How has a Constitutional Carry (no permit necessary) case never reached SCOTUS?

[Aim1]

For all of the citizens who are law abiding until they get caught carrying a gun without a permit, how have none of them appealed their cases and said, "I'm a law abiding citizen who is not a felon and can legally possess a firearm and was only arrested for carrying a gun outside the home without a permit. Well, the 2nd Amendment is my permit to carry and this is an unconstitutional arrest."


No ones ever done this?



I know there's quite a few people who've been arrested for carrying a gun without a permit and that is really their only crime, they weren't felons and they were legally allowed to possess a gun and may have even had a valid permit to purchase.



Will a Constitutional Carry case ever reach SCOTUS?

 

[High Plains]

This is a weird one, in my opinion since the Founding Fathers outlined that powers not expressly granted to the federal government are reserved to the States. Each state can make and enforce its own laws unless there is a federal law for that specific item. While the Second Amendment states the right to bear areas shall not be infringed, the way they are carried is a gray area nowadays.
I completely agree with the Constitutional Carry law in Kansas. Before its passage Kansas was an open carry state and we lived with it very well.

 

[CapnMac]

Well, you need a deep pool of money to contest such cases, and for the many years needed.
Many of the people convicted of illegal carry were also being charged with any number of other issues.

There's also the issue that, now, 26 different States have obviated the question by becoming permit-less States. NC, SC, and NE are well on their way to increasing that number.

Now, what may wind up in front of higher courts is the issue of traveling from a permit-less State to a permit-required State.(or of those limited reciprocity States).

 

[CoalTrain49]

Well, you need a deep pool of money to contest such cases, and for the many years needed.
Many of the people convicted of illegal carry were also being charged with any number of other issues.

There's also the issue that, now, 26 different States have obviated the question by becoming permit-less States. NC, SC, and NE are well on their way to increasing that number.

Now, what may wind up in front of higher courts is the issue of traveling from a permit-less State to a permit-required State.(or of those limited reciprocity States).

I like this answer. Usually when we have a majority of states that agree with something like permit-less carry the USSC will yield to that popularity if and when a case reaches them that deals specifically with that issue. That might take another 10 years but I think it's coming. State laws requiring permits will then become unconstitutional. Reciprocity by court decision is the only way it will happen because congress just won't pass it. To much opposition.

 

[AlexanderA]

It all hinges on the meaning of "to bear" in the 2nd Amendment. And this is not a slam-dunk. In 1791, "to bear" was not synonymous with "to carry." "To bear" arms had a military context.

So, there's a risk taking such a case to the Supreme Court, especially given Justice Thomas' emphasis on history. Meanwhile, more and more states are enacting permitless carry. Why rock the boat at this stage?

Priority has to be given to challenging "assault weapon" bans. After all, you can't carry what you can't own.

 

[CoalTrain49]

It all hinges on the meaning of "to bear" in the 2nd Amendment. And this is not a slam-dunk. In 1791, "to bear" was not synonymous with "to carry." "To bear" arms had a military context.

So, there's a risk taking such a case to the Supreme Court, especially given Justice Thomas' emphasis on history. Meanwhile, more and more states are enacting permitless carry. Why rock the boat at this stage?

Priority has to be given to challenging "assault weapon" bans. After all, you can't carry what you can't own.

The right to bear arms will be decided based on 14A. There have been issues of modern society (Obergefell v. Hodges) that weren't around until recently. Therefor the constitution couldn't and didn't address those but the USSC did. They ruled against the states right.

If there happened to be a federal issue with permit-less carry it would be illegal, but it isn't and never has been. Federal law only addresses it in certain places.

Self defense is a fundamental right as it states in 2A but unfortunately at the time it was going to be done with a militia. Times have changed. The closet thing we have these days is the police and we all know the response time there.

The need for a more solid foundation for the protection of freedmen as well as white citizens was recognized, and the result was a significant new proposal--the Fourteenth Amendment. A chief exponent of the amendment, Sen. Jacob M. Howard (R., Mich.), referred to "the personal rights guaranteed and secured by the first eight amendments of the Constitution; such as freedom of speech and of the press; ... the right to keep and bear arms...."[35] Adoption of the Fourteenth Amendment was necessary because presently these rights were not guaranteed against state legislation. "The great object of the first section of this amendment is, therefore, to restrain the power of the States and compel them at all times to respect these great fundamental guarantees.

https://guncite.com/journals/senrpt/senhal14.html#fnb35

Everyone should read this and stop trying to decipher 2A. It's a dead end street.

