NYC CCW case is at SCOTUS!

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  • kcbrown

    Super Genius
    Jun 16, 2012
    1,393
    I did not claim you were totally wrong, only "partially incorrect."

    I have to repeatedly bring up the fact that rights are not absolute because many here including yourself don't seem to understand it. Stating that
    is arguing from an absolute position. There are limitations to our rights and I even provided examples.

    Not everything is "relative". Without any fixed point of reference, everything is arbitrary.

    Rights are limited by each other. That is why they are not "absolute". There is obviously reasonable disagreement as to where the boundaries of one right end and those of another begin. But that is very different from claiming that the boundaries of a right are defined by things that are lesser than rights.

    Rights stand above all else. They wouldn't be rights otherwise.


    "Dangerous and unusual" is not really arbitrary. You don't seem to grasp what it really means. I have stated that it is not really a numerical number yet you proceed to tell me it is not about popularity, which is about numerical numbers. What is absurd is to think that "weaponry that the founders won their liberty in the first place" is somehow unusual. What is absurd is to think that the arms that the government uses is somehow unusual.

    Is that so? Then explain why the Supreme Court in Heller called out the M-16 as a potentially prohibitable weapon, when it is the most used weapon in the military, thus making it as an individual weapon and its features common unless you exclude government weapons and their features from what defines "common".

    No, clearly "unusual" in Heller is measured with respect to what the citizenry possesses. Government weapons are excluded from the "unusual" test by the Supreme Court's own wording. The M-16 also proves that the "unusual" test doesn't include features of government arms, because none of the features of the M-16 are unusual except if you insist on limiting "usual" to only those things the citizenry possesses.

    And of course it's arbitrary. If it weren't arbitrary, then it would be possible to articulate an objective and logical rule which would allow one to distinguish "usual" from "unusual" and which wouldn't have internal dependencies on things that are arbitrary (such as judicial judgment, statistics, numeric cutoffs, etc.). But I've seen no indication whatsoever that any such thing is possible. You're welcome to give it a shot, of course. I think you'll find it impossible to achieve.


    There are social standards. We created chemical weapons, yet today we have decided that they are inappropriate to use in society. In the past we decided that concealed carry was inappropriate, yet today we do not. Things like this can change depending on social standards.

    That's true, but it's also beside the point. It is not social standards that determined that machine guns are prohibitable. It was the government's unilateral actions that did that.

    You're also failing to account for the effects of government actions on social standards. Presuming that rights can be limited by those social standards which do not themselves have a right as a basis, something that I do not yet concede, it is clearly inappropriate for the government to bootstrap a law into Constitutionality by changing laws so as to yield changes in social standards.


    What cannot change is the ability of the people to keep and bear common arms for appropriate purposes.

    And if "common" is measured by ownership by the citizenry, then clearly it follows that the government can prohibit ownership of any and all newly-developed weapons and/or features and not face a valid 2nd Amendment challenge, right? That's exactly what the "common" requirement implies.

    A weapon and/or feature cannot become "common" with respect to citizen ownership unless the citizenry are allowed to possess it in the first place. Your argument enables the government to bootstrap prohibitions into Constitutionality merely by getting them in early enough.

    In any case, the "common" (or “not unusual”, or whatever phrasing you wish to use) requirement is invalid on its face, because it would have resulted in allowable prohibition of some of the very arms the founders used to secure their liberty, which is a situation that the founders themselves most certainly did not agree with. One would have to argue that gunships and artillery were somehow magically "common" to get out from underneath this. Good Luck With That, because if those were “common", then M-16s (and mortars, and SAMs, and all other heavily used military arms) most certainly are “common” today, and thus M-16 (etc.) ownership by the citizenry is protected by the 2nd Amendment.
     
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    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    The language they use puts the nail in their coffin. What they are asking Scotus to do is find for a watered down (or non existent) carry right in urban areas but a robust one in the rural areas. This was sort of like how Chicago wanted a robust federal 2A compared to the states win McDonald. It was rejected.
    Also they claim “historical” public carry laws wouldn’t have even allowed the plaintiff to carry to and from work. What carry laws and were those ever challenged in court? And were those laws scrutinized under an individual rights scope? Because if they weren’t, then they are meaningless. As has been pointed out, a law’s mere existence cannot be the source of its constitutionality.

