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Old March 6, 2010, 06:17 PM   #1
gc70
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2A and CCW - May Issue v Shall Issue

An interesting, but off topic, discussion of concealed carry licensing arose in another thread. Rather than carry the other thread further off topic, let's have a separate discussion here.

The topic: How do you expect concealed carry licensing to develop or change following Heller (and McDonald). Some of the questions from the other thread include:
  • Will the courts find that the Second Amendment requires Shall Issue licensing?
  • Will May Issue licensing be acceptable if open carry is legal?
  • Is there a way for May Issue licensing to be acceptable with objective criteria or procedural safeguards?
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Old March 6, 2010, 06:18 PM   #2
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After the Victory.. Where Next After McDonald?

I am very confident that we gun owners will win McDonald vs. Chicago and the Second Amendment will be incorporated against the states.

So, what will that mean for us? What will be our next attempt to win back some rights?

In the other thread I posited that "May Issue" CCW laws may withstand court challenge. I am NOT advocating "may issue" and I don't like it but there seems to be a big difference between states like Alabama and New York, both "may issue" states but very different in practice.

IMO the court may look for a "middle ground between everybody without a felony, domestic battery or mental adjudication gets CCW and only Robert Deniro gets one.

So, should we kiss "may issue" in all it's forms and practices as DOA after McDonald, or will some forms of it survive court scrutiny?

Those of you who live in "may issue" states chime in.

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Old March 6, 2010, 06:20 PM   #3
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May need to merge with mine or vice versa. Darn gc70, you are fast!
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Old March 6, 2010, 06:24 PM   #4
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Yup, he is. Since he beat ya by a minute (or so), I merged yours with his, as they are the same topic.

I have to leave back to work, so I'll join in later tonight.
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Old March 6, 2010, 06:35 PM   #5
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While not a popular position (and one I do not personally support), I think that May Issue licensing might survive and there are reasons that it possibly should survive.

Consider a May Issue system with objective criteria that would presumptively qualify an applicant, but with an option for law enforcement to deny the license for "good cause" along with an easy process for judicial review of denials.

(more on why this might be a positive system after I get back from dinner )

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I am slower than you, TG, but I did not type as much.

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Old March 6, 2010, 06:42 PM   #6
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Heller and McDonald have been on my mind recently, so here goes:

May issue CCW will not withstand an equal protection challenge. It's fundamentally flawed no matter which way you look at it. If I can be turned down when someone else with the same criminal record was not, my protection of equal rights under the law has been violated.

TG, what you are really talking about (as it seems to me) is stricter standards under a shall issue system, which most likely would survive. However, as long as an individual has issuing discretion (may issue), equal protection is violated.

And I'm quite happy it will probably be so - I may actually be able to get a permit in my home state of NY if someone challenges their may issue in court.
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Old March 6, 2010, 07:06 PM   #7
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There are some states we classify now as "shall issue" that have a provision whereby a cop can write a statement to the effect of "this guy is a crook we haven't caught yet" or "numerous calls on violence issues at this guy's house" or "known drunk" or whatever.

In such cases, no permit.

There's been very little abuse of such systems (none that I've heard of) as long as the cop has to write under oath, and the applicant gets a copy and can make a challenge.

How the courts would view this, I have no idea.

Genuine "may issue" as practiced in New York, California, etc. is toast. Stick a fork in it, it's done.

A very interesting question involves states like Texas where you have to conceal, or Ohio, Michigan or others where concealed carry is "legal" but often gets you staring down a cop's barrel. In Texas, they're saying you MUST PAY MONEY to carry...which would be damn peculiar if carry is a right. In Ohio/MI/etc. such assaults by cops now violate basic civil rights even moreso than usual, and some big money payouts will happen before the practice ends.

Another big change: states that discriminate against residents of other states purely so they can charge for the permit and/or force more reciprocity.

Example 1: California won't issue to out-of-staters at all and won't recognize other state permits. Bzzt. That's going away immediately, the first time somebody challenges it in civil or criminal court. Look up the 1872 case of Ward v. Maryland or 1999's Saenz v. Roe (both USSC) for more info.

2) Nevada forces all visitors to score NV CCW as a revenue thing. Yeah, good luck with that.

3) Weirdest yet: CO recognizes a UT permit, but only if a UT resident holds it. WA resident scores UT permit, packs in CO, is illegal. Yeah...explain the rationale for that one again?
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Old March 6, 2010, 08:26 PM   #8
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Here in PA it is a "Shall Issue State" However we have noted that Philadelphia routinely abuses the Good Character clause to deny a License to Carry a Firearm. (LTCF). In other than cities of the first class of which there is only one the LTCF is issued by the Sheriff. According to the law there need be but one form approved by the state police for the application. Some sheriffs routinely violate that but no one brings them to task for it as they would rather go the extra mile than not get the permit and take them to court over it with the extra expense that entails. Fortunately for me I live in a county where the sheriff follows the law and getting a license is a 15 min. process.

