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Tue Jul 24, 2018, 06:42 PM

I took one for the team and read the Ninth Circuit Young open carry decision.

The bad news is that I think the decision is correct. Hear me out.

Both the majority opinion and dissent went to excruciating length in discussing the US and English history of the right to bear arms. However, the result could have been briefly stated.

SCOTUS decided in Heller that the Second Amendment creates a personal right - it is not connected with the "well-regulated militia." As the Ninth Circuit notes, the Second Amendment confers a right to keep and bear arms. Bearing arms means carrying. If the right to bear arms is a personal right per Heller, then there is a Constitutionally protected right to carry weapons. In light of the Heller decision, the Ninth Circuit decision is perfectly reasonable.

I expect an en banc review by the entire Ninth Circuit. No matter how the full Court rules, this will really need consideration by SCOTUS which will either have to seriously limit Heller, or every yahoo in America will be free to walk down Main Street with an AR15 on his shoulder. If SCOTUS finds a Constitutional right for every yahoo to do so, there might - just might - be support for a Constitutional amendment - as difficult as that would be.

The problem is that SCOTUS did not consider the unintended consequences in the Heller decision. Supreme Court justices ought to - but often do not - consider the next case before issuing decisions.

Buckle up. This will be interesting to watch.

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Arrow 36 replies Author Time Post
Reply I took one for the team and read the Ninth Circuit Young open carry decision. (Original post)
TomSlick Jul 2018 OP
mshasta Jul 2018 #1
TomSlick Jul 2018 #2
Lucky Luciano Jul 2018 #3
tblue37 Jul 2018 #18
mshasta Jul 2018 #5
Baconator Jul 2018 #33
uponit7771 Jul 2018 #22
elleng Jul 2018 #4
DetroitLegalBeagle Jul 2018 #6
TomSlick Jul 2018 #7
DetroitLegalBeagle Jul 2018 #9
HopeAgain Jul 2018 #8
aikoaiko Jul 2018 #10
Puha Ekapi_2 Jul 2018 #11
TomSlick Jul 2018 #13
Puha Ekapi_2 Jul 2018 #15
discntnt_irny_srcsm Aug 2018 #36
Kilgore Jul 2018 #31
Baconator Jul 2018 #35
FUGAMC Jul 2018 #12
TomSlick Jul 2018 #14
Recursion Jul 2018 #26
discntnt_irny_srcsm Jul 2018 #16
TomSlick Jul 2018 #17
discntnt_irny_srcsm Jul 2018 #19
TomSlick Jul 2018 #20
no1ofconsequence Jul 2018 #21
marble falls Jul 2018 #23
no1ofconsequence Jul 2018 #27
marble falls Jul 2018 #28
no1ofconsequence Jul 2018 #29
marble falls Jul 2018 #30
Name removed Jul 2018 #34
discntnt_irny_srcsm Jul 2018 #24
Recursion Jul 2018 #25
smirkymonkey Jul 2018 #32

Response to TomSlick (Original post)

Tue Jul 24, 2018, 06:54 PM

1. white people problems

2nd amendment and all the fine print details is for the luxury of white people only.

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Response to mshasta (Reply #1)

Tue Jul 24, 2018, 06:57 PM

2. Couldn't disagree more.

It's everyone's problem when the Yahoos starting unslinging their AR15 and start shooting people for walking the street while being black.

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Response to TomSlick (Reply #2)

Tue Jul 24, 2018, 07:05 PM

3. Laws won't be passed until Black people open carry en masse. nt

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Response to Lucky Luciano (Reply #3)

Sat Jul 28, 2018, 03:33 PM

18. As governor Reagan hurriedly pushed CA gun restrictions when Black Panthers armed themselves. nt

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Response to TomSlick (Reply #2)

Tue Jul 24, 2018, 07:08 PM

5. our founding fathers created laws for the good of our nation

they never imagine white people will be getting out of control as it is now

we as a nation need to stop this madness -no guns period-

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Response to mshasta (Reply #5)

Sun Jul 29, 2018, 06:18 PM

33. Not bloody likely...

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Response to mshasta (Reply #1)

Sun Jul 29, 2018, 04:52 AM

22. +1, another whites-only law

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Response to TomSlick (Original post)

Tue Jul 24, 2018, 07:06 PM

4. Thanks for doing that.

I thought of an en banc too.

