Chicago Gun Case Incorporation Lawsuit

[Al Norris]

Concealed carry licensing/registration is not going to go away. Nor are the fees that are associated with it, going to go away. What is more likely is that the Legislatures and/or the Courts will allow OC as an alternative carry method, should the fees and other requirements be found burdensome. That meets the minimums we are beginning to see.

For those States that really, really don't want to have their soccer moms in a tizzy, they will have to loosen the requirements (and associated fees) for CC.

"May Issue" is problematic in the very wording. It really doesn't matter if the law is (currently) treated as "shall issue," 'cause it ain't. That's the very case that Sykes makes in CA. A successful win there, will percolate throughout CA. It will become a creditable precedent even if it isn't appealed to the 9th Circuit.

A lot of things are being hammered out, right now. But they will take time and perseverance.

The one thing we all can do, while this is taking place, is to increase the membership of the gun culture. It is a uniquely American tradition. We can't afford to let it die.

[alloy]

The easiest hopefully will be a requirement on the bearing of arms - i.e. that state must allow either open or ccw - it can't ban both - and ccw would have to be shall issue with an objective standard - otherwise it would run afoul of equal protection. Might even be able to get state to state reciprocity as it is a "fundamental right."

~and~

What is more likely is that the Legislatures and/or the Courts will allow OC as an alternative carry method, should the fees and other requirements be found burdensome. That meets the minimums we are beginning to see.

It seems this could lead to a push for relaxation of those same concealed carry fees and requirements, if given enough time. (and an activist OC component)
I gather alot of people don't want to see open carry everywhere they go and when confronted only with choice A(open) or choice B (concealed), some might eventually prefer the whole carry thing stay concealed.

[green-grizzly]

What laws would be the best targets to flesh out the right to carry?

The only restriction I face in my day-to-day life is the regulation prohibiting carry in postal facilities. It is not authorized by any law, it is just a regulation made by the postal service. The regulation requires posting, so it does not really apply to public parking lots, but it does apply to the public area in the post office. While a lot of cases indicate that the government can ban guns in government bulidings such as fairgrounds and the like, the post office is a little different than most, inasmuch as it is a government monopoly that most people must use.

Is that a good target? I kind of think it would be better to go after the few places with absolute bans on carry, like DC and Illinois, first. Then states with bans on open carry and may issue laws.

[Bartholomew Roberts]

You know, in my hurry to declare victory I forgot some of the basic facts in McDonald. As gc70 pointed out, there hasn't been any fact-finding at the District court level, we went right into "Is the Second incorporated against the States?" without addressing any of the other issues.

So why wouldn't the Court just say "Yes, it is incorporated through substantive due process" and remand to the lower court?

On the one hand, it wouldn't be the end of the world because cases like Palmer, etc. could go forward now and we would eventually get answers on scrutiny. On the other hand, given that the Seventh Circuit has agreed to rehear Sieyes en banc, I wouldn't be surprised if we get some conflicting standards of scrutiny that the Court might wait a bit to sort out.

Completely unrelated to the above post; but here is the ABA's take on McDonald. Not suprisingly, chock full of bias and less professional reporting than any of a half dozen amateur blogs; but that's the ABA for you.

[Tennessee Gentleman]

Originally Posted by Antipitas

"May Issue" is problematic in the very wording. It really doesn't matter if the law is (currently) treated as "shall issue," 'cause it ain't.

Al, I agree that there is a moral hazard with "May Issue" but that hazard may be mitigated by somewhat objective measures like requiring the CLEO to explain why the CCW application was turned down (you don't need one would NOT be suffcient) and allow some type of appeal option as well.

In short I think there would be a "middle ground" between lotty dotty everybody (military term ) getting a CCW in one state and only Robert Deniro gets one in another. I am not sure that the court would throw out a CCW law that allowed a local LEO who knows that citizen X is crazy/violent but hasn't been convicted of a felony to disapprove a CCW.

I know folks on TFL would not like such a system but we are in the great minority and may not be in step with the courts on that issue.

