I believe the courts will recognize the right to carry, but the manner of carry will be subject to regulation. And I agree with Antipitas that the public's unease with seeing guns will probably tilt the balance toward concealed carry as the approved method. However, that presents its own set of potential problems. If open carry is generally prohibited, the definition of "concealed" may become more stringent (never show, don't print, etc.).
2A and CCW - May Issue v Shall Issue
- Thread starter gc70
- Start date
I believe the courts will recognize the right to carry, but the manner of carry will be subject to regulation. And I agree with Antipitas that the public's unease with seeing guns will probably tilt the balance toward concealed carry as the approved method. However, that presents its own set of potential problems. If open carry is generally prohibited, the definition of "concealed" may become more stringent (never show, don't print, etc.).
TG: Here's the answer to your question on LEO's degree of involvement in shall issue States. (Sorry, I started another thread before noticing this one. I deleted that one and will put my answer here. 
)
)There's been discussion in another thread about the differences between may issue versus shall issue when it comes to concealed carry.
Tennessee Gentleman ("TG") had commented on may issue and how much some States might actually have, for all intents and purposes, a shall issue procedure even though they call it may issue.
All I can say is how it is in Michigan where I live.
In Michigan, the State has to allow you a concealed carry permit as long as you meet objective requirements.
One of those areas involves a laundry list of infractions that you cannot commit within a certain time period before applying for the concealed carry permit.
This laundry list of infractions is about as long as your arm!!
Anyway, there are 3 year and 8 year categories of prohibiting infractions in Michigan (along with lifetime prohibitions for the usual more serious infractions, plus insanity).
Here's the link to the Michigan application, go down a few pages to where the infractions start.
http://michigan.gov/documents/ri-012_7736_7.pdf
In answer to TG's main question: In Michigan, LEO does not give their personal opinion. The laundry list of infractions covers the prohibitory objective standards for shall issue in Michigan. You meet those standards and the State shall issue a concealed carry permit.
ETA: Now the authorities do investigate you via background checks with the FBI and State/Local criminal records. You are fingerprinted and the FBI runs a check on those prints.
As stated, all of these requirements are objective in nature and, if you meet them, the State shall issue the concealed carry permit.
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As to incorporation, I simply do not see how the fundamental right discussed in Heller and, applied most likely in McDonald under due process, could result in anything but shall issue carrying the day when those cases arise.
I don't think the SCOTUS will make a direct decision on this specific issue but they might offer "clues" as to how that issue will be decided if it comes before them.
The oral arguments did include questions relative to how much of the 2nd Amendment is to be incorporated (i.e., Roberts and Kennedy asked this question directly).
So, at the very least, they will answer that concern IMHO.
But I don't think they will make a final determination as to may issue versus shall issue. (Same for open carry IMHO.) Those issues will be decided specifically in other cases IMHO. I hope I'm wrong!
They might conclude: "From this day forward, incorporation includes all decisions we make relative to the 2nd Amendment at the Federal level as well as the State level."
I say that because the nature of the question asked by Roberts and Kennedy seemed to cover whether cases decided at the Federal level should "automatically" be applied to the States via any incorporation they might approve of.
ETA: Here's the quote from Kennedy I'm relying on (it is basically a repeat of Robert's question).
I don't think the SCOTUS will make a direct decision on this specific issue but they might offer "clues" as to how that issue will be decided if it comes before them.
The oral arguments did include questions relative to how much of the 2nd Amendment is to be incorporated (i.e., Roberts and Kennedy asked this question directly).
So, at the very least, they will answer that concern IMHO.
But I don't think they will make a final determination as to may issue versus shall issue. (Same for open carry IMHO.) Those issues will be decided specifically in other cases IMHO. I hope I'm wrong!
They might conclude: "From this day forward, incorporation includes all decisions we make relative to the 2nd Amendment at the Federal level as well as the State level."
I say that because the nature of the question asked by Roberts and Kennedy seemed to cover whether cases decided at the Federal level should "automatically" be applied to the States via any incorporation they might approve of.
ETA: Here's the quote from Kennedy I'm relying on (it is basically a repeat of Robert's question).
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Except driving isn't a fundamental right. Gun carry is, and will be recognized as such post-McDonald.
