En banc Decision in Peruta -- a loss

danb said:

I am not, I just do not think its as crystal clear as it seems.

Keep in mind, Kennedy authored Obergefell v. Hodges, which rejected a narrow framing of the "right to same sex -marriage," and instead embraced a "comprehensive" view of marriage.

I think it will be extremely difficult to get 5 votes on the court on board with a narrow framing of the right ("right to concealed carry", "right to open carry") especially if the narrow framing implies striking more state laws than necessary, which the Court is loathe to do. Far more likely they will embraced a broader "comprehensive" view and permit the States to regulate the manner. In Peruta, they do not even need to strike any state laws, just local regulation, if they embrace the 3-judge panel opinion!

Go back and re-read the controlling opinion in Obergefell v. Hodges, then close your eyes and imagine Kennedy voting for the narrow framing of the right purely as open carry. Don't get me wrong, I think open carry advocates have a case, at least until the Civil War. But I do not see 5 votes for it. And if it comes down to framing, I think people will compromise in the face of uncertainty.

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I don't know,...but when someone as smart as Scalia states, " Its opinion perfectly captured..." it seems crystal clear to Scalia...and me.

I can see your point...Kennedy being the deciding factor, but no one knew how Kennedy felt about same sex-marriage prior to his majority opinion in Obergefell v. Hodges...I need to read that one, as I haven't looked at it yet. But here, we have Heller to go by and he signed onto it...He could obviously change his mind, but I don't see why. Think about this, if the states are allowed to decide the manner of carrying a firearm, one would never be able to exercise a fundamental right wherever they may travel throughout the country do to one state requiring a license, another not and so on... When they take Norman, I know..I know, they will conclude open carry to be the protected right throughout the country. Now one can openly carry a firearm in self-defense through every state that they may travel without fear of prosecution for not carrying in a manner that a state otherwise could have prescribed if they allow that.

If they take the Peruta case, which I still think they won't, Gorsuch isn't Scalia, so we don't know where he's going to go with it. Then you would be right and the right to carry firearms outside the home will have turned into a preconditioned privilege...I wonder how many permits I would have to pay for just to legally exercise my 2nd Amendment right to self-defense while traveling?...Think about that for a moment.

777GSOTB said:

It looks that way, as Heller couldn't even have a handgun for self-defense in his home for gods sake.

It's assumptive from what was said within the case....Funny thing, Norman's lawyer, Eric Friday gets it....And so does the Attorney General of the US. There was absolutely NO REASON for Scalia to mention any of this in a case that had nothing to do with concealed or open carry. That is, unless he wanted to give insight into how the court viewed carry outside the home...Some people just never get it, which seems to be the case here.


District of Columbia v. Heller, 554 U.S. 570, (2008)

" 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. "

"Likewise, in State v. Chandler, 5La. 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.”

"In Nunn v. State, 1Ga. 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:"

You can overlook that all you want...Scalia said that for a reason.

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If confusion is the metric then nobody knows what the constitution means. Heller certainly has not cleared things up. Just look at the AWB cases.

Making assumptions can lead to the wrong conclusion, which you have done in this case. The open/CCW cases were included for one main reason, they all essentially say the word "self-defense". This word was used in holding 1 of Heller. Open carry was not mentioned at all in the holdings of Heller. The holdings ultimately define what Scalia meant (ie individual right to self-defense in the home).

You have not shown where public safety is talked about. I see the word "self-defense" and understand its relationship to the individual. While an individual is a member of the public, one individual is never considered to be the public. You need a group to do that and Heller simply looks at it as an individual. This is the problem with how Heller is explained.

jcutonilli said:

If confusion is the metric then nobody knows what the constitution means. Heller certainly has not cleared things up. Just look at the AWB cases.

Making assumptions can lead to the wrong conclusion, which you have done in this case. The open/CCW cases were included for one main reason, they all essentially say the word "self-defense". This word was used in holding 1 of Heller. Open carry was not mentioned at all in the holdings of Heller. The holdings ultimately define what Scalia meant (ie individual right to self-defense in the home).

You have not shown where public safety is talked about. I see the word "self-defense" and understand its relationship to the individual. While an individual is a member of the public, one individual is never considered to be the public. You need a group to do that and Heller simply looks at it as an individual. This is the problem with how Heller is explained.

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If you ONLY have an assault weapon and you posses it for self-defense and you're arrested for that, your right to self-defense has truly been violated...See: ASHWANDER v. TENNESSEE VALLEY AUTHORITY below.

But hey,...we can clear things up with the AW bans. I'll get arrested, organize it and I'll do it, in Highland Park with an assault weapon and high capacity magazines. If the court then doesn't take the case, it's truly a kangaroo court...You can't say weapons that are in " common use " are protected and then say no they're not. If Kennedy thinks that is how justice works, or any of them do, they should be disbarred on the spot.

You're getting loosy-goosy with your statements...I see NO self-defense mentioned. And how could the government tell you how you can carry inside your own home? All these examples, obviously, refer to outside the home.

Why do you think states regulated concealed carry?...Same reason why Florida did, it's their public policy to regulate...And considered constitutional under Heller.