[gc70]

After reading the orals again, I do not fully subscribe to the "P&I is dead" conclusion. I wrote out short paraphrases of each P&I question and looked at the list. The list is what you would expect: why reverse precedent; what would P&I do for (or to) rights; what does P&I encompass? And Gura did not give much in response to the questions - meaning that the Court will have to rely on the briefs in the case because he did not throw his tongue on the floor and trip over it.

[maestro pistolero]

The one thing we all can do, while this is taking place, is to increase the membership of the gun culture. It is a uniquely American tradition. We can't afford to let it die.

Thanks for that, Al. It's so easy to just hang out in my gun-buddy cocoon and not reach out to a newbie. I'm on the lookout for a candidate or two, now.

After reading the orals again, I do not fully subscribe to the "P&I is dead" conclusion.

Agreed. We have no idea how the arguments are going to play out behind closed doors. If PoR becomes the bait for the liberal wing of the court, I'm not sure that Scalia wouldn't go along. He has already professed his reluctant acquiescence to DP incorporation, as well as his dislike of Slaughterhouse.

I can't help but wonder how much of the posturing at orals is really the justices taking a negotiating position for the private debate that is to ensue between the justices. I wouldn't be surprised at PoR emerging as the vehicle.

The appeal of it to the conservative and/or originalist members should be obvious, (though it certainly isn't) It would make a huge statement of the importance of 2A, if it were afforded PoR incorporation, a status that no other enumerated right has been given.

[alan]

Tennessee Gentleman:

For whatever it might be worth, re issuance of Concealed Cary Permits, in Pennsylvania, where I'm located, as I understand the law, the following governs:

1. The County Sheriff, an elected official, is the "issuing authority".
2. Here, a "shall issue" state, should the issuing authority opt to deny the applicant a permit/license to carry concealed, he must be prepared to defend his action in court.
3. Essentially, the boundaries around who will not be issued a carry permit or license are those that provide that a person is proscribed from gun ownership/possession in federal law.

I would think that this "may issue" business is something best avoided, especially as rulings from USSC in the Chicago matter are already likely to turn out to amount to a welfare for lawyers proposition.

[Tennessee Gentleman]

Originally Posted by alan

the boundaries around who will not be issued a carry permit or license are those that provide that a person is proscribed from gun ownership/possession in federal law

Right, but I think the court may allow a "may issue" CCW law to stand that imposes stronger restrictions if the reasons are somehow objective and applied equally. FWIW I am not advocating "may issue" but I don't think the court will strike all applications of such down.

[alan]

Antipitas writes in part:

The one thing we all can do, while this is taking place, is to increase the membership of the gun culture. It is a uniquely American tradition. We can't afford to let it die.
----------------

That sounds about right to me. The stronger The Gun Culture, the stronger our side.

[Al Norris]

What objective criteria might that be? Of good moral character? Good Cause? Nothing objective about either of those two common "may issue" examples.

In a jurisdiction of 12,000 people, just how well does my Sheriff really know anyone who has had no cause to draw official attention?

Short story:

When I renewed my CWP in 2008, I was presented with a form to fill out that highly resembled a form 4472. I politely asked the gal what this was about. She informed me that this was the NEW CWP renewal form. I asked her if this form was authorized by the State Police. She said, "No, this is Sheriff XXXX's new form." I told her I would renew on the State form but not this. She told me to fill out the form or I wouldn't get my permit renewed.

I made mention of I.C. 18-3302(1)(n)(2) - the form requirements. I also mentioned 18-3302(6) - Civil suit remedy for not following the State code. I again asked for the State application. Grudgingly, I received it. Surprise! They had it!!

The Sheriff didn't like my "attitude." If Idaho were a "may issue" State, how do you think that would have affected my renewal? We both know the answer to that question.

So I'm really interested in what objective criteria there might be.

[RDak]

I know folks on TFL would not like such a system but we are in the great minority and may not be in step with the courts on that issue.