As to May Issue being valid after McDonald I would think a lot depends on the details of the decision.
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Old March 6, 2010, 08:52 PM   #9
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Quote:
Genuine "may issue" as practiced in New York, California, etc. is toast. Stick a fork in it, it's done.
May it be so!

I doubt the current case's judgement will go within five miles of shall or may issue. I think the Supremes are doing the bare bones minimum to respect the Second Amendment, and probably wouldn't do that if they could get out of it.

I can easily see California-style may issue laws being upheld as a model for the nation down the road.
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Old March 6, 2010, 09:17 PM   #10
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Quote:
There are some states we classify now as "shall issue" that have a provision whereby a cop can write a statement to the effect of "this guy is a crook we haven't caught yet" or "numerous calls on violence issues at this guy's house" or "known drunk" or whatever.

In such cases, no permit.

There's been very little abuse of such systems (none that I've heard of) as long as the cop has to write under oath, and the applicant gets a copy and can make a challenge.
Jim March beat me to the mechanics of what I would consider a structured "may issue" system.

There are some sketchy characters around who do not quite meet federal disqualification standards, but would be scary legally carrying a gun. Some folks amass impressive police records without being nailed with a specific federal disqualification. And then there are the benign nutjobs; I would not want the guy who lives a couple of miles down the road and sometimes flags down passing cars in the wee hours of the morning to invite the drivers to shop at his permanent yard sale to legally concealed carry.

A "shall issue" system based on federal disqualifications would not provide any opportunity to catch the types at the edges. That would probably result in more restrictive objective standards being added to address the outliers. At some point, it could be preferable to have a shorter list of absolute standards and some discretion than a ridiculously long list of standards.
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Old March 6, 2010, 09:35 PM   #11
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At some point, it could be preferable to have a shorter list of absolute standards and some discretion than a ridiculously long list of standards.
Who exercises the discretion? Is there an appeal process, and if so, who makes the judgement calls? How do we know the people who exercise discretion won't use it to discriminate against (fill in the blank)?

Personally, I'd much rather see weird people walking around armed than bureaucrats authorized to deny us commoners the right to keep and bear arms.
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Old March 6, 2010, 09:36 PM   #12
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What exactly is Philly doing?
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Old March 6, 2010, 10:30 PM   #13
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Quote:
Who exercises the discretion? Is there an appeal process, and if so, who makes the judgement calls? How do we know the people who exercise discretion won't use it to discriminate against (fill in the blank)?
I would think the discretion component would be like Jim March described - a sworn statement by law enforcement of the basis for denial, coupled with an easy, if not automatic, appeal process to the court system.

Quote:
Personally, I'd much rather see weird people walking around armed than bureaucrats authorized to deny us commoners the right to keep and bear arms.
While I agree with the sentiment of the statement, the courts would have to come out much more strongly on our side than I believe possible for that to become a reality. The pragmatist in me suspects that the trade-off will be a system with a few objective standards (low hurdle) and some type of discretion or a system with no discretion but more objective standards (reasonably high hurdle).
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Old March 6, 2010, 10:57 PM   #14
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Look on the bright side. Discrimination by law enforcement in any OTHER area gets stomped on by the courts all the time. We'll simply be able to have gun-related police activities treated the same way.

I still wanna know what Philly is up to.
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Old March 6, 2010, 11:19 PM   #15
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Quote:
What exactly is Philly doing?
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To list a few.

Your house is broken into and they steal your gun. Your DQ

They are taking 45 business days to issue it should be a max of 45 calendar days.

Had a DUI years ago. DQ

If you have virtually anything on your record they will DQ you.

Philly PD in the past if they see you open carry they will take your gun and LTCF. Neither is legal. The only one that can revoke your LTCF is the issuing authority. Open carry is legal. so they have no RAS to do a stop in the first place.

If your gun is not in the PSP sales data base, it's gone and it will take a court fight to get it back. They treat it as a registry. Having a gun registry in PA is against the law. EG. I bought a 1911 in CA when I was a resident there if they find it they take it. Most time won't give a receipt as required by law.
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Old March 6, 2010, 11:35 PM   #16
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Standing Wolf wrote: "I can easily see California-style may issue laws being upheld as a model for the nation down the road."

The only way I could see this happening is one of two scenarios - one the court doesn't support bearing arms, unlikey, and/or two Obama appoints a replacement for one of the current conservative majority before bearing arms is set in legal precedent.

Currently, Gura (the atty in Heller and McDonald) has cases pending addressing the right to carry - his argument in those cases is that a state may ban CCW or open carry but they can't ban both and that one or the other must be essentially open and available to all citizens, unless an individual is disqualified by felony or serious mental illness.

