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Old February 24, 2013, 07:52 PM   #26
harrys ghost
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I am not so sure that the original argument is not part of a deliberate strategy. There is now a decision implying concealed carry is a right. Why would one want to muddy the water in this case by dragging in open carry?
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Old February 24, 2013, 09:03 PM   #27
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harrys ghost, the decision stated that there is no right to carry concealed.
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Old February 24, 2013, 09:25 PM   #28
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As a non-lawyer, I come to this particular forum to gain knowledge and ask the occasional question. I sometimes state an opinion, but I always preface the opinion by saying the "I am not a lawyer..." . Given the nature of this forum, with so many legal professionals participating, I feel that preface is important.

For me, the value of this forum is enhanced because certain people have an established reputation and credibility, and they post often. Thank you Al, Frank, and Spats!
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Old February 24, 2013, 11:04 PM   #29
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This is what I posted to reddit on the subject:

Well it's worse than that. A lot worse.

First issue is that Gray has both WA state and UT state permits. He lives in WA state. UT allows out-of-state permits, but since WA state doesn't honor CO permits, CO screws Gray purely based on his WA state residency despite his having a UT permit that CO does otherwise honor.

The reason WA state doesn't honor CO permits is because WA state issues to out-of-WA-state residents, at very reasonable prices. CO doesn't issue any permits to non-CO residents, at any price. Gray is being personally punished for his state's take on the issue (even though he has a UT permit!).

Follow? He is being discriminated against for his state of origin - and that is already hard-banned by the US Supreme Court in two previous cases: Ward v. Maryland (1870) and Saenz v. Roe (1999). Both of those cases ban cross-border discrimination by one state against another state's residents, and damned well should have applied here. (These cases are why you never see a speed limit sign that says "in-state license plates 65mph, out-of-state plates 55mph".)

But the even bigger problem is that Gray did something smart: he not only sued the state of CO, he also sued the county where Denver is. See, Denver has a local, special rule that says "no open carry". Anywhere else in CO, it can be argued that Gray's right to bear arms isn't 100% toast because he still has a right to open carry. And in, say, Boulder, that's true. But not in Denver, the biggest town. There, he has zero carry rights because of the combination of no open carry and (for him as a WA state resident) no concealed either.

This 10th Circuit ruling completely ignores this problem, and claims this issue is about concealed carry only. That's a pure and simple lie.

Fortunately this decision will be overturned very soon. The US Supremes will have to confront the issue of street carry soon. There are several different things they can do but there is a strong hint in the Heller decision of 2008 that states will be allowed to decide between concealed carry or open carry (or both if they want) - they will not be allowed to completely write the phrase "bear arms" from the US Constitution as the 10th Circuit just managed to do (and flat-out lie about not doing so).

It's a bizarre and obviously wrong (downright fraudulent) decision but long term it's just a small road-bump.

Full disclosure: I know Gray Peterson well, his phone number is in my cellphone's address book, I have been to his house several times and we did research together on the OR concealed weapons laws and their origins.

I also know for a certainty he's not any kind of "right winger".
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Old February 25, 2013, 12:57 AM   #30
maestro pistolero
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There is nothing wrong with the logic of plaintiffs arguments, but the court saw a direct challenge to the open carry ban as the more direct route. The plaintiff expressly declined to make that argument.

It does seem unavoidable that localities which ban open carry but allow licensed carry will eventually have to be held to that choice, and not be allowed to use it to deny the right completely, which IS the argument out forth in this case.

Because of the home rule exception, the court didn't think they could 'get there from here'. But relying on historical bans on concealed carry while ignoring all the sets of facts under which they were upheld is, well, sloppy, and more than a little disingenuous.

Whatever the legal reasoning, if the result is the denial of a fundamental right, then the court has failed utterly. I am not a lawyer, obviously, but I feel like my head is going to explode when a court settles for an unconstitutional outcome in the interest of maintaining status quo. It is worse than useless.