 

[GEM]

Another priority is clarification of sensitive locales and opt in restrictions. Scotus was never really clear on them in a positive manner. Clarence was seen as a genius for his Manhattan statement but that was easily circumvented by opt in making every business and parking lot in the state functionally banned. Similarly, they blithely seem to open the door to bans on parks, libraries, houses of worship, etc. Add to that car storage bans that are pragmatically very difficult and you wipe out useful carry.

Clarence and friends didn't think this through or really buy into to sensitive locales based on emotions - of course, libraries - you should be quiet. Parks, the kiddies gambol in the fields.

So all the folks excited about a carry decision better pay attention to what a state can do in response. Note, Scotus will take years to get back to these sort of laws and the court might change. Clarence is in 'just drop' dead range and has some corruption problems swirling around him now.

 

[Old Dog]

Now, what may wind up in front of higher courts is the issue of traveling from a permit-less State to a permit-required State.(or of those limited reciprocity States).

One has to wonder why this hasn't been addressed since SCOTUS keeps re-affirming RKBA as a right, while such things as driver licenses issued by any state are recognized in all states -- and driving a motor vehicle has never been recognized as a right, simply a privilege.

As an aside, judging by the past few day's news, the mainstream media and certain members of a certain party are going all in trying to discredit Justice Thomas and get some dirt on him.

 

[Mk-211]

Recently both the House and Senate were controlled by Republicans as was POTUS.

That's when it should've happened but the Uniparty wasn't concerned enough to get it done!

We did get more gun control though!

 

[GEM]

They would have to voided the filibuster and didn't want to do that. Also, surprise - the GOP isn't as strong as on the RKBA as you think. Certainly, the ex-President wasn't despite his bluster on the issue.

 

[Sgt_Mike1]

Will a Constitutional Carry case ever reach SCOTUS?

Only if the Supreme Court takes it, they have the ability to take or ignore any appeals. $$$$ and time drives the appeals process leading to the Supreme Court, not the love of what's right legally in pursuit of justice or constitutional.

 

[jeepnik]

This is a weird one, in my opinion since the Founding Fathers outlined that powers not expressly granted to the federal government are reserved to the States. Each state can make and enforce its own laws unless there is a federal law for that specific item. While the Second Amendment states the right to bear areas shall not be infringed, the way they are carried is a gray area nowadays.
I completely agree with the Constitutional Carry law in Kansas. Before its passage Kansas was an open carry state and we lived with it very well.

Article 6 of the Constitution states that Federal law is the law of the land and thus overrides state law. This pretty much blew the whole, rights not reserved by the federal goverment are ceded to the state bit.

This is a good thing because that means the 2nd Amendment super cedes all state laws regarding firearms. And that Amendment states, A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Bearing something is carrying it.

 

[Styx]

Recently both the House and Senate were controlled by Republicans as was POTUS.

That's when it should've happened but the Uniparty wasn't concerned enough to get it done!

We did get more gun control though!

I vote Republican because I know they won't do anything compared to the other side that will push gun control. I do expect Republicans to ever push for any Federal pro gun regulation. You to realize Trump and politicians in Congress mostly grew up with sliver spoons in their mouths going to private schools and living in great neighborhoods. Just about all have security now. They don't care about carrying, shooting, collecting, etc firearms. It's not a priority for them. They all, Trump included, just give voters lip service, and the overwhelming number of voters who are typically Conservative are gullible enough to keep falling for it...

If Trump is President again, we'll get more gun control, and that will be all he'll push for. If Republicans get a 4 year or so super majority in Congress and a Republican president, gun rights wouldn't make the list of things they'd be focused on ramming through while the opportunity exist. The number one priority would be more deregulation and tax cuts for corporations and the wealthy, not guns wouldn't even be an afterthought. Gun owners are still going to vote them back into office either way, and they know it. They risk losing more votes by supporting gun rights vs doing nothing at all. Plus each and every time the topic even comes up, there's another mass shooting that the media will talk about 24/7 ad nauseam.

To add to that, just about ALL Democrat voters are antigun, and a significant number of gun owners, myself included, do not want to set the precedent of the Federal government having blanketed say so over state carry rights. That's a Pandora's box and a rabbit hole that's not going to work out the why we expect in the long run.

 

[lysanderxiii]

The issue is not a federal one, but a state issue.

Each state has its own regulations on what requirements are necessary for concealed carry. Only when they become overly restrictive do they become a Constitutional issue, until then . . .

 

[Styx]

The issue is not a federal one, but a state issue.

