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hoffmang
03-29-2009, 7:55 PM
As we're into the decision zone for Nordyke, I wanted to attempt to explain how the post three judge panel and en-banc appeals process works. For those of you who want to read up you can read the Circuit Rules (http://www.ca9.uscourts.gov/rules/) and for those of you who catch any errors, please bring them to my attention so I can correct them here.

We will first assume that the panel in Nordyke goes at least 2-1 in our favor.

Alameda will have 14 days to file a "motion for rehearing or rehearing en-banc". It is one motion. Alameda can ask for and I believe almost always can get an extra 7 days.

There are two main claims that are used to justify a rehearing en-banc. The first is that the panel decision conflicts with a prior panel decision in the same circuit. The second criteria is that the decision conflicts with a prior Supreme Court ruling or a decision of a sister Circuit. I expect Alameda to claim all three. They'll claim that a Nordyke decision conflicts with Fresno Rifle and Pistol Club, Inc. v. Van De Kamp (http://www.cs.cmu.edu/afs/cs/usr/wbardwel/public/nfalist/fresno_club_v_vandecamp.txt). They'll also claim that it is in conflict with US v. Cruikshank (http://supreme.justia.com/us/92/542/case.html) and Presser v. Illinois (http://supreme.justia.com/us/116/252/case.html). Finally they'll claim it conflicts with the Second Circuit's decision in Maloney v. Rice (http://homepages.nyu.edu/~jmm257/mvc.html) which did not incorporate. Sadly, Alameda will be correct about Maloney which will add some additional risk that this case will go to the en-banc Ninth Circuit. The only good news there is that also makes it more likely that one of the Incorporation cases will go to SCOTUS. However, Maloney may end up costing all of us in the Ninth Circuit many extra months...

Next, the original panel will consider whether they should reconsider. They usually do not. While that is occurring, all 27 judges in the Ninth Circuit get a copy of the motion for rehearing en banc. If none of them call for vote of the judges, we're done and its up to Alameda to apply for certiorari to the Supreme Court.

If a petition for rehearing en banc has been made, any judge may, within 21 days from receipt of the en banc petition, request the panel to make known its recommendation as to en banc consideration. Upon receipt of the panelís recommendation, any judge has 14 days to call for en banc consideration, whereupon a vote will be taken. If no judge requests or gives notice of an intention to request en banc consideration within 21 days of the receipt of the en banc petition, the panel will enter an order denying rehearing and rejecting the petition for rehearing en banc. If 14 or more vote yes, then an order granting rehearing en-banc will be released and 10 judges will be drawn from a hat to join the Chief Judge (Kozinski - who wrote a very pro Second Amendment dissent in Silveira) on a panel of 11 judges to rehear the case en-banc.

If rehearing en banc is granted the will usually request new briefing and set oral arguments. That process takes about 90 days from filing to oral arguments. Then we go back to a longer post en banc wait for the en banc opinion. Don Kilmer's last en banc had oral arguments the morning Heller was released and the opinion came out 2 weeks ago.

Once things are final in the ninth circuit (either because en banc wasn't granted, or because we're past the en banc process), Alameda has approximately 90 days to file for certiorari with the Supreme Court. However, the Nordyke opinion becomes the law of the Circuit unless and until SCOTUS grants cert.

So, best case to finality is decision day plus about 5 to 8 weeks if en banc isn't granted. If en banc is granted it is decision day plus about 150 days to oral arguments and as much as 9 months after oral argument - aka: decision plus 14 months.

When we get closer to finality in the Ninth Circuit, I'll publish a similar post on the Supreme Court process.

-Gene

CCWFacts
03-29-2009, 8:12 PM
Thanks much for the overview there. But I have a question: why is it that the Heller decision didn't take effect during the SCOTUS appeal, while you're saying that Nordyke would take effect once the 9th is done with it (either there's no en banc, or after the en banc)?

Either way, it sounds pretty good.

hoffmang
03-29-2009, 8:32 PM
After Parker, Parker was only applicable in DC. DC asked for a stay of the decision and that stay was granted. However, Parker was the rule of the Circuit until SCOTUS granted cert.

In Nordyke, we may not get gunshows at the Alameda fairgrounds before we're final in the 9th, but the reasoning stands up and until it either goes en banc or en banc is final.

-Gene

Librarian
03-29-2009, 8:48 PM
Reformatted a bit and added to the "The Future of the Case" block of Nordyke at http://wiki.calgunsfoundation.org/index.php/Nordyke_v._King#The_Future_of_the_Case.

bwiese
03-29-2009, 9:15 PM
In Nordyke, we may not get gunshows at the Alameda fairgrounds before we're final in the 9th, but the reasoning stands up and until it either goes en banc or en banc is final.

That's OK, we can wait - Pierce & Weaver say we can just sell the guns in the parking lot instead ;)

7x57
03-29-2009, 9:18 PM
That's OK, we can wait - Pierce & Weaver say we can just sell the guns in the parking lot instead ;)

One of my regrets is that Don didn't have an opportunity to point out to the panel that opposing counsel was advocating crime.

7x57

hoffmang
03-29-2009, 9:19 PM
One of my regrets is that Don didn't have an opportunity to point out to the panel that opposing counsel was advocating crime.

He actually did point it out in a short supplemental briefing after oral argument.

-Gene

7x57
03-29-2009, 9:25 PM
He actually did point it out in a short supplemental briefing after oral argument.


Ah, I haven't seen that. I thought it was a pretty damning admission, that their argument that gun shows could still happen just about required wholesale lawbreaking to work.

Undoubtedly I'm a terrible predictor of what judges will do, but I have to say I'd be rather irritated with someone who made that kind of argument to me and I just wished their noses would have been thoroughly rubbed in it. I don't know if it would have been effective with the judges, but it would have been rather cathartic for me. :D

7x57

CCWFacts
03-29-2009, 9:32 PM
After Parker, Parker was only applicable in DC. DC asked for a stay of the decision and that stay was granted. However, Parker was the rule of the Circuit until SCOTUS granted cert.

In Nordyke, we may not get gunshows at the Alameda fairgrounds before we're final in the 9th, but the reasoning stands up and until it either goes en banc or en banc is final

Ok, thanks for explaining that.

Cool!

ke6guj
03-29-2009, 9:34 PM
He actually did point it out in a short supplemental briefing after oral argument.

-Genedid a copy of that ever hit the internet?

hoffmang
03-29-2009, 10:22 PM
did a copy of that ever hit the internet?

No but it's on PACER. I have a copy somewhere and I'll try to post it when I have a moment.

