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November 10, 2011, 05:07 PM | #1 | ||
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Kachalsky v. Cacase - NY Carry - Cert Filed
We haven't had a separate thread on this case. In light of the opening brief to the 2nd Circuit (posted in the 2A Current Cases thread), I thought I would share some thoughts I have already posted to CalGunsNet and MDShooters (in slightly different forms).
What I am about to say, is going to infuriate some of you. Be that as it may, what I'm about to say is the current state of our system of Constitutional Law. One of the State cases that is almost always used, as part of the bulwark of the Plaintiffs cases, is In re Brickey. It has not been much explained or expanded upon, as the courts were expected to have read that decision, when referenced (it is very, very short). This is an Idaho Supreme Court case from back in 1902. At that time, the relevant portion of the Idaho Constitution read: The people have the right to bear arms for their security and defense, but the legislature shall regulate the exercise of this right by law. When confronted with a case wherein all deadly weapons were banned in cities, the Court took notice of both the Federal Constitution and Idaho's Constitution. They reasoned that while a legislature may regulate the manner of carry (bearing arms), no legislature could pass laws which utterly banned carry. Our Court properly reasoned: Quote:
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All of this is in complete agreement with Prof. Michael O'Shea's latest paper, Modeling the Second Amendment Right to Carry Arms (I): Judicial Tradition and the Scope of ‘Bearing Arms’ for Self-Defense. Everyone who has been critical of what and why Alan Gura does what he does, needs to thoroughly understand not only what those cases above were saying, but the hurdles Alan has had to jump through, in order to overcome this post-bellum thinking, that still pervades the judiciary and the legislatures, despite what the Heller Court has said. We have a right to carry functional arms for self defense (in or out of the home). We do not have a right to carry whatever we decide, whenever we decide or even how (open or concealed) we decide. Those questions (if they are indeed questions), were decided very early in our Republic. Legislatures can, do, and will regulate the manner and form of carry. They can do this in complete harmony with constitutional protections of the right to carry. Such regulation may ban certain forms of carry. But under our Federal Constitution, they cannot defeat all forms of carry. State Constitutions, indeed, State legislatures may provide for greater flexibility (and several do), but not less. Should the States require a license or permit, it is within its police powers to so require. What is not within those powers is to make the bar so high, that it precludes the common citizen from obtaining that license or permit. Now the part that will really infuriate some of you. So-called Constitutional Carry, isn't. Never was and is more than likely never to be. The fact that 4 States have allowed this is not to say that it will meet a constitutional standard for those that don't allow it. Even if all 50 States allowed it, the fact remains that each States legislatures can regulate carry to some (as yet unknown) extent. State v. Rosenthal? Vermont is an outlier here. It is very much the exception to the rule. An aberration, if you will, as no other State Supreme Court has ever ruled so broadly. This is what Alan Gura is doing. He is expounding upon what the Court in Heller actually said. He is much more serious in this brief than in his previous writings. If you have read this brief, you will not find the "zingers" that have been his trademark writing (well, to be honest, there were two, but thinly disguised). His Kachalsky brief is the best he has written yet, to explain what the States can and can't do. The case that most resembles Kachalski would be Woolard. That case is currently under submission for cross motions of summary judgment. Judge Legg was very well informed (I'm told by those that were there) at the motions hearing. Most expect a somewhat, if not outright, favorable ruling. But I would think that Judge Legg would do well to read Alan Gura's brief to the 2nd Circuit, before he renders his decision in Woolard, as this is going to be how Alan Gura will attack anything unfavorable from Judge Legg. |
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November 10, 2011, 05:31 PM | #2 |
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If there's a constitutional guarantee of a right to carry in some form, then I wouldn't worry too much about the state's right to regulate it. Right now, states that allow open carry are willing to fight people who practice it because they think they can eventually win. Once everyone knows that open carry is here to stay, they can be pressured into passing concealed carry. They will get sick of complaints from police and members of the public about armed people everywhere, and they will therefore use the typical politician's solution - compel everyone to conceal their weapons to make the complains go away
But they'll never do this as long as they think they still stand a chance of eliminating any form of carry. |
November 10, 2011, 05:56 PM | #3 |
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Mr. Norris, I understand your point, but I disagree with your conclusion.
