TexasCHLforum.com

Charles L. Cotton wrote:

HGWC wrote:

Charles L. Cotton wrote: That's your standard, not something based upon any U.S. Supreme Court case to date. The dicta in Heller certainly makes it likely that licensing will be constitutional. Even the holding in Heller said that Mr. Heller wins if he is not prohibited from exercising his Second Amendment rights; i.e. he's not a felon, etc. So there is absolutely no reason to expect the Supreme Court to accept your argument that people should be able to talk into DPS HQ, pay $5 and leave with a license in a few minutes.

Just as you've said, there's no reason to believe that the totality of onerous requirements in Texas for CHL will survive.

I didn't say that; don't misquote me.

Just as you said above that the SC may not accept my simple licensing case, for the same lack of a ruling and precedence on scrutiny, there's no reason to believe they'll accept licensing with onerous requirements.

Show me that in the Rules DPS has promulgated.

ie the delays. I'm not sure what you mean by promulgated rules. There's no doubt the actual policy of substantial delays is in effect.

Show us the evidence that it is the DPS policy that they are allowed to "indefinitely delay" an application, or that they can "deny applications for unspecified reasons." You can't do it, so you change your argument.

They're using 411.177b3 to justify the indefinite delay. They're sending letters with lame excuses minus the statute's requirement that they estimate the delay. That is a statement of DPS policy, and if you call them they'll relate that policy directly to 411.177b3. I have personally heard that explanation from them. You can look to 411.177c for the implicit denial. If they fail to act in time for any unspecified reason, it's an implicit denial. Charles, people are posting on your forum about delays frequently over 100 days, and one gentleman well over 200 days. I have a letter in my hand that says my application "will be delayed for an unknown period of time." Deny it all you want. That's an indefinite delay, and they are justifying that delay based upon the vague and conflicting wording of 411.176 and 411.177. Regardless of the wording, the policy is in effect, and it cannot be denied. An indefinite delay and implicit denial for unspecified reasons of a fundamental right cannot be constitutional.

[quoteAlso, can you give us any examples of the DPS denying a CHL application for any reason other than not meeting the statutorily established eligibility criteria?[/quote]
Ok, 411.177c says failure to issue, beyond 30 days when they are required to, constitutes a denial. Now shall we go and find the member of your forum that had to wait 275 days if I recall, and ask him what reason they gave him? What reasoning under the law allowed the DPS to delay for that long? I think they gave him the license in the end so I'm pretty sure not meeting the eligibility criteria wasn't the reason.

I don't like the delays and candidly I'm more than a little upset at DPS antics this legislative session. But overstating the problem and making unfounded constitutional arguments does not help fix the problem.

It's not just a matter of not liking the delays. It's unconstitutional. Let me ask you this. When does a delay constitute a denial of constitutional rights?

HGWC wrote:

But you still haven't answered one of my early questions: Are you, "willing to bet my house" volunteering to step up and be the test case that you say we need?

Is that what it takes? In that I already have a CHL, and my wife is unwilling to go through even the hassle for filing for one, yes, literally betting my house isn't likely. I really would like to understand how individuals in other states have been able to afford all sorts of legal action on individual constitutional rights. If I could afford it, I would definitely be glad to lead the way. On the other hand, I'm looking to offer financial support, and it's disappointing that I can't offer that in support of challenges to the laws that directly affect me in my state.

In other words, all show and no go.

bdickens wrote: In other words, all show and no go.

I really didn't intend to imply I'm seriously prepared to put my house and family on the line over this. Short of the overstated rhetoric, I stand behind what I've said, and I am willing to go. I'm just not able to go it alone.

jimlongley wrote: Because unless SCOTUS overturns prior decisions, which can happen but is vanishingly unlikely, the only way for ANY court to incorporate under the 14th is under the due process provision. Go back and read Nordyke carefully.