    I believe the laws they are talking about are the concealed carry laws such as those mentioned in Heller. They are also using the fact that people carry handguns today, which are considered concealable. They are using both to argue for a right that is very limited.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    Also quoted..
    No self-defense term here!

    To me this is her error in understanding......or at least a direct contradiction! Why?
    Read Heller I....



    Interesting? Heller....

    Question? Is self-defense for lawful use of being armed......only apply to "open carry" ?
    Or should self-defense also apply to concealed carry"?

    I believe the judge did not evaluate self-defense because concealed carry was historically prohibited. It would not really matter that self defense may be involved. It is a little unclear how she would rule on open carry based on her conclusion that the law would meet intermediate scrutiny.

    I believe that the lawyers should have pointed out why concealed carry was historically prohibited (prevent criminality) and demonstrate that concealed carry was an acceptable method as evidenced by DC police.
     

    pcfixer

    Ultimate Member
    May 24, 2009
    5,948
    Marylandstan
    I believe the judge did not evaluate self-defense because concealed carry was historically prohibited. It would not really matter that self defense may be involved. It is a little unclear how she would rule on open carry based on her conclusion that the law would meet intermediate scrutiny.

    I believe that the lawyers should have pointed out why concealed carry was historically prohibited (prevent criminality) and demonstrate that concealed carry was an acceptable method as evidenced by DC police.

    only historically prohibited during the antebellum period?

    Court of Appeals in Wrenn Griffith wrote.

    [T]he Second, Third, and Fourth Circuits . . .
    declined to undertake a complete historical analysis of the scope and nature of the Second Amendment right outside the home. . . . As a result, they misapprehend both the nature of the Second Amendment right and the implications of state laws that prevent the vast majority of
    responsible, law-abiding citizens from carrying in public for lawful self-defense purposes. . . .
    [They] failed to comprehend that carrying weapons in public for the lawful purpose of self defense is a central component of the right to bear arms.

    (No. 1:15-cv-00162) Seem to me the case was made as historical analysis your looking for. I can't really read your mind.
     

    teratos

    My hair is amazing
    MDS Supporter
    Patriot Picket
    Jan 22, 2009
    59,775
    Bel Air
    I looked it up and I think someone lied to you. Long gun open carry is illegal anywhere it matters for self defense like Baltimore, PG county, and most of Montgomery County. Maryland may not prohibit it, but most cities/counties do. It seems to be a legendary internet myth not true in reality. Once the Supreme Court declares open carry is the true right, go get harassed and win some nice civil right settlements. In fact, ppl who think its legal in maryland should go do that now. Activists do actually do that in PA and VA to keep police honest.

    No.

    https://www.mdshooters.com/showpost.php?p=4080221&postcount=52
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    Not everything is "relative". Without any fixed point of reference, everything is arbitrary.

    Rights are limited by each other. That is why they are not "absolute". There is obviously reasonable disagreement as to where the boundaries of one right end and those of another begin. But that is very different from claiming that the boundaries of a right are defined by things that are lesser than rights.

    Rights stand above all else. They wouldn't be rights otherwise.

    What I know is that SCOTUS has repeatedly stated that our rights are not absolute. I don't believe there is anything I can say that will change their mind and I don't believe anything you have said on the subject will change their mind either.

    Is that so? Then explain why the Supreme Court in Heller called out the M-16 as a potentially prohibitable weapon, when it is the most used weapon in the military, thus making it as an individual weapon and its features common unless you exclude government weapons and their features from what defines "common".

    No, clearly "unusual" in Heller is measured with respect to what the citizenry possesses. Government weapons are excluded from the "unusual" test by the Supreme Court's own wording. The M-16 also proves that the "unusual" test doesn't include features of government arms, because none of the features of the M-16 are unusual except if you insist on limiting "usual" to only those things the citizenry possesses.