It is interesting that, nearly 100 years after Idaho's case, the Ohio state supreme court made a very similar ruling. Like Idaho, Ohio ruled that the legislature may regulate the mode of carry, but because the state's constitution guarantees a right to keep AND BEAR arms, the legislature could not ban carry entirely. The ruling thus established that, since concealed carry was illegal in Ohio, open carry had to be legal. But -- while I can accept the right of legislatures to "regulate" the bearing of arms, I am not prepared to accept your premise that charging money to allow a citizen to exercise a right is in any way constitutional. If the state wants to keep a record of who's carrying, maybe I can accept that -- if they do it at the state's expense. Charging ME a fee for a license to exercise a right is not regulation -- it's taxation. But it depends on the state. In a state such as Ohio, and I guess Idaho, those who don't wish to pay the fee can carry openly. In such states I suppose the fee for a concealed carry license passes constitutional muster. However, I live in a state whose constitution (allegedly) guarantees my right to keep and bear arms, yet I am allowed to carry a firearm only if I possess a license from the state. No open carry without license. My state allows NO carry without a license -- which license, naturally, requires paying a fee, undergoing a background check, and requires taking a commercial firearms safety course as a prerequisite. I do not regard this as "regulation," since without the license I have no (legal) mode of carry available to me. |
November 10, 2011, 11:26 PM | #4 |
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And how do you propose to fight onerous licensing/permitting when the right to carry has yet to be recognized?
I'm not talking about the way NYC does it. To be sure, should that case be won, then regulations like those in D.C. and Chicago will be next. But under normal (as in 1A) regulation, such licensing/permitting could not be set so high as to preclude Joe-6-pack. Gura has intimated this in several of his briefs. But it is a passing remark, as the intent of the briefs are to secure carry as a central component to the core right. Given the presumption that most citizens are law abiding, and the reality that the need to defend oneself may suddenly arise in a host of locations outside the home, I fear that the District’s policy choice may well be just the first of an unknown number of dominoes to be knocked off the table.Heller, 554 U.S. at 679-80 (Stevens, J., dissenting). |
November 11, 2011, 12:26 AM | #5 |
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Al, you're right. We may very well get one or more decisions saying loaded open carry is absolutely legal where concealed carry is banned.
And that's cool - we'll take it. Because we know exactly what happens next . That IS what the Ohio Supremes said in, what, 2003, right? And so we did open carry laps around the various capital buildings until we got a CCW system a year later. Kewl. We can do that again - rinse and repeat as needed. The real questions arise later in states like Texas, Florida and Oklahoma where open carry is banned but there's a shall-issue CCW system (for money - at least $200 between the background check, fingerprinting, training, etc.). Can they require that much money before the excercise of a constitutional right? Or do they get forced to be more like New Mexico where free-of-cost open carry is an option as is paid-for CCW?
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November 11, 2011, 09:29 AM | #6 | |
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That does appear to be the next great hurdle, Jim.
In States where open carry is not regulated but CC is, those fees will probably be ruled as constitutional, regardless of the cost. It is the states that ban the open carrying of functional firearms (thanks go to the CA legislature for making this easy), and CC is costly (and that includes not just the actual fee for the permit, but all costs associated with securing the permit) that will be the next big battleground. There are tons of case law on licenses and permits: Quote:
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November 11, 2011, 01:36 PM | #7 |
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Of the above citations, I find myself liking Murdock v. Pennsylvania
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November 11, 2011, 02:28 PM | #8 |
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The cases before Murdock goes to show what licensing is. Murdock goes to show that special taxation (licenses or permits) is extremely limited as regards civil rights.
