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For gun enthusiasts, the Second Amendment is the Holy Grail, a constitutional right to, to ... to WHAT, exactly?

... and there's the rub. Despite having dozens of opportunities in the six years since its decision in DC v. Heller, the Supreme Court has not extended the Second Amendment right beyond allowing an operable handgun for self defense in one's home.

Drake v. Jerejian offers the Court its fourth opportunity in a year to decide whether states must allow civilians to carry handguns in public.

This morning was Drake's third listing on the Court's conference calendar. Results may be announced on Monday, or not, or it could be listed yet again.

 

If these walls could talk, what tales they'd tell ...
Here, the US Supreme Court decides what cases to take and how it will decide them.
For details of the case, the issues and the arguments, unravel the squiggle ... and come on down below!

Disclaimer. This is general information on a law topic. Nothing in this diary constitutes legal advice and it is not to be acted upon as legal advice. If you need advice, get it from a skilled professional.
The Facts.  John Drake carries cash as part of his ATM service business and he would also like to carry a handgun. Finley Fenton is a reserve sheriff's deputy who wants to carry a gun for self-protection while he is off duty. Other individual plaintiff/applicants were also denied permits. Two gun advocacy groups are also named plaintiffs - the Association of New Jersey Rifle and Pistol Clubs and the Second Amendment Foundation.

The defendants are New Jersey officials who refused the permit applications and two Superior Court judges who upheld those decisions.

Seven more gun advocacy groups, most of whom have routinely filed in recent carry cases, filed amicus "friend of the court" briefs supporting the plaintiffs.

New Jersey Law.  New Jersey is a "May Issue" state, one of about a dozen whose officials grant or deny gun carry permits under a broad standard such as a showing of need or good cause. (Unlike 43 states, New Jersey's constitution does not have a version of the Second Amendment. A majority of states have "Shall Issue" laws which require officials to grant a carry permit if certain statutorily specified conditions are met, such as demonstrations of safety awareness and maybe a background check. A few states have no permit requirements at all.)

Title 13: Chapter 54-2.3 Criteria for the issuance of a permit to carry a handgun.

(a) No application for a permit to carry a handgun shall be approved by a police chief of a municipality, the Superintendent or the Superior Court, unless the applicant:

1. Is a person of good character who is not subject to any of the disabilities ... as provided in this chapter;
2. Has demonstrated that at the time of the application for the permit he or she is thoroughly familiar with the safe handling and use of handguns; and
3. Has demonstrated a justifiable need to carry a handgun. (italics added)

Issues According to Plaintiffs. Plaintiff/applicants say the case presents two Second Amendment issues: (1) Is there a constitutional right to carry a handgun outside one's home for self-defense? (2) Can the state of New Jersey require those who seek a permit to carry a handgun to prove a justifiable need?

Plaintiffs argue that because New Jersey carry permits must be renewed every two years and officials grant only about 1200 carry permits in that two-year period, the law is tantamount to no public carry rights at all.

Plaintiffs' lawyer is Alan Gura, a well-known Second Amendment specialist who successfully argued the Heller and McDonald cases at the Supreme Court. Gura has been quoted in the New Jersey Herald as saying, "Drake is about a state thumbing its nose at Supreme Court decisions that said the Second Amendment is about carrying in case of confrontation.” He added: “This is about the Supreme Court enforcing what they have already pronounced.”

I respect Mr. Gura's arguments in the courtroom, but that statement to a reporter is hyperbole. In the Heller and McDonald cases, the Supreme Court explicitly limited its rulings to a handgun for self-defense in one's home, and that has been the settled law for almost six years. And New Jersey's judges and public officials have shown no disrespect at all for the US Supreme Court in their rulings against Drake and the other applicants.

The Issue and Argument of Defendants.  New Jersey allows public carry, albeit that it severely restricts it. It contends only the second question is before the Court - the justifiable need aspect - and that is a question settled by New Jersey's long-standing policy to restrict for public safety reasons public carry of firearms in civilian hands.

As the Third Circuit Court of Appeals stated:

It is New Jersey’s judgment that when an individual carries a handgun in public for his or her own defense, he or she necessarily exposes members of the community to a somewhat heightened risk that they will be injured by that handgun. New Jersey has decided that this somewhat heightened risk to the public may be outweighed by the potential safety benefit to an individual with a “justifiable need” to carry a handgun. Furthermore, New Jersey has decided that it can best determine when the individual benefit outweighs the increased risk to the community through careful case-by-case scrutiny of each application, by the police and a court.
The opinions of the District Court and Court of Appeals can be found as appendices to Drake's Petition for Certiorari.

The NRA's View.  In its amicus filing, the NRA claims the first question totally resolves the case - that carry being a constitutional right, the state can't require any showing of need. Such an absolutist view would go farther even than the Heller case where the Supreme Court allowed room for a host of "presumptively lawful regulatory measures."

Drake's Petition for Certiorari.  This is a request to bring the record from the court below to SCOTUS.  "Cert" is granted if four of the nine Supreme Court justices vote for it in conference. If granted, briefs would be filed on the merits over the next several months and oral arguments would be scheduled for next fall.

More than 8000 cert requests are made during each nine month term but the Court grants argument for only about 80 cases. With only the rarest exceptions, no justice publicly discusses why the Court did or didn't choose to hear a case.

What considerations bear on granting cert? Typically, the most compelling is that lower Federal courts (and perhaps state courts, too) are divided, as they certainly are on the carry issue. Nevertheless, SCOTUS declined to take three cases on public carry within the last year: (1) Kachalsky v. Cacace challenging New York's "proper cause" standard. (2) Woollard v. Gallagher, a challenge to Maryland's permit law that requires a "good and substantial reason"; and (3) NRA v. McCraw from Texas, which also raised the issue whether the state could properly bar 18-20 year olds from buying a gun.

The argument against "May Issue" in Kachalsky and Woollard, as it is in Drake, was that the strict administration of the requirement for cause is equivalent to granting virtually no permits at all. There are other issues as well - how demanding the standard should be for judging "May Issue" laws, for example - but the threshold question is whether there is a Second Amendment right to carry in the first place.

Other Cases Coming.  Is SCOTUS's past pattern of not accepting carry cases necessarily a prologue? Other carry cases are coming through the Federal court pipeline. Possibly these have a bearing on what - and when - the Supreme Court will act on Drake.

Next to come for review is likely to be Peruta v. County of San Diego. California law allows each city and county to interpret the state's "good cause" standard for issuing concealed carry permits as it chooses. San Diego County took a restrictive approach, requiring elaborate documentation and the showing of "a set of circumstances that distinguish the applicant from the mainstream and causes him or her to be placed in harm's way." Edward Peruta (who lives in California part of the year) and several other applicants could not show any specific threats against them. The County sheriff concluded they did not qualify for carry permits.

The Federal District Court held in Peruta that Heller does not stand for the broad proposition that all concealed weapon bans are presumptively constitutional. The next question, as it is in cases where the constitutionality of a statute is at issue, is the level of scrutiny to apply - how strict are the standards a court should use to decide if the statute complies with the constitution. SCOTUS explicitly left this undecided in Heller.)

The District Court applied intermediate scrutiny, finding that the County's policy favoring public safety and reducing the rate of gun use in crime was "reasonably related to a 'significant,' 'substantial,' or 'important' governmental interest. Moreover:

The government also has an important interest in reducing the number of concealed handguns in public because of their disproportionate involvement in life-threatening crimes of violence, particularly in streets and other public places.
The Ninth Circuit reversed, holding (2-1) that to "bear arms" meant to carry them and that SCOTUS's Heller decision pointed in favor of allowing carry for the purpose of confrontational self-defense. The Court declared that a constitutional right to carry a concealed weapon in public was so strong that the County's application of "good cause" was too restrictive no matter what level of scrutiny applied.

