# SCOTUS - Kachalsky v Cacace (2nd ammendment bear case) **URL:** \ **Category:** Great Debates\ **Created:** [February 5, 2013, 9:05am UTC](https://boards.straightdope.com/t/scotus-kachalsky-v-cacace-2nd-ammendment-bear-case/649372 "2013-02-05T09:05:53Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![DrCube](https://avatars.discourse-cdn.com/v4/letter/d/a3d4f5/32.png) [@DrCube](https://boards.straightdope.com/u/DrCube)\ **Post date:** [February 5, 2013, 9:04pm UTC](https://boards.straightdope.com/t/scotus-kachalsky-v-cacace-2nd-ammendment-bear-case/649372/21 "2013-02-05T21:04:11Z")
> [@Terr](#): > > 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. ---
**Author:** ![Terr](https://avatars.discourse-cdn.com/v4/letter/t/839c29/32.png) [@Terr](https://boards.straightdope.com/u/Terr)\ **Post date:** [February 5, 2013, 9:11pm UTC](https://boards.straightdope.com/t/scotus-kachalsky-v-cacace-2nd-ammendment-bear-case/649372/22 "2013-02-05T21:11:06Z")
> [@DrCube](#): > > 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. ---
**Author:** ![Airman\_Doors\_USAF](https://avatars.discourse-cdn.com/v4/letter/a/e36b37/32.png) [@Airman\_Doors\_USAF](https://boards.straightdope.com/u/Airman_Doors_USAF)\ **Post date:** [February 5, 2013, 9:19pm UTC](https://boards.straightdope.com/t/scotus-kachalsky-v-cacace-2nd-ammendment-bear-case/649372/23 "2013-02-05T21:19:06Z")
> [@FrankJBN](#): > > 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. ---
**Author:** ![DrCube](https://avatars.discourse-cdn.com/v4/letter/d/a3d4f5/32.png) [@DrCube](https://boards.straightdope.com/u/DrCube)\ **Post date:** [February 5, 2013, 9:20pm UTC](https://boards.straightdope.com/t/scotus-kachalsky-v-cacace-2nd-ammendment-bear-case/649372/24 "2013-02-05T21:20:48Z")
> [@Terr](#): > > 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. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [February 5, 2013, 9:25pm UTC](https://boards.straightdope.com/t/scotus-kachalsky-v-cacace-2nd-ammendment-bear-case/649372/25 "2013-02-05T21:25:14Z")
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. ---
**Author:** ![Terr](https://avatars.discourse-cdn.com/v4/letter/t/839c29/32.png) [@Terr](https://boards.straightdope.com/u/Terr)\ **Post date:** [February 5, 2013, 9:27pm UTC](https://boards.straightdope.com/t/scotus-kachalsky-v-cacace-2nd-ammendment-bear-case/649372/26 "2013-02-05T21:27:59Z")
> [@DrCube](#): > > 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”. ---
**Author:** ![DrCube](https://avatars.discourse-cdn.com/v4/letter/d/a3d4f5/32.png) [@DrCube](https://boards.straightdope.com/u/DrCube)\ **Post date:** [February 5, 2013, 9:29pm UTC](https://boards.straightdope.com/t/scotus-kachalsky-v-cacace-2nd-ammendment-bear-case/649372/27 "2013-02-05T21:29:23Z")
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. ---
**Author:** ![DrCube](https://avatars.discourse-cdn.com/v4/letter/d/a3d4f5/32.png) [@DrCube](https://boards.straightdope.com/u/DrCube)\ **Post date:** [February 5, 2013, 9:35pm UTC](https://boards.straightdope.com/t/scotus-kachalsky-v-cacace-2nd-ammendment-bear-case/649372/28 "2013-02-05T21:35:56Z")
> [@Terr](#): > > 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. ---
**Author:** ![FrankJBN](https://avatars.discourse-cdn.com/v4/letter/f/f0a364/32.png) [@FrankJBN](https://boards.straightdope.com/u/FrankJBN)\ **Post date:** [February 5, 2013, 9:38pm UTC](https://boards.straightdope.com/t/scotus-kachalsky-v-cacace-2nd-ammendment-bear-case/649372/29 "2013-02-05T21:38:12Z")
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. ---
