Heller was the "Court's first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field". Using the terms "unaltered" and "unchanging" are not really appropriate. Heller specifically mentions that "we do not interpret constitutional rights that way." We are to use the understanding of the right at the time of the founding to address modern issues. The Court wrote Caetano because the MA Court did not change the right to address modern issues.

The hard part is trying to correctly understand what the right actually meant. Was concealed carry prohibited because it was something only criminals would be inclined to do or was it prohibited because it was considered unusual or uncommon in society. The former interpretation would lead to two possible outcomes, the latter would suggest other possible outcomes.

In today's society open carry can provoke hysterical reactions from the public. Norman did not base their decision solely on the fact that the right is not unlimited. They invoked intermediate scrutiny to justify their decision based on compelling government interests.

The reason that Heller would have lost the permit argument is because the Court does allow certain restrictions such as permits as long as they are reasonable for the circumstances.

Heard Tom King on Wilkow Majority on the way down the Jersey Pike this morning discussing the upcoming case.

Remember that when Parker (eventually Heller) was filed, Rehnquist and O'Conner were on the court.
Now we're dealing with cases that were filed when Ginsburg was on the court.

jcutonilli said:

Heller was the "Court's first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field". Using the terms "unaltered" and "unchanging" are not really appropriate.

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They're not? Is my interpretation of "enshrined" incorrect here? If so, what's the proper meaning of that term as used in that sentence in Heller?

Heller specifically mentions that "we do not interpret constitutional rights that way."

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Here's the full context of that statement:

District of Columbia v Heller said:

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U.S. 844, 849, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U.S. 27, 35-36, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

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That statement does not apply to what I said.

We are to use the understanding of the right at the time of the founding to address modern issues. The Court wrote Caetano because the MA Court did not change the right to address modern issues.

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I hardly see how this differs from what I said. The understanding of the right at the time of the founding is what determines its scope. The scope of the right determines what is covered by it and what isn't. Anything that is covered by the right is off limits to infringement, because that's what the 2nd Amendment directly says.

What you described is what the courts are supposed to do. What I described is how they're supposed to do it.

The hard part is trying to correctly understand what the right actually meant. Was concealed carry prohibited because it was something only criminals would be inclined to do or was it prohibited because it was considered unusual or uncommon in society. The former interpretation would lead to two possible outcomes, the latter would suggest other possible outcomes.

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I know of no right that has its boundaries defined by what is common or usual. Why should the right to arms be any different?

In today's society open carry can provoke hysterical reactions from the public.

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In today's society, darned near anything can do that. What matters is whether or not it usually provokes such reactions (but that's not where the inquiry ends. See below). We do not use the reactions of a (relatively) small number of people to define the rules that society operates under. To do so would result in putting the entire society into a straitjacket. The vast majority of states (41 out of 50) allow open carry. Most (30 out of 50) allow it without even requiring a permit.

And you're ignoring the effect of the law on society. A law which makes something illegal will make that thing unusual. If it's unusual for long enough, then people will react to it as they would react to anything that is unusual: with fear and distrust. This is precisely why I said that a law cannot bootstrap itself into Constitutionality.

No, as regards the reactions of people, what matters is whether or not that reaction is rational and appropriate. But I would argue that even that isn't sufficient to overcome a fundamental Constitutionally-protected right. The entire point of a right is that it's something that someone can engage in despite the wishes of the population or the government. Nazi marches in the street are protected despite the fact that the public reacts badly to them, precisely because such marches are the exercise of a fundamental Constitutionally-protected right.

The right to arms is no different.

Norman did not base their decision solely on the fact that the right is not unlimited. They invoked intermediate scrutiny to justify their decision based on compelling government interests.

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That's true, but the plaintiffs didn't make an argument that open carry of firearms enhances public safety. I don't know what evidence Florida provided to back their claim that their open carry prohibition enhances public safety, but the general behavior of the courts when it comes to the evidentiary requirements of "intermediate scrutiny" in the 2nd Amendment context doesn't give me confidence that the evidence was substantial or even relevant.

The reason that Heller would have lost the permit argument is because the Court does allow certain restrictions such as permits as long as they are reasonable for the circumstances.

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Is that really the standard for permits that govern Constitutionally-protected rights? Only as long as the permit is "reasonable for the circumstances"? Wouldn't it be "reasonable" for the government to demand that one have a permit to purchase a book, since a book could contain "dangerous" information? Or to sell a book online to someone else? If so, then why aren't such permits required?

