SAF, Calguns amicus in California permit case
Pdf here. It's by Alan Gura. Its main theme is VERY interesting. The central questions are standard of review, or as the brief phrases it, the means-end relationship. But, it suggests, requiring permits to carry should be compared to prior restraint of speech rights. Here, the permit system gives the issuer complete discretion. That should be invalidated, period. Only after a jurisdiction comes up with a permit system that is not arbitrary can or should a court get down to determining the means-end balance between the specific conditions and the problems supposedly addressed.
Wow. Conceivably, this could be a game changer!
Posted by: Jeff at June 5, 2011 03:59 PM
Gura's amicus seems to assume the main issue in question. If the courts recognize that concealed carry is a constitutional right, then prior restraint would be an issue. But the courts haven't yet recognized that concealed carry is a right. Many judges will require considerable persuasion that it's a right before they get to the question of whether prohibiting prior restraint is appropriate.
Posted by: Critic at June 7, 2011 12:58 PM
Since California doesn't allow open carry, the issue isn't concealed carry, but carry in any form, as in keep and bear arms.
Posted by: Ken at June 8, 2011 07:36 AM
Ken's got it.
California law currently allows (but heavily impairs in most urban areas) non-discretionary (for non-prohibited persons) unloaded open carry; but for loaded carry, the only effective form for self-defense, which per Heller is central to the RKBA, it only offers discretionary concealed carry licenses.
If "Bear" has any meaning (which it does, as both Heller and McDonald show regardless of several lower Court's attempts to ignore the totality of the decisions to exclusively and improperly focus on the "particular importance of 'in the home'") then states must allow some form of effective carry as part of the fundamental right.
Requiring unloaded carry, OC or CC, without another option flies in the face of Heller's dismissal of DC's unloaded storage requirement. It was plainly stated in the opinion there is not time to load a gun under stress, and that is within the protection of walls and doors which buy time. It's not like there's more time without such protections. There's another amicus brief on that subject already submitted.
This becomes more acute if CA passes the OC ban, at that point you have only the discretionary concealed carry permitting system and no non-discretionary carry option available at all.
Posted by: Matthew Carberry at June 9, 2011 01:23 PM