I understand that the due process clause for incorporation as compared to privileges and immunities. However, I thought in the end that a ruling for incorporation meant that the full 2nd amendment protection is applied against the states.

Yes, if a court had the option of incorporating "Direct" then we would be able to challenge just about any gun law in any state or municipality, but they really can't, nor can they use "Privileges and Immunities" which leaves only "Due Process" and that leaves gaping holes for CHL laws to walk through.

That is what I don't understand. How does incorporation through due process leave gaping holes? Let's say that the SC rules that the 2nd amendment is incorporated against the states through the due process clause. Perhaps I don't understand what that means. Then, let's say the federal government passes a ban on open carry of handguns along with CHL modeled after the Texas laws. What gaping hole do the Texas laws get to walk through, but not the federal ones? It seems you're implying that I have a different and more limited right to keep and bear arms under the fourteenth amendment due process clause than I do under the 2nd, and that doesn't make sense.

HGWC wrote:

jimlongley wrote: Because unless SCOTUS overturns prior decisions, which can happen but is vanishingly unlikely, the only way for ANY court to incorporate under the 14th is under the due process provision. Go back and read Nordyke carefully.

I understand that the due process clause for incorporation as compared to privileges and immunities. However, I thought in the end that a ruling for incorporation meant that the full 2nd amendment protection is applied against the states.

Yes, if a court had the option of incorporating "Direct" then we would be able to challenge just about any gun law in any state or municipality, but they really can't, nor can they use "Privileges and Immunities" which leaves only "Due Process" and that leaves gaping holes for CHL laws to walk through.

That is what I don't understand. How does incorporation through due process leave gaping holes? Let's say that the SC rules that the 2nd amendment is incorporated against the states through the due process clause. Perhaps I don't understand what that means. Then, let's say the federal government passes a ban on open carry of handguns along with CHL modeled after the Texas laws. What gaping hole do the Texas laws get to walk through, but not the federal ones? It seems you're implying that I have a different and more limited right to keep and bear arms under the fourteenth amendment due process clause than I do under the 2nd, and that doesn't make sense.

I'm not implying it, I'm saying it flat out. You have a different and more limited right if incorporation happens under Due Process than if it happens under Direct. What it sas is the right cannot be messed with without Due Process. That's the reason that the Nordyke decision incorporated while saying that the county could outlaw guns, selectively, on county property.

Direct incorporation would say that the 2nd applied directly to all, feds, states, counties, cities, villages, hamlets, whatever.

Priviliges would come pretty close to Direct, as a matter of fact I think it would be virtually the same, maybe Charles could catch us up on that.

Due process says that the right in question can be limited by due process, and legislation is due process.

Yes, the full 2nd then applies to the states, except they are allowed to use Due Process to limit the exercise of those rights, and TX has already exercised Due Process in enacting the CHL laws.

OK, so the 5th joins in a similar decision, as does the 2nd, and a couple of conflicting opinions also exist or are written, and they finally wend their way up to SCOTUS. BTW, do you recall how long it took Heller to become Heller and make it to SCOTUS?

Then SCOTUS holds that the 2nd is indeed incorporated, but only through Due Process, which prettu much leaves it up to the states to pass whatever legislation they want, as long as it's due process and as long as they don't infringe on the basic part of the right. So IL then must allow law abiding citizens to own guns, as does Chicago and a couple of other cities, but they don't have to let people carry them, that's directly from Heller dicta. And NY follows suit, except they cancel their pistol permit system completely in favor of a TX modeled CHL law. Did you know that in NY, if you hold an unlimited carry permit, you can go into bars, and courts, and other such places? Not after incorporation under Due Process of course, but at least until then.

Then Jim Douglas bows to pressure from the United Way and reluctantly signs Vermont's first gun control legislation in its history. Well, that's just pure fantasy, but it's not like something similar couldn't happen.

The other problem is that having held that the 2nd is incorporated through due process, SCOTUS could also, quite easily, apply due process to the feds too. And that's a gaping hole you could drive a semi through.

