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Old November 15, 2011, 11:37 AM   #26
tet4
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Al, I follow your conclusion that while a state cannot prohibit the bearing of arms, they can regulate it. However, if strict scrutiny is applied (and I don't see how it won't be eventually if things continue the way they are, and certainly that would be the logical and moral stance considering that's what is applied to other natural rights) I don't see how banning a certain method of carry, as long as it is safe, could pass that kind of scrutiny. This may be the ultimate genius of Gura and company, but it's going to be increasingly difficult to argue that concealed carry poses any more of a public risk that open carry, or licensing provides better public safety than not, etc. If strict scrutiny is applied, most of this becomes mute. I am correct in thinking this?
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Old November 15, 2011, 05:37 PM   #27
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Aside from prohibited classes being banned from the right, I don't know how much weight can be given to the public safety concerns when the right is to carry a lethal weapon.

Aside from the prohibited folks carrying, what public safety concern involves danger beyond what is already an inherently dangerous practice (at least, for criminals)?

Regulations that mitigate the danger like requiring training, proficiency, knowledge of force escalation (shoot, don't shoot) ought to pass muster. Certainly, inherent in the militia purpose was training, proficiency, i.e. well regulated.

But no regulation can address every public safety concern when the core of the right inherently involves the capability of lethal force.

Last edited by maestro pistolero; November 15, 2011 at 05:45 PM.
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Old November 15, 2011, 07:40 PM   #28
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As there appears to be more jurisprudence on gun control back in the day than I was aware of, I am apparently beat, and humbly withdraw from the argument.
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Old November 15, 2011, 08:10 PM   #29
Frank Ettin
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Quote:
Originally Posted by maestro pistolero
...what public safety concern involves danger beyond what is already an inherently dangerous practice (at least, for criminals)?

Regulations that mitigate the danger like requiring training, proficiency, knowledge of force escalation (shoot, don't shoot) ought to pass muster. Certainly, inherent in the militia purpose was training, proficiency, i.e. well regulated.

But no regulation can address every public safety concern when the core of the right inherently involves the capability of lethal force.
I think that's correct. But that still seems to leave room for non-discretionary licensing/training requirements for lawfully carrying in public. And that probably also leaves some room for safe storage laws, such as found in California (e. g., criminal penalties if a child gets your loaded gun and hurts someone, unless you stored your gun securely). And there might be other sorts of regulations that courts in the future will decide reflect a constitutionally acceptable balancing of the right to keep and bear arms against governmental interest in public safety.

The real bottom line is that, as I've suggested in the past, we can't expect Heller and McDonald to herald the end of all regulation of the RKBA.
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Old November 15, 2011, 10:29 PM   #30
Al Norris
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Common thought is that the current carry cases are fighting discretionary carry. That thought is only partially correct.

By and large, what we are currently fighting is the lower courts and their wholesale unwillingness to admit that the core of the right, is in fact, the right to keep and bear functional arms for self defense in case of confrontation.

Keeping in mind that the lower courts are relying upon the exact holding of Heller and calling everything else in that decision, dicta.

So far, the 7th Circuit is the only Court to do the necessary work that the Heller Court said they were to do. And that, only in the Ezell case.

Once it is established that carry for self defense means carry for self defense, public or private (in the home), the discretionary laws will fail. Fact of the matter is that this now is the whole purpose of these lawsuits. This can be seen in the way the later filings have been worded.

As fiddletown and Maestro have observed, permitting/licensing will be held constitutional. In many cases, even under strict scrutiny.
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Old November 15, 2011, 11:19 PM   #31
secret_agent_man
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permitting/licensing will be held constitutional. In many cases, even under strict scrutiny
Perhaps. But the most narrowly tailored fashion under strict scrutiny, permitting/licensing may well resemble the current background check for purchasing a handgun. You're in, you're out for a minimal fee. No training requirement. But then, strict scrutiny may not come to pass. That's going to be an itch.
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Old February 3, 2012, 09:40 PM   #32
Al Norris
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I've really been remiss in reporting this case. sigh. Juggling too many balls?

Back on Nov. 9th, the opening brief was filed. Which I reported here, in the Main 2A cases thread, instead of this one.

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?

Don't let the size of the file scare you. It's only 28 scanned pages.
Attached Files
File Type: pdf Kachalsky-Apellent Westchester Reply.pdf (5.43 MB, 29 views)
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Old February 4, 2012, 12:10 PM   #33
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Hoo, boy. As my late grandmother used to say, 'There are none so blind as those who will not see."