District of Columbia v. Heller, 554 U.S. 570, (2008)

(No self-defense mentioned)
" For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons(outside the home) were lawful under the Second Amendment or state analogues. "

"Likewise, in State v. Chandler, 5La. Ann. 489, 490 (1850), the Louisiana Supreme Court held that citizens had a right to carry arms openly:(outside the home) “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(can't do this inside the home, so not specific to the holding), without any tendency to secret advantages and unmanly assassinations.”(unmanly assassinations...inside the home?)

Not from Heller:
(No self-defense mentioned)
" Robertson v Baldwin 165 U.S. 275 (1897) " .....the right of the people to keep and bear arms (Art. II) is not infringed by laws prohibiting the carrying of concealed weapons;..(outside the home)" "

U.S. Supreme Court
ASHWANDER v. TENNESSEE VALLEY AUTHORITY, 297 U.S. 288 (1936)

Mr. Justice BRANDEIS (concurring)

"The Court developed, for its own governance in the cases confessedly within its jurisdiction, a series of rules under which it has avoided passing upon a large part of all the constitutional questions pressed upon it for decision. They are:"


5. The Court will not pass upon the validity of a statute upon complaint of one who fails to show that he is injured by its operation. 6 Tyler v. Judges, etc., 179 U. [297 U.S. 288, 348] * S. 405, 21 S.Ct. 206; Hendrick v. Maryland, 235 U.S. 610, 621 , 35 S.Ct. 140. Among the many applications of this rule, none is more striking than the denial of the right of challenge to one who lacks a personal or property right. Thus, the challenge by a public official interested only in the performance of his official duty will not be entertained. Columbus & Greenville Ry. Co. v. Miller, 283 U.S. 96, 99 , 100 S., 51 S.Ct. 392. In Fairchild v. Hughes, 258 U.S. 126 , 42 S.Ct. 274, the Court affirmed the dismissal of a suit brought by a citizen who sought to have the Nineteenth Amendment declared unconstitutional. In Massachusetts v. Mellon, 262 U.S. 447 , 43 S.Ct. 597, the challenge of the federal Maternity Act was not entertained although made by the commonwealth on behalf of all its citizens.

777GSOTB said:

You're getting loosy-goosy with your statements...I see NO self-defense mentioned. And how could the government tell you how you can carry inside your own home? All these examples, obviously, refer to outside the home.

Why do you think states regulated concealed carry?...Same reason why Florida did, it's their public policy to regulate...And considered constitutional under Heller.

District of Columbia v. Heller, 554 U.S. 570, (2008)

(No self-defense mentioned)
" For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons(outside the home) were lawful under the Second Amendment or state analogues. "

"Likewise, in State v. Chandler, 5La. Ann. 489, 490 (1850), the Louisiana Supreme Court held that citizens had a right to carry arms openly:(outside the home) “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(can't do this inside the home, so not specific to the holding), without any tendency to secret advantages and unmanly assassinations.”(unmanly assassinations...inside the home?)

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The first statement is not a specific case and simply a summary of the cases presented. A paraphrase of the statement is included in the holding, but in neither instance was the term "outside the home" included. You can emphasize the term "outside the home" all you want, it does not change the fact that Scalia did not use or emphasize the term.

The second statement (State v Chandler) says "defence of themselves", which is "essentially" the same as self-defense.

I am not sure why you are trying to emphasize "outside the home". An individual is still an individual whether inside or outside the home. I am still waiting for you to find where "[t]he public safety aspect that [I am] overlooking that was addressed in Heller"

Concealed carry was historically prohibited because it was considered something only criminals do. Today things have changed and it is not something only criminals do. The reason that there are regulations on concealed carry today and bans on open carry in FL and CA is that, "Like most rights, the Second Amendment right is not unlimited."

jcutonilli said:

The first statement is not a specific case and simply a summary of the cases presented. A paraphrase of the statement is included in the holding, but in neither instance was the term "outside the home" included. You can emphasize the term "outside the home" all you want, it does not change the fact that Scalia did not use or emphasize the term.

The second statement (State v Chandler) says "defence of themselves", which is "essentially" the same as self-defense.

I am not sure why you are trying to emphasize "outside the home". An individual is still an individual whether inside or outside the home. I am still waiting for you to find where "[t]he public safety aspect that [I am] overlooking that was addressed in Heller"

Concealed carry was historically prohibited because it was considered something only criminals do. Today things have changed and it is not something only criminals do. The reason that there are regulations on concealed carry today and bans on open carry in FL and CA is that, "Like most rights, the Second Amendment right is not unlimited."

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You somehow can't get it through your head that the justices of the supreme court can assume things through their understanding of the facts in evidence...Without having to actually say them outright in their decisions...Also, all those cases involved carry outside the home, so they would have no relevance to your position. And that's because at this point in time, there is no right to self-defense outside the home...If you are not into assuming things anyway.

I thought you said," United States v. Cruikshank, 92 U. S. 542 , Presser v. Illinois, 116 U. S. 252 , and United States v. Miller, 307 U. S. 174. All of these cases were decided before Heller ",were the ruling cases...Now you're saying Heller is why FL and CA regulate firearms...They were already doing that, way before the Heller decision...State public safety policies no doubt...Too bad such policies can't prohibit open carry.

Peruta will still get Cert Denied and Norman will get Cert Granted...I'm outta here.

777GSOTB said:

You somehow can't get it through your head that the justices of the supreme court can assume things through their understanding of the facts in evidence...Without having to actually say them outright in their decisions...Also, all those cases involved carry outside the home, so they would have no relevance to your position. And that's because at this point in time, there is no right to self-defense outside the home...If you are not into assuming things anyway.

