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  #1  
Old 02-05-2013, 03:05 AM
Bone Bone is offline
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SCOTUS - Kachalsky v Cacace (2nd ammendment bear case)

Earlier this month, Alan Gura with the Second Amendment Foundation filed a petition for Cert at SCOTUS in the matter of Kachalsky v Cacace from the 2nd circuit. This is asking SCOTUS to decide whether discretionary issuance of firearm carry liceses is unconstitutional. It highlights the circuit split in the 7th district with the recent Moore decision.

In NY, if you wish to apply for a permit to carry a firearm, you can be denied at the sole discretion of the licensing agency. A self-defense interest, the core of the 2nd amendment, is not sufficient to justify issuance of a permit. For all states that are not “shall issue”, I think 10 out of 50, this is the case. Similarly where I live in CA, the local sheriff may deny a permit to anyone for any reason. There is no state constitutional equivalent of the 2nd amendment and even though McDonald incorporated Heller, no substantial cases have come to pass striking down the numerous state restrictions on firearms.

A few selections from the petition:

Quote:
A “right” that may not be exercised absent a government official’s discretionary determination that an individual has “proper cause” to exercise it, is not much of a right.
Quote:
[A]n ordinance which . . . makes the peaceful enjoyment of freedoms which the Constitution guarantees contingent upon the uncontrolled will of an official – as by requiring a permit or license which may be granted or withheld in the discretion of such official – is an unconstitutional censorship or prior restraint upon the enjoyment of those freedoms.
For debate:

Discretionary carry permits are unconstitutional if ‘bear’ is to mean anything in the 2nd. If the current lineup of SCOTUS justices holds, I predict this case will be granted cert. Gura has built himself quite a reputation, and with the circuit split this is a great case to resolve the split.

I may be optimistic, but I think by the end of June 2014 some form of carry permit, either concealed or open, will be “shall issue” or some functional equivalent will be the law of the land in all 50 states.
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  #2  
Old 02-05-2013, 03:42 AM
Boyo Jim Boyo Jim is offline
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Did somebody shoot a bear?
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  #3  
Old 02-05-2013, 05:37 AM
JLRogers JLRogers is offline
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Originally Posted by Bone View Post
Discretionary carry permits are unconstitutional if ‘bear’ is to mean anything in the 2nd. If the current lineup of SCOTUS justices holds, I predict this case will be granted cert. Gura has built himself quite a reputation, and with the circuit split this is a great case to resolve the split.

I may be optimistic, but I think by the end of June 2014 some form of carry permit, either concealed or open, will be “shall issue” or some functional equivalent will be the law of the land in all 50 states.
I am hopeful that the case will be granted cert, but I am no legal scholar. I would not be altogether surprised if SCotUS balked at the idea of "bear" necessarily implying carry. As I recall in District of Columbia v Heller several justices seemed very careful to differentiate fully automatic weapons from their semiautomatic variants, apparently in order to avoid addressing the NFA of 1934 and subsequent laws regulating fully automatic weapons. As I understand the court's interpretation of the 2nd Amendment a ban on modern (post -'86) fully automatic weapons seems a clear infringement, but SCotUS was uninterested in disrupting the status quo in that case.

I think you are optimistic in expecting SCotUS to find shall issue permits to be mandated by the 2nd Amendment. Speaking as a gun owner it would be nice to see a victory here, but I'm not entirely convinced it willt urn out that way. Still, I give the SAF money to pursue just this sort of case, and Gura is no fool. I hope I'm wrong.
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Old 02-05-2013, 06:40 AM
Bryan Ekers Bryan Ekers is online now
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Self-defense is the core of the 2nd Amendment? I thought state defense was the core of the 2nd Amendment.
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  #5  
Old 02-05-2013, 10:27 AM
Really Not All That Bright Really Not All That Bright is online now
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For broad readings of "self", I guess. In Heller, Scalia decided that there was a right to self-defense (which necessarily included the right to carry guns) which existed wholly independent of the Second Amendment.*
Quote:
It is therefore entirely sensible that the Second Amendment ’s prefatory clause announces the purpose for which the right was codified: to prevent elimination of the militia. The prefatory clause does not suggest that preserving the militia was the only reason Americans valued the ancient right; most undoubtedly thought it even more important for self-defense and hunting. But the threat that the new Federal Government would destroy the citizens’ militia by taking away their arms was the reason that right—unlike some other English rights—was codified in a written Constitution. Justice Breyer’s assertion that individual self-defense is merely a “subsidiary interest” of the right to keep and bear arms, see post, at 36, is profoundly mistaken. He bases that assertion solely upon the prologue—but that can only show that self-defense had little to do with the right’s codification; it was the central component of the right itself.

