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Old June 6, 2012, 07:00 PM   #26
press1280
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It didn't go well from what I heard. Seems like a case deep in the weeds that'll get sent back to district court.
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Old June 6, 2012, 08:40 PM   #27
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Didn't go well for which side?
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Old June 7, 2012, 05:08 AM   #28
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For those looking to have shall-issue right away in Mass. I hope I'm wrong, but the panel will probably send this back to the district court and Mass's "suitability" standard may get struck down(which is a good thing), but the big issue-public carry-will be pushed off until later. I'm wondering if someone could fill me in why there wasn't a regular plaintiff(simple denial of LTC-A because of lack of need) that would have had only one issue-public carry-on the table.
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Old August 31, 2012, 12:50 PM   #29
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Alan Gura creates another bad precedent for concealed carry

Although not a surprise for those of us who know how to read US Supreme Court decisions, specifically Robertson and Heller; the 1st Circuit Court of Appeals joins the 9th Circuit Court of Appeals in holding that the dicta in Heller is meaningful. Note that the court observed that Hightower never applied for a Class B Open Carry License.

There is no remand back to the District Court for a "do over." Gura can only appeal to the US Supreme Court as it is my understanding that the 1st Circuit does not provide for en banc appeals.

In the over four years since the Heller decision, the US Supreme Court has never heard a concealed carry appeal.

Quote:
In Heller, the Court explained that "the right secured by the Second Amendment is not unlimited" and noted that "the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under Second Amendment or state analogues." 128 S. Ct. at 2816. We have interpreted this portion of Heller as stating that "laws prohibiting the carrying of concealed weapons" are an "example[] of 'longstanding' restrictions that [are] 'presumptively lawful' under the Second Amendment." United States v. Rene E., 583 F.3d 8, 12 (1st Cir. 2009) (quoting Heller, 128 S. Ct. at 2816-17 & n.26); see also Robertson v. Baldwin, 165 U.S. 275, 281-82 (1897) (observing that "the first 10 amendments to the [C]onstitution" protect rights that are "subject to certain well-recognized exceptions" and stating, in dicta, that the Second Amendment right "is not infringed by laws prohibiting the carrying of concealed weapons"). Licensing of the carrying of concealed weapons is presumptively lawful, and Hightower makes no serious argument to the contrary.
A link to the decision published today is here.
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Old August 31, 2012, 03:32 PM   #30
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I don't see the "bad precedent" in the actual holding of the Court of Appeals.

The plaintiff's license was revoked, perportedly because she has supplied false information. She could have appealed that revocation, but did not. She sued, and was found to have standing, but the court found that the ground for the revocation (providing false information) was a valid reason for revokation. The case wasn't about whether the information was false; it was about whether that is a Constitutionally valid ground to revoke the Class A license.

The court found she did not have standing to challenge the statute as to a Class B license, because she had never applied for one.

The facts could have been more ideal for the result Gura was seeking. But the court didn't really address the "may issue" aspect of the statute.
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Old August 31, 2012, 08:11 PM   #31
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Having just returned home from work and having just skimmed the opinion, I have to say that the Judges ruled about what I thought they would.

This case was a long shot, from when Alan Gura took it over, and I think everyone really felt that way (if we are to be honest) when it first surfaced. Nor do I think this is the case that we would want to pursue any further. Take the loss, and let one of the other cases be our circuit-split case.

What the panel actually hung their hats on, was the alleged lying on the application. You lie, you lose.

I still don't think Peterson will do more than get remanded (sorry Gray, but that's just the way I see it). Should Gray actually get a good opinion here, I don't think CO will appeal it.

Now, consider that if Moore/Shepard and/or Woollard go the way we would like (and think), then the State (either IL and/or MD) is likely to appeal (it's more in their nature than that of CO) and that sort of appeal would be more likely to get a grant of cert.
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Old August 31, 2012, 10:16 PM   #32
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Quote:
"In Heller, the Court explained that "the right secured by the Second Amendment is not unlimited" and noted that "the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under Second Amendment or state analogues." 128 S. Ct. at 2816. We have interpreted this portion of Heller as stating that "laws prohibiting the carrying of concealed weapons" are an "example[] of 'longstanding' restrictions that [are] 'presumptively lawful' under the Second Amendment." United States v. Rene E., 583 F.3d 8, 12 (1st Cir. 2009) (quoting Heller, 128 S. Ct. at 2816-17 & n.26); see also Robertson v. Baldwin, 165 U.S. 275, 281-82 (1897) (observing that "the first 10 amendments to the [C]onstitution" protect rights that are "subject to certain well-recognized exceptions" and stating, in dicta, that the Second Amendment right "is not infringed by laws prohibiting the carrying of concealed weapons")" - Hightower v Boston
If this sounds familiar, the 10th Circuit Court of Appeals said the same thing in the oral arguments for Peterson v LaCabe. It doesn't take a crystal ball to predict that the court will affirm the lower court decision and if Peterson wants to challenge Denver's Open Carry ban he will have to file a new case and "clearly say so."

