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March 7, 2010, 10:07 AM | #26 |
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Amen Jim
It cost me $175 when all was done for the 'RIGHT' to put my little revolver in my pocket and go get a jug of milk.
I'm just glad I don't have to pay a fee every time I respond to the local newspaper on the editorial page, or pay a poll tax when I vote, or present papers everytime I cross a state border.
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March 7, 2010, 10:21 AM | #27 |
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Good point Jim.
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March 7, 2010, 11:25 AM | #28 | ||
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Here is the reason that P or I incorporation is important.
Quote:
The Courts have long recognized the right to travel as fundamental to the ordered Liberty interests of a free people, "In Anglo-Saxon law that right was emerging at least as early as the Magna Carta,” Kent v. Dulles, 357 U.S. 116 (1958). You guys always argue that no license or registration is needed for a vehicle, unless you drive it on a public road. Not so! “The use of the highway for the purpose of travel and transportation is not a mere privilege, but a common fundamental right of which the public and individuals cannot rightfully be deprived.” Chicago Coach Co. v. City of Chicago, 337 Ill. 221, 169 N.E. 22. See also Stephenson v. Binford, 287 U.S. 251, 264, et al. Whyte v. City of Sacramento, 165 Cal. App.534, 547. Schactman v. Dulles, 96 App DC 287, 225 F2d 938, at 941. Thompson v. Smith, 154 SE 579. There are literally scores of citable precedent that say travel, in your own private vehicle, for private purposes (not commerce -Wingfield v. Fielder, 2d Ca. 3d 213 (1972), see also 18 USC §31(a)(6) and 18 U.S.C. §31(a)(10)), is a fundamental privilege, a right of Liberty (Adams v. City of Pocatello, 416 P.2d 46, 48; 91 Idaho 99 (1966)) protected by the U.S. Constitution, Art. IV and Amendment XIV. So when you make such a "common sense" and "reasonable" statement as above, you are, in effect, also saying that, "Yes, you can carry a gun, but the ammunition may be licensed and regulated." You will need a personal license to use any ammunition and you will need to register any purchase of ammunition (or components). This is one of those reasons for P or I incorporation. There is no fundamental difference between the right to carry and the right to travel. Of what practical purpose is your right to carry, for self-defense, if your right to travel is restricted? By the exact same logic, of what use is your right to travel, if your right to carry, for self-defense, is restricted? Quote:
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March 7, 2010, 01:57 PM | #29 | |
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Piling on,
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As to P&I, anyone read the Geroge Will commentary today? Here is it: http://www.washingtonpost.com/wp-dyn...030502873.html
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March 7, 2010, 02:03 PM | #30 | |
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Quote:
I guess that sounds like a square circle but is this an all in or out proposition? Can descretion be allowed within a range of obejctive measures? Or would the court take the rigid checklist approach and insist that if one meets A,B,C criteria give them the permit? Would that lead states to then create A-ZZZ criteria instead of A,B,C?
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March 7, 2010, 02:35 PM | #31 | ||
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Quote:
Quote:
Note that the Heller decision left no room to absolutely ban handguns in the home, even if a ban could otherwise be structured to meet the tests of strict scrutiny: "But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home." Last edited by gc70; March 7, 2010 at 02:42 PM. |
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March 7, 2010, 02:43 PM | #32 | |
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Quote:
Also, do you believe that the court will look at public carry in the same way it looked at keeping a handgun in the home? Does the home receive special treatment that public activity might not?
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March 7, 2010, 03:15 PM | #33 | ||
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Quote:
Quote:
(more later - off to the range) |
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March 7, 2010, 03:27 PM | #34 |
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But hasn't the home received special treatment especially in common law? Isn't the potential impact on the public quite a bit more with public CCW than simply the right to possess one in your home? I think the courts might think so?
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March 7, 2010, 04:40 PM | #35 |
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When comparing the right to carry to freedom of speech or freedom of travel, there are certain details that I think many forget, these other rights are allowed to be restricted, taxed, or outright denied only in certain venues and only when another venue is available.