-Gene

yellowfin
03-29-2009, 10:41 PM
Has Maloney appealed? What are the odds it could (catastrophically!) be granted cert? With the justices supposedly on our side as per their recommendation in favor of incorporation in the Heller text, do you think they'll do a favorable selection of case, 9th or 7th court, instead of the one we know to be bad? Clearly they see it as being the worst of the three, right?

Also a somewhat related side note, who the heck has been backing the Maloney case? I gathered it was largely pro se and the guy is as egotistical as foolish, but does he have all the spare time and money in the world or who is footing the bill and writing the briefs for his side? (Mad magazine?)

press1280
03-30-2009, 2:34 AM
http://homepages.nyu.edu/~jmm257/mvc.html

Yep, they are appealing to SCOTUS. I think this legal group is Ken Starr's if I'm not mistaken.

tiki
03-30-2009, 5:54 AM
If Maloney does go to SCOTUS, I think the court should look at Miller and rule, again, that the Second Amendment applies to military and militia firearms and that the weapon listed in Maloney isn't protected.

CCWFacts
03-30-2009, 6:02 AM
If Maloney does go to SCOTUS, I think the court should look at Miller and rule, again, that the Second Amendment applies to military and militia firearms and that the weapon listed in Maloney isn't protected.

I wonder why a lower court didn't already do that.

tiki
03-30-2009, 6:12 AM
I wonder why a lower court didn't already do that.

My friend, I wonder a lot about lower courts. :)
Actually, I wonder about SCOTUS as well. It is absolutely beyond me how 4 of the justices could have ruled the way they did in Heller.

cousinkix1953
03-30-2009, 6:13 AM
A similiar lawsuit was filed in Santa Clara county about the same time! A federal judge, James Ware declared that county's anti-gun show ordinance to be unconstitutional. Both San Jose and Pleasanton are under jurisdiction of the 9th circuit. They didn't resolve this inconsistency.

There is no such thing as the "county fairgrounds" either. That property is really owned by CAL-EXPO in Sacramento. They also pay to license the walkie-talkies carried by security guard and other fair staff members according to the FCC's records. One of the Santa Cruz county fair board members died in office a couple of years ago. Their replacement was chosen by the Governator instead of the board of supervisors.

The idea that city or county government can ban activities on state owned lands is crazy. That's why both the UC and CSU regents usually ignore city hall's demands. It might be a different story if the legislature banned gun shows at the fairgrounds on a state-wide basis...

Aegis
03-30-2009, 7:50 AM
It appears this process will take years. :(

It is a guarantee that the opposition in Nordyke or an anti-2A judge on the 9th circuit will do everything possible to slow this up.

Maybe the best hope for CCW in California is AB357.

yellowfin
03-30-2009, 8:24 AM
If Maloney does go to SCOTUS, I think the court should look at Miller and rule, again, that the Second Amendment applies to military and militia firearms and that the weapon listed in Maloney isn't protected.

I disagree. Even though perhaps his case is weak and bears risk of hurting us, he is right in that the law he is challenging is wrong. I don't think non military weapons deserve any less protection, for instance pepper spray or tasers, than firearms. You could possibly argue that they're a different class and the right should be protected by a different line of reasoning, but simple difference in choice shouldn't be excluded simply because of peculiarity. To too many people our choice is unusual or peculiar, yet we claim the ability to do as we do despite their disagreement. Why treat Maloney differently? We're supposed to be against hypocrisy, remember?

His case is strategically unbeneficial for all of us, but it appears he's not a team player, probably because he's not aware there is a team effort in the first place. Martial arts crowds can at times be even antagonistic to gun rights; I've heard of many cases of them whoring themselves out to the anti CCW crowd. (Particularly fortifying the female anti gun contingent, a rather disturbing problem.)

GuyW
03-30-2009, 9:37 AM
If Maloney does go to SCOTUS, I think the court should look at Miller and rule, again, that the Second Amendment applies to military and militia firearms and that the weapon listed in Maloney isn't protected.

I don't remember the weapon in this case, but every weapon from a club up to a firearm is covered by the 2nd Amendment, not just military firearms. It has never been the majority pro-gun stance that only militarily-useful arms are covered by the 2nd.

Otherwise, there's a lot of pocket pistols and snubnose personal defense / CCW guns that aren't covered...
.

yellowfin
03-30-2009, 9:56 AM
Otherwise, there's a lot of pocket pistols and snubnose personal defense / CCW guns that aren't covered...
. Actually those have military use as well, as sidearms for aircraft pilots. LOTS of them have snubs or pocket pistols in case they have to eject over hostile territory.

tiki
03-30-2009, 10:00 AM
I disagree. Even though perhaps his case is weak and bears risk of hurting us, he is right in that the law he is challenging is wrong. I don't think non military weapons deserve any less protection, for instance pepper spray or tasers, than firearms. You could possibly argue that they're a different class and the right should be protected by a different line of reasoning, but simple difference in choice shouldn't be excluded simply because of peculiarity. To too many people our choice is unusual or peculiar, yet we claim the ability to do as we do despite their disagreement. Why treat Maloney differently? We're supposed to be against hypocrisy, remember?

His case is strategically unbeneficial for all of us, but it appears he's not a team player, probably because he's not aware there is a team effort in the first place. Martial arts crowds can at times be even antagonistic to gun rights; I've heard of many cases of them whoring themselves out to the anti CCW crowd. (Particularly fortifying the female anti gun contingent, a rather disturbing problem.)

Ok, I agree.

hoffmang
03-30-2009, 10:47 AM
A similiar lawsuit was filed in Santa Clara county about the same time! A federal judge, James Ware declared that county's anti-gun show ordinance to be unconstitutional. Both San Jose and Pleasanton are under jurisdiction of the 9th circuit. They didn't resolve this inconsistency.

That case was about commercial speech and its essential holding was that you couldn't ban the sale of guns at gunshows. That's why Alameda bans only the possession, not sales, of guns at gunshows.


There is no such thing as the "county fairgrounds" either. That property is really owned by CAL-EXPO in Sacramento.
Not correct. The land that the Alameda Fiar Grounds is on was deeded to the County from a farmer. It is not owned by the State or CAL-EXPO.

-Gene

E Pluribus Unum
03-30-2009, 11:23 AM
Not correct. The land that the Alameda Fiar Grounds is on was deeded to the County from a farmer. It is not owned by the State or CAL-EXPO.

I have $100 to bet the man that deeded the land to the county was Pro-Gun!

N6ATF
03-30-2009, 11:28 AM
Then he probably wishes he deeded it to the NRA instead!