Last edited by maestro pistolero; February 25, 2013 at 01:06 AM.
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Old February 25, 2013, 06:24 AM   #31
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Quote:
Originally Posted by maestro pistolero
It does seem unavoidable that localities which ban open carry but allow licensed carry will eventually have to be held to that choice, and not be allowed to use it to deny the right completely, which IS the argument out forth in this case.
Your statement is incomplete. I think you mean localities which ban open carry but allow licensed concealed carry.

Either that, or (like Philadelphia), locations which ban unlicensed open carry but allow licensed open carry.
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Old February 25, 2013, 02:12 PM   #32
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harrys ghost, the decision stated that there is no right to carry concealed.
So far concealed carry has been seen as not protected. That is to say the states can regulate it heavily. I would think in any state that allows open carry concealed carry can be banned. Question still to be answered is in states without open carry how restrictive can concealed carry be.

My worry in the future, especially with possibles changes in the court, is that they will not disallow buying guns but allow for a lot of restrictions on type of gun and where it can be carried. I certainly hope some clear precedent can be set by the current court.

If no decision is reached then We will then be about where we are now free and not free states, with the loaming threat that a unfriendly congress can dump on everyone.

Last edited by wally626; February 25, 2013 at 06:40 PM.
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Old February 25, 2013, 02:38 PM   #33
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And that is why we hope that the Court will grant cert in teh Kachalsky case. The specifically deals with a ban on open carry and concealed carry is the only option of carry, and that with a licensing scheme that does not allow all to be issued the license/permit (may-issue with "proper cause").

The Moore case, recently decided in Illinois, helps. Should the Woolard case (currently at the CA2) in MD be decided in our favor (State law struct down that had a "good cause" clause), this would be a direct split between circuits and would almost ensure that the SCOTUS take Kachalsky.
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Old February 25, 2013, 02:40 PM   #34
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This is currently being discussed on Fox News if anyone wants to tune in.
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Old February 25, 2013, 03:00 PM   #35
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What about a trip to New York? They don't issue non-resident CC permits, don't allow open carry, and don't even issue non-resident ownership permits?
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Old February 25, 2013, 03:02 PM   #36
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It occurs to me that there has to be a near-absolute right SOMEWHERE. It seems that according to this court, that would mean open carry is it. If true, that would certainly conflict with the philosophy and strategic approach by the CalGuns foundation.

Last edited by maestro pistolero; February 25, 2013 at 03:26 PM.
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Old February 25, 2013, 03:10 PM   #37
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It seems to me the absolute right is carry in one form or the other- Meaning legislators get to pick one, or both, but not none. Most of us likely prefer Concealed of course.

Quote:
Follow? He is being discriminated against for his state of origin - and that is already hard-banned by the US Supreme Court in two previous cases: Ward v. Maryland (1870) and Saenz v. Roe (1999). Both of those cases ban cross-border discrimination by one state against another state's residents, and damned well should have applied here. (These cases are why you never see a speed limit sign that says "in-state license plates 65mph, out-of-state plates 55mph".)
And what about Corfield v. Coryell? From Justice Washington while riding circuit.
Quote:
The inquiry is, what are the privileges and immunities of citizens in the several states? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign.

Last edited by JimDandy; February 25, 2013 at 03:37 PM.
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Old February 25, 2013, 05:30 PM   #38
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The problem with Ward and Saenz is that this court used the dressed up rational basis to claim they didn't apply. Add in that Bach v. Pataki is STILL being used to allow discrimination when it comes to firearms even though it rested on the 2A being only militia and not applying to the states.
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Old February 25, 2013, 05:32 PM   #39
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So it has to go before SCOTUS to slap the hands of the circuit for refusing to keep up with them saying Rational Basis isn't enough? And what about the oldie I dug up? Thomas seems to like that one...
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Old February 25, 2013, 10:29 PM   #40
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Quote:
Originally Posted by maestro pistolero
It occurs to me that there has to be a near-absolute right SOMEWHERE. It seems that according to this court, that would mean open carry is it.
Possibly, but perhaps the court is saying that there is no Second Amendment right to concealed carry and no Second Amendment right to open carry. There's merely a Second Amendment right to carry, in some fashion, that the state cannot entirely foreclose. As Gray never put the other option in play, we truly don't know where the Tenth stands.