There are so many holes a Swiss Cheese would be proud.

And then another couple of years and the next case works its way up through the morass to be granted Certiorari, and maybe ever state HAS to have some sort of CHL law.

What we really and truly need is for Barron, Cruikshank, and Presser to be revisited and at least modified to allow Direct incorporation. What we have right now is one SCOTUS decision that says that the 2nd only applies directly to the Feds, and a circuit decision that incorporates through due process, which may be enough to trigger a revisit, but may not, and if prior history and observation are any kind of indicator the may not is probably closer to reality. SCOTUS really hates to go back and say it was wrong, even if the makeup of the court has changed.

A state with truly draconian laws, both state and local, would be a more likely candidate to cause a revisit, simply due to the weight of the law(s) being challenged, just like prior gun cases that were never granted cert. the lighter the weight of the case, the less likely the court is to hear it, someone from NH is never going to convince the court that their Pistol/Revolver License law is an infringement of their Second Amendment rights, and they will refuse to hear the case.

Morton Grove is a good example of that, with Quilici, it was a complete ban of handguns in that city, and SCOTUS declined to hear it, it was a relatively lightweight case. And interestingly enough, Morton Grove and several other IL cities have rescinded their bans, in the face of lawsuits, since Heller. Due to Heller, their bans were not so lightweight anymore, and they knew it. One case can change so much of the landscape, but it must be the right one.

Yes, we might make more headway for TX, LA, and MI if the 5th decided to incorporate under the 14th Due Process, but they are not going to go against SCOTUS and incorporate direct, and they will read Nordyke and find that P&I doesn't apply either, which I think anyone would want to acknowledge anyway, allowing the court to say that the 2nd grants a right rather than protects one would be a whole 'nother can of worms. But I don't forsee any great changes in TX CHL laws, maybe just open carry with regulation at various levels.

HGWC wrote:

I don't like the delays and candidly I'm more than a little upset at DPS antics this legislative session. But overstating the problem and making unfounded constitutional arguments does not help fix the problem.

It's not just a matter of not liking the delays. It's unconstitutional. Let me ask you this. When does a delay constitute a denial of constitutional rights?

The problem is that DPS is allowed to delay, which makes it constitutional, at least until someone manages to argue that one all the way up, which would probably result in DPS cleaning up their act before it got heard, at least temporarily, and then it would be "All fixed, no harm, no foul, sorry Your Honor, but due to circumstances beyond our control, hurricanes and budget constraints and the like, we did fall behind and might have been in violation of the statute, but it was not willful violation and didn't really cause anyone any harm, etc, etc, etc" in bureaucratese with flowers and candy.

Now, instead, give us a law, from the legislature, that says that DPS will forfeit some of its funding for every day it gets behind on every CHL unless it can show good cause, and that might help. Or maybe the head of DPS could be called up to explain why his salaray shouldn't be reduced, along with the administrators of the CHL division. But I'm a dreamer.

jimlongley wrote: Yes, we might make more headway for TX, LA, and MI if the 5th decided to incorporate under the 14th Due Process, but they are not going to go against SCOTUS and incorporate direct, and they will read Nordyke and find that P&I doesn't apply either, which I think anyone would want to acknowledge anyway, allowing the court to say that the 2nd grants a right rather than protects one would be a whole 'nother can of worms. But I don't forsee any great changes in TX CHL laws, maybe just open carry with regulation at various levels.

Thanks for taking the time to explain. I'm still not sure I understand all of that. Seems to me that it all boils down to what standard is used to determine what limitations are allowable with respect to what, who, how, when and where we have the right to keep and bear arms. That's just about as clear as mud for the federal government as well, so I'm still left not understanding what the difference between our protection offered under the 2nd amendment as compared to the protection from the fourteenth amendment due process clause. I still don't accept that anything short of total prohibition of handguns or more generally keep and bear is all we'll ever be able to get. I'm not saying you're holding that position, but that's pretty close to what the Nordyke case said. Seems to me there's plenty of room under due process to win cases on many aspects of licensing.

jimlongley wrote:

HGWC wrote:When does a delay constitute a denial of constitutional rights?

