Appeals Court: No 2nd Amendment Right To Public Concealed Carry

[DonViejo]

Source: Talking Points Memo

The gun rights movement was delivered a setback Thursday when an appeals court based out of San Francisco said there was no Second Amendment right for a member of the public to carry a concealed weapon in a decision upholding a California firearm restriction.

"As the uncontradicted historical evidence overwhelmingly shows, the Second Amendment does not protect, in any degree, the right of a member of the general public to carry a concealed weapon in public," the U.S. Court of Appeals for the Ninth Circuit said in its opinion. In a 7-4 vote, it upheld the previous ruling of a three-judge panel of the appeals court, which had been appealed to the full court.

"The Second Amendment may or may not protect to some degree a right of a member of the general public to carry a firearm in public. If there is such a right, it is only a right to carry a firearm openly," the opinion said. "But Plaintiffs do not challenge California’s restrictions on open carry; they challenge only restrictions on concealed carry."

The opinion noted the question of open carry had not been answered by the Supreme Court.

-snip-

Read more: http://talkingpointsmemo.com/livewire/appeals-court-no-2nd-amendment-right-concealed-carry

[scscholar]

1. But open carry, like we have here in Seattle, is much worse...

so those judges are in the wrong. They need to kill both open and closed and whatever in the hell other types of carry that there be.

[DonViejo]

3. The Court can only rule on issues brought before it....

And as the Court noted, in the third paragraph of the OP:


"The Second Amendment may or may not protect to some degree a right of a member of the general public to carry a firearm in public. If there is such a right, it is only a right to carry a firearm openly," the opinion said. "But Plaintiffs do not challenge California’s restrictions on open carry; they challenge only restrictions on concealed carry."

[MosheFeingold]

18. You hit the nail on the head. n/t

[Hortensis]

35. The rule of law rules. They did right.

[frazzled]

2. Hallelujah

It would be great if this came up before the 4-4 Supreme Court soon--because a locked court would mean the Appeals Court decision stands.

[TeddyR]

5. True

But it wouldn't be a precedential decision from the Supreme Court. I personally don't see the Court taking up any more gun control laws until they get a 9th member.

[lark]

7. Glory Glory,

Hallelujah. Hope this gets an expedited hearing so the Appeals Court decision stands. The guy Obama nominated is known for being very pro-gun, so glad he's not on the court yet. As bad as the Repugs are, doubt he gets the job. Wonder if Hillary will reappoint him or pick someone else. I'm thinking positively that she will beat Trump.

[lancer78]

29. And that is something we

don't need during an election year. Remember what happened in 1994. This would be far worse.

[Runningdawg]

4. To the shall-not-be-infringed folk

nothing has changed, nothing WILL change. If they want to carry, a law is not going to stop them.
Gunners have an old saying - its better to be judged by 12 than carried by 6.
I have known people who have concealed carried without a licences for the last 40 years, even people in my own family (who ARE liberals). They will carry when they want, to wherever they want and never think twice about the fact they are breaking the law.
You haven't lived until you have been to an OK shotgun wedding. Yes, the do exist and not just to get a groom to marry a pregnant bride. My friends ex-husband told her if she ever remarried he would kill her and everyone at her wedding. Those who knew him took it as a sincere threat. Invites were by word of mouth only and the location was kept secret until a few hours before the wedding. I would say between 60-75% of the guests were armed. No shots were fired. It was a very quick ceremony.

[forest444]

26. I must admit to feeling a kind of quaint charm after reading your anecdote.

I'm for sensible gun control as much as the next liberal; but there's no denying that rifles, in particular, have a cherished place in the American imaginary. My bother-in-law collects antique rifles, and I certainly understand their appeal (every time I see them, I can't help but feel I'm looking at a Charley Russell painting).

That said, I'm just glad firing shots into the air isn't as popular in weddings here as it is in Mexico, where being hit by falling bullets is one of the leading causes of accidental death.

[bluestateguy]

6. Right to own a gun is not the same as a "right" to conceal or carry

I strongly supported the Heller and McDonald decisions, but those cases were about the right to own a gun, keeping it in your own home.

Carrying or concealing I view as more of a privilege, or a right that can be earned, but is not established in the 2nd Amendment.

[askeptic]

8. I agree with you part way

and I agree with today's decision. As one who is interested in the Constitution, and the Supreme Court has already interpreted what the 2nd says, that open carry is a right as the Supreme Court defined it. They basically ignored the militia preamble and said that the rest of the wording was correct - so the BEAR part is just as much of a right as the KEEP part. The "shall not be infringed" is self-explanatory. The 9th also decided that buying and selling guns is a legitimate business.