Then consider that Justice Kennedy - who has been called the swing vote in the majority - or softest on the 2nd - has stated that the 2nd amendment/RKBA is a fundamental right and also consider that he signed on to the majority decision in Heller which ruled out the rational basis review test for the second amendment - (if Heller was under rational basis review then the DC ban might have still have been held to be constitutional and it wasn't).

Therefore one could reasonably state that (given McDonald goes our way) that we have an individual fundamental right to keep and bear arms and that it gets at least intermediate scrutiny if not possibly a squishy strict scrutiny. Also note that in Heller, Kennedy and the others in the majority really focus on the idea that individuals have a right to self-defense describing in their own words that it is part of the core of the right protected.

To me all those factors point to the probability that Gura is right in his argument and that the courts will rule that as a fundamental right - particularly in regards to self-defense - that states violate that right when they ban both CCW and open carry or only allow one or both on a discretionary basis. In other words you don't get to pick and choose who gets to exercise a right - unless that picking and choosing is grounded in due process and passes the provisions of equal protection. They may well say and probably will that a state can say how you carry, openly and/or concealed, but not if you can carry.

If that is the case, as I feel it will be because of what has been ruled so far, then the only way California CCW laws could be upheld is if California allows nondiscretionary open carry (with a loaded gun not as they do now with an unloaded gun). Therefore, I feel it safe to say - that of those states that do not like the legal carrying of a gun (California, Illinois) - most will opt if forced to choose between the two (open or concealed carry) for concealed carry. And therefore, few if any states, including California, will have California style or discretionary style concealed carry in the not too distant future.

Last edited by mack59; March 6, 2010 at 11:47 PM. Reason: spelling
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Old March 6, 2010, 11:40 PM   #17
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But even the best shall-issue systems don't avoid the problem of making you pay for a fundamental right. That's why I think a challenge in Texas against the open carry ban is very likely post-McDonald. Texas is the best target as they're in the 5th Circuit.
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Old March 7, 2010, 12:14 AM   #18
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True about paying a fee to exercise a right, I just don't know if the court will go that far, like they should. They might say as long as the fee is nominal and/or the state has a compelling reason for doing so such that it is substantially and demonstrably in the public interest and does not unduly burden the exercise of that right then such CCW laws are constitutional so long as they pass equal protection and due process - they might say that there needs to be a provision for a waiver of fees if an individual can demonstrate through a simple process they are not able to afford them.

I would hope you are right, (well I know you are right constitutionally), but I think the court is new to the issue, and may tend to exercise over due caution. I don't know how well the justices in the majority are informed on the practical side or real world side of the issue such that it may seem too radical to them being outside of their own experience. We know in the minority how pathetically uninformed Justice Breyer is, given his but but but guns kill people attitude. As I said I think they will support the bearing of arms - as they are or will be aware that it is already lawful in all but a few states - but I don't know that they will be willing to overturn the majority or almost all of the states laws on CCW as almost all have fee based licensing.
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Old March 7, 2010, 12:30 AM   #19
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Seems like "shall issue" and "may issue" are not concretely defined as we might have thought. World is complex huh? Go figure?

Anyway, I am thinking what the court would hang on to was whether the process was objective and reviewable. Seems like scrutiny to me. A right may be regulated if you can show compelling state interest and the manner in which it is regulated is objectively defensible?
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Old March 7, 2010, 12:59 AM   #20
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Ultimately, what I see happening is what happened in Idaho in 1902.

There, in the case, In Re Brickey, 8 Idaho 597 (1902), the Idaho Supreme Court ruled that based upon the 2A and the Idaho analog, that while the legislature could regulate the manner of carrying a firearm they could not deny the right.
Quote:
While it is, undoubtedly, within the power of the legislature to prohibit the carrying of concealed deadly weapons, and such regulation is a proper exercise of police power, yet the legislature does not possess the power to prohibit the carrying of firearms, as the right to do so is guaranteed to the citizen both by our federal and state constitutions.
What that meant was that if the State wanted to regulate open carry, it had to allow unfettered concealed carry. Or, as the case at bar, they could regulate concealed carry but open carry must remain unfettered.

I see something similar happening sometime in the near (5-10 years) future, when all is said and done. That's the only way that "may issue" concealed carry will survive... And may not, even then, for reasons already stated.

There's a strong caveat to this, however.

Because the general populace does not really like to see guns, openly displayed, I believe the various States will "streamline" their CC laws to be more in conformity with each other. Reciprocity will be achieved faster than its going now (a successful Palmer will ensure it).

Dig a little into the history of Drivers Licensing. Hardly anyone today, realizes that it wasn't until the mid 50's that rules of the road became standardized and full reciprocity was achieved between the States. Yet the States started these licenses back at the turn of the 20th century.

