NYC CCW case is at SCOTUS!

Allen65 · Oct 31, 2021

Bob A said:
Maryland will hate it, and probably will have to be sued into compliance. Then local municipalities will weight in with restrictions. The courts will allow them to get away with this until another series of suits forces them to comply. Then the GA will come up with laws that will attempt to interfere with compliance, and back to court we'll go.

Or so I imagine.

That's not imagination, that's prescience.

Fedora · Oct 31, 2021

It would be surprising if the SC doesn't have the obstructionist states in mind. Surely they don't want a repeat of the Heller nocturnal emission.

What if the SC, in the current opportunity, decided that (i) licensed carry for self- defense purposes is within the core meaning of the 2A, and (ii) CCW licenses, from whatever state and whether resident or non-resident, satisfy the license requirement?

Item (ii), especially, might preempt a lot of anticipatable issues.

kcbrown · Oct 31, 2021

jcutonilli said:
What is "legitimate" depends on the circumstances. For the 2A, rational basis is not legitimate (see Heller). For political speech, strict scrutiny is generally considered the legitimate level. Other speech may use different levels of scrutiny to determine what is legitimate.

"Legitimate" here refers to the reasons for the ban itself, not the method of evaluation for determining said legitimacy.

They represent societal bans, which is why they are no longer common

This is clearly not the case. The Geneva Convention forbids the use of hollow point ammunition, but such ammunition is routinely used by the citizenry in the U.S. Thus, the Geneva Convention does not represent societal bans, but rather bans on the use of specific arms by governments.

The premise of the question is wrong. There really is no legitimate use for bioweapons. They tend to be too indiscriminate to be useful weapons.

On what basis do you make this claim? While I am perhaps as skeptical as you that there are legitimate uses of bioweapons, that skepticism doesn't translate directly into fact.

The police don't have as much special powers as you might think. Everyone is capable of making a citizens arrest. The role the police play is to protect society, which is the same role its citizens play.

The police have special powers because their use of weapons is protected in a way that the same use by the citizenry is not. For instance, the police are allowed to use their weapons in an offensive manner where the citizenry are denied that same use. A perfect example is crowd control.

It is not about turning arms on the citizenry, it is how arms are used in society. The police typically use their arms within society on a regular basis. The military typically does not use their arms within society.

Oh, but it is about turning arms on the citizenry. The police's use of their arms within society is against the citizenry. Generally, it is against individual citizens who are breaking a law, but that is not always the case.

The Court did not really mean "all" as they later clarified that not all arms are really protected. Only commonly used arms possessed by law abiding citizens for lawful purposes. It is not static. It is dynamic in that it that reflects the norms of society.

So your claim here is that the Court didn't mean what it said? Really?

The Court said three things on this:

"the Second Amendment extends, prima facie, to all instruments that constitute bearable arms" (District of Columbia v Heller, 554 US 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 at 2791 - 2792)
"We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns." (District of Columbia v Heller, 554 US 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 at 2815 - 2816)
"We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those "in common use at the time." 307 U.S., at 179, 59 S.Ct. 816. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of "dangerous and unusual weapons." (District of Columbia v Heller, 554 US 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 at 2817)

There is only one way I can think of to square all three of those simultaneously, without conflict between them and without making at least one of them redundant: arms which are "in common use" are definitely protected, arms which are "not typically possessed by law abiding citizens for lawful purposes" are definitely not protected, and the remaining arms are protected on their face (i.e., presumptively protected), but a given arm in the "remaining arms" set might not be protected, depending on its specific characteristics, how and why it's used, etc.

There are a few things to note about the Court's invocation of "in common use":

The test is based on carry limitations, meaning that it could well be limited only to carry, and not possession ("keep").
Their reason for it is specific and explicit: historical prohibitions on carry of "dangerous and unusual" weapons. The weapon has to be both "dangerous" and "unusual" for it to not be definitively protected (it might wind up being protected anyway for other reasons, but it falls into the "remaining arms" set described above).
The statement is about sorts of weapons, i.e. types of weapons. This sounds to me like general categories, rather than something more specific. This, of course, is nebulous and not really well defined.
The Court did not state that only those arms "in common use" are protected. That's not the exact language they used. And they referenced their reading of Miller, about which they explicitly stated that the only thing it says is that "the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes".

