NYC CCW case is at SCOTUS!

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  • press1280

    Ultimate Member
    Jun 11, 2010
    7,878
    WV
    Heller was the "Court's first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field". Using the terms "unaltered" and "unchanging" are not really appropriate. Heller specifically mentions that "we do not interpret constitutional rights that way." We are to use the understanding of the right at the time of the founding to address modern issues. The Court wrote Caetano because the MA Court did not change the right to address modern issues.

    The hard part is trying to correctly understand what the right actually meant. Was concealed carry prohibited because it was something only criminals would be inclined to do or was it prohibited because it was considered unusual or uncommon in society. The former interpretation would lead to two possible outcomes, the latter would suggest other possible outcomes.

    In today's society open carry can provoke hysterical reactions from the public. Norman did not base their decision solely on the fact that the right is not unlimited. They invoked intermediate scrutiny to justify their decision based on compelling government interests.

    The reason that Heller would have lost the permit argument is because the Court does allow certain restrictions such as permits as long as they are reasonable for the circumstances.

    From what I can tell of the antebellum cases it was always referenced that concealed carry was some kind of a scourge on society, and a ban on it was basically a crime reducing measure. Several factors come into play however. The cheap pocket pistols were always attributed to poor and minorities and were thus relegated to gangbanger instruments with no constitutional protections.
    We're quite a ways off from that in today's society. Not only as mentioned above all states allow for CC (and in some cases ONLY CC), but we now have a system where individuals are able to walk around but still be prohibited from owning (and obviously carrying) arms. So society is more concerned now with WHO is carrying rather than HOW they're carrying, whereas the opposite was true in the 1800's.
    Everything today points toward allowing CC as a viable, constitutionally protected mode of carry. The only issue against it is that yes, criminals will continue to only carry concealed. However even the good guys by and large will want to CC over open carry, so a "thieves veto" shouldn't be allowed to stand.

    As for the permit requirement I agree basically because the court is in no way ready for that yet. A bit further down the road after some more positive caselaw this can be successfully tackled.
     

    Steel Hunter

    Active Member
    Nov 10, 2019
    548
    Amazing you guys are still arguing all this time later and we still have another month until arguments are held.
     

    pcfixer

    Ultimate Member
    May 24, 2009
    5,947
    Marylandstan
    The easy answer is that both parties agree on that point (CCW preferred), and if you want to take it a step further all 50 states plus DC allow for CCW while a few of those do not allow open carry. And that trend was much more recent starting with FL in 1987, clearly showing a move away from OC which was and is still legal w/o permits in many states today.
    We have Wrenn v. DC (plus a dissent), Norman v. State (FL) which have accepted plaintiffs' theory. There's also numerous IL cases post Moore v. Madigan that basically accepted this as well. Heck probably throw in Moore too, as the court never stipulated that IL had to allow open carry.
    Let's also not lose sight of the individuals on the court. Do you see it more likely that Roberts would insist on open carry or accept plaintiff's theory and allow for the manner of the state's choosing as long as it's on a shall issue basis?
    All very good points!

    Quote:
    Originally Posted by jcutonilli View Post
    SCOTUS may or may not view concealed carry in a vacuum. If they don't then why should they choose concealed carry as the preferred option. Supreme Court precedent indicates that concealed carry is not part of the right. Why should they choose an option that is not part of the right over an option that is part of the right? Are there precedents that have accepted this issue?
    I do not see what "precedent indicates that concealed carry is not part of the right"
    Do states have precedent?
    https://constitutionalcarrying.com/which-states-became-constitutional-carry-in-2021/
    "21 states where Constitutional Carry is the law."
    "21 States Shall Issue."
    "8 states have "May Issue" Laws."
    Vermont is the only U.S. state that does not issue concealed carry permits. Both open carry and concealed carry are legal without a permit in Vermont. Any person 16 or older (although federal law requires the age to be 18) who can legally possess a firearm is allowed to carry openly or concealed.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    I do not see what "precedent indicates that concealed carry is not part of the right"
    Do states have precedent?
    https://constitutionalcarrying.com/which-states-became-constitutional-carry-in-2021/
    "21 states where Constitutional Carry is the law."
    "21 States Shall Issue."
    "8 states have "May Issue" Laws."
    Vermont is the only U.S. state that does not issue concealed carry permits. Both open carry and concealed carry are legal without a permit in Vermont. Any person 16 or older (although federal law requires the age to be 18) who can legally possess a firearm is allowed to carry openly or concealed.

    SCOTUS has stated that "the right of the people to keep and bear arms (Art. II) is not infringed by laws prohibiting the carrying of concealed weapons." In Robertson v. Baldwin, 165 U.S. 275, 281 (1897), although that was dicta and not exactly precedential. What they said in Heller is that it is not unlimited.

    Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.

    It is not that the state court cases are precedential, they simply inform the Court of the historical understanding of the right.

    States may exceed the 2A, they just cannot infringe upon it. This is NYS's position.

    What NYSRPA has not done is explain why the court should accept concealed carry as part of the right today.
     

    pcfixer

    Ultimate Member
    May 24, 2009
    5,947
    Marylandstan
    SCOTUS has stated that "the right of the people to keep and bear arms (Art. II) is not infringed by laws prohibiting the carrying of concealed weapons." In Robertson v. Baldwin, 165 U.S. 275, 281 (1897), although that was dicta and not exactly precedential. What they said in Heller is that it is not unlimited.


    What NYSRPA has not done is explain why the court should accept concealed carry as part of the right today.


    Soo.. Really there is NO precedent either way.
    ""The court has reversed its own constitutional precedents only 145 times – barely one-half of one percent."" By David Schultz, Hamline University.

    https://www.law.cornell.edu/supremecourt/text/18-824 Even tho a "Dissent". Likely provides clarity to what MAY be in the decision!
     

    press1280

    Ultimate Member
    Jun 11, 2010
    7,878
    WV
    Soo.. Really there is NO precedent either way.
    ""The court has reversed its own constitutional precedents only 145 times – barely one-half of one percent."" By David Schultz, Hamline University.

    https://www.law.cornell.edu/supremecourt/text/18-824 Even tho a "Dissent". Likely provides clarity to what MAY be in the decision!

    That’s probably referring to actual holdings, not dicta. The passage in Robertson should not be that hard to overcome for the reasons stated above.
     

    press1280

    Ultimate Member
    Jun 11, 2010
    7,878
    WV
    SCOTUS has stated that "the right of the people to keep and bear arms (Art. II) is not infringed by laws prohibiting the carrying of concealed weapons." In Robertson v. Baldwin, 165 U.S. 275, 281 (1897), although that was dicta and not exactly precedential. What they said in Heller is that it is not unlimited.



    It is not that the state court cases are precedential, they simply inform the Court of the historical understanding of the right.

    States may exceed the 2A, they just cannot infringe upon it. This is NYS's position.

    What NYSRPA has not done is explain why the court should accept concealed carry as part of the right today.

    I’m pretty sure the many briefings filed have explained in one way or another all of the points I’ve made
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    Soo.. Really there is NO precedent either way.
    ""The court has reversed its own constitutional precedents only 145 times – barely one-half of one percent."" By David Schultz, Hamline University.

    https://www.law.cornell.edu/supremecourt/text/18-824 Even tho a "Dissent". Likely provides clarity to what MAY be in the decision!

    There is precedent to indicate that the right is not unlimited. Part of the reasoning behind that precedent is the historical prohibitions on concealed carry. There is also precedent to indicate that the scope of the right should reflect the historical understanding. While the exact status of concealed carry today is not explicit, the combination of both precedents does suggest that concealed carry is not part of the right.

    Once something becomes precedent, it can be very difficult to reverse. The problem with the plaintiffs arguments is that they don't really provide an alterative explanation of what was happening. They are going against what the logic of what the precedents suggest.

    What they really should have done is provide a more detailed explanation of the historical prohibitions. The historical prohibitions were about preventing criminality rather than prohibitions against law abiding citizens carrying concealed. This argument allows concealed carry and is consistent with the logic of the precedents.

    Thomas could not even get Kavanaugh to agree with the entire dissent let alone 4 other people.
     

    pcfixer

    Ultimate Member
    May 24, 2009
    5,947
    Marylandstan
    SCOTUS has stated that "the right of the people to keep and bear arms (Art. II) is not infringed by laws prohibiting the carrying of concealed weapons." In Robertson v. Baldwin, 165 U.S. 275, 281 (1897), although that was dicta and not exactly precedential. What they said in Heller is that it is not unlimited.



    It is not that the state court cases are precedential, they simply inform the Court of the historical understanding of the right.

    States may exceed the 2A, they just cannot infringe upon it. This is NYS's position.

    What NYSRPA has not done is explain why the court should accept concealed carry as part of the right today.
    ..

    My search came up with this...:Lots of reading and searching.
    Baldwin, 165 U. S. 275, 281 (1897): “…the Second Amendment was not intended to lay down a “novel principle” but rather codified a right “inherited from our English ancestors,” Robertson v. Baldwin, 165 U. S. 275, 281 (1897) – referring to the English Bill of Rights 1689.

    also found the same here...https://stephentwist.wordpress.com/...,referring to the English Bill of Rights 1689.
     

