Posted on 02/15/2014 7:07:26 AM PST by rktman
On February 13th, a three-judge panel of the Ninth U.S. Circuit Court of Appeals struck down California's requirement that citizens applying for concealed carry show "good cause" for keeping a handgun on their persons. Later in the day, the Brady Campaign to Prevent Gun Violence responded by labeling the ruling a "legal error" and expressing hope that "the entire Court" will correct the "mistake."
(Excerpt) Read more at breitbart.com ...
That is what we are fighting for, the restoration of State respect for the right.
The right pre-exists the State and cannot therefore be "restored"; it can only be violated. What we seek is to end said violation by restoring State respect for the right.
Yeah, picky, picky, picky. :-)
I'm only half done reading the Peruta decision. It does seem as if the historical analysis, using the same methodology as Heller, establishes that the core right is to carry defensive arms openly.
There does seem to be some "tradition" to disallowing the bearing of concealed arms. More recently, concealed carry has become the preferred means, as it doesn't frighten the easily intimidated. It will be a giant win for us if the core right of open carry is restored and the public prefers concealed carry. For the most part we will be able to have our cake and eat it too.
Obviously, if one is traveling and having to handle one's luggage at various points along a route of travel, it is much more practical to call on a concealed handgun rather than an openly carried long gun.
That would be consistent with both the nature of the weapons at the time and the idea of a citizen militia.
It will be a giant win for us if the core right of open carry is restored and the public prefers concealed carry. For the most part we will be able to have our cake and eat it too.
I don't like CCW laws because they are equivalent to gun-owner registration, but with a magnetic effect.
The CA DOJ standard application requires statement of good cause. Each county sheriff is allowed to use their own discretion in interpreting what is or is not good cause.
This ruling voids the statewide template, but still leaves the discretionary powers of the sheriff largely intact.
Kalifornia has been registering every new handgun purchased for as long as I have been a gun owner. Even private party transfers of handguns are registered. At such time as I apply for a CCW, I intend to inquire as to what arms I have that are already registered with the state.
I have just finished reading Peruta. The dissent is actually pretty compelling in many of its points. Most convincing, I think, is the following:
"If carrying concealed firearms in public falls outside the Second Amendment’s scope, then nothing—not even California’s decision to restrict other, protected forms of carry—can magically endow that conduct with Second Amendment protection."
The only argument I can muster against the evidence that there is a long-standing tradition of various jurisdictions banning concealed carry, is that, if our Founders had wanted such restrictions, they could have said so. They certainly weren't shy about detailing how reasonable searches and seizures can be carried out.
The majority opinion seems to ignore the fact that their decision effectively eliminates the protection of the Second Amendment for the bearing of non-concealable arms.
The dissent also does explicitly claim that the state was not afforded its opportunity to defends its regulatory "scheme", given that the majority found the way it did because of the outlawing of open carry.
I fear that we have not heard the end of this by far. I can easily imagine an overturning of this decision en banc and the Supreme Court refusing cert due to the non-involvement of the state.
Much disagreement has been generated by the "open-carry" crowd. Those most interested in getting concealed carry permits considered the open-carry demonstrations to be counter-productive. The truth may turn out to be that only open carry is protected and only an open-carry suit will arrive at the proper resolution. Once open carry is protected, I believe that "shall-issue" concealed carry will follow quickly.
Courts don't like it when the obvious aspects of their decisions are ignored.
Given the Peruta decision, there is no county in Kalifornia which can now reject an application for lack of "good cause". The court didn't simply decide that you have a right to a permit if you wish to defend yourself. They stated that you have a right to defend yourself, and that a permit must be issued lacking any other criteria for rejection.
It's a subtle distinction, but will stop counties from engaging in word games. If you are carrying a not-quite large enough sum of money and put that down as your reason, does that mean that you can't protect your life with the gun and thus should be rejected? I don't think so.
The reality is that the Sheriff's discretion involving "good cause" is pre-empted by this decision. He cannot decide that "self-defense" alone is insufficient, and I don't believe that he can reject any other purpose that could conceivably include an element of self-defense.
Sadly so.