There are other cases that have been decided that show the State may only charge fees necessary for the completion of the regulatory paperwork. See Kwong, et al v. Bloomberg for other supporting cases (Docket - Thread). |
November 11, 2011, 03:36 PM | #9 |
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Imagine if anyone could own a monochrome printer, but if you wanted to own a color printer you had to have a license.
Or, if you wanted to own an ink-jet printer, there would be no restriction, but you had to have a permit for a laser printer. I'm just tossing that out here. How about paper versus plastic?
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November 11, 2011, 09:46 PM | #10 |
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Unlike printers, there is something else that is often not talked about, except in legal circles as regards guns.
That is the public safety component. It is there, like it or not. The courts will take it into consideration. As such, any claim to "public safety" must be a demonstrable claim... At least, that is what the 7th Circuit has said in Ezell. It is also addressed in many of Gura's briefs, in many of his cases. |
November 11, 2011, 11:41 PM | #11 | |
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November 12, 2011, 10:59 AM | #12 |
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I remain of the opinion that the entire concept of "reasonable" regulation, as applied to the 2nd Amendment, is a modern construct that is totally at odds with the language of the Constitution itself. A regulation -- ANY regulation -- is by definition an infringement. And the clear and unambiguous language of the 2nd Amendment says that the RKBA "shall not be infringed."
It does NOT say, "shall not be UNREASONABLY infringed." The 2nd Amendment is an absolute statement, an absolute bar against infringing the RKBA in any way. It's just plain silly (IMHO) to argue that the Founders certainly intended to allow "reasonable regulation." Balderdash! If they had intended that, they would have said that. After all, in penning the amendment dealing with search warrants, they used the 'R' word ("The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, ..."), which tells us that they were familiar with the concept of reasonableness (if I may be permitted to create a word) and were fully capable of using it where they intended it to apply. That they did NOT use the 'R' word in the 2nd Amendment, but DID use it in the 4th Amendment, is IMHO extremely significant. Sadly, nobody has seen fit to appoint me to the SCOTUS, so my views on this won't even buy a cup of coffee at Dunkin' Donuts. |
November 12, 2011, 12:57 PM | #13 |
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Heller right quick-like ruled out the use of "reasonable scrutiny" in reviewing gun regulations. Then SCOTUS left the rest of the equation open. Until SCOTUS decides what degree of scrutiny is to be applied, what gets done in the lower courts will have little real meaning for the long run.
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November 12, 2011, 01:09 PM | #14 |
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Interesting to say the least.
In the case of exercising the Second Amendment, what is the difference between a poll tax and a license? I learn something new everyday when I read this board. Thanks guys.
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November 12, 2011, 03:06 PM | #15 | ||||
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November 12, 2011, 04:34 PM | #16 |
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Good grief, fiddletown! Leave it to you to dredge up a case that officially ruled a knife to be MORE dangerous than a gun. Further proof (as if we needed any) that judges are no smarter than the rest of us, and frequently not even in close competition with a pet rock.
Reminds me of a few years ago when Sportsmans Guide Company was selling 1898 Mausers (no FFL needed due to age). Unlike many places that include the associated "kit" with the firearm, SGC was selling the bayonets as a separate item. I wasn't in the market for an old Mauser, but I had noticed that my brother-in-law had a coffee table display of several historic bayonets that I found interesting/attractive, so I thought I'd buy a Mauser bayonet to start a similar display. However, SGC decreed that they "couldn't" sell a knife to residents of my state. My on-line order was accepted, then canceled by e-mail the following day. So I called customer service. The woman explained why my order had been canceled, but she couldn't really explain the reasoning (since it is NOT illegal to buy knives on-line in my state). Paraphrased, part of the discussion went about like this: ME: Look on page xx of the current catalog. What's on the top of the page? SHE: A Mauser rifle. ME: And can I buy that, in my state? SHE: Yes, certainly. ME: So, let me get this straight: Your company is willing to sell me a completely functional military battle rifle, with which I could potentially kill someone from as far away as maybe a quarter of a mile -- but you won't sell me a bayonet, with which I can't hurt anyone unless I'm within a couple of feet? SHE: [LONG pause]I guess it doesn't make a lot of sense, does it? Last edited by Aguila Blanca; November 12, 2011 at 09:28 PM. |
November 12, 2011, 05:11 PM | #17 | |
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November 12, 2011, 07:15 PM | #18 | |
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Im not saying that in my life the courts will ever honor the 2A as written and intended but the words are pretty clear.