So it may well be that the first two statements (the "prima facie" statement and the "not typically possessed" statement) by the Court cover both keep and bear, while the third ("in common use") covers bear only.

Common relates to society and how an arm is used within society. It certainly is not "obvious" that an M-16 or any machine gun is commonly used within society.

That is true as far as it goes, but as I said, it cannot be used as a reason to claim that a given weapon is not protected when the absence of common use is due to the laws themselves. The M-16 is an excellent example here. As I said, absent the ban, it (and rifles patterned after it) would be the most popular rifle in the land, without question.

It is illegitimate for a law to bootstrap itself into Constitutionality through its very existence, and yet that is clearly the situation with respect to bans (whether de facto or de jure) on the M-16.

"Lawful" and common tend to be synonymous and reflect societal standards

Tend to, yes. But not always.

Except that "more often than not" may not be the cut off. The answer really depend on how it is really used in society and whether that use could be considered common. Football is commonly played in the US, but it is not played "more often than not".

And that's the problem. If you're going to insist that "common" means something nonspecific, then it's arbitrary and subject to the whims of the judge. An arbitrary standard simply will not do for a Constitutionally-protected fundamental right.

kcbrown · Oct 31, 2021

jcutonilli said:
"Originally understood plain meaning" is still a subset of "plain meaning", which means it is still textualism rather than originalism.

It is both textualism and originalism. And it is perfectly valid to the degree that it reflects the original intended meaning.

I used the phrase because it's consistent with the judicial rules of statutory construction (see, e.g., https://www.ncsl.org/documents/lsss/2013pds/rehnquist_court_canons_citations.pdf).

You also need to understand that we live in a common law system and the Constitution was created with that type of system in mind. https://en.wikipedia.org/wiki/Common_law Judges play a role in shaping the law in this type of system.

So what? That's irrelevant. The Constitution, not "common law", is the supreme law of the land. It's the Constitution that we're talking about here. Judges are free to shape the law underneath our Constitution-based common law system only to the degree that both the act and the result are consistent with the originally intended meaning of the Constitution, and no more.

jcutonilli · Oct 31, 2021

kcbrown said:
There is some reason to believe that the founding generation understood concealed carry to be within the scope of the right: https://fedsoc.org/commentary/publications/concealed-carry-and-the-right-to-bear-arms

By the way, remember our discussion about Bliss? Remember how you pointed out that Kentucky changed its constitution in response to it?

Well, as it happens, that change didn't occur until 1850, which means that it was not made by founding generation people. So as it happens, you can't use the fact that Kentucky changed its constitution as any sort of evidence that the founding generation understood concealed carry to be outside of the scope of the right to bear arms.

There certainly are some conflicting information about concealed carry.

According to the article you reference, the legislatures of both KY and LA created a ban on concealed carry in 1813. The law of each state was not challenged until 1822 in Bliss and 1850 in Chandler. If concealed carry were really part of the right why would the legistatures of the day try and ban it? The lack of prosecution suggests that concealed carry may not have been very common.

I am also not sure you can conclude that the wait between the changing of the KY Constitution and Bliss means the founding generation thought concealed carry was part of the RKBA. Given the lack of prosecutions, it may have been a minor issue that did not warrant changing the Constitution over that one issue.

kcbrown · Oct 31, 2021

jcutonilli said:
There certainly are some conflicting information about concealed carry.

According to the article you reference, the legislatures of both KY and LA created a ban on concealed carry in 1813. The law of each state was not challenged until 1822 in Bliss and 1850 in Chandler. If concealed carry were really part of the right why would the legistatures of the day try and ban it?

Really? You're asking this in the face of laws that have been passed in various states like California against all manner of common arms? In the face of states and localities (like DC) that until Heller had effectively banned mere possession of an operative handgun in the home? In the face of post-Heller laws that ban possession of the most common rifle in the country (the AR-15)?

Seriously?

How much evidence do you need that the mere passage of a law by the legislature does nothing to indicate whether or not something falls within the scope of a Constitutionally protected right?

You already noted that most bans are illegitimate. You can't simultaneously claim that and that passage of such laws is indicative that what they forbid is outside the scope of the right. So which one is it?

And in any case, as I've already noted, mere societal preference isn't sufficient to overcome a Constitutionally protected right, nor to indicate its scope. If it were, then KKK marches wouldn't be protected by the 1st Amendment because those are most certainly not preferred by society, and yet the Supreme Court has insisted that they are protected anyway.

