5/11 scotus briefs

jcutonilli · Jun 17, 2020

delaware_export said:
Ima redneck with no legal credentials.. but my thinking is about the same as yours.

Ok, if cc can be denied by .gov, and oc is unlawful, by law passed by .gov, That leaves NO C. Period. By law abiding citizens.

So young, when heard, and presumably appealed after being shot down en ban, effectively addresses the “is possessing any gun outside the home” a right.

Hawaii and other places say no.

So. Where does it go?

You need to argue the cases correctly. If you don't bother to explain the historical prohibition on CCW then the court will simply accept it, which is what happened in Peruta. If you do explain the reasoning behind the historical prohibitions, then the en banc court could clarify its decision in Pertua.

After the en banc, the only other court is the Supreme Court.

pcfixer · Jun 19, 2020

jcutonilli said:
I don't understand the point you are trying to make.

I am referring to the part in the Heller decision where they stated
emphasis added

https://www.gunsamerica.com/digest/states-can-deny-carry-rights-of-non-residents-says-legal-scholar/

Only residents of Texas, Arkansas, Mississippi, and Virginia who already possess concealed carry licenses may apply for the same kind of license in Illinois. Residents of all other 45 states are prohibited from even attempting to secure a license.

So, Where is the 14h A Equal Protection Clause?
"nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

Occam · Jun 19, 2020

The argument goes that a carry permit is a privilege and not a right. Unlike, say, criminal law where equal treatment is a federally, constitutionally protected right, the issuing of a state license is something they consider a local, state matter. Just like they don’t have to issue an Illinois business license to a non-resident person.

As long as carry permits are thought of by a state the same way they think of a driver’s license, they don’t see it rubbing the Bill Of Rights the wrong way. They’re wrong, of course, but that’s how they position it.

delaware_export · Jun 19, 2020

That was my point several pages back, as related to the young case.

Hawaii prohibits oc as well as cc. So is any C protected? Can you actually bear arms? In any manor? What so every? (Scalia’s overly clever wording haunting us)

Additionally they charge to request either permit carry, which they summarily deny. (Rumor has it that DENIED is preprinted on the form

)

And payment to exercise a right is the next issue, even if the would issue a permit... which they don’t.

Occam said:
The argument goes that a carry permit is a privilege and not a right. Unlike, say, criminal law where equal treatment is a federally, constitutionally protected right, the issuing of a state license is something they consider a local, state matter. Just like they don’t have to issue an Illinois business license to a non-resident person.

As long as carry permits are thought of by a state the same way they think of a driver’s license, they don’t see it rubbing the Bill Of Rights the wrong way. They’re wrong, of course, but that’s how they position it.

jcutonilli · Jun 19, 2020

pcfixer said:
https://www.gunsamerica.com/digest/states-can-deny-carry-rights-of-non-residents-says-legal-scholar/

Only residents of Texas, Arkansas, Mississippi, and Virginia who already possess concealed carry licenses may apply for the same kind of license in Illinois. Residents of all other 45 states are prohibited from even attempting to secure a license.

So, Where is the 14h A Equal Protection Clause?
"nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

I am not that familiar with the Culp case, I have only read the cert petition. They don't pose a 14A question in the petition.

Based on other 2A cases, the courts are willing to find that the two groups are somehow not similarly situated. One they find that they are not similarly situated, the 14A protections do not apply.

We don't specifically know why Culp was rejected, nor do we really know why Roger was rejected. I suspect that it was because they never addressed the historical prohibitions on concealed carry. Culp was also pushing for strict scrutiny, which is unlikely to be granted.

jcutonilli · Jun 19, 2020

delaware_export said:
That was my point several pages back, as related to the young case.

Hawaii prohibits oc as well as cc. So is any C protected? Can you actually bear arms? In any manor? What so every? (Scalia’s overly clever wording haunting us)

Additionally they charge to request either permit carry, which they summarily deny. (Rumor has it that DENIED is preprinted on the form )

And payment to exercise a right is the next issue, even if the would issue a permit... which they don’t.

We are still resolving the case. The district court said no, the appellate court said yes. We are waiting on the en banc court.

I don't believe Scalia was being overly clever. He was simply acknowledging that there have been some historical regulations and that it should not be interpreted as an unlimited right.