GuyW
03-30-2009, 11:39 AM
I have $100 to bet the man that deeded the land to the county was Pro-Gun!

...wonder if there were any strings attached to the gift? Its not unusual for that to be the case. Exhibit 1 - the Children's Pool Park in La Jolla...
.

7x57
03-30-2009, 12:07 PM
If Maloney does go to SCOTUS, I think the court should look at Miller and rule, again, that the Second Amendment applies to military and militia firearms and that the weapon listed in Maloney isn't protected.

So we should argue for breaking the Constitution our way instead of theirs? That way lies the end of the Bill of Rights as supreme law. It also accepts a key anti-gun argument that we must reject as foreign to the Constitution--that the prefatory clause modifies the operative clause. What part of "Shall Not Be Infringed" don't you understand?



Nothing in the structure of the Second Amendment--a purpose clause followed by a substantive right--suggests that the former limits or may extinguish the latter. The declared "right of the people" is open-ended and would include all legitimate purposes, from defense of life to lawful hunting....to the Founders, all lawful activities involving the keeping and bearing of arms--from hunting to militia muster--promoted a well regulated militia. Target shooting for sport made one better able to defend a free state. The militiamen of Lexington and Concord had turned their goose guns on the Redcoats.



Second, where precisely does the term "firearm" appear in the Second Amendment. Do you believe that anyone in the late eighteenth century thought that it permitted the government to forbid swords and knives (both viable self-defense weapons then and even today)? In reality, the Second Amendment was not intended to permit the government to have opinions about the suitability of the arms a citizen chooses to keep and bear. If Maloney wants to keep and bear nunchaku for self-defense or just cuz they make him feel like a ninja (I am quite aware that they're not ninja weapons), the government--whether it be executive, legislative, or judicial branch--is not permitted opinions.

Maloney's folly is not that he was wrong--it is that he would accept the idea that now is the wrong time and that he could not win. He should be pilloried not for failing to understand the 2A, but rather for failing to understand our situation and to take good advice. "In many counselllors there is wisdom." For some, this is a *serious* matter, since quite a few people carry a knife for self-defense. They have the right to bear those arms. It is a historical accident that we always talk as though the 2A is about guns, and also it is the most important class of protected weapons because they are inarguably the most effective. But the 2A itself makes no distinctions of kind. The one they may have insisted on is something like "dangerous and unusual"; but surely nunchaku are neither (except maybe to the unskilled wielder :-) by their rules. They are also unbelievably simple, and it's never a good idea to permit the government to make a crime of something that any child can do whenever we can avoid it. That way lies prosecution for an unregistered NFA weapon for everyone who has a pair of slamfires in an autoloader.

But if we believe the Constitution has an enduring, objective meaning that no one can take away, there will come a time when we have an ethical obligation to demand the right to carry "arms," not just "firearms." They knew how to say "firearm" when they meant that, and they didn't. It will also protect the right of the citizen and continue to deny the government a monopoly on effective force into the future when firearms are no longer the standard state-of-the-art weapon. Some gun banners have insisted that the 2A only protects muzzleloaders. If that's a lie, then it must be a lie that it would only protect propellant-based weapons if the day ever comes when hand-held lasers or whatever are a more practical choice.

7x57

bulgron
03-30-2009, 12:26 PM
In reality, the Second Amendment was not intended to permit the government to have opinions about the suitability of the arms a citizen chooses to keep and bear. If Maloney wants to keep and bear nunchaku for self-defense or just cuz they make him feel like a ninja (I am quite aware that they're not ninja weapons), the government--whether it be executive, legislative, or judicial branch--is not permitted opinions.

The deeply ironic thing about this conversation is that most theories of the development of the nunchaku as a weapon involve trying to work around anti-weapons laws enforced by oppressive governments. Sadly, it can't be proven because the history of the nunchaku is shrouded in time. Still, the nunchaku appears to me to be an excellent example of what people will do for weapons when their own governments don't allow them weapons. And now our own oppressive government has labeled even this "alternative" weapon illegal.

There's no tactical advantage (legally speaking) to this case, but there certainly is some real irony.

gunsmith
03-30-2009, 12:59 PM
wait a second!! maloney is going to SCOTUS?
or are they just appealing and not granted cert? (at least not yet) yikes! I can see the anti's championing this case because they know it will hurt our side.

DDT
03-30-2009, 1:27 PM
The deeply ironic thing about this conversation is that most theories of the development of the nunchaku as a weapon involve trying to work around anti-weapons laws enforced by oppressive governments.

This is what I have heard too. In fact most of the martial arts weapons were developed from improvised weapons based on household tools to divert oppressive governments.

Librarian
03-30-2009, 1:39 PM
...wonder if there were any strings attached to the gift? Its not unusual for that to be the case. Exhibit 1 - the Children's Pool Park in La Jolla...
.
Hard to tell. A Canadian horse-racing guy may not have cared much.

A cached version (http://209.85.173.132/search?q=cache:rX-1hBKQGnsJ:www.alamedacountyfair.com/Press/pdf/2008_History_of_Racing_pr.pdf+Alameda+County+Fair+ association+history+of+the+property&cd=2&hl=en&ct=clnk&gl=us) of a press release says History of the Fair and Horse Racing:

In 1859, Don Refugio Bernal built a one-mile racetrack on his 52,000-acres of land, known as Rancho del Valle de San Jose. A few years later, his sons Augustin and Antonio Bernal became
owners of the racetrack in Alisal, which is now known as Pleasanton (same location as today).

In 1872, Augustin Bernal died. The Alisal property was left to his son Frederick. Two years later (1874) Bernal opened his one-mile racetrack. In 1876 or 1877, the track was sold to Joseph F. Nevis who had married Augustin Bernal’s widow.

Nevis improved the track to regulation specifications and operated it as a business venture. During the years the property was enhanced by adding barns and stables, planting orchards, and building a caretaker’s house which stands today on the modern fairgrounds as the Heritage House. Currently, the Heritage House is Alameda County 1st District Supervisor Scott Haggerty’s Office.

In 1911, the track was sold to one Rodney G. Mackenzie. He spent nearly a quarter of a million dollars to build a grandstand and stables for 300 horses. The grandstand had lavish living quarters for guests. He also improved the track and constructed a smaller one for trotting races in the interior.

In 1912, the first Fair was held at the racetrack in Pleasanton, and by 1941 the Fair Association had purchased the first 100 acres of what is now the 268-acre Fairgrounds

A bit more on the race track (http://www.pleasantonweekly.com/story.php?story_id=4148) says Multi-millionaire Australian horse breeder Monroe Salisbury purchased the track in 1882 for $25,000, operating it as the Pleasanton Stock Farm. Horses during this time were being shipped from the East Coast for early spring training here.