The decision was by a three panel, as is the case with almost all Federal appellate court
decisions. However, a losing party can ask the full court to hear the case en banc. (The Ninth Circuit Court of Appeals has 45 judges, 16 of whom have senior status and a reduced workload, if any, so 29 are available. I understand the practice in the Ninth Circuit to be that it 11 judges would hear an en banc reargument, although it rarely grants one.)

Matters got complicated when San Diego County announced it would not appeal and planned to start issuing carry permits when the decision became final. That prompted California Attorney General Kamala Harris to petition for en banc review. The State of California had not been a party to the case, so it asked to intervene as did the Brady Campaign to Prevent Gun Violence and - jointly - the California Police Chiefs Association and the California Peace Officers Association.

As of May 2, the requests to intervene and for en banc reconsideration remain pending. It took three years (!) for the Peruta case to get from the US District Court's decision to that three-judge Ninth Circuit decision. There is no particular reason to think the Ninth Circuit will act swiftly.

Observations. An interesting facet of Drake's case is that unlike most states, New Jersey statutes do not seem to distinguish between carrying a firearm openly or concealed. Attorney Gura argues that this makes his case a better one for SCOTUS to decide:

Nor does it involve any difficult questions as to time, place or manner restrictions on the carrying of handguns. Because New Jersey’s law operates without distinction between the concealed and open carrying of handguns, confusing questions as to the manner in which Petitioners might exercise their rights are avoided.
Whether Drake is a purer, less confusing case is debatable. NJ courts have discretion to impose the types of conditions that the applicants argue are not present in this case.

So, John Drake's case is in waiting. Speculation abounds on why it was relisted for a third time.

After all, this current Supreme Court seems quite willing to accept controversial issues. Are some justices deterred by the strong presence of diverse "states' rights" policies on firearms matters? Even after almost six years since Heller, is SCOTUS still reluctant to enter into its next Second Amendment ruling? Are the justices awaiting another case, possibly Peruta? Is one of the majority justices in Heller waffling, making the others worried about the outcome of the next gun rights case?

All this, of course, is completely speculative. To be continued ...

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Mon May 05, 2014 at 6:36 AM PT: BREAKING NEWS. This morning, moments ago, SCOTUS announced it denied cert in Drake v. Jerejian. The pro-carry folks will be bummed ... until the next case, probably Peruta from the Ninth Circuit in California, comes up for consideration.

Originally posted to Firearms Law and Policy on Fri May 02, 2014 at 03:12 PM PDT.

Also republished by Repeal or Amend the Second Amendment (RASA), Shut Down the NRA, and California politics.

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Comment Preferences

  •  Does the National Security Agency spy (3+ / 0-)

    on Supreme Court Justices' communications with their staff and other justices?

    Maybe the walls in the room where the judges meet can talk.

    •  Ha! Great question! (1+ / 0-)
      Recommended by:
      Glen The Plumber

      That would mean thousands of analysts can eavesdrop and there would be leaks about which cases will be accepted.

      "The pessimist complains about the wind; the optimist expects it to change; the realist adjusts the sails.” — William Arthur Ward

      by LilithGardener on Fri May 02, 2014 at 04:49:49 PM PDT

      [ Parent ]

    •  The secrecy surrounding SCOTUS is legendary. (2+ / 0-)
      Recommended by:
      LilithGardener, Glen The Plumber

      I don't know how, with so many eyes and ears, they keep the confidence of market-affecting decisions. Yet they do.

      2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

      by TRPChicago on Fri May 02, 2014 at 05:03:09 PM PDT

      [ Parent ]

      •  They probably invested in good compliance (3+ / 0-)
        Recommended by:
        TRPChicago, Glen The Plumber, VClib

        monitoring practices/specialists very early on.

        Controlling the flow of inputs/outputs is easy if compliance monitors are empowered to do their jobs and systems are structured to actually facilitate segregation and monitoring.

        I can imagine software/systems that segregate material and who gets what, such that no clerk or support staff would ever inadvertently email a document to someone unauthorized to receive it.

        And I suspect that Supreme Court Justices are loyal to their clerks and staff, who are very loyal to their Justice and their role.

        "The pessimist complains about the wind; the optimist expects it to change; the realist adjusts the sails.” — William Arthur Ward

        by LilithGardener on Fri May 02, 2014 at 05:14:45 PM PDT

        [ Parent ]

  •  Short answer: "No." I don't see SCOTUS as (6+ / 0-)

    wanting to start picking and choosing among the various CCW regimes.  While some states (including mine) pretty much allow open carrying of firearms, to say that it's a constitutional requirement to allow this, particularly in cities, is not something SCOTUS will want to rule.

    You have exactly 10 seconds to change that look of disgusting pity into one of enormous respect!

    by Cartoon Peril on Fri May 02, 2014 at 03:24:21 PM PDT

    •  At least so far, for six years now, I think ... (2+ / 0-)
      Recommended by:
      LilithGardener, Glen The Plumber

      ... you're right. This gun policy area seems to me to be the poster case for state and local options to govern, and not a federal constitutional mandate. Given the cautionary language in J. Scalia's opinion in Heller, I believe that is what the majority had in mind.

      2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

      by TRPChicago on Fri May 02, 2014 at 05:07:42 PM PDT

      [ Parent ]

  •  but John Drake is Secret Agent & The Prisoner (4+ / 0-)

    They're giving you a number (6) and taking away your name


    rover (the prisoner)

    Warning - some snark may be above‽ (-9.50; -7.03)‽ eState4Column5©2013 "I’m not the strapping young Muslim socialist that I used to be" - Barack Obama 04/27/2013 (@eState4Column5).

    by annieli on Fri May 02, 2014 at 03:51:12 PM PDT

  •  Constitutional "must issue" (4+ / 0-)

    That's the gun nuts' objective, and that's likely what this case is all about.  They're trying to turn issuance of a permit into some kind of constitutionally required default.  In other words, in their view, a state can't require a person to demonstrate a need for a deadly weapon.  It would have to issue a permit unless a person is somehow otherwise disqualified.

    I have no idea whether the Supreme Court will take this particular case or not, but I think it's highly likely that they'll announce just such a rule in the not terribly distant future.  The five Republicans have shown their willingness to do the bidding of the gun lobby, and I don't think they're going to back off.

    "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

    by FogCityJohn on Fri May 02, 2014 at 04:17:54 PM PDT

    •  I'm not so sure. The Court has had chances ... (6+ / 0-)

      ... to do that and the justices have declined. That fourth vote for cert is pretty hard to get! And I can't help but think there's something at work that is not yet apparent.

      A pro-carry decision might be coming, though I believe it is not warranted. But I'm thinking if it comes, the Court will set a standard of scrutiny that allows for latitude based on conditions the legislatures and maybe local bodies set for their citizens.

      That way, it can look like everyone wins except the absolutists ... and everyone loses.

      2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

      by TRPChicago on Fri May 02, 2014 at 05:17:44 PM PDT

      [ Parent ]

      •  Thanks TRP for a very informative diary (2+ / 0-)
        Recommended by:
        TRPChicago, LilithGardener

        I wish we had more.

        "let's talk about that"

        by VClib on Fri May 02, 2014 at 07:29:49 PM PDT

        [ Parent ]

      •  As I understand it (0+ / 0-)

        It has already been decreed that no issue won't pass muster and that either concealed or open carry, or both, has to be allowed.  The problem with places like NJ is that they are effectively making the state no issue.

        "It's not surveillance, it's data collection to keep you safe"

        by blackhand on Sat May 03, 2014 at 07:54:41 AM PDT

        [ Parent ]

        •  Source for the decree, pls? (1+ / 0-)
          Recommended by:
          oldpotsmuggler

          Quote/link would be nice.

