After McDonald v. Chicago: No more Concealed Carry?

SCOTUS will determine if the 2A can be applied to the states, I doubt they wil say whether we can have open or concealed carry, that's not within the purview of the question before the court, to the best of my knowledge.
June 28th is the possible target date.

Someone would have to bring a seperate action through all the appeals courts, and I haven't heard anything about that going on anywhere. Anyone else?

What are you talking about? Who is "some?"

Can you explain the logic behind how incorporating the 2nd Amendment against the states would then rescind state laws ALLOWING various kinds of bearing arms? While there is much fluff flying around regarding what McDonald might eventually mean, what it will most likely decide is simply whether or not the 2nd Amendment applies to the states as well as to the federal government. What that means within each state will likely have to be challenged in many, many future cases.

It seems absurdly unlikely that states which DO recognize the right to carry a gun, both openly and concealed, will then change their laws to ONLY recognize one or the other method. Some states which do not allow any kind of carry may be forced to accept one or the other method ... maybe ... eventually ... but "normal" states becoming more restrictive seems like a HUGE stretch of imagination.

IWB holsters, shoulder holsters, and ankle holsters are all various systems most commonly used for carrying a concealed weapon ... so ... what? Those things aren't illegal to possess, even in NJ, MD, IL, etc, where CCW is not allowed.

Can you expand on your question at all? I'm feeling I missed your point...

McDonald does not address carry AT ALL. Not open, not concealed, not shoulder, not ankle, not IWB, not pocket, not anything. At all.

After McDonald, AFAIK, there are no pending gun cases that have been granted cert.

Troll

Some are talking about SCOTUS deciding that we will have concealed or open carry, but not both, after McDonald v. Chicago. (Perhaps decided by a later case.)

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Represents either a deep level of ignorance about both the Constitution and the McDonald case, or one of the better trolls on THR.

If the former, I highly recommend doing some reading of and about both.

I think about the only thing we will see changed, maybe, is that states will be forced to allow everyone legal to possess a firearm, to be able to carry that firearm. Basically, I think the only thing, in the foreseeable future we will see is that states will have to adopt a minimum of shall issue permits.

After Heller, there were many in the press that continue to spew the now defunct side of D.C.s argument. Through following gun related news articles, I am convinced that in general the press is made up of Fools, Liars & Sometimes Both.

Heller addressed the right to keep a firearm in the home for self defence. In the Heller case the SCOTUS ordered Washington DC to _register Heller's gun_. It did not address whether registration was constitutional, it did not address whether licensing was legal, it did not address whether carry outside the home was legal. It only addressed possession within the home.

McDonald only addresses wether the 2nd Amendment is incorporated against the states, nothing more nor less. McDonald wants the SCOTUS to accept that the Heller case decision invalidates Chicago's law preventing him from registering a handgun to keep in his home for self defence. It is a duplicate of the Heller case. Carry outside the home is not addressed.

The win in McDonald (if SCOTUS rules in his favor) will be that states and municipalities will no longer be able to ban possession of handguns in the home, the big win will be if SCOTUS sets a high standard of scrutiny for validating gun laws as constitutional (strict scrutiny is the best) as this will bind courts all over the country to go over legislation with a fine tooth comb when local, state or federal laws are appealed.

Palmer Vs DC is the next case, making it's way towards the DC Circuit court to address the right to carry a gun outside the home. There is a long discussion thread at Calguns.net. If the DC circuit rules in favor of Palmer and the DC govt. folds, then this will not even make it to SCOTUS.

Luckily, saying 'gun' to DC Mayor Fenty is like ringing a bell in front of Pavlov's dog, or tapping someone on the knee with a hammer - he reflexively kicks and slobbers. So the Palmer case will probably make it's way to SCOTUS, and they are likely to take it, as Alan Gura picks clients that SCOTUS will not have a problem with ruling for (only fine upstanding citizens from a diversity of backgrounds need apply). Again the Palmer case does not address licensing or registration, only the right to carry.

If and when Palmer hits SCOTUS then the debate about concealed vs open carry comes into play. In the dicta (non binding comments or asides) of the majority opinion in Heller it was noted that long standing prohibitions including those on concealed carry were not invalidated by the ruling.

This does not mean that a prohibition on concealed carry would be made by SCOTUS, or that they would uphold prohibitions on CC, it just meant that it was not being addressed.

To the degree that the dicta does telegraph the prejudices of the Heller majority in SCOTUS, it may mean they will rule that open carry is a right, but concealed carry is a privilege subject to regulation by the States. As CC is a privilege afforded to the majority of citizens in a majority of states, CC will not go away in those states. DC, California, Chicago and New York may on the other hand end up having to allow open carry of firearms.

