NYC CCW case is at SCOTUS!

[DanGuy48]

I think every kid should get some firearm training. If they go to other people’s houses, they are likely to encounter a gun at some point. Hell, they are educated on sex and drugs. Add some rock and roll.

X2.

 

[kcbrown]

Originally understood plain meaning is about the original meaning of words. Originalism is about the idiomatic meaning. The words/text may not relate to the original meaning.

That may be. If "originalism" isn't the proper term for what I'm pointing out as the proper method of interpretation, then I don't know what to call it, and can only say that it's the only method of interpretation that is consistent with what we insist on doing in our own communications with each other, and what we as a civilization have always insisted upon doing. The principles behind properly understanding what is meant by communications have been with us for millennia, and how can it be otherwise? Whether or not you properly understand the meaning of someone else can easily make the difference between whether you live or die, which makes these principles survival traits.

Your reference does not contain the word "originally"

Has it occurred to you to ask why the rules I referred to exist in the first place? I only pointed them out to illustrate that the courts are already supposed to be operating under rules that are essentially the same as what I'm advocating for. I expect that the only reason they don't contain the word "originally" is that the people who wrote them never even gave thought to the problem of interpreting historical written works, and were thinking only of the problem of interpreting contemporary law.

It is not irrelevant. It is all about understanding the role of the courts and the type of language used to craft laws, as understood by the founders. As someone that is pushing originalism, you need to understand the basis from which the Constitution was written. The Constitution is inadequately written for it to be understood in anything other than a common law system.

Of course. But the point is that the Constitution establishes the system, and sits above it. The common law system falls underneath the Constitution. It does not override it, and that's the point. The Constitution is the supreme law, and sits above everything else.

The Constitution has a proper meaning. That meaning is that which was intended by its authors. As with any other written work, the proper way of interpreting it is by determining, to the very best of our abilities, what its authors intended it to mean. It is no different in that respect than any other written work.

Judges exist to decide cases on the basis of the intended meaning of the Constitution, not their own preferences, or even the preferences of any of the litigants.

The Constitution does not define the right to be protected under the 2A. It is left to judges for the ultimate determination if the right has been infringed.

But that determination is not allowed to be arbitrary! The scope of the right, and thus the definition of the right, is that which was understood at the time of its adoption, which makes it that which was understood by the founding generation and, in particular, by those founders who penned the 2nd Amendment and ratified it.

This is so because the very term "right to keep and bear arms" in the 2nd Amendment has meaning which was understood by those who penned it and by those who approved it. It is precisely because of that meaning that the Court said that the right is enshrined with the scope it was understood to have when it was adopted. In saying that, the Court is recognizing that the proper meaning of the terms used in the 2nd Amendment is that which was understood by its authors and those who approved it.

One note: I mention "that which was understood by its authors and those who approved it", but I probably need to be more precise here. The proper meaning is that which was understood by the authors. The reason we refer to the understanding of others is only for those cases where we can't determine the understanding of the authors more directly. Because the authors were communicating with their contemporaries, and especially to those who ratified what they wrote, we can rely on the understanding of those who ratified what they wrote as a secondary source if determination from the primary source is impossible or too uncertain. From there, it goes to the understanding of the people as a whole, for the same reason. But the goal is always to, as much as possible, arrive at the understanding of the authors. And this is so for every piece of communication, no matter how old.

 

[kcbrown]

The modern bans were not made by the founding generation. You are trying to understand what the founding generation thought, so the reasoning behind the passage of the law is important.

The reasoning behind the passage of the law is important for understanding what the founding generation thought only if the law was passed by the founding generation!

But it wasn't. It was passed by later generations. By the time these laws were passed, the founding generation was at least 60 years old. That means the majority of the adult people in existence at that point were of the generations that followed the founding generation. By that time, there were at least two adult generations in existence that were descendants of the founding generation.


If the founding generation believed that concealed carry was such a heinous act, then where are all the bans against it at the time of ratification? The answer is obvious: they weren't there, precisely because concealed carry wasn't regarded by the founding generation as being so heinous as to warrant prohibition of it. The only ban in existence at the time, New Jersey's, was passed by a previous generation, long before the founders were even born.

While I have claimed that most bans are illegitimate, I have also claimed that those that reflect societal standards are not illegitimate.

Examples that back this claim would be helpful, specifically ones that the Supreme Court has upheld as not violating any Constitutionally protected rights precisely because they reflect societal standards.

