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Old August 31, 2012, 10:16 PM   #32
Charles Nichols
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Join Date: April 23, 2012
Posts: 20
"In Heller, the Court explained that "the right secured by the Second Amendment is not unlimited" and noted that "the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under Second Amendment or state analogues." 128 S. Ct. at 2816. We have interpreted this portion of Heller as stating that "laws prohibiting the carrying of concealed weapons" are an "example[] of 'longstanding' restrictions that [are] 'presumptively lawful' under the Second Amendment." United States v. Rene E., 583 F.3d 8, 12 (1st Cir. 2009) (quoting Heller, 128 S. Ct. at 2816-17 & n.26); see also Robertson v. Baldwin, 165 U.S. 275, 281-82 (1897) (observing that "the first 10 amendments to the [C]onstitution" protect rights that are "subject to certain well-recognized exceptions" and stating, in dicta, that the Second Amendment right "is not infringed by laws prohibiting the carrying of concealed weapons")" - Hightower v Boston
If this sounds familiar, the 10th Circuit Court of Appeals said the same thing in the oral arguments for Peterson v LaCabe. It doesn't take a crystal ball to predict that the court will affirm the lower court decision and if Peterson wants to challenge Denver's Open Carry ban he will have to file a new case and "clearly say so."

In the 9th Circuit Court of Appeals, Richards and Peruta are doomed not only because of the clear dicta in Heller (and Robertson and McDonald) but because of defects in the cases unrelated to the Second Amendment (a Facial challenge in the case of Richards and no challenge in the case of Peruta). Regardless, the 9th Circuit hasn't been reluctant to apply the dicta to Heller in many cases, published and unpublished.

In the 7th Circuit Court of Appeals, Moore v. Madigan has an as-applied challenge to a statute which has a subsection which does not differentiate between concealed or open carry. Shepard v. Madigan doesn't say whether their complaint is mounting a Facial or As Applied challenge, nonetheless it also challenges Illinois statute 720 ILCS 5/24-1(a)(10) which does not differentiate as to open or concealed carry. The oral arguments went well but Judge Posner's running battle with Scalia is a wildcard. In any event, neither of them rolled the dice on a pure concealed carry challenge.

In the 2nd Circuit Court of Appeals, a lawyer I know who works for the California Senate has confirmed that the earlier posts on the oral arguments for Kachalsky v. Cacase were accurate. The quote from the Obama judge about not needing a license surprised me. That said, it is still a concealed carry case and we are likely to have the 10th Circuit decision in Peterson affirming the concealed carry dicta in Heller (and Robertson) before Kachalsky is decided. Why would the 2nd Circuit create a split on concealed carry?

FYI, the California Court of Appeals just affirmed California's longstanding prohibitions on concealed carry is a decision published on Tuesday (People v. Mitchell, Cal: Court of Appeal, 4th Appellate Dist., 1st Div. 2012). There was nothing surprising about the decision, the California Courts have been saying the same thing about concealed carry since the 19th century. The California court did extensively cite Heller:

"However, the Heller court recognized that the right to bear arms in self-defense, like most constitutional rights, is not unlimited. (Heller, supra, 554 U.S. at pp. 595, 626.) "[T]he right [is] not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose." (Id. at p. 626, italics added.) Of particular relevance here, the Heller court commented that the majority of 19th-century courts held that "prohibitions on carrying concealed weapons were lawful under the Second Amendment. . . ."" - People v. Mitchell
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