Besides ignoring the historical reality that the Second Amendment was not intended to lay down a “novel principl[e]” but rather codified a right “inherited from our English ancestors,” Robertson v. Baldwin, 165 U. S. 275, 281 (1897) , petitioners’ interpretation does not even achieve the narrower purpose that prompted codification of the right. If, as they believe, the Second Amendment right is no more than the right to keep and use weapons as a member of an organized militia, see Brief for Petititioners 8—if, that is, the organized militia is the sole institutional beneficiary of the Second Amendment ’s guarantee—it does not assure the existence of a “citizens’ militia” as a safeguard against tyranny. For Congress retains plenary authority to organize the militia, which must include the authority to say who will belong to the organized force.17 That is why the first Militia Act’s requirement that only whites enroll caused States to amend their militia laws to exclude free blacks. See Siegel, The Federal Government’s Power to Enact Color-Conscious Laws, 92 Nw. U. L. Rev. 477, 521–525 (1998). Thus, if petitioners are correct, the Second Amendment protects citizens’ right to use a gun in an organization from which Congress has plenary authority to exclude them. It guarantees a select militia of the sort the Stuart kings found useful, but not the people’s militia that was the concern of the founding generation.
Considering SCOTUS explicitly declined to apply strict scrutiny (or any recognizable standard of review, for that matter) in Heller and McDonald, it's hard to see them doing it here. As long as a permit hasn't been arbitrarily and/or capriciously denied the law will probably be upheld; in fact, the law will probably be upheld in any event and the specific denial reversed.

*perhaps the best proof yet that lawyers make bad historians.
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Old 02-05-2013, 10:32 AM
Bone Bone is offline
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Quote:
Originally Posted by Bryan Ekers View Post
Self-defense is the core of the 2nd Amendment? I thought state defense was the core of the 2nd Amendment.
From Heller:
Quote:
Similarly, the requirement that any lawful firearm in the home be disassembled or bound by a trigger lock makes it impossible for citizens to use arms for the core lawful purpose of self-defense and is hence unconstitutional
(my bold)

@ JLRogers - NFA weapons weren't addressed because they weren't related to the specific issues raised. I suspect if enough legal groundwork is built, restrictions on certain NFA items like suppressors may be overturned. Maybe 2020?

Last edited by Bone; 02-05-2013 at 10:33 AM..
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Old 02-05-2013, 10:35 AM
Really Not All That Bright Really Not All That Bright is online now
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He is saying that self-defense is the "core lawful purpose" of the right to keep and bear arms, not of the Second Amendment.
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Old 02-05-2013, 11:40 AM
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From the petition for cert, and quoting Heller:

Quote:
Three times, Heller succinctly describes the Second Amendment’s “core” interest, to wit: (1) the Second Amendment’s “core lawful purpose [is] self-defense,” Heller, 554 U.S. at 630; (2) “self-defense . . . was the central component of the right itself,” id. at 599; (3) “the inherent right of self-defense has been central to the Second Amendment right.”
You included section (2) in your quote above.

I'm not sure how you are separating the right to keep and bear arms from the second amendment itself. From Heller, it is clear that self defense is central to the 2nd amendment and a if not the core purpose.

Quote:
Originally Posted by Really Not All That Bright View Post
Considering SCOTUS explicitly declined to apply strict scrutiny (or any recognizable standard of review, for that matter) in Heller and McDonald, it's hard to see them doing it here. As long as a permit hasn't been arbitrarily and/or capriciously denied the law will probably be upheld; in fact, the law will probably be upheld in any event and the specific denial reversed.
Any standard of scrutiny was avoided in Heller because no standard would have made any difference to the question presented. If a state wishes to have a discretionary licensing scheme, it's process will almost certainly need to pass some level of scrutiny. I think this case will set that standard. Consistent with other fundamental rights, I am hopeful for strict scrutiny but that may be optimism.