The difference here, is that the feds will be mandating that the States recognize the 2A (they were never involved with DL's, BTW). It will happen at a faster pace than what happened with your DL.
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Old March 7, 2010, 01:28 AM   #21
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Quote:
There's a strong caveat to this, however.

Because the general populace does not really like to see guns, openly displayed, I believe the various States will "streamline" their CC laws to be more in conformity with each other. Reciprocity will be achieved faster than its going now (a successful Palmer will ensure it).
I believe the courts will recognize the right to carry, but the manner of carry will be subject to regulation. And I agree with Antipitas that the public's unease with seeing guns will probably tilt the balance toward concealed carry as the approved method. However, that presents its own set of potential problems. If open carry is generally prohibited, the definition of "concealed" may become more stringent (never show, don't print, etc.).
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Old March 7, 2010, 07:23 AM   #22
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TG: Here's the answer to your question on LEO's degree of involvement in shall issue States. (Sorry, I started another thread before noticing this one. I deleted that one and will put my answer here. )

Quote:
There's been discussion in another thread about the differences between may issue versus shall issue when it comes to concealed carry.

Tennessee Gentleman ("TG") had commented on may issue and how much some States might actually have, for all intents and purposes, a shall issue procedure even though they call it may issue.

All I can say is how it is in Michigan where I live.

In Michigan, the State has to allow you a concealed carry permit as long as you meet objective requirements.

One of those areas involves a laundry list of infractions that you cannot commit within a certain time period before applying for the concealed carry permit.

This laundry list of infractions is about as long as your arm!!

Anyway, there are 3 year and 8 year categories of prohibiting infractions in Michigan (along with lifetime prohibitions for the usual more serious infractions, plus insanity).

Here's the link to the Michigan application, go down a few pages to where the infractions start.

http://michigan.gov/documents/ri-012_7736_7.pdf

In answer to TG's main question: In Michigan, LEO does not give their personal opinion. The laundry list of infractions covers the prohibitory objective standards for shall issue in Michigan. You meet those standards and the State shall issue a concealed carry permit.

ETA: Now the authorities do investigate you via background checks with the FBI and State/Local criminal records. You are fingerprinted and the FBI runs a check on those prints.

As stated, all of these requirements are objective in nature and, if you meet them, the State shall issue the concealed carry permit.

Last edited by RDak; March 7, 2010 at 07:38 AM.
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Old March 7, 2010, 07:28 AM   #23
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As to incorporation, I simply do not see how the fundamental right discussed in Heller and, applied most likely in McDonald under due process, could result in anything but shall issue carrying the day when those cases arise.

I don't think the SCOTUS will make a direct decision on this specific issue but they might offer "clues" as to how that issue will be decided if it comes before them.

The oral arguments did include questions relative to how much of the 2nd Amendment is to be incorporated (i.e., Roberts and Kennedy asked this question directly).

So, at the very least, they will answer that concern IMHO.

But I don't think they will make a final determination as to may issue versus shall issue. (Same for open carry IMHO.) Those issues will be decided specifically in other cases IMHO. I hope I'm wrong!

They might conclude: "From this day forward, incorporation includes all decisions we make relative to the 2nd Amendment at the Federal level as well as the State level."

I say that because the nature of the question asked by Roberts and Kennedy seemed to cover whether cases decided at the Federal level should "automatically" be applied to the States via any incorporation they might approve of.

ETA: Here's the quote from Kennedy I'm relying on (it is basically a repeat of Robert's question).

Quote:
JUSTICE
KENNEDY: I understood the Chief Justice's question -- maybe I misunderstood it, but my understanding of the question that's important is this. Under incorporation by reference, the States are bound by the rights in all -- with all of the refinements and sophistication with which we interpret them for the Federal Government. It's the same. You don't just apply the core of the right. You apply all of the right as it is elaborated by the cases.
Is -- is that same consequence -- does that

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Old March 7, 2010, 07:56 AM   #24
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Quote:
But even the best shall-issue systems don't avoid the problem of making you pay for a fundamental right. That's why I think a challenge in Texas against the open carry ban is very likely post-McDonald. Texas is the best target as they're in the 5th Circuit.
But if the fee is for background checks and additional labor hours required by LEO, wouldn't that be an acceptable reason to charge for a CPL/CCW?

Much like a driver's license fee? It costs the State money to process these things so I think a fee might hold up in court.
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Old March 7, 2010, 09:51 AM   #25
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Except driving isn't a fundamental right. Gun carry is, and will be recognized as such post-McDonald.

There's a reason we don't tax churches - religion is a fundamental personal right. We don't charge extra court fees if you ask for a jury trial - because that's a personal civil right.

See the pattern here?
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