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Old August 20, 2013, 01:18 AM   #301
ddestruel
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do not confuse my post as suggesting the berlin wall will crumble tomorrow or that all of it may be removed some day. only that i was noting the potential avenues that might open or the path that these briefs seem to be attacking has the potential if a favorable ruling is obtained to guide future challenges. nowhere was i suggesting that the nfa will fall. instead just that the discussion about "weapons in common use at the time" of now should or could become a possible challenge. the bills i listed specifically make any and all semi automatic rifles with detachable magazines currently available unavailable to future generations. reclassifying them as assault weapons. if CA is successful in that, a challenge down the road would i believe have to once and for all differentiate that the nfa created the mechanism for defining dangerous and unusual "unprotected class of firearms" from those that are in common use from the un-bridaled discression of a state regulatory system that is unclear and arbitrary granting access to common pistols or common rifles to some classes of citizens including police and not to others....ie the safe hand gun roster for example..... there are arbitrary laws as we all know around the US but the good substantial reason is a major foundation block justifying different classes of citizens and access to various weapons. law abiding citizens according to how i read things below are entitled to access to small arms that are not outside the scope of usual or “in common use” in the now so how then can states deny that right…. curently its only because the right path/challenge hasnt been brought forward but if wollard is successful these briefs may be laying alot of the ground work or very similar ground work. as i see the distance between the briefs challenging arbitrary licensing schemes like wollards and safe hand gun roster in CA or the assault weapons bans like SB374 is not as far removed from each others as others sometimes portray……………getting a ruling that codifies the burden of proof being on the states for justifying these various restrictions will eb a monumental hurdle….. but an essential one none the less….

that was all regarding the quotes you guys were getting at i believe they are below



" It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment ’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right"

from above that paragraph
"We also recognize another important limitation on the right to keep and carry arms. Miller said, as we have explained, that the sorts of weapons protected were those “in common use at the time.” 307 U. S., at 179. We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of “dangerous and unusual weapons.” "

We may as well consider at this point (for we will have to consider eventually) what types of weapons Miller permits. Read in isolation, Miller’s phrase “part of ordinary military equipment” could mean that only those weapons useful in warfare are protected. That would be a startling reading of the opinion, since it would mean that the National Firearms Act’s restrictions on machineguns (not challenged in Miller) might be unconstitutional, machineguns being useful in warfare in 1939. We think that Miller’s “ordinary military equipment” language must be read in tandem with what comes after: “[O]rdinarily when called for [militia] service [able-bodied] men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.” 307 U. S., at 179. The traditional militia was formed from a pool of men bringing arms “in common use at the time” for lawful purposes like self-defense. “In the colonial and revolutionary war era, [small-arms] weapons used by militiamen and weapons used in defense of person and home were one and the same.” State v. Kessler, 289 Ore. 359, 368, 614 P. 2d 94, 98 (1980) (citing G. Neumann, Swords and Blades of the American Revolution 6–15, 252–254 (1973)). Indeed, that is precisely the way in which the Second Amendment ’s operative clause furthers the purpose announced in its preface. We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns.

Last edited by ddestruel; August 20, 2013 at 01:27 AM.
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Old August 20, 2013, 12:42 PM   #302
maestro pistolero
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The court seems to acknowledge an anti-tyranny purpose for the amendment. If that is true, then how does it get around a law that does the opposite of leveling the playing field between citizen's small arms and government small arms without eviscerating the amendment for that purpose?
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Old September 4, 2013, 09:59 AM   #303
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Courtesy of Paul Clement, I now have the NRA amicus brief in support of Woollard.

This brief expands upon the notion that the courts are in rebellion by using the recent NRA cases (and the decisions) as further examples. It is a mere 17 pages and is a quick read.

I hope to have the remaining 2 amici brief shortly.
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File Type: pdf 2013-08-12 Amici NRA in support of Woollard.pdf (166.4 KB, 48 views)
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Old September 4, 2013, 11:33 AM   #304
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Clement is trying to create multiple forms of intermediate scrutiny. Sounds like a good idea - intermediate was way too broad.