There's a reason we don't tax churches - religion is a fundamental personal right. We don't charge extra court fees if you ask for a jury trial - because that's a personal civil right.
See the pattern here?
There's a reason we don't tax churches - religion is a fundamental personal right. We don't charge extra court fees if you ask for a jury trial - because that's a personal civil right.
See the pattern here?
Amen Jim
It cost me $175 when all was done for the 'RIGHT' to put my little revolver in my pocket and go get a jug of milk.
I'm just glad I don't have to pay a fee every time I respond to the local newspaper on the editorial page, or pay a poll tax when I vote, or present papers everytime I cross a state border.
It cost me $175 when all was done for the 'RIGHT' to put my little revolver in my pocket and go get a jug of milk.
I'm just glad I don't have to pay a fee every time I respond to the local newspaper on the editorial page, or pay a poll tax when I vote, or present papers everytime I cross a state border.
Here is the reason that P or I incorporation is important.
The Courts have long recognized the right to travel as fundamental to the ordered Liberty interests of a free people, "In Anglo-Saxon law that right was emerging at least as early as the Magna Carta,” Kent v. Dulles, 357 U.S. 116 (1958).
You guys always argue that no license or registration is needed for a vehicle, unless you drive it on a public road. Not so! “The use of the highway for the purpose of travel and transportation is not a mere privilege, but a common fundamental right of which the public and individuals cannot rightfully be deprived.” Chicago Coach Co. v. City of Chicago, 337 Ill. 221, 169 N.E. 22. See also Stephenson v. Binford, 287 U.S. 251, 264, et al. Whyte v. City of Sacramento, 165 Cal. App.534, 547. Schactman v. Dulles, 96 App DC 287, 225 F2d 938, at 941. Thompson v. Smith, 154 SE 579.
There are literally scores of citable precedent that say travel, in your own private vehicle, for private purposes (not commerce -Wingfield v. Fielder, 2d Ca. 3d 213 (1972), see also 18 USC §31(a)(6) and 18 U.S.C. §31(a)(10)), is a fundamental privilege, a right of Liberty (Adams v. City of Pocatello, 416 P.2d 46, 48; 91 Idaho 99 (1966)) protected by the U.S. Constitution, Art. IV and Amendment XIV.
So when you make such a "common sense" and "reasonable" statement as above, you are, in effect, also saying that, "Yes, you can carry a gun, but the ammunition may be licensed and regulated." You will need a personal license to use any ammunition and you will need to register any purchase of ammunition (or components).
This is one of those reasons for P or I incorporation. There is no fundamental difference between the right to carry and the right to travel.
Of what practical purpose is your right to carry, for self-defense, if your right to travel is restricted? By the exact same logic, of what use is your right to travel, if your right to carry, for self-defense, is restricted?
It isn't? Really?
The Courts have long recognized the right to travel as fundamental to the ordered Liberty interests of a free people, "In Anglo-Saxon law that right was emerging at least as early as the Magna Carta,” Kent v. Dulles, 357 U.S. 116 (1958).
You guys always argue that no license or registration is needed for a vehicle, unless you drive it on a public road. Not so! “The use of the highway for the purpose of travel and transportation is not a mere privilege, but a common fundamental right of which the public and individuals cannot rightfully be deprived.” Chicago Coach Co. v. City of Chicago, 337 Ill. 221, 169 N.E. 22. See also Stephenson v. Binford, 287 U.S. 251, 264, et al. Whyte v. City of Sacramento, 165 Cal. App.534, 547. Schactman v. Dulles, 96 App DC 287, 225 F2d 938, at 941. Thompson v. Smith, 154 SE 579.
There are literally scores of citable precedent that say travel, in your own private vehicle, for private purposes (not commerce -Wingfield v. Fielder, 2d Ca. 3d 213 (1972), see also 18 USC §31(a)(6) and 18 U.S.C. §31(a)(10)), is a fundamental privilege, a right of Liberty (Adams v. City of Pocatello, 416 P.2d 46, 48; 91 Idaho 99 (1966)) protected by the U.S. Constitution, Art. IV and Amendment XIV.
So when you make such a "common sense" and "reasonable" statement as above, you are, in effect, also saying that, "Yes, you can carry a gun, but the ammunition may be licensed and regulated." You will need a personal license to use any ammunition and you will need to register any purchase of ammunition (or components).
