NYC CCW case is at SCOTUS!

camo556 · Oct 26, 2021

jcutonilli said:
I am curious about what others think about these historical prohibitions.

Doubtful. You seem denser than the tungsten in my buffer tube.

Nothing in this thread has been said about open vs concealed that has not already been said eleventy trillion times over. Heller already defined the problem away,

Halbrook has already written extensively about concealed weapons laws. Concealed carry was banned in the South for moral reasons, not in the north. Also we have the case Heller favorably cited Bliss v. Commonwealth, where prohibition on concealed carry was deemed unconstitutional under the Kentucky constitution. The Kentucky constitution at the time stated "that the right of the citizens to bear arms in defence of themselves and the state, shall not be questioned."

Halbrook :

Looking at the history and tradition in the United States, in the nineteenth century, actually, the Southern states, by and large, enacted concealed weapon laws, which implied that there was no going-armed prohibition, because you would not need to ban concealed weapons if it was already illegal. However, the Northern states did not. The Massachusetts law from 1836 did not provide that it was a crime to be armed in public. It said that if you are armed, if someone is feeling threatened, that person can bring a petition, and if that person can reasonably show that he or she is threatened by you or that you are threatening a breach of the peace, that person can basically get a peace bond where you have to get sureties to guarantee your good behavior. That was not a ban at all, as it required actually threatening people. And everybody could agree with that. That is fully consistent with a constitutional right to bear arms—that if you bear arms and you threaten other people, or if you are likely to commit a breach of the peace, we do not want people like that going around, being armed, engaging in that kind of disruptive behavior.

So there were basically no carry restrictions in the Northern states as long as it was peaceable. And, in fact, in New Jersey, which today has some of the most stringent restrictions on the bearing of arms, open carry was legal until 1966, which sounds incredible.

And an interesting note about the Statute of Northampton:

What the Statute of Northampton did was to prohibit riding or going armed. And it also had language about doing so to the terror of the King’s subjects. And the way the English courts ended up construing that statute was it was an offense to go armed only if you did so in a manner that terrified other people So if you were carrying concealed, obviously, you
wouldn’t be doing that. Or if you were simply peacefully going
about your business, you wouldn’t be doing that.

https://www.harvard-jlpp.com/wp-content/uploads/sites/21/2020/03/Halbrook-FINAL.pdf

But none of that is relevant, because Heller already defined "bear arms"

At the time of the founding, as now, to “bear” meant to“carry.” See Johnson 161; Webster; T. Sheridan, A Complete Dictionary of the English Language (1796); 2 Oxford English Dictionary 20 (2d ed. 1989) (hereinafter Oxford) .When used with “arms,” however, the term has a meaning that refers to carrying for a particular purpose—confrontation. In Muscarello v. United States, 524 U. S. 125 (1998), in the course of analyzing the meaning of “carries a firearm” in a federal criminal statute, JUSTICE GINSBURG wrote that “urely a most familiar meaning is,as the Constitution’s Second Amendment . . . indicate: ‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.’”

In the clothing or pocket. Says so right there.

I only want to add that NY has stopped arguing about carry. They framed the question as what restrictions they can put on the right to carry. Game over. They have moved on. So should you. If you think that NYC's fall back is open carry in NYC I have a Glock 7 to sell you. Their fall back is that all of NYC is a sensitive area.

delaware_export · Oct 26, 2021

Slavery and the scotus’ historical position should serve as a frame of reference.

They got it wrong and it took a civil war to resolve the issue.

Regarding guns, they should fix their error now.

Contradictions from the first miller in the 30’s reek here.

States ignore deadlines now and scotus forces response. When lawyers didn’t respond in Miller, they went ahead anyway. (Iirc Miller died/disappeared and the lawyer lost interest. Apply the lack of interest when NY/NJ don’t reply in time)

They ruled the SB gun in the case was not protected as military because it wasn't in common military use. Well the contradiction is that now many things are FA… a good number were then.. check the NFA/GCA/‘86

More recently.

Looking at only concealed carry in the current case ignores that several states in question ban any carry by common individuals. Open/concealed. Both illegal. NY especially. HI NJ CA…

The last mooted case, after every branch of gov admitted they infringed by caving, changing laws and backing down only at the last minute, scotus bailed. By not ruling they let the offenders off the hook for responsibility for such actions.