While I'm stoked Clement mentioned San Diego's ridiculous system, I didn't like his choice of phrasing:

Quote:
The court then went on to
uphold San Diego’s de facto ban on the reasoning
that the county has “an important interest in
reducing the number of concealed weapons in public.”
Every anti on the Court is going to read that and say, "Yeah, so? Of course they want to reduce concealed weapons in public." More importantly, such language won't sway that 5th vote. If he couldn't phrase it in terms of the infringement of civil rights / disobedience to the SCOTUS precedent, etc, he should have omitted the example entirely.

But he ends strongly with good stuff from Moore v Madigan and US v Skoien.

Hope it helps.
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Old September 4, 2013, 12:15 PM   #305
maestro pistolero
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I think I see what Clement was pointing out here. Only the most intellectually dishonest judge would ever embrace a scheme that sees the wholesale suppression of a fundamental right as being in the governments interest.

It simply cannot be in the government's interest to suppress a fundamental right, i.e. reducing the number of weapons carried in public by law abiding people for whatever lawful purpose.
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Old September 4, 2013, 12:48 PM   #306
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Quote:
Originally Posted by maestro pistolero
It simply cannot be in the government's interest to suppress a fundamental right,
I think you mean "It simply should not be in the government's interest to suppress a fundamental right"

Because both a majority of legislators and Federal courts are saying the exact opposite of what you're saying. All those laws were passed by majorities in their various legislatures, and only one circuit sided with us -- all the others said "it's OK to suppress, public safety uber alles".
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Old September 4, 2013, 03:31 PM   #307
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Thanks for all your work, Al.
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Old September 4, 2013, 05:39 PM   #308
Al Norris
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Here is David Hardy's brief for the Academics for the Second Amendment (I'm reading it now):
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File Type: pdf 13-42 Academics in support of Woollard.pdf (100.5 KB, 22 views)
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Old September 4, 2013, 07:47 PM   #309
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I haven't heard much of A2A since the Heller case, but this brief is a good one. It's short and to the point:

Quote:
The use of discretionary licensing inevitably tempts the licensing authorities to act arbitrarily, and out of favoritism. This case presents the Court with an opportunity to decide whether a fundamental right can be subject to licensing which is based on cam
paign contributions, wedding gifts, or celebrity status.
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Old September 4, 2013, 10:14 PM   #310
Al Norris
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Yeah, I liked the ending as well.

Overall, the brief makes a point that when open carry is no longer available then licensing must be fair for all (shall issue as opposed to may issue).
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Old September 5, 2013, 05:46 AM   #311
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Quote:
Overall, the brief makes a point that when open carry is no longer available then licensing must be fair for all (shall issue as opposed to may issue
If open carry is banned, why should you need a license to exercise your right to carry (concealed)?

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Old September 5, 2013, 06:55 AM   #312
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Quote:
If open carry is banned, why should you need a license to exercise your right to carry (concealed)?
I agree. IMHO, by following this logic we no longer have a right, but a privilege.
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Old September 7, 2013, 05:22 AM   #313
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Baby steps here. The only issue is whether a permit can be denied based on whether the issuing agency believes you should have one. Licensing will be a fight for later.
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Old September 9, 2013, 09:22 AM   #314
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And calling it a "license" does not necessarily make it so, though it does truly muddy the waters. If there's a line a Shall Issue concealed permit/license where Open Carry is banned probably walks with one foot on each side of the line.
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Old September 9, 2013, 01:47 PM   #315
Al Norris
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We should get one thing straight. A permit or a license are one and the same, regardless of the terminology.

