Next step post-Heller: the 14A Incorporation issue. Details :)
- Thread starter Jim March
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Glockman19: Yes, that's exactly where we need to go. It's implicit in the combination of Heller's "second amendment is a right to personal defense" plus the California constitution's "we honor the whole Federal constitution" clause.
You're absolutely right: "good cause" should now be "to exercise my personal right to self defense under the 2nd".
One twist though that I was debating somebody over the phone on just now:
The Heller decision says states can regulate concealed carry. I would argue that yeah, they can, with two serious limitations:
1) Any such regulation has to be fair and follow equal protection principles. It must not be "arbitrary or capricious".
2) A state has to allow SOME form of out-of-the-home personal defense because the Heller court didn't separate "keep" from "bear". In other words, they explicitly said we have a right to "bear" arms in a personal, self defense role. So I would predict the courts will declare that it's legally possible for a state to allow open carry but ban concealed carry, OR the state can choose to do fair, "shall-issue" CCW access and ban open carry, OR allow both open carry and concealed.
In the case of California, they've already banned open carry (if the piece is loaded). They're doing grotesque discrimination in CCW. The ban on open carry radically strengthens the argument that we have a right to CCW, because again, I think they have to provide SOME method of personal defense outside the home. And Cali's policies in total appear to add up to "when we support self defense, we do via concealed carry". Remember, California's CCW system calls accidental gun exposure a crime.
That said, I think any situation where open carry is legal and concealed isn't will result in an Ohio-type situation where the grabbers pass a "God, put the damn things away already!" law when we annoy the hell out of 'em with open-carry rallies in circles around the state capital buildings
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You're absolutely right: "good cause" should now be "to exercise my personal right to self defense under the 2nd".
One twist though that I was debating somebody over the phone on just now:
The Heller decision says states can regulate concealed carry. I would argue that yeah, they can, with two serious limitations:
1) Any such regulation has to be fair and follow equal protection principles. It must not be "arbitrary or capricious".
2) A state has to allow SOME form of out-of-the-home personal defense because the Heller court didn't separate "keep" from "bear". In other words, they explicitly said we have a right to "bear" arms in a personal, self defense role. So I would predict the courts will declare that it's legally possible for a state to allow open carry but ban concealed carry, OR the state can choose to do fair, "shall-issue" CCW access and ban open carry, OR allow both open carry and concealed.
In the case of California, they've already banned open carry (if the piece is loaded). They're doing grotesque discrimination in CCW. The ban on open carry radically strengthens the argument that we have a right to CCW, because again, I think they have to provide SOME method of personal defense outside the home. And Cali's policies in total appear to add up to "when we support self defense, we do via concealed carry". Remember, California's CCW system calls accidental gun exposure a crime.
That said, I think any situation where open carry is legal and concealed isn't will result in an Ohio-type situation where the grabbers pass a "God, put the damn things away already!" law when we annoy the hell out of 'em with open-carry rallies in circles around the state capital buildings
.Quoting Ergosphere:
True. In Fresno Rifle, Hickman and Nordyke we see the 9th Circuit point out yet another way gunnies are screwed (via lack of incorporation) but it isn't their main argument. The main argument in all three cases is "no personal right via the 2nd".
The Silveira case "flew without a net" - it discards all the anti-incorporation cases, declares Barron a dinosaur (true dat), declares Cruikshank a total fiasco (true again), and flies along purely on "no personal right". So Heller just takes a shotgun to it and blows it up completely. We can make hay out of the wreckage though where it disparages Barron and Cruikshank.
True. In Fresno Rifle, Hickman and Nordyke we see the 9th Circuit point out yet another way gunnies are screwed (via lack of incorporation) but it isn't their main argument. The main argument in all three cases is "no personal right via the 2nd".
The Silveira case "flew without a net" - it discards all the anti-incorporation cases, declares Barron a dinosaur (true dat), declares Cruikshank a total fiasco (true again), and flies along purely on "no personal right". So Heller just takes a shotgun to it and blows it up completely. We can make hay out of the wreckage though where it disparages Barron and Cruikshank.
Important side-note regarding the Slaughter-house cases.
