SAF sues Westchester County, NY to block "good cause" requirement for CCW

[Afield]

This case is obviously a LOT like Woollard. All we need is one of these to get to SCOTUS first. I guess we'll know on the 23rd though if these will all go dark while courts await jurisprudence from SCOTUS on Masciandaro.

I love how it is impossible to talk about one case without bringing up 2 others!

 

[yellowfin]

What's so great about this case is that the district judge played right into Gura's hands by bringing up the entire ugly legacy of pre-Heller/McDonald cases which have made NY's licensing regime into the reign of terror it is--exposing them for the utter abomination that they are. No way can you be a human being and not be utterly disgusted with what NY's judges have put to paper as law.

 

[Al Norris]

I would like to pass along some thoughts that I posted over at CalGunsNet.

What I am about to say, is going to infuriate some of you. Be that as it may, what I'm about to say is the current state of our system of Constitutional Law.

One of the State cases that is almost always used, as part of the bulwark of the Plaintiffs cases, is In re Brickey. It has not been much explained or expanded upon, as the courts were expected to have read that decision, when referenced (it is very, very short).

This is an Idaho Supreme Court case from back in 1902. At that time, the relevant portion of the Idaho Constitution read: The people have the right to bear arms for their security and defense, but the legislature shall regulate the exercise of this right by law.

When confronted with a case wherein all deadly weapons were banned in cities, the Court took notice of both the Federal Constitution and Idaho's Constitution. They reasoned that while a legislature may regulate the manner of carry (bearing arms), no legislature could pass laws which utterly banned carry. Our Court properly reasoned:

Under these constitutional provisions, the legislature has no power to prohibit a citizen from bearing arms in any portion of the state of Idaho, whether within or without the corporate limits of cities, towns, and villages. The legislature may, as expressly provided in our state constitution, regulate the exercise of this right, but may not prohibit it.

That's pretty strong stuff. It was however, tempered with the following:

A statute prohibiting the carrying of concealed deadly weapons would be a proper exercise of the police power of the state. But the statute in question does not prohibit the carrying of weapons concealed, which is of itself a pernicious practice, but prohibits the carrying of them in any manner in cities, towns, and villages. We are compelled to hold this statute void.

This post-bellum decision is completely in accord with the antebellum cases cited by the Heller Court: Nunn; Andrews; Reid and Chandler. This decision puts the lie to the three post-bellum cases that were used to start the "collective rights" theory that has plagued us until the decision in Heller.

All of this is in complete accord with Prof. Michael O'Shea's latest paper, Modeling the Second Amendment Right to Carry Arms (I): Judicial Tradition and the Scope of ‘Bearing Arms’ for Self-Defense.

Everyone who has been critical of what and why Alan Gura does what he does, needs to thoroughly understand not only what those cases above were saying, but the hurdles Alan has to jump through, in order to overcome the post-bellum thinking, that still pervades the judiciary and the legislatures, despite what the Heller Court has said.

We have a right to carry functional arms for self defense. We do not have a right to carry whatever we decide, whenever we decide or even how (open or concealed) we decide. Those questions (if they are indeed questions), were decided very early in our Republic. Legislatures can, do and will regulate the manner and form of carry. They can do this in complete accord with constitutional protections.

Such regulation may ban certain forms of carry. But under our Federal Constitution, they cannot defeat all forms of carry. State Constitutions, indeed, State legislatures may provide for greater flexibility (and several do), but not less.

Should the States require a license or permit, it is within its police powers to so require. What is not within those powers is to make the bar so high, that it precludes the common citizen from obtaining that license or permit.

This is what Alan Gura is doing. His Kachalsky brief is the best one he has written yet, to explain what the States can and can't do.

As it regards the Woolard Case, Judge Legg would do well to read this brief, before he writes his decision. That is where Alan will attack a contrary decision.

 

[krucam]

I would like to pass along some thoughts that I posted over at CalGunsNet.



As it regards the Woolard Case, Judge Legg would do well to read this brief, before he writes his decision. That is where Alan will attack a contrary decision.

Well put, Al...

TPM...or, Time/Place/Manner of Carry may be regulated in 2A, just as the TPM rules apply in 1A analysis.

