pcfixer
Ultimate Member
https://www.supremecourt.gov/DocketPDF/20/20-843/193217/20210921144917606_20-843bsacUnitedStates.pdf
Brief for the United States ( IE Biden Admin)
Brief for the United States ( IE Biden Admin)
NYC CCW case is at SCOTUS!
- Thread starter press1280
- Start date
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pcfixer
Ultimate Member
The Heller case cited five antebellum state supreme court cases concealed carry laws.
Only one of them asserted that concealed carry was outside the right to bear arms.
https://reason.com/volokh/2021/10/0...ief-in-supreme-court-right-to-bear-arms-case/
DAVID KOPEL | 10.6.2021 6:31 PM
Only one of them asserted that concealed carry was outside the right to bear arms.
https://reason.com/volokh/2021/10/0...ief-in-supreme-court-right-to-bear-arms-case/
DAVID KOPEL | 10.6.2021 6:31 PM
I wish people would stop using the term “regulated” in this context. Basically everything is regulated to one degree or another. It doesn’t add anything to the discussion. Open carry can also be “regulated” apart from concealed carry. We’re still in the same spot as before.
clandestine
AR-15 Savant
A representative of the US Government arguing against the Second Amendment only reinforces the main reason the Amendment was put in place to begin with.
I'd love to see Biden himself go before the court and repeat his double barrel shotgun advice.
jcutonilli
Ultimate Member
- Mar 28, 2013
- 2,474
Not really, it is a hard question because it depends on how you define what is best. There are a number of amici that add small parts of the issue. From an amici stand point that is good. The problem I see is that no one really directly addressed the question presented (Whether the State's denial of petitioners' applications for concealed-carry licenses for self-defense violated the Second Amendment.) The briefs are more about carry in general and don't really explain why concealed carry is now part of the right given the historical prohibitions.
Is it because licensing of a fundamental right being relatively new ( a product of the 20th century), compared to the right itself.
jcutonilli
Ultimate Member
- Mar 28, 2013
- 2,474
The thing with dicta is that it is much easier to overcome than precedent. This is why the lower court in Wrenn decided concealed carry was acceptable even though SCOTUS found a historical prohibition on concealed carry. Had the historical prohibition on concealed carry been precedent, the lower court would have needed to decide things differently.
jcutonilli
Ultimate Member
- Mar 28, 2013
- 2,474
This seems to directly conflict with what Heller was saying. Four of the five cases upheld the bans on concealed carry, which led Heller to state that the right was not unlimited. Only one case found that it was part of the right and the state eventually changed its constitution to clearly state that it was not part of the right.
jcutonilli
Ultimate Member
- Mar 28, 2013
- 2,474
My opinion it is because of changing attitudes towards what is acceptable and how to effectively regulate what is unacceptable. If you look at the reasoning behind why concealed carry was historically prohibited, you will find that it was only associated with criminal or unacceptable behavior. That attitude has changed and concealed carry is seen as an acceptable behavior. It seems that we now use licensing to distinguish between those that use acceptable behavior (law abiding citizens) and those that don't (criminals).
The dissent in Young picked up on this. The cases that Heller cites about the historical prohibition on concealed carry contain reasoning to indicate that the prohibition on concealed carry was because of the association with criminal behavior. Today one can point to routine use of concealed carry by the government to demonstrate that it is acceptable behavior.
The plaintiffs arguments that you can ban open or concealed, but not both is not necessarily wrong, but it leaves a hole as to which option should be chosen given the historical prohibition.
JMangle
Handsome Engineer
My thoughts exactly.
The State is asking the Court to limit the Freedom of the People.
There is a reason that more and more people seem to be opening their eyes these days.
The State is asking the Court to limit the Freedom of the People.
There is a reason that more and more people seem to be opening their eyes these days.
It was acceptable because the state licensed the activity. Licenses are given out by governing authorities, to do that which would otherwise be, illegal and unlawful. A fundamental right is the complete opposite of illegal and unlawful.
Ok, thanks, should have said, PROHIBITED under the 2nd Amendment.
I don't think you actually ever answered my question from way back (and perhaps it wasn't you but a different open-carry-only guy so forgive me).
That is, which justices, in your opinion, would be the ones to rule in NYSRPA that open carry is the right, regardless of the current state of the law?
Keep in mind the Peruta and Rogers dissents. I'll await your answer.
We need the door cracked open to get bear outside the home recognized as part of the fundemental right first.
It may be unlikely that the court will get into the technical details of open versus concealed this go around.
Open carry isn't an issue in NYSRPA. They waived that right when they signed the application for a license contract to carry concealed firearms. Just like Norman did in Florida. Since no one has any kahuna's to open carry without a license, we won't be finding out any time soon.
Interestingly, Gorsuch, who joined Thomas in Peruta, didn't join Thomas and Kavanaugh in Rogers, though both very similar cases. Also, Kavanaugh didn't agree with Thomas' reasoning in Part II, in regard to the circuit split on carry outside the home. You must remember, 7 other Justices disagreed with the dissent.
Kharn
Ultimate Member
So you say someone should sue Maryland again and redo Woollard, since MD requires the same permit to carry openly or concealed?
Cert was denied on that one too.
Cert was denied on that one too.
Part II of Rogers dissent was almost a full opinion probably well beyond what a typical dissent would contain. Kavanaugh agreed on the basics, that is that they should have heard Rogers.
We don’t know what the other 7 were thinking. Some may have agreed but chose not to write anything.
So out of the 7 which 5 would rule for open carry?
jcutonilli
Ultimate Member
- Mar 28, 2013
- 2,474
First of all, there was no state in Wrenn as it is a DC case. Additionally DC did not license the activity. That was the whole point of the case, to force DC to grant licenses. IE allow concealed carry.
jcutonilli
Ultimate Member
- Mar 28, 2013
- 2,474
NYSRPA did not waive their right, they chose not to challenge the ban on open carry. They challenged the denial of the concealed carry license just like Peruta.
Norman did not waive his right either. You do not waive your rights when you apply for a license.
Why don't you open carry without a license?
Peruta was different from Roger in that Peruta specifically stated concealed carry was not part of the right, while Rogers did not. Rogers was more like NYSRPA in that the case was decided based on previous precedent.
We do not know if 7 other Justices disagree with Thomas' dissent. All we really know is that they did not join it.