Potentially SCOTUS may rule that both CC & OC are a right. Or that a state must allow one, but not necessarily the other. Bear in mind that if/when Palmer hit's SCOTUS they will probably only rule that a carry license must be issued and then another case will need to be found and appealed all the way to SCOTUS to invalidate licensing or registration as a requirement before a citizen can exercise their constitutional right.

So don't panic!

If you want an in depth look at how SCOTUS may work out how to allow infringements on a right that may not be infringed, have a read through http://www.law.ucla.edu/volokh/2am.pdf

Some are talking about SCOTUS deciding that we will have concealed or open carry, but not both, after McDonald v. Chicago. (Perhaps decided by a later case.)

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The SCOTUS decision would set the limits on what a state can restrict by applying Heller to the states.
Which by itself is very important but not likely to immediately change much. In would allow many lawsuits and terminology to be defined in future case law, which would lay the foundation for future freedoms or challenges to the antis.






Even if in a future case beyond incorporation of Heller they did as you are concerned about, it would not limit additional privileges a state could grant.

It would not prevent states from giving additional privileges to those with a permit or who jump through state defined hoops.
It would simply state what Right all citizens have irregardless of a permit or other form of state permission, which the states could not infringe upon. Additional privileges could still be granted by states at their discretion, exactly as they are now.

So for example they could say Open Carry is Constitutional protected, but Concealed Carry is not.
That would mean the state could not outlaw Open Carry it even if they wished to.
But they could allow Concealed Carry under whatever restrictions they wished to impose because it was not Constitutionally protected. They could also outlaw it altogether or impose additional restrictions at any point in the future because it was not protected if they wished to.

Since most states currently allow concealed carry under state imposed restrictions and requirements, even if concealed carry was found not to be Constitutionally protected it would still likely continue exactly as it exists now. The freedom would simply depend on the current views of the state legislature.
It would mean that states without concealed carry like Illinois and Wisconsin could continue to outlaw concealed carry. It would also mean states like California could continue to issue or not issue as they please.


On the other hand if they decided Open Carry was Constitutionally protected, even states like Illinois or Wisconsin would have to allow Open Carry. Imagine people legally and responsibly Open Carrying as they walk down the streets of Chicago.
This would most likely cause them to legalize concealed carry though at the state level anyways, if even just to reduce the number of people legally open carrying.



So no, the court decision would not cause any form of carry to disappear, it would simply limit what the states can make disappear or restrict if they wish to.

The question before the Court is whether or not the Second Amendment, and DC v. Heller's holding, is applied to the states. That's it. That is what they will answer.

In the course of the opinion, there may be some references to carrying of weapons, but it will just be a hint as to how they will rule in the future and not the binding law. The only legally enforceable law that we will see in this decision is the matter of incorporation.

Some are talking about SCOTUS deciding that we will have concealed or open carry, but not both, after McDonald v. Chicago.

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The question before the Court had nothing to do with this.

Let me guess, you heard it in a gun store?

As has been stated - McDonald will only determine whether the Second Amendment as an individual right (which is and will remain largely undefined pending additional cases) is binding on the states and not just the federal government.

Also as has been stated the Supreme Court has not granted cert on any other 2nd amendment case at this time.

However, there are pending cases in the lower courts brought by pro-second amendment attorneys - such as Gura in the Palmer case - that do deal with the carrying of arms. That case is in the DC circuit because until McDonald is decided the second has not yet been held to apply to the states.

What Gura and some others are arguing related to the carrying of arms is that the second amendment protects not only the keeping or arms but also the bearing of arms/carrying - and that while the government may prohibit some methods to bearing or carrying arms - the government is not free to totally prohibit the bearing or carrying of arms - thus their contention that the governmenet may choose to prohibit open carry or concealed carry - but it cannot prohibit both. Note as stated above that does not imply that the government must prohibit any type of carry, only that it must allow at least one if not both types.

These cases are pending, in addition to palmer in DC, I think there is one in California - and if McDonald results in incorporation to the states - then it is logical to believe that such cases will be brought against Illinois and other states where there are no provisions to lawfully carry or bear arms or where such rights are not available to large portions of the general public such as CA or HI.

It is hoped in many gun rights political circles in states like CA, NY, IL, and HI that should McDonald result in incorpration and that should some of the lower court cases like palmer result in decisions that support the right to carry that those and similar states will see the writing on the wall and pass legislation legalizing shall issue CCW laws in attempts to avoid unlicensed open carry.

Currently the only even indirect possible impact from McDonald on CCW laws that I could foresee as possible might be that a state that did not allow open carry and had a discretionary concealed carry system might have to change to shall issue as a discretionary CCW law might be found in violation of the 2nd should lawsuits like Palmer prevail.