I thought you said," United States v. Cruikshank, 92 U. S. 542 , Presser v. Illinois, 116 U. S. 252 , and United States v. Miller, 307 U. S. 174. All of these cases were decided before Heller ",were the ruling cases...Now you're saying Heller is why FL and CA regulate firearms...They were already doing that, way before the Heller decision...State public safety policies no doubt...Too bad such policies can't prohibit open carry.

Peruta will still get Cert Denied and Norman will get Cert Granted...I'm outta here.

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Judges and justices evaluate facts and evidence all the time and develop inferences and conclusions from the evidence. They document all of this in long winded explanations. They do this so that people can understand what went into their decision making process. If they leave something out then it was not a factor in the decision making process.

You error is in the belief that Heller defines the entirety of the 2A. It clearly does not. Heller confirms that the preexisting right includes individuals and that they may keep handguns in their home. Heller does not give an opinion on what happens outside of the home. To determine if the 2A applies outside the home you need to rely on other cases. The 2A clearly applies outside the home, just don't say Heller says so.

Heller is not the reason that FL and CA ban open carry. The reason I listed is that "Like most rights, the Second Amendment right is not unlimited." While that language literally comes from Heller it is not exclusively stated in Heller. The Supreme Court has always taken the position that there are limits to all of our rights. No court has found that the FL and CA bans on open carry infringe upon the 2A right.

jcutonilli said:

Heller does not give an opinion on what happens outside of the home. To determine if the 2A applies outside the home you need to rely on other cases. The 2A clearly applies outside the home, just don't say Heller says so.

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Heller doesn't say so, but its wording cannot be rationally interpreted any other way. The entire "sensitive places" discussion is nonsensical if the 2nd Amendment is not operative outside the home. To argue otherwise is to argue that the Supreme Court writes stuff for the fun of it.

Heller is not the reason that FL and CA ban open carry. The reason I listed is that "Like most rights, the Second Amendment right is not unlimited." While that language literally comes from Heller it is not exclusively stated in Heller. The Supreme Court has always taken the position that there are limits to all of our rights. No court has found that the FL and CA bans on open carry infringe upon the 2A right.

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No court has found that any carry laws infringe upon the 2A right, save for the 7th Circuit in Moore.

Does that say more about the 2nd Amendment, or about the courts? How is it that the right to carry can be regarded as anything other than a second class right (where the term "right" is used in the loosest possible sense of the word) if it is so easily overcome by what amounts to arbitrary restrictions upon it?

kcbrown said:

Heller doesn't say so, but its wording cannot be rationally interpreted any other way. The entire "sensitive places" discussion is nonsensical if the 2nd Amendment is not operative outside the home. To argue otherwise is to argue that the Supreme Court writes stuff for the fun of it.




No court has found that any carry laws infringe upon the 2A right, save for the 7th Circuit in Moore.

Does that say more about the 2nd Amendment, or about the courts? How is it that the right to carry can be regarded as anything other than a second class right (where the term "right" is used in the loosest possible sense of the word) if it is so easily overcome by what amounts to arbitrary restrictions upon it?

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Along with San Francisco and Highland Park, they all come down to the same problem, judging gun laws using intermediate scrutiny and deferring to the legislature for their "weighing" of the evidence. If strict scrutiny was used (as it should be), or if the courts actually required that the states/cities put forth evidence that the law was a good "fit" to the important government interest, we'd see much different results.

kcbrown said:

Heller doesn't say so, but its wording cannot be rationally interpreted any other way. The entire "sensitive places" discussion is nonsensical if the 2nd Amendment is not operative outside the home. To argue otherwise is to argue that the Supreme Court writes stuff for the fun of it.

No court has found that any carry laws infringe upon the 2A right, save for the 7th Circuit in Moore.

Does that say more about the 2nd Amendment, or about the courts? How is it that the right to carry can be regarded as anything other than a second class right (where the term "right" is used in the loosest possible sense of the word) if it is so easily overcome by what amounts to arbitrary restrictions upon it?

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I am confused as to why you think I have implied that the Supreme Court writes stuff for the fun of it. Heller does not impose additional restrictions on open carry nor does it expand open carry. I does not talk to that specific issue. The "sensitive places" text refers to not overturning existing laws. It does not expand or contract the right in that area.

I do not think the problem is with the 2A or the courts. It is with the arguments presented in the court and the deference that public safety gets with respect to individual rights. Heller only addressed the individual vs collective right issue. The issue of public safety was not addressed in Heller. When you argue a pure individual right against public safety, you will see the right curtailed when there is a substantial link. The problem is that this argument is reasonable enough to prevent four justices from voting for cert.

The problem with the argument is that the 2A is not a purely individual right. This is because individuals make up the public. It seems simple, but none of the cases to date have argued the 2A this way. Self defense is the major part of public safety because of this. It is not either or, it is literally both. The argument falls apart when you looks at it from a collection of individuals perspective because you cannot provide public safety by taking it away.

jcutonilli said:

I am confused as to why you think I have implied that the Supreme Court writes stuff for the fun of it. Heller does not impose additional restrictions on open carry nor does it expand open carry. I does not talk to that specific issue. The "sensitive places" text refers to not overturning existing laws. It does not expand or contract the right in that area.