You certain can be required to pay something to exercise a right. Just look at parade permits. I think you are going to have a hard time getting the court to accept zero fees.

rbird7282 · Jun 19, 2020

jcutonilli said:
I don't understand the point you are trying to make.

I am referring to the part in the Heller decision where they stated
emphasis added

And that portion of the decision is wrong

Sent from my iPhone using Tapatalk

delaware_export · Jun 19, 2020

Tax the right to vote. Every court in any jurisdiction would be on that like stink on crap. Poll tax

Make A permit requirement to be exempt from unreasonable search. The 4th amendment tax

Or a permit to practice religion. The religion of your choosing. And so on.

It’s not necessarily that Scalia was being clever, it’s more that the under courts have spun his phrasing, maybe his attempt to be easy going, and rearranged the punctuation so reach that point. And you should catch that as what seems to be fact based on their rulings as well as some sarcasm, added by me.

You got admit that that is effectively the way Hawaii and every judge has taken the issue, up to the last young ?panel? Ruling. And like Peruta, this non legal scholar believes that the en banc will do to young as they did to Peruta.

Sorry for the rail. I do appreciate the analysis you real legal folks do here! SCOTUS no longer has my trust and neither do the politicians.

I am thinking Scalia and Thomas, and now Gorsuch are correct. The 2a is disfavored and in the process of being nullified.

Just one layman’s opinion.

jcutonilli said:
We are still resolving the case. The district court said no, the appellate court said yes. We are waiting on the en banc court.

I don't believe Scalia was being overly clever. He was simply acknowledging that there have been some historical regulations and that it should not be interpreted as an unlimited right.

You certain can be required to pay something to exercise a right. Just look at parade permits. I think you are going to have a hard time getting the court to accept zero fees.

jcutonilli · Jun 19, 2020

rbird7282 said:
And that portion of the decision is wrong

Sent from my iPhone using Tapatalk

Based on what? Are you saying Scalia was incapable of reading old court cases and understanding the outcome? There were numerous cases mentioned in Heller that, all most all of which, came to the conclusion that CCW was not part of the right. He also mentioned a number of laws that put restrictions on the use and storage of arms.

jcutonilli · Jun 19, 2020

delaware_export said:
Tax the right to vote. Every court in any jurisdiction would be on that like stink on crap. Poll tax

Make A permit requirement to be exempt from unreasonable search. The 4th amendment tax

Or a permit to practice religion. The religion of your choosing. And so on.

It’s not necessarily that Scalia was being clever, it’s more that the under courts have spun his phrasing, maybe his attempt to be easy going, and rearranged the punctuation so reach that point. And you should catch that as what seems to be fact based on their rulings as well as some sarcasm, added by me.

You got admit that that is effectively the way Hawaii and every judge has taken the issue, up to the last young ?panel? Ruling. And like Peruta, this non legal scholar believes that the en banc will do to young as they did to Peruta.

Sorry for the rail. I do appreciate the analysis you real legal folks do here! SCOTUS no longer has my trust and neither do the politicians.

I am thinking Scalia and Thomas, and now Gorsuch are correct. The 2a is disfavored and in the process of being nullified.

Just one layman’s opinion.

The 24th amendment seems pretty clear about poll taxes. I am not sure what you are talking about with respect to 4th amendment permits. Religious organizations need things like building permits, if they want a place to meet.

The problem with the 2A is that while it says the right to keep and bear arms shall not be infringed, it does not specify what the extent of the right is. Heller certainly did not define the extent of the right either.

The en banc Peruta court looked at the history and concluded that there was a historical prohibition on concealed carry and concluded, just like Heller and the cases they reference, that concealed carry was not considered part of the right. The plaintiffs in the case presented no evidence as to why things have changed.

While I understand why people say the 2A is disfavored, I think they are misunderstanding what it going on. Heller says very little. It reiterates that it is an individual right, but defines almost nothing about what this means. We know that there cannot be a complete ban on having a handgun in the home, but do not know what other limitations can be imposed. We know certain policy choices are off the table, but do not know which policy choices they are. It does not even apply the amendment to the states themselves, McDonald is needed for that.

People expect SCOTUS to step in and change things. Yet all that can really be said is that we don't like the result. The lower courts are not following a precedent that is so limited it does not address much of any of the facts and circumstances of the case. We think they really used rational basis, but can't articulate any reasons why this is the case. Please figure this out for us because we can't.