Over the years, barns, stables, orchards and a caretaker house became additions to the property. Currently, the caretaker house, called the Heritage House, is the office of Alameda County Supervisor Scott Haggerty.

A grandstand, complete with lavish quarters for guests, was completed in 1911 by incoming owner and son of a Canadian railroad tycoon Rodney G. MacKenzie. Part of the nearly quarter-million dollars he spent included stables to house 300 horses. Today, an average of 500 horses are stabled here. MacKenzie also made improvements to the race track, constructing a smaller track for trotting races in the interior.

One year later, the first fair was held in Pleasanton. The Alameda County Fair Association was formed June 29, 1912. A sale of stock at $100 per share was used to finance the first fair and donations were solicited to help finance buildings and the main entrance. Trotting races at this time had $500 purses. By 1941, the Alameda County Fair Association purchased its first 100 acres of what now comprises the 268-acre fairgrounds. A new 5,000-seat grandstand was completed and so were several horse barns.
One could probably see the deed (or a copy of it) at the AC Clerk-Recorder's Office (http://www.acgov.org/auditor/clerk/) Grantor: Rodney G. MacKenzie, Grantee: Alameda County Fair Association
Records prior to 1969 are on microfilm and must be searched by hand at the Alameda County Clerk-Recorder's Office.

I'd guess the chain of title goes
Spanish/Mexican Government
Grant (http://content.cdlib.org/ark:/13030/hb9s20090v/) to Bernal family (Agustin and Juan seem to have had it about 1830, confirmed to them in 1862, along with Antonio Sunol)
Nevis
Salisbury
Mackenzie
Alameda County Fair Association
Alameda County

7x57
03-30-2009, 2:07 PM
The deeply ironic thing about this conversation is that most theories of the development of the nunchaku as a weapon involve trying to work around anti-weapons laws enforced by oppressive governments. Sadly, it can't be proven because the history of the nunchaku is shrouded in time.

Indeed, and also because unfortunately there is more fantasy and made-up history in the martial arts than in the Lord of the Rings. :rolleyes:

Yes, the precise story I know is that most of the Okinawan weapons were simply agricultural implements with a formalized fighting discipline, because it's impossible for the overlords to take away the implements the peasants need in order to keep their estates running. I don't recall at the moment if the Okinawan staff was a lever or handle for something, but staves are essentially impossible to ban because every decent-sized sapling is potentially a staff.

It does remind me of the sad fact that in New York City right now people are keeping cap & ball revolvers for home defense because they're not covered by the bans (though that may change now that the practice is finally general knowledge), and the fact that in Britain they've resorted to stealing old men's walking sticks under color of authority.

7x57

CCWFacts
03-30-2009, 2:26 PM
It does remind me of the sad fact that in New York City right now people are keeping cap & ball revolvers for home defense because they're not covered by the bans (though that may change now that the practice is finally general knowledge),

Yup. Cap & ball revolvers are having a revival in New York (http://www.examiner.com/x-536-Civil-Liberties-Examiner~y2009m1d19-How-New-York-City-gave-new-life-to-old-guns). And the wild guess is there are two million illegal guns in NY (http://www.nydailynews.com/archives/news/1995/06/04/1995-06-04_death_dealers_targeting_city.html). So the toughest gun laws in the country have resulted in people buying cap&ball revolvers plus an enormous flood of illegal guns. Success is just around the corner!

bulgron
03-30-2009, 2:34 PM
Yes, the precise story I know is that most of the Okinawan weapons were simply agricultural implements with a formalized fighting discipline, because it's impossible for the overlords to take away the implements the peasants need in order to keep their estates running. I don't recall at the moment if the Okinawan staff was a lever or handle for something, but staves are essentially impossible to ban because every decent-sized sapling is potentially a staff.

The most common theory for the nunchaku that I've seen is that it is a descendant of a rice thresher. The one that I like the best, though, is that it was designed by someone who wanted a take-down staff that he could easily conceal from the authorities.

Just how long as this fight for the right to carry been going on, anyway?

And who thinks it's ever going to end? :D

yellowfin
03-30-2009, 2:45 PM
It needs to be put to an end as swiftly as possible, because if we don't work towards putting an end to the anti gun folks like they are to us then it's going to be drawn out forever with fewer and fewer on our side to fight until they eventually win. Who wins is who has the most people and will take action to dominate the other--you've seen which way it went for a few decades and the damage they did. They aren't in it to disagree, they're in it to make us disappear.

bulgron
03-30-2009, 3:36 PM
It needs to be put to an end as swiftly as possible, because if we don't work towards putting an end to the anti gun folks like they are to us then it's going to be drawn out forever with fewer and fewer on our side to fight until they eventually win. Who wins is who has the most people and will take action to dominate the other--you've seen which way it went for a few decades and the damage they did. They aren't in it to disagree, they're in it to make us disappear.

Unfortunately the entire gun control debate is just a sideshow in the larger fight over socialism vs. individualism. Socialism is winning world wide. The reason is because people are lazy and so mostly want to be taken care of as much as possible. The argument, "Vote for me because I will give you stuff and so make your life easier" is way more appealing to the great bulk of people than "Vote for me so that you can work really hard and keep what you make."

Mostly, people just want to be warehoused. That is, sit in front of the teevee, watch football/American Idol, drink beer/wine and work as little as possible in life, while getting as much crap as is possible -- especially if someone else is paying.

At the end of the day, it's a problem driven by too many people in a wealthy world. Imaging ways of fixing this takes us to places that most of us don't want to visit, even in our imaginations.

Anyway, it all means that short of a serious societal disorder in which a large die-off occurs, people like you and me are outnumbered and are always going to be outnumbered. We're just going to have to figure out how to deal with it.

hoffmang
03-30-2009, 4:30 PM
wait a second!! maloney is going to SCOTUS?
or are they just appealing and not granted cert? (at least not yet) yikes! I can see the anti's championing this case because they know it will hurt our side.

He is petitioning for cert. Cert has not been granted.

I kind of do not expect them to grant cert mainly because they'd prefer to wait for one of the sexier firearms cases.

-Gene

CCWFacts
03-30-2009, 4:51 PM
I kind of do not expect them to grant cert mainly because they'd prefer to wait for one of the sexier firearms cases.

I guess my fear and loathing of Maloney is because there's an echo of Miller there: A loony criminal defendant with a weapon which, in principle, should be 2A protected, but is not a culturally-acceptable self-defense weapon. That, and his law firm are ultra-liberals who hate guns.