The problem is that DPS is allowed to delay, which makes it constitutional, at least until someone manages to argue that one all the way up, which would probably result in DPS cleaning up their act before it got heard, at least temporarily, and then it would be "All fixed, no harm, no foul, sorry Your Honor, but due to circumstances beyond our control, hurricanes and budget constraints and the like, we did fall behind and might have been in violation of the statute, but it was not willful violation and didn't really cause anyone any harm, etc, etc, etc" in bureaucratese with flowers and candy.

I don't think you've made your case as to the ultimate success of challenging these laws. You're saying it's a futile effort, and there's just no basis for concluding that. Until there is precedence where similar or more restrictive measures are upheld, I think there is a good case to be made against the constitutionality of many aspects of Texas law. For example on the delay issue. I bet that 180+ days perhaps even 60-90 days isn't going to survive, and that would require at least some aspect of 411.176 and 411.177 to be struck down, not just some more bureaucratic excuses by the DPS.

HGWC wrote:

jimlongley wrote: Yes, we might make more headway for TX, LA, and MI if the 5th decided to incorporate under the 14th Due Process, but they are not going to go against SCOTUS and incorporate direct, and they will read Nordyke and find that P&I doesn't apply either, which I think anyone would want to acknowledge anyway, allowing the court to say that the 2nd grants a right rather than protects one would be a whole 'nother can of worms. But I don't forsee any great changes in TX CHL laws, maybe just open carry with regulation at various levels.

Thanks for taking the time to explain. I'm still not sure I understand all of that. Seems to me that it all boils down to what standard is used to determine what limitations are allowable with respect to what, who, how, when and where we have the right to keep and bear arms. That's just about as clear as mud for the federal government as well, so I'm still left not understanding what the difference between our protection offered under the 2nd amendment as compared to the protection from the fourteenth amendment due process clause. I still don't accept that anything short of total prohibition of handguns or more generally keep and bear is all we'll ever be able to get. I'm not saying you're holding that position, but that's pretty close to what the Nordyke case said. Seems to me there's plenty of room under due process to win cases on many aspects of licensing.

I'm not holding that position, but I am saying it is the more likely outcome. It IS just about as clear as mud, and I would be glad to see direct incorporation, and I don't think it's all we will ever be able to get, but it's a long and convoluted process with twists and pitfalls that we may not anticipate.

HGWC wrote:

jimlongley wrote:

HGWC wrote:When does a delay constitute a denial of constitutional rights?

The problem is that DPS is allowed to delay, which makes it constitutional, at least until someone manages to argue that one all the way up, which would probably result in DPS cleaning up their act before it got heard, at least temporarily, and then it would be "All fixed, no harm, no foul, sorry Your Honor, but due to circumstances beyond our control, hurricanes and budget constraints and the like, we did fall behind and might have been in violation of the statute, but it was not willful violation and didn't really cause anyone any harm, etc, etc, etc" in bureaucratese with flowers and candy.

I don't think you've made your case as to the ultimate success of challenging these laws. You're saying it's a futile effort, and there's just no basis for concluding that. Until there is precedence where similar or more restrictive measures are upheld, I think there is a good case to be made against the constitutionality of many aspects of Texas law. For example on the delay issue. I bet that 180+ days perhaps even 60-90 days isn't going to survive, and that would require at least some aspect of 411.176 and 411.177 to be struck down, not just some more bureaucratic excuses by the DPS.

The problem is that you are mixing your metaphors. Laws can be quite successfully challenged, and there might be a way to challenge the time limit in our CHL law, but what DPS is doing is playing games with "rules" that they are allowed to play with.