For example, certain licenses and fees are typically required to operate a radio or television station, print a newspaper, or have a public demonstration. However, these requirements do not exist when we talk about writing a letter to the editor or posting comments on a website. Likewise, licensing and taxes are permitted when obtaining the right to operate an automibile on public roads or when registering said automobile for such usage. However, no license nor tax is needed for many other methods of transportation. I need not obtain a license to hail a taxi, buy a train ticket, or ride a bicycle nor am I directly taxed for these activities (I may pay sales taxes, but these are imposed on the cab company, rail company, or bike retailer and passed on to me by those parties). Another historical note that has bearing on the discussion is whether ccw licensing will be viewed as a tax law. Remember, the NFA was allowed to stand under Miller because SCOTUS labeled it as a tax law rather than a firearms law, no firearms were actually banned by the NFA they were just taxed very heavily. Also, the NFA only restricted and taxed very specific types of arms and left others alone. SCOTUS noted in Miller that 2A protection extended only to arms that were "particularly suitable and in common use by the militia" and that NFA weapons did not fall into this category. However, this would seem to imply that arms fitting that description would be constitutionally immune to such regulation and tax. Such restriction and tax of all types of arms would be extremely unlikely to pass constitutional muster. The right to carry is somewhat different in that there are only two venues in which it may be exercised: concealed or openly. If the same standards are applied to it that are applied to freedom of speech and freedom of travel, then I can only see taxes and/or excessive regulation standing only if it is applied to one venue and not the other. Because of this, I can only really see "may issue", at least in the New York/Califoria style, standing if open carry is allowed. If we apply the Miller definition of arms to bear, we get the following: the protection of the Second Amendment extends only to methods of arms-bearing in common use and suitable for the militia. That definition would seem to best fit open carry thusly leaving concealed carry vunerable to regulation and tax. However, the Miller definition may not be applicable since Heller seems to have disconnected the militia from the right beyond an explanation for its enumeration (on a side note, I find the degree to which Miller and Heller seem to be able to contradict without invalidating each other to be quite interesting). In any case, no changes in carry laws will come from McDonald unless SCOTUS specifically addresses that issue or goes the P&I route, which I have doubt that they will. The current court, or at least the conservative majority, seems to be interested in dealing as specifically as possible with the issue at hand (this is why McDonald is even necessary in a post-Heller world), and carry is not part of the issue at hand. I suspect that this attitude is in response to conservative complaints in recent years about "Judicial Activism" and "Legislating from the Bench". In that vein of thought, I think the percieve hostility to P&I incorporation stems from this: Due Process allows the majority to incorporate 2A without ruling on anything else. Simply put, the court seems to want to rule only on one issue at a time. |
March 7, 2010, 06:06 PM | #36 |
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If churches can't get involved in politics, how did the Mormon Church finance Prop8 in Cali?
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March 7, 2010, 07:52 PM | #37 |
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Jim, it is my understanding that the LDS church did not finance prop 8. Individual Mormons did. That is different than the church itself doing the financing or if the religious leaders imposed some sort of sanction to those members that did not finance. Of course, if either of those can be proven....
As for taxing a church, the congress (or State legislators) could certainly do so, by changing the laws. How far do you think they (legislators) would get, if they did? <- Yeah. Rhetorical question, as we all know the answer. |
March 7, 2010, 08:53 PM | #38 |
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Donations and support for Prop8 were called for by the LDS church through their own channels. Do just seconds worth of googling, it's been thoroughly documented.
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March 7, 2010, 09:01 PM | #39 | |||
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More on:
Quote:
McDonald presents no question about carry, so the Court would normally not address the issue. However, Stevens' theory of "core" versus non-core aspects of a right may open an unanticipated topic for the Court to consider. Stevens posed the following question during oral arguments: Quote:
The decision in Heller covered both the "keep" and "bear" aspects of the Second Amendment: Quote:
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March 7, 2010, 10:37 PM | #40 |
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Now let's factor in something else. The Palmer case just got argued at the DC district court level, suing for carry rights. The betting line is that we'll win despite a somewhat anti-gun judge...basically there's no way to rule otherwise. And that decision is due inside of a month or two.
DC might appeal it, or they might not. Either way, it would be possible for the decision to get positive mention in the McDonald final decision, which in turn could make further appeals in Palmer somewhat moot. Esp. if the McDonald decision is along a strong majority of 6-3 or more, which in turn is possible if the "Liberal 4" decide to do PorI and get one of the Heller 5 (Thomas?) to go along. In other words, if a good decision in Palmer gets a positive cite in McDonald, we could see an *immediate* shift...if it's good enough, a next-day load open carry rally in Times Square .