          "The pessimist complains about the wind; the optimist expects it to change; the realist adjusts the sails.” — William Arthur Ward

          by LilithGardener on Sat May 03, 2014 at 11:25:57 AM PDT

          [ Parent ]

          •  Agreed, it would be nice (0+ / 0-)

            But I don't have one, at least one that is specific on that point.   Reviewing the SCOTUS 2A cases is not bearing fruit either, so I am not sure where this originated.  Still, I am certain I have seen this mentioned in one or more discussions here and I am thinking it may have been KV who raised the point.  I know I have seen something about how states may allow either concealed or open carry, but can't prohibit both.

            I am no constitutional scholar, but with court cases declaring that the 2nd is an individual right and having been incorporated to the states, it seems logical that "no issue" sans due process (e.g. felon), would be a violation.

            "It's not surveillance, it's data collection to keep you safe"

            by blackhand on Sat May 03, 2014 at 12:36:31 PM PDT

            [ Parent ]

            •  I believe there is no "No Issue" state, but ... (1+ / 0-)
              Recommended by:
              LilithGardener

              ... that isn't because any case decreed it, as such. I think Chicago was the last city that effectively had no civilian carry because of a combination of laws and no permissive laws and at that time, Illinois had no carry permit law at all.

              The Moore case in the Seventh Circuit held that unconstitutional. The decision was stayed for 180 days for the Illinois legislature to write a permissive gun law. It did, with a lot of heavy lobbying from gun interests, and the decision was not appealed.

              2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

              by TRPChicago on Sun May 04, 2014 at 08:53:14 AM PDT

              [ Parent ]

              •  DC has no carry, open or concealed (1+ / 0-)
                Recommended by:
                TRPChicago

                All guns must be registered and your owner's permit allows you to carry your gun from your residence to/from your car when you take it to the shooting range, or out of the city for hunting or shooting sports.

                So I think that means that someone in DC has to apply to VA, MD, PA, etc for a non-resident concealed carry permit, and then they can carry concealed after they've crossed over outside the city limits.

                "The pessimist complains about the wind; the optimist expects it to change; the realist adjusts the sails.” — William Arthur Ward

                by LilithGardener on Sun May 04, 2014 at 09:44:04 AM PDT

                [ Parent ]

                •  Thanks, LG! n/t (1+ / 0-)
                  Recommended by:
                  LilithGardener

                  2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

                  by TRPChicago on Sun May 04, 2014 at 10:55:03 AM PDT

                  [ Parent ]

                  •  Caveat, I don't know if states accept applications (0+ / 0-)

                    from DC residents. Most CCW reciprocity agreements are bilateral. If you honor our permit, we'll honor yours.

                    So for residents from Vermont, where no CCW permit is required, and probably DC, it gets complicated.

                    I'll add the question to my research list.

                    "The pessimist complains about the wind; the optimist expects it to change; the realist adjusts the sails.” — William Arthur Ward

                    by LilithGardener on Sun May 04, 2014 at 11:40:34 AM PDT

                    [ Parent ]

        •  Um, no. (2+ / 0-)
          Recommended by:
          oldpotsmuggler, LilithGardener

          The state is clearly issuing permits subject to the fulfillment of certain conditions. That's not "no issue." It's "conditional issue." Which is how any permitting process normally works.

          "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

          by FogCityJohn on Sat May 03, 2014 at 12:49:55 PM PDT

          [ Parent ]

    •  Constitutional carry is something different (3+ / 0-)
      Recommended by:
      blackhand, FrankRose, LilithGardener

      Constitutional carry is something different from shall (must issue). IMO, if an applicant meets the standards of not being a prohibited person (no felonies, no DV, no drug or mental history, knows the state laws (with testing), demonstrates proficiency with firearms), then I believe that person MUST receive his carry permit.

      Constitutional carry supporters are in favor of any citizen being able to carry and the only requirement is citizenship.  They believe that the only people who can/should be prohibited are those that have lost their rights through due process and only on an individual basis (case by case).

      Many states have now moved away from "concealed" being a requirement when carrying a firearm.  The unintentional consequence has effectively been "open carry". For instance, in Minnesota, it previously issued "CCW" types of permits (concealed). The way the law read, if my firearm "printed" (could be seen through the clothing), or inadvertently became visible (lifting up one's arms while reaching for something, perhaps in a store) than that was a violation of the law because that firearm was no longer concealed.  The law changed to protect people from those instances.  Now, Minnesota issues a PTC (permit to carry), without compelling the person to conceal.  Issuance of permits has gone up rapidly (there were only 40,000 permits just as recently as a 2010 or 2011 (?.  I'm not exactly sure. Could be 09, too). As of today, there are 165,000 permit holders and these permit holders are still committing less than 1% of all firearm crimes.

      To the OP; I recc'd the diary for your straightforward and honest presentation of facts, absent any bias.  This is the only way to start dialogue with those that want to preserve these rights and those that would like to.....amend them.

      •  Thanks, AA! In these kinds of diaries, I try to... (3+ / 0-)

        ... keep them as balanced as I can, having learned early that you should be able to state both/all sides of a case. (That doesn't necessarily apply to my comments, though!)

        As for concealed/open carry, I urge gun owners to see that many of us recoil (!) at the sight of military-looking long guns in the hands of demonstrators "protecting their Second Amendment Rights" (not just outside diners where a few Moms Demand Action folks are meeting). No matter how friendly and family-like the people may look, guns are not benign tools. They're weapons that are dangerous when used as designed.

        As for the open display of handguns, many of us are not used to seeing them worn like clothing by a non-uniformed individual. Think of the standard response in a police show as cops are confronted with "GUN!"

        Should our apprehensions govern your ability carry a gun in public? Perhaps not, but that "less than 1% involved in firearm crimes" doesn't feel any better than 1% on Wall Street. True, only a small proportion of the public engages in massacres at malls and in theaters, or lose their cool in the presence of rap music, or assume neighborhood protection duties without any of the judgment or authority that trained law enforcement is required to have. Yet that statistic is not calming!

        There's a reason why every bar within blocks of my home in Chicago has posted No Guns signs, despite a new permissive state law that would allow guns in some of them. Cops may make mistakes but I look to them to keep the peace; I do not look to a civilian Good Guy with a gun to do it, and I hope they don't try!

        2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

        by TRPChicago on Sat May 03, 2014 at 05:37:32 AM PDT

        [ Parent ]

        •  I live in Florida. I have a reasonable belief that (1+ / 0-)
          Recommended by:
          i saw an old tree today

          a person conspicuously carrying a firearm is about to inflict death or grave bodily injury. Under what legal theory am I not to exercise my right to stand my ground before he can clear leather?

          •  Ah, a hypothetical from the Gunshine State! (2+ / 0-)
            Recommended by:
            LilithGardener, oldpotsmuggler

            This is NOT legal advice. THAT you get from a lawyer who knows Florida law and can help you avoid a premeditation charge by even asking the question!

                                      *                         *

            The surrounding facts would be determinative of what you are legally able to do. You don't say, for example, what the grounds of your belief are (e.g. the person has a history of Happy Trigger). Or whether you precipitated the person's response. Or whether you, too, are armed. And importantly, you don't say whether you or someone else is the likely victim.

            In the case as stated, survival seems like the best policy. (BTW, I hope there are witnesses.) I would recommend you do as the LEOs did at the Bundy spread ... retreat in the most unthreatening, non-provocative manner possible. It sounds cowardly, but it's more sensible than what you're facing.

            If that isn't possible, somehow show more judgment that the one you fear and try to talk the person down like a cop would in a hostage situation.

            Bottom Line: the law ain't gonna help much in the moment.