It would not be sufficient to simply reverse a denial of license issuance because the SAF is an institutional plaintiff representing all of its members. This is done specifically to avoid the defendants ability to moot the case by issuing specific permits to the individual plaintiffs. Gura has historically been very adept at choosing plaintiffs and venue which also makes me hopeful.
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Old 02-05-2013, 11:45 AM
Really Not All That Bright Really Not All That Bright is online now
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The Petition misquotes the opinion, then. That's perhaps not surprising, because Heller went beyond the arguments actually raised by Gura. As you can see from my quote, Scalia distinguishes the purpose of the Amendment (to protect the militia) from the purpose of the freestanding right to keep and bear arms.

The whole crux of Heller is that the right to keep and bear arms exists separate from the Second Amendment. I think that's exactly the sort of right-creation that Scalia frequently scolds his colleagues for, but that's what he's saying.

Last edited by Really Not All That Bright; 02-05-2013 at 11:49 AM..
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Old 02-05-2013, 11:53 AM
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I tend to think your interpretation is incorrect. While Scalia does say that the right to self defense essentially exists outside the constitution (I agree), the rest of the opinion and that section goes on to say that the right that is codified in the second amendment while explicitly done to prevent the elimination of the citizen militia, it is grounded in self defense.
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Old 02-05-2013, 12:11 PM
Really Not All That Bright Really Not All That Bright is online now
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Sure, but you must still distinuguish between the purpose of the Amendment and the purpose of the underlying right.

I think you may be misunderstanding me, though; I don't think this makes any difference to the analysis. Whether the right in question is freestanding or constitutional, it's fundamental, according to Heller.
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Old 02-05-2013, 12:16 PM
John Mace John Mace is online now
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Originally Posted by Really Not All That Bright View Post
The Petition misquotes the opinion, then. That's perhaps not surprising, because Heller went beyond the arguments actually raised by Gura. As you can see from my quote, Scalia distinguishes the purpose of the Amendment (to protect the militia) from the purpose of the freestanding right to keep and bear arms.

The whole crux of Heller is that the right to keep and bear arms exists separate from the Second Amendment. I think that's exactly the sort of right-creation that Scalia frequently scolds his colleagues for, but that's what he's saying.
Are you saying that the right of citizens to bear arms was not firmly rooted in English common law at the time of the constitution? That seems to be the crux of Scalia's argument, and I think he's right. The BoR, as you know, was not meant to be an exhaustive list of rights. Unless the federal government was granted the authority to disarm the populace, that power resides in the people and the states.

As for this particular case, if it is a question of what the states can do, then we need to understand if the 2nd amendment should be incorporated. That's a different question, and I'm not sure what the answer should be. However, if the right to bear arms is an individual right, then it would seem that the states do not have the authority to arbitrarily disarm a portion of the populace.
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Old 02-05-2013, 12:26 PM
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John - the 2nd was already incorporated in McDonald. Heller held the 2nd was an individual right, and McDonald incorporated that right.
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Old 02-05-2013, 12:30 PM
John Mace John Mace is online now
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Originally Posted by Bone View Post
John - the 2nd was already incorporated in McDonald. Heller held the 2nd was an individual right, and McDonald incorporated that right.
Well, you kids are hard to keep up with these days!

