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Old March 18, 2013, 07:28 PM   #126
Spats McGee
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The real problem with rational basis is this: Under rational basis, a law will be held constitutional if there is any rational basis for which the gov't could have passed said law. It doesn't even matter if the reason found by the court was the reason stated by the legislature. ANY rational reason will do.

However, given that the RKBA has been held to be a fundamental, individual right, something higher than rational basis is in order.
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Old March 19, 2013, 11:51 AM   #127
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Quote:
Originally Posted by JimDandy
Actually I don't know that it's generally correlated with a decrease in crime. I DO know that its not correlated with an increase in crime, so there's no reason to ban it.
from Carlisle E. Moody, John R. Lott Jr., Thomas B. Marvell & Paul R. Zimmerman, Trust But Verify: Lessons for the Empirical Evaluation of Law and Policy 3 (Coll. of William & Mary, Working Paper, 2012):

"There have been a total of 29 peer reviewed studies by economists
and criminologists, 18 supporting the hypothesis that
shall-issue laws reduce crime, 10 not finding any significant
effect on crime, including the NRC report, and [Aneja, Donohue,
and Zhang]’s paper, using a different model and different
data, finding that right-to-carry laws temporarily increase
one type of violent crime, aggravated assaults."
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Old March 19, 2013, 12:47 PM   #128
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I did my own research. I took table 20 of the FBI's homicide by weapon type page, added census numbers to get per-capita rates, and the three most common gun control laws- AWB, Permit to Purchase, and May Issue. There wa a very slight edge to the non-controlling states, but not enough I'd give much weight to it. There was also a slight lean to putting the gun control positive states in the middle-lower half of the states + DC. but the majority were in the middle. Doing my own research, and coming to my own conclusions, I believe the gun control laws currently out there don't really make a difference either way. They don't do anything, and should be kicked to the curb because they infringe a right without a clear benefit to the state.
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Old March 26, 2013, 02:51 PM   #129
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Jim Dandy: would you be so kind as to post your data as a report that we may see? Any analysis on this topic would be welcome. Good name by the way, I remember the song from the early 1970's...
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Old March 26, 2013, 07:40 PM   #130
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It's posted in the Reliable Cites sticky up at the top, but let me get a fresh link to make sure you get the newest version...

https://docs.google.com/file/d/0B0XD...it?usp=sharing
Attached Files
File Type: pdf 2010 ver 2 Sorted by Firearms homicide rate..pdf (165.7 KB, 8 views)
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Old March 27, 2013, 01:37 PM   #131
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Gura filed a response to NY today in Kachalsky. You can read it here. The case has been distributed and will be considered at the April 12th conference.

Note that in his response, Gura mentions that he will be also filing a petition for cert. in Woollard.
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Old March 27, 2013, 02:03 PM   #132
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I think this:

Quote:
Petitioners should be excused for not appreciating such moderation in the restriction of their rights.
was one of my favorite parts.
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Old March 27, 2013, 09:34 PM   #133
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Gura is brilliant.
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Old March 27, 2013, 11:07 PM   #134
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Mr. Gura seems a might "testier" than he was in the past; but his scholarship remains exquisite.
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Old March 27, 2013, 11:36 PM   #135
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"Testier?" I think he's been waiting for this!

Right out of the stall, Alan Gura challenges the Court with their own judicial integrity.

Quote:
PRELIMINARY STATEMENT

Respondents mostly ignore conflicts between the lower court’s opinion and this Court’s precedent, instead reading District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. City of Chicago, 130 S. Ct. 3020 (2010) as narrowly limited to their facts. Moreover, Respondents join the lower court’s endorsement of alternative historical narratives that this Court rejected. These are arguments for granting, not denying, review.

Respondents also err in disputing the plain existence of conflicts among the lower courts, and seriously misconstrue the Petitioners’ claims.

But most critically, Respondents err in claiming that this Court can wait to address the problems manifested below. Developments since the Petition’s filing continue to prove that this decision, if left unchecked, will accelerate the lower courts’ resistance to Heller and McDonald.

This Court presumably decided Heller and McDonald as it did with the expectation that lower courts would implement the Second Amendment as a normal, legitimate part of the Bill of Rights. Unfortunately, the opinion below confirms the emergence of a different reality in the absence of this Court’s intervention.
There are many good quotes in this reply. among them are:

Quote:
In modern popular usage, the word “concealed” has become appended to the word “carry,” such that “concealed carry” is synonymous and used interchangeably with the concept of “carry.” Respondents thus present the common – and erroneous – logic:
1. There is no right to carry concealed handguns. Opp. at 10 & n.3;

2. Petitioners have not specifically argued that they should carry handguns openly, id. at 11, thus

3. Petitioners lose. Q.E.D.
Then we have this revelation (my emphasis):
Quote:
Were this petition granted, this case would be heard and decided in the October, 2013 Term, as would a forthcoming petition arising from Woollard v. Gallagher, No. 12-1437, 2013 U.S. App. LEXIS 5617 (4th Cir. Mar. 21, 2013).
So it appears that there will be no request for rehearing en banc. Gura, it seems, is writing for the petition for a grant of cert, as we debate. The real "zinger" in this brief comes with the closing paragraph in the Conclusion. It is a direct challenge to the Court to slap down the lower courts for disregarding this Court's own rulings:

Quote:
The only thing worse than explicitly refusing to enforce an enumerated constitutional right would be to declare a right “fundamental” while standing aside as lower courts render it worthless. Few outcomes could promote as much cynicism about our legal system. If this Court is unprepared to overrule Heller, it should reverse decisions such as that entered by the lower court here.
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Old March 28, 2013, 01:50 AM   #136
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One of my favorite passages

The sarcasm is not subtle:
Quote:
Woollard upheld Maryland’s “good and sub- stantial reason” license prerequisite because it “constitutes ‘a more moderate approach’ ... than a wholesale ban on the public carrying of handguns,” id. at *42 (citing Kachalsky v. County of Westchester, 701 F.3d 81, 98-99 (2d Cir. 2012)) – as though a wholesale ban were an available choice under the Second Amendment, and the current system were materially different from a wholesale ban, designed as it was to disarm virtually the entire population. Petitioners should be excused for not appreciating such moderation in the restriction of their rights.
(emphasis mine)
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Old March 28, 2013, 05:31 AM   #137
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Gura is basically challenging the integrity of the court if they DON'T take this case.
He points out the lower courts' defiance on the issue. They have indeed limited Heller to the facts of that case only, and say that unless there's an exactly same law passed, then the lower courts can't rule on it because SCOTUS hasn't. By that logic, SCOTUS can't review any 2A case because all the lower courts agree that SCOTUS hasn't ruled on it-circular logic. Thankfully Moore didn't follow that. Hopefully they take the case. If not, Gura aptly points out lower courts will just continue to sit on their hands.
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Old March 28, 2013, 10:04 AM   #138
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concern

In todays climate my concern is the following:

States rights......blah blah blah.

Elections have consequences..... blah blah blah.

If you don't like it move to a state that recognizes you're beliefs. (And rights)

I don't believe for one minute that the supremes will let the inner city gang bangers be legal by allowing open carry.
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Old March 28, 2013, 10:23 AM   #139
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Quote:
I don't believe for one minute that the supremes will let the inner city gang bangers be legal by allowing open carry.
Well, gang-bangers don't care about the law in the first place, so a ruling from the Supreme Court will be largely irrelevant to them.

That said, when it comes to carrying a firearm in public, the court will listen to arguments about potential public-safety consequences, and it will have an effect on whatever opinion they reach.
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Old March 28, 2013, 11:22 AM   #140
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Tom

"Well, gang-bangers don't care about the law in the first place, so a ruling from the Supreme Court will be largely irrelevant to them."

Point noted and also my belief. That was not the statement is was making.

The gun control nonsense before us now originates from [people] who are primarily large city populus. A ruling on any type of carry being constitutional outside the home will hinder much needed prosecution of current law. I want a positive ruling as much as anyone (from the good part of NY) but don't see scotus ruling constitutional carry in any form as a mandate in federal jurisdiction.

Last edited by Vanya; March 28, 2013 at 12:05 PM. Reason: we don't do "liberal," etc.
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Old March 28, 2013, 04:52 PM   #141
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One can't be a gang-banger for long without accruing a felony. It's actually a right of passage in that world. Anyone who is a gang banger for any period of time will soon have a firearm prohibition, which, of course, they will ignore. The only difference is they can be locked up for a long time as a FIP.
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Old March 28, 2013, 08:49 PM   #142
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Gura makes the point that current usage seems to have erroneously conflated "carry" with "concealed," such that anyone who mentions legal carry or permitted/licensed carry almost automatically and immediately jumps to "concealed carry." This is not the case. And there are faint hints at the distinction in the Heller decision, when Scalia discusses presumptively lawful restrictions.

Two states where this can be seen in operation today (among others, I'm sure) are Connecticut and Pennsylvania. Pennsylvania is an "open carry" state; except in the city of Philadelphia, open carry is legal without a license but a license is required for concealed carry. Within Philadelphia a license is required for open or concealed carry. On the PAFAO forum, there are regular reports of people who open carry being stopped and hassled by the police, both in and out of Philadelphia, because the police either don't know the law (usually the case outside of Philadelphia) or don't like the law (usually the case in Philadelphia). Often in PA police tell license holders that if they have a permit (in PA it is referred to in various parts of the law as both a license and a permit, furthering confusion) they MUST carry concealed. Which, of course, is not only wrong but also patently silly. ("You mean I can carry this hawgleg out in the open if'n I don't have a license, but if I git yer license I gotta conceal it? Is that whut yer a-tellin' me, Marshal Dillon?")

Connecticut, of the other hand, allows NO carry without a permit. But CT state law and the permit itself are silent regarding mode of carry. Thus, once someone has a CT carry permit, open carry is legal as well as concealed carry. Again, the police don't seem to like this and people have been arrested for open carry. The usual charge, since the police can't cite the carry law, is "disturbing the peace." These cases routinely get dismissed in court and the permit holder's permit is ordered restored, which makes the police even more unhappy because they claim the courts "aren't backing us up."