Quote:
Plaintiffs' contention that the County is liable for the natural consequences of its employees' actions in summarizing the results of their investigations in recommendations to the licensing officers is meritless inasmuch as there is no established Second Amendment right to possess a concealed firearm in a public setting.
That pretty well sums it up, right there.
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Old April 3, 2012, 10:26 PM   #34
Al Norris
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I haven't read it yet, but the SAF and Gura have filed their reply brief. The CA2 is now fully briefed and we will await for Orals.
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File Type: pdf Kachalsky-CA2 Apellant Reply Brief.pdf (297.7 KB, 36 views)
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Old April 4, 2012, 12:30 AM   #35
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One thing you have to remember, unlike WA, ID and many other states, NY has no 2A equivilent in their state constitution, so all arguments have to be based on the bill of rights 2A.

NY does not want to see unbridled the right to bear arms in the 2A, so they will twist what does exist in any manner they can...this brief does not surprise me at all. Until the Supreme court comes out and flatly states that their is an unbridled right to carry anywhere you can legally be, there will be CA,NY, NJ, MD, MA, oh yes, and HI, Guam, the Marianna's etc.
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Old April 4, 2012, 08:12 AM   #36
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Here's some quotes from the reply brief that I thought you would find amusing...
Quote:
This Court does not referee academic debates. “[T]he enshrinement of constitutional rights necessarily takes certain policy choices off the table.” Heller, 554 U.S. at 636. Professors Cook and Zimring are certainly entitled to believe that the Second Amendment right to bear arms is disastrously dangerous. They are also entitled to that same belief regarding the exclusionary rule or the right to counsel. Doubtless, virtually every aspect of the Constitution finds strong disagreement among some segment of society... The question of what the Second Amendment secures is a matter of text and history, not an academic debate as to who has the best statistics.


Defendants offer that openly carrying handguns is socially unacceptable today, but that is hardly a basis for prohibiting constitutionally-protected conduct. Licensing Officers’ Br., at 38 & n.13. Nonetheless Defendants suggest Plaintiffs should have challenged New York’s general prohibition on carrying loaded handguns in public, which reaches the open carrying of firearms. Id. Defendants should consider carefully whether this is the outcome they want. If the licenses issued under Penal Law § 400.00(2) relate only to concealed carry, and if this Court holds that the right to bear arms extends only to open carrying, the police would enjoy no qualified immunity for enforcing an open carry prohibition. The decision would instantly place New York among the states that generally allow the unlicensed open carrying of handguns—and many individuals could be counted upon to immediately exercise that right here, as is already done elsewhere.


But the Second Amendment is not among the Bill of Needs. It is among the Bill of Rights. Defendants’ arguments amount to: the government’s “experts” have determined that the People do not really “need” one of their “rights.” That is not constitutional law. Social science may have a role to play in illuminating the relationship between a right and its regulation, but it cannot have the role of defining the content of a right.
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Old April 4, 2012, 08:34 AM   #37
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The best argument (IMO) in the reply, directed to all the social science that Cook and Zimring used:
Quote:
Curiously, the one type of data that Defendants failed to offer is the data most relevant to their theory that law-abiding, responsible people cannot be trusted with guns: the crime rate of individuals licensed to carry handguns for self-defense in the states where such licensing occurs on a shall-issue basis. That information, readily maintained by various government agencies, is a matter of judicial notice. It does not advance Defendants’ theories.

Michigan, for example, issued 87,637 permits for the year ending June 30, 2011. In that time frame, it revoked only 466 permits. Texas compiles detailed information tracking the proclivity of handgun carry license permit holders to commit crimes. In 2009, of 65,561 serious criminal convictions in Texas, only 101— 0.1541%—could be attributed to individuals licensed to carry handguns, though not all such crimes necessarily utilized guns, or used them in public settings.

Perhaps the most comprehensive data comes from Florida, which reports having issued 2,145,632 handgun carry licenses since 1987. To date, Florida has only revoked 168 licenses—.0078%—for crimes utilizing firearms.

In any event, the social science debate is totally irrelevant. In considering constitutional claims, this Court does not weigh “expert” opinion disproving the utility of the right against search and seizure, various aspects of due process, or the right to counsel itself. Tax evaders cannot cite expert economists to explain the various policy deficiencies inherent in taxing income, the Sixteenth Amendment notwithstanding.