I hadn't really checked on incorporation for several years, and didn't realize the 2nd had been given the nod. If it's incorporated, then I think this is a no-brainer.
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Old 02-05-2013, 01:01 PM
Really Not All That Bright Really Not All That Bright is online now
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Originally Posted by John Mace View Post
Are you saying that the right of citizens to bear arms was not firmly rooted in English common law at the time of the constitution? That seems to be the crux of Scalia's argument, and I think he's right. The BoR, as you know, was not meant to be an exhaustive list of rights. Unless the federal government was granted the authority to disarm the populace, that power resides in the people and the states.
Yes, that's what I'm saying. I don't want to derail this thread, since we have a million others on legal analysis of the RKBA generally, so I'm going to spoiler the substance of my response and anyone who wants to can start another thread about it.
SPOILER:
Often cited in pro-gun paeans is the English Bill of Rights, which supposedly codified the right in English law. It didn't; it merely said that Protestants should be allowed to own arms to the same extent that "Papists" could:
Quote:
And thereupon the said Lords Spiritual and Temporal and Commons, pursuant to their respective letters and elections, being now assembled in a full and free representative of this nation, taking into their most serious consideration the best means for attaining the ends aforesaid, do in the first place (as their ancestors in like case have usually done) for the vindicating and asserting their ancient rights and liberties declare...

<snip>

That the subjects which are Protestants may have arms for their defence suitable to their conditions and as allowed by law...
Thomas Jefferson went on at length in many treatises about how the new government would guarantee the right of freemen to keep and bear arms, but he apparently didn't think it was a right they already had.

The Declaration of Independence contains an exhaustive list of things the colonies were upset about, but nowhere in there does it say anything about the King's men taking guns away (even though one of the root causes of the rebellion was supposedly disarmament of the Massachusetts militia by Gage).

At best, Englishmen enjoyed a vague presumption that they could own guns if the government didn't say otherwise. The right to self-defense is a separate issue, of course.
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Old 02-05-2013, 02:34 PM
John Mace John Mace is online now
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But you forget that:

SPOILER:
The War of Independence started because the colonists resisted efforts to actually confiscate the weapons in the armory in Concord.
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Old 02-05-2013, 02:43 PM
Really Not All That Bright Really Not All That Bright is online now
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SPOILER:
That's what I was referring to.
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  #18  
Old 02-05-2013, 02:50 PM
FrankJBN FrankJBN is offline
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The funny thing to me is that those who claim the 2nd Amendment as supporting their right to accumulate firearms, don't really believe in the 2nd Amendment which as we all know by now reads in pertinant part: "the right of the People to keep and bear arms shall not be infringed."

They always talk about law-abiding citizens, as if those convicted of crimes or mental defectives are not a part of the "people". Gun rights people absolutely want the rights of the people to keep and bear arms infringed - just not their right.
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Old 02-05-2013, 03:01 PM
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Originally Posted by FrankJBN View Post
They always talk about law-abiding citizens, as if those convicted of crimes or mental defectives are not a part of the "people". Gun rights people absolutely want the rights of the people to keep and bear arms infringed - just not their right.
Hm. Are the 1st amendment advocates hypocritical because they don't object to the abridgement of prisoners' right "peaceably to assemble"?
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Old 02-05-2013, 03:02 PM
DrCube DrCube is offline
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Originally Posted by FrankJBN View Post
The funny thing to me is that those who claim the 2nd Amendment as supporting their right to accumulate firearms, don't really believe in the 2nd Amendment which as we all know by now reads in pertinant part: "the right of the People to keep and bear arms shall not be infringed."

They always talk about law-abiding citizens, as if those convicted of crimes or mental defectives are not a part of the "people". Gun rights people absolutely want the rights of the people to keep and bear arms infringed - just not their right.
I don't know who you're talking about here, but I'm certainly not one of those people. Felons (after serving out their sentence, of course, which may include restricted access to firearms) should be allowed to own firearms like the rest of us. Same with the mentally ill, except for specific times when they have illustrated they are a danger to themselves or others. (Mentally ill or not, people should have their firearms confiscated if they threaten themselves or others with them.)
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Old 02-05-2013, 03:04 PM
DrCube DrCube is offline
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Hm. Are the 1st amendment advocates hypocritical because they don't object to the abridgement of prisoners' right "peaceably to assemble"?
If they say "You shouldn't be able to peaceably assemble ever again, even after you've served out your sentence", then yes.
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Old 02-05-2013, 03:11 PM
Terr Terr is offline
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If they say "You shouldn't be able to peaceably assemble ever again, even after you've served out your sentence", then yes.
Distinction without a difference. Abridgement is abridgement, whether it lasts 10 years or whole life.
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Old 02-05-2013, 03:19 PM
Airman Doors, USAF Airman Doors, USAF is online now
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Quote:
Originally Posted by FrankJBN View Post
The funny thing to me is that those who claim the 2nd Amendment as supporting their right to accumulate firearms, don't really believe in the 2nd Amendment which as we all know by now reads in pertinant part: "the right of the People to keep and bear arms shall not be infringed."

