SCOTUS Heller decision
- Thread Starter choprzrul
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CdwJava
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CA law does not restrict you from carrying in the open ... though CA law DOES allow law enforcement to inspect the weapon. And local laws may still prevent open carry.
Heller does not apparently effect any statewide law here, only local gun bans that prevent ownership even on the private property of the gun owner.
- Carl
Yes, but...
Thank you for your reply. I am specifically wondering about those laws that prevent carrying in the open ( fully unconcealed ) with the gun loaded. I am curios where the court will draw the line on "...keep and BEAR arms...". In effect, an unloaded gun is simply a useless hunk of metal; so preventing the loaded gun is in effect preventing the "bear" part of the clause. Since there are no other individual rights that can only be exercised within the confines of one's home, I would think the court would extend this right to the public arena, within what they deem reasonable public space.
I have no law background, so I am asking rather than trying to tell or make a point. Am I off base or is this just a logical progression of this week's decision? Dialog sought.
Thank you for your reply. I am specifically wondering about those laws that prevent carrying in the open ( fully unconcealed ) with the gun loaded. I am curios where the court will draw the line on "...keep and BEAR arms...". In effect, an unloaded gun is simply a useless hunk of metal; so preventing the loaded gun is in effect preventing the "bear" part of the clause. Since there are no other individual rights that can only be exercised within the confines of one's home, I would think the court would extend this right to the public arena, within what they deem reasonable public space.
I have no law background, so I am asking rather than trying to tell or make a point. Am I off base or is this just a logical progression of this week's decision? Dialog sought.
CdwJava
Moderator
It ruled down a ban on ownership within the home of residents of Washington DC, it did not do anything specifically to change anything else.
In CA PC 12031(a) covers this:
The only way Heller would effect this would be if someone is able to bring up a case to either the CA state or federal appellate level and Heller was cited as a reason to toss 12031(a). Don't count on that as that does not appear within the scope of Heller.
Besides, the section does not prevent you from bearing arms, only from bearing loaded arms.
- Carl
In CA PC 12031(a) covers this:
12031. (a) (1) A person is guilty of carrying a loaded firearm when
he or she carries a loaded firearm on his or her person or in a
vehicle while in any public place or on any public street in an
incorporated city or in any public place or on any public street in a
prohibited area of unincorporated territory.
It prevents carrying it loaded - not UN-loaded. It does not prevent your ownership of it in your home or on your property (generally) which seems to be the scope of the Heller decision.he or she carries a loaded firearm on his or her person or in a
vehicle while in any public place or on any public street in an
incorporated city or in any public place or on any public street in a
prohibited area of unincorporated territory.
The only way Heller would effect this would be if someone is able to bring up a case to either the CA state or federal appellate level and Heller was cited as a reason to toss 12031(a). Don't count on that as that does not appear within the scope of Heller.
Besides, the section does not prevent you from bearing arms, only from bearing loaded arms.
- Carl
I do understand the CA code restricting loaded carry. I also understand that the Heller case was specific to possession in the home. The trick here is that the decision spoke beyond just the Heller case and affirmed the 2nd amendment as an individual right. They didn't just say that D.C. was wrong in their ban, SCOTUS affirmed that the 2nd amendment (like the rest of the amendments in the bill of rights) is an individual right; thereby finding the D.C. ban to be unconstitutional. Heller's suit focused on his right to KEEP his firearm. The justices repudiated the claim that disassembly and trigger locks didn't infringe upon this individual right. Indeed, they indicated that firearms in this condition considerably hindered their use. This is where I think that everyone is missing the entire point of this decision. They are trying to assert the case rather than the decision as applying or not applying outside of D.C. My question hinges upon the SCOTUS decision as it applies to an individual's right to BEAR arms. I would argue that the unloaded provision is congruous with mandated disassembly and/or trigger locks as was present in D.C. It renders the firearm completely useless and seriously infringes upon my affirmed individual right to keep and BEAR arms. The SCOTUS would surely reach the same conclusion regarding a bill requiring a trigger lock for open carry. The trigger lock and mandated unloaded condition both have the same effect of rendering the weapon useless for a period of time. We also need to frame the entirety of this discussion upon the premise that the Bill of Rights doesn't give you rights, rather your rights are inherent and ever present and the Bill of Rights is in place to limit government's intrusion upon those rights. Therefore, I contend that my individual right to BEAR arms ( loaded, but yet UNconcealed) is seriously being infringed upon by the very entity that the Bill of Rights was put in place to protect me from. What say you? All other opinions sought and are most welcome.