A license bypasses a legal barrier or makes an otherwise unlawful act lawful. The nature of a license allows the licensee to do something he could not otherwise legally do. Thus, a license gives the licensee the right to do something that would otherwise be illegal or unlawful for him to do.
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Old September 9, 2013, 02:02 PM   #316
JimDandy
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My point was along these lines Al:

IF Open Carry is banned

IF Concealed Carry is Shall Issue

While it is illegal to concealed carry without that piece of paper, the treatment o the right is analogous to registering to vote. One may not vote without registering, one may not carry concealed without registering. The fact that one is called a license or permit, and the other is called a voter registration card is primarily semantics when compared and contrasted with how they are treated. Now either requiring voter registration is unconstitutional, or requiring concealed carry registration is.

With that said, I recognize and concede certain OTHER aspects of a concealed carry registration card or permit or license may go over the line- i.e. must have one card but not the other while engaging in the right, the time involved in the registration process, etc. - But the basic concept is the same.
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Old September 10, 2013, 11:49 AM   #317
maestro pistolero
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I don't agree that registration and permitting or licensing are the same. Registration is merely providing information for future reference. Licensing or permitting entails an approval process where a standard must be met or the permit or license can be denied.

That's a significant distinction when the subject matter is a fundamental civil right.

By changing the standard or approval process, the government can suppress (or ease) the ability to exercise the right. If the standard is unnecessarily burdensome then it is unconstitutional. With registration, little burden is placed on a right by merely identifying oneself and filling out a form.
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Old September 10, 2013, 01:12 PM   #318
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Quote:
Licensing or permitting entails an approval process
That's why I specified Shall Issue. The approval process for Shall Issue is not especially different than voter registration. There are distinct and exact disqualifiers in both cases, there is no judgement call involved.

Have you done X?

Yes/No

Approved/Denied.


They can call it a permit or license all they want. But if it's not a license to vote, and the process is substantially similar, it's not a license to carry.

And as I've already admitted, some processes may not be substantially similar, i.e. accuracy/class requirements or fingerprinting.

But as a general rule, a Shall Issue and Voter Registration do not appear significantly different on the mechanics of a permit/licensing front.
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Old September 10, 2013, 01:46 PM   #319
maestro pistolero
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Even shall issue carry licensing does usually involve training, testing, and a live-fire qualification test. I'm not saying I disagree with this, just that it almost always involves more than filling out a registration form and includes criteria by which a person can be denied a fundamental right. I guess the devil's in the details as usual.
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Old September 10, 2013, 02:37 PM   #320
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Quote:
maestro pistolero..Even shall issue carry licensing does usually involve training, testing, and a live-fire qualification test. I'm not saying I disagree with this, just that it almost always involves more than filling out a registration form and includes criteria by which a person can be denied a fundamental right.
I didn't have to pay a fee for my voter registration card, but I did for my shall issue CCW permit. I don't have the option for open carry; it's illegal. If I have to pay to exercise my right, I don't think it's a right. If I didn't pay, I didn't get the permit, therefore I couldn't execise my right.

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Old September 10, 2013, 03:14 PM   #321
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"I don't agree that registration and permitting or licensing are the same. Registration is merely providing information for future reference. Licensing or permitting entails an approval process where a standard must be met or the permit or license can be denied.

That's a significant distinction when the subject matter is a fundamental civil right.

By changing the standard or approval process, the government can suppress (or ease) the ability to exercise the right. If the standard is unnecessarily burdensome then it is unconstitutional. With registration, little burden is placed on a right by merely identifying oneself and filling out a form."

If failing to register, results in punishment or the inability to exercise a right, then its really a license requirement, no matter what it is called.
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Old September 10, 2013, 04:03 PM   #322
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If unlicensed OC was not available, I cannot see how they can properly have licensed Criminal Carry wherein they have expensive requirements and fees.
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Old September 10, 2013, 06:08 PM   #323
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What's "licensed Criminal Carry?" Criminals don't bother applying for licenses.
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Old September 10, 2013, 06:27 PM   #324
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But Chicago says shall-issue will lead to gang bangers getting permits
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Old September 10, 2013, 11:01 PM   #325
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CC: Criminal Carry, or if you like Concealed Carry. While not everyone that conceals is a criminal, all criminals conceal.
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