I am also not claiming that the presence of the law is what provides the justification, I am trying to get you to think of reasons why they may have created the ban on concealed carry.

The reasons that the concealed carry bans were created were explained by the courts that upheld them: because concealed carry was perceived as something heinous, something only criminals and people with ill intent would consider.

But as I've already argued, that view is not the view of the founding generation, but rather of the generations that followed them. If it were the view of the founding generation then prohibitions against it would have been widespread at the time of ratification.


Additionally, even in the presence of the bans in New Jersey, Louisiana, and Kentucky, it should be noted that none of the other states had such bans at that time, so you can hardly claim that the understanding in question was widespread, even much later than 1813.

The nature of concealed carry would explain a low number of prosecutions per year, but the almost 10 year passage between enactment and prosecution seems to suggest that it is also not used very often.

Remember that what we're talking about is a prosecution that manages to make it to a supreme court, wherein the Constitutionality of the law is decided upon. I don't know how quickly courts acted back then, but look at the sheer amount of time that passes between prosecution and Supreme Court decision today. It's many years for that.

So even if the first prosecution resulted in a Constitutional challenge to the law, it might easily have taken a few years for the case to make it to the supreme court in question.

As such, between the nature of concealed carry (which will result in a significant amount of time between the passage of the law and the first prosecution under it) and the time it takes for cases to make their way to the supreme court level, it shouldn't be a surprise that there was a significant delay between passage of the law and a decision on the matter.

Also remember that the entire country was much more rural than it is today. People lived in much smaller communities and people in law enforcement weren't nearly as isolated from the community as they are today. It's highly likely that people in law enforcement at the time were loathe to bring anyone they knew up on charges for violating such a law unless they were committing some other crime, at which point all the focus would have been on the primary crime itself. This, too, would serve to reduce the rate at which people were charged with violation of the concealed carry law. This is especially true in light of the penalties for violation, which were only fines (even if for a considerable sum at the time, $20 to $50 in Louisiana and at least $100 in Kentucky) for the first violation, and no more than 6 months jail time for the second violation in Louisiana.

The information presented in the article mentioned pistols, but provided little to no information on if they were actually carried concealed. They talked about pockets, but made no mention how exposed they might be in a pocket.
The latter court cases seem to clarify the conflicting information as they specifically address the issue of concealed carry.

I don't know how much information was available for that, but consider this: the nature of the firearms during the founding era was such that they had to keep them dry in inclement weather, which means full concealment. Failure to do that would result in malfunction of the firearm.

 

[Texasgrillchef]

What can we expect… like I said before.

It will be a narrow opinion. It will simply say 3 things. Albeit probably in over a hundred pages worth.

1. You do have a right to carry outside the home for self defense. Will that be open or concealed? I say they will say it’s for both. Open or concealed.

2. That a license or permit may not be issued based on discretionary show cause reasons.

3. There will be a little more narrowing of the use between strict and intermediate scrutiny. I say this because of a certain Justice that has made certain comments regarding this.

The opinion I doubt will say anything more in other areas then those above.

Suffice it to say, liberal courts and liberal controlled states will look for whatever loophole they can. Either by what is NOT said. Or by strictly applying certain statements extremely narrowly and litterly as has been used with various Heller statements.

Two things are certain.

1. Plenty of new lawsuits will be filed to challenge additional laws that haven’t been challenged yet. As well as new lawsuits to challenge once again other laws that have lost previously.

1. 8 states will soon become easier to obtain a permit/license to carry. Hawaii citizens who wish to carry will be the biggest winners in this case, because almost virtually no one has a permit in Hawaii.

Keep in mind Young v Hawaii is still pending cert, and has not yet been denied. I am willing to bet they hold that case until this case is resolved. That will probably be the case that will determine that Open Carry is constitutionally allowed.

Colorado just this summer passed a law that removed statewide preemption, which now will allow local cities and counties to ban conceal, or open carry, or even possession. However, as of yet, no cities or counties have passed such strict restrictions. They are awaiting the outcome of this NY case. The City Attorneys have told the cities that if they act to quickly, it may cost them in Litigation.

 

[Texasgrillchef]

My opinion on how this case will have an effect on LTC/Permit laws.

For all states in question, I do not think it will change anything on the availability of a license for non-residents, other then what changes would effect residents.

1. Hawaii which now for the most part hasn’t issued any permits for open or concealed carry to anyone other then security or the elite. Will soon be forced to do so. I do them see them though passing new laws that will require additional training, or other non discretionary hurdles. However, we should not forget about Young v Hawaii. If it doesn’t get denied. It will make some changes in Hawaii yet if not nationwide as well.