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I agree that the "sensitive places" text does not expand or contract the right in that area. What it does do is establish that the 2nd Amendment is operative in public. This is so because the "sensitive places" text is superfluous if there is no 2nd Amendment protection of the right to arms in public.

That's why I said that to argue otherwise is to argue that the Supreme Court writes stuff for fun: because it would mean that they would have written about "sensitive places" when there was no reason to.

I do not think the problem is with the 2A or the courts. It is with the arguments presented in the court and the deference that public safety gets with respect to individual rights. Heller only addressed the individual vs collective right issue. The issue of public safety was not addressed in Heller. When you argue a pure individual right against public safety, you will see the right curtailed when there is a substantial link. The problem is that this argument is reasonable enough to prevent four justices from voting for cert.

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That is entirely possible. Certainly, the public safety arguments you've mentioned before should be made, because certainly nothing else has worked so far.

But answer this: why do you suppose the Supreme Court took rational basis off the table with respect to 2A cases, if it's not off the table with respect to other Constitutional rights (or is it?)?

And answer this also, please: why is the public safety argument necessary here when it wasn't necessary in Heller or McDonald? Is it really because those were in the context of the home? I'm skeptical, because the public safety argument was made by the government in McDonald, at least, and it was rejected by the Court there:

McDonald v. City of Chicago said:

Municipal respondents maintain that the Second Amendment differs from all of the other provisions of the Bill of Rights because it concerns the right to possess a deadly implement and thus has implications for public safety. Brief for Municipal Respondents 11. And they note that there is intense disagreement on the question whether the private possession of guns in the home increases or decreases gun deaths and injuries. Id., at 11, 13-17.

The right to keep and bear arms, however, is not the only constitutional right that has controversial public safety implications. All of the constitutional provisions that impose restrictions on law enforcement and on the prosecution of crimes fall into the same category. See, e.g., Hudson v. Michigan, 547 U.S. 586, 591, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006) ("The exclusionary rule generates `substantial social costs,' United States v. Leon, 468 U.S. 897, 907, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), which sometimes include setting the guilty free and the dangerous at large"); Barker v. Wingo, 407 U.S. 514, 522, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972) (reflecting on the serious consequences of dismissal for a speedy trial violation, which means "a defendant who may be guilty of a serious crime will go free"); Miranda v. Arizona, 384 U.S. 436, 517, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (Harlan, J., dissenting); id., at 542, 86 S.Ct. 1602 (White, J., dissenting) (objecting that the Court's rule "n some unknown number of cases . . . will return a killer, a rapist or other criminal to the streets . . . to repeat his crime"); Mapp, 367 U.S., at 659, 81 S.Ct. 1684. Municipal respondents cite no case in which we have refrained from holding that a provision of the Bill of Rights is binding on the States on the ground that the right at issue has disputed public safety implications.

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If the public safety arguments you talk about here were unnecessary there, why are they necessary here?

Admittedly, it's entirely possible that the above is strictly in the context of whether or not the 2nd Amendment should apply to the states, and nothing more. However, the argument against that is that the Court didn't merely assert that the right is operative against the states, it struck down Chicago's ordinance despite the public safety arguments that were made for it.

kcbrown said:

I agree that the "sensitive places" text does not expand or contract the right in that area. What it does do is establish that the 2nd Amendment is operative in public. This is so because the "sensitive places" text is superfluous if there is no 2nd Amendment protection of the right to arms in public.

That's why I said that to argue otherwise is to argue that the Supreme Court writes stuff for fun: because it would mean that they would have written about "sensitive places" when there was no reason to.




That is entirely possible. Certainly, the public safety arguments you've mentioned before should be made, because certainly nothing else has worked so far.

But answer this: why do you suppose the Supreme Court took rational basis off the table with respect to 2A cases, if it's not off the table with respect to other Constitutional rights (or is it?)?

And answer this also, please: why is the public safety argument necessary here when it wasn't necessary in Heller or McDonald? Is it really because those were in the context of the home? I'm skeptical, because the public safety argument was made by the government in McDonald, at least, and it was rejected by the Court there:



If the public safety arguments you talk about here were unnecessary there, why are they necessary here?

Admittedly, it's entirely possible that the above is strictly in the context of whether or not the 2nd Amendment should apply to the states, and nothing more. However, the argument against that is that the Court didn't merely assert that the right is operative against the states, it struck down Chicago's ordinance despite the public safety arguments that were made for it.

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Rational basis is off the table for other Constitutional Rights (at least in theory); as was mentioned in Heller that the 2A would be redundant against irrational laws, and have no effect.

The public safety aspect is interesting, but it seems like it goes down the road of dueling statistics. When you have groups like LCAV and the Bradys claiming 33k gun deaths per year (and the courts willingness to buy in), we end up losing. It would seem the better ultimate test would be text and history. Let's hope we get that soon; the lower courts "intermediate scrutiny" test is nothing more than rational basis.

kcbrown said:

I agree that the "sensitive places" text does not expand or contract the right in that area. What it does do is establish that the 2nd Amendment is operative in public. This is so because the "sensitive places" text is superfluous if there is no 2nd Amendment protection of the right to arms in public.

That's why I said that to argue otherwise is to argue that the Supreme Court writes stuff for fun: because it would mean that they would have written about "sensitive places" when there was no reason to.