TG: A Zogby poll recently indicated 83 percent of the American people support concealed carry. We are not in a great minority. Just the opposite.

A Zogby press release reports 83% support for laws that let pretty much all law-abiding adults, at least ones age 21 and above, get licenses to carry concealed weapons. (These are generally "shall-issue" laws, because they provide that a license "shall issue," rather than just may be issued, if certain largely objective requirements for licensing are met.)

May issue is in deep, deep trouble as Al has indicated. The general rule for may issue is it doesn't allow for due process.

Why even argue that Alabama's may issue procedures are ok? They are not ok because the very nature of may issue is it is lacking in due process.

Leaving the ultimate decision up to the whim of a police chief, etc., does not meet due process on its face IMHO. So, if the SCOTUS rules for due process, how in the heck can may issue ever be ok?

Don't give these anti-gun schemes an "out". Fight them tooth and nail as being totally unconstitutional. That's what we did in Michigan for years and finally got it about 10 years ago.

Tidbit: In Michigan a local PD cannot do what they tried to do with Al when he renewed his CPL. That is clearly the type of crap you get with may issue States. In Michigan that would be unlawful and I'm not even sure the application would even be honored by the State Police if it was an application created by some local PD.

And you can see, even in shall issue Idaho, these anti-gun schemes still raise their ugly heads. You have to fight those schemes and not say "well it might be ok if it is objective enough".

[Webleymkv]

Originally posted by Tennessee Gentleman

I agree that there is a moral hazard with "May Issue" but that hazard may be mitigated by somewhat objective measures like requiring the CLEO to explain why the CCW application was turned down (you don't need one would NOT be suffcient) and allow some type of appeal option as well.

I'm not sure I completely understand what you're trying to say, so please bear with me. "May Issue" could possibly stand so long as denied permits are denied because of certain objective criteria. If such objective criteria to deny the permit cannot be found, then the permit must be issued? Have I got it right?

If I'm understanding you correctly, what you're describing sounds an awful lot like "shall issue" to me.

In short I think there would be a "middle ground" between lotty dotty everybody (military term ) getting a CCW in one state and only Robert Deniro gets one in another.

In my understanding, many things besides a felony are ground for denial of a CCL in many "shall issue" states. Examples of such include documented histories of certain mental illnesses and certain misdemeanors.

I am not sure that the court would throw out a CCW law that allowed a local LEO who knows that citizen X is crazy/violent but hasn't been convicted of a felony to disapprove a CCW.

But if citizen X has no documented reasons to deny his permit like a felony or admission to a psychiatric ward, how could he be objectively classified as crazy or violent?

Basically what I'm getting at here is that "may issue" by its very nature is highly subjective. It seems to me that if "may issue" were objectified as you describe, it would basically be "shall issue."

[Tennessee Gentleman]

Originally Posted by Antipitas

The Sheriff didn't like my "attitude."

Say it ain't so! Al, were you uppity with the Sheriff? You rabble rouser!

OK, lots of things here I guess. First of all I AM NOT an advocate of "shall issue" but that doesn't mean it won't withstand court challenge and that was my comment before so don't jump on me to get me to defend "shall issue"!

I should start by saying I suspect there is somedivergence between states on what "may issue" and "shall issue" mean.

For arguments sake I would say (and I could well be off base) that with "shall issue" is it's strictest sense if you meet the criteria to own a gun then you must be issued the permit, no LEO descretion whatsoever.

So, if you don't have a felony conviction but have a very violent history and are considered the village idiot but just haven't been convicted of a felony, domestic battery or involuntarily committed to a mental institution then you could get the permit.

I know this may vary from state to state. In Alabama virtually everybody gets one and in New York City virtually no one does so it is not the same state to state. So, "shall issue" and "may issue" may not always mean the same thing in every state.

Where "may issue" would be appealing to a court would in the same vein as the CLEO sign off for the FA Tax Stamp application in that the local LEO may have particular knowledge of a person being a danger to the public who is not be "in the system" that would keep him from getting the permit?