They always talk about law-abiding citizens, as if those convicted of crimes or mental defectives are not a part of the "people". Gun rights people absolutely want the rights of the people to keep and bear arms infringed - just not their right.
You act like guns have no restrictions. They do. A LOT of them. We accept that there are and will continue to be restrictions, we simply choose to make an argument for what those restrictions should be.
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Old 02-05-2013, 03:20 PM
DrCube DrCube is offline
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Distinction without a difference. Abridgement is abridgement, whether it lasts 10 years or whole life.
No it isn't, unless you want to give up the idea of law entirely. Laws require punishments to be enforced. Punishments necessitate restricting rights. Not all rights, but some.

That said, when the punishment ends, so should the restriction of rights.
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Old 02-05-2013, 03:25 PM
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Back to the topic at hand - that being carry and the Kachalsky case. I'm wondering if anyone will make a case given our current jurisprudence in favor of discretionary carry schemes as exists in NY and where I'm most familiar, CA.
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Old 02-05-2013, 03:27 PM
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Originally Posted by DrCube View Post
No it isn't, unless you want to give up the idea of law entirely. Laws require punishments to be enforced. Punishments necessitate restricting rights. Not all rights, but some.

That said, when the punishment ends, so should the restriction of rights.
So in terms of gun rights the punishment doesn't end. By law. "Unless you want to give up the idea of law entirely".
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Old 02-05-2013, 03:29 PM
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Even setting aside guns entirely, should any permit or license be "arbitrary issue"? I don't understand how anyone can make a legal or moral defense of this practice. The requirements should be known, and when met, the permit should be issued. It baffles me that it could be any other way.
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Old 02-05-2013, 03:35 PM
DrCube DrCube is offline
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So in terms of gun rights the punishment doesn't end. By law. "Unless you want to give up the idea of law entirely".
Right, I'm not saying that restricting felons from having guns is unconstitutional, against the rule of law, or anything like that. Just don't lump me in with people who want to take gun rights away from felons who have served their time.

Personally, if any aspect of the punishment is limited, I think all of it should be. Not that there shouldn't be probationary periods. A 5 year prison term plus 5 more years of restricted firearm ownership sounds reasonable to me. 5 years in prison plus a lifetime with no guns doesn't.

The only punishment that doesn't expire should be life imprisonment.
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Old 02-05-2013, 03:38 PM
FrankJBN FrankJBN is offline
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DR Cube you are the exception then. Certainly we can see support of my post in almost every interview with '2nd amendment advocates'

"Even setting aside guns entirely, should any permit or license be "arbitrary issue"? "

Why not when the basic law of the land states that 'the right to such permit shall not be infringed.' Certainly there is no right to a driver's license guaranteed anywhere.
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Old 02-05-2013, 03:48 PM
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Originally Posted by DrCube View Post
Even setting aside guns entirely, should any permit or license be "arbitrary issue"? I don't understand how anyone can make a legal or moral defense of this practice. The requirements should be known, and when met, the permit should be issued. It baffles me that it could be any other way.
Well, arguably, they do have a requirement. A "need" needs to be demonstrated. Who decides whether the need is sufficient? The issuing authority. Arbitrarily.