That is entirely possible. Certainly, the public safety arguments you've mentioned before should be made, because certainly nothing else has worked so far.

But answer this: why do you suppose the Supreme Court took rational basis off the table with respect to 2A cases, if it's not off the table with respect to other Constitutional rights (or is it?)?

And answer this also, please: why is the public safety argument necessary here when it wasn't necessary in Heller or McDonald? Is it really because those were in the context of the home? I'm skeptical, because the public safety argument was made by the government in McDonald, at least, and it was rejected by the Court there:

If the public safety arguments you talk about here were unnecessary there, why are they necessary here?

Admittedly, it's entirely possible that the above is strictly in the context of whether or not the 2nd Amendment should apply to the states, and nothing more. However, the argument against that is that the Court didn't merely assert that the right is operative against the states, it struck down Chicago's ordinance despite the public safety arguments that were made for it.

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You seem to have a conflict with regard to what you have said about sensitive places. The not expanding or contracting of the right conflicts with what you claim actually establishes of part of the right. Establishing something creates it, which is an expansion of a right. You have agreed that there was no expansion, which indicates a conflict.

As stated, the purpose of the sensitive places text was not to expand or contract the right. It was to maintain the status quo

https://en.wikipedia.org/wiki/Rational_basis_review provides a layman explanation of which rights are reviewed at rational basis and which are not. I think the reason rational basis is not used is that it is considered a fundamental right. This issue is more implicit in Heller and explicit in McDonald.

I think there are a number of reasons why the public safety argument was not really that important. The primary reason is how the arguments were framed. In Heller it was a individual vs collective right argument. In McDonald it was a it is applicable to the states or it was not argument. Additionally both courts tried to to dismiss the public safety argument in its entirety by saying: "The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.”

None of the dissenters could come up with a reasonable explanation why public safety curtails the right however. Breyer, in his dissent in Heller, came closest to providing a reasonable argument, but used the term interest balancing. Since this was a new test the court rejected the argument. The problem is that when you replace interest balancing with intermediate scrutiny, you get the exact argument used by the courts to justify all of the AWB bans and CCW bans. Had Breyer used intermediate scrutiny instead of interest balancing, Heller may have decided the case differently or there would be precedent as to why it fails intermediate scrutiny.

The individual right vs public safety is a duel of statistics trying to determine if there is sufficient statistics to justify the curtailment of the right. Read Breyer, or any of the other AWB or CCW cases to see these dueling statistics and where the court defers to the legislature on the issue.

The public safety vs public safety argument is about who provides public safety. It is primarily a legal argument. The literal reason the amendment was put in place was to prevent the federal government from being the only way public safety happened and to ensure that the people had the ability to provide it.

jcutonilli said:

You seem to have a conflict with regard to what you have said about sensitive places. The not expanding or contracting of the right conflicts with what you claim actually establishes of part of the right. Establishing something creates it, which is an expansion of a right. You have agreed that there was no expansion, which indicates a conflict.

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Read what I said carefully. What was established by the "sensitive places" clause is that the 2nd Amendment is operative in public. It is not the right that is established (the right is a preexisting thing), only the recognition of its protection by the 2nd Amendment in public.

I did err slightly, however: the "sensitive places" discussion does contract the scope of the 2nd Amendment protection, because it reduces the protection's scope to that which is not considered a "sensitive place".

Why does that distinction matter? Because the right was not recognized to be protected at all prior to Heller.


This raises an interesting question, actually. As law in the U.S. operates, that which is not explicitly forbidden is allowed. So the question is: once protection of a right is established, does that protection extend everywhere it is not explicitly excluded? That approach would be consistent with how law works. And if that's the case, then it means that Heller's recognition of the protection of the right to arms by the 2nd Amendment means that the right is protected anywhere and everywhere that protection is not explicitly excluded.

The alternative is that protection of a right extends only to those areas where it is explicitly recognized. That would mean that, e.g., the right to speech is recognized only in those places that have been explicitly covered by existing case law.

Which of those two approaches is how protection of rights operates? It clearly matters greatly. The way Heller is worded implies that it operates in the former (protects everything not explicitly excluded) manner, since otherwise the Court's discussion of "sensitive places" would, again, be superfluous.

As stated, the purpose of the sensitive places text was not to expand or contract the right. It was to maintain the status quo

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It was to maintain the status quo. It did so by contracting the protection of the right to exclude "sensitive places".

I think there are a number of reasons why the public safety argument was not really that important. The primary reason is how the arguments were framed. In Heller it was a individual vs collective right argument. In McDonald it was a it is applicable to the states or it was not argument. Additionally both courts tried to to dismiss the public safety argument in its entirety by saying: "The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.”

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Then explain how later decisions in which "public safety" arguments resulted in wins for the governments in question are consistent with the Supreme Court's dismissal of "public safety" arguments as above.

None of the dissenters could come up with a reasonable explanation why public safety curtails the right however. Breyer, in his dissent in Heller, came closest to providing a reasonable argument, but used the term interest balancing. Since this was a new test the court rejected the argument. The problem is that when you replace interest balancing with intermediate scrutiny, you get the exact argument used by the courts to justify all of the AWB bans and CCW bans. Had Breyer used intermediate scrutiny instead of interest balancing, Heller may have decided the case differently or there would be precedent as to why it fails intermediate scrutiny.