The situation in Ohio is perhaps the most instructive recent case that illustrates how this works. The Ohio state constitution includes a RKBA provision. Some years ago the Ohio supreme court ruled in a case that, because the state's constitution guarantees a right to bear arms, the State may not entirely prohibit doing so. Therefore, the court ruled, if the State wished to prohibit concealed carry (which Ohio had done, legislatively) the State could NOT prohibit open carry. Thus, Ohio became an "open carry" state. And the police were not happy. Activist citizens of Ohio began organizing open carry events, which made the police even more unhappy. Ultimately, several years ago the legislature either saw the light or caved in (depending on your point of view) and enacted concealed carry license legislation.

Al Norris, I believe, has commented on one of the western states (Utah, perhaps?) having done the same thing many years before.

So the legal premise is that the State may "regulate" the mode of bearing arms, but in the face of a constitutional guarantee of a RKBA the State may not prohibit the carrying of arms.

I don't remember which case, but I think in one of his briefs Gura made the point that a state could choose to allow concealed carry but prohibit open carry, or could choose to allow open carry while prohibiting concealed carry. Take your pick. (Most states seem to prefer concealed carry, since open carry -- they claim -- gets people upset.)
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Old March 28, 2013, 09:10 PM   #143
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Aguila, the case was In Re Brickey, 8 Idaho 597 (1902).

Here, the Idaho Supreme Court interpreted our own RKBA and the 2A as an individual right to carry for defense of self, family and property. The Court went on to say that the State could regulate (to death) the practice of concealed carry but could not forbid the open carrying of lawful arms.

This case has been mentioned in passing by Gura in many of his briefs, but he has never gone into detail. Perhaps at some point, he will. I say this, because it stands as good law in the fight for carry in some form, openly or concealed.
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Old March 28, 2013, 09:15 PM   #144
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Excellent summation. A (perhaps obvious) point would be that states like mine (NV) could, and have done both. (License for concealed and open carry for the unclean masses, as long as they are not prohibited)

Quote:
I don't remember which case, but I think in one of his briefs Gura made the point that a state could choose to allow concealed carry but prohibit open carry, or could choose to allow open carry while prohibiting concealed carry.Take your pick. (Most states seem to prefer concealed carry, since open carry -- they claim -- gets people upset.)
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Old March 29, 2013, 07:57 AM   #145
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In re Brickey is a very short opinion. Nunn v. State GA 1848 http://www.constitution.org/2ll/bard...nn_v_state.txt
is probably going to be one of the most cited cases by the court. Also remember in Heller the line about "Few laws in our nation's history come close to DC's, and some of those few have been struck down." They then explain GA's complete public carry ban and how the legislature can't ban both. The line about the few laws being struck down can only be construed as SCOTUS agreeing in Nunn's premise.
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Old March 29, 2013, 08:03 AM   #146
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I don't think it was mentioned but this will be on the SCOTUS conference for April 12th(I'm guessing on the 15th we'll see if it gets cert, denied cert, or gets relisted).
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Old March 29, 2013, 08:19 AM   #147
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I agree that Brickey is short. It is also to the point - some form of carry must be available to the people. The State may regulate only so far and no further.
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Old March 29, 2013, 12:33 PM   #148
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Quote:
Originally Posted by Tom Servo
That said, when it comes to carrying a firearm in public, the court will listen to arguments about potential public-safety consequences, and it will have an effect on whatever opinion they reach.
I think the Heller 5 will stick to heightened scrutiny, and potential public-safety BS will be left for the other 4 hand-wringers.

In any event, the best science currently suggests carry is of net benefit to society, so even if the other 4 were going to go with rational basis (which they're not, they're intellectually dishonest about the RKBA issue), they should vote in favor of carry.
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Old March 31, 2013, 11:45 PM   #149
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There has never been a trial in any of these cases that established the "best science." Rather, on motions for summary judgment (which are to be granted only if there is no disputed issue of material fact), the trial courts have accepted the self-serving declarations of city/police officials as sufficient to carry the day on the burden of proof, presumably disregarding as irrelevant counter declarations by plaintiffs that seek to establish that the opinions of these officials are not supported by any evidence. The usual proclamation goes that more guns=more crime, and thus the (public entity) has a great public interest in limiting the number of guns in public in order to protect the public. You know, the old "there'll be blood in the streets if we allow concealed carry." Only Moore has concluded that these broad and unsupported allegations are not sufficient to satisfy intermediate scrutiny, and that there must be some factual showing that the restriction will in fact promote public safety.
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Old April 1, 2013, 12:51 AM   #150
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Quote:
I think the Heller 5 will stick to heightened scrutiny, and potential public-safety BS will be left for the other 4 hand-wringers.
It's not that cut and dry. While one of the "Heller 5," I worry that Justice Kennedy could be swayed by public safety arguments.
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