2. New York is allready preparing new bills to require additional standardized state specific training by state certified instructors. Very similar to what is required by Texas, Illinois, Maryland, and Utah to name a few. Those states you have to take a course given by an instructor authorized and certified to teach a specific firearms course. Fees, especially for NYC will soon be challenged.

3. New Jersey will probably follow New York’s lead.

4. Rhode Island Which is a shall issue on a local, and may issue from state AG will become shall issue for the State AG. More difficult local areas will become slightly easier.

5. Delaware which is an unusual state in so much as they will recognize 3 out of the 9 LTC’s I have and thus allow me to carry, won’t allow a relative of mine in Delaware to get a LTC even though they have 4 other LTC’s from other states. A resident can’t use a non-resident LTC to carry in their home state. Because of that, I do believe Delaware will start issuing LTC’s

6. Massachusetts, which is fairly decent about issuing a license for all the other reasons other self defense. And also doesn’t seem to be as strict on the good cause reason as the other 7 states will probably not intiate anything worse. Although their legislature will spend time looking for the loop holes

7. California. Will become shall issue on the books. Those counties which are under red control will start issuing more permits, those counties more blue control will look for more difficult ways to inhibit.

8. Maryland. Class training requirements will change for sure. Fees may go up but I doubt it. At least not by much. They could allready charge non-resident permit holders $300 application fee like Illinois charged me, but they haven’t. They could even have charged me to get my certificate to teach Maryland firearms classes but they didn’t. Texas a constitutional carry state, as well as Utah both charged a fee for me to become an instructor. Texas $100 and Utah $75

One last state Connecticut. Which on the books is a may-issue state but acts like a shall-issue state, will become shall issue on the books.

All of this won’t happen overnight, and one thing is for sure. You will see several dozen cases if not more filed in state and federal courts over what’s said in this opinion.

 

[Kharn]

"5. Delaware which is an unusual state in so much as they will recognize 3 out of the 9 LTC’s I have and thus allow me to carry, won’t allow a relative of mine in Delaware to get a LTC even though they have 4 other LTC’s from other states. A resident can’t use a non-resident LTC to carry in their home state. Because of that, I do believe Delaware will start issuing LTC’s"

I thought Delaware was effectively shall-issue, as long as you went through their convoluted process like taking out an ad in the paper, etc?

"8. Maryland. Class training requirements will change for sure."

I think Maryland would have a tough time defending changing their years-long practice to be more than 16 hours of class time for someone to exercise a civil right, when most states only want to see 4-8 hours.

 

[Bertfish]

"5. Delaware which is an unusual state in so much as they will recognize 3 out of the 9 LTC’s I have and thus allow me to carry, won’t allow a relative of mine in Delaware to get a LTC even though they have 4 other LTC’s from other states. A resident can’t use a non-resident LTC to carry in their home state. Because of that, I do believe Delaware will start issuing LTC’s"

I thought Delaware was effectively shall-issue, as long as you went through their convoluted process like taking out an ad in the paper, etc?

"8. Maryland. Class training requirements will change for sure."

I think Maryland would have a tough time defending changing their years-long practice to be more than 16 hours of class time for someone to exercise a civil right, when most states only want to see 4-8 hours.

Thought Maryland increased the training as part of FSA13?

 

[Occam]

I think Maryland would have a tough time defending changing their years-long practice to be more than 16 hours of class time for someone to exercise a civil right, when most states only want to see 4-8 hours.

There's one simple trick for that! Don't bother defending the practice, just do it. Knowing it will take a pile of money and years of litigation to get the practice challenged. Then appeal that likely loss to a friendly lefty circuit court, and watch the hurry-up-and-wait cycle begin again and stretch out years. It is the way. Maryland has it down to a science.

 

[press1280]

"5. Delaware which is an unusual state in so much as they will recognize 3 out of the 9 LTC’s I have and thus allow me to carry, won’t allow a relative of mine in Delaware to get a LTC even though they have 4 other LTC’s from other states. A resident can’t use a non-resident LTC to carry in their home state. Because of that, I do believe Delaware will start issuing LTC’s"

I thought Delaware was effectively shall-issue, as long as you went through their convoluted process like taking out an ad in the paper, etc?

"8. Maryland. Class training requirements will change for sure."