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Be that as it may, none of that addresses the government's public safety argument. "Intermediate scrutiny" is merely a tool the courts use to address public safety arguments. It is their choice as to what means they use. The Supreme Court, as you pointed out, dismissed the public safety arguments utterly.

So you still haven't answered my question: why do we need to be make public safety counterarguments now when we didn't need to in Heller and McDonald? A corollary to that is: how do later cases differ from Heller and McDonald such that the Supreme Court's reason for dismissal of public safety argument in those two cases is inoperative/invalid in those later cases?

The public safety vs public safety argument is about who provides public safety. It is primarily a legal argument. The literal reason the amendment was put in place was to prevent the federal government from being the only way public safety happened and to ensure that the people had the ability to provide it.

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Yes, and I definitely agree with you that we need to be making that argument. But only because nothing else has worked thus far.

Nevertheless, to do so is to implicitly ignore what the Supreme Court did with the public safety arguments that came before it previously.

kcbrown said:

Read what I said carefully. What was established by the "sensitive places" clause is that the 2nd Amendment is operative in public. It is not the right that is established (the right is a preexisting thing), only the recognition of its protection by the 2nd Amendment in public.

I did err slightly, however: the "sensitive places" discussion does contract the scope of the 2nd Amendment protection, because it reduces the protection's scope to that which is not considered a "sensitive place".

Why does that distinction matter? Because the right was not recognized to be protected at all prior to Heller.

This raises an interesting question, actually. As law in the U.S. operates, that which is not explicitly forbidden is allowed. So the question is: once protection of a right is established, does that protection extend everywhere it is not explicitly excluded? That approach would be consistent with how law works. And if that's the case, then it means that Heller's recognition of the protection of the right to arms by the 2nd Amendment means that the right is protected anywhere and everywhere that protection is not explicitly excluded.

The alternative is that protection of a right extends only to those areas where it is explicitly recognized. That would mean that, e.g., the right to speech is recognized only in those places that have been explicitly covered by existing case law.

Which of those two approaches is how protection of rights operates? It clearly matters greatly. The way Heller is worded implies that it operates in the former (protects everything not explicitly excluded) manner, since otherwise the Court's discussion of "sensitive places" would, again, be superfluous.

It was to maintain the status quo. It did so by contracting the protection of the right to exclude "sensitive places".

Then explain how later decisions in which "public safety" arguments resulted in wins for the governments in question are consistent with the Supreme Court's dismissal of "public safety" arguments as above.

Be that as it may, none of that addresses the government's public safety argument. "Intermediate scrutiny" is merely a tool the courts use to address public safety arguments. It is their choice as to what means they use. The Supreme Court, as you pointed out, dismissed the public safety arguments utterly.

So you still haven't answered my question: why do we need to be make public safety counterarguments now when we didn't need to in Heller and McDonald? A corollary to that is: how do later cases differ from Heller and McDonald such that the Supreme Court's reason for dismissal of public safety argument in those two cases is inoperative/invalid in those later cases?

Yes, and I definitely agree with you that we need to be making that argument. But only because nothing else has worked thus far.

Nevertheless, to do so is to implicitly ignore what the Supreme Court did with the public safety arguments that came before it previously.

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I did read your sensitive places text carefully. Apparently I was not very clear. The issue is the time frame. Heller did not create/establish the restrictions. Those restrictions were already established. Therefore Heller did not change anything.

The problem with the public safety argument is that it is not the same argument. When you argue the case differently you will get different answers. As I tried explaining, there is almost no explanation of why you don't need to address the public safety arguments raised by the government. The answer is pretty simple, the people that commit the crimes are not the same as the people that the right applies to.

When you look at the cases after McDonald you see the individual right vs public safety as the main argument. It is then framed as are guns dangerous to society. One side is arguing the are and the other is arguing that they are not. The Court cannot answer that question and defers to the legislature.

The answer to are guns dangerous is not a simple yes/no answer. It depends on who is using the gun. Criminals by definition are dangerous to society. Law abiding citizens by definition are not dangerous. The problem with Heller is that it skipped a bunch of steps in the explanation. It gave the answer without explaining why.

You need to frame the question correctly, which is why I think you need to make a public safety vs public safety argument. It naturally frames the problem of why law abiding citizens have the right to own arms.

jcutonilli said:

I did read your sensitive places text carefully. Apparently I was not very clear. The issue is the time frame. Heller did not create/establish the restrictions. Those restrictions were already established. Therefore Heller did not change anything.

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Heller didn't create/establish the restrictions. It established the protection of the right. That's what I said. I said nothing about what restrictions on action were established by Heller. I did say something about what restrictions on the protection were established. Heller established that the protection of the right is not operative in "sensitive places". But because it established general protection of the right, and because explicitly excluded "sensitive places" from that protection, it follows that it established that said protection is operative everywhere else -- that which is not explicitly excluded from protection is included.

And that is a difference from what came before. Prior to Heller, there was no recognized 2nd Amendment protection of the individual right to arms anywhere (state-level protection is a different matter). So Heller did indeed change something. It just didn't change the situation in "sensitive places".

You need to frame the question correctly, which is why I think you need to make a public safety vs public safety argument. It naturally frames the problem of why law abiding citizens have the right to own arms.