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March 8, 2010, 05:25 AM | #41 | |
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Quote:
I would imagine the liberal Justices would go along with a subjective approval procedure because it would dramatically reduce the number of people allowed to conceal carry (i.e., maintain the status quo so to speak). How do you apply due process in a may issue procedural situation? You can't IMHO. You have to have objective tests that provide clear evidence a person does or doesn't qualify IMHO. You have to leave subjectivity out of the equation or you end up with the ridiculous situations we see in the VAST majority of may issue States. How will the conservative Justices look at this issue?........probably go with objective criteria only. It fits the due process requirements. Since objective standards clearly qualify under due process, why would they go for a convoluted may issue scheme? Much like they asked Gura, "if due process will give you what you want, why are you arguing for P&I". There's absolutely no reason to allow a may issue scheme when shall issue statutes satisfy due process IMHO. But I really have no idea how this will go with any real confidence TG. We'll just have to wait and see in this or future cases. |
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March 8, 2010, 10:55 AM | #42 | |
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Quote:
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March 8, 2010, 11:56 AM | #43 |
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How dare you say I might be biased TG!!
Now, that's one statement you've made that is etched in stone!! |
March 8, 2010, 12:21 PM | #44 |
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Excuse me TG but, do you have ANY idea how much strong evidence of bias in discretionary permit issuance exists?
Seriously? http://www.ninehundred.net/~equalccw/ccwdata.html http://www.ninehundred.net/~equalccw/oaklandzen.html http://www.ninehundred.net/~equalccw/donperata.gif http://www.ninehundred.net/~equalccw/howardpearl.html http://www.ninehundred.net/~equalccw/aerosmith.html http://www.ninehundred.net/~equalccw/newsday.html http://www.hoboes.com/pub/Firearms/B...s%20Get%20Guns And if you read JUST ONE: http://www.ninehundred.net/~equalccw...escopapers.pdf I stopped collecting this stuff circa 2005ish. There's a whole bunch more. How about the crooked crony in San Juaquin County Cali who shot at arresting FBI agents with his permitted gun, issued by the sheriff who ended up joining him in federal prison for real estate fraud? Or the initial federal charges against Sheriff Carona of Orange County who was charging a grand a piece? Or the guy who walked into the Monterey County (Cali) Sheriff's office, asked the desk sgt. about CCW and was told flat-out it was $1,500 to the sheriff's re-election campaign? Shall I go on? 'Cuz trust me, I can. Oh no. This fully discretionary crap has to go.
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March 8, 2010, 01:53 PM | #45 |
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Let's not go painting ALL police officers by the actions of a few apparent miscreants in California, Jim.
There are many dedicated, non-corrupt officers who take their jobs seriously.
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March 8, 2010, 01:54 PM | #46 | |||
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Quote:
As to the statistics: Quote:
Quote:
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March 8, 2010, 04:24 PM | #47 | |
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Having followed brother Jim March's exploits to document "May Issue" abuses, I can say that any state that tries to retain "May Issue" will have to have positive rules to keep it.
Most May-Issue schemes stinketh. California's system allows CLEOs and their designates to deny based on their "good cause" not meeting their [arbitrary] level of qualification. Eliminate the "good cause" and now the CLEOs have to look at the character of the applicant. Quote:
If challenged, then the CLEO will have to show the source material for his rejection. If that turns out to be repeated calls for loud, drunken parties or brawls at your home, repeated domestic violence calls, personal knowledge of your frequent intoxication, etc. then those documents would support a rejection "in the interests of public safety". If the CLEO cannot support his denial with some sort of documentation, the court should be slamming him with fines/fees each time. The concern about putting too much pressure on either open or CCW carry is that we could find tight limitations imposed by the legislature. For instance, you apply for a carry permit, but in 1978 had a single FTA (failure to appear). Nope, no carry permit for your, Mr. Scofflaw! They may attempt to classify very minor events as grounds for denial. (The Brady Bunch would likely argue this method.) California has had a tight-fisted control over any form of loaded carry for too long. I think they'd worry that OC would end up costing too much in L.E. response costs or "high-risk" confrontations. Thus, they'll opt to make CCW permits a "nominal cost" -- $10-$20 for 3-4 years as a processing fee. As a prediction... - Carry permit will be an endorsement on your CDL/ID card - The law will not be widely publicized. - May impose a finite limit on number of guns on a permit. - May require "registration" of your handgun to you. - Will increase penalites for unlawful carry & branishing. - Will create penalties for "exposing" (printing) - Any misuse will revoke the permit, prevent future CCW. - If revoked, an OC license will be expensive to obtain. - May require a short quiz on state storage/safety/use laws Regulating what they call "misuse" will be permissible. The question will be whether the law will be appropriately written or not.
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March 8, 2010, 11:04 PM | #48 |
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Good points Bill. Yeah I don't see any panacea decisions making CA like Alaska any time soon. I do think the really bad may issue states will have to change their procedures quit a bit but they will not make it easy for you guys out there to carry. IMO.
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ccw , may issue , shall issue |
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