            2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

            by TRPChicago on Sat May 03, 2014 at 10:00:42 AM PDT

            [ Parent ]

    •  The decision of the Court in the Heller case made (3+ / 0-)

      very clear that they were electing not to go beyond this issue of having a firearm i the home. If they go beyond that, they are stepping on the rights of the state.
         If they were ideologically consistent, they would rule that there is no constitutional right to carry a firearm, that the state's law should prevail.
         But consistency has not been a hallmark of this particular court.

  •  Nicely done, a great Friday happy hour read (5+ / 0-)

    Thanks, TRP!

    I have a comment but I have to go and check my source first. BBL

    "The pessimist complains about the wind; the optimist expects it to change; the realist adjusts the sails.” — William Arthur Ward

    by LilithGardener on Fri May 02, 2014 at 04:48:46 PM PDT

  •  I know why the NRA opposes "may issue", (6+ / 0-)

    but I honestly think it's a good way to impose some kind of reason on all this Bundy nonsense.  If there were shall issue in Nevada, all those yahoos out in the desert with itchy trigger fingers wouldn't have anything to itch, unless they had good reason to, which clearly they don't.

    May issue allows states to impose control over the "enthusiasts" who think it's a great idea to open carry for no other reason than to "educate" people.  Also known as intimidation.  Ask that Mom's group from SC...

    I blog about my daughter with autism at her website

    by coquiero on Fri May 02, 2014 at 05:08:13 PM PDT

  •  Is Alan Gura is correct in his summary framing? (3+ / 0-)

    Does anybody know?

    In the petition he claims...

    [my bold]
    The federal appellate courts, and state courts of last resort, are split on the question of whether the Second Amendment secures a right to carry handguns outside the home for self-defense. The Second, Fourth, Fifth and Seventh Circuits, and the supreme courts of Illinois, Idaho, Oregon and Georgia have held or assumed that the Second Amendment encompasses the right to carry handguns outside the home for self-defense. But along with the highest courts of Massachusetts, Maryland, and the District of Columbia, which have refused to recognize this right, a divided Third Circuit panel below held that carrying handguns outside the home for self-defense falls outside the scope of the Second Amendment’s protection. It thus upheld New Jersey’s “justifiable need” prerequisite for carrying defensive handguns.

         The federal appellate courts are also split 8-1 on the question of whether the government must provide evidence to meet its burden in Second Amendment cases. The First, Second, Fourth, Fifth, Seventh, Ninth, Tenth and District of Columbia Circuits require the government to produce legislative findings or other evidence to sustain a law burdening the right to bear arms. But the majority below held that the legislature’s policy decisions need not be supported by any findings or evidence to survive a Second Amendment challenge, if the law strikes the court as reasonable. Accordingly, the majority upheld New Jersey’s “justifiable need” law despite the state’s concession that it lacked legislative findings or evidence of the law’s public safety benefits, let alone the degree of fit between the regulation and the interests it allegedly secures.

    - Petition - Drake v Jerejian

    If he's correct, I wonder is it possible that the pro-regulation Justices vote to accept the case, willing to write an opinion that says,

    1. Yes, there is a right to public carry and
    2. Yes, states can regulate it as they have in the 2nd, 4th, 5th and 7th Circuits, as long as they
    3. do rely on evidence and/or history as as they have done in the 1st, 2nd, 4th, 5th, 7th, 9th, 10th and DC Circuits?
    4. Intermediate scrutiny is the appropriate standard for guns in public.

    Could SCOTUS use Drake to strike down arbitrary and capricious goals like "decrease gun ownership" and still leave it up to state legislatures to weigh evidence and decide the relative risk of public harms to their particular population?  ...Just so long as long as they actually do consider evidence, history, and the relative burden when they pass a law?

    "The pessimist complains about the wind; the optimist expects it to change; the realist adjusts the sails.” — William Arthur Ward

    by LilithGardener on Fri May 02, 2014 at 05:56:50 PM PDT

    •  I think he's right, though argumentatively stated. (3+ / 0-)

      And Yes, the kind of decision you describe is realistic - a constitutional right but one that allows for regulation under a tolerant judicial standard, not an absolute right.

      The downside would be that committee sessions in many states are, ah, not elaborate or definitive. And courts might not be eager to find that the legislature had done a job, but not well enough. If there had been a big controversy (likely) and some compromises (likely), the legislative history might be inadequate, but troublesome to challenge. (Consider Georgia's last minute, shoved-through, poorly considered HB 60. Not much reliable history there to support what that crowd did!)

      Overall, I think the NRA and other gun advocacy groups that are even more extreme than the NRA (if one can imagine that) would count such a decision as a spare win but a bigger loss.

      2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

      by TRPChicago on Fri May 02, 2014 at 06:25:44 PM PDT

      [ Parent ]

      •  Well, under Heller (3+ / 0-)

        I don't think they need evidence to justify why they repeal restrictions, do they?

        They only have to justify why they enacted their current restrictions, or why they enact new restrictions. A state such as Hawaii could conduct hearings, research the issue, commission a study by which they justify why their CCW law and policy should not change.

        E.g. they compare the last 20 years to the prior 20 years before they issued their last CCW permit.

        "The pessimist complains about the wind; the optimist expects it to change; the realist adjusts the sails.” — William Arthur Ward

        by LilithGardener on Fri May 02, 2014 at 06:34:02 PM PDT

        [ Parent ]

        •  Agreed. I was thinking of legislative history... (3+ / 0-)

          ... that would justify restrictions and provide guidelines for whomever is empowered to grant permit applications.

          And reviews after the fact to check how the law is working as administered would add supporting evidence.

          Still, to a court bent on denying justification for restrictions, the most elaborate history might not be enough.

          2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

          by TRPChicago on Fri May 02, 2014 at 06:57:17 PM PDT

          [ Parent ]

      •  PS That is what the DC Circuit said to DC District (2+ / 0-)
        Recommended by:
        Glen The Plumber, a2nite

        in Heller II.

        The DC Circuit upheld the long standing registration requirements, upheld the longstanding assault weapons law, and upheld the longstanding magazine limit of 10 rounds, but kicked everything else back to the District Court because neither side had presented sufficient evidence.

        They instructed the District Court to give both parties another bite at the apple. I like that decision if it means they were instructing DC, "You can't just pull ideas out of a hat?"

        "The pessimist complains about the wind; the optimist expects it to change; the realist adjusts the sails.” — William Arthur Ward

        by LilithGardener on Fri May 02, 2014 at 06:36:46 PM PDT

        [ Parent ]

    •  Nope, at least not on what you have quoted here. (2+ / 0-)
      Recommended by:
      TRPChicago, LilithGardener

      That's a very transparent attempt to manufacture a "conflict" where none exists.

      A classic "conflict" exists where any two (at least) of the twelve federal circuits have clearly and openly addressed exactly and identically the same legal question and have plainly reached contradictory results. We know what the Third Circuit ruled, and we know that if the final decision of the Ninth remains the same as the preliminary one that there will be a "conflict". But nothing cited so far illuminates a true conflict, and, absent that there just is no reason for the Supremes to go along with Gura.

      The strategy that he's trying is far more subtle, and, based on recent results, likely to fail. He's trying to get some folks at the SCOTUS (and this doesn't happen just at the "Justice" level because there are nine Chambers that function basically like organisms) to sign on to his crusade as being "a question of important constitutional construction". Conflicts pretty much have to be resolved to prevent constitutional rights from being fragmented geographically. "Important questions" are fought over in the SCOTUS in all manner of ways. These typically can track the evolution of society, but each also has to gain it's own critical mass in it's own way.

      There can be no protection locally if we're content to ignore the fact that there are no controls globally.

      by oldpotsmuggler on Fri May 02, 2014 at 07:13:36 PM PDT

      [ Parent ]

      •  Great points. On certs, clerks do most of the ... (2+ / 0-)
        Recommended by:
        oldpotsmuggler, LilithGardener

        ...  work. On a large percentage of Cert petitions, they do it all and the justices apparently don't even personally consider a great many. (This is based only on reading knowledge on my part.)