    And of course it's arbitrary. If it weren't arbitrary, then it would be possible to articulate an objective and logical rule which would allow one to distinguish "usual" from "unusual" and which wouldn't have internal dependencies on things that are arbitrary (such as judicial judgment, statistics, numeric cutoffs, etc.). But I've seen no indication whatsoever that any such thing is possible. You're welcome to give it a shot, of course. I think you'll find it impossible to achieve.
    I am not sure SCOTUS really thought that section through as Heller was a handgun in the home case and not a machine gun case. It seems to me that they were preserving the status quo. It also seems that they wanted to draw a distinction between military only weapons and those used normally as part of society. Their reasoning seems to be that military weapons are not commonly used as part of society.

    I believe police weapons would be the type of governmental weapons that could be considered commonly used as part of society. Machine guns are in a grey area. While I believe machine guns are used by police and should have 2A protection, a case could be made to say that police do not use them commonly as the average police officer does not routinely carry them.

    That's true, but it's also beside the point. It is not social standards that determined that machine guns are prohibitable. It was the government's unilateral actions that did that.

    You're also failing to account for the effects of government actions on social standards. It is clearly inappropriate for the government to bootstrap a law into Constitutionality by changing laws so as to yield changes in social standards.



    And if "common" is measured by ownership by the citizenry, then clearly it follows that the government can prohibit ownership of any and all newly-developed weapons and/or features and not face a valid 2nd Amendment challenge, right? That's exactly what the "common" requirement implies.

    A weapon and/or feature cannot become "common" with respect to citizen ownership unless the citizenry are allowed to possess it in the first place. Your argument enables the government to bootstrap prohibitions into Constitutionality merely by getting them in early enough.

    In any case, the "common" (or “not unusual”, or whatever phrasing you wish to use) requirement is invalid on its face, because it would have resulted in allowable prohibition of some of the very arms the founders used to secure their liberty, which is a situation that the founders themselves most certainly did not agree with. One would have to argue that gunships and artillery were somehow magically "common" to get out from underneath this. Good Luck With That, because if those were “common", then M-16s (and mortars, and SAMs, and all other heavily used military arms) most certainly are “common” today, and thus M-16 (etc.) ownership by the citizenry is protected by the 2nd Amendment.


    Societal standards and government action are more interrelated than you suggest. If machine guns were really commonly used, why would the government prohibit them. There would be no support to do that. The reason the law was able to pass was because the were not commonly used.

    You keep falling back to numerical arguments about what common means.

    It is more about how an arm is being used in society and why the government wants to restrict its use. I would have a hard time believing that the government could justify any ban. The proper methodology should be to regulate arms enough to prevent criminality without unreasonably restricting legitimate uses.
     

    Mike OTDP

    Ultimate Member
    Feb 12, 2008
    3,318
    Remember, we need to take this in small bites. Win carry now. Win a case on gun bans next year. Then go after 922(o). We can make a strong case that any arm legal for issue to law enforcement is inherently suitable for the general public. Not to mention that we would not be talking about a wholesale repeal of NFA'34 - merely a ruling that the ban on manufacture of MGs is illegal and a time limit on processing transfers.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    only historically prohibited during the antebellum period?

    Court of Appeals in Wrenn Griffith wrote.



    (No. 1:15-cv-00162) Seem to me the case was made as historical analysis your looking for. I can't really read your mind.

    I get the impression that concealed carry tended to be prohibited until after the start of the 20th century. See Baldwin (1897) The Sullivan Act was 1911 (this case).

    While Wren made the correct determination with respect to the law, they did not really do a proper historical analysis. They failed to understand why concealed carry was historically prohibited and simply ignored the historical prohibitions.
     

    pcfixer

    Ultimate Member
    May 24, 2009
    5,948
    Marylandstan
    I get the impression that concealed carry tended to be prohibited until after the start of the 20th century. See Baldwin (1897) The Sullivan Act was 1911 (this case).

    While Wren made the correct determination with respect to the law, they did not really do a proper historical analysis. They failed to understand why concealed carry was historically prohibited and simply ignored the historical prohibitions.