Contrast that with the Heller case: they picked the most normal, sympathy-inspiring people you could find who have very reasonable desires for common culturally-acceptable self-defense weapons.

Maybe the abstract questions are the same but the concrete details do matter.

yellowfin
03-30-2009, 4:59 PM
Unfortunately the entire gun control debate is just a sideshow in the larger fight over socialism vs. individualism. Socialism is winning world wide. The reason is because people are lazy and so mostly want to be taken care of as much as possible. The argument, "Vote for me because I will give you stuff and so make your life easier" is way more appealing to the great bulk of people than "Vote for me so that you can work really hard and keep what you make."

Mostly, people just want to be warehoused. That is, sit in front of the teevee, watch football/American Idol, drink beer/wine and work as little as possible in life, while getting as much crap as is possible -- especially if someone else is paying.

At the end of the day, it's a problem driven by too many people in a wealthy world. Imaging ways of fixing this takes us to places that most of us don't want to visit, even in our imaginations.

Anyway, it all means that short of a serious societal disorder in which a large die-off occurs, people like you and me are outnumbered and are always going to be outnumbered. We're just going to have to figure out how to deal with it. Gun control is one issue where it shows that socialism is wrong and easily disproven. You and I are vastly better and providing our own individual safety than the police and we can readily prove that. Drawing a pistol from a holster you have on you is going to be faster than even speed dialing the police and having them on the phone to tell them what's going on. Have someone stand in front of you with a stopwatch and they can see that readily. Even without that, even the simplest of people can see it to be readily true.

Not so easy with the rest of socialism. BUT if you can prove that the individual is the answer on the self defense issue, you at very least put a crack in the socialist lie that we as individuals can't do as well as someone else can do for us. If that is up to question then so is the rest of the package. Hence why those who are so hell bent on pushing socialism on us want to wipe out the gun culture, particularly CCW, first. Is it any coincidence that's what they did here?

The whole of the US was and hopefully will be the example of why socialism isn't the best way to go, because our nation in total has been the model example of why we do better our way. Individuals here could do better than anywhere in the world. Of course the left doesn't like this--they don't want you or I to be able to do that on our own, they want us to have to go to them to get anything we need. Hence why Barry Sotero and his buddies do what they do, deliberately taking us down so that individual prosperity cannot offer effective competition for what they offer.

With a down investment market and some folks not employed like they should be, yet still with enough people comfortable doing the same old same old, you're right, it's a hard sell to get people to totally reject leftism when it appeals to comfort, convenience, and good feelings. But what we can argue is their ability to choose it. For some reason or another people inherently don't like being told what to do when it coes to their own lives, at least in the USA I know. It might be different here.

I can't quickly argue long run average total cost of goods, inflation versus savings, marginal productivity differences, tax progressivitity versus regressivity, Laffer curves, comparative advantage and opportunity costs and allocation structures with working drones. Nor can I get through a lot of people's head what the Nazis, Bolsheviks, Maoists, and Castro's followers did without sounding the kook alarm or being tossed into the "whatever, won't happen here" bin. What I can pretty clearly get them to see, though, is that there are some things that work better the way you and I see it. I can get the message of self defense across to someone because that's pretty black and white, tangible, and universally relevent. I can get the point across that THIS MEANS YOU AND NOW. The rest of the stuff I can't so easily prove end result--the gun issue we can.

If we can get that across we can get people to call BS on the rest of the sophistry in the socialist package. Our opposition knows this which is why the fight is the fiercest on this issue. This is why I devote so much of my time and thoughts to this one issue. It would be utterly stupid and probably psychologically unhealthy otherwise--to others who don't share our insights into this matter we probably appear out of our minds grinding away at political minutae, laws in a dozen other states, more legal knowledge than almost anyone without a J.D and some that do, hours of news from dozens of sources, conversations with people we rarely if ever see, and legislation that even if passed into law less than 2% of the population will ever know. But this unlike other issues actually has a measurable win and loss and a potential for a successful end...and surely a dismal one if we lose. If it wasn't where the fight for the future of our country is, a lot of us, least to say myself, would have a lot better things to do with our time and mind!

7x57
03-30-2009, 5:20 PM
A loony criminal defendant with a weapon which, in principle, should be 2A protected, but is not a culturally-acceptable self-defense weapon. That, and his law firm are ultra-liberals who hate guns.

Contrast that with the Heller case: they picked the most normal, sympathy-inspiring people you could find who have very reasonable desires for common culturally-acceptable self-defense weapons.

Maybe the abstract questions are the same but the concrete details do matter.

That's a good way to phrase it: we *must*, and I mean do-or-die *must* win the fight purely in terms of culturally reasonable weapons before touching weird stuff, or we won't win anything. We seem to have had substantial success fending off attempts to demonize handguns with the public in the same way as military-appearing carbines. When I was a kid they tried to demonize Glocks, and I think that must have failed when police departments started buying them by the truckload. They've continued trying it with all handguns, but outside of fanatics and politicians it basically hasn't worked and I suspect that has a lot to do with the CCW movement. Handguns have to be culturally acceptable when the culture accepts CCW (probably Open Carry too, but I don't think we have examples of OC acceptance outside of places like Wyoming where it was probably continuously acceptable in an unbroken lineage from the Founder's gun culture).

That may be our only really winning model, which implies we have to make carbines culturally acceptable in order to get precedents protecting them. We seem to be well along on that, given the sales figures for ARs and the like, but I think behind handguns (most particularly because apparently we've convinced the Supreme Court on handguns).

Basically, we've got to go more or less in order of cultural acceptance. Frankly I'd like my right to walk down the street with a sword recognized, not because I have any intention of doing that on a regular basis but rather to ensure that I couldn't be hassled if I started taking swordsmanship classes or something. We've lost most of our cultural understanding of long blades, however, and somehow "hacked to pieces" is even easier to spin than being shot, so that is not likely to be an issue we want to open for a long time. The other thing is that the right isn't really the right unless it covers the most effective standard personal weapons available, so there is no Second Amendment without modern firearms. Everything else has to wait in line.

So many people take martial arts classes in this country that someday I hope we *are* in court establishing the full meaning of the 2A, but the freaky weapons have to wait. It's quite disappointing if we have martial artists undermining our work, but then martial arts was always about someone's rice bowl as much as it was about fighting and defense.

I suppose plain knives will be easier to win than the weird Okinawan stuff, and the Kali guys ought to be happy about that.

7x57

bulgron
03-30-2009, 8:01 PM
I suppose plain knives will be easier to win than the weird Okinawan stuff, and the Kali guys ought to be happy about that.