        As for Circuit conflict, Yes, he's being argumentative. And I'm surprised about his tone and that of several other gun rights lawyers. It is getting pretty strong. Civility, even where it isn't deserved or reciprocated, is very important in a process where we must respect judges and what they do, even especially when they are wrong! You criticize a judge who is trying to do his job and the judge reading what you said is entitled to figure you'll criticize him next.

        2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

        by TRPChicago on Fri May 02, 2014 at 07:46:22 PM PDT

        [ Parent ]

      •  Gura has made a shift in strategy (2+ / 0-)
        Recommended by:
        TRPChicago, FogCityJohn

        A few months ago I sat down and read Masciandaro, Kachalsky, and Woollard one soon right after the other. All his claims about a split in the lower courts were the same.

        Then later I read Drake and there were some obvious changes in his argument. All four cases are Second Amendment Foundation projects, so Gura is the lead attorney on all of them. He was complaining essentially that no one was doing historical analysis as Heller supposedly required. He complained that all the lower Courts are ignoring SCOTUS direction, limiting Heller to it's facts, or otherwise refusing to enforce the 2A. It seemed to me that he was trying to goad the Justices into some idea that they were being disrespected.

        Here's what he wrote about the NJ District Court in Piszczatoski v. Filkothe lower case that became Drake v Filko appealing to the 3rd Circuit Ct of Appeals and is now Drake v Jerejian appealing to SCOTUS.

        p23 from the Kachalsky petition:

        The aversion to enforcing the Second Amendment manifested by some of the lower courts is difficult to overstate. The District of New Jersey, for example, faced with a challenge to that state’s identical law, simply declared the entire Second Amendment field outside the home a nuisance from which it would shield government lawyers. “Given the considerable uncertainty regarding if and when the Second
        Amendment rights should apply outside the home, this Court does not intend to place a burden on the government to endlessly litigate and justify every individual limitation on the right to carry a gun in any location for any purpose.” Piszczatoski v. Filko, 840 F. Supp. 2d 813, 829 (D.N.J. 2012), appeal pending, No. 12-1150 (3d Cir. filed Jan. 16, 2012).

        [my bold]

        I've only read fewer than a dozen petitions, but even for me that's pretty provocative and colorful language.

        "The pessimist complains about the wind; the optimist expects it to change; the realist adjusts the sails.” — William Arthur Ward

        by LilithGardener on Fri May 02, 2014 at 08:28:40 PM PDT

        [ Parent ]

        •  Colorful, but seemingly valid. (0+ / 0-)

          Some 1200 plain civilian folks, who can likely be presumed to be politically connected, and some 30,000 civilian cops. That's who has been given carry permits. That's 1 person in 200. I'd have to do the research, but I've got a gut feeling that a higher rate of black folks managed to pass the literacy tests to vote than the rate of people who have been granted a carry permit in "may issue" NJ.

          That, and I've seen a couple articles about people who had plane travel problems or moving-home stops in NJ while traveling with guns, and the NJ authorities made the arrest. After all, as I recall the law says that such travel will be an affirmative defense, which requires an arrest before your paid lawyer can argue that defense.

          So, it might be colorful language - but I think it's valid.

        •  Gura is playing to Scalia, hoping to move him to a (2+ / 0-)
          Recommended by:
          TRPChicago, LilithGardener

          place where he will make an investment of energy and credibility to pull the others into this particular fight.

          The more typical course on something as divisive as this that doesn't already have a built in constituency among the nine is to wait unless and until a conflict compels action.

          There can be no protection locally if we're content to ignore the fact that there are no controls globally.

          by oldpotsmuggler on Sat May 03, 2014 at 09:42:37 AM PDT

          [ Parent ]

  •  Hey diarist, you are mistaken. (0+ / 0-)

    You say:

    I respect Mr. Gura's arguments in the courtroom, but that statement to a reporter is hyperbole. In the Heller and McDonald cases, the Supreme Court explicitly limited its rulings to a handgun for self-defense in one's home, and that has been the settled law for almost six years.
    Pull up the text of the Heller case
    http://www.law.cornell.edu/...

    And you will find passages

       c. Meaning of the Operative Clause. Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation.
    In numerous instances, “bear arms” was unambiguously used to refer to the carrying of weapons outside of an organized militia. The most prominent examples are those most relevant to the Second Amendment : Nine state constitutional provisions written in the 18th century or the first two decades of the 19th, which enshrined a right of citizens to “bear arms in defense of themselves and the state” or “bear arms in defense of himself and the state.”
    we have found instances of its use with a clearly nonmilitary connotation. In a 1780 debate in the House of Lords, for example, Lord Richmond described an order to disarm private citizens (not militia members) as “a violation of the constitutional right of Protestant subjects to keep and bear arms for their own defense.” 49 The London Magazine or Gentleman’s Monthly Intelligencer 467 (1780). In response, another member of Parliament referred to “the right of bearing arms for personal defence,” making clear that no special military meaning for “keep and bear arms” was intended in the discussion.
    One of the more oft-referenced passages by those who push for additional restrictions actually supports what Gura said:
    nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
    A common sidewalk is not a sensitive place. A shopping mall is not a sensitive place. The local grocery store is not a sensitive place.
    •  No, Jay, I don't agree. (4+ / 0-)

      J. Scalia in Heller ...

      His opening paragraph:
      We consider whether a District of Columbia prohibition on the possession of usable handguns in the home violates the Second Amendment to the Constitution.

      His "holding" paragraph:
      In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment , as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.

      That is all Heller decided.

      Your quoted "carry" language is not the court's decision. As for the "nothing in our opinion" language, it emphasizes that doubt is not to be cast on many prohibitions ... in addition to the ones listed. See fn. 26: "[O]ur list does not purport to be exhaustive."

      What you want to do is to flip J. Scalia's language to say that that public carry in non-sensitive places is OK. You can't find that in his opinion, Jay, and neither can Lawyer Gura. You can only hope that is where SCOTUS goes in the future.

      Even gun advocates concede that "carry" is not within Heller. The Second Amendment may ultimately be held to include public carry, but it's hyperbole to say that the Supreme Court held that, or to suggest that New Jersey officials and courts court are defying SCOTUS when they limit carry.

      2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

      by TRPChicago on Fri May 02, 2014 at 07:17:20 PM PDT

      [ Parent ]

      •  That's all regarding the DC law. (0+ / 0-)

        But that wasn't all that was held regarding what the court found.

        The heller case killed the arguments that the right to keep was only for the collective. The court didn't "hold" that it was an individual right, they "found" that it was an individual right. In fact, I already quoted that bit but will again

        c. Meaning of the Operative Clause. Putting all of these textual elements together, we find that they guarantee the individual right to possess and carry weapons in case of confrontation.
        There is the segment where the need for a gun in the home in case of confrontation is most acute, which is not the equivalent of declaring that confrontation outside the home is nonexistent.
        The handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelmingly chosen by American society for that lawful purpose. The prohibition extends, moreover, to the home, where the need for defense of self, family, and property is most acute. Under any of the standards of scrutiny that we have applied to enumerated constitutional rights,27 banning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” 478 F. 3d, at 400, would fail constitutional muster.
        •  The Heller case didn't negate any rights, nor ... (4+ / 0-)

          ... did it declare any rights to be nonexistent. SCOTUS didn't rule on the carry issue; it didn't rule it in and it didn't rule it out.

          Lower courts have declared carry is a Second Amendment right, but the Supreme Court has declined to hear those cases that have been presented to it, up to Drake. No significance is to be attached to those denials of cert by the way, except that the Court chose not to take the cases. Which, in that six year period you and I have been discussing elsewhere, the Court has done on dozens of gun rights cases, some where carry was at issue as well as others.