For example - Rhode Island. Issuing a license requirement: "good reason to fear an injury to his or her person or property or has any other proper reason for carrying a pistol or revolver". Arbitrary? I say yes, because the interpretation of "good reason" and "proper reason" is arbitrary. Some would say no.
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Old 02-05-2013, 03:58 PM
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DR Cube you are the exception then. Certainly we can see support of my post in almost every interview with '2nd amendment advocates'

"Even setting aside guns entirely, should any permit or license be "arbitrary issue"? "

Why not when the basic law of the land states that 'the right to such permit shall not be infringed.' Certainly there is no right to a driver's license guaranteed anywhere.
And yet the qualifications for a drivers license are entirely objective and spelled out in the laws of the states. This is like if you flawlessly passed a drivers exam, and then the guy at the DMV window said he didn't think you could be trusted with a car based on his gut. That's pretty much what "May-Issue" is. The court isn't going to be deciding whether any restrictions are unconstitutional, just arbitrary ones.
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Old 02-05-2013, 05:16 PM
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The great thing is that in Moore in the 7th circuit, the restriction on carry permits was struck down, and the legislature was given 180 days to craft new legislation to allow carry. Since the Illinois legislature is most certainly pro-gun rights, they have the opportunity to extract massive concessions from their opponents. If the legislature does nothing within the 180 days, Illinois effectively becomes constitutional carry and no permit would be necessary.

This is what is causing the split with the 2nd circuit. Moore was also an SAF case argued by Gura.

And talk about arbitrary - in Sacramento County, CA (after several lawsuits about the same), applying for a permit "lawful self defense" is sufficient justification. Go about 30 miles to the west and it is not. Of course, the permit is valid state wide so that makes tons of sense.
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Old 02-06-2013, 08:33 AM
Really Not All That Bright Really Not All That Bright is online now
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Originally Posted by DrCube View Post
Even setting aside guns entirely, should any permit or license be "arbitrary issue"? I don't understand how anyone can make a legal or moral defense of this practice. The requirements should be known, and when met, the permit should be issued. It baffles me that it could be any other way.
The fact that issuance of a permit is discretionary does not necessarily mean it's arbitrary. The court can look at the procedure the sheriff's office actually uses and determine whether it's arbitrary or not. Some factors to consider might be whether or not there are written guidelines for issuance of the permit and whether the applicant can challenge the denial.

Last edited by Really Not All That Bright; 02-06-2013 at 08:33 AM..
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Old 02-06-2013, 10:10 AM
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Can you give me an example of a discretionary policy that is not arbitrary? My understanding was that these were synonyms.
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Old 02-06-2013, 10:40 AM
Really Not All That Bright Really Not All That Bright is online now
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The lay definitions of the terms are somewhat synonymous. The legal definitions are not.

I see that use of the term "arbitrary" in this thread appears to stem from DrCube's usage.
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Old 02-06-2013, 10:57 AM
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In what way do the legal definitions diverge?
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Old 02-06-2013, 11:20 AM
Really Not All That Bright Really Not All That Bright is online now
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Arbitrariness is the foundation of the rational basis test. An arbitrary government action is ipso facto unconstitutional.

Discretion, on the other hand, is employed in all sorts of constitutional ways. The rules of civil procedure give judges lots of discretion regarding whether to admit this evidence or grant that motion. Most legislation gives the relevant executive agency a great deal of discretion in terms of how to apply it. The term does not mean (as arbitrary does) that the decisionmaker can act on a whim.

Last edited by Really Not All That Bright; 02-06-2013 at 11:21 AM..
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  #38  
Old 02-06-2013, 12:06 PM
DrCube DrCube is offline
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Originally Posted by Really Not All That Bright View Post
The term does not mean (as arbitrary does) that the decisionmaker can act on a whim.
Here's my confusion: If the decision maker CANNOT act on a whim, they must be obligated to follow some guidelines or rules to make their decision. Like a checklist with neatly spelled out requirements.

If that is the case, it sounds exactly like shall-issue: Meet the requirements, and once the issuing authority verifies those requirements are met, the permit is issued.

If, after the stated requirements are met, the authority can still deny for their own reasons, that sounds like the definition of "arbitrary".

I'm finding it difficult to see a middle ground here. Either the requirements are spelled out and must be followed, or else the issuance is arbitrary and subject to whim.
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Old 02-06-2013, 12:30 PM
Really Not All That Bright Really Not All That Bright is online now
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Here's my confusion: If the decision maker CANNOT act on a whim, they must be obligated to follow some guidelines or rules to make their decision. Like a checklist with neatly spelled out requirements.
Rules are not necessarily "checklists with neatly spelled out requirements". The First Amendment does not require a "checklist" for issuance of a demonstration permit, for example (Thomas v. Chicago Park District).