The points i see… I AM NOT A LAWYER … would be:

Gun ownership and possession is protected. Including carry in ANY MANOR

This case, and many others, is not a limitation or restriction. Combined with other laws, it is 100% prohibition against average law abiding citizens.

The only reason this case is being argued as CC, is that if you presume open carry ban laws are relevant and legal, is that cc laws, if take at face value, offer a means of carry.. but in practice, the right is 100% denied to regular folk.

Castle rock and other similar cases, and especially as current events show, the .gov is not legally responsible or required to protect anyone. Ever. Is incapable of protecting everyone, especially ME. And wouldn’t anyway. And recent events in places like NYC, this is evident.

Things that constitute a restriction on the carry of guns would be based on use. Ie, just because you can carry a gun doesn’t mean you can walk down the street popping people shorter then. 5’8”.

The restriction doesn’t apply to what or how you carry. Open or concealed.

Some form of non-right punitive means of exercise of carry must be open. Same as voting. Charging is a poll tax

The single issue here, or with any case, is a lie. The individual cases do not exist in a vacuum. The issues must be viewed in its totality.

People’s feels are also not relevant. As long as I am not threatening with direct action, or actually acting, I can’t be accuse the BS charges police try now for carrying. (Public disturbance and such things)

Anyway.. come on November so we can switch from arguing about how things will be argued and argue about how the real arguments, and points never made, will be used in the ruling.

Gonna be a long 9 month or so.. until next end of term rulings

jcutonilli · Oct 26, 2021

camo556 said:
Doubtful. You seem denser than the tungsten in my buffer tube.

Nothing in this thread has been said about open vs concealed that has not already been said eleventy trillion times over. Heller already defined the problem away,

Halbrook has already written extensively about concealed weapons laws. Concealed carry was banned in the South for moral reasons, not in the north. Also we have the case Heller favorably cited Bliss v. Commonwealth, where prohibition on concealed carry was deemed unconstitutional under the Kentucky constitution. The Kentucky constitution at the time stated "that the right of the citizens to bear arms in defence of themselves and the state, shall not be questioned."

Halbrook :

And an interesting note about the Statute of Northampton:

https://www.harvard-jlpp.com/wp-content/uploads/sites/21/2020/03/Halbrook-FINAL.pdf

But none of that is relevant, because Heller already defined "bear arms"

In the clothing or pocket. Says so right there.

I only want to add that NY has stopped arguing about carry. They framed the question as what restrictions they can put on the right to carry. Game over. They have moved on. So should you. If you think that NYC's fall back is open carry in NYC I have a Glock 7 to sell you. Their fall back is that all of NYC is a sensitive area.

You seem to have completely missed the sarcasm. Try reading it again using the previous poster's methodology. Let me know how far you get.

I never mentioned anything about concealed or open carry in that post. You also completely wrong about what you said.

Heller did not define the issue of open or concealed carry away. It specifically mentioned "prohibitions on carrying concealed weapons" as an example of how the 2A right is not unlimited.

Heller cited Bliss only in a footnote that referenced several state cases. The reason it was cited was to confirm that "bear arms" was not confined to an organized militia.

While Heller did provide a definition of "bear arms", they did not use that definition to define the right to include carrying of concealed weapons. Heller used concealed weapons as an example that the right is not unlimited.

I am aware of Halbrook's positions. NYS has a different interpretation of those same facts. Halbrook's arguments mimic the plaintiff's arguments and don't directly address the prohibitions on carrying concealed weapons. It is unclear how that will affect the outcome of this case.

I have never claimed that NY was arguing about the form of carry. They believe "that New York’s concealed-carry regime falls well within the range of traditional restrictions on the right to bear arms." They also believe that concealed-carry is not part of the right.

What remains to be decided is how SCOTUS will address the issue of concealed carry given the arguments that have presented.