I don't want to establish any precedent that would endorse the idea that the rights enumerated in the Bill of Rights can simply be removed or modified by passing laws. I think there are a lot of folks out there who are getting us used to the idea that there's no 4th, 5th or even 1st Amendment rights they can't just simply pass a law to override. There is a procedure for modifying the Constitution.

[LiberalFighter]

9. Sort of like back in the Wild West?

Turn in your firearm(s) when going into town.

[Angel Martin]

10. I understand that all the Amendents are limited by criminal law (eg child porn)

but in some cases the Amendment is grounds for striking down a law (eg sexually explicit content)

"Carrying or concealing I view as more of a privilege, or a right that can be earned, "

what is the grounds for defining carry as an "earned right" ?

are their "earned rights" for the first amendment ? do you see carry like reporter's privilege ?

[JustABozoOnThisBus]

14. In CA, I think the privilege to carry can be earned ...

... if you are rich and famous like Sean Penn, or if you are rich and connected like Dianne Feinstein.

I think it's pretty much at the whim of whoever is sheriff of that county.

[ManiacJoe]

17. That is the part that the courts should be striking down.

Equal protection and application of the law is what the people want.

[roamer65]

25. That would take a "shall issue" law...

to be passed by the CA legislature and signed by its governor.


Definitely don't see that happening anytime soon.

[MADem]

11. About effing time.

Will I live to see the day when "Well regulated militia" is defined as "National Guard?"

[ManiacJoe]

13. Not as long as people can read and think.

"Well regulated militia" has never meant nor implied "National Guard".
The use of "regulated" here has never meant "restricted" or "governed".

[MADem]

15. That is because people aren't reading right or thinking hard enough.

And the Supremes can rule as they see fit. Slavery used to be legal and accepted in America, too, and their 'votes' cast by their 'masters' were worth a percentage of a white vote. That idiocy was enshrined in law, too. Didn't make it right, didn't make it sensible, didn't make it reflective of our values as a nation.

Maybe we can get over this dumbass gun culture. That's MY hope. It should be at least as hard to qualify to get a gun as it is to get a driver's license. Frankly, I'd like to see it be a bit harder.

I'm tired of children being gunned down. A kid was murdered in front of a local high school yesterday, and a couple others wounded, by someone driving by. The kid was the baby of the family, a "stay home" type, a good student, and he had the bad luck to be in front of his own school to catch some lead during a fire drill.

Sick of this crap. I've had enough.

I'm not alone, either.

[ManiacJoe]

16. I completely understand your position.

Unfortunately for you, your desires require an amendment to the constitution, which is possible but very unlikely.

[MADem]

19. I think it just requires five justices to think a bit differently about the meanings of words.

reg·u·late
ˈreɡyəˌlāt/
verb
past tense: regulated; past participle: regulated
control or maintain the rate or speed of (a machine or process) so that it operates properly.
"a hormone that regulates metabolism and organ function"
synonyms: control, adjust, manage
"the flow of the river has been regulated"
control or supervise (something, especially a company or business activity) by means of rules and regulations.
"the organization that regulates fishing in the region"
synonyms: supervise, police, monitor, check, check up on, be responsible for; More
set (a clock or other apparatus) according to an external standard.

[ManiacJoe]

21. "Thinking differently" is not a good thing relating to the meaning of words.

When the meaning of a word is not clear for your purpose, pick a more appropriate word.


Regulate:

3. to adjust so as to ensure accuracy of operation: to regulate a watch.
4. to put in good order: to regulate the digestion.

The above is the common use of the word back then.
What you have quoted is the new/drifted use of the word now.

[MADem]

22. I think the word works with those definitions, too.

All we need are five who think like me.

[Ruby the Liberal]

23. So keeping along those lines in 2016

Do we go the 'original intent' direction or the 'how it applies today' direction when it comes to the actual equipment? Thinking they weren't writing about AK47s when they penned it...

[MADem]

30. Indeed. I think a good window into how the Supreme Court sometimes operates can be found in the

film "Muhammad Ali" which is, quite appropriately, airing on HBO this month. Pull it up ON DEMAND and give it a good look if you have not seen it--it is not time wasted at all.

It shows how the justices flipped on initially intending to rule AGAINST Ali's sincerely held religious belief, told through the eyes of a law clerk and historical footage of Ali from his youthful 'Cassius Clay' days forward. It's very well acted and holds one's interest.


This whole idea that American jurisprudence is cast in stone is just asinine. Were that the case, we'd not have (quaint term) "intermarriage," either racial or religious (which would mean that many of us never would have seen the light of day), never mind the concept of equality which (Merci, Supremes) is the law of the land today.

[Ruby the Liberal]

32. By land or by sea

I once saw an argument by an Originalist that tried to make the case to disband the air force because it wasn't "authorized".

Thanks for the heads up on the movie.