7x57

Personally, I would like to see blunt weapons made legal in California again. Batons have great utility. But most importantly is the humble hiking staff. It's the only potential weapon that you're guaranteed to have in your hands, always, while on the trail. (And yes, I know, I can legally use a staff as a weapon -- but only so long as I had it for some other reason other than a weapon when my need for it in my own personal self-defense presents itself.)

I actually see nothing weird about staffs or nunchaku or any of the rest of it, unless you think that 'unpopular' == 'weird.'

In any case, unfortunately Heller has language in it about protecting "popular" weapons. Hopefully that will eventually be expanded to "any weapon that the law-abiding resident of this nation thinks is appropriate for his or her own personal use."

artherd
03-30-2009, 11:35 PM
That case was about commercial speech and its essential holding was that you couldn't ban the sale of guns at gunshows. That's why Alameda bans only the possession, not sales, of guns at gunshows.

Had to love the panel's reaction to that "How are you supposed to hold a gun show without any guns?" indicating they held a ban on possession equated to a ban on sales.

cousinkix1953
03-30-2009, 11:55 PM
Had to love the panel's reaction to that "How are you supposed to hold a gun show without any guns?" indicating they held a ban on possession equated to a ban on sales.
Santa Clara country tried to outlaw political organizing too. These fascist liberal Democrats didn't like the idea of the Libertarian party setting up a table at the local gun shows.

They really hated to see the campaign against Proposition 15 operating there in 1982. Am I the only one who call still that idiot, who walked up to a table, pointed at a huge revolver and then asked if it was a Saturday night special? Turned out that it was one of Dirty Harry's .44 magnums...

cousinkix1953
03-31-2009, 12:08 AM
That's a good way to phrase it: we *must*, and I mean do-or-die *must* win the fight purely in terms of culturally reasonable weapons before touching weird stuff, or we won't win anything. We seem to have had substantial success fending off attempts to demonize handguns with the public in the same way as military-appearing carbines. When I was a kid they tried to demonize Glocks, and I think that must have failed when police departments started buying them by the truckload. They've continued trying it with all handguns, but outside of fanatics and politicians it basically hasn't worked and I suspect that has a lot to do with the CCW movement. Handguns have to be culturally acceptable when the culture accepts CCW (probably Open Carry too, but I don't think we have examples of OC acceptance outside of places like Wyoming where it was probably continuously acceptable in an unbroken lineage from the Founder's gun culture).

That may be our only really winning model, which implies we have to make carbines culturally acceptable in order to get precedents protecting them. We seem to be well along on that, given the sales figures for ARs and the like, but I think behind handguns (most particularly because apparently we've convinced the Supreme Court on handguns).
7x57
The GLOCK model 17 hit the gun stores in 1987. It wasn't long before Sarah Brady was freaking out over this ugly black "plastic" pistol. She was on CBS's Shi--y Minutes, claiming that terrorists can smuggle it onto an aircraft. Never mind that the barrel and other critical parts were made of steel. The 9mm ammo still consisted of brass casings and copper jacketed bullets. The alarms went off at the boarding gates.

Meanwhile law enforcement agencies became the biggest customers for HCI's most hated of Saturday night specials . Even many of our anti-gun silly councils and county boards of stupidvisors were buying these so-called junk handguns. The GLOCK story was a big LIE...

7x57
03-31-2009, 12:39 AM
I actually see nothing weird about staffs or nunchaku or any of the rest of it, unless you think that 'unpopular' == 'weird.'

In any case, unfortunately Heller has language in it about protecting "popular" weapons. Hopefully that will eventually be expanded to "any weapon that the law-abiding resident of this nation thinks is appropriate for his or her own personal use."

Weird for this purpose is anything that strikes judges and politicians as weird. My opinion doesn't seem carry much weight with that crowd. My opinion is that weird is not a property of weapons the law should be identifying.

Yes, that language bothers me immensely, because it is circular and contains within it a method to ban protected guns. If you can discourage their use enough to make them unpopular, then they lose their protection. A great example would be SBS's, once the iconic defensive weapon. Sure they're not popular now, because of the NFA tax and so on. But notice how all the defensive shotguns have barrels just at or over the legal length?

It's a flaw in the Heller criterion, and my greatest unhappiness with the decision.

7x57

N6ATF
03-31-2009, 12:42 AM
I was too young to really get propagandized to the undetectable Glock nonsense. But at some point I got the impression that gangsters and badasses were the primary users of Glocks. Then when I seriously started looking around at LEAs to help figure out what gun to buy, I saw a ton had Glock as standard issue. So really it is a least common denominator kind of gun. Pull trigger, go bang (or kaboom sometimes), no controls to worry about fiddling with.

Just because Glocks may be popular on both sides and the middle of the law doesn't mean it's the greatest gun maker in the universe.

Oh, and I don't want my right to carry a katana around infringed either. If it's sheathed, it's not harming anyone.

pullnshoot25
03-31-2009, 1:19 AM
As we're into the decision zone for Nordyke, I wanted to attempt to explain how the post three judge panel and en-banc appeals process works. For those of you who want to read up you can read the Circuit Rules (http://www.ca9.uscourts.gov/rules/) and for those of you who catch any errors, please bring them to my attention so I can correct them here.

We will first assume that the panel in Nordyke goes at least 2-1 in our favor.

Alameda will have 14 days to file a "motion for rehearing or rehearing en-banc". It is one motion. Alameda can ask for and I believe almost always can get an extra 7 days.

There are two main claims that are used to justify a rehearing en-banc. The first is that the panel decision conflicts with a prior panel decision in the same circuit. The second criteria is that the decision conflicts with a prior Supreme Court ruling or a decision of a sister Circuit. I expect Alameda to claim all three. They'll claim that a Nordyke decision conflicts with Fresno Rifle and Pistol Club, Inc. v. Van De Kamp (http://www.cs.cmu.edu/afs/cs/usr/wbardwel/public/nfalist/fresno_club_v_vandecamp.txt). They'll also claim that it is in conflict with US v. Cruikshank (http://supreme.justia.com/us/92/542/case.html) and Presser v. Illinois (http://supreme.justia.com/us/116/252/case.html). Finally they'll claim it conflicts with the Second Circuit's decision in Maloney v. Rice (http://homepages.nyu.edu/~jmm257/mvc.html) which did not incorporate. Sadly, Alameda will be correct about Maloney which will add some additional risk that this case will go to the en-banc Ninth Circuit. The only good news there is that also makes it more likely that one of the Incorporation cases will go to SCOTUS. However, Maloney may end up costing all of us in the Ninth Circuit many extra months...