PS The defendant/respondent is NYS not NYC.

lazarus · Oct 26, 2021

kcbrown said:
I completely agree. But here's the thing: you don't have to prohibit ownership of these things in order to deal with that. The things you're talking about are routinely dealt with in other ways, e.g. with safety regulations, training requirements, design and implementation requirements (e.g., safety feature requirements), etc.

A ban on ownership might be justifiable if the nature of what is being banned is such that it can't be owned safely even in the face of regulations such as that. But if something is that dangerous then it shouldn't be held by anyone, including the government.

Nuclear weapons are actually a good example of items which would be supremely dangerous if misused but which are designed in such a way that they will not go off uncommanded. There's an enormous amount of safety engineering that goes into them. The primary worry with respect to them is deliberate misuse. And if they were relatively inexpensive, then that too might be a legitimate concern that we'd have to somehow figure out. But they're so expensive that mere mortals can't afford them anyway. Is that enough to keep the worst case from happening if private citizens weren't banned ownership? Perhaps not.

All I can say is this: the citizenry doesn't have a real right to be free of tyranny unless it can possess everything, both now and in the future, that it would need to successfully restrain a well-armed and well-armored government. Maybe weapons with the power that nuclear weapons have would never be needed by the citizenry for that. But a compelling case would have to be made for that before one could definitively say that private ownership of such weapons should never be allowed at all.

Okay. But what if a billionaire wanted to privately develop a nuclear weapon and then decide to use it on a city? Unless there is a defacto ban because of laws that make it literally impossible to comply with no matter the private resources, then there would be no legal method to stop said billionaire from developing that nuke. And then nothing to stop them from using it except constant monitoring and being prepared to act at the slightest indication they might.

There are crazy people in the world. Even crazy rich people. Laws generally don’t stop bad guys. But the more resources it takes, whether that is money, time or effort, the more likely it IS possible to “catch” someone doing something like developing a private nuke. Or chemical weapons. Or biological weapons. WMD. Etc.

Because realistically, it is NOT that hard to make a nuclear weapon. Not if the stance is entirely permissive. The knowledge is somewhat widely available. Uranium isn’t that rare. The ability to enrich it really isn’t that much of a show stopper. Could I do that? No. At a minimum it would still take millions of dollars of resources. It takes a nation state these days because in general, no country is going to just allow a private citizen or a business that isn’t closely monitored by the government to do any of those things.

We have obviously proven that some people will attempt to acquire weapons of mass destruction. If there was no prohibition on their ownership outside of limited circumstances, licensing, etc., yeah we almost certainly would see more terrorist/nutsos blowing people and things up. There’d be relatively little to stop them until they made a move to use them in a dangerous way.

I don’t think we are particularly less free by the government not allowing private ownership of weapons of mass destruction.

Mike OTDP · Oct 26, 2021

On the other hand, let's walk this through. Assume, for the sake of discussion, that I want my very own A-bomb. Where do I buy one? The Government makes its own...and is under no obligation to sell me one. Nor are they under an obligation to let me import one. Ditto for fissile materials. If I'm rich enough, I can build an enrichment facility...but that's a multi-billion dollar enterprise. And the Nuclear Regulatory Commission will have something to say about permits and such. Once I've built my bomb, how do I know it works? And, of course, the Government is quite likely to insist that I store it with the same level of security as they store their own nuclear weapons...quite possibly at their facilities (cheaper that way). But I can come by and visit my bomb, take photos of it, and so forth. :-)

Or I can take the practical option and use my billion dollars to bankroll political campaigns. Get effective control of the Government's bombs through elections.

Having said that, it would be entertaining to apply for a Form 1 to make an atomic weapon...the paperwork would be a great conversation piece. :-)

press1280 · Oct 27, 2021

jcutonilli said:
Historical prohibitions are important to this case given the question that is presented. Heller talked about historical prohibitions. The state did mention the historical prohibitions. The plaintiffs did not directly address historical prohibitions though. One has to question how the court might address these historical prohibitions given the historical prohibitions in Heller, the fact that the state mentioned these historical prohibitions, but the plaintiffs did not directly address these historical prohibitions. I am curious about what others think about these historical prohibitions. Are historical prohibition really that important to this case given that Heller specifically mentions historical prohibitions. Do other people think that the state addressed historical prohibitions in line with the historical prohibition mentioned in Heller. Do think the way the plaintiffs addressed historical prohibitions is adequate given the states mentioning of historical prohibitions and the language in Heller that talks about historical prohibitions?