This is a very insightful paragraph, one that distills what I have long felt to be the correct path to redressing the systematic violation of the right to armed self-defense in California:
Much disagreement has been generated by the "open-carry" crowd. Those most interested in getting concealed carry permits considered the open-carry demonstrations to be counter-productive. The truth may turn out to be that only open carry is protected and only an open-carry suit will arrive at the proper resolution. Once open carry is protected, I believe that "shall-issue" concealed carry will follow quickly.
No doubt, the OC crowd have been jerks about it, and there is nothing to be gained politically in rubbing people's noses in their baseless fears. Yet it does represent the truest interpretation of civilian law enforcement as echoed in the combination of the Second and Third Amendments. Effectively, the three million unionized LEOs we have in this country operate to the contrary, effectively constituting the standing army internal to the US the Founders feared.
If you haven't read Balko's book on the topic, it's worth the time.
When California effectively banned open carry, I called my SO about the following problem: I live in a rural area. I wear my pistol for self-defense against coyotes, mountain lions, and wild boar. My property line goes down the center of the County road. If I walk back to my house carrying my loaded pistol on my side of said public road while still on my property, am I in violation of this law?
They got a good chuckle out of it and told me that the spirit of the law supported my interpretation.
This is how we should be educating people, not what the OC crowd was doing.
Now, to your main point...
"If carrying concealed firearms in public falls outside the Second Amendment’s scope, then nothing—not even California’s decision to restrict other, protected forms of carry—can magically endow that conduct with Second Amendment protection."
The original Constitution placed firearms regulation completely at the discretion of the States. There was to be no Federal protection for the individual preexisting right. The States would rightly have feared the Feds exerting such a preemptive power of enforcing the right against the States. It is only since the 14th Amendment that gun owners, desperate to deal with outrageous State violations of their civil liberties, sought Federal protection against their States, to which I am on record saying, 'Be careful what you wish for.' "A well regulated militia" was to be the equivalent of a State army, where the men in said militia received "regular" practice and drill under the command of the governor. Effectively, the leftist, 'that's the National Guard' does have historic merit but for its systematic exclusion of any acknowledgement of the right to self-defense as pertaining to those not so regularly engaged. But remember, said right to self-defense is not mentioned in the Constitution. Accordingly, I have felt that Natural Law competition and Federalism was a better answer in the long run than going to SCOTUS, particularly because I fear what the Feds will do pursuant to the treaty power as it is currently interpreted. I think you've considered what I've had to say about that, but if not, they're here and here.
As does mine. It's not something I've challenged. As they say, "You can beat the rap but you can't beat the ride."
That's why I called the SO to get them to ask the question first, and this is Santa Cruz. They said 'As a matter of the spirit of the law, it looks like you are within your rights.'
Surprisingly, some of the quotes in the Peruta decision seems to indicate that the idea that the Second Amendment, unlike the First Amendment, only applied to the federal government isn't quite clear.
The Dred Scott decision is one: "It would give to persons of the negro race, ...the right to enter every other State whenever they pleased, ...to sojourn there as long as they pleased, to go where they pleased ...the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went.
There's no suggestion here that any state would be infringing the right to keep and bear arms of their citizens, though there is a suggestion that freedom of speech might be subject to state limitations.
Was it ever the case that the Fourth Amendment requirement for warrants didn't apply to the states? After all, the First Amendment explicitly states "Congress shall make no law ...", whereas the Second states, "shall not be infringed".
In all the reading of court decisions that I have done I don't recall ever reading in early decisions that persons could only keep or bear subject to state laws. But, of course, they didn't have those dreaded pistol grips that one needs in order to shoot up a school.
In my entire reading of the Federal Convention debate I don't recall noting discussion of the the right to keep and bear arms. My understanding of the young Mr. Madison's character is that acts of government to violate the tenets of the Fourth or Second Amendments would be so unconscionable as to have not required contemplation but for the objections of the anti-Federalists. Later in life he got the idea. More importantly to the long term is the point that I have implied, that the power to enforce protection of a right is the power both to define its scope and to violate it. The more we concentrate that enforcement power, the more peril of irreversibility we face when (not if) human covetousness demands that freedom be curtailed.
In sum, I don't think the distinctions in the scope of of application re one amendment versus another was a major concern to the founders as they were more focused upon getting the States to go along with the idea of creating a Federal government with enforcement powers in the first place.
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