Just one person's opinion.

press1280 · Jun 20, 2020

jcutonilli said:
You need to argue the cases correctly. If you don't bother to explain the historical prohibition on CCW then the court will simply accept it, which is what happened in Peruta. If you do explain the reasoning behind the historical prohibitions, then the en banc court could clarify its decision in Pertua.

After the en banc, the only other court is the Supreme Court.

The historical prohibitions never really were analyzed by the courts that ruled that way (Nunn, Chandler,exc.). They simply assumed that the state was allowed to ban one as long as the other was available, and the social norms of the time dictated that the public would rather see that someone was armed instead of not see someone could be armed. The FL supremes in Norman essentially ruled this as well except that it could be reversed (OC banned in favor of CCW), and the actions of DC and IL, when forced into one mode of carry or another by court decisions, choose CC over OC.
But I'll also point out that Norman was denied cert outright by SCOTUS and plaintiffs held fast to the Nunn and Chandler precedents (OC MUST be allowed). If sticking to actual precedent didn't get them cert, why do you think explaining the historical CCW prohibitions even matter when they aren't even challenging them?

press1280 · Jun 20, 2020

jcutonilli said:
Based on what? Are you saying Scalia was incapable of reading old court cases and understanding the outcome? There were numerous cases mentioned in Heller that, all most all of which, came to the conclusion that CCW was not part of the right. He also mentioned a number of laws that put restrictions on the use and storage of arms.

Laws technically shouldn't matter, only court opinions. The antis always point to some law to "prove" their prohibitions are constitutional, however, a law's mere existence can't be the source of its constitutionality.

HaveBlue · Jun 20, 2020

jcutonilli said:
You certain can be required to pay something to exercise a right. Just look at parade permits. I think you are going to have a hard time getting the court to accept zero fees.

Can be? Sure.

I really like analogies. After the last few weeks, I think this one is no longer valid.

Parade permits, Vandalism, theft and assault laws are being pushed aside in the name of free political speech.

Like many other non-lawyers on this group. I really appreciate the time and effort you take to post here.

jcutonilli · Jun 20, 2020

press1280 said:
The historical prohibitions never really were analyzed by the courts that ruled that way (Nunn, Chandler,exc.). They simply assumed that the state was allowed to ban one as long as the other was available, and the social norms of the time dictated that the public would rather see that someone was armed instead of not see someone could be armed. The FL supremes in Norman essentially ruled this as well except that it could be reversed (OC banned in favor of CCW), and the actions of DC and IL, when forced into one mode of carry or another by court decisions, choose CC over OC.
But I'll also point out that Norman was denied cert outright by SCOTUS and plaintiffs held fast to the Nunn and Chandler precedents (OC MUST be allowed). If sticking to actual precedent didn't get them cert, why do you think explaining the historical CCW prohibitions even matter when they aren't even challenging them?

If the precedent was that the state was allowed to ban one as long as the other was available, then Norman's argument is not correct and does not actually follow precedent. The state court would have been correct to reject Norman's argument and there would be no need for SCOTUS to get involved.

In Peruta the plaintiffs argued the same position, the state was allowed to ban one as long as the other was available. What was different was that Peruta was asking to court to choose one over the other rather than the state. The court dismissed the case because it could not conclude that CCW was part of the right.

You don't necessarily need to explain the historical CCW prohibitions. There are certainly other ways to demonstrate what can be restricted and what cannot. One of the things that the courts are struggling with is figuring which restrictions are acceptable and which are not. The historical CCW prohibitions seem to be an easy way to help answer this question. They were banning criminal behavior rather than simply banning a method of carry. In today's society things are exactly opposite. Open carry can negatively impact society due to irrational fears, while CCW does not.

Ultimately I believe SCOTUS is looking for case that help clarify the 2A, but none of them to date really do that.

jcutonilli · Jun 20, 2020

press1280 said:
Laws technically shouldn't matter, only court opinions. The antis always point to some law to "prove" their prohibitions are constitutional, however, a law's mere existence can't be the source of its constitutionality.

We live in a common law legal system https://en.wikipedia.org/wiki/Common_law The court opinions are considered case law. Statutes certainly do matter and are the basis of any opinion. The opinions resolve those parts which are either ambiguous or are not addressed by the statutes.