Finally, that only two states passed such a law while the founding generation was still active does not indicate the prevailing societal views of the founding generation for the entire country. And yet, it's the latter that informs of the scope of the right, if prevailing societal views inform of such a thing at all (a proposition that I'm deeply skeptical of for the reason stated above).

The lack of prosecution suggests that concealed carry may not have been very common.

Concealed carry has the problem that if someone is doing it properly, nobody even knows about it. So you can't equate lack of prosecution (in particular, lack of prosecution that ultimately winds up with a 2nd Amendment challenge that lands in a state supreme court) with absence of the activity.

I am also not sure you can conclude that the wait between the changing of the KY Constitution and Bliss means the founding generation thought concealed carry was part of the RKBA.

Oh, I quite agree, but that's not my point. My point is that you can't use the change to the KY constitution as evidence that the founding generation believed concealed carry to be outside the scope of the right.

Given the lack of prosecutions, it may have been a minor issue that did not warrant changing the Constitution over that one issue.

It's really hard to say, given the nature of concealed carry.

In any case, I agree with your original statement: there's conflicting information about it.

But if there's conflicting information about it that cannot somehow be resolved, then it follows that one should fall back onto something that was agreed upon: the presumption of liberty. In this case, that means that if we don't know what the founding generation believed about concealed carry, then we have to presume it to be protected because that would be consistent with the presumption of liberty, and it would also be consistent with the plain meaning of "bear" as outlined in Heller.

777GSOTB · Oct 31, 2021

First of all, I believe the original intent was, that the carrying of firearms could be done either openly or concealed without a license. Openly of course, because how would one carry a concealed 40" long musket or shotgun? That isn't happening and why states, CAN NOT, choose the mode of carry, as one has a right to carry all arms that are, in common use. And on concealed carry, no doubt when there was inclement weather, such as rain or snow, everyone concealed their firearms from the weather to prevent damage to the weapon or powder. Lastly, I find it quite interesting and pathetic, that from all of the historical writings mentioned by ANYONE, that they NEVER show the need to acquire a LICENSE in the exercise of this right during the founding era. But somehow, it's not a problem today, as indicated by the supposedly gun rights community, as they have never challenged that requirement to date. Sadly, like many here, they seem to be, gleeful, in having to get one. And like I've said many times, a Certificate of Competence can be issued if states actually have a compelling state interest in the carrying of firearms in public for safety reasons. The government can of course, license concealed carry, because it isn't a protected right from looking at the stare decisis of a majority of 19th-century courts, per Scalia in Heller.

And as far as waiving rights when signing an application for a license, which is a contract by definition. Contracts are an offer, with acceptance, over time and with consideration, a license is a contract. Lets take the drivers license for instance, where one must give consent to give blood or take a breathalyzer test without a warrant. Ask for the warrant and you will lose your license for 1 yr. Or how about when they seize your property off the street without do process under ones 4th,5th Amendment rights? Or how about the government compelling the purchase of insurance? I haven't seen the Constitutional power that allows the government to compel the purchase of insurance anywhere, have you? And for those that believe traveling in an automobile, the current "in common use" conveyance of the time, isn't a right..Well, you must be ok with just owning muskets then, as your "in common use" arms. But, that's what happens when a case isn't brought up to the SCOTUS during the time that an instrument used by the public, becomes " in common use", and where we are today with firearm carry outside the home or with the full extent of arms that are acceptable for use, under the 2nd Amendment.

Here's hoping the state wins. Exercising a fundamental right isn't an illegal act that can only be granted through the issuance of a license...Get a clue folks.

Is there anyone that can find this case? Mckinsey(Mckensey)v New York State in 1914

Bouvier's Law Dictionary
1856 Edition

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

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

jcutonilli · Nov 1, 2021

wjackcooper said:
kcbrown, thanks for the link - good read!