CdwJava
Moderator
You are certainly free to hold that opinion. However, initial responses from the state's legal eagles seem to indicate that they do not feel the Heller decision will have an effect on any current CA state laws. They DO believe there will be a flurry of challenges to local prohibitions against ownership or possession, and many might be successful (depending on the laws). In fact, the NRA has already filed a number of such challenges.
However, we would be years away from a federal challenge on 12031(a) as it will require someone be charged, and then appealing decisions through the state and federal courts ... not likely to happen any time soon. It's a rare criminal charge, and in 18 years of my career, I have never had cause to use it. So, it may be a long time coming before any challenge is brought. At best, it's a couple of years off and that would be if someone got popped next week and started the court process immediately.
The court also affirmed the right of states to apply reasonable restrictions. And 12031(a) does not prevent you from bearing arms, only from carrying them open and loaded in public. I suspect few CA courts will find that unreasonable. The more likely place for people to be carrying in the open will be in the country - in unincorporated areas - where the section may not apply anyway.
Having been born and bred here, I have never seen anyone packing on the hip, and have never yet heard anyone (outside these forums) express a serious desire to do so.
- Carl
However, we would be years away from a federal challenge on 12031(a) as it will require someone be charged, and then appealing decisions through the state and federal courts ... not likely to happen any time soon. It's a rare criminal charge, and in 18 years of my career, I have never had cause to use it. So, it may be a long time coming before any challenge is brought. At best, it's a couple of years off and that would be if someone got popped next week and started the court process immediately.
The court also affirmed the right of states to apply reasonable restrictions. And 12031(a) does not prevent you from bearing arms, only from carrying them open and loaded in public. I suspect few CA courts will find that unreasonable. The more likely place for people to be carrying in the open will be in the country - in unincorporated areas - where the section may not apply anyway.
Having been born and bred here, I have never seen anyone packing on the hip, and have never yet heard anyone (outside these forums) express a serious desire to do so.
- Carl
Carl,
Great analysis. I really appreciate your point of view and the wealth of experience you bring to the table. May I ask you what happens when I have an unloaded pistol in a holster and step into my vehicle? Is it still considered unloaded and unconcealed? Or, as I suspect is the case, do I have to put it in its case and lock it in the trunk?
Unlike you, I am not a CA native. Believe it or not, I commonly wore a pistol on my hip, loaded, before moving to CA. When the pistol wasn't on my hip, the 92f was in its shoulder rig. I would even wear them into my bank and there was never a problem or anything said. Never had law enforcement cast a sideways glance. I wasn't the only one of course, but it never seemed like a big deal and never once was there wild shooting craziness in the streets or any other old west shootout scenes.
Great analysis. I really appreciate your point of view and the wealth of experience you bring to the table. May I ask you what happens when I have an unloaded pistol in a holster and step into my vehicle? Is it still considered unloaded and unconcealed? Or, as I suspect is the case, do I have to put it in its case and lock it in the trunk?
Unlike you, I am not a CA native. Believe it or not, I commonly wore a pistol on my hip, loaded, before moving to CA. When the pistol wasn't on my hip, the 92f was in its shoulder rig. I would even wear them into my bank and there was never a problem or anything said. Never had law enforcement cast a sideways glance. I wasn't the only one of course, but it never seemed like a big deal and never once was there wild shooting craziness in the streets or any other old west shootout scenes.
CdwJava
Moderator
Out here, you would need a CCW to wear it concealed in a shoulder rig, and would generally have to carry UN-loaded if on your hip.
Try it in most places in CA.
The law is as it is out here. One can argue its merits or deficiencies all day, but it still stands for the time being.
- Carl
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