[MADem]

37. LOL!!!!

If you were meant to fly you woulda been born wid wings!!!!

[beevul]

31. One can not read right enough or think hard enough...

One can not read right enough or think hard enough, to make 'the militia' mean the national guard - which was created many decades after the amendment was written.

[MADem]

38. Those farmers with guns at Lexington and Concord

Were the Guard of the day...like it or not.

[NickB79]

39. "The Guard of the day" is not the National Guard of today

Unless your only requirements are that they lived in the US and brought guns to a battle (their own guns, in fact, not government-issued guns like the National Guard would use). They also didn't draw a salary from a government organization like the National Guard, or enjoy any of the other benefits of service in the National Guard like today.

When you break it down, the Minutemen and the modern-day National Guard share almost nothing except for the fact they both carried guns at some point in their lives.

To proclaim that the 2nd Amendment only applies to the National Guard of today is a pretty flimsy argument to make.

[MADem]

43. If five justices think like me and say those guys were the structural equivalent of

what we now know today as a state/national guard, then your arguments go out the window. All that salary bullshit and this/that/the other conditions you keep trying to twist up into an argument just don't matter. If five people in black robes decide that they can hang those robes on the hook I describe, my argument wins.

I suggest you watch the film Muhammad Ali--it'll open your eyes to how the Supremes REALLY work. They had him on his way to jail but he never knew it.

The law is the law, except when it ain't. And then it is, again.

[NickB79]

49. If? That's all you have?

Arguments before a Supreme Court are based upon facts. My comparison of the Minutemen of 1776 to the National Guard of today is a discussion of facts. You are operating on an assumption, on faith.

And even Hillary Clinton has publically stated that it is a constitutional right to own a firearm, so I'm not too concerned about losing said right in my lifetime.

[MADem]

50. There are fifty dead and fifty three wounded in Orlando in the worst mass shooting

in American history. THAT is "what I have."

IT IS TIME and I don't care if you or anyone else doesn't like it.

I think more and more Americans are seeing things MY WAY.

[Travis_0004]

52. That doesn't change what the second amendment says

You are free to start a movement to repeal the second amendment. But until then, we can't just ignore it and do whatever we want, like it doesn't even exist.

[MADem]

53. I wouldn't bet on that if I were you. nt

[cstanleytech]

54. Question is will enough see it that way? I have my doubts due to how

short a memory it seems the public has.

[MADem]

56. When a group that has a record of activism and courage gets slammed in this way

I don't think they'll back down.

The fight for equality wasn't easy, either--but they got it done. I would not be at all surprised if the LGBT community is at the tip of the spear when it comes to this issue. I hope they get angry because when they get angry they get shit done.

This is a cause worth getting behind--and there are more and more groups of people who are saying "WTF? ENOUGH, already."

Time for the pendulum to swing back the other way.

[beevul]

41. Under which governments authority were they? N/T

[MADem]

42. The authority of the revolutionaries who formed the USA.

The Little Government That Could--and DID.

Look, you can argue a POV all you want.

But all it takes is five people who THINK LIKE ME to make it happen.

Segregation used to be the law of the land at one time--it's not anymore. Why? Because enough justices stopped thinking like bone heads and got with the program.

Marriage equality used to be an impossible quest. Until enough justices stopped thinking like bone heads and got with the program.

We can fix this gun thing, too, once enough justices stop thinking like bone heads and get with the program.

[beevul]

44. Precisely.

But all it takes is five people who THINK LIKE ME to make it happen.

If you read both the dissent and the ruling opinion of Heller, even with a new addition which agrees with you, there wont be 5 total that do.

That's your first roadblock.

Lets pretend that's not true though. Lets pretend that the supreme court is completely hostile to the second amendment.

Nobody will bring a gun case in front of a known hostile USSC, and you really can't compel it, so...

Segregation used to be the law of the land at one time--it's not anymore. Why? Because enough justices stopped thinking like bone heads and got with the program.

Marriage equality used to be an impossible quest. Until enough justices stopped thinking like bone heads and got with the program.

We can fix this gun thing, too, once enough justices stop thinking like bone heads and get with the program.

Setting aside the fact that you're comparing apples and oranges - comparing decisions that increased peoples rights to a decision you'd like to see which decreases rights - 3/4 of the American people disagree with you. The president disagrees with you. Congress disagrees with you. Current precedent disagrees with you.

We can fix this gun thing...

Not by going after the people that don't commit gun violence, you can't.

[MADem]

45. The courts used to be hostile to prohibiting segregation.

They used to be hostile to any argument that said slavery was wrong.

They used to be hostile to a woman's right to have control over her own body.

And they were terribly hostile to marriage equality....until they weren't.

It needs to be harder to qualify for gun ownership. Right now, it's harder to get a driver's license.