In the 9th Circuit Court of Appeals, Richards and Peruta are doomed not only because of the clear dicta in Heller (and Robertson and McDonald) but because of defects in the cases unrelated to the Second Amendment (a Facial challenge in the case of Richards and no challenge in the case of Peruta). Regardless, the 9th Circuit hasn't been reluctant to apply the dicta to Heller in many cases, published and unpublished.

In the 7th Circuit Court of Appeals, Moore v. Madigan has an as-applied challenge to a statute which has a subsection which does not differentiate between concealed or open carry. Shepard v. Madigan doesn't say whether their complaint is mounting a Facial or As Applied challenge, nonetheless it also challenges Illinois statute 720 ILCS 5/24-1(a)(10) which does not differentiate as to open or concealed carry. The oral arguments went well but Judge Posner's running battle with Scalia is a wildcard. In any event, neither of them rolled the dice on a pure concealed carry challenge.

In the 2nd Circuit Court of Appeals, a lawyer I know who works for the California Senate has confirmed that the earlier posts on the oral arguments for Kachalsky v. Cacase were accurate. The quote from the Obama judge about not needing a license surprised me. That said, it is still a concealed carry case and we are likely to have the 10th Circuit decision in Peterson affirming the concealed carry dicta in Heller (and Robertson) before Kachalsky is decided. Why would the 2nd Circuit create a split on concealed carry?

FYI, the California Court of Appeals just affirmed California's longstanding prohibitions on concealed carry is a decision published on Tuesday (People v. Mitchell, Cal: Court of Appeal, 4th Appellate Dist., 1st Div. 2012). There was nothing surprising about the decision, the California Courts have been saying the same thing about concealed carry since the 19th century. The California court did extensively cite Heller:

Quote:
"However, the Heller court recognized that the right to bear arms in self-defense, like most constitutional rights, is not unlimited. (Heller, supra, 554 U.S. at pp. 595, 626.) "[T]he right [is] not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." (Id. at p. 626, italics added.) Of particular relevance here, the Heller court commented that the majority of 19th-century courts held that "prohibitions on carrying concealed weapons were lawful under the Second Amendment. . . ."" - People v. Mitchell
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Old September 1, 2012, 12:58 AM   #33
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Charles, you know that's not the whole story vis a vi concealed carry prohibitions. In most, if not all of the cases that the court referenced, the presumptive constitutionality of concealed carry prohibitions rested on an allowance for open carry. The concealed carry restrictions were only justifiable due to the fact that open carry was legal.

It is oversimplifying the matter to merely say that open carry is the only constitutionally protected method.
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Old September 1, 2012, 04:03 AM   #34
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maestro pistolero, first of all the law does not "allow" anything. Under our legal system, everything is legal which is not prohibited and that which is prohibited must meet certain levels of judicial scrutiny to pass constitutional muster depending upon the prohibition.

Whether that is factually true others can debate but that is the fiction our courts operate under.

The recent California Appellate Court decision I cited in my earlier post didn't say anything new about the justification for prohibiting concealed carry that the California Courts haven't been saying for over 100 years but it bears repeating:

Quote:
"The policy underlying the prohibition against concealed weapons is based on the protection of those persons who may come into contact with a weapon bearer. If a weapon is not concealed, one may take notice of the weapon and its owner and govern oneself accordingly, but no such opportunity for cautious behavior or self-preservation exists for one encountering the bearer of a concealed weapon. In light of this policy, the question whether a particular weapon was concealed should be considered from the point of view of one approaching the location of the weapon, and the intent of the defendant as to concealment should not be considered, since a defendant's innocent intent does not make a concealed weapon any more visible." - People v. Mitchell, Cal: Court of Appeal, 4th Appellate Dist., 1st Div. 2012
Many, perhaps most, California Courts have simply said that in the interest of "public safety" weapons must be carried openly.