Texas just passed a new law requiring anybody doing PC repair be a licensed private investigator. Say what? Apparently there have been cases of "Geek Squad" types finding kiddie porn on a disk, calling the cops, but because the techs weren't trained in evidence handling the chain of custody is broken and the pedo walks free.
So this is their cockeyed solution.
A lawsuit has been filed challenging this mess:
http://www.ij.org/first_amendment/tx_computer_repair/6_26_08pr.html
...and here's the first comment posted on Slashdot:
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Slaughterhouse Cases (Score:5, Insightful)
by snowgirl (978879) * Alter Relationship on Tuesday July 01, @08:00PM
Unfortunately, the Slaughterhouse Cases [wikipedia.org] already determined that a state-run cartel can push out individuals not meeting specific criteria.
Such a right to "sustain ones life through labor" simply does not exist at the Federal level... Now, they are pushing this under the Texas constitution, and I don't know for sure what the Texas constitution says about it, however likely, just like Louisiana, they probably don't guarentee a person's right to work in a particular field.
We require licenses of many different professions, doctors, medical professionals, accountants even. Sorry, but unfortunately, saying "I have plenty of happy customers that are willing to have me repair their computers" doesn't justify this anymore than a doctor practicing medicine without a license can say "but they're totally accepting of my care, even though I'm unlicensed."
I hate to say this, but these people probably don't have a single leg to stand on legally, because this has all been through the courts before... of course, I could be wrong, and things could change. But I don't expect it to.
If Texas ruled you had the right to do any work between two knowing and consenting adults, then that would lead to situations potentially opening the way to prostitution (which I don't think should be illegal) or circumvention of licensing standards for other professions. Why do I need government permission to be a cop? I can pull over anyone I want, and by telling me that I can't, the government is making me unable to sustain my life through the labor of my choosing.
I think the biggest issue here, is that police and other criminology people are concerned that if a computer tech stumbles across illegal information on a computer, that since they are not a licensed private investigator, the evidence cannot in any way be used. Even if say, it's for a child-pornography case. "Your evidence was seized improperly, sorry, but it's excluded, next time do things the right way!"
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Jim again.
Thing is, I'm not sure this poster is 100% correct. Slaughter-house was about creating a full-on monopoly and very likely that wouldn't work today as many elements of Slaughter-house have been at minimum limited and most eliminated (such as the whole idea that the Feds can't control local civil rights violations).
How this Texas thing will go down I have no idea. I intend to watch it CLOSELY.
Texas just passed a new law requiring anybody doing PC repair be a licensed private investigator. Say what? Apparently there have been cases of "Geek Squad" types finding kiddie porn on a disk, calling the cops, but because the techs weren't trained in evidence handling the chain of custody is broken and the pedo walks free.
So this is their cockeyed solution.
A lawsuit has been filed challenging this mess:
http://www.ij.org/first_amendment/tx_computer_repair/6_26_08pr.html
...and here's the first comment posted on Slashdot:
---
Slaughterhouse Cases (Score:5, Insightful)
by snowgirl (978879) * Alter Relationship on Tuesday July 01, @08:00PM
Unfortunately, the Slaughterhouse Cases [wikipedia.org] already determined that a state-run cartel can push out individuals not meeting specific criteria.
Such a right to "sustain ones life through labor" simply does not exist at the Federal level... Now, they are pushing this under the Texas constitution, and I don't know for sure what the Texas constitution says about it, however likely, just like Louisiana, they probably don't guarentee a person's right to work in a particular field.
We require licenses of many different professions, doctors, medical professionals, accountants even. Sorry, but unfortunately, saying "I have plenty of happy customers that are willing to have me repair their computers" doesn't justify this anymore than a doctor practicing medicine without a license can say "but they're totally accepting of my care, even though I'm unlicensed."
I hate to say this, but these people probably don't have a single leg to stand on legally, because this has all been through the courts before... of course, I could be wrong, and things could change. But I don't expect it to.
If Texas ruled you had the right to do any work between two knowing and consenting adults, then that would lead to situations potentially opening the way to prostitution (which I don't think should be illegal) or circumvention of licensing standards for other professions. Why do I need government permission to be a cop? I can pull over anyone I want, and by telling me that I can't, the government is making me unable to sustain my life through the labor of my choosing.