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Response to TomSlick (Original post)

Tue Jul 24, 2018, 07:16 PM

6. Not sure if the the Ninth will take it up En Banc

Doing so would most assuredly reverse the decision, which would most likely get appealed to SCOTUS. If Kavanaugh is seated by the time this case hits SCOTUS, I'd say there is a good chance SCOTUS upholds this ruling, possibly expanding it to concealed carry, which would then apply nationwide. The Ninth may choose to sit on it to avoid this setting precedent at the national level.

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Response to DetroitLegalBeagle (Reply #6)

Tue Jul 24, 2018, 07:23 PM

7. Surely the State of Hawaii will seek cert whether or not there is an en banc decision.

Of course, a cert. grant is hardly a sure thing but this decision is disastrous to Hawaii. Hawaii has to file a cert. petition. The Heller decision very clearly left the question in Young unanswered. This would appear to be the vehicle for answering the question.

My suspicion is that SCOTUS would grant cert. just to find the right to open carry.

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Response to TomSlick (Reply #7)

Tue Jul 24, 2018, 07:37 PM

9. Possibly, possibly not

DC declined to appeal Wrenn V DC when the DC Court of Appeals threw out their "good reason" portion of their concealed carry. They chose not to appeal in order to not imperil the laws in other states. Other State AG's contacted DC asking they decline to appeal in order to not put other State laws at risk. I would imagine Hawaii's AG is receiving similar calls from NY, NJ, Maryland, etc.

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Response to TomSlick (Original post)

Tue Jul 24, 2018, 07:33 PM

8. Yeah, Heller was a fucked up decision

All around.

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Response to TomSlick (Original post)

Tue Jul 24, 2018, 07:42 PM

10. There will still be plenty of room for regulation of carrying in public



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Response to TomSlick (Original post)

Wed Jul 25, 2018, 08:22 PM

11. Ultimately, if this decision stands...

....rather than have every yahoo and his brother open carrying AR's we'll see a move to Shall Issue concealed carry, which is the national trend anyways.

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Response to Puha Ekapi_2 (Reply #11)

Wed Jul 25, 2018, 08:47 PM

13. That's worse.

If every yahoo and his brother are packing heat, I at least want to know.

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Response to TomSlick (Reply #13)

Thu Jul 26, 2018, 09:45 AM

15. It...

...hasn't been a problem. Shall Issue concealed carry is the norm already, and CC permit holders have a lower rate of criminal offense than even police. Odds are that you encounter CC permit holders on a regular, daily basis, and never even know it.



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Response to Puha Ekapi_2 (Reply #15)

Sat Aug 11, 2018, 04:39 PM

36. I think your map is out of date

The following states allow residents 21 and over to CC without a qualification process: Alaska, Arizona, Idaho, Kansas, Maine, Mississippi, Missouri, Vermont, West Virginia and Wyoming. From the article I read, this is the situation as of 2016.
http://ammunitionstore.com/pages/news/constitutional-carry-states-no-permit-for-concealed-carry/
Perhaps there have been changes since then so there may be more than those by now.

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Response to TomSlick (Reply #13)

Sun Jul 29, 2018, 09:23 AM

31. You do already

In my WA county I estimate over half of the residents are CCW holders.

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Response to TomSlick (Reply #13)

Sun Jul 29, 2018, 06:20 PM

35. It's better than "may issue"...

... which translates to "If the Sheriff likes you, your mom, your skin color, and you donated to the policeman's ball"

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Response to TomSlick (Original post)

Wed Jul 25, 2018, 08:47 PM

12. Heller was nonsense.

 

It was ideologically driven. There is no way the “well-regulated militia” language was merely “prefatory” and was not intended to have any substantive meaning. But SCOTUS with a new conservative justice (no matter who) will be unlikely to overrule a recent Scalia decision.

What’s odd is that the 9th Circuit, which tends to be a very liberal Court, came to its conclusion. Maybe it is forcing the issue so SCOTUS will have to address it. A SCOTUS decision allowing open carry as a right can have devastating impact on the electability of Republicans going forward.

This is another example of the dog chasing the car and catching it. Or perhaps, since it’s the Republicans, its more analogous to a dog running at full speed while chasing a parked car. Be careful what you wish for I suppose.

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Response to FUGAMC (Reply #12)

Wed Jul 25, 2018, 08:49 PM

14. Agreed.

The potential unintended consequences boggle the mind.

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Response to FUGAMC (Reply #12)

Sun Jul 29, 2018, 07:58 AM

26. I think the 9th Amendment can be used to reach the same conclusion as Heller

Which, again, in sane political times was probably a decent decision; it's just dangerous when the courts are stacked with psychopaths as they are now.