    Maybe you should take a deeper dive into this case Robertson vs Baldwin.
    https://caselaw.findlaw.com/us-supreme-court/165/275.html

    From a reading of text, this case has nothing to do with laws regarding 2A rights.
    quoted from text. "that the petitioners were unlawfully restrained of their liberty by Barry Baldwin, marshal for the Northern district of California"

    If you would please read Mr. Justice BROWN wrote. There is a paragraph that must be read in context to what this case determined. Read the 2nd paragraph after "2. The question whether sections 4598 and 4599 conflict with the thirteenth amendment...."

    Clearly to me the statement are out of context as to " to keep and bear arms (article 2) is not infringed by laws prohibiting the carrying of concealed weapons;"

    If one reads this whole paragraph many of the Bill of rights would be upended.

    kcbrown.... Would you also weigh in on this Robertson vs Baldwin?
     

    teratos

    My hair is amazing
    MDS Supporter
    Patriot Picket
    Jan 22, 2009
    59,775
    Bel Air
    What I know is that SCOTUS has repeatedly stated that our rights are not absolute. I don't believe there is anything I can say that will change their mind and I don't believe anything you have said on the subject will change their mind either.


    I am not sure SCOTUS really thought that section through as Heller was a handgun in the home case and not a machine gun case. It seems to me that they were preserving the status quo. It also seems that they wanted to draw a distinction between military only weapons and those used normally as part of society. Their reasoning seems to be that military weapons are not commonly used as part of society.

    I believe police weapons would be the type of governmental weapons that could be considered commonly used as part of society. Machine guns are in a grey area. While I believe machine guns are used by police and should have 2A protection, a case could be made to say that police do not use them commonly as the average police officer does not routinely carry them.




    Societal standards and government action are more interrelated than you suggest. If machine guns were really commonly used, why would the government prohibit them. There would be no support to do that. The reason the law was able to pass was because the were not commonly used.

    You keep falling back to numerical arguments about what common means.

    It is more about how an arm is being used in society and why the government wants to restrict its use. I would have a hard time believing that the government could justify any ban. The proper methodology should be to regulate arms enough to prevent criminality without unreasonably restricting legitimate uses.

    Why look at what the police use? The 2A isn’t so people can act like cops, it’s so people can overthrow the government (as a last resort) and keep the government afraid. Firearms used by the military are what should be looked at. If we need to overthrow the government, I’d rather have an M4 than a Glock 19.
     

    press1280

    Ultimate Member
    Jun 11, 2010
    7,878
    WV
    I get the impression that concealed carry tended to be prohibited until after the start of the 20th century. See Baldwin (1897) The Sullivan Act was 1911 (this case).

    While Wren made the correct determination with respect to the law, they did not really do a proper historical analysis. They failed to understand why concealed carry was historically prohibited and simply ignored the historical prohibitions.

    This is correct. There may be an outlier here or there but this is pretty much the case. NY licensed CC in 1913 (I can't find what the status on OC was around that time), NJ licensed CC in the 1920's (open carry still legal w/o permit until 1966), VT had its supreme court rule for CC in 1903?, CA was also the 1920's I believe. The rest of the nation's CC laws took off though with Florida in 1987.
     

    Inigoes

    Head'n for the hills
    MDS Supporter
    Dec 21, 2008
    49,365
    SoMD / West PA
    Remember, we need to take this in small bites. Win carry now. Win a case on gun bans next year. Then go after 922(o). We can make a strong case that any arm legal for issue to law enforcement is inherently suitable for the general public. Not to mention that we would not be talking about a wholesale repeal of NFA'34 - merely a ruling that the ban on manufacture of MGs is illegal and a time limit on processing transfers.

    I doubt the machine gun ban will ever be repealed.

    Once the NFA is repealed, the entire house of cards called regulation would fall.
     

    Allen65

    Ultimate Member
    MDS Supporter
    Jun 29, 2013
    7,063
    Anne Arundel County
    Once the NFA is repealed, the entire house of cards called regulation would fall.