The courts are not trying to prove the constitutionality of any of these laws, they are trying to understand the extent of the right as it was previously understood. The laws create datapoints to help understand the extent of the right. The problem with laws are that they do not explain why. This is where the common law opinions fill in the missing factors so they can apply the laws to the specific situations.

delaware_export · Jun 20, 2020

I didn’t get the same understanding from Peruta.

Specifically, in listening to the oral arguments, one of the judges asked the plaintiffs lawyer (quoting from memory, it’s been a few years since listening )

Do you wish to also say that since this case started, the state of California has also outlawed open carry? Leaving no carry option?

The lawyer said NO very clearly. It seems that Peruta was exclusively about CC and permitting.

Or maybe the lawyer should have said... yeah! That too.

Cali, and all the usual culprit states, have effectively outlawed OC. MA NJ CA NY HI and others. So..

According to the 9th, that leaves NO C. Other circuits seem to agree as well.

jcutonilli said:
If the precedent was that the state was allowed to ban one as long as the other was available, then Norman's argument is not correct and does not actually follow precedent. The state court would have been correct to reject Norman's argument and there would be no need for SCOTUS to get involved.

In Peruta the plaintiffs argued the same position, the state was allowed to ban one as long as the other was available. What was different was that Peruta was asking to court to choose one over the other rather than the state. The court dismissed the case because it could not conclude that CCW was part of the right.

You don't necessarily need to explain the historical CCW prohibitions. There are certainly other ways to demonstrate what can be restricted and what cannot. One of the things that the courts are struggling with is figuring which restrictions are acceptable and which are not. The historical CCW prohibitions seem to be an easy way to help answer this question. They were banning criminal behavior rather than simply banning a method of carry. In today's society things are exactly opposite. Open carry can negatively impact society due to irrational fears, while CCW does not.

Ultimately I believe SCOTUS is looking for case that help clarify the 2A, but none of them to date really do that.

jcutonilli · Jun 20, 2020

HaveBlue said:
Can be? Sure.

I really like analogies. After the last few weeks, I think this one is no longer valid.

Parade permits, Vandalism, theft and assault laws are being pushed aside in the name of free political speech.

Like many other non-lawyers on this group. I really appreciate the time and effort you take to post here.

I still think parade permit fees are valid. I think what the law few weeks emphasize is that the government cannot protect you and a total reliance on them for your safety can negatively affect public safety.

jcutonilli · Jun 20, 2020

delaware_export said:
I didn’t get the same understanding from Peruta.

Specifically, in listening to the oral arguments, one of the judges asked the plaintiffs lawyer (quoting from memory, it’s been a few years since listening )

Do you wish to also say that since this case started, the state of California has also outlawed open carry? Leaving no carry option?

The lawyer said NO very clearly. It seems that Peruta was exclusively about CC and permitting.

Or maybe the lawyer should have said... yeah! That too.

Cali, and all the usual culprit states, have effectively outlawed OC. MA NJ CA NY HI and others. So..

According to the 9th, that leaves NO C. Other circuits seem to agree as well.

The Peruta en banc consolidated two cases Pertua and Richards. Clement represented Peruta, Gura represented Richards.

https://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000007886

approx 2 min into the argument Clement indicates that this is case is about whether there is some right to carry outside the home, not whether there was a right to CCW.

Given the ban on OC they are essentially asking the court to accept CCW without demonstrating it may actually be part of the right, even though there is a historical prohibition.

I am not aware of any other case that tries to demonstrate that CCW may be part of the right by better explaining the historical prohibition.

Which cases challenged the laws on OC grounds?

press1280 · Jun 20, 2020

jcutonilli said:
The Peruta en banc consolidated two cases Pertua and Richards. Clement represented Peruta, Gura represented Richards.

https://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000007886

approx 2 min into the argument Clement indicates that this is case is about whether there is some right to carry outside the home, not whether there was a right to CCW.

Given the ban on OC they are essentially asking the court to accept CCW without demonstrating it may actually be part of the right, even though there is a historical prohibition.

I am not aware of any other case that tries to demonstrate that CCW may be part of the right by better explaining the historical prohibition.

Which cases challenged the laws on OC grounds?

Norman v state Fl

BeoBill · Jun 20, 2020

I would love to see Trump win, and upon Re-Inauguration write an Executive order expanding LEOSA eligibility to anyone without a Felony conviction. I have first dibs on RSBN franchise rights to the coverage of the sh1tstorm that would follow.

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