I think the biggest issue here, is that police and other criminology people are concerned that if a computer tech stumbles across illegal information on a computer, that since they are not a licensed private investigator, the evidence cannot in any way be used. Even if say, it's for a child-pornography case. "Your evidence was seized improperly, sorry, but it's excluded, next time do things the right way!"
---
Jim again.
Thing is, I'm not sure this poster is 100% correct. Slaughter-house was about creating a full-on monopoly and very likely that wouldn't work today as many elements of Slaughter-house have been at minimum limited and most eliminated (such as the whole idea that the Feds can't control local civil rights violations).
How this Texas thing will go down I have no idea. I intend to watch it CLOSELY.
I don't see SCOTUS doing a Post Heller "OC or CC" decision where the state chooses the method of carry. I see the court finding Loaded OC as the 2nd A protected right (I wish it was Vermont style) and then allowing a WI. or IL. ban on CC.
I just can't see a patchwork of "state choice" allowing:
1) OC ok as a 2nd A. Right (unlicensed) with CC banned (a la Wisconsin)
OR
2) CC a Right (but licensed/taxed) with OC banned (a la Texas).
Something has to be the core protected right. And if CC is the Right in some but not other states then were does longarm carry fall in the CC states?
Has this "state's choice" method ever been followed in other SCOTUS decisions or constitutional jurisprudence?
Unlicensed loaded open carry is what we should all be supporting at least as a core right and as a litigation issue. We have it right now based on past SCOTUS' decisions and obviously in Heller; ie. CC not protected. Shall issue CCW will, like in OHIO, and soon I hope in WI. and IL., then follow.
You could be right.
The one aspect of CCW I think we agree WILL get nuked is the discretionary crap. Discretionary gun access as in NJ, NYC, etc. is also on the chopping block.
The one aspect of CCW I think we agree WILL get nuked is the discretionary crap. Discretionary gun access as in NJ, NYC, etc. is also on the chopping block.
Makes one wonder why Scalia did not note those facts, and why he phrased his footnote in a way that sorta suggests non-incorporation is settled law. Maybe he was just trying to fool and appease Kennedy, who knows.Jim March said:
Battle of the footnotes. In footnote 27 he said this:
Certainly suggests strict scrutiny.
I read footnote 23 as a warning to lower courts: "yo, the Cruikshank precedent is bigtime unreliable, it's a total mess, it's racist as hell (note the prior reference to that book on the Colfax massacre) and in general Cruikshank sucks".
In so many words.
In so many words
.Do not forget any individual who chooses to "test" could choose a misdemeanor state such as California but at the peril of a currently issued CCW,CHL, LCHG from in or out of his home state. Many states may revoke even for a misdemeanor for any reason or purpose.
txgho1911,
As discussed earlier, it's probably not necessary to be arrested. Just apply for the license to carry and be refused. At that point it goes to the lawyers -- no handcuffs required.
As discussed earlier, it's probably not necessary to be arrested. Just apply for the license to carry and be refused. At that point it goes to the lawyers -- no handcuffs required.
Why would one have to break the law in order to "test" it? In Cali, you can just apply for a CCW permit, be denied, and there you go, you have perfect standing. Am I missing something?
Oh maybe for loaded OC you'd have to break the law. Hmm...
Oh maybe for loaded OC you'd have to break the law. Hmm...
This is the tactic I'm taking. Since the LAPD is NOT the issuing authority, I'll make application to the LAPD "Ploice Commission", in a public forum where it will become a matter of "Public Record".
Exactly.
As I mentioned...I'd be happy to have Liscensing as a "Reasonable Restriction", if the May Issue is changed to Shall issue and "Self Defenses" is accepted as "Good Cause".
I plan on having the law firm of Trunich & Michel review my argument and paperwork before applying and also don't want to risk a decision that will make it harder for other later down the line.
US v. Cruikshank
My reading of it is that the thrust of the case is Chief Justice Waite's statement that "The 14th Amendment [adds] nothing to the rights of one citizen as against another." In other words, it was saying that the Constitution does not reach private misconduct, as opposed to government misconduct.