Next, the original panel will consider whether they should reconsider. They usually do not. While that is occurring, all 27 judges in the Ninth Circuit get a copy of the motion for rehearing en banc. If none of them call for vote of the judges, we're done and its up to Alameda to apply for certiorari to the Supreme Court.

If a petition for rehearing en banc has been made, any judge may, within 21 days from receipt of the en banc petition, request the panel to make known its recommendation as to en banc consideration. Upon receipt of the panelís recommendation, any judge has 14 days to call for en banc consideration, whereupon a vote will be taken. If no judge requests or gives notice of an intention to request en banc consideration within 21 days of the receipt of the en banc petition, the panel will enter an order denying rehearing and rejecting the petition for rehearing en banc. If 14 or more vote yes, then an order granting rehearing en-banc will be released and 10 judges will be drawn from a hat to join the Chief Judge (Kozinski - who wrote a very pro Second Amendment dissent in Silveira) on a panel of 11 judges to rehear the case en-banc.

If rehearing en banc is granted the will usually request new briefing and set oral arguments. That process takes about 90 days from filing to oral arguments. Then we go back to a longer post en banc wait for the en banc opinion. Don Kilmer's last en banc had oral arguments the morning Heller was released and the opinion came out 2 weeks ago.

Once things are final in the ninth circuit (either because en banc wasn't granted, or because we're past the en banc process), Alameda has approximately 90 days to file for certiorari with the Supreme Court. However, the Nordyke opinion becomes the law of the Circuit unless and until SCOTUS grants cert.

So, best case to finality is decision day plus about 5 to 8 weeks if en banc isn't granted. If en banc is granted it is decision day plus about 150 days to oral arguments and as much as 9 months after oral argument - aka: decision plus 14 months.

When we get closer to finality in the Ninth Circuit, I'll publish a similar post on the Supreme Court process.

-Gene

Since we are all about flowcharts here in CGLand, how about a flowchart for this one?

nick
03-31-2009, 1:58 AM
...wonder if there were any strings attached to the gift? Its not unusual for that to be the case. Exhibit 1 - the Children's Pool Park in La Jolla...
.

Exhibit 2 - Griffith Park in L.A., and L.A.'s attempt to charge for parking there.

tiki
03-31-2009, 4:30 AM
So we should argue for breaking the Constitution our way instead of theirs? That way lies the end of the Bill of Rights as supreme law. It also accepts a key anti-gun argument that we must reject as foreign to the Constitution--that the prefatory clause modifies the operative clause. What part of "Shall Not Be Infringed" don't you understand?



Second, where precisely does the term "firearm" appear in the Second Amendment. Do you believe that anyone in the late eighteenth century thought that it permitted the government to forbid swords and knives (both viable self-defense weapons then and even today)? In reality, the Second Amendment was not intended to permit the government to have opinions about the suitability of the arms a citizen chooses to keep and bear. If Maloney wants to keep and bear nunchaku for self-defense or just cuz they make him feel like a ninja (I am quite aware that they're not ninja weapons), the government--whether it be executive, legislative, or judicial branch--is not permitted opinions.

Maloney's folly is not that he was wrong--it is that he would accept the idea that now is the wrong time and that he could not win. He should be pilloried not for failing to understand the 2A, but rather for failing to understand our situation and to take good advice. "In many counselllors there is wisdom." For some, this is a *serious* matter, since quite a few people carry a knife for self-defense. They have the right to bear those arms. It is a historical accident that we always talk as though the 2A is about guns, and also it is the most important class of protected weapons because they are inarguably the most effective. But the 2A itself makes no distinctions of kind. The one they may have insisted on is something like "dangerous and unusual"; but surely nunchaku are neither (except maybe to the unskilled wielder :-) by their rules. They are also unbelievably simple, and it's never a good idea to permit the government to make a crime of something that any child can do whenever we can avoid it. That way lies prosecution for an unregistered NFA weapon for everyone who has a pair of slamfires in an autoloader.

But if we believe the Constitution has an enduring, objective meaning that no one can take away, there will come a time when we have an ethical obligation to demand the right to carry "arms," not just "firearms." They knew how to say "firearm" when they meant that, and they didn't. It will also protect the right of the citizen and continue to deny the government a monopoly on effective force into the future when firearms are no longer the standard state-of-the-art weapon. Some gun banners have insisted that the 2A only protects muzzleloaders. If that's a lie, then it must be a lie that it would only protect propellant-based weapons if the day ever comes when hand-held lasers or whatever are a more practical choice.

7x57

HEY!!!
I said I agree. :-)
My original comment was more about wanting Nordyke to get cert instead of Maloney.

Edit:
I enjoyed reading this thread. I have been travelling so most of my internet access has been through my iPhone. :(
You guys make some very good points in your arguments. I do indeed believe that all arms should be protected, I just don't want to see a case like Maloney's go before SCOTUS. There is a part of me that looks at Maloney's case and wonders if it isn't a setup case. A non firearm case, brought by antis with the intent of screwing things up. I know it is probably a stretch, but who knows.

Librarian
03-31-2009, 8:45 AM
Since we are all about flowcharts here in CGLand, how about a flowchart for this one?
Time A - Decision
- either way, someone files for En Banc 14-21 days after decision
Time B - En Banc requested (Time A + 3 weeks)

IF NO judges request En Banc
-- filer has 90 days to request certiori
-- Time X, Certiorari requested (Time B + ~ 90 days)

IF AT LEAST ONE judge requests En Banc
-- Judges vote
-- IF 14 Judges vote for En BANC
---- new briefs
---- new oral args
---- Time C ( Time B + ~ 90 days)

IF FEWER THAN 14 vote for En Banc, same as NO JUDGES
-- Time D (Time B + ??)
-- Loser files for certiorari
---- Time X (Time D + 90 days)

IF EN BANC
-- Decision
-- Time Y (Time X + 9-? months)

Loser files for Certiorari
-- Time Z (Time Y + 90 days)

IF SCOTUS GRANTS CERT
-- Decision sometime between following October and subsequent June

I think that's pretty close....

Aegis
03-31-2009, 2:51 PM
Is there any reason why the opposition in Nordyke would not request an en-banc hearing if incorporation is granted? Does the loser have to pay attorney's fees?

If there is no penalty for filing, we must consider they will do so. If they are responsible for attorney fees, it may be enough to discourage them to do so in these economic times.

ke6guj
03-31-2009, 3:05 PM
Is there any reason why the opposition in Nordyke would not request an en-banc hearing if incorporation is granted? Does the loser have to pay attorney's fees?