Quote:
If true, that would certainly conflict with the philosophy and strategic approach by the CalGuns foundation.
Indeed. The CalGuns bunch doesn't like open carry; they're embarrassed by open carry, and they know open carry in Venice Beach or Haight-Ashbury would scare the tar out of the locals. The CalGuns bunch also really likes permits, and they don't have much use for those of us who want constitutional carry, because they know they're so far from ever seeing that in California that seeking that does them no practical good. Knowing that loaded open carry wouldn't play well at home, or that they just wouldn't want to do it, even if legal, the CalGuns gang set this case up to give them a concealed carry win they could repatriate to California.

As I said earlier, that was a dangerous game of brinksmanship that placed the rights of gun owners across the country at stake and will be a permanent drag on full and unfettered exercise of the Second Amendment beyond the borders of California.

I read the aspirations of the posters in this thread with disappointment. They look at this case and blame the judge or hope plaintiffs will win on appeal or hope that the legal strategy will be burnished and prevail at an en banc appeal or the Supreme Court.

What they don't realize is that this case is not being fully and zealously prosecuted seeking every available argument. Gray and Gene set this case up to try to get a concealed carry permit win they could export to California. This case is only about concealed carry permits in California, not permit-less open carry in Denver. Gray never really convinced the court that his contact with Denver were all that substantial, and he entirely and conspicuously omitted the remedy of open carry in Denver from the case.

It's very likely the Tenth Circuit realized they weren't dealing with honest traders and didn't want to allow their court to be used for tainted motives. Posters here can think the court gave Peterson a raw deal, but I suspect that the court's antennae went up when dealing with him, and I further suspect that this case dies right here.

We gun owners need cases prosecuted with the purest, most passionate and most fully committed parties and lawyers. There are many such cases out there to which gun rights supporters would be better served directing their suggestion and assistance.

Quote:
Originally Posted by Jim Dandy
Most of us likely prefer Concealed of course.
Really? I'd think most gun owners would, of course, prefer open carry.

Last edited by smoking357; February 25, 2013 at 10:34 PM.
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Old February 26, 2013, 01:22 AM   #41
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Quote:
It's very likely the Tenth Circuit realized they weren't dealing with honest traders and didn't want to allow their court to be used for tainted motives
While I don't discount that, and I'm just a layman, there are some incongruities between what it was reported the 10th did, and what the Supreme Court laid down as guidelines- i.e. Rational Basis...

Quote:
Really? I'd think most gun owners would, of course, prefer open carry.
Not me. I'd rather the general public not know what I have, or where I keep it. Not to say I think I should need a permit for it... I don't quite understand why any given person is trusted to own a gun, but not to legally lug the thing around. If you can't trust the guy to walk down the Dollar General with it, how can you trust them to have it period?
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Old February 26, 2013, 04:44 AM   #42
Gray Peterson
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BTW,

Smoking357 posted this gem in the Kachalsky v. Cacace thread:

http://thefiringline.com/forums/show...4&postcount=98

I'll let the rest of you decide if he should be taken seriously or not.

I will echo what Jim March said here (though I'm not sure of I would use the word "fraudulent"):

Quote:
This is what I posted to reddit on the subject:

Well it's worse than that. A lot worse.

First issue is that Gray has both WA state and UT state permits. He lives in WA state. UT allows out-of-state permits, but since WA state doesn't honor CO permits, CO screws Gray purely based on his WA state residency despite his having a UT permit that CO does otherwise honor.

The reason WA state doesn't honor CO permits is because WA state issues to out-of-WA-state residents, at very reasonable prices. CO doesn't issue any permits to non-CO residents, at any price. Gray is being personally punished for his state's take on the issue (even though he has a UT permit!).