Do you know what is not funny? The fact that SCOTUS has denied to rule on the merits any 2A case since McDonald incorporated the 2A to the states via the 14A. They have passed on a significant number of cases.

I haven't read all the amicus briefs but in general terms I think it's unlikely the court steers the OC/CC discussion toward OC since neither side is going there.
And another thing I thought of is that back in the day CC seemed to mark the carrier as nefarious, however today with background checks we use their criminal records to tell whether they are nefarious or not and how they carry is no longer a factor necessarily.
It's a bit fuzzy but back in the 1800's as long as you weren't in jail you would always have your gun rights, correct?

Mike OTDP · Oct 27, 2021

If I had to bet, SCOTUS will rule that some sort of carry must be allowed. Some sort of background check would be OK, a prohibition of open or concealed carry would be acceptable...but not the "may but probably won't" issue regimes.

Allen65 · Oct 27, 2021

Mike OTDP said:
If I had to bet, SCOTUS will rule that some sort of carry must be allowed. Some sort of background check would be OK, a prohibition of open or concealed carry would be acceptable...but not the "may but probably won't" issue regimes.

My money would be on them strongly reiterating that judging restrictions on enumerated rights requires application of strict scrutiny without deference to the State, then remanding the decision back down to the lower courts for re-evaluation without them being allowed to do the "2A Two-Step".

In a way, that would be a better long-term result than just directly deciding themselves on the NY statute.

camo556 · Oct 27, 2021

https://fantasyscotus.net/case-prediction/new-york-state-rifle-pistol-association-inc-v-bruen/

live case prediction: 6-3 reversal.

Inigoes · Oct 27, 2021

camo556 said:
https://fantasyscotus.net/case-prediction/new-york-state-rifle-pistol-association-inc-v-bruen/

live case prediction: 6-3 reversal.

That is a thing?

camo556 · Oct 27, 2021

Inigoes said:
That is a thing?

murica.

jcutonilli · Oct 27, 2021

press1280 said:
I haven't read all the amicus briefs but in general terms I think it's unlikely the court steers the OC/CC discussion toward OC since neither side is going there.
And another thing I thought of is that back in the day CC seemed to mark the carrier as nefarious, however today with background checks we use their criminal records to tell whether they are nefarious or not and how they carry is no longer a factor necessarily.
It's a bit fuzzy but back in the 1800's as long as you weren't in jail you would always have your gun rights, correct?

It is not really an OC/CC discussion. It is how to disposition the historical prohibition on concealed carry. The plaintiffs don't directly address why this historical prohibition should not be followed.

If you were to faithfully follow text, history, and tradition, based on the arguments presented, the correct ruling should be that concealed carry is not part of the right. Only open carry is part of the right.

If the plaintiffs had argued the case correctly, that would not really be an option because the historical prohibition occurred to prevent criminality and not to prevent law abiding citizens from carrying.

The Court could also adopt the plaintiffs arguments. The down side to that is that it is not entirely based on text, history, and tradition. It may make it easier for governments to modify the right, depending on how the opinion is written.

I have not really studied the history of gun restrictions, so I am a bit fuzzy also. Carl on InrangeTV seems to indicate that gun restrictions were more common than one would imagine in the old west. I suspect that the restrictions were trying to address criminality without too much restrictions on the right to carry.

press1280 · Oct 28, 2021

jcutonilli said:
It is not really an OC/CC discussion. It is how to disposition the historical prohibition on concealed carry. The plaintiffs don't directly address why this historical prohibition should not be followed.

If you were to faithfully follow text, history, and tradition, based on the arguments presented, the correct ruling should be that concealed carry is not part of the right. Only open carry is part of the right.

If the plaintiffs had argued the case correctly, that would not really be an option because the historical prohibition occurred to prevent criminality and not to prevent law abiding citizens from carrying.

The Court could also adopt the plaintiffs arguments. The down side to that is that it is not entirely based on text, history, and tradition. It may make it easier for governments to modify the right, depending on how the opinion is written.