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Response to TomSlick (Original post)

Fri Jul 27, 2018, 01:10 PM

16. Please excuse if I backtrack here and there in this

It is my understanding that, like New Jersey, Hawaii being a "may issue" state regarding carry permits, operates in effect as a "no issue" state. The result is that no private citizen regardless of training, skill or reason may be armed for self-defense in public. This is a basic contradiction. How is it that there is an individual right to keep and bear arms if that right is limited to one's own private property?

SCOTUS also highlighted in Heller that states have latitude in placing reasonable restrictions on that right. I would suggest that restricting carry in urban areas to concealed only and that open carry be permitted only in rural unincorporated areas.

Highlighting here: the Bill of Rights neither creates nor confers any right. The BoR acknowledges and protects pre-existing human rights. Also, IIRC 13 states now have no requirements at all for carrying concealed. In those states, any resident who lawfully owns a concealable gun may carry it.

I prefer laws that allow for CC for many reasons.

You've made the claim that unintended consequences were not considered by the court. Why would you say that?

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Response to discntnt_irny_srcsm (Reply #16)

Sat Jul 28, 2018, 03:28 PM

17. The unintended consequences to which I referred

is the potential for a Constitutional amendment to amend the Second Amendment. The Young decision can be read as a preference for open carry. The sight of people walking down Main Street with AR15s slung across the back may be alarming to people.

Pushing pendulums is a dangerous proposition. You never know how far they will swing back.

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Response to TomSlick (Reply #17)

Sat Jul 28, 2018, 07:23 PM

19. The only hope I see of an amendment level change...

...would be one which removes the militia clause. I would prefer not to make that change. I dislike removing the militia clause because I would prefer to see states begin real militias and make service mandatory. Also, actually removing the militia clause (I'm not an expert in Constitutional law) may necessitate other Constitutional changes relating to the other mentions of the militia.

I believe that the Bill of Rights says what it does because many expert minds from all of the states and the various conventions found a consensus to agree on of what rights all people had. It's been over 220 years and the BoR has not changed. I think it's fine as is.

The Young v Hawaii decision is a decision for the ability to carry period. It is and has always been upheld by various courts that states have the authority to restrict concealed carry as they see fit. States which grant virtually no CC permits have to accept that OC will be found as acceptable when similar laws are challenged.

BTW, I'm not sure if it is correct but your profile says you are in Arkansas. IIRC that is one of the states which now has unrestricted concealed carry. If you can legally buy a concealable gun, you can carry concealed. Maybe I'm wrong.

Anyhow, a big thanks for replying and engaging in discussion. I also appreciate you putting the news on the 9th Circuit decision out there.

Have great evening.

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Response to discntnt_irny_srcsm (Reply #19)

Sat Jul 28, 2018, 07:34 PM

20. I'm unsure what is meant by unrestricted concealed carry.

Arkansas is very free with concealed carry permits. The GOP Legislature has exempted the list of people with concealed carry permits from the Freedom of Information Act, so we have no real idea who has a permit.

As retired Army, I am fundamentally opposed to a militia other than the National Guard. The last thing we need is half-trained groups running around with military weapons.

I am unsure how the Second Amendment would best be changed to allow for reasonable regulation of firearms. I hope the Court will back away from the broad language of Heller in deciding in Young (or another case like it.) If it does not, I am concerned about monkeying with any of the first ten Amendments. However, there may be no other choice.

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Response to TomSlick (Reply #20)

Sat Jul 28, 2018, 10:31 PM

21. Tim, unrestricted concealed carry refers to states with no permit requirement.

 

It's also called "constitutional carry" by proponents. Anyone who can legally own a pistol / any firearm (depending on the state) can carry in public. Depending on the state, it may be limited to concealed, or open, or both may be allowed.

We have it in my state (open and concealed) and it's a non-issue. I've never seen anyone open carrying an AR-15, or any other long gun for that matter. Open carry of handguns is sufficiently rare that I can't recall the last time I saw it.

I'm not sure why people think that a Supreme Court ruling upholding the 9th circuit would result in a backlash against the GOP or a push to modify or repeal the 2nd Amendment. The history of right-to-carry legislation in recent decades suggests that voters in most states support such laws. The states that still have restrictively administered may-issue laws are mostly, if not all, Democratic strongholds already.

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Response to no1ofconsequence (Reply #21)

Sun Jul 29, 2018, 07:32 AM

23. People carry long arms in Arizona pretty damn regularly. I've seen it more than once in downtown ...

Phoenix. I've seen it here in Marble Falls, Texas, too.