Open vs Concealed is "Manner". You may pick one, the Manner of Carry, but you can not eliminate the right (Bear).

 

[Recoil45]

Does anyone have the link to the docket for this case?

 

[krucam]

Does anyone have the link to the docket for this case?

Dockets are no longer published (for free) once a case is at the Circuit Court level as this one is. Go back a page or two in this thread and the majority of Kachalsky's 2nd Circuit docket is available.

If you want a docket for when it was at the District Court, see the link in my Sig.

 

[rambling_one]

Well put, Al...

TPM...or, Time/Place/Manner of Carry may be regulated in 2A, just as the TPM rules apply in 1A analysis.

Open vs Concealed is "Manner". You may pick one, the Manner of Carry, but you can not eliminate the right (Bear).

I can see place/manner, but time? Could you elaborate a bit?

 

[Patrick]

Al,

Spot on.

The Heller decision had a strong originalist flavor that relied heavily on the rules of the day back when the Amendment was ratified. McDonald built from that but also used more contemporary sources from the ratification of the 14th - which is how 2A was applied to the states.

If you go back into history, the question of manner-of-carry was answered by several state courts, in several ways. Without yet another detailed diatribe on the exact cases (you can find that in my previous postings on this topic, and I know others like Al have done the same ad nauseum), it was clear the SCOTUS could pick and choose what they wanted. A few state courts allowed the banning of all personal arms under conditions that, once expanded into today's times, would essentially end public carry as a right. Other courts (notably Tennessee) said that no ban of any form could survive scrutiny (this is the watershed for "Constitutional Carry").

Heller appears to define a middle approach: the right exists but the state can define the manner of its exercise. That means they get to choose "concealed" or "open" (or presumably, "we don't care"). We presume this falls under Scalia's "presumptively lawful" approach to gun regulation.

We can parse things many ways, but the court explicitly shot down the Tennessee approach and stuck with one that appears to support some level of management by the state (or, the federal...but more on that another time). How far this is stretched by anti-rights entities remains to be seen, but we may need legislative pressure to end the more pernicious attacks. And in places like Maryland, that will take time.


Gura has done tremendous work and we all owe him a great deal of thanks. But don't forget the newer names: Matt Levy and many others.

That said - no litigator, nor the SAF, nor the NRA - owns this right. That means whatever they argue in front of the court is just words until the court rules on it. When the SAF argues that manner-of-carry restrictions are presumptively lawful - or that permits for carry are lawful - that does not end the argument unless the Supreme Court explicitly agrees with that doctrine. Gura has been smart in ways many will never recognize and has avoided foreclosing all the things people like to complain about. Sometimes you just need to pick your battle and fight it, and that means holding some issues for another day.


What does this all mean for Maryland people?

We are hoping for the near-term recognition of the right in strong terms, subject to some form of state management of the time, place and manner of carry. Already our community is working to define those next battles beyond "outside the home." We recognize the difference between near-term and long-term goals.

Near-term: Get your right recognized and protection on your person, even if that means a permit and state management of how you carry.

Long-term: keep pushing for parity with other fundamental rights. Trust me when I say this is going to be easier than the last civil rights movement. Personal defense is not going to have the issues that desegregation had. Politicians who are abjectly opposed to personal rights are going to be facing an uphill battle in a few years, even in places like Maryland.


Please be mindful that the Gura, Levy's, Kilmer's and Jensen's of our world are working to make some changes. I don't even think they are all "gun guys". Mostly I think we are looking at a group of people with a strong bend towards liberty. In any case, it is important to recognize that civil rights are won one facet at a time.

The fact we can call this a 'civil right' at all is testament to the hard work of a significant number of smart people. Instead of getting upset of the current state of affairs, it is better to recognize how much has changed in such a short time.

 

[krucam]

I can see place/manner, but time? Could you elaborate a bit?

Nope...none of this has been adjudicated in 2A parlance...yet. TPM has been used extensively in 1A analysis (google away). We've not YET got 2A at the same level as 1A.

Time is clear in 1A analysis (yelling on a residential street in daytime hours will be treated differently than at 2am). I don't have one for 2A analysis, there may not be one...

 

[Patrick]

Time: you can carry on the capital lawn...except when a large protest is occurring.