Given that in N.Y. open carry is prohibited:

(1) In N.Y. concealed, as a method of carry, is reinforced as legal by reason of a presumably constitutionally valid state law.* (2) In N.Y. licensed concealed-carry outside of the home was legal yesterday, is today and will be tomorrow. (3) In N.Y. applications for “self-defense” concealed-carry licenses filed yesterday, today, and tomorrow, are apt be denied. (4) License denial in is challenged by Clement as a N.Y. violation of the Second Amendment protected right to carry in a pocket (i.e., bear concealed outside) for self-defense.**

Critical in this case is the “bear” part of the Second Amendment which precludes N.Y.’s general denial of the right to carry concealed firearms for self-defense outside of the home.*** Clement points out the obvious: “This Court’s opinion in Caetano v. Massachusetts likewise makes sense only on the understanding that the Second Amendment is not a homebound right.” ****

Trolling efforts here consistently confirm that Clement has postured this case perfectly for a win. If he wins, the result probably will be N.Y. going “shall-issue” concealed-carry “for self-defense;” with “longstanding prohibitions” and “sensitive places” restrictions remaining controlling law.

Regards
Jack

*https://www.law.cornell.edu/constitu...stitutionality “It is but a decent respect to the wisdom, integrity, and patriotism of the legislative body, by which any law is passed,” wrote Justice Bushrod Washington, “to presume in favor of its validity, until its violation of the Constitution is proved beyond a reasonable doubt. See para. 1.

**https://www.supremecourt.gov/opinions/07pdf/07-290.pdf Heller (2008) pages 10 & 11: “[T]he Constitution’s Second Amendment . . . indicate: . . . 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 . . .’”

***https://supreme.justia.com/cases/fed...pinion-1963369 McDonald (2010) page 1, paragraph 1: “Two years ago, in District of Columbia v. Heller, 554 U. S. 742, this Court held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense . . . .”

****https://www.supremecourt.gov/DocketP...ng Brief.pdf July 13th 2021, Brief of petitioners p. 38, “This Court’s opinion in Caetano v. Massachusetts likewise makes sense only on the understanding that the Second Amendment is not a homebound right.”

Maybe you are not aware of this, but the plaintiffs ARE challenging the constitutionality of the law. The plaintiffs are not able to legally carry concealed everywhere outside the home yesterday, today or tomorrow.

As Heller points out, the right is not unlimited. One of the limitations is the historical prohibition on concealed carry. The problem with the arguments are that they don't directly address the historic prohibitions. It can be a problem if you want the Court to adopt a text, history, and tradition approach. We will see how the Court addresses the issue.

jcutonilli · Nov 1, 2021

wjackcooper said:
Perspective:

SC observers (excepting those completely oblivious, or trolls) will agree that from 2010 (McDonald) until 2020 (Barrett) 2A cert petitions (no matter how meritorious) were totally at the mercy of Kennedy and/or Roberts. The conservatives had the four votes necessary to grant cert; but with Kennedy/Roberts in play could not be sure of the five votes needed for a win on the merits; consequently cert was routinely denied. Barrett’s appointment changed the game.

Given 5 Conservative Justices, their 2, or 3 elite law clerks each ( i.e., 10, or more of the top young, high - powered lawyers in the country) the previous Kennedy/Roberts blocked pertinent 2A cert petitions, responses and amicus briefs over the past decade (many prepared by the best 2A lawyers in the country) all of which are reviewable by the present clerks via the SC’s records, numerous related lower court opinions, this case, its petition, the response and 10 or 12 cogent amicus briefs . . . the Court is already over exposed to all of the relevant, legally sound 2A arguments, plus many not relevant (i.e., beside the point) and/or legally unsound. The 5 Conservative Justices and their selected, supporting clerks have more than enough relevant material and intellectual horsepower to completely research the law, frame issues, raise questions, comprehend arguments and compose Constitution driven, controlling law.

This case was probably decided based on the original petition, the response and Court Clerk research. At least 5 Justices appear to have agreed on the 2A question to present and the answer before granting cert. Lawyers, who play at this level (e.g., Clement) understand: (1) Constitutional Law. (2) SC Judicial politics and procedures. (3) The Court’s political line up. (4) The court’s questions. (5) The ramifications of the questions. (6) How to frame the response. (7) The case’s resulting posture. (8) Know how to argue accordingly and (8) can count to five. . . . a few of the many reasons they make the big bucks.

As press1280 has pointed out Wrenn (DC Circuit win, 2017) is nearly a cut and paste opinion option for this case.*

Although the record shows no law based reason for the 2A’s supporters to be pessimistic, there remains a (probably remote) possibility that one, or more of the 5 Conservative Justices might wimp out. If so, the reason will be purely political, no matter what the opinion and/or order may reflect. The odds (in the continued absence of any credible reason in fact, or law to the contrary) remain favorable.