I have not really studied the history of gun restrictions, so I am a bit fuzzy also. Carl on InrangeTV seems to indicate that gun restrictions were more common than one would imagine in the old west. I suspect that the restrictions were trying to address criminality without too much restrictions on the right to carry.

There were a few gun carry bans in the old west when several states were still territories. I believe WY and ID. However, WY rescinded theirs a short time later and Idaho’s Supreme Court struck theirs down in In Re Brickey 1902. The left has tried to use these laws to defend their position but it works against them.

pcfixer · Oct 28, 2021

jcutonilli said:
It is not really an OC/CC discussion. It is how to disposition the historical prohibition on concealed carry. The plaintiffs don't directly address why this historical prohibition should not be followed.

If you were to faithfully follow text, history, and tradition, based on the arguments presented, the correct ruling should be that concealed carry is not part of the right. Only open carry is part of the right.

If the plaintiffs had argued the case correctly, that would not really be an option because the historical prohibition occurred to prevent criminality and not to prevent law abiding citizens from carrying.

The Court could also adopt the plaintiffs arguments. The down side to that is that it is not entirely based on text, history, and tradition. It may make it easier for governments to modify the right, depending on how the opinion is written.

I have not really studied the history of gun restrictions, so I am a bit fuzzy also. Carl on InrangeTV seems to indicate that gun restrictions were more common than one would imagine in the old west. I suspect that the restrictions were trying to address criminality without too much restrictions on the right to carry.

Seems to me Justices do not agree with you: "concealed carry not part of the right".
https://www.law.cornell.edu/supremecourt/text/16-894

A
The en banc court’s decision to limit its review to whether the Second Amendment protects the right to concealed carry—as opposed to the more general right to public carry—was untenable. Most fundamentally, it was not justified by the terms of the complaint, which called into question the State’s regulatory scheme as a whole. See First Amended Complaint ¶63 (“Because California does not permit the open carriage of loaded firearms, concealed carriage with a [concealed carry] permit is the only means by which an individual can bear arms in public places”); id., ¶74 (“States may not completely ban the carrying of handguns for self-defense”). And although the complaint specified the remedy that intruded least on the State’s overall regulatory regime—declaratory relief and an injunction against the sheriff’s restrictive interpretation of “good cause”—it also requested “[a]ny further relief as the Court deems just and proper.” Id., ¶152.

As the Ninth Circuit panel pointed out, “[petitioners] argue that the San Diego County policy in light of the California licensing scheme as a whole violates the Second Amendment because it precludes a responsible, law-abiding citizen from carrying a weapon in public for the purpose of lawful self-defense in any manner.” 742 F. 3d, at 1171. The panel further observed that although petitioners “focu” their challenge on the “licensing scheme for concealed carry,” this is “for good reason: acquiring such a license is the only practical avenue by which [they] may come lawfully to carry a gun for self-defense in San Diego County.” Ibid. Even the en banc court acknowledged that petitioners “base their argument on the entirety of California’s statutory scheme” and “do not contend that there is a free-standing Second Amendment right to carry concealed firearms.” 824 F. 3d, at 927.

AND...
https://www.law.cornell.edu/supremecourt/text/18-824

Although our decision in Heller did not provide a precise standard for evaluating all Second Amendment claims, it did provide a general framework to guide lower courts. In Heller, we recognized that “the Second Amendment . . . .codified a pre-existing right” Id., at 592. This right was “enshrined with the scope [it was] understood to have when the people adopted” it. Id., at 634. To determine that scope, we analyzed the original meaning of the Second Amendment’s text as well as the historical understanding of the right. We noted that “limitation” on the right may be supported by “historical tradition,” but we declined to “undertake an exhaustive historical analysis . . . of the full scope of the Second Amendment.” Id., at 626–627. Instead, we indicated that courts could conduct historical analyses for restrictions in the future as challenges arose. Id., at 635.

Click to expand...

Open or concealed codified a pre existing right...

