Peruta En Banc Opinion - Concealed Carry Lost

[ScottDLS]

.... So why hasn't the original gone up again to possibly get upheld by a Hillary court? ....

Because, in the eyes of the SCOTUS, the second GFSZA remedied the defect of the first one: it included the magic words (or jurisdictional element) "interstate commerce." Presto! Constitutional!

It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone.

This jurisdictional element was challenged up to the Ninth Circuit, which ruled it was sufficient to make the GFSZA constitutional. The current GFSZA has been challenged up to the Circuit Court level several times, but never held to be unconstitutional. The only time a conviction under it is overturned (that I know of) is when the government failed to prove someone knew he was in a school zone, or the person had a state carry license or permit.

Has the SCOTUS denied certiorari on this being appealed from the 9th Circuit that upheld it? Or was the 9th circuit challenge an actual conviction being upheld, and what were the circumstances of the conviction? Was the defendant also in violation of state law? 5th circuit ruled on applicability of an Alabama permit to a violation of the law in Alabama, but did not go to the question of interstate commerce because the defendant had an Alabama permit.

[ScottDLS]

....

State level gun rights are relevant because of constitutional protections limiting the authority of the federal government. A Hillary SCOTUS would not respect the limited authority of the federal government. Additionally, a Hillary SCOTUS, that doesn't respect the words of the constituion, would allow executive orders to become law completely bypassing congress.

A SCOTUS that doesn't respect the words of the Constitution of the United States nullifies rule of law. There are then no limits to government and no liberties left. We become little more than a monarchy.

At that point, only a constitutional convention, civil disobedience or both will restore liberty. Both of those options don't come without a price.

We don't have to wait for Hillary. We already have a post Constitutional president and Supreme Court...

Where I was going was what options are available to the People and the States in the event of Federal overreach. My GFSZA example was of a law that is impossible to enforce without the support of the States. The plain reading of the law means off duty police cannot drive through a school zone with a loaded weapon in Texas and no one can with a (accessible) rifle, and no one can in Vermont. All federal felonies that many people commit daily. Are we going to have the ATF going all in on this one with searches and roadblocks...?

[TXBO]

....

State level gun rights are relevant because of constitutional protections limiting the authority of the federal government. A Hillary SCOTUS would not respect the limited authority of the federal government. Additionally, a Hillary SCOTUS, that doesn't respect the words of the constituion, would allow executive orders to become law completely bypassing congress.

A SCOTUS that doesn't respect the words of the Constitution of the United States nullifies rule of law. There are then no limits to government and no liberties left. We become little more than a monarchy.

At that point, only a constitutional convention, civil disobedience or both will restore liberty. Both of those options don't come without a price.

We don't have to wait for Hillary. We already have a post Constitutional president and Supreme Court...

Where I was going was what options are available to the People and the States in the event of Federal overreach. My GFSZA example was of a law that is impossible to enforce without the support of the States. The plain reading of the law means off duty police cannot drive through a school zone with a loaded weapon in Texas and no one can with a (accessible) rifle, and no one can in Vermont. All federal felonies that many people commit daily. Are we going to have the ATF going all in on this one with searches and roadblocks...?

I won't argue that we don't already have a breakdown in the rule of law. But, it's nothing compared to what a HIllary SCOTUS will allow.

[sugar land dave]

Make no mistake, if Hillary wins, the Heller decision will be overturned and the Second Amendment will be rendered meaningless. The never-Trump crowd needs to fully understand this. There are no alternatives, there are no counter-arguments and there is no justification for doing anything that allows Clinton to occupy the White House.

Chas.

Yes. This should be a wake up call for every true patriot. Our freedom as it relates to firearms will definitely be on the line this presidential election. I cannot recall in my lifetime a time when freedom and the plain read definitions of the constitution were more under attack. Voting in this election cycle just became much more important.

[bblhd672]

"I will protect and defend the Constitution from all enemies, foreign and domestic."

[RoyGBiv]

Make no mistake, if Hillary wins, the Heller decision will be overturned and the Second Amendment will be rendered meaningless. The never-Trump crowd needs to fully understand this. There are no alternatives, there are no counter-arguments and there is no justification for doing anything that allows Clinton to occupy the White House.

Chas.

That is a seriously bitter, bitter pill. Hil! is truly detestable. Trump simply disgusts me.

[NTexCopRetired]

.... So why hasn't the original gone up again to possibly get upheld by a Hillary court? ....

Because, in the eyes of the SCOTUS, the second GFSZA remedied the defect of the first one: it included the magic words (or jurisdictional element) "interstate commerce." Presto! Constitutional!

It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone.

This jurisdictional element was challenged up to the Ninth Circuit, which ruled it was sufficient to make the GFSZA constitutional. The current GFSZA has been challenged up to the Circuit Court level several times, but never held to be unconstitutional. The only time a conviction under it is overturned (that I know of) is when the government failed to prove someone knew he was in a school zone, or the person had a state carry license or permit.

Has the SCOTUS denied certiorari on this being appealed from the 9th Circuit that upheld it? Or was the 9th circuit challenge an actual conviction being upheld, and what were the circumstances of the conviction? Was the defendant also in violation of state law? 5th circuit ruled on applicability of an Alabama permit to a violation of the law in Alabama, but did not go to the question of interstate commerce because the defendant had an Alabama permit.

This case was brought against San Diego County Sheriff for denying a permit. There is no criminal conviction involved as far as I know. The original three judge panel ruled that a good reason did not have to be shown in order to receive a permit and ruled for the plaintiff. The Sheriff decided not to appeal but I believe the city appealed to the entire court. The Court took up the case En Banc and decided to rule on the original case and not just on the decision of the three judge panel. The solicitor for the state made the statement to the court that he believed the 2nd Amendment was not restricted to a persons home but did not guarantee the right to conceal carry. The Court knocked down any relevance to open carry then said there is no right to conceal carry. It appears they are saying you have the right to carry a weapon outside your home, you just don't have the right to carry it concealed or in the open without a permit and you can be required to have just cause for a permit to be issued. I may have missed something. I apologize. I am not a lawyer.

