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To: marktwain
Kentucky specifically amended their Constitution to allow the legislature to ban concealed carry. The Second Amendment was never amended.

If the Federal Constitution made concealed carry a right, Kentucky and many other states could not have laws and constitutions permitting a state regulation or ban of concealed carry.

Please educate me where Blackstone shows concealed carry as an exception to the English right to bear arms. I do not see it.

http://avalon.law.yale.edu/18th_century/blackstone_bk1ch1.asp

Blackstone's Commentaries on the Laws of England

Book the First - Chapter the First: Of the Absolute Rights of Individuals (1765)

5. THE fifth and last auxiliary right of the subject, that I shall at present mention, is that of having arms for their defence, suitable to their condition and degree, and such as are allowed by law. Which is also declared by the same statute 1 W. & M. ft. 2. c. 2. and is indeed a public allowance, under due restrictions, of the natural right of resistance and self-preservation, when the sanctions of society and laws are found insufficient to restrain the violence of oppression.

See the part about "such as are allowed by law?" Consult your state law.

I would note that Blackstone is not the common law per se. It is a compendium restating the common law. The actual common law is pre-DOI collection of English case law, the decision of their courts. There are two such compendiums, but the first published about a century earlier than Blackstone was in Latin, as were many of the early English court opinions.

And, of course, Heller (affirmed by McDonald which incorporated it against the states) stated at 554 U.S. 626:

Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e. g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e. g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884).

Nor are Heller and McDonald very instructive, or the Ninth Circuit case of Peruta.

They may not be instructive to you, but they are clear to the courts.

We should get some clarification in a few weeks in the New York Rifle & Pistol v Bruen case, which is all about carry outside the home. New York City bans both open and concealed carry for nearly everyone outside the home.

The Court tends to write narrow decisions, only deciding what is necessary. I would certainly favor holding the New York law unconstitutional. I believe they will strike down the "proper cause" requirement. Concealed carry with extremely onerous regulations, and selective grants of permits, is probably going to be held unconstitutional. They may also address the granting of a disporportionate amount of permits to less populated areas. I should think they are most needed in places like alphabet city. There is some sort of reverse logic going on there. The court could state that carry outside the home is a fundamental right. A state could probably authorize open carry, or concealed carry, and not violate anyone's RKBA.

Peruta upheld a law on concealed carry and the Supreme Court declined to review the case. That says nothing more than they chose not to hear it. It could mean that the argument was not persuasive, but a different argument might yield a different result. It is not really a matter of whether concealed carry can be regulated, but to what extent. Whatever the case, it stands as good law in the 9th Circuit.

Just because there were a couple of unusual court cases, where concealed carry was upheld, decades after the Second Amendment was ratified, is no reason to assume prohibitions on concealed carry were common at the time of ratification. They were not.

Whether they were common or not it irrelevant. Whether the 2nd Amendment made concealed carry a fundamental right is relevant. The common law did not make it a right, and the 2nd Amendment did nothing to add it to the right. I'm all for states authorizing licensed concealed carry. I'm fine with open carry. Heck, they have driver ed in schools, at whatever age guns may be carried they should have firearm safety classes in schools.

If enough people want concealed carry, or open carry, they can put it in their state constitution or their state law. One state found that they had worded their constitution to prohibit a concealed carry law. They changed their constitution.

119 posted on 06/05/2022 10:18:27 PM PDT by woodpusher
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To: woodpusher
Whether they were common or not it irrelevant. Whether the 2nd Amendment made concealed carry a fundamental right is relevant. The common law did not make it a right, and the 2nd Amendment did nothing to add it to the right.

This is where you and I disagree. The Constitution is determined by what was meant at the time it was written. At the time it was written, there were no laws requiring a permit for open or concealed carry.

That is fact.

It was clear, from the discourse at the time, the Second Amendment applied to individual citizens, and was commonly considered a right of the individual.

The Second Amendment was put in place to protect that right. The Fourteenth Amendment was put in place to prevent the States from infringing on Second Amendment rights, among others.

Blackstone correctly noted English law allowed for regulation. The Second Amendment is stricter, by design, than English law.

Just because the Second Amendment was not enforced, does not mean it should not be enforced.

121 posted on 06/06/2022 6:53:20 AM PDT by marktwain
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