Monday, March 26, 2012

Hit Piece by Chuckles Nichols; Why carry, not OC, was the target

Charles Nichols, who I call "Chuckles" a lot of times, decided to do two different hit pieces on me in the last week:

In other news, the sky is blue, the Brady Campaign are liars, you need a mix of two different chemicals to breathe, and Chuckles apparently committed perjury by lying on a state form submission to the California Secretary of State's Office.

I also did not see Chuckles anywhere in the Byron White US Courthouse's Courtroom III, either.  He may have gotten notations from other reporters.  Of course, he didn't do the right thing like say, waiting for the oral arguments before blasting out to everyone who will listen what his impressions are from third parties before the oral arguments are acquired by him.

"They just concluded a second round of oral arguments before the Court of Appeals. The first time around, one of the three judges pointed out to Peterson's attorney that Colorado is an Open Carry state and that state has recognized prohibitions on concealed carry since the 19th century. His lawyer then reluctantly said that his client would carry in whatever manner the court decides."

What Chuckles the Perjurer leaves out is the Colorado Appellate Court decision in Trinen v. City/County of Denver, which makes it clear that Colorado is NOT an open carry state. In that particular case:

In Robertson, supra, the supreme court did not expressly state whether the right to bear arms is a fundamental right. However, by requiring that restrictions on the right be only reasonable, rather than necessary, the court essentially applied the rational basis test in evaluating the constitutionality of a city ordinance that implicated the right to bear arms. Therefore, we conclude that the court implicitly found that the right to bear arms is not a fundamental right. See People v. Young, supra.
The state cited Trinen as a reason why a person should not OC in Denver, either.  More from the decision:
Trinen also argues that the language in § 38-118(a)(1) requiring a "direct and immediate threat" is too restrictive. We disagree.
When liberally construed, the language "direct and immediate threat" requires some real identifiable and substantial justification for carrying a gun away from one's home. Absent such a qualifier, anyone could carry a gun about Denver and claim that it was for self-protection. Section 38-117 reflects the Denver City Council's determination that such practices endanger public safety and that it is reasonable to allow citizens to exercise their right to bear arms by obtaining a permit. Thus, the constitutional right has not been rendered nugatory. See People v. Blue, supra.
Section 38-117(b) indubitably places restrictions on the constitutional right to bear arms. However, in our view, the ordinance is a reasonable exercise of the police power, and Trinen has not met his burden of establishing beyond a reasonable doubt that the restrictions are so severe as to render the ordinance unconstitutional.

Both our briefs in the district court, as well as the briefings at the court of appeals, points out the standing law of Trinen in the state court system.   Don Kates, along with David Kopel, challenged Denver's "Assault Weapons" Ban.  Here is the result, from Silveira's Second Amendment Suicide:

Nor am I just spinning some theory here. I am talking about the outcome of actual cases. Of course every lawyer with a long career has lost cases. But until I started litigating AW cases I had a virtually unblemished record, including having invalidated the San Francisco handgun ban in 1982. Since the late 1980s I have been involved in litigating AW cases; half a dozen in California and individual cases in Colorado and Connecticut. Every one has been an utter disaster. 
Unlike California, Colorado, Connecticut, Ohio and Oregon used to have right to arms clauses in their state Constitutions. Unlike the phony controversy about the federal Second Amendment, these state right to arms clauses clearly did guarantee an individual right. But in each of those states AW bans were enacted by state or local law and well-meaning lawyers (including me) challenged those AW bans under the clear state constitutional right clauses. Because the clauses were so clear the judges were faced with a clear choice: they could either hold that AWs are constitutionally protected or they could read the right to arms clauses out of the state constitution. And that is what they did.  The people of Colorado, Connecticut, Ohio and Oregon still have their state constitutional right to arms, of course – but only as long as no legislative body seeks to ban and confiscate their guns. If a ban is passed as to any kind of gun in Colorado, Connecticut, Ohio and Oregon the likely result of any constitutional attack on that ban is that it will be upheld on the same false reasoning that was used to uphold the AW bans.
A direct victim of the attack on Denver's Assault Weapons ban was the inability of Mr. Trinen to prove the supposedly clear reading of the Colorado Constitution's Bill of Rights, via the use of the courts of "false reasoning".  You see, because of the Robertson v. City/County of Denver case, Article II Section 13 of the Colorado Constitution is essentially dead letter, and the state judiciary would accept anything a government said in re the state constitution.   State law issues, of course, are a completely different matter.  The recent ruling in the Colorado Supreme Court in re Campus Carry was a pure matter of statutory interpretation of it's preemptive nature of the state's Concealed Carry Act, not a constitutional matter.

The state courts directed me under Trinen to apply for a license to carry as this was, in the state courts words, "... reflects the Denver City Council's determination that such practices endanger public safety and that it is reasonable to allow citizens to exercise their right to bear arms by obtaining a permit."   Denver law, as conceded by the state AG, requires a carry license in order to carry in either manner.  The Denver ordinance requires a state license to carry.  It becomes a matter of nomenclature.

Denver could have chosen to recognize all of state licenses to allow me to open carry, or had a separate licensing scheme for open carry.  They did not.  Instead, they co-opted a state scheme with the Manager of Safety, also the enforcer of the city's criminal law prohibitions for carry without a license.