Regards
Jack

*The D.C. Circuit held that, at the core of the Second Amendment lies the right of responsible citizens to carry firearms for personal self-defense beyond the home, subject to longstanding restrictions. These traditional limits include, for instance, licensing requirements, but not bans on carrying in urban areas like D.C. or bans on carrying absent a special need for self-defense.”
https://law.justia.com/cases/federal/appellate-courts/cadc/16-7025/16-7025-2017-07-25.html Para 1

“[W]e conclude: the individual right to carry common firearms beyond the home for self-defense—even in densely populated areas, even for those lacking special self-defense needs—falls within the core of the Second Amendment’s protections.” Pages 18 and 19.
https://www.cadc.uscourts.gov/internet/opinions.nsf/005426559985AEE685258168004F376E/$file/16-7025-1685640.pdf

Kennedy and Roberts made up two of the five votes for Heller and McDonald. How were there four votes if there were only three other Justices willing to vote for cert? How do you explain NYSRPA v NYC? Barrett was not on the Court yet. Maybe the problem is not really Roberts, but poorly argued cases.

The justices each hired four law clerks this year. https://www.scotusblog.com/2021/07/court-releases-names-of-law-clerks-for-2021-22-term/ Are you saying 1-2 of the clerks are not elite?

The Court is not "over exposed to all of the relevant, legally sound 2A arguments". They are missing two of the most important arguments, what the historic prohibitions were really addressing, and why the Courts keep getting intermediate scrutiny wrong.

I don't believe the Court ever really decides the case on the original petition. They wait for the merit briefs and those merit briefs are typically the main deciding factor of the case. The problem with the merit briefs is that it does not really address the historic prohibitions, which the Court raised as an issue in Heller.

We will see how the Court addresses the issue.

jcutonilli · Nov 1, 2021

Allen65 said:
"Tend to be", but there are significant exceptions to that rule. Pot use? Easily 60% or more of the population has at least tried it, in violation of the law. Speeding? Almost 100% of drivers have knowingly and intentionally violate those laws regularly. Use of turn signals? Lots of empirical evidence about compliance on that from my daily commute. And weren't there several fairly common sex acts that until recently would have made the violator a prohibited person in Maryland?

Common and lawful aren't interchangeable standards except for some egregiously antisocial acts like robbery or murder.

"Tend to be" does not mean exactly.

"Pot use" is legal in MD and a number of states. The reason it changed was because its use has become common enough for it to be supported politically.

While many drivers do exceed the speed limit, I am not sure the majority would support the removal of speed limits. They tend to reflect a common belief that too much speed is dangerous.

TheOriginalMexicanBob · Nov 1, 2021

jcutonilli said:
"Pot use" is legal in MD and a number of states. The reason it changed was because its use has become common enough for it to be supported politically.

I believe the legalization of Marijuana in many states is more due to the states and localities desiring of the tax revenue than any other reason. The same for speed cameras in many places...it's a source of revenue more than safety.

The politicians will tell you different but follow the money...once they have their revenue stream they'll never give it up even after drivers slow down.

jcutonilli · Nov 1, 2021

kcbrown said:
"Legitimate" here refers to the reasons for the ban itself, not the method of evaluation for determining said legitimacy.

While "legitimate" refers to the reasons, you need to determine whether those reasons are truly "legitimate". This is where the method of evaluation is used to determine whether it truly is "legitimate"

This is clearly not the case. The Geneva Convention forbids the use of hollow point ammunition, but such ammunition is routinely used by the citizenry in the U.S. Thus, the Geneva Convention does not represent societal bans, but rather bans on the use of specific arms by governments.

The Geneva Convention is about war and does not reflect all possible uses. I believe US citizens do abide by it in times of war.

You act like governments are somehow different from society. At least in our government, it is supposed to represent the people. As such it should represent societal norms.

On what basis do you make this claim? While I am perhaps as skeptical as you that there are legitimate uses of bioweapons, that skepticism doesn't translate directly into fact.

The basis is the fact that bioweapons tend to be too indiscriminate to be useful weapons.

The police have special powers because their use of weapons is protected in a way that the same use by the citizenry is not. For instance, the police are allowed to use their weapons in an offensive manner where the citizenry are denied that same use. A perfect example is crowd control.

Oh, but it is about turning arms on the citizenry. The police's use of their arms within society is against the citizenry. Generally, it is against individual citizens who are breaking a law, but that is not always the case.