This Court does not referee academic debates. “[T]he enshrinement of constitutional rights necessarily takes certain policy choices off the table.” Heller, 554 U.S. at 636. Professors Cook and Zimring are certainly entitled to believe that the Second Amendment right to bear arms is disastrously dangerous. They are also entitled to that same belief regarding the exclusionary rule or the right to counsel. Doubtless, virtually every aspect of the Constitution finds strong disagreement among some segment of society. But McDonald's instructions bear repeating:
Municipal respondents . . . note that there is intense disagreement on the question whether the private possession of guns in the home increases or decreases gun deaths and injuries. The right to keep and bear arms, however, is not the only constitutional right that has controversial public safety implications. All of the constitutional provisions that impose restrictions on law enforcement and on the prosecution of crimes fall into the same category.
The question of what the Second Amendment secures is a matter of text and history, not an academic debate as to who has the best statistics.
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Old April 4, 2012, 08:55 AM   #38
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I don't have time to read this brief this morning, but I do see Woolard in the table of authorities. Looking forward to a good lunchtime read.

Thank you, Al, for all of your hard work on these.
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Old May 16, 2012, 10:45 AM   #39
Al Norris
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A proposed date for orals:
Quote:
04/24/2012 100 CASE CALENDARING, for the week of 08/20/2012, B, PROPOSED.[589529] [11-3642, 11-3962]
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Old May 18, 2012, 08:24 AM   #40
Al Norris
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Orals have been set:
Quote:
05/16/2012 101 CASE CALENDARING, for argument on 08/22/2012, SET.[611906] [11-3642, 11-3962]
This is effectively the start of the 2012 session at CA2.
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Old June 12, 2012, 10:13 PM   #41
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Quote:
06/06/2012 102 ORDER, dated 06/06/2012, requesting supplemental briefing from the parties, FILED.[629947] [11-3642, 11-3962]
From the briefing request:

Quote:
We hereby request supplemental briefing from the parties concerning the impact, if any, of the June 1, 2012 decision of this Circuit in United States v. Decastro, 10-3773. The requested briefing shall be submitted in the form of letter-briefs of no more than fifteen (15) single-spaced pages, and shall be filed no later than 5:00 p.m. on June 29, 2012. Reply briefs of no more than five (5) single-spaced pages shall be filed no later than 5:00 p.m. on July 13, 2012.
This is about a bad case that has made bad case law. In DeCastro, a criminal case, heightened scrutiny was not used because of the nature of the criminal action. There, the CA2 reasoned that mere rational basis could be used on any 2A claim that was far removed from the core right... In the Home!

The Decastro decision: http://caselaw.findlaw.com/us-2nd-circuit/1602105.html
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Old June 12, 2012, 11:17 PM   #42
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Why are they bringing a case regarding an unlicensed firearm into the mix? Kachalsky deals with removing "good cause" and subjective licensing schemes, not the overall RKBA.
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Old June 13, 2012, 06:49 PM   #43
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Quote:
Why are they bringing a case regarding an unlicensed firearm into the mix? Kachalsky deals with removing "good cause" and subjective licensing schemes, not the overall RKBA.
If nothing else, the level of scrutiny is an issue. In Decastro the defendant claimed 18 U.S.C. sct. 922(a)(3) (prohibiting anyone except a licensed dealer from importing a firearm into a state from another state) was unconstitutional on its face and, in combination with NYC's restrictive gun permit policy, denied him his right to own a firearm. He bought a gun in Florida by lying about his state of residence and then transported it into his home in NYC.

DeCastro argued on appeal that the court should review section 922(a)(3) using either strict or intermediate scrutiny. The 2nd Circuit said:
Quote:
We hold that heightened scrutiny is appropriate only as to those regulations that substantially burden the Second Amendment. Because § 922(a)(3) only minimally affects the ability to acquire a firearm, it is not subject to any form of heightened scrutiny. (We therefore need not decide the level of scrutiny applicable to laws that do impose such a burden.)
I'm sure the Court is seeking discussion about whether the city's licensing scheme impairs the the ability to acquire a firearm and how that plays into the level of scrutiny.