This is one of those reasons for P or I incorporation. There is no fundamental difference between the right to carry and the right to travel.
Of what practical purpose is your right to carry, for self-defense, if your right to travel is restricted? By the exact same logic, of what use is your right to travel, if your right to carry, for self-defense, is restricted?
Right back at ya, Jim!
Tennessee Gentleman
New member
Piling on,
Really? Let the preacher repeatedly support a particular candidate for President or refuse to allow people of a particular race to attend their "church" school and see how fast that tax exemption goes away! Religion and churches ain't the same.
As to P&I, anyone read the Geroge Will commentary today?
Here is it: http://www.washingtonpost.com/wp-dyn/content/article/2010/03/05/AR2010030502873.html
Jim March said:
Really? Let the preacher repeatedly support a particular candidate for President or refuse to allow people of a particular race to attend their "church" school and see how fast that tax exemption goes away! Religion and churches ain't the same.
As to P&I, anyone read the Geroge Will commentary today?
Here is it: http://www.washingtonpost.com/wp-dyn/content/article/2010/03/05/AR2010030502873.html
Tennessee Gentleman
New member
RDak said:
The question for the court would be IMO can there be constitutional descretion that is objective but allows for CLEO subjectively to deny a permit.
I guess that sounds like a square circle but is this an all in or out proposition?
Can descretion be allowed within a range of obejctive measures? Or would the court take the rigid checklist approach and insist that if one meets A,B,C criteria give them the permit? Would that lead states to then create A-ZZZ criteria instead of A,B,C?
The legal treatment of religion is interesting, because core aspects of religious freedom are protected beyond strict scrutiny.
Volokh's paper discussing strict scrutiny could suggest that the attempts by Stevens and Breyer to bifurcate the RKBA might result in some beneficial recognition of a "core" 2A right that would even transcend the normal rules of strict scrutiny.
Note that the Heller decision left no room to absolutely ban handguns in the home, even if a ban could otherwise be structured to meet the tests of strict scrutiny: "But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home."
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Tennessee Gentleman
New member
gc70 said:
Does that extend to the tax code? I don't think churches have a "right" not to be taxed but maybe the courts say otherwise but I think only Congress has provided for such. Wasn't that decided with the Native American case and peyote?
Also, do you believe that the court will look at public carry in the same way it looked at keeping a handgun in the home? Does the home receive special treatment that public activity might not?
Of course not. The important factor is the "core" aspect of religious freedom, which is clearly not the tax status of churches.
The home received special treatment in Heller because it was the easiest case to make. While the court would not arbitrarily set out to declare a sweeping position on carry in McDonald, the court's opponents to RKBA may force (or provide the opportunity for) the majority to implicitly address bearing arms.
(more later - off to the range)
Tennessee Gentleman
New member
But hasn't the home received special treatment especially in common law? Isn't the potential impact on the public quite a bit more with public CCW than simply the right to possess one in your home? I think the courts might think so?
When comparing the right to carry to freedom of speech or freedom of travel, there are certain details that I think many forget, these other rights are allowed to be restricted, taxed, or outright denied only in certain venues and only when another venue is available.
For example, certain licenses and fees are typically required to operate a radio or television station, print a newspaper, or have a public demonstration. However, these requirements do not exist when we talk about writing a letter to the editor or posting comments on a website.
Likewise, licensing and taxes are permitted when obtaining the right to operate an automibile on public roads or when registering said automobile for such usage. However, no license nor tax is needed for many other methods of transportation. I need not obtain a license to hail a taxi, buy a train ticket, or ride a bicycle nor am I directly taxed for these activities (I may pay sales taxes, but these are imposed on the cab company, rail company, or bike retailer and passed on to me by those parties).
Another historical note that has bearing on the discussion is whether ccw licensing will be viewed as a tax law. Remember, the NFA was allowed to stand under Miller because SCOTUS labeled it as a tax law rather than a firearms law, no firearms were actually banned by the NFA they were just taxed very heavily. Also, the NFA only restricted and taxed very specific types of arms and left others alone. SCOTUS noted in Miller that 2A protection extended only to arms that were "particularly suitable and in common use by the militia" and that NFA weapons did not fall into this category. However, this would seem to imply that arms fitting that description would be constitutionally immune to such regulation and tax. Such restriction and tax of all types of arms would be extremely unlikely to pass constitutional muster.