I think Maryland would have a tough time defending changing their years-long practice to be more than 16 hours of class time for someone to exercise a civil right, when most states only want to see 4-8 hours.

I agree. The court will want to know why the training gets changed as soon as shall issue is law. Simply put “because more people are carrying” doesn’t quite cut it.

 

[Occam]

I agree. The court will want to know why the training gets changed as soon as shall issue is law. Simply put “because more people are carrying” doesn’t quite cut it.

Courts don't want to know anything in situations like this. Not until someone starts litigating it, and the matter is accepted by a court that doesn't toss it for standing, wrong venue, etc.

And local (MD) courts aren't, generally, disposed to looking out for us on this sort of thing. So expect it to get slowly considered, dragged out, then bumped up to an appeals court for the same treatment, and then years later, a test in front of SCOTUS to see if the state's posture is consistent with whatever ruling we get on this case in 2022. It could go better than that, of course - but be prepared for it to be dragged out into the most minimal (and most obstructionist) pseudo-compliance the state can possibly muster.

The only time a court otherwise "wants to know something," is when the court itself (or one it assigns) is taking on some sort of ongoing supervisory role (say, when they find that a local government is simply not capable of reliably making some ordered change, or living up to a ruling, or in some family law matters).

 

[adit]

My opinion on how this case will have an effect on LTC/Permit laws.

For all states in question, I do not think it will change anything on the availability of a license for non-residents, other then what changes would effect residents.

1. Hawaii which now for the most part hasn’t issued any permits for open or concealed carry to anyone other then security or the elite. Will soon be forced to do so. I do them see them though passing new laws that will require additional training, or other non discretionary hurdles. However, we should not forget about Young v Hawaii. If it doesn’t get denied. It will make some changes in Hawaii yet if not nationwide as well.

2. New York is allready preparing new bills to require additional standardized state specific training by state certified instructors. Very similar to what is required by Texas, Illinois, Maryland, and Utah to name a few. Those states you have to take a course given by an instructor authorized and certified to teach a specific firearms course. Fees, especially for NYC will soon be challenged.

3. New Jersey will probably follow New York’s lead.

4. Rhode Island Which is a shall issue on a local, and may issue from state AG will become shall issue for the State AG. More difficult local areas will become slightly easier.

5. Delaware which is an unusual state in so much as they will recognize 3 out of the 9 LTC’s I have and thus allow me to carry, won’t allow a relative of mine in Delaware to get a LTC even though they have 4 other LTC’s from other states. A resident can’t use a non-resident LTC to carry in their home state. Because of that, I do believe Delaware will start issuing LTC’s

6. Massachusetts, which is fairly decent about issuing a license for all the other reasons other self defense. And also doesn’t seem to be as strict on the good cause reason as the other 7 states will probably not intiate anything worse. Although their legislature will spend time looking for the loop holes

7. California. Will become shall issue on the books. Those counties which are under red control will start issuing more permits, those counties more blue control will look for more difficult ways to inhibit.

8. Maryland. Class training requirements will change for sure. Fees may go up but I doubt it. At least not by much. They could allready charge non-resident permit holders $300 application fee like Illinois charged me, but they haven’t. They could even have charged me to get my certificate to teach Maryland firearms classes but they didn’t. Texas a constitutional carry state, as well as Utah both charged a fee for me to become an instructor. Texas $100 and Utah $75

One last state Connecticut. Which on the books is a may-issue state but acts like a shall-issue state, will become shall issue on the books.

All of this won’t happen overnight, and one thing is for sure. You will see several dozen cases if not more filed in state and federal courts over what’s said in this opinion.

"5. Delaware which is an unusual state in so much as they will recognize 3 out of the 9 LTC’s I have and thus allow me to carry, won’t allow a relative of mine in Delaware to get a LTC even though they have 4 other LTC’s from other states. A resident can’t use a non-resident LTC to carry in their home state. Because of that, I do believe Delaware will start issuing LTC’s"

I thought Delaware was effectively shall-issue, as long as you went through their convoluted process like taking out an ad in the paper, etc?

"8. Maryland. Class training requirements will change for sure."

I think Maryland would have a tough time defending changing their years-long practice to be more than 16 hours of class time for someone to exercise a civil right, when most states only want to see 4-8 hours.

Delaware is May Issue. And yes, there is a convoluted process. Common "clean" DE citizens can get a CCDW.

DE Residents MUST get a DE CCDW if they wish to carry concealed in DE. Most states, if not all, that have a CCP/CCDW/LTC regime, require their Residents to get a "home-state" license to carry concealed in their state.