Particularly interesting is this:
Quote:
The district court declined to dismiss the indictment. Inferring from the NYPD statistics that there is a high grant rate for handgun licenses in New York City, the court rejected Decastro's argument that he was effectively forced to violate § 922(a)(3) by traveling outside the state in order to secure a handgun for self-defense. The court did not address Decastro's argument that § 922(a)(3) is unconstitutional on its face.
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Old June 13, 2012, 09:10 PM   #44
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Quote:
Inferring from the NYPD statistics that there is a high grant rate for handgun licenses in New York City, the court rejected Decastro's argument that he was effectively forced to violate § 922(a)(3) by traveling outside the state in order to secure a handgun for self-defense.
WHAT!?

What cooked-up statistics did the City present that caused the court to "infer" something as patently incorrect as this?
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Old June 13, 2012, 09:24 PM   #45
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A bit of a quote from the DeCastro decision:

Quote:
The facial constitutionality of § 922(a)(3) is unimpaired by the risk that some state laws governing the sale of firearms may themselves be unconstitutional.
And the closing remarks by Chief Judge Dennis Jacobs:

Quote:
Had Decastro opted to utilize the lawful means by which he could have acquired a handgun in New York and done so, § 922(a)(3) would have played no role in regulating that transaction. By the same token, § 922(a)(3) by its terms did not preclude Decastro from acquiring the handgun in question from the Florida dealer because all that the federal statute effected were minor limitations on the channels through which that handgun was to be shipped from Florida to New York. Even though acquisition is indeed often necessary to effectuate the Second Amendment right to keep and bear arms, any limitations on Decastro's acquisition were those occasioned by his own refusal to comply with New York State's requirements for possessing a handgun, and the federal statute, therefore, played no demonstrable role in precluding Decastro from purchasing a firearm in either state so as to exercise his Second Amendment right. For these reasons, § 922(a)(3), as applied, does not substantially burden Decastro's Second Amendment right to own a firearm in defense of his home and hearth. See District of Columbia v. Heller, 554 U.S. 570, 635, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008).
None of the above is the case with Kachalsky. The decision in this criminal case is not on point with the civil litigation at bar.
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Old June 14, 2012, 04:56 PM   #46
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The high grant rate is due to it being a permit for simple possession, not CCW. They're not supposed to deny anyone who is clean, but I'm sure they reject folks for something other than felonies/mental issues, as they most probably have a "good character" clause.
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Old June 15, 2012, 03:12 AM   #47
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Plus when you apply for a CCW in NYS they tell you flat out "You will not get this permit, would you like to continue or would you like a premises/sportsman permit". They may also be including the denial of a CCW but granting of a lesser permit.
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Old June 15, 2012, 07:54 AM   #48
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Quote:
Plus when you apply for a CCW in NYS they tell you flat out "You will not get this permit, would you like to continue or would you like a premises/sportsman permit". They may also be including the denial of a CCW but granting of a lesser permit.
They most certainly do not say that in the whole STATE. There are far more counties in NY that are effectively "shall issue" than not.

Unfortunately, many of the largest population centers are a real problem but it's certainly not the entire state. In most of upstate, there is no trouble getting permits.
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Old June 16, 2012, 09:47 PM   #49
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They most certainly do not say that in the whole STATE. There are far more counties in NY that are effectively "shall issue" than not.

Unfortunately, many of the largest population centers are a real problem but it's certainly not the entire state. In most of upstate, there is no trouble getting permits.
By population, there are far more under the iron heel of "may issue" then not. Even still, until changed in either the CA2 or the SCOTUS you are just a quick local election to negative changes.
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Old June 16, 2012, 10:19 PM   #50
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Quote:
Originally Posted by Brian Pfleuger View Post
They most certainly do not say that in the whole STATE. There are far more counties in NY that are effectively "shall issue" than not.

Unfortunately, many of the largest population centers are a real problem but it's certainly not the entire state. In most of upstate, there is no trouble getting permits.

I have a permit in upstate NY. I have the restriction on it that states "hunting and target." I wrote a letter to the issuing judge and included many LEO references to have the restriction removed. I was denied the removal of the restrictions. The judge stated that he only issues unrestricted permits to retired LEO,and a few other branches, corrections, etc. he stated that he can't issue me an unrestricted permit as "I could then carry in public or to a bar, etc." I have the letter still. Our permits also state right on them that they can be revoked at anytime. This is one of the better counties in the state. You also have to have each handgun put on your permit, so you have to go buy the gun, go to the county office, pay a fee, they put it on your permit, give you a judge-signed coupon and you can go get your gun. In my county this happens on the spot. Many counties make you wait (I've waited weeks) for the judge to sign it plus you must mail the amendment form and wait for it to be mailed back.


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