So if a state had a "may issue" system and had some objective criteria like I mentioned before with a real appeal process, explanation required as to why you were turned down, and perhaps other rather than whether the sheriff likes you or not it might withstand scrutiny for the court.

IMO, I think the court may find the right to keep a handgun in the home for self defense and carrying one round publicly quite different and might allow more regulation. So, I wouldn't go on this thread and say with great confidence that "may issue" is dead as I would say that we will win McDonald. However, I will be interested to see how the tougher CA-like may issue laws are challenged.

Originally Posted by RDak

We are not in a great minority. Just the opposite.

Haven't seen that poll. Is that the same one the antis quote when they say the majority of Americans want "assault weapons" banned? I wouldn't put too much faith in those polls particularly since as gun owners we are surely in the minority. I suspect it is true with CCW as well. Voters may tolerate it but not really "support" it either.

[Tennessee Gentleman]

Originally Posted by Webleymkv

Basically what I'm getting at here is that "may issue" by its very nature is highly subjective. It seems to me that if "may issue" were objectified as you describe, it would basically be "shall issue."

I think it is a matter of degree Webley. Not sure that the definitions are that cut and dried. As stated, Alabama is "may issue", New York is also but the application of that standard is done quite differently in those two states and so the courts might accept it if there is some objectivity and due process in a particular state.

[Al Norris]

As much as I would like to continue this little side trip, we are off topic.

Someone open a new thread on the probable after-effects of incorporation. Meanwhile, let's all get back on topic in this thread, please.

[Tennessee Gentleman]

George Will's commentary is here on P&I: http://www.washingtonpost.com/wp-dyn...030502873.html.

Liberals might hope and conservatives might fear that a revivified "privileges or immunities" clause wielded by liberal justices would breed many new "positive rights" -- to welfare, health care, etc. But conservatives know that "substantive due process" already has such a pernicious potential. And they believe that if -- a huge caveat -- it remained tethered to the intent of its 19th-century authors, the "privileges or immunities" clause would be useful protection against the statism of the states.

I have doubts about the caveat and would fear the P&I might later on in another court give someone the right to "feel safe" or have health care.

[maestro pistolero]

I have doubts about the caveat and would fear the P&I might later on in another court give someone the right to "feel safe" or have health care.

Nah. Either the future courts are going to be virtuous, or not. Look at the intellectual backflips the court has done to overcome Slaughterhouse. That's why I am perplexed at any reluctance to take out the trash once and for all.

TG, you are always saying that our democratic institutions are the best safeguard of our liberty. I assume you mean the three branches, including the ones in robes. Alright, well here I am agreeing with you. Forcing folks to pay for other people's health care is certainly an assault on liberty, IMHO.

[Tennessee Gentleman]

Originally Posted by maestro pistolero

Either the future courts are going to be virtuous, or not.

One man's virtue is another man's vice.

Originally Posted by maestro pistolero

That's why I am perplexed at any reluctance to take out the trash once and for all.

Because as Will pointed out what the P&I meant in 1870 and what it could mean today are world's apart.

Originally Posted by maestro pistolero

TG, you are always saying that our democratic institutions are the best safeguard of our liberty. I assume you mean the three branches, including the ones in robes.

Certainly more than the shotgun in my closet safe. And yes especially the ones in the robes.

Originally Posted by maestro pistolero

Forcing folks to pay for other people's health care is certainly an assault on liberty, IMHO.

I hate to break it to you but you already are paying for others health care and retirement. BTW do you think your AR-15 at home will keep the Dems from passing health care reform that makes you pay for even more folk's health care? Just kidding!

[maestro pistolero]

When occasions present themselves, in which the interests of the people are at variance with their inclinations, it is the duty of the persons whom they have appointed to be the guardians of those interests, to withstand the temporary delusion, in order to give them time and opportunity for more cool and sedate reflection.