Follow? He is being discriminated against for his state of origin - and that is already hard-banned by the US Supreme Court in two previous cases: Ward v. Maryland (1870) and Saenz v. Roe (1999). Both of those cases ban cross-border discrimination by one state against another state's residents, and damned well should have applied here. (These cases are why you never see a speed limit sign that says "in-state license plates 65mph, out-of-state plates 55mph".)

But the even bigger problem is that Gray did something smart: he not only sued the state of CO, he also sued the county where Denver is. See, Denver has a local, special rule that says "no open carry". Anywhere else in CO, it can be argued that Gray's right to bear arms isn't 100% toast because he still has a right to open carry. And in, say, Boulder, that's true. But not in Denver, the biggest town. There, he has zero carry rights because of the combination of no open carry and (for him as a WA state resident) no concealed either.

This 10th Circuit ruling completely ignores this problem, and claims this issue is about concealed carry only. That's a pure and simple lie.

Fortunately this decision will be overturned very soon. The US Supremes will have to confront the issue of street carry soon. There are several different things they can do but there is a strong hint in the Heller decision of 2008 that states will be allowed to decide between concealed carry or open carry (or both if they want) - they will not be allowed to completely write the phrase "bear arms" from the US Constitution as the 10th Circuit just managed to do (and flat-out lie about not doing so).

It's a bizarre and obviously wrong (downright fraudulent) decision but long term it's just a small road-bump.
As an additional thing: The reason why WA doesn't recognize Colorado is that mental health background screenings are not expressly part of the background investigation statute for CO carry licenses.

-Gray

Last edited by Gray Peterson; February 26, 2013 at 04:50 AM.
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Old February 26, 2013, 11:34 AM   #43
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Quote:
they're embarrassed by open carry, and they know open carry in Venice Beach or Haight-Ashbury would scare the tar out of the locals.
I seem to remember open carry in Venice Beach being part of the impetus for banning the very practice. The rules of engagement are different for California than, say, Wyoming.
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Old February 26, 2013, 11:54 AM   #44
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I'm not averse to open carry as a "non-violent" protest to get concealed carry, but given the option, I'd much prefer concealed. I look too much like Dorner- having two legs, two arms, and a head- to prefer an action that could lead to nervous law enforcement when a less contentious? overt? option is available. That's why getting some form of carry recognized as a right is so important. You can use Open Carry to get Concealed Carry once legislators are tired of law enforcement asking them to do something about all of the false calls etc. they're answering.
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Old February 26, 2013, 01:39 PM   #45
maestro pistolero
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Some basic questions for Gray about this case.

1. Why, if the goal was to carry in some form, was a challenge to the Denver's open carry not part of the case?

2. Was the foreclosing (or waiving) of that avenue for relief intentional?

3. Is there a larger strategy in play that allowed for this outcome (even if it can't be disclosed)

Thanks, Gray. Sorry for the loss.
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Old February 26, 2013, 01:53 PM   #46
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Quote:
Originally Posted by smoking357
Really? I'd think most gun owners would, of course, prefer open carry.
Heck no. Those of us who own guns want to choose for ourselves, based on our particular circumstances, which is best.
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Old February 26, 2013, 02:39 PM   #47
maestro pistolero
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It sure seems like the open carry vs. concealed carry issue legal question is due for an update. The archaic idea that concealing weapons is not born of discretion but necessarily is dishonorable, surreptitious behavior is just false.

The societal norm for those exercising the right is clearly to conceal, with (or without, depending on the state) a license.
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Old February 26, 2013, 03:54 PM   #48
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On open carry versus concealed:

First off, the main body of case law regarding "carry" are a series of 19th Century cases that all say "concealed carry can be banned so long as open carry is legal". Most or possibly all of them are listed in Heller's footnote nine.

This logic got repeated very recently in 2003 by the Ohio Supremes in the Klein case. Gunnies sued for CCW permit access without doing the "special deputy" thing. (Officially there was no legal CCW in Ohio - in practice though...)

We "lost" - but in the decision in which we "lost" (quotes are very relevant here!) the Ohio Supremes said "OK, no right to concealed carry but that's OK under the Ohio state constitutional RKBA bit because everybody knows open carry is legal".