[beevul]

46. You folks - the gun control true believers - talk a good game on occasion.

This, however, is not one of those times.

They used to be hostile to any argument that said slavery was wrong.

They used to be hostile to a woman's right to have control over her own body.

And they were terribly hostile to marriage equality....until they weren't.

Comparing trends of hostility toward certain things over time, with increasing hostility toward a certain thing because you desire it.

Apples and oranges. Again.

It needs to be harder to qualify for gun ownership. Right now, it's harder to get a driver's license.

Driving on public roads is not a constitutionally protected civil right. Gun ownership is.

Apples and oranges. Again. It appears that you can't argue or defend your position, without them.

[MADem]

48. Prohibition used to be 'constitutionally enshrined' too.

Stupid things are not cast in stone. Sensible justices can and do fix dumbass stuff.

Our day will come...and if you aren't troubled or disturbed you won't have anything to worry about.

You will be able to protect your home and livestock but there won't be any more of this mowing down classrooms of children.

[ManiacJoe]

47. Is it really harder to get a drivers license than to legally purchase a gun?

Based on the quality of drivers I see daily, I would have to disagree.

[christx30]

57. What do you say to the millions of

peaceful, responsible gun owners that have theirs for hunting and self defense? Should they give up their weapons, just because of the actions of one evil idiot? That makes as much sense as Trump wanting to ban Muslims from coming into the US because of the evil idiot.
There was a story a few months ago. A Dutch woman was attacked by a guy that was trying to rape her. There were no police around to help her. She used pepper spray against him. He ran off. That self defense tool was the only thing between her and sexual assault. When she reported what happened, she was fined for possession of the pepper spray. That is the future in this country if 5 justices think like you.
Many times, a gun in the hands of decent people have saved lives. It doesn't even have to be fired. A 110 pound woman can scare a much bigger mugger, rapist, ect off just by showing it.

[MADem]

58. Pass a background check--a real one; and you can have your little guns.

If you're on the no - fly list, or you're taking anti-psychotic medications, you're not getting a gun. No open carry anymore--all this gun waving shit has to cease.

[ManiacJoe]

12. The article title is very misleading.

What the court ruled is that the state's laws regarding concealed carry and the state's rules regarding the application process are not unconstitutional.

The court did NOT rule that there is no right, just that the right can have restrictions.

[Ruby the Liberal]

20. Is this a first for a court at this level?

[Recursion]

28. No, it's pretty much straight from SCOTUS

Scalia in either Heller or McDonald laid out what's basically the liberal wishlist (AWB, registration, permitting, carry restrictions, background checks, etc.) as permissible, saying the only thing the 2nd amendment forbade was an out-and-out ownership ban like DC or Chicago had.

[Ruby the Liberal]

33. Interesting - thanks!

Not a topic I have followed from a legislation perspective, only a social one. Thanks for explaining - that was very helpful!

[Recursion]

34. It's weird: for all the social furor it causes the 2nd Amendment has been used in 3 rulings

The first was Miller, which said that the right only covered weapons Congress deemed appropriate for militia use, so things like bazookas, sawed-off-shotguns, machineguns, etc. were not covered.

Then came Heller, which said that DC (which is at least in theory Federal) could not outright ban firearm possession, though it could restrict it by background checks and significantly limit carrying (and in fact Heller let DC continue to ban semi-automatic pistols and limit possession to revolvers, though IIRC that is being challenged now). McDonald did the same thing for the states and localities in Chicago.

And, I mean, when it comes down to it I guess I do kind of agree that outright 100% firearms bans are probably not Constitutional (the 9th Amendment also comes into this for me); I just want registration and licensure.

But anyways this is why I think the whole "repeal the second amendment" thing is a red herring: all that keeps us from doing is literally banning every civilian from owning firearms like DC used to do. And honestly I don't think there's all that much appetite for that in our party.

[Ruby the Liberal]

40. It fits on a bumper sticker

And that is the attention span of most people, unfortunately. Me among them - especially on this issue.

Appreciate you adding the detail on those prior cases. Now at least I'll understand what people are referring to when I see those references.

[roamer65]

24. It upholds California's right to be a "may issue" state.

That's all it does. Concealed carry is treated as a privilege by most states. Just like a driving a car is not a right, it's a privilege that be revoked.

If anyone is thinking this affects actual gun ownership, it does not.

[Recursion]

27. Pretty much straight from Heller and McDonald

As much as people lament those decisions, they were pretty clear that just about everything other than an ownership ban is permissible.

[ileus]

36. It's up to the people to keep their CC rights.

[roamer65]

51. If you are gay and live in CA, you now have a valid reason for a carry permit.

If they don't grant it, sue them.

[jpak]

55. I guess it ain't "consteetooshunal carry" after all