Of course, Chuckles doesn't understand anything about Colorado legal jurisprudence matters.   You see, Chuckles sees my involvement as a volunteer for civil rights in a manner he doesn't appreciate like a bull seeing a red cape being held by a matador.   He ignores the clear text of Heller in the way which doesn't fit his "concealed can't be the right" narrative:
 Justice GINSBURG wrote that "[s]urely a most familiar meaning is, as the Constitution's Second Amendment . . . indicate[s]: `wear, bear, or carry . . . upon the person or in the clothing or in a pocket, for the purpose . . . of being armed and ready for offensive or defensive action in a case of conflict with another person.'" Id., at 143, 118 S.Ct. 1911 (dissenting opinion) (quoting Black's Law Dictionary 214 (6th ed.1998)). We think that Justice GINSBURG accurately captured the natural meaning of "bear arms."

As for this:

The judges said that Heller only entails a right to keep a firearm in one's home and oh by the way, Peterson never challenged any particular law and makes no mention of Open Carry in his lawsuit.
My counsel did not mention "open carry", he mentioned "carrying a functional handgun for self defense".

8. When he visits Denver, Peterson wishes to exercise his right to keep and bear
arms by carrying a functional handgun for self defense.

11. Denver Ord. § 38-117(b) prohibits the carrying of a firearm outside one’s
dwelling or place of business without a CHL.

12. C.R.S. § 18-12-203(1)(a) prohibits issuing a CHL to a non-resident of
13. C.R.S. § 18-12-203 vests the sheriffs of the several counties with authority to
issue CHLs.
14. As ex officio sheriff of Denver County, Defendant LaCabe is responsible for
receiving and processing applications for CHLs in Denver County.
15. Denver Ord. § 38-117.5 vests Defendant LaCabe or his designee with authority
to issue CHLs.

59. By prohibiting any meaningful opportunity for Plaintiff to bear arms in the
City and County of Denver through a licensing scheme that precludes Plaintiff
from obtaining a necessary license to bear arms, Defendants have violated
Plaintiff’s right to bear arms guaranteed by the Second Amendment to the
Constitution of the United States.

Nomenclature issues, essentially.

More spew from Chuckles.

Unfortunately, thanks to the NRA/SAF/CalGuns it now looks like the 10th Circuit Court of Appeals is going to decide that Heller only entails a right to have a loaded firearm in one's home.
Their Kool-Aid drinking supporters will claim that losing is all part of their "secret plan."

Like nearly all people, I hate losing.   Chuckles, however, has zero understanding of legal history and judicial procedure.   In the federal court system, the "loser" controls the appeal.    When someone files as part of the strategic civil rights litigation (in a similar vein to the religious freedom cases of the Jehovah's Witnesses in the 1940's or the school segregation cases of Charles Hamilton Houston and Thurgood Marshall from 1930 to the 1960's), you have to be willing to appeal a losing ruling upwards, or choose a defendant who will definitely file an appeal upwards if they lose.

The AG's of the anti-gun states, like DC, will not particularly accept the idea of "taking a loss for the team" like the Brady Campaign staffers tried to convince DC to do (Source: Adam Winkler's Gun Fight), but the elected officials of anti-gun jurisdictions do not take being told no by the courts well.  Denver is no different.

Chuckles, of course,  would rather use shortcuts and just plain cheat. From the Silveira posting:

The first victorious case was a vital first step, but had they only brought that case they would still have been subject to endless harassment under laws that differed from the one that first victorious case overthrew.
In sum, it is hopelessly unsophisticated to believe that one Supreme Court victory is going to make gun control go away. What is needed is one really strong first case, followed by another, followed by another, followed by another, followed by another, followed by another, and so on. With the constitutional law thus established we can go on to apply it ever more expansively.
In contrast to the Unsophisticated View, the Wrong View acknowledges that it will take multiple decisions to establish our Second Amendment rights. But its proponents see making an "assault weapon" case like Silveira the first Second Amendment case decided by the Court as a shortcut. They believe (all-too-rightly) that if the Supreme Court will invalidate an AW ban, it will invalidate virtually any other gun control. The problem is that the converse is far more likely: If the Court is given an AW case first, it is very unlikely to decide the case our way and its decision will doom other challenges to other kinds of gun control.

What Chuckles doesn't understand, that much is obvious, is that some things are meant to be decided by the Nine Justices at 1 First Street.  Carry will be one of them.  Whether it be my case, Moore v. MadiganPalmer v. District of Columbia,  Kachalsky v. Cacace or Piszczatoski v. Filko, carry will be decided at 1 First Street.  Chuckles seems to think that a guy who has his own home is a more sympathetic plaintiff for unlicensed no fee carry than a guy on a fixed income who lives in a public housing project, like, for example, Guy Montag Doe?

Chuckles would rather attack volunteers who put their time and treasure into winning, make insinuations about me being "Senior Member" (scary, do I get a cane or a walker, sonny?), being a contributor (I just like having more PM space) and being moderator (this is because of my expertise on a particular subject matter).    He's just pissed off he got banned from several forums for breaking the rules.  He banned me from his Facebook group.  Ho hum.  Whatever shall I do, rather than engage in dialogue with geniuses like this??

Chuckles pretty obviously suffers from Dunning-Kruger Cognitive Bias.  He also reminds me of Wile Coyote from Operation: Rabbit

Genius, indeed.

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