          2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

          by TRPChicago on Sat May 03, 2014 at 11:06:41 AM PDT

          [ Parent ]

    •  Scalia threw in all of the "dicta" that he could (3+ / 0-)

      get away with in Heller, but only amatuers think that every word in a SCOTUS decision is the equeal of all others.

      In Heller, as in all SCOTUS cases, there is "the issue", there is "the holding", and there is a lot of fluff. You need to stop allowing yourself to be drawn to the fluff.

      There can be no protection locally if we're content to ignore the fact that there are no controls globally.

      by oldpotsmuggler on Fri May 02, 2014 at 07:40:56 PM PDT

      [ Parent ]

      •  Based only on fumes and speculations, ... (4+ / 0-)

        ... I'm thinking there is a great deal below the surface of the Heller opinions. The cautionary language and that footnote - reiterated in McDonald two years later - suggests to me that they were necessary to get a justice to join (or stay with) the majority. And their tone and style is quite different from the great bulk of J. Scalia's opinion.

        Add to that the fact that nearly six years have elapsed without SCOTUS taking up the next 2A case for argument after a seminal decision on a constitutional amendment ...

        Some day when papers or memoirs are published, we may know.

        2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

        by TRPChicago on Fri May 02, 2014 at 08:03:36 PM PDT

        [ Parent ]

        •  The six year gap isn't relevant. (2+ / 0-)
          Recommended by:
          Angryallen, FrankRose

          The court only takes cases when they have been chewed on by the lower courts for a while. They call it only taking cases that are "ripe".

          They made some large declarations in Heller and McDonald.
          It's an individual right, the collective right argument got killed.
          Defense of self, home, family is valid.
          Defense of property. (I'm not quite so on the wagon with that one)
          They declared that blanket bans will not be tolerated.

          They walked it back a bit with declarations of opinion that "sensitive places" could still be no-gun zones. (By the way, that implies that non-sensitive places can't be non-gun zones.)

          OF COURSE they have to wait a while.

          Once they announced their ruling, time passes while new cases arise from the dust of the impact.
          THEN time passes while those cases make their way up the chain of the state court systems.
          THEN time passes while those cases shift tracks into the federal appeals system
          THEN time passes while those cases are heard in their entirety.
          THEN time passes while those cases possibly have a second or even third lather-rinse-repeat cycle through the federal appeals system.

          THEN, after all that, ONLY THEN have cases been chewed and gnawed to the point where there is either a valid constitutional issue or the lower courts chewed the case into complete digestion.

          •  Briefly ... (4+ / 0-)

            Ripeness is whether a particular case is ready for decision. Many cases are ready simply on their pleadings, without all that digestion. Constitutional challenges are a particularly good example of cases that often can be fast tracked. (That does not mean they all are by any means. There's a Hawaii gun carry case that was decided in the federal district court in 2010 and the appeal hasn't been argued to the Ninth Circuit yet.)

            SCOTUS began to get petitions for cert on 2A cases soon after Heller.

            The federal and state court systems are separate. It would be a very unusual case (e.g. where a federal court needed an advisory opinion from a state court would be one narrow and arcane example) that would "shift tracks" between the two systems short of the SCOTUS level of review.

            As for six years being a gap that isn't relevant, I suggest gun rights lawyers would profoundly disagree with you.

            2014 is HERE. Build up the Senate. Win back the House : 17 seats. Plus!

            by TRPChicago on Fri May 02, 2014 at 09:02:46 PM PDT

            [ Parent ]

          •  I have heard this exact same reasoning (4+ / 0-)

            I have heard the exact same reasoning from the folks at GOCRA (Minnesota gun right organization). The attorneys there explained to me that the SC is probably waiting because the results of DC and Chicago rulings are still being litigated nationally.  Ultimately, without justices giving statements, lol, it's still only speculation.  Some of it more "learned" than others.

          •  You don't understand what ripeness is. (4+ / 0-)

            The case the diarist discusses is unquestionably ripe as a legal matter. Whether the court will choose to decide it is another question entirely.

            Ripeness is a facet of justiciability. It prevents courts from deciding disputes that are not yet sufficiently concrete.  It tests the fitness of the issue for immediate decision and the hardship resulting from withholding review under the facts of a given case.

            That's not what is at issue here.

            "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

            by FogCityJohn on Sat May 03, 2014 at 12:41:53 PM PDT

            [ Parent ]

            •  Ripe now, but three years ago? Four? Five? (0+ / 0-)

              Scotus hands down an opinion on a constitutional interpretation and a ruling on the case that called the question. Such opinions and interpretations don't commonly drill down to all possible results and minutia, they remain at the broader level.

              Then there is a period of time while lower courts grind through the ground level of the decision.

              Example, Roe v Wade established a right to terminate but recognized the state's legitimate ability to regulate. The scotus didn't drill down to all possible regulations, the high court left that grunt work to be done by the lower courts.

              That is the situation with the six year gap. The court set down some interpretations and didn't drill down to the grunt work, because that is for the lower courts to tackle when a subsequent case arises.

              And you are saying I don't understand ripeness?

              I seem to be able to articulate the process by which an issue that is newly ruled upon by scotus undergoes legal exploration and consideration by lower courts before any related point of interest becomes important enough for the high court's continued attention.

              Are you sure you want to claim I don't understand ripeness?

              •  Yes, Jay, in a heartbeat. You're "general (2+ / 0-)
                Recommended by:
                WakeUpNeo, LilithGardener

                understanding" has little or no merit in any particular real world scenario. This is all about nuance, and, I'm sorry, but nuance is just not your strong point.

                There can be no protection locally if we're content to ignore the fact that there are no controls globally.

                by oldpotsmuggler on Sat May 03, 2014 at 06:59:22 PM PDT

                [ Parent ]

              •  Yeah, that's exactly what I'm saying. (2+ / 0-)
                Recommended by:
                WakeUpNeo, LilithGardener

                Because you don't.  Ripeness is a legal term of art with a very particular meaning, and that meaning is not the one you're ascribing to it.

                Here's a decent, plain English explanation of the basics of the doctrine:

                This doctrine is also related to the “case or controversy” requirement because it requires an actual dispute between two parties based on conduct that actually happened.
                In the case the diarist is discussing, there's no problem of ripeness, since there's an actual, concrete dispute between two adverse parties over past events.  There's nothing hypothetical about the dispute, and the courts' resolution of it does not depend on speculation or conjecture.  Thus, the case is unquestionably "ripe" in the legal sense of the word.

                As I said before, whether the U.S. Supreme Court will choose to hear the case is another matter entirely, and it will be based on very different considerations.

                "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

                by FogCityJohn on Sat May 03, 2014 at 08:42:49 PM PDT

                [ Parent ]

                •  You totally are being a dick. (0+ / 0-)

                  You'll agree that Cornell is an eminent law reference, right?
                  http://www.law.cornell.edu/...

                  A claim is "ripe" when the facts of the case have matured into an existing substantial controversy warranting judicial intervention.
                  You don't get judicial intervention by the highest court in the land unless the case has "matured" through all of the lower courts.

                  Oh, hey, it takes time for a case to mature through all of the lower courts. So, OF COURSE you have a gap between the handing down of Heller and the next time a valid case reaches the scotus.

                  The question of ripeness often arises in cases where the harm asserted by the plaintiff has not yet occurred.  Because courts are not permitted to decide merely hypothetical questions or possibilities, the court must determine whether the issues are fit for judicial review.  A case is typically considered ripe if it presents a purely legal issue, or if further development of the facts will not render the issue more concrete.
                  Not yet occurred... Hmm... That sounds like a requirement that would force a delay between a major ruling like Heller and any subsequent cases. Almost like any lawyers would have to wait for something to happen in the aftermath of a new ruling before they could file. Hmm...