Alexander Hamilton, Federalist No. 71

The temporary delusion, in this case, was the creation of selective incorporation from thin air in order to overcome the gutting of the 14th. The opportunity is to restore the 14th to the position it was intended to have by the ratifiers.

[Bartholomew Roberts]

I think Justice Ginsburg highlighted the problem in originalist interpretation well. Under an originalist view, none of the rights protected by P&I were intended for women. Even 14th Amendment advocates such as Senator Howard admit as much.

So how are we going to apply those rights to women today but still limit it to originalist intent? What coherent theory can be used to explain why women have these rights; but doesn't open a hole you can drive a "right to healthcare" through?

[maestro pistolero]

So how are we going to apply those rights to women today but still limit it to originalist intent? What coherent theory can be used to explain why women have these rights; but doesn't open a hole you can drive a "right to healthcare" through?

I really, really don't get how incorporating an enumerated right (one written in plain language right there in the Bill of Rights) opens the flood gates to any imagined right whatsoever. It's like expecting that my car keys will start every car in the neighborhood.

And no one fanning the flames of the "anything goes" argument against PoR incorporation ever bothers to explain how that would work.

[Tennessee Gentleman]

See the Ninth Amendment.

[maestro pistolero]

So where are all the hand-wringers over the 9th? It seems the 'chicken-little' crowd's fears are a little misplaced. It's not the PoR clause of the 14th amendment they should be worried about. If someone wants to contrive an imaginary right, they already have a better means to attempt it.

[Bartholomew Roberts]

I really, really don't get how incorporating an enumerated right (one written in plain language right there in the Bill of Rights) opens the flood gates to any imagined right whatsoever. It's like expecting that my car keys will start every car in the neighborhood.

Incorporating an enumerated right isn't the problem, it is how you get there. Clearly the framers of the 14th Amendment intended the P&I clause to apply Second Amendment protections to the States.

And no one fanning the flames of the "anything goes" argument against PoR incorporation ever bothers to explain how that would work.

Where is the right described in Rowe v. Wade in either the Constitution or the understanding of rights as the Founding Fathers stood them? Look at the Privileges and Immunities as explained in Corywell, can you imagine any penumbras emanating from the rights described there as being part of the P&I?

The whole argument is that P&I only protects the rights envisioned by natural law or the privileges and immunities as it applied at the time of the framing of the 14th Amendment. If we can limit the interpretation of the P&I clause to this, then we have no problem with Pandora's Box - although even then, there is still a great deal of room to debate the extent and number of rights as understood then.

But what happens when we try to bring those rights into the 20th Century? The point about women is an apt one. You cannot get there through an originalist interpretation of the 14th Amendment. You have to supplement that understanding with something else - and almost any one of these "something else's" offers even more vagueness that a more liberal court can exploit.

It seems the 'chicken-little' crowd's fears are a little misplaced.

I think discounting those who are worried about where P&I might lead as the "chicken little crowd" is misplaced and doesn't serve the debate well. Whether you feel those fears are valid or not, those are the fears the Court has and you must address them if you want to get where you want to go.

Second, it isn't like those fears are unreasonable. Four of the current Justices aren't even willing to give meaning to words plainly written in the Bill of Rights when it doesn't suit them. If you are going to give life to a clause of the 14th Amendment that creates unnumbered rights, including about 20 or so vaguely described rights that are expressed, and applies them against the states, then we need to have a clear idea of which rights will pass that test or we have just killed federalism.

Originally Posted by Tennessee Gentleman

See the Ninth Amendment.

If we are looking at an originalist interpretation then that doesn't help us since at the adoption of the 9th Amendment, women did not commonly have a right to contract, a right to hold property, etc.

You cannot get those rights to women through an originalist interpretation of the Constitution as far as I can see, except to say that the originalist interpretation is simply wrong in that instance and we aren't going to abide by it - in which case, why wouldn't we later reach that same conclusion with something else related to P&I?

To put it simply, if the only way the right works is if we have dedicated, unbiased, Constitutional scholars who accept originalist interpretation on the bench - then it just isn't going to work.