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Old April 28th, 2021, 06:49 PM #401
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Originally Posted by Kharn View Post
"Prohibited from firearms and voting" or similar language branded on felons' drivers' licenses would be just fine with me.
The ACLU would immediately jump on that as a reason for any slight, real or imagined, committed by an officer during any traffic stop. They'd claim that it instantly biased the response. Sure he could go back to the squad car computer and get the same info but I can see this being savagely attacked.
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Old April 28th, 2021, 06:53 PM #402
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Yeah

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Originally Posted by kcbrown View Post
Oh yes I do. I stated explicitly that the scope of the right is obviously going to be limited to whatever the founding generation understood it to be.




I've not seen any evidence to date that the founding generation, much less the authors of the 2nd Amendment, believed that. The only case I am aware of that could possibly have been decided by the founders' contemporaries was Bliss v Commonwealth, and that case says that the 2nd Amendment unequivocally protects concealed carry.




Carrying for "nefarious purposes" may be prohibited, but you're not allowed to infringe upon the right in order to deal with that.

Previously, it was presumed, at least by the generations that came after the founders, that if you were carrying concealed, that it must have been for "nefarious purposes". Which is to say, the very act of carrying concealed meant that you were doing so for "nefarious purposes". The two were considered synonymous.

But as I said, more recent experience blows that presumption out of the water. Absent that presumption, there is nothing to consistently indicate whether or not one is carrying for nefarious purposes. And even if there were, you're not allowed to forbid whatever indicator that may be if you would be infringing upon the right in the process.


You're going to have to explain Bliss v Commonwealth if you're going to insist that the founding generation understood concealed carry to not be part of the right.

And you're also going to have to explain why the Supreme Court settled upon a definition of "bear" for 2nd Amendment purposes that explicitly includes concealed carry, if concealed carry is somehow not part of the right. If concealed carry is not part of the right that the 2nd Amendment refers to when it says "bear", then the definition of bear must reflect that. The Bliss judges apparently understood this.

Now, I've called for this before (though perhaps not here), and so I'll do so again. If someone can supply substantial evidence that concealed carry was understood by the founding generation or, better yet, by the authors of the 2nd Amendment, to not be part of the right to bear, then that will obviously shift my thinking here. But to date, the only real evidence I've seen comes out of Bliss, and it is a contrary indicator.




Consistent or not, it's not allowed if it infringes upon the right. The scope of the right isn't "bear only with a permit", it's "bear", period. And like I said, a permit swings the presumption to one of guilt instead of one of innocence. But it is only the latter that is appropriate in a system of ordered liberty.

Can it be sort of like the rights in MD where you can carry certain knives as long as not for nefarious purposes? Conceal carry but not for nefarious purposes.

I read a lot of the rough drafts and have not seen anything about conceal carry being prohibited. Just back then it was not gentlemanly. Not against the law.
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Old April 28th, 2021, 07:43 PM #403
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Quote:
Originally Posted by kcbrown View Post
Oh yes I do. I stated explicitly that the scope of the right is obviously going to be limited to whatever the founding generation understood it to be.




I've not seen any evidence to date that the founding generation, much less the authors of the 2nd Amendment, believed that. The only case I am aware of that could possibly have been decided by the founders' contemporaries was Bliss v Commonwealth, and that case says that the 2nd Amendment unequivocally protects concealed carry.




Carrying for "nefarious purposes" may be prohibited, but you're not allowed to infringe upon the right in order to deal with that.

Previously, it was presumed, at least by the generations that came after the founders, that if you were carrying concealed, that it must have been for "nefarious purposes". Which is to say, the very act of carrying concealed meant that you were doing so for "nefarious purposes". The two were considered synonymous.

But as I said, more recent experience blows that presumption out of the water. Absent that presumption, there is nothing to consistently indicate whether or not one is carrying for nefarious purposes. And even if there were, you're not allowed to forbid whatever indicator that may be if you would be infringing upon the right in the process.
If the right is limited to whatever the founding generation understood it to be how can "more recent experience blow that presumption [about concealed carry] out of the water"? They seem mutually exclusive. You would need to issue a ruling like Peruta to be consistent with the founding generation understanding if concealed carry were the real issue.

To address the founding generation understanding, I have maintained the "nefarious purposes" understanding and allow the concealed carry part to reflect more modern circumstances. I am still consistent with the founding generation understanding.

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You're going to have to explain Bliss v Commonwealth if you're going to insist that the founding generation understood concealed carry to not be part of the right.

And you're also going to have to explain why the Supreme Court settled upon a definition of "bear" for 2nd Amendment purposes that explicitly includes concealed carry, if concealed carry is somehow not part of the right. If concealed carry is not part of the right that the 2nd Amendment refers to when it says "bear", then the definition of bear must reflect that. The Bliss judges apparently understood this.