                  And, that "further development of the facts"... That happens in lower courts, right? And time passes while those lower courts consider cases, right?

                  Are you totally done being a dick by claiming that I don't understand "ripe"?

                  Clearly I can take "Ripe" from a law school and demonstrate how a gap of time will necessarily occur between the gun-case of Heller and a subsequent gun-case. And I don't appreciate you being a dick about it.

                  •  Jay, This is a group diary (1+ / 0-)
                    Recommended by:
                    FogCityJohn

                    You are ankle biting now, nothing more. Knock it off.

                    "The pessimist complains about the wind; the optimist expects it to change; the realist adjusts the sails.” — William Arthur Ward

                    by LilithGardener on Sun May 04, 2014 at 08:58:40 AM PDT

                    [ Parent ]

                  •  Masciandaro was "matured" (your words) (0+ / 0-)

                    Masciandaro v US was the first opportunity for SCOTUS to address whether there is a constitutional right to carry a handgun in public. That case was moving up through the lower courts while Heller was being written. The petition was filed in 2009.

                    I'll put my money on Alan Gura to know how to assess whether and when a case is ripe for SCOTUS.

                    There have been at least 7 ripe cases that SCOTUS could have used to address a right to carry in public.

                    "The pessimist complains about the wind; the optimist expects it to change; the realist adjusts the sails.” — William Arthur Ward

                    by LilithGardener on Sun May 04, 2014 at 09:12:29 AM PDT

                    [ Parent ]

                  •  If trying to explain a legal doctrine ... (1+ / 0-)
                    Recommended by:
                    LilithGardener

                    is being a dick, then I plead guilty.

                    I've been a member of the bar since 1986. I'm admitted in two jurisdictions. In my earlier career, I litigated a number of cases against administrative agencies in which issues of ripeness and other justiciability doctrines commonly emerge. I practiced a fair amount in the D.C. Circuit, where dispositive motions on justiciability grounds, including ripeness, are routine.

                    So this is a topic which is not only within my professional training and expertise, but with which I have a high level of familiarity from my own practice. And to be perfectly frank, I'm rather tired of listening to nonlawyers give me  lectures about legal matters they clearly don't understand.

                    I'm not going to waste my time explaining things to people who have no interest in learning. You may now return to your RKBA echo chamber in which people with no legal education know more about the law than those of us who practice it for a living.

                    "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

                    by FogCityJohn on Sun May 04, 2014 at 11:34:26 AM PDT

                    [ Parent ]

                •  JFPA is an expert about certain topics. (1+ / 0-)
                  Recommended by:
                  LilithGardener

                  It shows, doesn't it?

                  Are you totally done being a dick by claiming that I don't understand "ripe"?
                •  Thank you, FogCityJohn, for teaching us (1+ / 0-)
                  Recommended by:
                  FogCityJohn

                  what ripeness is. I'm not a lawyer and have learned a lot from your contributions here.

                  "The pessimist complains about the wind; the optimist expects it to change; the realist adjusts the sails.” — William Arthur Ward

                  by LilithGardener on Sun May 04, 2014 at 09:03:09 AM PDT

                  [ Parent ]

    •  What do you think Scalia means by "carry"? (0+ / 0-)

      In Heller there is a section he defines what bear arms means. He cites Justice Ginsberg text from a case called Muscarello v US, saying essentially that she got it right when she wrote,

      In Muscarello v. United States, 524 U. S.
      125 (1998), in the course of analyzing the meaning of
      “carries a firearm” in a federal criminal statute, JUSTICE
      GINSBURG wrote that “[s]urely a most familiar meaning is,
      as the Constitution’s Second Amendment . . . indicate[s]:
      ‘wear, bear, or carry . . . upon the person or in the clothing
      or in a pocket, for the purpose . . . of being armed and
      ready for offensive or defensive action in a case of conflict
      with another person.’ ”
      Muscarello held that carry a gun meant to carry a gun on your person or in your vehicle. Do you read that section of Heller to mean, that obviously there is a right to public carry?

      The rub is that in Muscarello, Ginsberg was writing in the minority and she was joined by Scalia and others.

      Putting Heller and Muscarello together and looking at who was in the majority/minority, it's not at all clear that the Roberts Court would hold that the 2A includes in a gun in the glove box, console, a trunk or elsewhere in a car, rather than in one's own hands or on one's person.

      "The pessimist complains about the wind; the optimist expects it to change; the realist adjusts the sails.” — William Arthur Ward

      by LilithGardener on Fri May 02, 2014 at 09:02:21 PM PDT

      [ Parent ]

      •  Yes, and why make that distinction at that spot? (0+ / 0-)

        Yes, I do read that section of heller to mean that there is a right to public carry. The reasoning is short - we have a right to the gun in common use for self defense in case of confrontation. Confrontation happens outside the home as well as inside the home. The first is the finding, the second is a plain indisputable fact.

        And, is there some reason you skip past the option of carrying in a holster while in a car? Actually (some) paddle holsters can be shifted easily from the right side over to the left side of OWB so that the seat belt isn't either covering the object nor jamming the object unpleasantly into your side. Then there are the mounted console slots where the object can be placed if you are using an appendix holster. Or there are any number of the IWB tuckable holsters that manage to not be uncomfortable even though you are essentially sitting on the gun while in the car. And let's not forget the old-school shoulder holster. Plus the variety of conceal-carry purses or other off-body handbag style methods that get used by women.

        Speaking of women's conceal carry options, try this video.
        No, I don't know why youtube chooses that still frame, but at 2 million views it is useful info.

        •  Mere advocacy. Save it for a court, because no (2+ / 0-)

          one at DKos has the authority to do more than agree or disagree with you. And, obviously, if what you seem to be claiming is established law really were established law you'd be able to do more than merely speculate on how miscellaneous phrases might possibly be interpreted.

          There can be no protection locally if we're content to ignore the fact that there are no controls globally.

          by oldpotsmuggler on Sat May 03, 2014 at 09:56:24 AM PDT

          [ Parent ]

          •  Rulings aren't always honored. (0+ / 0-)

            The first that comes to mind is the phrase "Now let him enforce it". Of course, the court makes it rulings and opinions and it is up to others to follow, because the scotus doesn't have armed officers that run around arresting governors that disregard a court ruling.

            The next that comes to mind regarding how scotus rulings have to be taken in their entirety is that old case of santa clara versus that railroad. The nugget of corporate personhood wasn't in the opinion or the ruling, it was in the head note, and still it became law.

            And the next instance I can think of, regarding the following or dismissal of a court's words, happened just a few days ago in oklahoma. I'm talking about that oklahoma court that ordered the executions be delayed but the judges were threatened with removal so they bowed to the political threat and changed their stance.

            Actually, each of these three incidents give me more concern than that whole gang of hot headed armed idjits in nevada. That scrum going on from that bundy guy is superficial, a flash in the pan that won't undermine the functioning of the rule of law. But each of those first three examples undermine the social contract for rule of law itself rather than rule by whim of a person.

            •  Go to law school for three years. Come back and (2+ / 0-)

              read this (whatever it is). Get embarassed. You simply gather any number of random words from any number of miscellaneous places in "law books" and think that what you have is "law".

              There can be no protection locally if we're content to ignore the fact that there are no controls globally.

              by oldpotsmuggler on Sat May 03, 2014 at 07:04:10 PM PDT

              [ Parent ]

              •  Summary (0+ / 0-)

                You: If the court established that, then it would be enforced.
                Me: Here are examples of courts being ignored and not enforced.
                You: blah blah word salad incoherence.

                Looks to me like you have a vested emotional interest in the court supporting the "bear" part of "keep and bear arms". So much of an emotional interest that you go into denial when the idea arises that the court held that people have an individual right to bear arms.

                Unfortunately for you, the Heller court actually did hold that there is an individual right to keep and bear arms...