Each state has its own regulations on what requirements are necessary for concealed carry. Only when they become overly restrictive do they become a Constitutional issue, until then . . .

That's how it should be, but I'm sure they could do like they've been doing to control firearms on a Federal level by ridiculously using the Commerce Clause.

 

[lysanderxiii]

Article 6 of the Constitution states that Federal law is the law of the land and thus overrides state law. This pretty much blew the whole, rights not reserved by the federal goverment are ceded to the state bit.

That is not what Article 6 means . . .

The Constitution is specific about what the Federal Government can do. These enumerated, or listed, powers were contained in Article I, Section 8. Article 6 just states that Federal laws trump state law, however it does give the Federal Government the power to pass laws that are outside of those listed in Art I, Sec 8.

All Art 6 means is that Florida can't pass a law stating that its citizens do not have to pay Federal income tax.

There is a lot of "interpretation" about some of the enumerated powers, like interstate commerce. The 1934 NFA and 1968 GCA are based on interstates commerce . . .

 

[AlexanderA]

Bearing something is carrying it.

That's the crux of the whole issue, isn't it? The conclusion is far from obvious.

 

[dweis]

Please read post 19 and 20 below to see a correction to the below comment.

SCOTUS only takes cases in which a dispute over law (not facts) has to be resolved. I do not know if any SCOTUS over the history of the Court has ever received or denied a petition to overturn a state concealed carry permit law as a violation of 2A. Under the Federalism Doctrine each state determines its own laws so states are able to require permits. There is at least one case in the 9th circuit that deals with permitting. HI prohibited Open Carry and at the same time did not issues carry permits. The Circuit found that as infringing 2A Rights because the the joined restrictions prohibited everyone from having a firearm for self defense. I believe that matter is not moot because Bruen decision basically compelled all states to issue concealed permits. In compelling the issuance of permits SCOTUS effectively made state regulations to Ontario permits in the hands of the state. So in a round about way SCOTUS has ruled they states have the authority to regulate the the permitting process. That would make it an uphill slog to for anyone protesting arrest for carrying without a permit. My guess is that SCOTUS would reject such a partition. It tends to let states control their decisions unless egregious harm is being done. Arresting a person who knowingly breaks a law is not egregious harm.

 

[AlexanderA]

I do not know if any SCOTUS over the history of the Court has ever received or denied a petition to overturn a state concealed carry permit law as a violation of 2A.

Wasn't that exactly what the Bruen case was?

 

[dweis]

Wasn't that exactly what the Bruen case was?

Yes it was. Sloppy writing on my part. I should have written
to have a state concealed carry permit law as a violation of 2A overridden by permit less carry.

 

[lilguy]

Please read post 19 and 20 below to see a correction to the below comment.

SCOTUS only takes cases in which a dispute over law (not facts) has to be resolved. I do not know if any SCOTUS over the history of the Court has ever received or denied a petition to overturn a state concealed carry permit law as a violation of 2A. Under the Federalism Doctrine each state determines its own laws so states are able to require permits. There is at least one case in the 9th circuit that deals with permitting. HI prohibited Open Carry and at the same time did not issues carry permits. The Circuit found that as infringing 2A Rights because the the joined restrictions prohibited everyone from having a firearm for self defense. I believe that matter is not moot because Bruen decision basically compelled all states to issue concealed permits. In compelling the issuance of permits SCOTUS effectively made state regulations to Ontario permits in the hands of the state. So in a round about way SCOTUS has ruled they states have the authority to regulate the the permitting process. That would make it an uphill slog to for anyone protesting arrest for carrying without a permit. My guess is that SCOTUS would reject such a partition. It tends to let states control their decisions unless egregious harm is being done. Arresting a person who knowingly breaks a law is not egregious harm.

This is why I think gun registration at the state level will stand as long as nothing is confiscated.

 

[rust collector]

This thread, which has been moved to the Legal section by another moderator, started with a question and speculation. We try to avoid speculation in this section, and none of us are court historians. All we can do is refer to some reminders of how our system is supposed to work. As we have all seen, processes get perverted by those those skilled in the art of deception and subterfuge, but the basic outline still must be followed.

The Supreme Court was never intended to make policy. We see that it has done so at the hands of what we call activist judges, which can be defined as any judge who does not see things our way. That has happened so often that now judicial nomination is treated as policy perpetuation. If you have not watched the members of the senate try to paint nominees into certain corners and derail nominees believed to be likely to advance other agendas, you should do so. Consequently, we all think we know what the court will do and of course we are never as smart as we think.