**Author:** ![Terr](https://avatars.discourse-cdn.com/v4/letter/t/839c29/32.png) [@Terr](https://boards.straightdope.com/u/Terr)\ **Post date:** [February 5, 2013, 9:48pm UTC](https://boards.straightdope.com/t/scotus-kachalsky-v-cacace-2nd-ammendment-bear-case/649372/30 "2013-02-05T21:48:51Z")
> [@DrCube](#): > > 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. ---
**Author:** ![Lumpy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/lumpy/32/446_2.png) [@Lumpy](https://boards.straightdope.com/u/Lumpy)\ **Post date:** [February 5, 2013, 9:58pm UTC](https://boards.straightdope.com/t/scotus-kachalsky-v-cacace-2nd-ammendment-bear-case/649372/31 "2013-02-05T21:58:05Z")
> [@FrankJBN](#): > > 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. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [February 5, 2013, 11:16pm UTC](https://boards.straightdope.com/t/scotus-kachalsky-v-cacace-2nd-ammendment-bear-case/649372/32 "2013-02-05T23:16:23Z")
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. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [February 6, 2013, 2:33pm UTC](https://boards.straightdope.com/t/scotus-kachalsky-v-cacace-2nd-ammendment-bear-case/649372/33 "2013-02-06T14:33:04Z")
> [@DrCube](#): > > 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. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [February 6, 2013, 4:10pm UTC](https://boards.straightdope.com/t/scotus-kachalsky-v-cacace-2nd-ammendment-bear-case/649372/34 "2013-02-06T16:10:18Z")
Can you give me an example of a discretionary policy that is not arbitrary? My understanding was that these were synonyms. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [February 6, 2013, 4:40pm UTC](https://boards.straightdope.com/t/scotus-kachalsky-v-cacace-2nd-ammendment-bear-case/649372/35 "2013-02-06T16:40:19Z")
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. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [February 6, 2013, 4:57pm UTC](https://boards.straightdope.com/t/scotus-kachalsky-v-cacace-2nd-ammendment-bear-case/649372/36 "2013-02-06T16:57:10Z")
In what way do the legal definitions diverge? ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [February 6, 2013, 5:20pm UTC](https://boards.straightdope.com/t/scotus-kachalsky-v-cacace-2nd-ammendment-bear-case/649372/37 "2013-02-06T17:20:21Z")
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. ---
**Author:** ![DrCube](https://avatars.discourse-cdn.com/v4/letter/d/a3d4f5/32.png) [@DrCube](https://boards.straightdope.com/u/DrCube)\ **Post date:** [February 6, 2013, 6:06pm UTC](https://boards.straightdope.com/t/scotus-kachalsky-v-cacace-2nd-ammendment-bear-case/649372/38 "2013-02-06T18:06:45Z")
> [@Really\_Not\_All\_That\_Bright](#): > > 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. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [February 6, 2013, 6:30pm UTC](https://boards.straightdope.com/t/scotus-kachalsky-v-cacace-2nd-ammendment-bear-case/649372/39 "2013-02-06T18:30:22Z")
> [@DrCube](#): > > 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): > [@](#): > > 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. > > \ > > 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. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [February 6, 2013, 6:36pm UTC](https://boards.straightdope.com/t/scotus-kachalsky-v-cacace-2nd-ammendment-bear-case/649372/40 "2013-02-06T18:36:15Z")
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. [Previous page](https://boards.straightdope.com/t/scotus-kachalsky-v-cacace-2nd-ammendment-bear-case/649372.md?page=1) [Next page](https://boards.straightdope.com/t/scotus-kachalsky-v-cacace-2nd-ammendment-bear-case/649372.md?page=3)