 

[yellowfin]

We should be insistent on Time, Place, and Manner being Time OR Place OR Manner, not all three at the same time. Meaning you have to be able to carry in some manner all the time, but say for example not in a confrontational (long gun or open) manner when it would be unwise to do so, etc. They can tell me When OR Where OR How, but they can't tell me all three at the same time. It has to be strict scrutiny tailored: absolute necessity of THAT SPECIFIC regulation, doesn't interrupt anything else, has to be the least intrusive regulation possible.

 

[rambling_one]

Time: you can carry on the capital lawn...except when a large protest is occurring.

I was thinking along the lines of MSP's current restrictions; e.g., one can only carry during daylight hours or some such thing.

Time in the sense of an event; e.g., a public gathering or declared emergency is another ball of wax...and one left to fight another day.

Thanks.

 

[Al Norris]

Time, Place and Manner.

I don't know how MD manages hunting, but in Idaho it is unlawful to take game 30 minutes after sunset or 30 before sunrise. That is a lawful TPM restriction.

Granted this has nothing to do with the right to self defense, but then again, Heller did place hunting squarely onto the table of things RKBA.

 

[Patrick]

We should be insistent on Time, Place, and Manner being Time OR Place OR Manner, not all three at the same time. Meaning you have to be able to carry in some manner all the time, but say for example not in a confrontational (long gun or open) manner when it would be unwise to do so, etc. They can tell me When OR Where OR How, but they can't tell me all three at the same time. It has to be strict scrutiny tailored: absolute necessity of THAT SPECIFIC regulation, doesn't interrupt anything else, has to be the least intrusive regulation possible.

The key thing to consider is "compelling interest". Speaking in future-tense (where the right is strongly recognized), this means that the government must have darn good reason to restrict the right. It also suggests they must use the least amoount of restriciton possible to meet that one compelling goal, and nothing more.

Protests are arguably subject to 2A TPM restrictions, just as they are to subject to 1A TPM restrictions. Technically you need a permit to protest in some areas - and that is because you could befuddle traffic; create sanitary issues; place an undo hardship on residents and businesses near the protest; or contribute to a crime situation. Ahem.

So technically a protest restriction is both a time and place restriction. Maryland law currently holds that you may not have arms within 1000 ft. of the place of a protest at the time of the protest. Of course, Maryland also has a pretty liberal view of what a "protest" entails - their definition of protest includes groups so small that it'd be hard to go out with friends on a weekend without being a rebel. But you get the idea.


I would suggest that we not focus too much on the manner of the restriction. Instead, we should focus on the causes. Some restrictions might be permanent (no guns in jails or criminal courtrooms), but a good number of them should be temporary (violent political protests, presidential visits, etc.).

Gone are the blanket restrictions that say "No guns in parks. For the Children." I'd go so far as to say any restriction that suggests "For the Children" is probably invalid just because if you have to fall back on such a tired cliche you don't have much of a constitutionally compelling reason to begin with.

I was thinking along the lines of MSP's current restrictions; e.g., one can only carry during daylight hours or some such thing.

Time in the sense of an event; e.g., a public gathering or declared emergency is another ball of wax...and one left to fight another day.

I think this is getting close. MSP woud be hard pressed to argue a compelling reason exists to prohibit carry of arms at night or day, or some other arbitrary time period. Personal defense clearly is required at all hours.

I will also suggest that when the government institutes a restriction on the tools required to effect personal defense, they must also take up some responsibility for the outcome of that restriction. That means they need to put up a reasonable show of force to defend the people and accept responsibility if they fail to do a good job (read: 'held liable for negligence if someone gets hurt due to lax protection').

I don't know how MD manages hunting, but in Idaho it is unlawful to take game 30 minutes after sunset or 30 before sunrise. That is a lawful TPM restriction.

Granted this has nothing to do with the right to self defense, but then again, Heller did place hunting squarely onto the table of things RKBA.

Variations of those laws appear nearly universal. Maryland and Virginia actually have better state constitutional protection for hunters than many western states - in the sense that my family can never be asked to pay for a permit to hunt our own property, though there are restrictions on certain game at certain times of the year (I wish someone would tell that to car bumpers in Maryland - we have one of the most active deer-auto hit ratios in the nation). That applies even if my property were to bound both states and cross over from one to the other.