II
This case also presents the Court with an opportunity to clarify that the Second Amendment protects a right to public carry. While some Circuits have recognized that the Second Amendment extends outside the home, see Wrenn v. District of Columbia, 864 F. 3d 650, 665 (CADC 2017); Moore v. Madigan, 702 F. 3d 933, 937 (CA7 2012), many have declined to define the scope of the right, simply assuming that the right to public carry exists for purposes of applying a scrutiny-based analysis, see Woollard v. Gallagher, 712 F. 3d 865, 876 (CA4 2013); Drake v. Filko, 724 F. 3d 426, 431 (CA3 2013); Kachalsky v. County of Westchester, 701 F. 3d 81, 89 (CA2 2012).2 Other courts have specifically indicated that they would not interpret the Second Amendment to apply outside the home without further instruction from this Court. United States v. Masciandaro, 638 F. 3d 458, 475 (CA4 2011) (“On the question of Heller’s applicability outside the home environment, we think it prudent to await direction from the Court itself”); Williams v. State, 417 Md. 479, 496, 10 A. 3d 1167, 1177 (2011) (“If the Supreme Court . . . meant its holding [in Heller] to extend beyond home possession, it will need to say so more plainly”). We should provide the requested instruction.

Click to expand...

camo556 · Oct 28, 2021

New York’s arguments

The state does not dispute that there is a right to carry a gun outside the home for self-defense. It maintains, however, that the right is not absolute: A state can require, as New York has here, that anyone who wants to carry a handgun around other members of the public must show an actual need for protection. This kind of restriction, the state argues, is consistent with the practice in both England and the United States for the past 700 years, where the “[h]istory shows that local officials have long had wide latitude to decide where and under what circumstances firearms could be carried in public, and to restrict the carrying of concealable firearms, particularly in populous areas.” If anything, the state tells the justices, the New York law is in fact “less restrictive than many public-carry laws in place” in early American history.

https://www.scotusblog.com/2021/10/...limits-on-carrying-a-concealed-gun-in-public/

pcfixer · Oct 28, 2021

camo556 said:
https://www.scotusblog.com/2021/10/...limits-on-carrying-a-concealed-gun-in-public/

Yes. I agree with above...
BUT.

The state ends with a warning for the justices. The challengers’ interpretation of the Second Amendment, it cautions, would not only strike down laws like New York’s. It also could mean the end for state and federal regulations “adopted to protect the public in sensitive places where people typically congregate — settings like courthouses, airports, subways, sports arenas, bars, gaming facilities, houses of worship, and schools.”

so, does this equate to "public safety" two step?

Kharn · Oct 28, 2021

profile on the judge who denied the two permits and kicked the whole case off

camo556 · Oct 28, 2021

pcfixer said:
Yes. I agree with above...
BUT.

so, does this equate to "public safety" two step?

No doubt the dissent will say that.

delaware_export · Oct 29, 2021

Interesting that the article here says that 65% of applicants receive unrestricted CC permits.

Of interest would be number of total applicants, and some unknown associated knowing that if an applicant says.. for self defense, they will be rejected and any time and money associated with the application.

Much like Hawaii I’d assume that people just don’t apply any more because the application forms are preprinted with a big red DENIED in the “official use only” section. :sarcasm:

Kharn said:
profile on the judge who denied the two permits and kicked the whole case off

jcutonilli · Oct 29, 2021

pcfixer said:
Seems to me Justices do not agree with you: "concealed carry not part of the right".
https://www.law.cornell.edu/supremecourt/text/16-894

AND...
https://www.law.cornell.edu/supremecourt/text/18-824
Open or concealed codified a pre existing right...

I don't see how you can claim that Justices do not agree with me based on what you wrote.

If "[t]his right was “enshrined with the scope [it was] understood to have when the people adopted” it" then nothing that occurs in the future can change the scope. The plaintiff's arguments attempt to change the scope of the right away from open carry (which was historically the accepted mode of carry) to concealed carry (historically prohibited according to Heller). That is simply not possible given the premise that the scope is fixed. The fact that open carry is prohibited becomes irrelevant under this assumption. The only option available is open carry because that was the only option available when people adopted it.

If the plaintiff's had argued that concealed carry was prohibited because of criminality then you can allow concealed carry today (as long as the criminality is prohibited) and still follow a fixed scope.

NYC CCW case is at SCOTUS!

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