What of permits for merely being able to speak to other people? Isn't it "reasonable" to prohibit criminals from speaking to others since they can use that to collude with others, or induce others, to commit crimes? Wouldn't you want only people who have shown themselves to be law-abiding to be able to speak to others so as to prevent crime? Surely a permit requirement on such speech is "reasonable", no?

kcbrown said:

They're not? Is my interpretation of "enshrined" incorrect here? If so, what's the proper meaning of that term as used in that sentence in Heller?

Here's the full context of that statement:

District of Columbia v Heller said:

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, e.g., Reno v. American Civil Liberties Union, 521 U.S. 844, 849, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997), and the Fourth Amendment applies to modern forms of search, e.g., Kyllo v. United States, 533 U.S. 27, 35-36, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001), the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.

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That statement does not apply to what I said.

I hardly see how this differs from what I said. The understanding of the right at the time of the founding is what determines its scope. The scope of the right determines what is covered by it and what isn't. Anything that is covered by the right is off limits to infringement, because that's what the 2nd Amendment directly says.

What you described is what the courts are supposed to do. What I described is how they're supposed to do it.

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You are partially correct and partially incorrect. You are missing the dichotomy of the statement. The conceptual aspects stay the same, but the specific details change with time. During the 18th century, the right was limited to only the arms that were in existence at the time. Today the right includes those that were not in existence at the time of the founding, which would increase the scope of the right. While the underlying concept remains the same (all instruments that constitute bearable arms), the extent to what that encompasses changes. Even the underlying concept is not exactly correct as we know that concealed bearable arms were not part of the right.

I know of no right that has its boundaries defined by what is common or usual. Why should the right to arms be any different?

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Different rights often have different boundaries. Originalists believe the boundaries of a right are defined at the time of incorporation/founding. That is exactly how the boundaries of the right appear to be defined. The "weapons protected were those 'in common use'" There is also a "historical tradition of prohibiting the carrying of 'dangerous and unusual weapons'"

In today's society, darned near anything can do that. What matters is whether or not it usually provokes such reactions (but that's not where the inquiry ends. See below). We do not use the reactions of a (relatively) small number of people to define the rules that society operates under. To do so would result in putting the entire society into a straitjacket. The vast majority of states (41 out of 50) allow open carry. Most (30 out of 50) allow it without even requiring a permit.

And you're ignoring the effect of the law on society. A law which makes something illegal will make that thing unusual. If it's unusual for long enough, then people will react to it as they would react to anything that is unusual: with fear and distrust. This is precisely why I said that a law cannot bootstrap itself into Constitutionality.

No, as regards the reactions of people, what matters is whether or not that reaction is rational and appropriate. But I would argue that even that isn't sufficient to overcome a fundamental Constitutionally-protected right. The entire point of a right is that it's something that someone can engage in despite the wishes of the population or the government. Nazi marches in the street are protected despite the fact that the public reacts badly to them, precisely because such marches are the exercise of a fundamental Constitutionally-protected right.

The right to arms is no different.

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You seem to miss the dichotomy of a right. While the point is to limit what society can do with respect to the right, no right is absolute. There are limits to what is really protected and what is not. While Nazi marches may be protected, fighting words are not.

Based on the historical understanding of the 2A, arms that are common are protected and those that are unusual are not. Based on why concealed carry was prohibited, I am not sure that common/unusual refer to numerical numbers. They seem to reflect societal standards with respect to what is "rational and appropriate".

This is consistent with how our side argues carry cases. The legislature is free to determine the appropriate method of carry as long as the people can carry.

Is that really the standard for permits that govern Constitutionally-protected rights? Only as long as the permit is "reasonable for the circumstances"? Wouldn't it be "reasonable" for the government to demand that one have a permit to purchase a book, since a book could contain "dangerous" information? Or to sell a book online to someone else? If so, then why aren't such permits required?

What of permits for merely being able to speak to other people? Isn't it "reasonable" to prohibit criminals from speaking to others since they can use that to collude with others, or induce others, to commit crimes? Wouldn't you want only people who have shown themselves to be law-abiding to be able to speak to others so as to prevent crime? Surely a permit requirement on such speech is "reasonable", no?

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"reasonable for the circumstances" is not the specific standard the court uses. I was trying to illustrate that there are analogous 1st amendment limitations when they are appropriate for the circumstances. Parades require permits, but protesting on the sidewalk does not. Most speech is protected, but fighting words are not. The greater the societal impacts, the more likely there will be some kind of restriction on the right.