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Old March 7, 2010, 10:07 AM   #26
Dragon55
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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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Old March 7, 2010, 10:21 AM   #27
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Good point Jim.
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Old March 7, 2010, 11:25 AM   #28
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Here is the reason that P or I incorporation is important.
Quote:
Except driving isn't a fundamental right. Gun carry is, and will be recognized as such post-McDonald.
It isn't? Really?

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:
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?
Right back at ya, Jim!
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Old March 7, 2010, 01:57 PM   #29
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Piling on,

Quote:
Originally Posted by Jim March
There's a reason we don't tax churches - religion is a fundamental personal right.
Really? Let the preacher repeatedly support a particular candidate for President or refuse to allow people of a particular race to attend their "church" school and see how fast that tax exemption goes away! Religion and churches ain't the same.

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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Old March 7, 2010, 02:03 PM   #30
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Quote:
Originally Posted by RDak
Here's the answer to your question on LEO's degree of involvement in shall issue States.
The question for the court would be IMO can there be constitutional descretion that is objective but allows for CLEO subjectively to deny a permit.

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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Old March 7, 2010, 02:35 PM   #31
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Quote:
Really? Let the preacher repeatedly support a particular candidate for President or refuse to allow people of a particular race to attend their "church" school and see how fast that tax exemption goes away! Religion and churches ain't the same.
The legal treatment of religion is interesting, because core aspects of religious freedom are protected beyond strict scrutiny.

Quote:
from Freedom of Speech, Permissible Tailoring and Transcending Strict Scrutiny by EUGENE VOLOKH

It's widely assumed that the Free Exercise Clause and the Religious Freedom Restoration Act bar the application of Title VII to race or sex discrimination by churches in their choice of clergy. But why?

The Court has already held, in the free exercise and expressive association contexts, that the interests in stopping race and sex discrimination in education and public accommodations are compelling; lower courts agree that the same is true in employment. What could be more narrowly tailored to these interests than a prohibition on such discrimination?

To protect the church's right to discriminate in its choice of clergy, courts must abandon the notion that infringements of religious freedom are allowed so long as they pass strict scrutiny. In some situations, a court must hold -- as lower courts generally do in clergy discrimination cases -- that "the `inroad on religious liberty´ is too substantial to be permissible" even though the law is narrowly tailored to a compelling interest. What does the work here is not strict scrutiny, but an underlying theory of the autonomy of religious institutions.
Volokh's paper discussing strict scrutiny could suggest that the attempts by Stevens and Breyer to bifurcate the RKBA might result in some beneficial recognition of a "core" 2A right that would even transcend the normal rules of strict scrutiny.

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."

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Old March 7, 2010, 02:43 PM   #32
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Quote:
Originally Posted by gc70
because core aspects of religious freedom are protected beyond strict scrutiny.
Does that extend to the tax code? I don't think churches have a "right" not to be taxed but maybe the courts say otherwise but I think only Congress has provided for such. Wasn't that decided with the Native American case and peyote?

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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Old March 7, 2010, 03:15 PM   #33
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Quote:
Does that extend to the tax code?
Of course not. The important factor is the "core" aspect of religious freedom, which is clearly not the tax status of churches.

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?
The home received special treatment in Heller because it was the easiest case to make. While the court would not arbitrarily set out to declare a sweeping position on carry in McDonald, the court's opponents to RKBA may force (or provide the opportunity for) the majority to implicitly address bearing arms.

(more later - off to the range)
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Old 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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Old 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.
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Old 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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Old 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.
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Old 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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Old March 7, 2010, 09:01 PM   #39
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More on:

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?
Public carry is not viewed, by the population or the law, the same as keeping a handgun in the home. To some extent, the latitude that can be exercised in self-defense progresses from someone else's property, to neutral ground, to your property, and finally to your home - your "castle" or final refuge. But that is a question of the application of the right. I am more interested in the scope of the right.

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:
I'm asking you what is the scope of the right to own a gun that is protected by the Liberty Clause of the Fourteenth Amendment? Is it just the right to have it at -- at home, or is the right to parade around the streets with guns?
If Stevens writes a dissenting opinion that includes the concept that keeping a gun at home is more important, and subject to greater legal protections, than carrying a gun away from home, he will have introduced the topic of carry, or more broadly the meaning and importance of "bear." Once the topic is introduced, the majority will have the chance, and will nearly be obliged, to refute that view of the scope of the Second Amendment.

The decision in Heller covered both the "keep" and "bear" aspects of the Second Amendment:

Quote:
In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.
* * *
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.
The opponents of RKBA in McDonald appear to have ceded the "keep" aspect of the Second Amendment, but are testing the waters to challenge the "bear" aspects of the Amendment. If they mount that challenge in a dissenting opinion, it will present the majority with a reason to further explain the scope of "bear," which could have reasonably direct and positive implications for concealed carry.
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Old 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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Old March 8, 2010, 05:25 AM   #41
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Quote:
The question for the court would be IMO can there be constitutional descretion that is objective but allows for CLEO subjectively to deny a permit.

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?
As I stated, and showed in Michigan's CPL application, objective measures carry the day. (There are ALOT of them. )

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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Old March 8, 2010, 10:55 AM   #42
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Quote:
Originally Posted by RDak
How do you apply due process in a may issue procedural situation? You can't IMHO.
I think it may be possible and may I very very respectfully submit that you and many other "gun" folk might be a tad biased? I know this might be the way we WANT it to be but I think there might be some good legal justification for some type of LEO descretion if the moral hazard of that method could be mitigated. I agree we will have to see but I do not think "may issue" is completely dead either. We'll see
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Old 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!!
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Old 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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Old 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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Old March 8, 2010, 01:54 PM   #46
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Quote:
Originally Posted by Jim March
do you have ANY idea how much strong evidence of bias in discretionary permit issuance exists?
As I said in my first post there exists a moral hazard with may issue but that with some objective standards it might pass court muster.

As to the statistics:
Quote:
Originally Posted by Justice Scalia
We don't -- we don't resolve questions like that on the basis of statistics, do we?
Quote:
Originally Posted by Jim March
This fully discretionary crap has to go.
And I think if you read what I have posted then you would see I have no issue with fully discretionary laws going away. However, partial descretion might be allowed if there are some objective parts to it like written explanations of refusals and an appeal process.
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Old 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:
However, partial descretion might be allowed if there are some objective parts to it like written explanations of refusals and an appeal process.
The "objective" part to any CLEO discretion would be as previously mentioned. To deny the permit, the CLEO has to write a letter explaining the reason for the rejection, under oath.

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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Old 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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