The New York law being challenged here reads (in pertinent part):
Quote:
A license for a pistol or revolver, other than an assault weapon or a disguised gun, shall be issued to... have and carry concealed, without regard to employment or place of possession, by any person when proper cause exists for the issuance thereof.

<snip>

In acting upon an application [to carry firearms], the licensing officer shall either deny the application for reasons specifically and concisely stated in writing or grant the application and issue the license applied for.
"Proper cause" isn't defined, but as we learned in Thomas, similar grants of discretion are not unconstitutional so long as the interpreting agency imposes sufficiently precise standards.

In other words, if people are being summarily denied permits without valid grounds their recourse is to sue the local sheriff, not challenge the law itself.

Of course, it is entirely possible that SCOTUS will decide carry permits are not analogous to protest permits.

Last edited by Really Not All That Bright; 02-06-2013 at 12:31 PM..
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Old 02-06-2013, 12:36 PM
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In NY, the number of permits issues is nearly zero, meaning that no one possess proper cause. That effectively makes bearing as it relates to the 2nd amendment, a fundamental right, impossible. That is a situation that doesn't seem likely to withstand constitutional scrutiny.
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Old 02-06-2013, 01:17 PM
Lumpy Lumpy is offline
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A rule might be "discretionary" rather than "arbitrary", but then you get into weasel words that allow the issuing authority to do whatever it likes. If the rule is that issuers can deny a permit "in the furtherance of public safety" for example, and you're denied, how do you dispute the denial? I'm reminded of Soviet Union laws that were so broadly worded that they allowed the authorities to arrest and imprison anyone for any perceived opposition to the state.
ETA: we wouldn't have come to this pass if for decades it hadn't been the policy of police and public officials to simply conclude that fewer guns was always better.

Last edited by Lumpy; 02-06-2013 at 01:18 PM..
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Old 02-06-2013, 04:56 PM
Really Not All That Bright Really Not All That Bright is online now
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Originally Posted by Bone View Post
In NY, the number of permits issues is nearly zero, meaning that no one possess proper cause. That effectively makes bearing as it relates to the 2nd amendment, a fundamental right, impossible. That is a situation that doesn't seem likely to withstand constitutional scrutiny.
The number of permits issued must be measured against the number of applications, and the reasons given for denial. Perhaps only ex-cons are applying for carry permits in New York. Unlikely, of course, but not impossible. The numbers might be covered in the lower decisions but I don't have time to look through them.
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Originally Posted by Lumpy View Post
A rule might be "discretionary" rather than "arbitrary", but then you get into weasel words that allow the issuing authority to do whatever it likes. If the rule is that issuers can deny a permit "in the furtherance of public safety" for example, and you're denied, how do you dispute the denial? I'm reminded of Soviet Union laws that were so broadly worded that they allowed the authorities to arrest and imprison anyone for any perceived opposition to the state.
ETA: we wouldn't have come to this pass if for decades it hadn't been the policy of police and public officials to simply conclude that fewer guns was always better.
As I pointed out, the NY law requires the issuing agency to specify the reasons for denial. If the reasons being given are weaselly, then sue the agencies.
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Old 02-06-2013, 06:11 PM
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That's what's happening now, agencies getting sued, hence the cert petition

I agree if only felons and insane people are applying for permits then you'd expect mostly denials. I strongly believe that's not the case. I don't have the numbers on hand, but they don't bode well for a transparent process if I recall correctly.