Except guess what? NOT everybody knew that. The gun-grabbers all looked at each other and went "oh $^&%" because the usual practice of filing "disturbing the peace" charges just came to a crashing end.

Which caused gunnies to do open-carry rallies that annoyed their way into a reasonable CCW system about a year later.

And that's why the argument between open and concealed carry isn't really important. We have more case law supporting open carry than we do concealed (the Heller footnote 9 cases plus Klein and some others). We now know that if we get open carry, concealed will rapidly follow.

Now, there might be an interesting twist here, one that is specific to New York or Chicago. IF the US Supremes goes the same way as Klein and supports open carry when concealed carry is restricted or banned, and there are huge open carry rallies in New York and Chicago, I believe it is very possible that one of the twitchier members of the NYPD or Chicago PD will shoot somebody. Sorry, but both departments are chock full of crazies and rank only slightly higher than Puerto Rico's state police for overall professionalism. Hold an open carry rally in Times Square or whatever Chicago's equivalent is and one of the "finest" will go stark raving bonkers, law or no law.

And that will lead to a whole new problem: if obeying the law is going to get you killed by what amounts to a criminal gang, do we THEN have an immediate right to concealed carry?

Now...some will take issue with what I'm saying here but...folks, not only is there epidemic corruption in both departments, but they have been systematically programmed against civilian arms. One look at NYC's "stop and frisk" program will tell you that they've also been told to trample the Constitution, by the numbers. Don't make me post a link to Frank Serpico's blog (yeah, he's still alive and actively writing and one guess as to his favorite subject...).

Predicting the results of a sudden RKBA loosening in those towns is not difficult.
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Old February 26, 2013, 06:59 PM   #49
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Quote:
Originally Posted by JimMarch
Now, there might be an interesting twist here, one that is specific to New York or Chicago. IF the US Supremes goes the same way as Klein and supports open carry when concealed carry is restricted or banned, and there are huge open carry rallies in New York and Chicago, I believe it is very possible that one of the twitchier members of the NYPD or Chicago PD will shoot somebody.
I've been saying this for a while. Not so much for New York, but for Chicago. I fear the Chicago political leaders will think a few police-action shootings of gun owners will scare us into not exercising the right. What I don't get is if 400 bad-aim cops fire on 2,000 typically pretty good citizen gun owners, how is this not another Battle of New Orleans? And how does such an exchange not collapse the U.S. dollar and markets, the very next morning, when the rest of the world no longer fears U.S. hegemony?

The political reality is that the United States cannot afford to have such a conflict airing on CNN. Too many of the right people have too much money invested in the status quo to let the millions of citizens who don't about the fiction of finance, leveraged accounts and fractional-reserve banking tear it all down over an issue about which the truly powerful don't care much.

Gun owners have more power than they realize through exercising direct public assembly.

Quote:
Originally Posted by speedrracer
Heck no. Those of us who own guns want to choose for ourselves, based on our particular circumstances, which is best.
Fair enough, so let's knock off this nonsense of trying to force concealed-carry on us.
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Old February 26, 2013, 07:12 PM   #50
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Quote:
Originally Posted by smoking357
....I fear the Chicago political leaders will think a few police-action shootings of gun owners will scare us into not exercising the right. What I don't get is if 400 bad-aim cops fire on 2,000 typically pretty good citizen gun owners, how is this not another Battle of New Orleans? And how does such an exchange not collapse the U.S. dollar and markets, the very next morning, when the rest of the world no longer fears U.S. hegemony?...
Do you have a scintilla of evidence to support that? You must live in a wild fantasy world.

Quote:
Originally Posted by smoking357
Quote:
Originally Posted by speedrracer
Heck no. Those of us who own guns want to choose for ourselves, based on our particular circumstances, which is best.
Fair enough, so let's knock off this nonsense of trying to force concealed-carry on us.
It will be what it will be. So far open carry doesn't seem to be going anywhere in Texas or Florida.

Nonetheless, this is not the thread in which to rekindle the open carry vs. concealed carry debate.
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