In any case I can't see CCW laws going away anytime soon, especially the shall issue variety.

I don't see any direct relation in the case.
But we have OC in Virginia not because there is a law allowing it, but because there is no law against it. And I know lots of folks who OC with an IWB holster.

usmarine--I have a suspicion that after Palmer and McDonald works through-=-states will have to allow carry with open or concealed not specified--what won't fly is NO option to carry

dvcrsn said:

usmarine--I have a suspicion that after Palmer and McDonald works through-=-states will have to allow carry with open or concealed not specified--what won't fly is NO option to carry

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And this will happen IF we don't loose a conservative on the SCOTUS and it thusly tilts to the liberal side and then we'll be dead in the water. SO, if you're the pray'n type start pray'n real hard for the good health of the conservatives on the court.

As noted, Calguns has a pretty good lawsuit pending that attacks California's "may issue" system on equal protection grounds.

The parallel is to voting restrictions that are not inherently discriminatory (like a poll tax) but have documentable disparate impact on access to the exercise of a right by a suspect class. In California I think Jim and the folks at Calguns have developed good data showing a disparity in permit issuance to minorities. If that makes it through the 9th the other "may-issue" states nationwide will be vulnerable on the same grounds.

Anyway, there are multiple avenues of attack opened besides actual "2nd Amendment" arguments if McDonald goes our way and the fundamental right in Heller with at least Intermediate Scrutiny (law furthers an important government interest in a way that is substantially related to that interest) is applied against the states. Intermediate means we can start using all the positive data on lawful possession and carry when challenging state laws and forces the anti's to try to find data (which simply doesn't exist) to counter it.

For example, there's a lot more at risk for Illinois than just the Chicago ban if we can show that few other states have FOIDs (which is true) and yet have the same or lower crime and accident rates (also true). The burden will be on Springfield to show a substantial relationship (supported by facts) between requiring a FOID and the "compelling gov't. interest" in public safety.

We have all the facts and data, mostly from the Fed. government's own multiple reports over 30 years, to support our claims that gun restrictions have at best, little to no effect on gun safety or crime. Since a fundamental Right is in play, if they can't show that restrictions help those interests they will be hard put to defend them.

If we get Strict Scrutiny, with its "narrowly tailored and least restrictive" requirement, the existence of multiple states that lack whatever restriction may be at issue with no negative impact will make it clear that the most "narrowly tailored and least restrictive" state restriction possible is likely no restriction at all. If no permit is required in three states (maybe a few more by the time a case winds its way through the courts) with no documentable negative effect, then how is the restriction of requiring a permit with a bunch of hoops to jump through the "least possible"?

Remember, Scalia's dicta in Heller was not necessarily carefully examined on a case by case basis. He wasn't necessarily aware of the details of most state's modern carry and possession laws and how radically different they are from DC and the laws of the past, the only laws really examined in the briefs. Under Int. or Strict Scrutiny the lower Courts won't be able to just punt to dicta like they are now, they will have to give the actual evidence a hearing.

Carebear--a major factor in Cali is that the only CCPs go to people contributing to the campaigns of sheriffs or those with enough money to sue the LAPD or to the politically powerful (as mayor--Fineswine had the ONLY CCW in San Francisco)

dvc,

True, but once we have a "fundamental right" via Mcdonald then equal protection clearly kicks in. If we can show disproportionate impact, however unintentional, we have an unConstitutional restriction.

If such can require we add women's field hockey in colleges until athlete percentages are met then it certainly will require we start accessing permits to the poor and minorities (read, the general public) in restrictive locales.

Carebear--a major factor in Cali is that the only CCPs go to people contributing to the campaigns of sheriffs or those with enough money to sue the LAPD or to the politically powerful (as mayor--Fineswine had the ONLY CCW in San Francisco)

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I don't know that's actually true, Cam had an interview with a sheriff from California a few months back that actually carries CCP paperwork in her cruiser to hand out to anyone who asks for it. Granted, this law enforcement officer was from a more rural part of the state, I just can't recall her name or the county she's sheriff of.

stickhauler:
Issue of CCW permits in California is on a may issue basis, with county sheriffs having the power to issue or deny. Many of the rural counties are effectively shall issue or will issue on good reason.
Heavily populated counties such as LA & SF only issue to the politically connected. It has been stated on gun boards for many years that then Mayor Feinstein had one of two carry permits issued in SF, I don't have any reference to back this up however.
Jim March has done a lot of research into the racist, elitist & corrupt way that permits are issued in some counties, a search should bring up enough reading to keep you going for a few hours.