The right to carry is somewhat different in that there are only two venues in which it may be exercised: concealed or openly. If the same standards are applied to it that are applied to freedom of speech and freedom of travel, then I can only see taxes and/or excessive regulation standing only if it is applied to one venue and not the other. Because of this, I can only really see "may issue", at least in the New York/Califoria style, standing if open carry is allowed. If we apply the Miller definition of arms to bear, we get the following: the protection of the Second Amendment extends only to methods of arms-bearing in common use and suitable for the militia. That definition would seem to best fit open carry thusly leaving concealed carry vunerable to regulation and tax. However, the Miller definition may not be applicable since Heller seems to have disconnected the militia from the right beyond an explanation for its enumeration (on a side note, I find the degree to which Miller and Heller seem to be able to contradict without invalidating each other to be quite interesting).
In any case, no changes in carry laws will come from McDonald unless SCOTUS specifically addresses that issue or goes the P&I route, which I have doubt that they will. The current court, or at least the conservative majority, seems to be interested in dealing as specifically as possible with the issue at hand (this is why McDonald is even necessary in a post-Heller world), and carry is not part of the issue at hand. I suspect that this attitude is in response to conservative complaints in recent years about "Judicial Activism" and "Legislating from the Bench". In that vein of thought, I think the percieve hostility to P&I incorporation stems from this: Due Process allows the majority to incorporate 2A without ruling on anything else. Simply put, the court seems to want to rule only on one issue at a time.
For example, certain licenses and fees are typically required to operate a radio or television station, print a newspaper, or have a public demonstration. However, these requirements do not exist when we talk about writing a letter to the editor or posting comments on a website.
Likewise, licensing and taxes are permitted when obtaining the right to operate an automibile on public roads or when registering said automobile for such usage. However, no license nor tax is needed for many other methods of transportation. I need not obtain a license to hail a taxi, buy a train ticket, or ride a bicycle nor am I directly taxed for these activities (I may pay sales taxes, but these are imposed on the cab company, rail company, or bike retailer and passed on to me by those parties).
Another historical note that has bearing on the discussion is whether ccw licensing will be viewed as a tax law. Remember, the NFA was allowed to stand under Miller because SCOTUS labeled it as a tax law rather than a firearms law, no firearms were actually banned by the NFA they were just taxed very heavily. Also, the NFA only restricted and taxed very specific types of arms and left others alone. SCOTUS noted in Miller that 2A protection extended only to arms that were "particularly suitable and in common use by the militia" and that NFA weapons did not fall into this category. However, this would seem to imply that arms fitting that description would be constitutionally immune to such regulation and tax. Such restriction and tax of all types of arms would be extremely unlikely to pass constitutional muster.
The right to carry is somewhat different in that there are only two venues in which it may be exercised: concealed or openly. If the same standards are applied to it that are applied to freedom of speech and freedom of travel, then I can only see taxes and/or excessive regulation standing only if it is applied to one venue and not the other. Because of this, I can only really see "may issue", at least in the New York/Califoria style, standing if open carry is allowed. If we apply the Miller definition of arms to bear, we get the following: the protection of the Second Amendment extends only to methods of arms-bearing in common use and suitable for the militia. That definition would seem to best fit open carry thusly leaving concealed carry vunerable to regulation and tax. However, the Miller definition may not be applicable since Heller seems to have disconnected the militia from the right beyond an explanation for its enumeration (on a side note, I find the degree to which Miller and Heller seem to be able to contradict without invalidating each other to be quite interesting).
In any case, no changes in carry laws will come from McDonald unless SCOTUS specifically addresses that issue or goes the P&I route, which I have doubt that they will. The current court, or at least the conservative majority, seems to be interested in dealing as specifically as possible with the issue at hand (this is why McDonald is even necessary in a post-Heller world), and carry is not part of the issue at hand. I suspect that this attitude is in response to conservative complaints in recent years about "Judicial Activism" and "Legislating from the Bench". In that vein of thought, I think the percieve hostility to P&I incorporation stems from this: Due Process allows the majority to incorporate 2A without ruling on anything else. Simply put, the court seems to want to rule only on one issue at a time.