    Doubtful. There are just too many people on the "other side" on this issue. Legislators would just continue passive-aggressively legislating defacto restrictions that aren't prima facie direct attacks against 2A, and judges will continue giving deference to State arguments, providing an almost unassailable barrier to having legislation overturned or successful challenges on an as-applied basis.

    Deference and Intermediate Scrutiny as they relate to statutes implicating enumerated rights are what really needs to be addressed by SCOTUS to make any fixes stick. But I don't see that in any of the current case arguments and relief not requested will not be granted.
     

    pcfixer

    Ultimate Member
    May 24, 2009
    5,948
    Marylandstan
    I get the impression that concealed carry tended to be prohibited until after the start of the 20th century. See Baldwin (1897) The Sullivan Act was 1911 (this case).

    https://www.thetruthaboutguns.com/legacy-sullivan-laws/

    These laws were so named as the result of an actual law, the Sullivan Act, passed in…wait for it…New York in 1911. The law, largely sponsored by state senator Tim “Big Feller” Sullivan, a corrupt Tammany Hall pol, was passed in response to a murder-suicide that occurred in Central Park.

    a corrupt law since 1911. Time for that to be repealed. Maybe SCOTUS will invalidate the whole law?
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    Why look at what the police use? The 2A isn’t so people can act like cops, it’s so people can overthrow the government (as a last resort) and keep the government afraid. Firearms used by the military are what should be looked at. If we need to overthrow the government, I’d rather have an M4 than a Glock 19.

    You have to remember that a government employee is making the ultimate decision as to the constitutionality of these laws. If your only argument is that I want to overthrow you, I don't see them accepting that argument. Additionally, the language in Heller appears to water down that argument.

    The police interact with society every day in a way the military almost never does. They also use the vast majority of arms the legislature has banned.

    I would argue the 2A is so people can act like cops. Self-defense and public safety are interrelated. Self defense is an individual subset of public safety. It is a distributed method of policing that was used before we had police. The defund the police movement demonstrates the negative effects of relying too much on centralized police and the opposite side of not having enough good people (including the police) to control crime.
     

    rambling_one

    Ultimate Member
    MDS Supporter
    Oct 19, 2007
    6,725
    Bowie, MD
    You have to remember that a government employee is making the ultimate decision as to the constitutionality of these laws. If your only argument is that I want to overthrow you, I don't see them accepting that argument. Additionally, the language in Heller appears to water down that argument.

    The police interact with society every day in a way the military almost never does. They also use the vast majority of arms the legislature has banned.

    I would argue the 2A is so people can act like cops. Self-defense and public safety are interrelated. Self defense is an individual subset of public safety. It is a distributed method of policing that was used before we had police. The defund the police movement demonstrates the negative effects of relying too much on centralized police and the opposite side of not having enough good people (including the police) to control crime.

    I like what I'm reading here! :thumbsup:
     

    kcbrown

    Super Genius
    Jun 16, 2012
    1,393
    What I know is that SCOTUS has repeatedly stated that our rights are not absolute. I don't believe there is anything I can say that will change their mind and I don't believe anything you have said on the subject will change their mind either.

    Oh, I quite agree that SCOTUS isn't going to change its mind on that. But it doesn't have to. What needs to be articulated is what specifically defines the boundaries of the right (it is that the right has boundaries that makes it "not absolute"). And that's exactly what I've been arguing. The boundaries of a right are defined by the combination of where they clash with other rights and the principles, understood by the founders, that define its scope.


    I am not sure SCOTUS really thought that section through as Heller was a handgun in the home case and not a machine gun case. It seems to me that they were preserving the status quo.

    That is certainly the case, but it has specific implications that they either have to walk back or which contradict your argument about inclusion of government weaponry.


    It also seems that they wanted to draw a distinction between military only weapons and those used normally as part of society. Their reasoning seems to be that military weapons are not commonly used as part of society.

    Military weapons are not commonly used as part of society in part because the circumstances that dictate their use are rare (as is the case with artillery), in part because some such weaponry is very expensive, but also in part because the government has passed laws effectively banning them. Which one dominates surely depends on the weapon. Take the M-16, for instance. I dare say that most AR-15 owners would prefer a select-fire weapon like the M-16 over a pure semiautomatic weapon like the AR-15, all other things being equal, because the M-16 is more flexible. The automatic capability doesn't have to be used, but it's there if you need it. This means that if the M-16 were available, it (and weapons patterned on it), and not the AR-15, would be the most popular rifle in America.

