Need some 2A help

[Aguila Blanca]

I'm prepping to do battle with my town's town council) about being able to carry a loaded handgun under a State-issued carry permit. Currently there's a town ordinance prohibiting such carry. There's a hearing scheduled for Wednesday evening.

I have a recollection that somewhere in either Heller or McDonald the Supreme Court made the statement that the right to be armed for self defense was the "core" right protected by the Second Amendment. I'm looking through both decisions, and now I can't find that sentence. Does anyone recognize it? Do you happen to know what page it's on?

[g.willikers]

Try here:
https://www.law.cornell.edu/supct/html/07-290.ZO.html
And do a search for the words "defense," "self defense" and the like.
There's plenty of results there you can use.
Hope you have good results Weds night.

[Dreaming100Straight]

Is there any indication that your State in passing its CCW law intended to preempt the field of regulation.

[steve4102]

Is this a Second Amendment issue or a Preemption issue?

[Aguila Blanca]

My state does not have preemption. It's a 2A issue.

I found the paragraph I was looking for in Heller (pp 57-58), and it was cited again in McDonald.

[CWO4USCGRET]

Is this a city-wide ban on concealed carry and a state issued CCW conflict?

I understand the feeling like you're about to "do battle" but try not to enter the "arena like a gladiator!". Go to some of the 2nd Amendment websites and check for similar type issues; explain your position rationally.

Personally I wouldn't limit my position to "self-defense" or one other point - but play it as one of your Constitutional Rights...of keeping and bearing arms...without having to qualify the reason why you carry.

[Aguila Blanca]

Originally Posted by CWO4USCGRET

Is this a city-wide ban on concealed carry and a state issued CCW conflict?

Exactly.

Personally I wouldn't limit my position to "self-defense" or one other point - but play it as one of your Constitutional Rights...of keeping and bearing arms...without having to qualify the reason why you carry.

Several members of the governing body are lawyers, and none of them like guns. I certainly intend to base my presentation on Constitutional grounds,. but the fact is that both Heller and McDonald stated that self defense is the core right protected by the 2A, so that's my strongest argument.

[kilimanjaro]

Both SCOTUS cases said complete bans and the like were not the reasonable regulation for a compelling public purpose the local politicos claimed, and ruled then unconstitutional. Washington DC and Chicago now have concealed carry. Tell them they can either repeal their local ordinance and allow for state-sanctioned CCW permits or be forced into developing their own very expensive set of laws and regulation. Then tell them they will have to defend it in court, and you and others will file pro se suits for the next ten years. Then ask them just how much of the town budget they will spend defending their personal agenda, the people have spoken across the state, the SCOTUS has already preempted your local ordinance, repeal it or face legal challenge.

[DaleA]

Good luck. Please come back and let us know how it turns out.

[357 Python]

Sounds to me that you have 2 fights ahead of you. the first is with your town the second is to push for State Preemption. Right now it sounds as if the town could say that state drivers license and plates are not valid there and set up there own such agency. Sounds almost like the way money was before the Civil War. Each state printed their own currency.

[Finianmac]

If you're going to convince anyone of a need, then you should have crime statistics, demographic statistics, both city and state and also gun oriented crime prevention stats as well.
There's a difference between a right and a need.
Another angle is to know who you're facing so you'll know their background. You may want to taper you presentation based on who you face, their ideology and their political beliefs. Example: if you are facing a majority of women then mold your case with rape stats.

[rwilson452]

Sounds to me that you have 2 fights ahead of you. the first is with your town the second is to push for State Preemption. Right now it sounds as if the town could say that state drivers license and plates are not valid there and set up there own such agency. Sounds almost like the way money was before the Civil War. Each state printed their own currency.

Totally off topic but at one point banks printed their own money. That led to funny money all over the place.

[Aguila Blanca]

Originally Posted by 357 Python

Sounds to me that you have 2 fights ahead of you. the first is with your town the second is to push for State Preemption.

No, I only have one fight. It's expensive enough to fight a small town. I can't afford to take on a state.

[DaleA]

I KNOW I'm incredibly naïve here but it shouldn't cost you anything at all besides your time to 'fight city hall'.

'City Hall' is paid for by us, the citizens and we should be able to take a dispute with 'City Hall' to 'City Hall' and get help from them without having to mortgage our future to do it. The 'City Hall' folk are supposed to be working for all the citizens.

Okay. Naïve rant over.

Good luck.

[NJgunowner]

The problem you're going to have, and lose by, is that Heller didn't specify WHERE you have the right to a firearm. Several people have learned the hard way that many places considered it to mean only in the home, and the courts haven't cleared it up. You aren't going to win this one, especially against a bunch of lawyers who are antigun. They'll bury you with the reasoning that Heller doesn't apply because they don't ban you from owning one in your home and that's what Heller was about... The complete and total ban of handguns.

[Aguila Blanca]

Originally Posted by NJgunowner

that's what Heller was about... The complete and total ban of handguns.

No, that's not what Heller was about. It was a bit more than that. **IF** we approach the municipal governing body on a legal basis, our take-away from Heller will be the language about self defense being the core right protected by the Second Amendment.