Now, I've called for this before (though perhaps not here), and so I'll do so again. If someone can supply substantial evidence that concealed carry was understood by the founding generation or, better yet, by the authors of the 2nd Amendment, to not be part of the right to bear, then that will obviously shift my thinking here. But to date, the only real evidence I've seen comes out of Bliss, and it is a contrary indicator.
Bliss appear to be unique in its understanding of the right. KY overruled Bliss by modifying its Constitution to prohibit concealed carry. Why did the legislature make such an infringing law if they all knew what it meant?

Heller defined "bear" in general terms and concealed carry is the exception that is explicitly mentioned. Why did Heller acknowledge that the 2A right is not unlimited and that concealed carry prohibitions have been upheld if it is still part of the right?

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Consistent or not, it's not allowed if it infringes upon the right. The scope of the right isn't "bear only with a permit", it's "bear", period. And like I said, a permit swings the presumption to one of guilt instead of one of innocence. But it is only the latter that is appropriate in a system of ordered liberty.
If something is not part of the right then it does not infringe.
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Old April 28th, 2021, 08:07 PM #404
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An interesting discussion with a use-of-force lawyer.

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Old April 28th, 2021, 08:17 PM #405
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NYC CCW case is at SCOTUS!

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Originally Posted by jcutonilli View Post
It makes it a little bit easier to determine if someone is a prohibited person.

Not really, that just sounds like a BS excuse for having a permit system.
Look up their record, quite easy for the police to do. The permit system is widely used to restrict the right which is the whole problem. The states that have passed constitutional carry actually understand this. You should be allowed to carry without a permit, if you choose to break the law (carrying if legally prohibited) then there is a remedy which is arrest and prosecution. Criminals are going to do it anyway BECAUSE THEY’RE CRIMINALS. They should be in jail.


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Old April 28th, 2021, 08:28 PM #406
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Quote:
Originally Posted by jcutonilli View Post
If the right is limited to whatever the founding generation understood it to be how can "more recent experience blow that presumption [about concealed carry] out of the water"? They seem mutually exclusive. You would need to issue a ruling like Peruta to be consistent with the founding generation understanding if concealed carry were the real issue.
Well, in light of what you mention below, I may have to abandon my thinking that the founding generation regarded concealed carry as part of the right. Bliss isn't necessarily dispositive in light of what happened afterwards. That hinges on whether it was the founding generation and not a later generation that changed the Kentucky constitution.

That said, even if we presume that the belief of the founding generation was that concealed carry was not part of the right, if that belief was founded upon specific reasons that have been demonstrated to be false, then it follows that the belief itself is false. That is going to raise the question of whether the scope of the right must be limited in that manner anyway even when the limits themselves have been shown to be invalid. One would then basically be raising the question of whether or not the founding generation would have stuck with that belief in light of it having been shown false.

That latter is a much murkier question and I'll certainly grant you that one could argue either conclusion on that. To resolve it, I would be inclined to fall back to the purposes behind the beliefs, and to the overall belief structure itself, as a guide as to how to decide such a thing. But given what the Supreme Court had to say about the scope of the right, it's certainly valid to simply say that (presuming it's true in the first place) the founders understood concealed carry to not be included in the right, and therefore there is no Constitutional protection of it.


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To address the founding generation understanding, I have maintained the "nefarious purposes" understanding and allow the concealed carry part to reflect more modern circumstances. I am still consistent with the founding generation understanding.
And that's fine as far as it goes. The problem is the scope of the right itself. A permit system is a mechanism, not an inherent part of the scope. The question is whether that mechanism imposes upon the right. And when it is imposed upon something that is within the scope of the right, then it does infringe, because it makes exercise of the right illegal by default.

If concealed carry really isn't within the scope of the right, then a permit system governing it is fine as long as its issuance is done in a manner completely consistent with the reasons that concealed carry isn't within the scope of the right. Even outright prohibition would be allowable at that point, seeing how (I presume for the sake of argument here) the founding generation approved of such prohibitions.


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Bliss appear to be unique in its understanding of the right. KY overruled Bliss by modifying its Constitution to prohibit concealed carry. Why did the legislature make such an infringing law if they all knew what it meant?
That's a good point that I hadn't considered, because I had either forgotten about it (if it was mentioned before) or I never knew it in the first place. Modification of a constitution is no small feat and would have required heavy consensus. The only question left is whether that consensus was on the part of people who were the founding generation. If it was, then my previous reasoning is founded upon incorrect data and I should then discard it.

What year was the Kentucky constitution changed in response to Bliss?