I have not claimed that police powers and citizen use are exactly the same, just that they are closer than you are suggesting.

The police aren't really turning their arms on the citizenry. The police cannot blindly shoot people for crowd control. They cannot shoot everyone that breaks the law. There is only a limited subset of reasons that police can use their arms and those circumstances tend to be similar for the citizens also.

So your claim here is that the Court didn't mean what it said? Really?

The Court said three things on this:

"the Second Amendment extends, prima facie, to all instruments that constitute bearable arms" (District of Columbia v Heller, 554 US 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 at 2791 - 2792)

"We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns." (District of Columbia v Heller, 554 US 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 at 2815 - 2816)

"We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those "in common use at the time." 307 U.S., at 179, 59 S.Ct. 816. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of "dangerous and unusual weapons." (District of Columbia v Heller, 554 US 570, 128 S. Ct. 2783, 171 L. Ed. 2d 637 at 2817)

There is only one way I can think of to square all three of those simultaneously, without conflict between them and without making at least one of them redundant: arms which are "in common use" are definitely protected, arms which are "not typically possessed by law abiding citizens for lawful purposes" are definitely not protected, and the remaining arms are protected on their face (i.e., presumptively protected), but a given arm in the "remaining arms" set might not be protected, depending on its specific characteristics, how and why it's used, etc.

There are a few things to note about the Court's invocation of "in common use":

The test is based on carry limitations, meaning that it could well be limited only to carry, and not possession ("keep").

Their reason for it is specific and explicit: historical prohibitions on carry of "dangerous and unusual" weapons. The weapon has to be both "dangerous" and "unusual" for it to not be definitively protected (it might wind up being protected anyway for other reasons, but it falls into the "remaining arms" set described above).

The statement is about sorts of weapons, i.e. types of weapons. This sounds to me like general categories, rather than something more specific. This, of course, is nebulous and not really well defined.

The Court did not state that only those arms "in common use" are protected. That's not the exact language they used. And they referenced their reading of Miller, about which they explicitly stated that the only thing it says is that "the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes".

So it may well be that the first two statements (the "prima facie" statement and the "not typically possessed" statement) by the Court cover both keep and bear, while the third ("in common use") covers bear only.

The first statement is a general statement that they later clarified. "prima facie" means accepted until proven otherwise. In Heller, they provided reasoning to clarify what was really protected and what is not. The second and third statements modify the first.

That is true as far as it goes, but as I said, it cannot be used as a reason to claim that a given weapon is not protected when the absence of common use is due to the laws themselves. The M-16 is an excellent example here. As I said, absent the ban, it (and rifles patterned after it) would be the most popular rifle in the land, without question.

It is illegitimate for a law to bootstrap itself into Constitutionality through its very existence, and yet that is clearly the situation with respect to bans (whether de facto or de jure) on the M-16.
all instruments that constitute bearable arms

Was a machine gun commonly used in society in 1934? Was a machine gun commonly used in society in 1986? The answer seems to be no to both questions. If they really were in common use, there would not be support for the NFA or Hughes amendment.

I think you are going to have a hard time demonstrating what lawful use you need a machine gun for that cannot better be used with a semiauto.

Tend to, yes. But not always.

And that's the problem. If you're going to insist that "common" means something nonspecific, then it's arbitrary and subject to the whims of the judge. An arbitrary standard simply will not do for a Constitutionally-protected fundamental right.

While arbitrary might mean an nonspecific value in mathematics, it tends to mean random choice or person whim. You don't need to precisely define "common" for it to be useful as a way to determine what it protected and what is not.

777GSOTB · Nov 1, 2021

Notice that Arizona's, PUBLIC SAFETY interests, involve no licensing, but do(DID) prohibit concealed carry, not because of criminal use, but for the possibility that one would draw a hidden weapon in the heat of passion. Not all states prohibited concealed carry solely do to criminal use. The states prohibition was focused on human nature, more so than criminal conduct.