Do the math - per 411.176(b) they have 180 days after the department receives the application materials from the applicant, to conduct the record check and investigation. Then the department per 411.177(b) ". . . shall, not later than the 60th day after the date of the receipt by the director's designee of the completed application materials:"

(1) Issue the license:
(2) Notify the applicant . . .
(3) Notify the applicant (that they are unable to make the 60 day limit, and why, and an estimate of the time frame)

ETC. . .

Note that the department and the director's designee are not necessarily the same entity.

If you squint your eyes real tight, you can make out that they could possibly make a case that they have 240 days before you have to be notified that they have a delay.

Of course we know that this is not true, so we are upset about it. Is anybody upset enough to sue? Maybe, but I don't know any of them, and then what are they going to sue over? What material damage has taken place? And if your CHL arrives, which I can almost guarantee it would, before the hearing to determine standing, the judge is going to dismiss because besides having questionable standing in the first place, the putative damage has been rectified.

Will the case make it all the way to SCOTUS, I, personally doubt it, too many stops along the way, not enough (whatever they call the damage) and it's possible that they won't view a delay of issuance as a violation of the 2nd, incorporated or not.

Back when we, in NY State, were gleefully filing our first lawsuit against Judge Clyne in Albany, NY, we were sure we had a sure winner, on several grounds including 2nd. Clyne's response in court was to apologize, he hadn't meant to deny our test case's pistol permit, it was just that licensing officer was a peripheral duty as a judge and he was very busy doing other things, he was sorry and he would take action immediately.

And he did, on just that one application, and he denied it, no reason, which he was not required to provide, just denied.

So we sued him again, with similar results, he apologized, pointed out the time constraints he was under and that he didn't think he needed to have a reason, but since we had provided affidavits concerning our test case's eligibility, he would reconsider.

And he did, on just that one application while all of the others got moved to the bottom of the stack, except for the well connected politically who got acted on immediately, and he denied it again, she hadn't shown adequate need.

And so . . .

We showed need.

Denied, too young.

She was 27.

Denied, young children in the house.

So what???

Denied . . .

And somewhere in there, despite winning over and over and over, we ran out of funds and couldn't afford to sue him anymore, and our case never got out of the county courthouse.

It also brings to mind the time I called DPS legal about "improper" 30.06 signs, and a young lady in their legal department told me that they considered any effort at signage to be a honest effort and they would prosecute even if the sign was a 5x8 card with spelling and grammatical errors, and did I want to be a test case.

Sometimes it's necessary to pick your fights.

It's been an interesting discussion Jim. You've got an interesting point of view, and I see a glimpse of the legal shenanigans you're talking about. Being a legal layman, I admit being naive and perhaps overly optimistic. I still contend though that at some point a 60, 90, 180, 240 day delay with no end in sight and with no justifiable reason for the delay is unconstitutional. I still think you're merely speculating what could happen, and I don't think there is the precedence to draw that conclusion. I'm confident there will be cases challenging licensing laws, and I just don't see the logic in saying that Texas laws aren't worthy for the test.

HGWC wrote:It's been an interesting discussion Jim. You've got an interesting point of view, and I see a glimpse of the legal shenanigans you're talking about. Being a legal layman, I admit being naive and perhaps overly optimistic. I still contend though that at some point a 60, 90, 180, 240 day delay with no end in sight and with no justifiable reason for the delay is unconstitutional. I still think you're merely speculating what could happen, and I don't think there is the precedence to draw that conclusion. I'm confident there will be cases challenging licensing laws, and I just don't see the logic in saying that Texas laws aren't worthy for the test.

Like I said, making the case, and getting it heard, and bearing the expense are the hard parts, and nobody has stepped up to make the challenge yet. If nobody is doing it, while everybody is griping about it, it is by definition not worthy.

I am speculating, but it's speculation based on a lifetime of political involvement and observation of the way bureaucrats skate along the ragged edge of doing what the law says they are supposed to. I dearly hope that I am wrong.