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Heller defined "bear" in general terms and concealed carry is the exception that is explicitly mentioned.
Heller defined "bear" to explicitly include concealed carry:

Quote:
Originally Posted by District of Columbia v Heller, 554 US 570, 128 S. Ct. 2783 at 2793
Justice GINSBURG wrote that "[s]urely a most familiar meaning is, as the Constitution's Second Amendment . . . indicate[s]: `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.'" Id., at 143, 118 S.Ct. 1911 (dissenting opinion) (quoting Black's Law Dictionary 214 (6th ed.1990)). We think that Justice GINSBURG accurately captured the natural meaning of "bear arms."
(bolded emphasis mine)

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Why did Heller acknowledge that the 2A right is not unlimited and that concealed carry prohibitions have been upheld if it is still part of the right?
Well, look at the specific wording in Heller. It notes that concealed carry prohibitions were historically upheld. Noting that past state courts upheld limits or prohibitions on concealed carry as examples of how past courts regarded the right as not being unlimited is not the same thing as saying that those specific limits on the scope of the right are operative today, particularly when the point you're trying to make is merely that the right was historically regarded as limited and, thus, that it is not improper to regard it as limited today.

If the Supreme Court intended to say that concealed carry prohibitions are Constitutional today, it could have and would have, directly. We know this because the Court did precisely that with other prohibitions, saying that they were not being called into question by Heller, thus establishing their de facto Constitutionality.


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If something is not part of the right then it does not infringe.
Correct.

Everything hinges upon whether or not something is within the scope of the right.

Which means you have the scope (that which was understood by the founding generation) and you have the something in question. If the something in question, that is imposed upon by the law, falls within the scope of the right, then the law is infringing and is Unconstitutional, and that's that.

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Old April 28th, 2021, 09:28 PM #407
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In any court case involving rights...barring a legitimate, compelling reason to the contrary (not some made up Liberal reason)...the default decision by any court should fall on the side of freedom and liberty.
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Old April 28th, 2021, 09:30 PM #408
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Quote:
Originally Posted by jcutonilli View Post
That is not exactly what was said in Heller. The part you are missing is that "Constitutional rights are enshrined with the scope they were understood to have when the people adopted them" One of the things that was said was that "Like most rights, the right secured by the Second Amendment is not unlimited." There are some limitations.
That's fair - I never said that it was ALL that was contained in Heller, just some of Scalia's historical context of what the 2nd Amendment meant at the time.
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Old April 29th, 2021, 12:00 AM #409
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DC requires 16 hours of classroom training and a 2 hour live fire range test to qualify for a permit. The range test consists of 10 rounds at each of five distances: 3, 5, 7, 10, and 15 yards. Timed and scored, starting from holster with by sides. You have about 1 second per round at the closer distances and nearly 2 seconds per round at 10 and 15 yards. Highest possible score is 500, I think you have to get a minimum of something like 380 to pass. Must be renewed every 2 years, and 4 hours of refresher classroom training and completing the range test again are required for renewal. The instructor will have some practice time with you and do a practice cycle run through of all the test shots before the test if given.

Depending on what certified trainer you use, costs for training, DC permit fees, range fee, and ammo, you can be looking at $500 and up for the initial permit.
And if the court rules that a state can't deny an application to carry concealed firearms for not meeting their just cause reasons, you'll see those fees double, triple or more, along with carry insurance and it's back to the drawing board with a new case. This case doesn't address carry outside the home, so the possible outcome will only make states that completely prohibit carry outside the home, get more creative with application requirements. For the majority of the gun community that has not a clue what's at stake here, the courts ruling may feel like a win if it goes to the petitioner's, but in reality, it's just one step closer to the licensing of a fundamental right.
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Old April 29th, 2021, 12:20 AM #410
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I would argue that the reasonable limitation is not... that you carry, or what you carry, or how you carry...

I would argue that the limitation would be laws that .... EXCEPT WHEN DEFENDING YOURSELF, or pursuing peaceable interests...

You are limited, and violating law, when you:

Kill someone, threaten to kill them and so on. And such crimes of commission.

The fact that a person is carrying should not be a crime. Violence, or threats there of, that’s the reasonable.

And the bs about inciting fear because you are carrying, well, some folks are unreasonably afraid of spiders, snakes and such. they fact that some folks have unreasonable phobias, isn’t the fault of a law abiding citizen peaceably armed.

It’s also the pattern of those places that are against any carry presume that all, any, carry is only done by criminals. That point even presents itself in articles that appear on pro gun sites.

Just my non lawyer $0.02. I am surely preaching to the choir here. Maybe a bit ranting...

We’re gonna have at least 6-8 months bashing around here until oral arguments... and another 6-8 months bashing around the oral arguments before a ruling.

June 2022

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Originally Posted by jcutonilli View Post
That is not exactly what was said in Heller. The part you are missing is that "Constitutional rights are enshrined with the scope they were understood to have when the people adopted them" One of the things that was said was that "Like most rights, the right secured by the Second Amendment is not unlimited." There are some limitations.
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