Only tangentially related, since if this is ruled favorably then it would affect CA, but there are several counties in CA where people are discouraged from even applying. You are told it's not worth it because you will be denied. In looking at the county by county breakdown, it's obvious that there are counties that are virtually "no issue". San Francisco County, with a population of over 800K people, has less than 5 people with a CCW permit. Contra Costa County, with a population of over 1M, has less than 100 people with a CCW. If any of these types anomalies (vastly lower issuance rate as compared to population density) existed in a sort of disparate impact test, it would be obvious that something is wrong with the issuance numbers.
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Old 02-06-2013, 06:27 PM
Really Not All That Bright Really Not All That Bright is online now
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But the agencies aren't being sued here; that would be a challenge to the agency procedure, and would be handled by a New York court (or probably an administrative tribunal). Instead, the petitioners are challenging the constitutionality of the legislation itself.
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Old 02-06-2013, 06:41 PM
Lumpy Lumpy is offline
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Originally Posted by Really Not All That Bright View Post
But the agencies aren't being sued here; that would be a challenge to the agency procedure, and would be handled by a New York court (or probably an administrative tribunal). Instead, the petitioners are challenging the constitutionality of the legislation itself.
Because the petitioners are claiming that the may-issue laws are enacted arbitrarily. Remember that Brown v. Board of Education overturned the Plessy v. Ferguson ruling precisely on the grounds that the theoretical "separate but equal" principle of Plessy v. Ferguson was found to be a legal fiction that never actually happened in real life. The court does occasionally look at the actual results of a law instead of how it's supposed to work in theory.
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Old 02-06-2013, 06:53 PM
Really Not All That Bright Really Not All That Bright is online now
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Brown v. Board didn't overturn Plessy*, and was premised on the fact that separate education was inherently harmful regardless of whether the facilities were equal. Similar cases have been decided on the basis that certain procedures were essentially legal fictions, of course, and I take your point.

That's not the issue here, though. This case, unlike Brown, involves administrative law. The legislature has the authority to delegate power to the executive to carry out government functions. When it does so, anyone challenging an agency action is generally required to exhaust administrative remedies before challenging the action in the courts.

The petitioners are not claiming the laws are "enacted arbitrarily". They are claiming they are being enforced arbitrarily.

*all Plessy did was establish that separate but equal railcars were permissible. Brown distinguished Plessy in the area of public education.

Last edited by Really Not All That Bright; 02-06-2013 at 06:56 PM..
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Old 02-06-2013, 06:59 PM
Really Not All That Bright Really Not All That Bright is online now
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Incidentally, the trial court decision at issue (Kachalsky v. Cacace, 817 F. Supp. 2d 235 (S.D.N.Y. 2011) aff'd sub nom. Kachalsky v. County of Westchester, 701 F.3d 81 (2d Cir. 2012)) indicates that the plaintiffs did appeal the denials under NY administrative procedures, and lost.
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Old 02-06-2013, 07:41 PM
BrainGlutton BrainGlutton is offline
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Originally Posted by Bryan Ekers View Post
Self-defense is the core of the 2nd Amendment? I thought state defense was the core of the 2nd Amendment.
It is. Don't understand why the "original intent" SCOTUS justices have forgotten that. The politicians of the time added the Second Amendment because they wanted the U.S. to have a small standing army, and a large militia ready to be mobilized quickly in an emergency, bringing their own muskets from home, to serve the state, not to fight it -- remember how George Washington responded to the Whiskey Rebellion.

Eventually, it developed that that is not a good model for national defense, and that a large standing army is not the threat-to-liberty it appeared to be in the 18th Century. Now we have a large standing army, backed up by quasi-professional National Guards who do not supply their own weapons, and it all works very well regardless of whether anybody has firearms at home or not.

Last edited by BrainGlutton; 02-06-2013 at 07:42 PM..
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Old 02-06-2013, 07:46 PM
BrainGlutton BrainGlutton is offline
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Originally Posted by Really Not All That Bright View Post
He is saying that self-defense is the "core lawful purpose" of the right to keep and bear arms, not of the Second Amendment.
So the right is a "natural" one and constitutionally protected independent of constitutional provisions? Sounds like a Ninth-Amendment/Tenth Amendment argument; those are usually bullshit. "Natural-rights"/"natural-law" arguments always are.
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Old 02-06-2013, 09:01 PM
Little Nemo Little Nemo is online now
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The intent of the amendment seems pretty clear to me: keeping and bearing are listing distinctly, which I feel means people have a right both to own firearms and to carry them. Like other constitutional rights, it's not absolute but it should be interpreted broadly. And the laws in question don't come close to being within the scope of this broad right. I'd rule them unconstitutional.

Last edited by Little Nemo; 02-06-2013 at 09:02 PM..
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