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November 14, 2011, 08:32 AM | #19 |
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Fiddletown,
With all due respect, Cockrum v State was more about keeping weapons out of the hands of certain classes of undesirables such as slaves and thugs for the benefit of well-to-do white folks than it was about public safety. By contrast, of the public safety risks identified in Heller, emphasis is on keeping any and all firearms out of the hands of convicted felons, the mentally ill and sensitive places. No exception is made in Heller for the possession of weapons that are less dangerous than others, as in Cockrum. The focus is on the safety of the general public, not the danger to individuals from onerous weapons in personal altercations. The latter is the province of statutes dealing with prohibited weaponry. Insofar as those are found to be in conflict with the Second Amendment's no infringement provision, neither is absolute, and the courts are bound to reach a conclusion. |
November 14, 2011, 11:47 AM | #20 | |
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You had asserted (post 11) that pubic safety was only a recent concern in connection with the regulation of weapons. Apparently that is incorrect. |
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November 14, 2011, 01:24 PM | #21 | |
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November 14, 2011, 02:40 PM | #22 | |
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[1] And exactly what in the decision in Cockrum indicates that the case has anything to do with, "...depriving the aforementioned classes of their constitutional rights to protect other classes..."? [2] As far as precedent, of course it would only apply in Texas, and the case is getting pretty long in the tooth. And as far as being bad law, the question for us isn't whether or not it's bad law. It's whether or not public safety is an exclusively modern concern in connection with the RKBA. |
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November 14, 2011, 09:52 PM | #23 | |
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Fiddletown,
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<<<by 1872, the Texas Supreme Court denied that there was any right to carry any weapon for self-defense under either the state or federal constitutions -- and made no attempt to explain or justify why the Cockrum decision was no longer valid. What caused the dramatic change? The following excerpt from that same decision -- so offensive that no one would dare make such an argument today -- sheds some light on the racism that apparently caused the sudden perspective change>>> see http://www.firearmsandliberty.com/cramer.racism.html for the rest of the story. Public safety is not to be confused with protecting some segments of society from others. I submit the latter was the goal of anti-weapons oriented legislation during the early years of this country. Gun regulation in the interest of true public safety seems to have gained traction as America changed from a rural society to an urbanized one after WWII and the citizens' familiarity with firearms began to diminish. Certainly as older generations who grew up with guns have aged and left us, some, indeed, a great many of the newcomers, have come to a different realization about guns and their utility, which has given rise to modern-day public safety issues. |
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November 15, 2011, 02:52 AM | #24 | |||
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November 15, 2011, 10:55 AM | #25 | |
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Despite the strong wording of, "shall not be infringed," the public safety component exists.
As the Ezell Court instructs, it is not enough merely to raise the concern. It must be an identifiable and quantifiable concern. In the Kachalsky decision, the Judge relied upon certain legislative floor debates which purported to raise the public safety issue. Quote:
What is conspicuously absent in those quotes and within the the decision itself, is any quantification of that aspect over that of mere assertion. We have seen this in several district court decisions. None as blatant as was this decision. So it is something that must be addressed, at the circuit level. While public safety may not be the most important aspect, it is one that cannot be left unchallenged. |
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