Another fiction our courts operate on is that of binding precedent. Although 200 years of bad precedent does not mean those precedents are correct, if one wants to make new law then one must make an argument as to why those precedents were wrongly decided.

Unable to make the case that nearly two centuries of decisions upholding prohibitions on concealed carry were wrongly decided, Gura's central argument is the state can arbitrarily choose whichever manner of carry (concealed or openly) it wants to so long as it does not prohibit both.

The state doesn't get to arbitrarily prohibit anything, not even economic regulations which have been subject to a level of judicial scrutiny at the lowest end of rational review for the past 50 years. Economic regulations are unconstitutional if their enactment was either "arbitrary" or "irrational."

Given that we have just had two back to back bans on Open Carry here in California (handguns last year, long guns this year), the legislative record is fresh and requires no powers of divination to discern the intent of the legislature. The reasons given were three:

1.) "You don't need a gun to buy a cheeseburger."
2.) "Open Carry is a waste of police resources to conduct the (optional under California law) inspections of a firearm to see if it is unloaded."
3.) "People who openly carry firearms are in danger of being shot by police."

I should point out that California's 1967 ban on Loaded Open Carry has an extensive legislative record. I know because I have a copy of the over 700 page legislative file. In the words of the California Attorney General at the time, the law was only intended to apply to "groups of armed men going about engaging in acts inimical to public safety" (i.e., the Black Panther Party).

Since 1924, Nunn v State has been the controlling law in California. The 1967 legislature enacted legislation at a time when people were still hunting in incorporated cities, parks had shooting galleries with real firearms shooting live ammunition and grade schools had shooting ranges. Obviously, they could not have conceived what California would become 45 years later.

By the way, California courts have historically had a very low threshold on the "good cause" requirement for a concealed carry permit. People v. Mitchell cited another recent California Appellate decision upholding a conviction for concealed carry (People v. Ellison (2011) 196 Cal.App.4th 1342, 1347) in which the court presumed that all that is necessary to obtain a concealed carry permit is to apply and it shall be granted.

The 19th Century prohibitions on concealed carry in Heller (or in California case law) did not apply to persons travelling. As I said before, that is an exception big enough to drive a truck through but the NRA/CRPA/SAF/CalGuns wants all or nothing. Nothing is what they are most likely going to get in California, if not everywhere else.

Last edited by Al Norris; September 1, 2012 at 01:38 PM. Reason: Removed pejorative
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Old September 1, 2012, 06:03 AM   #35
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Charles I believe the day is going to be here in the next decade when California will have no choice but to fully recognize the right to bear loaded arms in the general public. For 100% certain no court in California is going to rule that but I think the SCOTUS isnt going to leave them any choice and its just a matter of time.

The 2A is a civil right, its not negotiable and I believe in Heller we already have much of that decided. Sure there will be limits but the days of outright bans will be no more..

I dont know why but California as a state seems to think it exists on its own legal planet, it doesnt and at least on this one issue I dont see it having a choice but to be much, much less restrictive in the future...
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Old September 1, 2012, 10:29 AM   #36
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Charles, I think you missed a point in the dicta from Heller. The meaning of the "regulation" verbiage is that the law may regulate the mode of carry, but may not ban carry outright.

Ohio is a good example. Even before Heller, the Ohio supreme court decided a landmark case based on the Ohio state constitution. Ohio had a law banning concealed carry. I don't recall the name of the case, but the state supreme court ruled (correctly) that the state constitution guaranteed a right to bear arms. Therefore, if the legislature chose to ban concealed carry, by logical consequence open carry must be legal.

This decision lead to a series of open carry days, and the legislators decided they didn't want to see so many people openly carrying guns so they enacted concealed carry legislation.

California, until recently, was operating under a bastardized variant of this concept: open carry was legal if your gun wasn't loaded. While allowing only the carry of an UNloaded weapon probably would not meet with success now that the SCOTUS has ruled that the 2nd Amendment is about self defense, that was California's law and the state would no doubt argue that they hadn't banned carry, only regulated it.

But now they've eliminated the escape clause allowing the open carry of an unloaded firearm. So now the California "may issue" permit system is ripe for challenge.
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Old September 1, 2012, 10:42 AM   #37
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Quote:
California, until recently, was operating under a bastardized variant of this concept: open carry was legal if your gun wasn't loaded. While allowing only the carry of an UNloaded weapon probably would not meet with success now that the SCOTUS has ruled that the 2nd Amendment is about self defense, that was California's law and the state would no doubt argue that they hadn't banned carry, only regulated it.