The Supreme Court controls what cases are brought before it, and its ruling is normally governed by precedent, the unique facts of the case before it, and the outlook and inclination of the unique individuals who make up the court and its staff at that moment. We know about the second amendment, and that it like most other rights has limitations. States are expected to regulate their population with laws that are necessary for the common good, with the feds involved in specialized areas such as taxes, international affairs, and interstate commerce. There is a right to shout fire, but not in a crowded theater. Similarly, there is a right to bear arms, but manner and location is subject to local regulation. Just as boundaries of a voting district are subject to manipulation, so too with laws restricting carry.

As I understand it, constitutional carry is another way of saying the right to carry a firearm without a permit or license to do so. The issue is to what degree and on what basis a local or state government can restrict carry, and SCOTUS has previously held that some restriction does not violate A2 (the second amendment to the bill of rights). Read the Heller case for an example. The OP's "why" misses the point that such restrictions have been upheld in prior cases. That some states are relaxing the permit requirement does not in any way affect supreme court precedent that states may impose reasonable restrictions upon how and where guns are carried. NYC is one of many jurisdictions teasing out just how far they can go with regs and make them stick. It's like working across a minefield, but they are video game mines that just mean if your laws violate A2, you just go back to the start and try again.

I've gone too long with this attempt to explain, and much of this has been alluded to previously. To link up with the reality of the legal section, I will ask that further comment be limited to specific cases and fact situations that are likely to wind up before SCOTUS, because they don't address general principles and terminology that sounds good but means only what the proponents want it to mean.

 

[natman]

It all hinges on the meaning of "to bear" in the 2nd Amendment. And this is not a slam-dunk. In 1791, "to bear" was not synonymous with "to carry." "To bear" arms had a military context.

The Supreme Court disagrees:
In Muscarello v. United States, 524 U. S. 125 (1998), in the course of analyzing the meaning of “carries a firearm” in a federal criminal statute, JUSTICE GINSBURG wrote that “surely a most familiar meaning is, as the Constitution’s Second Amendment . . . indicate: ‘wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.’”

We think that JUSTICE GINSBURG accurately captured the natural meaning of “bear arms.” Although the phrase implies that the carrying of the weapon is for the purpose of “offensive or defensive action,” it in no way connotes participation in a structured military organization. From our review of founding-era sources, we conclude that this natural meaning was also the meaning that “bear arms” had in the 18th century. In numerous instances, “bear arms” was unambiguously used to refer to the carrying of weapons outside of an organized militia. DC v Heller, pages 10-11

 

[Frank Ettin]

A lot of "stream of consciousness" guesswork and speculation. For example --

...there's quite a few people who've been arrested for carrying a gun without a permit and that is really their only crime, they weren't felons and they were legally allowed to possess a gun and may have even had a valid permit to purchase....

Is this true? How do we know if it is? Certainly in my research I've seen any number of appellate court cases in which the defendant, among other things, challenges an unlawful gun possession charge with a Second Amendment argument. But none of those cases were "clean." In every one the defendant had lots of other problems, e. g., he was a prohibited person, he was caught with drugs, he was involved in a fight, etc.

But even in those cases, the unlawful gun possession charge should still be vulnerable to a "the Second Amendment is my carry permit" attack. But such arguments bump up against the fact that the Supreme Court has consistently permitted some regulation of constitutionally protected rights. So, for example, looking at a right protected by the First Amendment, the Court said, in Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 87 L.Ed. 1292, 146 A.L.R. 81 (1943), at 110 (emphasis added):

… See for example Cox v. New Hampshire 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049, 133 A.L.R. 1396, and Chaplinsky v. New Hampshire, 315 U.S. 568, 62 S.Ct. 766, 86 L.Ed. 1031. But that merely illustrates that the rights with which we are dealing are not absolutes. …

The bottom-line most likely is that there have been no Supreme Court "constitutional carry" cases for a number of reasons, including:

1. Relative dearth of really attractive cases in which to make the argument;
   
   
2. Uncertainty of outcome;
   
   
3. The question of whether the costs and risks of litigating the issue are warranted in light of the relative easy availability of "shall issue" carry permits and the fact many States have already adopted permit-less carry.

 

[CapnMac]

while such things as driver licenses issued by any state are recognized in all states

Sort of--not all the State IDs re compliant with the "Real ID" act. So, they may be recognized within a given State, and may be given reciprocity in other States. But, will not be recognized in Federal use (like getting on a plane).

Such things can appear simple, but are not.