However, the hope is that they will just quietly fix the ordinance rather than have to waste taxpayers' money defending a lawsuit in open court.

[zukiphile]

AB, are you not an attorney? I do not recall, but I thought you might have been.

When people in this thread refer to state preemption, I wonder whether this is precisely the issue you face.

In my state, where the Gen. assembly legislates on a matter, local units of government are not prohibited from legislating on that matter so long as their legislation is not in conflict with the general law. That is not true preemption. It just means that subsidiary units of state government are not entitled to make or enforce laws contrary to laws made by that state government.

Sometimes a state will grant a city a charter that permits it to make laws departing from the general laws. It is a complex enough issue in my state to be a recurring matter of litigation.

I don't know whether any of that helps.

[NJgunowner]

On June 26, 2008, the Supreme Court affirmed the Court of Appeals for the D.C. Circuit in Heller v. District of Columbia.[3][4] The Supreme Court struck down provisions of the Firearms Control Regulations Act of 1975 as unconstitutional, determined that handguns are "arms" for the purposes of the Second Amendment, found that the Regulations Act was an unconstitutional ban, and struck down the portion of the Regulations Act that requires all firearms including rifles and shotguns be kept "unloaded and disassembled or bound by a trigger lock." "Prior to this decision the Firearms Control Regulation Act of 1975 also restricted residents from owning handguns except for those registered prior to 1975."[5]

McDonald v. City of Chicago, 561 U.S. ___, ___, 130 S. Ct. 3020, 3050 (2010), the Supreme Court held that the second amendment right recognized in Heller is fully applicable to the states through the due process clause of the fourteenth amendment. In so holding, the Court reiterated that “the Second Amendment protects the right to keep and bear arms for the purpose of self-defense” (id. at ___, 130 S. Ct. at 3026); that “individual self-defense is ‘the central component’ of the Second Amendment right” (emphasis in original) (id. at ___, 130 S. Ct. at 3036 (quoting Heller, 554 U.S. at 599)); and that “[s]elf-defense is a basic right, recognized by many legal systems from ancient times to the present day” (id. at ___, 130 S. Ct. at 3036).[21]

[Aguila Blanca]

Originally Posted by zukiphile

AB, are you not an attorney? I do not recall, but I thought you might have been.

When people in this thread refer to state preemption, I wonder whether this is precisely the issue you face.

Nope, not an attorney.

There is no question that if my state had preemption there wouldn't be a problem with the town's ordinance. But we don't have preemption (except as it may have crept into the fringes through case law decisions), so I'm stuck with taking on the town directly.

[zukiphile]

If this note just makes the issue muddier or is not relevant, feel free to ignore it.

Preemption is an issue with respect to state and federal law because states are independent political units. The federal government can preempt an entire field of law, meaning that a state is not entitled to legislate in that area at all, even if the putative state law is not in conflict with federal law.

Within a state, the state government is the only sovereign, independent political entity, with counties and municipalities existing as administrative subunits.

When you write that your state does not have "preemption", I take you to mean that administrative subunits of the state are entitled to impair the police power of the state with contrary laws.

Sounds like a mess.

NB - looking around a little on the internet, it looks as if it may be that the state specifically crafted its firearm regulation so that municipalities would be entitled to depart from that regulation.

[zukiphile]

If your hearing this evening is an open meeting on the general wisdom of the ordinance prohibiting carry, and your problem is political, then the only genuinely persuasive argument I see is for a lot of people to turn out and voice their displeasure with the prohibition.

Maybe 20 years ago I attended a session of the city council when the topic was a measure to prohibit "assault weapons", a measure supported prior to the meeting by every member of council. For an hour and a half people rose to express their reasoned opposition.

The measure did not pass.

[rwilson452]

When dealing with these political groups one must always remember the first duty of a politician is to get re-elected. everything else is secondary. If they don't get elected they won't have the same ability to advance their agenda and/ or personal fortunes.

[carguychris]

IMHO the previous 2 posts are spot-on, particularly considering that we're talking about LOCAL politics.

Local elections often have minimal turnout, and their outcome may be strongly influenced by a relatively small but well-organized and dedicated single-issue group. Council members are almost always cognizant of this.

Although this sounds cynical (and it is to some degree), council members will be far more impressed by large numbers and apparently solid organization than by well-reasoned arguments presented by only 1 or 2 people. T-shirts and yard signs will go farther than one speaker's knowledge of SCOTUS cases.

[Doc Holliday 1950]

If there is a Federal law that backs up your right to own and/or carry a weapon, then the State and town cannot supersede it.
We got into a row with the Condo Commandos down at our place in Florida
about having a Service dog allowed on the premises. The Association took my neighbor to court and the Judge threw it out immediately stating that no association,town nor State law can super cede Federal law guaranteeing that a Service dog cannot be barred from living in a no dog condo. Hope I said this right.
If so, make sure you got all your ducks lined up and I hope you win.
Doc

[Armed_Chicagoan]

What state is this?