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Response to marble falls (Reply #23)

Sun Jul 29, 2018, 08:07 AM

27. Has any mischief come of it?

 

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Response to no1ofconsequence (Reply #27)

Sun Jul 29, 2018, 08:13 AM

28. Off course not. Open carriers are saints, their rifles are their crosses. Do you think mischief ...

never happens? The last time a pack of open carrying angels walked through downtown Marble Falls it was bunch of asses claiming to be KKK.

No offense, that was a dumb question. People do not carry rifles thinking they'll never need them.

That moron who shot up the church here in Texas was open carrying a long rife. He caused no mischief till he got to church.

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Response to marble falls (Reply #28)

Sun Jul 29, 2018, 08:39 AM

29. I take it from your response that none of the numerous people you claim to have actually seen open

 

carrying rifles actually shot anyone with them. The only example you provided of a guy who shot people had a history of violence that legally disqualified him from owning a firearm at all, but the Air Force failed to provide that information to NICS. And I've seen no evidence that he was open carrying before he pulled it out of his vehicle and started shooting. Hardly a valid comparison with lawful open carry. Perhaps we would be better served keeping violent offenders of the street than trusting them to follow laws that are easily circumvented.

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Response to no1ofconsequence (Reply #29)

Sun Jul 29, 2018, 09:07 AM

30. So what? Not too many of us have seen anyone shot by someone with a legal or illegal ...

open or concealed carry either, Just because we don't see it does not mean it doesn't happen. It does happen. A lot.

There are no practical reasons to open or conceal carry for 90% of population. Particularly when 90% cops who arguably have a need to carry never fire their weapons outside of target practice or sport shooting.

I used to believe, right up to about ten years ago that there should be no registration of any weapon nor any sort of firearms control. That I should own any sort of weapon I wanted and if it hung on the wall and the authorities never knew I owned it, that the only law I broke with it was the pure possession of it - what real breach of the law did that truly represent?

Unfortunately my fellow Americans don't take it as seriously as I do in terms of pure freedom and rights.

Firearm deaths are rising as regulations keep falling and now we are at a point where for some groups of citizens firearms are the most significant cause of death. Firearms are not only a law enforcement issue but a public health issue.

I am willing to give up my "gun rights" until we fix this problem. No carry except for transport and then unloaded and broken down and parts divided and locked in at least two cases will work well with me. If I still owned fire arms, and I do not, that would be fair to me.


Obviously you and I have no fucking thing to talk about here. I have problems with the arc of your argument: first you claimed that there was no casual carrying of long guns and then you claimed there were no mischief from carrying them. The next argument will be 'sure there's some mischief but not enough to end open carry of long arms."



Obviously you and I have no fucking thing to talk about here. I have problems with the arc of your argument: first you claimed that there was no casual carrying of long guns and then you claimed there were no mischief from carrying them. The next argument will be 'sure there's some mischief but not enough to end open carry of long arms."

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Response to marble falls (Reply #30)


Response to TomSlick (Reply #20)

Sun Jul 29, 2018, 07:43 AM

24. Another person has explained unrestricted concealed carry

"As retired Army, I am fundamentally opposed to a militia other than the National Guard. The last thing we need is half-trained groups running around with military weapons."
I have no problem with any state that would decide to use the National Guard as its militia. And thank you for your service.

The 2A already allows for the reasonable regulation of firearms. That's highlighted in the Heller decision. The personal human right of self-defense has a long history. Interpreting the 2A as a protection for that and making further interpretations which would logically follow are correct in my opinion. The sense of laws adopted by states that are characterized as "shall issue" may be summarized as follows: 'You shall be issued a CC permit unless there is documentable evidence precluding eligibility.' This precludes the capricious control exercised in some venues by state or local law enforcement.

Thanks again and have a good day.

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Response to TomSlick (Original post)

Sun Jul 29, 2018, 07:55 AM

25. Scalia was surprisingly cautious in Heller

He made it very clear that he was only talking about home storage, not any sort of carrying, and that basically our entire wishlist (AWB, background checks, registration, etc.) was Constitutionally permissible. That was honestly one of my main worries at the time about DC's maximalist position: when you talk about an absolute 100% ownership ban, there's really not that much support for it nationwide even among pro-gun-control people. But, yeah: everybody knows Scalia was just doing that to avoid being called a lunatic, and everybody knew the next cases would chip away at whatever regulations (even if Scalia specifically called them out as permissible) states have.

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Response to TomSlick (Original post)

Sun Jul 29, 2018, 11:01 AM

32. What a sick, fucked up country we live in.

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