                (a) The Amendment’s prefatory clause announces a purpose, but does not limit or expand the scope of the second part, the operative clause. The operative clause’s text and history demonstrate that it connotes an individual right to keep and bear arms.
                Sorry to break the news to you, but you're wrong.
      •  Below, Jay makes good points. (0+ / 0-)

        Also, I'll add that the car is considered an extension of ones home/property.  Furthermore, there are many places that don't allow a permitted person to carry a firearm, either by statute or by private business discretion.  Its unreasonable to think that by abiding by the laws/rules, that leaving a firearm behind in your vehicle could also be a violation.

        •  A car on your property probably needs a warrant to (2+ / 0-)

          be searched. Have you ever noticed that an entirely different rule applies to cars elsewhere?

          There can be no protection locally if we're content to ignore the fact that there are no controls globally.

          by oldpotsmuggler on Sat May 03, 2014 at 09:59:31 AM PDT

          [ Parent ]

          •  Nope. (0+ / 0-)

            The difference between a warrant needed for the interior of the car on your property and the interior of the car at the side of the road is the location of you, the living person.

            For the car parked on your property, you aren't in it at the time that the cop rolled up with lights flashing. For the car you are driving, you are in there and able to interact with any number of objects during the moments between the cop flashing the lights at you and the halting of the car at the side of the road.

            That's why the interior of the car you are driving is able to be searched without your consent - because some sort of traffic violation called for your arrest and that immediate area is considered 'on your person' so to speak. But not the trunk.

        •  Just my $.02 - More subtle than black and white (0+ / 0-)

          In Masciandaro v US, Sean Masciandaro argued that his car was equivalent to his home because he slept in it when he traveled. The lower courts didn't buy it and they upheld his conviction. SCOTUS denied cert in 2009.

          I think the question about carry in a vehicle is far from settled.

          "The pessimist complains about the wind; the optimist expects it to change; the realist adjusts the sails.” — William Arthur Ward

          by LilithGardener on Sun May 04, 2014 at 09:20:49 AM PDT

          [ Parent ]

          •  Without a carry permit? (1+ / 0-)
            Recommended by:
            LilithGardener

            Possession of a firearm in ones car without a permit?  I agree, it is unsettled.  Personally, I believe that if it moves, it requires a permit.  My above comment was just saying that a person should be allowed to leave a weapon in the car, particularly if the destination prohibits carry.  I wasn't clear in the comment.  Furthermore, I think that only permitted people should be allowed to carry firearms outside of their property.

            •  He had an expired VA permit. (0+ / 0-)

              The park is under the National Park Service, but it's in northern Virginia, right across the river from DC. It's a suburban park.

              The funny thing about his case is that if he hadn't parked illegally he would never have been bothered by the park police.

              "The pessimist complains about the wind; the optimist expects it to change; the realist adjusts the sails.” — William Arthur Ward

              by LilithGardener on Mon May 05, 2014 at 09:39:52 AM PDT

              [ Parent ]

    •  Dicta vs. Holding (3+ / 0-)

      It's important to understand the difference.

      As the courts say time and again, cases are not authority for propositions not considered. When the court says, "We hold ...", that's what the case stands for. No more and no less.

      "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

      by FogCityJohn on Sat May 03, 2014 at 12:46:19 PM PDT

      [ Parent ]

      •  Tell that to "corporations are persons" (0+ / 0-)

        Oh, that's not in the holding of santa clara.

        Looks like reality doesn't match your claim. When that happens in a laboratory setting, the hypothesis is reformulated so that it stops disregarding reality.

        •  Oh, you're quite right about that. (1+ / 0-)
          Recommended by:
          LilithGardener

          But all that proves is that the five Republicans on the Supreme Court are more than willing to twist the rules of jurisprudence to achieve what they view as a politically desirable result.

          They've done it in lots of cases.

          "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

          by FogCityJohn on Sat May 03, 2014 at 08:45:18 PM PDT

          [ Parent ]

          •  Furthermore, why have opinions at all? (0+ / 0-)

            If all a case stands for is the holding, then why bother with pages and pages of opinion?

            If it is as irrelevant as you say, why not just go straight to the holding?

            In fact, the court itself knows that opinions hold weight. As evidence, in Heller's holding: "The Court’s opinion should not be taken to cast doubt"
            The opinion is to be taken in some ways, but NOT to cast doubt on some limitations. Irrefutably, the opinion is to be taken in some ways.
            The. Opinion. Has. Weight.

            It's not me just saying it, the court recognizes it. The mere fact that they keep writing opinions supports me.

            •  The opinion explains the holding. (1+ / 0-)
              Recommended by:
              LilithGardener

              It provides the decisional rationale. And those portions of the opinion that are necessary to the holding do constitute binding law. As I said, though, the trick is to know the difference, which is one of the things you're supposed to learn in law school.

              As for dispensing with the opinion, I think there are some state high courts that have done that. IIRC, the Ohio Supreme Court speaks only through the syllabus of its opinions, which is the exact opposite of the U.S. Supreme Court. The Ohio Supreme Court still issues opinions, but the binding law is only what is in the syllabus, which is the court's summary of its holding or holdings.

              "Ça c'est une chanson que j'aurais vraiment aimé ne pas avoir écrite." -- Barbara

              by FogCityJohn on Sun May 04, 2014 at 01:34:18 PM PDT

              [ Parent ]

  •  Don't know where the plaintiff got their facts.... (1+ / 0-)
    Recommended by:
    FrankRose

    1200 carry permits per year in jersey?

    The US Government Accountability Office did a study.
    PDF - you're looking for page 76
    http://www.gao.gov/...

    According to that study, NJ had about 32,000 permits as of december 2011, out of 6,501,000 people. That's 0.49%, or about 1 person in every 200.

    In contrast, the state of PA right next door had about 786,000 out of 9,523,000 people. That's 8.25%, or 16 and a half people in every 200.

  •  It all depends on Kennedy, (1+ / 0-)
    Recommended by:
    FrankRose

    but given how broad Heller was, I think we're going to see May Issue struck down.

    Shall issue everywhere.

    •  And most of the actual judges actually ruling on (1+ / 0-)
      Recommended by:
      i saw an old tree today

      the issue so far think that you're wrong. (I'll retract this statement if and when the facts change.)

      There can be no protection locally if we're content to ignore the fact that there are no controls globally.

      by oldpotsmuggler on Sat May 03, 2014 at 10:01:55 AM PDT

      [ Parent ]

      •  It's not how many judges, it's where they sit. N/T (0+ / 0-)
        •  And none, so far, sit where you obviously wish (2+ / 0-)

          that they did. There is, to date, not a single important solid precedent that says what you wish for.

          Please feel free to come back if and when you finally have one (as I keep telling KV when he keeps floating these sorts of fantasies).

          There can be no protection locally if we're content to ignore the fact that there are no controls globally.

          by oldpotsmuggler on Sat May 03, 2014 at 07:12:04 PM PDT

          [ Parent ]

          •  You, apparently, haven't been following closely. (0+ / 0-)

            Peruta v. Sandiego
            Moore v Madigan

            Two very significant cases come to mind.

            •  Peruta is still under consideration in the Ninth (1+ / 0-)
              Recommended by:
              LilithGardener

              Ciruit, as I've already detailed here.

              Moore v. Madigan would have worked, but it was mooted by the Illinois Legislature. (Also, the request for Rehearing En Banc seems to show a slim 6 to 4 majority, but only for some form of carry, which is all that the 2 to 1 majority was willing to go for. That there is now "shall issue" is due to right wingers in Illinois, not to any federal judge.)

              There can be no protection locally if we're content to ignore the fact that there are no controls globally.

              by oldpotsmuggler on Sun May 04, 2014 at 10:03:28 AM PDT

              [ Parent ]

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