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I certainly can't disagree with this. But nevertheless, in McDonald at least, the government raised the public safety issue and (to my knowledge, at least) the plaintiffs did not dispute it. And yet, despite that (and regardless of whether or not the plaintiffs disputed it), the Court utterly dismissed the public safety argument.

The only reason I agree with you on the need for a public safety argument is that nothing else has thus far worked. But to make the public safety argument is to ignore the decision of the Supreme Court in Heller and McDonald and to (except when the public safety argument is made in an "in the alternative" context) concede that, in fact, the courts do have the power to decide on a case by case basis whether the right is really worth insisting upon -- a direct contradiction of Heller.

The reason the Court dismissed the public safety argument matters immensely. You mentioned that it did so on the basis that the courts do not have the "power to decide on a case-by-case basis whether the right is really worth insisting upon". If that is the Court's reasoning for dismissing the public safety argument, then how is it not universally applicable when/where the 2nd Amendment protection of the right is operative and, more importantly, why aren't the lower courts heeding that?

Perhaps that argument, too, needs to be made explicitly. I don't recall seeing it raised, either.

kcbrown said:

Heller didn't create/establish the restrictions. It established the protection of the right. That's what I said. I said nothing about what restrictions on action were established by Heller. I did say something about what restrictions on the protection were established. Heller established that the protection of the right is not operative in "sensitive places". But because it established general protection of the right, and because explicitly excluded "sensitive places" from that protection, it follows that it established that said protection is operative everywhere else -- that which is not explicitly excluded from protection is included.

And that is a difference from what came before. Prior to Heller, there was no recognized 2nd Amendment protection of the individual right to arms anywhere (state-level protection is a different matter). So Heller did indeed change something. It just didn't change the situation in "sensitive places".

I certainly can't disagree with this. But nevertheless, in McDonald at least, the government raised the public safety issue and (to my knowledge, at least) the plaintiffs did not dispute it. And yet, despite that (and regardless of whether or not the plaintiffs disputed it), the Court utterly dismissed the public safety argument.

The only reason I agree with you on the need for a public safety argument is that nothing else has thus far worked. But to make the public safety argument is to ignore the decision of the Supreme Court in Heller and McDonald and to (except when the public safety argument is made in an "in the alternative" context) concede that, in fact, the courts do have the power to decide on a case by case basis whether the right is really worth insisting upon -- a direct contradiction of Heller.

The reason the Court dismissed the public safety argument matters immensely. You mentioned that they did so because the courts do not have the "power to decide on a case-by-case basis whether the right is really worth insisting upon". If that is the Court's reasoning for dismissing the public safety argument, then how is it not universally applicable when/where the 2nd Amendment protection of the right is operative and, more importantly, why aren't the lower courts heeding that?

Perhaps that argument, too, needs to be made explicitly. I don't recall seeing it raised, either.

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I am not sure what you are trying to clarify. The original argument was over open carry and whether Heller changed anything with respect to open carry. The sensitive places is somewhat related because it addresses restrictions on where you can carry. In either case no changes were made to these issues.

There were definitely changes made by Heller. It recognized the federal government could not restrict individuals from owning handguns in their home. It had limited applicability because it only applicable at the federal level where there are limited restrictions that remained in place after Heller. DC was the only place it had any effect.

The main protection of the right has typically been at the state level. The state is also where carry outside the home is regulated. Heller made no changes here because the 2A did not apply to the states at this point.

Heller is not as clear cut as you make it out to be. It literally says "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" There is also a "historical tradition of prohibiting the carrying of dangerous and unusual weapons."

There are definitely cases where it applies and where it does not. SCOTUS has not resolved all of the cases and has left the issue to the lower courts. It has not defined what dangerous and unusual means and has not even explained why public safety was excluded from Heller and McDonald.

It is not the lower court that is ignoring Heller, it is the plaintiffs. For example, in Kolbe, there is no mention of Heller excluding the public safety argument. Kolbe addressed dangerous and unusual by ignoring the dangerous part and saying that it is not unusual.

I believe you should say that not only do law abiding citizen not create the danger, they help mitigate the danger. The danger comes from the criminality which has already been addressed through the law. Heller and McDonald agree.

jcutonilli said:

I am not sure what you are trying to clarify. The original argument was over open carry and whether Heller changed anything with respect to open carry.

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Well, if you're talking about what actually changed with respect to whether or not people are subject to particular laws, then of course Heller changed nothing except for DC's law, since laws cannot change until after a challenge against them is won.

So clearly what we must be talking about is the legal landscape. And with respect to that, the answer is that Heller did change it with respect to open carry, in that it established 2nd Amendment protection of it. 2nd Amendment protection of open carry simply didn't exist prior to Heller. However, my read of Heller is that it does not differentiate between open carry and concealed carry with respect to protection. It notes that concealed carry prohibitions have been upheld by the early RKBA cases while those cases also explicitly said that open carry is protected, but a valid interpretation of that is that the right to carry cannot be entirely foreclosed. This is a vagueness in Heller that the Supreme Court needs to address.

The sensitive places is somewhat related because it addresses restrictions on where you can carry.

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Correct. And it's nonsensical to address restrictions on where you can carry if there's no protection of carry. Therefore, carry is protected.

In either case no changes were made to these issues.

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Other than establishing 2nd Amendment protection, no, Heller doesn't change anything.