But now they've eliminated the escape clause allowing the open carry of an unloaded firearm. So now the California "may issue" permit system is ripe for challenge.
Indeed, the district court judge in 'Peruta' cited reliance upon the non-prohibition of (neutered) open carry to meet the constitutional burden.

The good thing is that she (Judge Irma Gonzales, IIRC) at least thought there WAS a constitutional burden. Not a year later, the CA legislature banned the form of carry upon which her ruling relied. It's on appeal now, Should be interesting.
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Old September 1, 2012, 02:35 PM   #38
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Au Revoir

Sorry folks but I received a warning that my attempt to explain the Hightower decision in plain and simple terms was a violation of the forum rules.

There is nothing I can say which is going to change any of your minds. You will continue to believe what you want to believe even after the the Supreme Court denies Cert in the last concealed carry case.
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Old September 1, 2012, 03:31 PM   #39
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Makes no sense. Until and unless a concealed carry case is GRANTED cert, we won't know whether it's the last. Issuing a warning for merely 'explaining a decision in simple terms' would be extremely out of character for the mods here. I suspect that you have spun the reasoning.
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Old September 1, 2012, 03:55 PM   #40
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Quote:
Originally Posted by maestro pistolero
...I suspect that you have spun the reasoning.
Yes, he has. But we won't be making that a subject of discussion here.
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Old September 3, 2012, 08:40 PM   #41
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Scary thought: is hightower the next nordyke? *Is that really the right plaintiff and claim to control what happens in the next few years? *Could it bring a stay to all circuits until resolved?
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Old September 13, 2012, 09:53 PM   #42
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Just today, Alan Gura filed a petition for hearing Hightower, en banc. The PDF is attached.

Having read this petition, the only comment I have to make is this: The petition almost reads as a certiorari to the SCOTUS.

I don't believe it would take all that much to make it so.

If I'm correct in this, the CA1 will also read it that way.

ETA: In the CA1, it takes a majority of the active judges to grant an en banc review. There are only 5 active judges (all the rest are on Senior Status). Since the Hightower panel was unanimous and 2 of the three judges on the panel are active judges, it will take the other three judges to vote for rehearing.... Don't hold your breath.
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Last edited by Al Norris; September 13, 2012 at 09:56 PM. Reason: added comment(s)
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Old September 24, 2012, 09:00 PM   #43
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Aren't you glad you didn't hold your breath?

En Banc, denied.

Hightower now has 90 days to decide if she will file for cert.
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Old September 25, 2012, 09:30 AM   #44
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Given the details of the fact pattern in this case, I rather hope she either doesn't petition for cert. or that SCOTUS has the insight not to take this case up. I would much rather see a case with "clean" facts challenging discretionary issue.
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Old September 25, 2012, 09:47 AM   #45
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I hate to discourage or criticize anyone willing to fight for our rights, but given that Gura frequently criticizes others using the "wrong plaintiff" you really have to wonder what he was thinking here.
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Old September 25, 2012, 10:39 AM   #46
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Reapply. Get denied. Start the whole train over with all the back door weasel-ways cut off. Sad to see one less case worthy of Cert, but there are still 3 more that are probably going to make it into the spring conference.
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Old September 25, 2012, 10:42 AM   #47
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Quote:
I hate to discourage or criticize anyone willing to fight for our rights . . .
Jonbirdt, I have yet to see you hesitate in the slightest to criticize Mr Gura. I suspect Mr Gura's thought patterns with regard to this case are as lucid and deliberate as always. Perhaps you would like to reveal to us the legal and factual errors of his case.
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Old September 25, 2012, 02:13 PM   #48
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Lets not make this personal, there are many comments here by those that think this was the wrong plaintiff. Gura is a great attorney who has done a lot of great work for us, as have many others. I just don't happen to share the gospel that he is the only person who can save us. I was called the wrong plaintiff by him, but the City and County both stipulated that moral character was not an issue. I applaud every plaintiff and attorney willing to take on the government whether i agree with them or not. Perhaps it was his intent to bring this case and lose it, to create a circuit split with woollard, who knows. if that is the case, then i guess he is playing a good game of chess, and the fight continues on all fronts.

SilverBullet- what are the three cases you expect will make it to the Spring conference?
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Old September 25, 2012, 09:12 PM   #49
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Let's keep this thread to a discussion of the case, not uninvolved actors.
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