Jim, it is my understanding that the LDS church did not finance prop 8. Individual Mormons did. That is different than the church itself doing the financing or if the religious leaders imposed some sort of sanction to those members that did not finance. Of course, if either of those can be proven....
As for taxing a church, the congress (or State legislators) could certainly do so, by changing the laws. How far do you think they (legislators) would get, if they did? <- Yeah. Rhetorical question, as we all know the answer.
As for taxing a church, the congress (or State legislators) could certainly do so, by changing the laws. How far do you think they (legislators) would get, if they did? <- Yeah. Rhetorical question, as we all know the answer.
More on:
Public carry is not viewed, by the population or the law, the same as keeping a handgun in the home. To some extent, the latitude that can be exercised in self-defense progresses from someone else's property, to neutral ground, to your property, and finally to your home - your "castle" or final refuge. But that is a question of the application of the right. I am more interested in the scope of the right.
McDonald presents no question about carry, so the Court would normally not address the issue. However, Stevens' theory of "core" versus non-core aspects of a right may open an unanticipated topic for the Court to consider. Stevens posed the following question during oral arguments:
If Stevens writes a dissenting opinion that includes the concept that keeping a gun at home is more important, and subject to greater legal protections, than carrying a gun away from home, he will have introduced the topic of carry, or more broadly the meaning and importance of "bear." Once the topic is introduced, the majority will have the chance, and will nearly be obliged, to refute that view of the scope of the Second Amendment.
The decision in Heller covered both the "keep" and "bear" aspects of the Second Amendment:
The opponents of RKBA in McDonald appear to have ceded the "keep" aspect of the Second Amendment, but are testing the waters to challenge the "bear" aspects of the Amendment. If they mount that challenge in a dissenting opinion, it will present the majority with a reason to further explain the scope of "bear," which could have reasonably direct and positive implications for concealed carry.
Public carry is not viewed, by the population or the law, the same as keeping a handgun in the home. To some extent, the latitude that can be exercised in self-defense progresses from someone else's property, to neutral ground, to your property, and finally to your home - your "castle" or final refuge. But that is a question of the application of the right. I am more interested in the scope of the right.
McDonald presents no question about carry, so the Court would normally not address the issue. However, Stevens' theory of "core" versus non-core aspects of a right may open an unanticipated topic for the Court to consider. Stevens posed the following question during oral arguments:
If Stevens writes a dissenting opinion that includes the concept that keeping a gun at home is more important, and subject to greater legal protections, than carrying a gun away from home, he will have introduced the topic of carry, or more broadly the meaning and importance of "bear." Once the topic is introduced, the majority will have the chance, and will nearly be obliged, to refute that view of the scope of the Second Amendment.
The decision in Heller covered both the "keep" and "bear" aspects of the Second Amendment:
The opponents of RKBA in McDonald appear to have ceded the "keep" aspect of the Second Amendment, but are testing the waters to challenge the "bear" aspects of the Amendment. If they mount that challenge in a dissenting opinion, it will present the majority with a reason to further explain the scope of "bear," which could have reasonably direct and positive implications for concealed carry.
Now let's factor in something else. The Palmer case just got argued at the DC district court level, suing for carry rights. The betting line is that we'll win despite a somewhat anti-gun judge...basically there's no way to rule otherwise. And that decision is due inside of a month or two.
DC might appeal it, or they might not. Either way, it would be possible for the decision to get positive mention in the McDonald final decision, which in turn could make further appeals in Palmer somewhat moot. Esp. if the McDonald decision is along a strong majority of 6-3 or more, which in turn is possible if the "Liberal 4" decide to do PorI and get one of the Heller 5 (Thomas?) to go along.
In other words, if a good decision in Palmer gets a positive cite in McDonald, we could see an *immediate* shift...if it's good enough, a next-day load open carry rally in Times Square.
DC might appeal it, or they might not. Either way, it would be possible for the decision to get positive mention in the McDonald final decision, which in turn could make further appeals in Palmer somewhat moot. Esp. if the McDonald decision is along a strong majority of 6-3 or more, which in turn is possible if the "Liberal 4" decide to do PorI and get one of the Heller 5 (Thomas?) to go along.
In other words, if a good decision in Palmer gets a positive cite in McDonald, we could see an *immediate* shift...if it's good enough, a next-day load open carry rally in Times Square
.