    777GSOTB

    Active Member
    Mar 23, 2014
    363
    ..

    My search came up with this...:Lots of reading and searching.

    Quote:
    Baldwin, 165 U. S. 275, 281 (1897): “…the Second Amendment was not intended to lay down a “novel principle” but rather codified a right “inherited from our English ancestors,” Robertson v. Baldwin, 165 U. S. 275, 281 (1897) – referring to the English Bill of Rights 1689.


    also found the same here...https://stephentwist.wordpress.com/...,referring to the English Bill of Rights 1689.

    "Robertson v Baldwin 165 U.S. 275 (1897) " .....the right of the people to keep and bear arms (Art. II) is not infringed by laws prohibiting the carrying of concealed weapons;.."
     

    pcfixer

    Ultimate Member
    May 24, 2009
    5,947
    Marylandstan
    "Robertson v Baldwin 165 U.S. 275 (1897) " .....the right of the people to keep and bear arms (Art. II) is not infringed by laws prohibiting the carrying of concealed weapons;.."

    yea! I got that part!! It's dicta, meaning opinion of one judge before the court and not an issue before that court case. "not material to case holding"!
     

    pcfixer

    Ultimate Member
    May 24, 2009
    5,947
    Marylandstan
    Here is an indication of which "might be consistent in future 2A cases with concealed carry"! Just sayin'......

    https://www.law.cornell.edu/supremecourt/text/18-824

    “[T]he Second Amendment . . . codified a pre-existing right.” Heller, supra, at 592. So, as in Heller, my analysis of the scope of that right begins with our country’s English roots.

    Whatever the initial breadth of the statute, it is clear that it was not strictly enforced in the ensuing centuries. To the contrary, “[d]uring most of England’s history, maintenance of an armed citizenry was neither merely permissive nor cosmetic but essential” because “ntil late in the seventeenth century England had no standing army, and until the nineteenth century no regular police force.” Malcom, The Right of the People To Keep and Bear Arms: The Common Law Tradition, 10 Hastings Const. L. Q. 285, 290 (1983). Citizens were not only expected to possess arms, they were encouraged to maintain skills in the use of those arms, which, of course, required carrying arms in public. See, e.g., id., at 292 (describing King Henry VIII’s order requiring villages to maintain targets at which local men were to practice shooting).


    In short, although England may have limited the right to carry in the 14th century, by the time of the founding, the English right was “an individual right protecting against both public and private violence.” Heller, supra, at 594 (emphasis added). And for purposes of discerning the original meaning of the Second Amendment, it is this founding era understanding that is most pertinent.

    Also what only Justice Thomas wrote....
    2
     Founding era legal commentators in America also understood the Second Amendment right to “bear Arms” to encompass the right to carry in public.

     St. George Tucker, in his 1803 American edition of Blackstone’s Commentaries, explained that the right to armed self-defense is the “first law of nature.” 1 Blackstone’s Commentaries, App. 300. He described “the right of the people to keep and bear arms” as “the true palladium of liberty.” Ibid. Tucker makes clear that bearing arms in public was common practice at the founding: “In many parts of the United States, a man no more thinks, of going out of his house on any occasion, without his rifle or musket in his hand, than a European fine gentleman without his sword by his side.” 5 id., at 19.
     

    Kharn

    Ultimate Member
    Mar 9, 2008
    3,578
    Hazzard County
    Here is an indication of which "might be consistent in future 2A cases with concealed carry"! Just sayin'......

    https://www.law.cornell.edu/supremecourt/text/18-824







    Also what only Justice Thomas wrote....

    "A rifle or musket is equivalent to a sword, not a handgun! Our law should stand!

    But don't you dare think about carrying a sword, rifle, or musket in NY, those are addressed under different laws. But not this one." NY AG at argument
     

    Blacksmith101

    Grumpy Old Man
    Jun 22, 2012
    22,154
    Not really. Pretty much talks around the issue of concealed carry and focuses on carry in general, just like the plaintiffs arguments. There are a few good points, but the focus on carry in general obfuscates these points.

    Do you have an opinion on which brief in this case is the best written one?
     

    777GSOTB

    Active Member
    Mar 23, 2014
    363
    yea! I got that part!! It's dicta, meaning opinion of one judge before the court and not an issue before that court case. "not material to case holding"!

    Judges use dicta all the time in their rulings. Machine guns and short-barreled shotguns had nothing to do with Heller's handgun, yet they're now classified within the dangerous and unusual understanding of the right to keep and bear arms. But, no matter, that dicta made by a US Supreme Court justice, supports what Scalia stated when referencing a majority of 19th century courts that have addressed the matter of concealed carry, have ruled that, that form of carry can be regulated under the 2nd Amendment.
     

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