So we cannot take game during certain hours or certain times of the year. But are we restricted from having arms for defense during those off-hours/off-times?

I have seen some regs that prohibit guns on hunting lands during off hours, all to dissuade poaching. I think that would probably survive to the extent that the off-limits areas were truly one-use hunting lands and not property that I would commonly use for multiple things. Of course, enjoying the sunset with a shotgun in a tree stand might be tough to explain.

 

[Al Norris]

Justia Summary at 2nd CCA

• 12-30-2011 - Appellant Susan Cacace, et al will file their Reply Brief by 02-08-2012.
• 02-03-2012 - Appellant Westchester County filed their Reply Brief.

Back on Nov. 9th, the opening brief was filed.

Then the State sought and was granted an extension to file until Westchester County was due to file their reply. That would be on or before Feb. 8th.

Today Westchester County filed their brief a tad early. Does, "In the Home" ring any bells? How about, "once you leave your house, the States compelling public safety interest controls and we can regulate the hell out of your right!" ... or words to that affect.

I can't upload the file here, as the file is more than 5MB in size. So if you want to read it, you can go to TFL and in this thread, you will find it towards the last post (or so). Don't let the size of the file scare you. It's only 28 scanned pages.

 

[press1280]

I still can't understand why or how these courts continue to act as if SCOTUS had foreclosed the 2A in the home bit. If they're really just afraid to extend the right beyond the home, they should just say so, and crank out a quick decision, and let the case speed on upwards. What's the point of not doing any historical analysis, and keeping it bottled up if they won't rule for the good guys no matter what?
Al, your post from November about the collective theory still pervading the judiciary is so true. It's unfortunately the legacy of the anti-gun movement that had built up in the 60's and 70's(and before). The state legislatures as well as the population as a whole are pretty much beyond it but it's obvious the judiciary isn't.

 

[Inigoes]

No judge wants to be the first to strike down a whole bunch of state/local laws as unconstitutional in one ruling.

 

[yellowfin]

No judge wants to be the first to strike down a whole bunch of state/local laws as unconstitutional in one ruling.

Oh there are plenty of judges who would, just few of them are in the places where it needs to be done.

 

[Patrick]

I really like the 'in the home' argument. If our side fails, we know where the line is drawn and can get right to work on the legislature. Disappointing though it might be, our side would still have multiple paths to success. It would take more work and more time to bend arms, but at least we still have a way to succeed. And Congress is coming our way - six years from now there will be even fewer anti-gun folks than there are today. Trends are in our favor.

And if the anti-rights side fail, they don't have their line anymore. All of their arguments are predicated on the idea that once you leave your house the government can regulate rights for the most obtuse of reasons (and even some good ones). Once this is gone, it is gone for good. If the court maintain its past view that some rights cannot be abridged by concerns over what some unlawful people might do, then most of the anti-carry regulation will be defeated in spectacular fashion. Then they have no alternate path that does not involve radical modification of the Constitution.

So in essence, as goofy as it sounds and as frustrating as it might be to read, the argument is a nice line in the sand. It is the cause of so many regulations that - like dominoes - would fall if and when we win. And if we lose...we still are winning (in the state and federal legislatures).

All Hail "In The Home".

 

[yellowfin]

There's something even deeper behind it that will need to be addressed. Currently NY, CA, NJ, and MD cite "police powers" and interests of "public safety" and have taken them to basically mean their ability to pass and enforce any kind of law that they want, basically using it the same way Fedzilla uses "interstate commerce." It has its roots in Plessy v. Ferguson, which stood as unchallenged law for over 50 years and thus became the inspiration behind US v. Carolene Products and Wickard v. Filburn. Brown v. Board only overturned Plessy in the very, very narrow context of racial segregation, leaving intact differentiated treatment under the law, "police powers" as a reason to do anything the state wishes, rational basis, and, perhaps most insidiously of all, the normative that citizens should expect to surrender their rights to government in exchange for the benefits of being part of society. NY et al. are still very much speaking from the Plessy point of view and have thus far gotten away with it.