    Like I said, the presence of a law cannot bootstrap its own Constitutionality. But that's exactly what the Court's claim here ultimately results in.


    I believe police weapons would be the type of governmental weapons that could be considered commonly used as part of society. Machine guns are in a grey area. While I believe machine guns are used by police and should have 2A protection, a case could be made to say that police do not use them commonly as the average police officer does not routinely carry them.

    If a "commonly used" test is insisted upon, then certainly police weapons should be included. But that's not sufficient. Remember: any ban or regulation that would have prevented ownership by the founders of any of the weapons they used to win our liberty is automatically invalid for that reason alone. But keep in mind your own argument (which I agree with) that it is originally understood principles which define the boundaries of the right, and one of those principles is that the militia must never be denied possession of those arms necessary and sufficient to defeat a tyrannical government that is armed with contemporary government weaponry. The founders clearly understood that a primary role of the militia was to ensure that the State would remain free, and the 2nd Amendment explicitly says as much.


    Societal standards and government action are more interrelated than you suggest. If machine guns were really commonly used, why would the government prohibit them.

    Why would the government of California (or Hawaii, or Maryland, etc.) prohibit the AR-15 in its standard form when we know they're commonly used throughout the country (it is impossible to argue against that proposition, seeing how the AR-15 is the most popular semiautomatic rifle in the U.S.)? Why would various state governments ban magazines that can hold over 10 rounds when such magazines comprise the majority of magazines in the U.S.? You should know better than to ask why a government would ban something that's in common use, as if the common use of something were sufficient unto itself to prevent it from being banned.

    Moreover, if "common use" were truly sufficient to keep the government from banning something, then the "common use" test would be superfluous, and there would be no need for the Supreme Court to articulate such a standard at all. By your argument, there would be no need to ask whether or not a banned arm is in common use: the mere presence of the ban would be sufficient to tell you that it's not.

    Your argument here amounts to the claim that governments never violate the "common use" test, which is of course a rather laughable proposition.


    There would be no support to do that. The reason the law was able to pass was because the were not commonly used.

    No, the reason the law was able to pass was because how they were used by a small minority of the population instilled sufficient fear to prevent sufficient resistance to the ban. This is actually no different from the vast majority of bans we've seen.

    It is enormously rare in practice for criminal use of a weapon to be greater than its use by law-abiding citizens. This shouldn't be a surprise: criminals comprise a very small portion of the overall population (about 0.7% of the population is incarcerated), and violent criminals comprise a small minority of that (about 1.5% of adult arrests are for violent crimes).

    Furthermore, nearly every liberty that is exercised is exercised by a minority of the population. As such, sufficient resistance to government edicts of any kind is automatically very difficult to muster. This makes bans, even of commonly held items, significantly easier for the government to pass than one might otherwise expect.


    You keep falling back to numerical arguments about what common means.

    Feel free to offer a non-numerical argument about what "common" means, that isn't somehow arbitrary. As regards "common" or "typical" or "usual", I can think of no argument that can possibly manage to avoid use of numbers of some kind, whether they be rates, percentages, counts, or whatever. It looks to me that use of those terms without reference to such things makes their use arbitrary, i.e. dependent solely upon the judgment of the individual who is assessing whether or not something is "common", "typical", "usual", etc.

    Honestly, I consider the "common" test to be arbitrary on its face. I can think of no articulation of such a standard that wouldn't be arbitrary in some manner.


    It is more about how an arm is being used in society and why the government wants to restrict its use. I would have a hard time believing that the government could justify any ban.

    And yet, we have plenty of them.


    The proper methodology should be to regulate arms enough to prevent criminality without unreasonably restricting legitimate uses.