Dano v. Collins, 802 P. 2d 1021 - Ariz: Court of Appeals, 1st Div., Dept. B 1990

"Arizona's prohibition on the carrying of concealed weapons does not frustrate the purpose of the constitutional provision. We do not read the Arizona constitutional provision as granting an absolute right to bear arms under all situations. The right to bear arms in self-defense is not impaired by requiring individuals to carry weapons openly. Appellants *324 are free to bear exposed weapons for their defense. Furthermore, the statute has a reasonable purpose — it protects the public by preventing an individual from having on hand a deadly weapon of which the public is unaware, and which an individual may use in a sudden heat of passion. 79 Am.Jur.2d, Weapons and Firearms § 8, State v. McAdams, 714 P.2d 1236, 1238 (Wyo. 1986)."

motorcoachdoug · Nov 1, 2021

I wish that SCOTUS would be live during the arguments but we will have to wait and see if they will or not. It will also be interesting to see what the SCOTUS blog has to say after the case is argued before the court..

hdatontodo · Nov 1, 2021

LA Times Op Ed

https://www.yahoo.com/news/op-ed-did-supreme-court-100058728.html

777GSOTB · Nov 1, 2021

hdatontodo said:
LA Times Op Ed

https://www.yahoo.com/news/op-ed-did-supreme-court-100058728.html

Maybe it's the liberal side, along with Roberts, since he believes carrying firearms in the market place can be banned, playing a game of 3D chess.

Texasgrillchef · Nov 1, 2021

camo556 said:
About as relevant as 98% of the posts here.

Well keep in mind, everything said by anyone is looking speculative until They issue their opinion.

People can issue their educated opinion and thoughts on the text history etc… and even on how they believe the SC should rule. But until the SC issues their opinion everything is speculative.

When all is said and done, we will see and know who was right on target and who wasn’t. I don’t believe anyone will be exactly 100% on target with how the SC will rule. Everyone will be incorrect to some degree.

Lalez · Nov 1, 2021

Hi, checking in from the great free state of Florida (I escaped Marylandistan in 2011 thankfully).

I believe that this case will be a win and that these 8 states will all be made to go shall issue. And on top of that what’s the worst case scenario here? They rule against shall-issue in NY and the other 7 states? Ok so you have 42 other states to choose from, and the vast majority of those have a way higher quality of life than the Blue State paradises.

But hypothetically let’s say my prediction comes true and those 8 crazy states are made to go shall issue, I still wouldn’t want to live in any of those, first and foremost you think cops in those states won’t be on edge even more than usual? Maryland cops have been taught since they were toddlers that “normal citizens” are not suppose to carry guns, how on edge are they going to be when all of these carry permits are issued?

It’s the opposite here in FL, over 6 million CCWs now issued to FL residents (not even counting out of state) and every cop I’ve met here in my 10 years here have all told me they like having the citizens armed and carrying. Hell a few FL cops have had their lives saved by Concealed Carriers (Lee County 2017 incident comes to mind)

TLDR: This case should be a slam dunk but we live in clown world now. If you still live in Maryland or one of these other 7 states that are blatantly infringing, why??
With the coming inflation apocalypse the last place I would ever want to be in or near is one of those 8 states, it will be ugly beyond belief

teratos · Nov 1, 2021

Lalez said:
Hi, checking in from the great free state of Florida (I escaped Marylandistan in 2011 thankfully).

I believe that this case will be a win and that these 8 states will all be made to go shall issue. And on top of that what’s the worst case scenario here? They rule against shall-issue in NY and the other 7 states? Ok so you have 42 other states to choose from, and the vast majority of those have a way higher quality of life than the Blue State paradises.

But hypothetically let’s say my prediction comes true and those 8 crazy states are made to go shall issue, I still wouldn’t want to live in any of those, first and foremost you think cops in those states won’t be on edge even more than usual? Maryland cops have been taught since they were toddlers that “normal citizens” are not suppose to carry guns, how on edge are they going to be when all of these carry permits are issued?

It’s the opposite here in FL, over 6 million CCWs now issued to FL residents (not even counting out of state) and every cop I’ve met here in my 10 years here have all told me they like having the citizens armed and carrying. Hell a few FL cops have had their lives saved by Concealed Carriers (Lee County 2017 incident comes to mind)

TLDR: This case should be a slam dunk but we live in clown world now. If you still live in Maryland or one of these other 7 states that are blatantly infringing, why??
With the coming inflation apocalypse the last place I would ever want to be in or near is one of those 8 states, it will be ugly beyond belief

Have you ever encountered cops while carrying in MD? I have, and I’m not worried.

Boxcab · Nov 1, 2021

1000th post.

Nothing else to add, as I sit here in quiet expectation.

.

NYC CCW case is at SCOTUS!

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