 

[Texasgrillchef]

"5. Delaware which is an unusual state in so much as they will recognize 3 out of the 9 LTC’s I have and thus allow me to carry, won’t allow a relative of mine in Delaware to get a LTC even though they have 4 other LTC’s from other states. A resident can’t use a non-resident LTC to carry in their home state. Because of that, I do believe Delaware will start issuing LTC’s"

I thought Delaware was effectively shall-issue, as long as you went through their convoluted process like taking out an ad in the paper, etc?

"8. Maryland. Class training requirements will change for sure."

I think Maryland would have a tough time defending changing their years-long practice to be more than 16 hours of class time for someone to exercise a civil right, when most states only want to see 4-8 hours.

I’m not saying that hours will increase, or implying how it will change at all. It could be what is taught, or what classes hey allow. Right now Maryland training is much more open t the various different classes that they will accept as long as the Insteuctor is approved and certified by the State Police. Example a NRA basic Pistol Course taught by a MD certified instructor would work. In Texas it would not, you have to take a very specific TX LTC class for it to count. Texas LTC classes are very specific.

 

[Mark75H]

I looked at the MD course requirement and compared to NRA classes and decided NRA Basic Pistol is deficient as a MD permit class.

 

[Texasgrillchef]

Truthfully though…

Berthing is speculation and conjecture of what will happen until the opinion is released. While there’s an excellent and almost chance tha SCOTUS is going to rule in our favor and strike down the NY LTC law. To what extent we don’t know. How it will effect the 8 may-issue states is unknown as how it will effect the states with shall issue.

We don’t even know for sure if it will cover conceal carry, open carry or both based on the fact that Young V Hawaii which is an open carry case is still pending and has not yet been granted cert, or even denied cert yet.

A lot would become obvious and clear if SCOTUS even were to grant cert at this time, or even deny cert. I don’t think SCOTUS wish’s to give away its “hand” right now. Probably more so clear if cert was granted. If they did that, it would become clear as a bell what would be happening.

 

[Texasgrillchef]

I looked at the MD course requirement and compared to NRA classes and decided NRA Basic Pistol is deficient as a MD permit class.

Check out this document

https://www.mass.gov/doc/approved-basic-firearms-safety-course-list-0/download

Clearly states several NRA courses that are approved
Known as LTC-002

 

[Mark75H]

Check out this document

https://www.mass.gov/doc/approved-basic-firearms-safety-course-list-0/download

Clearly states several NRA courses that are approved
Known as LTC-002

We are not in Massachusetts

 

[Texasgrillchef]

We are not in Massachusetts

Doh! Sir you are correct! Lol…. Geez…

I am a Maryland Instructor and you are again correct that I have to teach a very specific course no different then what I will have to teach for Utah or Texas, and same as Illinois. Of which all 4 classes are different. Doh! My bad and apologies…

 

[press1280]

Check out this document

https://www.mass.gov/doc/approved-basic-firearms-safety-course-list-0/download

Clearly states several NRA courses that are approved
Known as LTC-002

A decent list there. Once they become shall issue the process looks almost the same as that of any other shall issue, other than in MA you'll need to get the LTC up front to own firearms.

 

[press1280]

Truthfully though…

Berthing is speculation and conjecture of what will happen until the opinion is released. While there’s an excellent and almost chance tha SCOTUS is going to rule in our favor and strike down the NY LTC law. To what extent we don’t know. How it will effect the 8 may-issue states is unknown as how it will effect the states with shall issue.

We don’t even know for sure if it will cover conceal carry, open carry or both based on the fact that Young V Hawaii which is an open carry case is still pending and has not yet been granted cert, or even denied cert yet.

A lot would become obvious and clear if SCOTUS even were to grant cert at this time, or even deny cert. I don’t think SCOTUS wish’s to give away its “hand” right now. Probably more so clear if cert was granted. If they did that, it would become clear as a bell what would be happening.

From oral argument I don't recall hearing a single word about open carry outside Kagan & Sotomayor (who likely won't rule for our side anyway). Maybe someone heard otherwise?

 

[camo556]

From oral argument I don't recall hearing a single word about open carry outside Kagan & Sotomayor (who likely won't rule for our side anyway). Maybe someone heard otherwise?

transcript

https://www.supremecourt.gov/oral_arguments/argument_transcripts/2021/20-843_f2q3.pdf


Kavanaugh also asked some questions of Fletcher, who listed a whole lot of cases.