Yes, the dicta does state that the 2nd applies only the federal government, but I don't think that was part of the actual holding of the case. Again, that part you cite mentions it in relation to "any violation by their fellow-citizens," not to action on the part of the government (whether federal or state).
In regards to full faith and credit as to out-of-state CCW permits, I wonder if Heller means that an 18 USC 242 "deprivation of rights under color of law" by reason of being an "alien" is now applicable? Or how about actions under 42 USC 1983?
My reading of it is that the thrust of the case is Chief Justice Waite's statement that "The 14th Amendment [adds] nothing to the rights of one citizen as against another." In other words, it was saying that the Constitution does not reach private misconduct, as opposed to government misconduct.
Yes, the dicta does state that the 2nd applies only the federal government, but I don't think that was part of the actual holding of the case. Again, that part you cite mentions it in relation to "any violation by their fellow-citizens," not to action on the part of the government (whether federal or state).
In regards to full faith and credit as to out-of-state CCW permits, I wonder if Heller means that an 18 USC 242 "deprivation of rights under color of law" by reason of being an "alien" is now applicable? Or how about actions under 42 USC 1983?
I saw that thing on PC repair yesterday too Jim. I am no longer in that business but it really threw me.
It would be like waking up and finding out that people who mow lawns for a living can no longer do so unless they are a licensed architect (or have one on staff).
Funny how all this freedom stuff is so connected. Now I have to worry that our recruiting company might come under this as we "employ" computer people who work contracts at our client sites.
Also - the law also penalizes people who knowingly hire a non PI tech. I thought that was weird but after I thought some more I realized - if you want a tech to "clean up" your "evidence" then that is what this law is designed to prevent.
Sorry for running with the tangent a bit....
It would be like waking up and finding out that people who mow lawns for a living can no longer do so unless they are a licensed architect (or have one on staff).
Funny how all this freedom stuff is so connected. Now I have to worry that our recruiting company might come under this as we "employ" computer people who work contracts at our client sites.
Also - the law also penalizes people who knowingly hire a non PI tech. I thought that was weird but after I thought some more I realized - if you want a tech to "clean up" your "evidence" then that is what this law is designed to prevent.
Sorry for running with the tangent a bit....
To help out, you guys need to apply for California non-resident CCW's and/or write the CA AG for reciprocity...upon getting neither sue.
Rogue6: Most of the Cruikshank defendants were in fact state and local government agents. So your read on Cruikshank is directly wrong.
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I don't think that's particularly helpful. Those are clearly things which ought to be decisions at the state level, and the state has not done anything affirmative on either.
On t'other hand, "full faith and credit" from Article IV is being selectively honored when CA does not accept the "public act" of another state in granting a CCW when it does accept, for just one example, granting of a DL.
I don't believe that reciprocity of DL is based at all on the full faith and credit clause, but rather an an agreement among the states and the federal government to honor them.
Something like the way that foreigners are allowed to drive in the US.
For CCW to change from "Shall Issue" to "May Issue" in California all the CA Attorney General has to do is send a memo saying;
"Self Defense" in and of itself is "Good Cause" for issuance of a CA CCW.
"Self Defense" in and of itself is "Good Cause" for issuance of a CA CCW.
Do you really think Jerry Brown would send such a memo? I have this feeling that the former Mayor of Oakland and Governor of this state will be the one fighting this all the way back to SCOTUS.
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The driver's license compact is an agreement among the various states to incorporate traffic violations incurred in another state against the license of the guy that got the infraction, even if it happened out of state. The reason for this was so you could not DL shop if your license got suspended, which was at one time quite common.
Generally the full faith and credit clause requires the individual states to accept public records from other states, such as records of births, deaths, judicial proceedings, etc. It does not require any state to accept a license issued by another state, nor does it require any state to abide by any other state's law(s).
Some people feel that the full faith and credit clause would require a state to accept a homosexual marriage from a state that allowed such things as being legitimate in a state that did not. I don't think there is any reasonable reading of the full faith and credit clause that would require such a thing. It after all just requires acceptance of the records. And a very good argument can be made that accepting the record as being factual does not mean it has any relevance in another state.
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