There were definitely changes made by Heller. It recognized the federal government could not restrict individuals from owning handguns in their home.

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That's what it held. But to claim that such is all Heller did is to insist that the Supreme Court writes things in its opinions for the fun of it, because the Heller decision covers much more than merely that which it held.

It had limited applicability because it only applicable at the federal level where there are limited restrictions that remained in place after Heller. DC was the only place it had any effect.

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Right. But Heller did establish that keep and bear are protected by the 2nd Amendment. McDonald later came in and said that the 2nd Amendment protections are operative against the states.

Obviously, you need both in order to counter state laws.

The main protection of the right has typically been at the state level. The state is also where carry outside the home is regulated. Heller made no changes here because the 2A did not apply to the states at this point.

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Yes, I think we're in agreement that McDonald is necessary for 2A protections to extend to the states. But once you've got that, then the protections are the same for both arenas, because McDonald didn't say differently.

Heller is not as clear cut as you make it out to be. It literally says "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" There is also a "historical tradition of prohibiting the carrying of dangerous and unusual weapons."

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Yes. And further, it also said that "Constitutional rights are enshrined with the scope they were understood to have when the people adopted them".

There are really two things in play here:

1. The scope of the right
2. The scope of the protections of the right

Heller addressed both. That which is protected is the intersection of the scope of the right and the scope of the protections. But the implication of that is clear: if something is within the scope of the right, it is protected unless there's an explicit exception to that protection. "Sensitive places" looks to me like an example of an exception to the scope of the protection, because they at least some of them (e.g., schools) were not understood to be exempt from the right itself by the founders.

There are definitely cases where it applies and where it does not.

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Of course. However, as I said, that which is not explicitly excluded from protection is protected, once protection itself is established. Were this not the case, there would be no need for the Court to specify that protection excludes "sensitive places", since the rule would then be that only that which is explicitly specified is protected.

SCOTUS has not resolved all of the cases and has left the issue to the lower courts. It has not defined what dangerous and unusual means and has not even explained why public safety was excluded from Heller and McDonald.

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No, but we know that public safety was overcome by McDonald (I cannot say about Heller as it doesn't even talk about public safety at all, and I have not been able to find much related to it in the various briefs I've been able to locate).

It is not the lower court that is ignoring Heller, it is the plaintiffs. For example, in Kolbe, there is no mention of Heller excluding the public safety argument. Kolbe addressed dangerous and unusual by ignoring the dangerous part and saying that it is not unusual.

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I don't disagree with you on that, but nevertheless, isn't it the duty of the lower courts to import the Supreme Court's reasoning into their own opinions? Why must the plaintiffs explicitly argue in favor of the reasoning used by the Supreme Court? Aren't the lower courts supposed to be constrained such that they must use Supreme Court reasoning when said reasoning is available and, especially, when said reasoning is available from the foundational decision? If the Supreme Court apparently used a particular type of reasoning to dispense with the public safety argument in the foundational 2nd Amendment cases, are not the lower courts forced to use the very same reasoning to dispense with other public safety arguments in the 2nd Amendment arena?

I believe you should say that not only do law abiding citizen not create the danger, they help mitigate the danger. The danger comes from the criminality which has already been addressed through the law. Heller and McDonald agree.

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Yes, and I agree with you here as well. However, it seems to me that such an argument needs to be raised as an "in the alternative" argument, with the primary argument being that which the Supreme Court apparently (because I don't know of anything else in either decision that would be applicable) used to dispense of the "public safety" argument: that courts are not empowered to "decide on a case-by-case basis whether the right is really worth insisting upon".

It really shouldn't be necessary to argue either of those ways, because the lower courts should be automatically picking up on the reasoning the Court must have used to dispense with the "public safety" argument, since that reasoning was obviously necessary for the Supreme Court to arrive at the decisions it did. It should be sufficient to assert the right and assert that the 2nd Amendment protection applies, precisely because of the reasoning the Court must have used to dispense with the "public safety" argument that had been raised. But the lower courts are either dishonest or obtuse (the evidence clearly shows the former, since confusion is independent of political party but the decisions of the individual members of the lower courts is highly correlated with political party).

To answer the question of when the 2A addressed open carry I leave you with this "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

To answer the questions on the Courts I will simply say Courts try and be impartial and address only the issues raised and contested. See holding 3 of Heller on how the Court addressed the licensing issue.

jcutonilli said:

To answer the question of when the 2A addressed open carry I leave you with this "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed."

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Yes, that's when the 2nd Amendment addressed open carry (and concealed, for that matter, since the Amendment makes no mention of any form of carry) -- when it was penned/ratified. But the protection of carry by the 2nd Amendment did not become operative until Heller, because it wasn't until that point that the Supreme Court recognized the right as one held by individuals.

To answer the questions on the Courts I will simply say Courts try and be impartial and address only the issues raised and contested. See holding 3 of Heller on how the Court addressed the licensing issue.

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Let me get this straight: if neither party raises an argument that includes a particular Supreme Court precedent, the lower court in question is not bound by that precedent with respect to a decision it would issue in that case???

Man, if for nothing else, I can't wait for SCOTUS to decide one way or another on this case, just because MDS' self-appointed constitutional lawyers have been particularly active this past week. Wading through pages of bickering and nit-picking is labor-intensive! 9:30 can't come fast enough!