[The Annoyed Man]

I was a funeral for an extended family member on Wednesday, and my son's brother in law - a currently serving LEO - and I were talking about potential loss of the 2nd Amendment. He said that, on the day he gets orders to stack up outside someone's home to confiscate their guns is the day he realizes that he no longer has an interest in law enforcement and retires. He would refuse to carry out such orders. That's the problem (and the blessing) - a problem for the statists, and a blessing for freedom loving americans. SOMEbody is going to have to stack up outside a home, kick the door down, and storm the place, NOBODY wants to be the first in the stack, and almost nobody wants to even be last in the stack. In the end, the fascists have to get somebody to do their dirty work for them......and most of the people who are trained and equipped for that kind of thing are not so inclined.

[John Galt]

I'm going to second Charles here, for whatever weight my voice adds to the comment...

Vote for Trump. Deal with it.

If you abstain, if you vote third party, then that is a vote for Hillary.

[ELB]

.... So why hasn't the original gone up again to possibly get upheld by a Hillary court? ....

Because, in the eyes of the SCOTUS, the second GFSZA remedied the defect of the first one: it included the magic words (or jurisdictional element) "interstate commerce." Presto! Constitutional!

It shall be unlawful for any individual knowingly to possess a firearm that has moved in or that otherwise affects interstate or foreign commerce at a place that the individual knows, or has reasonable cause to believe, is a school zone.

This jurisdictional element was challenged up to the Ninth Circuit, which ruled it was sufficient to make the GFSZA constitutional. The current GFSZA has been challenged up to the Circuit Court level several times, but never held to be unconstitutional. The only time a conviction under it is overturned (that I know of) is when the government failed to prove someone knew he was in a school zone, or the person had a state carry license or permit.

Has the SCOTUS denied certiorari on this being appealed from the 9th Circuit that upheld it? Or was the 9th circuit challenge an actual conviction being upheld, and what were the circumstances of the conviction? Was the defendant also in violation of state law? 5th circuit ruled on applicability of an Alabama permit to a violation of the law in Alabama, but did not go to the question of interstate commerce because the defendant had an Alabama permit.

I assume we are talking the GFSZA, which is sorta off the main thread here, but: US v Niko Delano Dorsey in 9th. I don't know of any appeal to SCOTUS (be careful, there is a more famous Dorsey case that went to SCOTUS, but different guy). Dorsey was initially arrested for some local issues, trespassing at a school and reckless driving, don't know if those were prosecuted at local level. When he was arrested he was also found to have drugs and a gun in the car, while it was on school property, which was prosecuted at federal level (every case I have read involving GFSZA, the defendant was picked up for something else first). Dorsey's appeal challenged both the legitimacy of the search that found the drugs and gun, and the constitutionality of the GFSZA, lost on both.

In the Alabama case, I assume you are referring to Tait? IIRC he did not raise constitutionality as an issue, so it was not addressed. In his case, I believe he was initially arrested, or at least detained, because of some possible local law violation, but at federal level he was charged with felon-in-possession and gun in a GFSZ. However he won in Federal district Court because all his rights were restored after he served time for a felony conviction in another state, and he had an Alabama carry license. The Feds appealed that to the Circuit level but they agreed with the trial court.

[locke_n_load]

I was a funeral for an extended family member on Wednesday, and my son's brother in law - a currently serving LEO - and I were talking about potential loss of the 2nd Amendment. He said that, on the day he gets orders to stack up outside someone's home to confiscate their guns is the day he realizes that he no longer has an interest in law enforcement and retires. He would refuse to carry out such orders. That's the problem (and the blessing) - a problem for the statists, and a blessing for freedom loving americans. SOMEbody is going to have to stack up outside a home, kick the door down, and storm the place, NOBODY wants to be the first in the stack, and almost nobody wants to even be last in the stack. In the end, the fascists have to get somebody to do their dirty work for them......and most of the people who are trained and equipped for that kind of thing are not so inclined.

Or they just make certain firearms/features illegal, they don't go door to door, but you fear becoming a felon for the gun(s) you own so you never take it out shooting again. Or you do go shooting with it and an overzealous cop at the range takes you to jail. No one really has to go door to door.

[atx2a]

If you'll excuse me, I'm headed to the gun shop. Every ridiculous infringement like this equals a new gun purchase for me. In the budget or not.

[rotor]

Maybe I don't understand something. This is California law that was just upheld. We have screwy things in Texas law too. I understand the need to keep Clinton out of office. California legislature voted this in. California population voted their legislators in. They need to live with it.

[The Annoyed Man]

Maybe I don't understand something. This is California law that was just upheld. We have screwy things in Texas law too. I understand the need to keep Clinton out of office. California legislature voted this in. California population voted their legislators in. They need to live with it.

Yes, it is California, but the issue for us is what happens if Clinton gets elected president and packs the SCOTUS with her anti-gun judicial picks.

I have an opinion in the matter (I can't stand her any more than anybody else on this forum, and I am as worried as anyone else about what she might do to the court), but it won't be the popular one, so I'll just keep it to myself.

[TexasJohnBoy]

The more I think about this the more confused I get.

Wouldn't the 'keep' portion of the statement refer to keeping them in your home, while the 'bear' portion refer to bearing the arm, i.e. carrying it?

I'm not a lawyer and no scholar and I understand that. It worries me that these judges have a failure to grasp the English language and sentence structure.

*steps off soapbox for the next person in line*