Posted on 02/25/2013 1:09:25 PM PST by ExxonPatrolUs
While gun rights supporters might like to think the Second Amendment to the United States Constitution is an absolute guarantee against government interference, according to at least one (relatively conservative) appeals court, they are severely mistaken. In fact, according to that same court, when it comes to carrying concealed weapons, the Second Amendment is basically irrelevant.
Last Friday, the Tenth Circuit Court of Appeals handed down its decision in the case of Peterson v. Martinez, a case involving the question of whether a state has an obligation to provide a concealed carry license to anyone who has been granted such a license in another state. Their answer was, to put it mildly, “no.”
In fact, the court adopted a fairly novel approach in explaining why the right to keep and bear arms didn’t apply in this case: Rather than rely solely on precedent that restricted gun rights, they built most of their analysis on language from cases that expanded gun rights, but still made clear that there were limits, of which concealed carry was certainly one. As Lawyers.com’s Larry Bodine put it, “To bullet-proof the ruling against an appeal to the U.S. Supreme Court, the 10th Circuit recounted numerous court rulings and state laws dating back to 1813, and based its ruling on prior U.S. Supreme Court cases.”
(Excerpt) Read more at theblaze.com ...
The court can find no right not to carry a gun either. The government is barred form denying gun rights.
What Good Can a Handgun Do Against An Army?
http://www.freerepublic.com/focus/f-backroom/2312894/posts
The court is right to CONCEALED carry. There is a constitutional right to BEAR ARMS. That means open carry. Concealed carry is an infringement of the right that we have accepted in the past out of a sense of social responsibility (i.e. we didn’t want to scare the wussy hoplophobes too much). I’d rather carry openly because that lets me carry a much bigger gun!
Given the basis for the 2nd amendment (protection from tyranny), it's hard to figure how someone from Florida is protecting himself from tyranny by carrying a gun in Colorado. In fact, the reasonableness of the 2nd amendment would be undermined were resistors against government oppression were not, in fact, subjects of that oppression.
Nor does the case reach as far as the article implies it does. The article cites Heller as upholding "longstanding prohibitions," but in the cited content from Heller, the article reveals how this is a fantastically qualified sentence:
"...shall not cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms,”In other words, the Supreme Court has upheld only certain reasonable regulations on the right to bear arms, one of which being the states' ability to require concealed-carry permits. The clear implication from the court is that the decision may have been significantly different if the plaintiff was one of the sheriff's own constituents.
Will be interesting to see what SCOTUS thinks. Think we’ll be OK there.
To be clear:
The problem is that the plaintiff does not provide a reasonable remedy.
If Colorado offers a concealed-cary permit to someone who is not a resident of Colorado, than anyone from a state which has reciprocal recognition of licenses can seek a license in Colorado to get around their own state’s licensing. Presumably, their own state has more information on which to decide if the permit should be issued.
If the court forces a state to have reciprocal licensing of all other states, then if any state DOES issue out-of-state licenses, the least regulated state essentially licenses all other states.
The only real option that court had to allow the plaintiff to get a concealed-carry permit would be to decide in favor of a universal right to concealed carry, which is not consistent with the common law on which the 2nd amendment was based.
Oops: Cut and paste screw up. (I changed an argument, without changing the conclusion.)
The problem with a universal right to a concealed carry is not that it’s inconsistent with the common law on which the 2nd amendment is based, but that Heller explicitly gave the states the right to keep guns out of the hands of crazies, etc., which would be inconsistent with a universal right to concealed carry.
Plaintiff shot himself in the foot by not maintaining an objection to Denver ordinance that (in combination with denying non-residents CCW) prohibits all non-residents from all carry.
Not really. Illinois’ ban was a universal ban on all concealed-carry permits. Colorado’s was only on giving concealed-carry permits to non-residents.
Why doesn’t the 2nd Amendment cover the choice to carry a weapon concealed? Looks like infringment to me.
To always carry openly is not easy, for instance in the winter.
Sheesh.
Recent example being Heller II, where the DC Circuit found that a ban on 10+ round magazines is constitutional. SCOTUS declined to take up the case.
Little older example being Heller. Scalia made a mishmash of the rule stated by the 1937 Miller case, which would have found ownership of an M-16 to be protected by the 2nd amendment, to find the opposite, on the legal basis that to find otherwise would be absurd. Yes, that was the legal rationale. It would be absurd to read the Miller case for what it says.
Shall not be infringed is strong language.
It would be impossible to construct any statute WRT guns that would not infringe on the obvious right granted by our creator in Luke 22:35
Lots of money, wasted. Didn't think ahead.
It's not at all unusual for a lawyer to miss the boat on framing the issue.
Waste of time maybe, but I don't see a setback in the case being lost, per se.
I see Heller as a setback, compared with Miller. Scalia gave these courts the tools to use against the RKBA, and SCOTUS will st by idly while the lower courts do their anti-RKBA thing.
I can see the constitutional RKBA being defined into some narrow pigeonhole that is worth very little, and takes much effort to obtain. AFAIK, SCOTUS has no objection to the $700 hoops that DC residents have to comply with to legally possess a handgun (approved models only) in their own home.
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