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Old November 10, 2011, 05:07 PM   #1
Al Norris
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,550
Kachalsky v. Cacase - NY Carry - Cert Filed

We haven't had a separate thread on this case. In light of the opening brief to the 2nd Circuit (posted in the 2A Current Cases thread), I thought I would share some thoughts I have already posted to CalGunsNet and MDShooters (in slightly different forms).

What I am about to say, is going to infuriate some of you. Be that as it may, what I'm about to say is the current state of our system of Constitutional Law.

One of the State cases that is almost always used, as part of the bulwark of the Plaintiffs cases, is In re Brickey. It has not been much explained or expanded upon, as the courts were expected to have read that decision, when referenced (it is very, very short).

This is an Idaho Supreme Court case from back in 1902. At that time, the relevant portion of the Idaho Constitution read: The people have the right to bear arms for their security and defense, but the legislature shall regulate the exercise of this right by law.

When confronted with a case wherein all deadly weapons were banned in cities, the Court took notice of both the Federal Constitution and Idaho's Constitution. They reasoned that while a legislature may regulate the manner of carry (bearing arms), no legislature could pass laws which utterly banned carry. Our Court properly reasoned:

Under these constitutional provisions, the legislature has no power to prohibit a citizen from bearing arms in any portion of the state of Idaho, whether within or without the corporate limits of cities, towns, and villages. The legislature may, as expressly provided in our state constitution, regulate the exercise of this right, but may not prohibit it.
That's pretty strong stuff. It was however, tempered with the following:

A statute prohibiting the carrying of concealed deadly weapons would be a proper exercise of the police power of the state. But the statute in question does not prohibit the carrying of weapons concealed, which is of itself a pernicious practice, but prohibits the carrying of them in any manner in cities, towns, and villages. We are compelled to hold this statute void.
This post-bellum decision is completely in accord with the antebellum cases cited by the Heller Court: Nunn; Andrews; Reid and Chandler. This decision puts the lie to the three post-bellum cases that were used to start the "collective rights" theory that has plagued us until the decision in Heller.

All of this is in complete agreement with Prof. Michael O'Shea's latest paper, Modeling the Second Amendment Right to Carry Arms (I): Judicial Tradition and the Scope of ‘Bearing Arms’ for Self-Defense.

Everyone who has been critical of what and why Alan Gura does what he does, needs to thoroughly understand not only what those cases above were saying, but the hurdles Alan has had to jump through, in order to overcome this post-bellum thinking, that still pervades the judiciary and the legislatures, despite what the Heller Court has said.

We have a right to carry functional arms for self defense (in or out of the home). We do not have a right to carry whatever we decide, whenever we decide or even how (open or concealed) we decide. Those questions (if they are indeed questions), were decided very early in our Republic. Legislatures can, do, and will regulate the manner and form of carry. They can do this in complete harmony with constitutional protections of the right to carry.

Such regulation may ban certain forms of carry. But under our Federal Constitution, they cannot defeat all forms of carry. State Constitutions, indeed, State legislatures may provide for greater flexibility (and several do), but not less.

Should the States require a license or permit, it is within its police powers to so require. What is not within those powers is to make the bar so high, that it precludes the common citizen from obtaining that license or permit.

Now the part that will really infuriate some of you.

So-called Constitutional Carry, isn't. Never was and is more than likely never to be. The fact that 4 States have allowed this is not to say that it will meet a constitutional standard for those that don't allow it. Even if all 50 States allowed it, the fact remains that each States legislatures can regulate carry to some (as yet unknown) extent.

State v. Rosenthal? Vermont is an outlier here. It is very much the exception to the rule. An aberration, if you will, as no other State Supreme Court has ever ruled so broadly.

This is what Alan Gura is doing. He is expounding upon what the Court in Heller actually said. He is much more serious in this brief than in his previous writings. If you have read this brief, you will not find the "zingers" that have been his trademark writing (well, to be honest, there were two, but thinly disguised).

His Kachalsky brief is the best he has written yet, to explain what the States can and can't do.

The case that most resembles Kachalski would be Woolard.

That case is currently under submission for cross motions of summary judgment. Judge Legg was very well informed (I'm told by those that were there) at the motions hearing. Most expect a somewhat, if not outright, favorable ruling. But I would think that Judge Legg would do well to read Alan Gura's brief to the 2nd Circuit, before he renders his decision in Woolard, as this is going to be how Alan Gura will attack anything unfavorable from Judge Legg.
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