    I would most certainly agree with this (though I'd phrase the second part "without restricting legitimate uses any more than absolutely necessary", since "unreasonably" is totally subjective and thus not a proper standard for use with Constitutionally-protected rights), and perhaps we should hash that out so as to formulate a powerful argument for it that can later be used in an amicus brief.

    But keep in mind one thing: the 2nd Amendment overrides everything the government might do to prevent criminality that would conflict with, at a minimum, the stated purpose of the 2nd Amendment. Put another way, it is impermissible for the government to regulate arms in such a way that the militia can no longer maintain the security of a free State.
     
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    kcbrown

    Super Genius
    Jun 16, 2012
    1,393
    I would argue the 2A is so people can act like cops. Self-defense and public safety are interrelated. Self defense is an individual subset of public safety. It is a distributed method of policing that was used before we had police. The defund the police movement demonstrates the negative effects of relying too much on centralized police and the opposite side of not having enough good people (including the police) to control crime.

    This is most certainly valid.

    But the 2nd Amendment isn't just so that people can act like cops. It's so that people can, in groups, act like a military force. And this is so because of what the 2nd Amendment explicitly states: the (well-trained and well-equipped) militia is necessary to the security of a free State. That means preserving liberty in the face of foreign aggressors and domestic aggressors alike.


    Your observation that we're talking about asking a government employee about the Constitutionality of these laws is absolutely correct. But that only illustrates what we're likely to succeed in, not whether the judgment of that employee is ultimately valid as measured by the statements of that same employee (which includes that "Constitutional rights are enshrined with the scope they were understood to have when the people adopted them"), much less the foundational principles of the country.

    Even so, it's prudent to take it one step at a time, as long as doing so doesn't foreclose later steps.
     

    kcbrown

    Super Genius
    Jun 16, 2012
    1,393
    kcbrown.... Would you also weigh in on this Robertson vs Baldwin?

    The use of concealed carry limitations in Robertson v Baldwin is actually very similar to the use of such limitations in Heller: as an example (out of several) to show that Constitutional protections sometimes have limits, and thus that the Constitutional protection in question (the 13th Amendment) also has limits (such that the contract of a seaman would not violate the 13th Amendment).

    Now, while the concealed carry limitations were contemporary at the time of Robertson, it's important to note that Heller uses them solely in historical form, to note that the right was historically regarded as having limits.

    The use of the 2nd Amendment example was not itself a necessary precondition for the holding in Robertson, most especially because of the wording at the beginning of the paragraph in which it's used ("But we are also of opinion that, even if the contract of a seaman could be considered within the letter of the Thirteenth Amendment, it is not, within its spirit, a case of involuntary servitude."), which clearly shows that the entire line of inquiry the Court was using there was unnecessary for its conclusion. That means that Robertson is not precedential with respect to its claim about the 2nd Amendment to the degree that an actual holding would be.

    If Robertson were indeed precedential in that way, then the Court would not have limited its statement in Heller to one that courts historically regarded the right as having some limitations, with concealed carry prohibitions being among those limitations. Rather, it would have directly stated that concealed carry prohibitions are among those limitations today, precisely because of its own prior jurisprudence (but only if it regarded its prior jurisprudence as remaining valid).


    In any case, precedent is valid only to the degree that the reasoning behind that precedent is valid. The state courts explicitly stated their reasoning for upholding concealed carry bans. That reasoning was that, as a rule, only criminals would consider carrying concealed, and they do so for nefarious purposes, and therefore a ban on the act is justifiable because they regarded the nature of the act itself as nefarious. But the actions of tens of millions of law-abiding citizens who peacefully carry concealed every day today disproves that reasoning. Without the reasoning behind it, the historical precedent is invalid. A court which insists on using invalid precedent as the basis of its decision is a court which is acting in an arbitrary and capricious manner.

    A proper free society does not impose limits on the everyday peaceful actions of the citizenry solely due to the actions of a much smaller number of criminals. That is what a police state does. If we forbade every action that is common to both citizens and criminals, the resulting set of available actions left would be vanishingly small. To do that would be to straitjacket the citizenry. It is plainly invalid to do such a thing, and that is one reason that carry bans of all modes are facially invalid.
     

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