If there is no penalty for filing, we must consider they will do so. If they are responsible for attorney fees, it may be enough to discourage them to do so in these economic times.Reasons could be that they want to limit the damage of an incorporation ruling. If the 9th ruled for incorporation, we'd have incorporation in the 9th, but it doesn't automatically extend incorporation to the other districts.

When DC lost Heller/Parker at the Appeals level, IIRC, there was a lot of armtwisting by the anti-gun forces to try to get them to not appeal to the Supreme Court. They were afraid of a pro-gun SCOTUS ruling and wanted DC to fall on its sword. Same thing could apply with Alameda, if they lost.

wash
03-31-2009, 3:29 PM
Thank god for anti's that will fight all the way to the supreme court!

CCWFacts
03-31-2009, 4:06 PM
Thank god for anti's that will fight all the way to the supreme court!

Certainly we have to thank all the personally-relevant deities we have that DC fought this all the way, when they had infinite opportunities not to. They could have just said, "Mr. Heller, come by on Wednesday at 10am and we'll give you your permit" and that would have been the end of his standing and the lawsuit.

But no - they were willing to go to any length to keep Mr. Heller from being armed, something which is noted by Mr. Gura in his motion to recover legal fees from them.

Ah we are blessed by DC's politicians! But I'm glad not to live there.

N6ATF
03-31-2009, 4:08 PM
Is there any reason why the opposition in Nordyke would not request an en-banc hearing if incorporation is granted? Does the loser have to pay attorney's fees?

If there is no penalty for filing, we must consider they will do so. If they are responsible for attorney fees, it may be enough to discourage them to do so in these economic times.

If economics were the only concern, Alameda would fight it to the death even if they had to pay $900 trillion dollars in attorney's fees. It's NOT THEIR MONEY, it's ours. We're truly being screwed on both sides by these traitors.

hoffmang
03-31-2009, 8:50 PM
There is a real chance that Alameda would not appeal this to SCOTUS.

-Gene

Librarian
03-31-2009, 9:03 PM
There is a real chance that Alameda would not appeal this to SCOTUS.

-Gene
Oh, no, Brer Bear, Pleeeeeease don' throw me in that briar patch.

sierratangofoxtrotunion
03-31-2009, 9:16 PM
But if we believe the Constitution has an enduring, objective meaning that no one can take away, there will come a time when we have an ethical obligation to demand the right to carry "arms," not just "firearms." They knew how to say "firearm" when they meant that, and they didn't. It will also protect the right of the citizen and continue to deny the government a monopoly on effective force into the future when firearms are no longer the standard state-of-the-art weapon. Some gun banners have insisted that the 2A only protects muzzleloaders. If that's a lie, then it must be a lie that it would only protect propellant-based weapons if the day ever comes when hand-held lasers or whatever are a more practical choice.

They can take my rail gun from my cold dead hands.

bulgron
04-01-2009, 6:36 AM
They can take my rail gun from my cold dead hands.

Personally, I'm holding out for a lightsaber. But I'll keep fooling around with my Sig until I can get it. :D

swhatb
04-01-2009, 8:15 AM
bump...

N6ATF
04-01-2009, 9:40 AM
Personally, I'm holding out for a lightsaber.

+1
Except you need the force to help you get it in deflecting positions before the bullets or blaster pulses reach you.

tango-52
04-01-2009, 9:49 AM
+1
Except you need the force to help you get it in deflecting positions before the bullets or blaster pulses reach you.


Hokey religions and ancient weapons are no match for a good blaster at your side, kid. - Han Solo

CSDGuy
04-01-2009, 10:08 AM
Then again, if you're well instructed and are "strong" with the force, you would not necessarily need to use a lightsaber. You could do anything from "persuading" the other guy into not fighting you, to throwing him and his buddies against a convenient wall, to simply anticipating an attack and therefore not be there at the specific moment of the attack (VERY frustrating to attacker as he just can't seem to hit you no matter how hard he tries and gets exhausted...), to flinging other objects (including kitchen sinks) at him at inopportune times for him... and so on! Besides, you could still carry that lightsaber and a good blaster...

hoffmang
04-01-2009, 11:25 AM
:offtopic:

Let's stick to the Yodas in Robes in this thread please.

-Gene

Scarecrow Repair
04-01-2009, 1:24 PM
Some gun banners have insisted that the 2A only protects muzzleloaders.

Easily countered by asking if freedom of the press and of speech only applies to flat bed manually powered printing presses, which is all that was available in 1789. In fact, printing presses of that time were almost unchanged since Guttenberg's original 300 years earlier. Powered rotary presses were invented in the 1830s. Ask those muzzle loading freaks if they think freedom of speech and the press doesn't apply to anything more modern.

yellowfin
04-01-2009, 1:28 PM
:offtopic:

Let's stick to the Yodas in Robes in this thread please.

-Gene Incorporate, or incorporate not. There is no "rational basis."

Aegis
04-01-2009, 2:19 PM
There is a real chance that Alameda would not appeal this to SCOTUS.

-Gene

Maybe that would be a good thing for us in California, since it would give the 9th circuit incorporation while a case from another circuit goes to SCOTUS. Then we can work to get more friendly gun laws here, just like most other states currently have.

bulgron
04-01-2009, 4:09 PM
Maybe that would be a good thing for us in California, since it would give the 9th circuit incorporation while a case from another circuit goes to SCOTUS. Then we can work to get more friendly gun laws here, just like most other states currently have.

My worry is that nothing gets to SCOTUS before the mix of the court changes.

If I was a gun grabber, that would be my strategy.

7x57
04-01-2009, 4:45 PM
Easily countered by asking if freedom of the press and of speech only applies to flat bed manually powered printing presses, which is all that was available in 1789.

While in a better world your argument (the standard rebuttal) would be entirely sufficient, and may even be in ours, those who make it will never see it. They don't see propositions as either right or wrong--they see them as either advancing or impeding social evolution. If the argument helps the anti-gun cause, it is a good argument. If it does not, it is a bad argument. Truth doesn't enter into the calculation, because there isn't any such thing.

However, one nice thing about the standard printing-press argument is that it demonstrates a general rule: that anything that destroys the meaning of the 2A can destroy all the others. This has finally even persuaded a few leftist true-believers; I think Alan Dershowitz is one. They still hate the 2A and think it should be repealed, but they've finally realized that it isn't as scary even to them as losing all meaning for the amendments they like.

Anyway, here is the point. Muzzleloaders and printing presses don't fly because the anti-gunner theory doesn't pass the laugh test. But the problem I pointed out is that because firearms are the current state of the art, then it might (I worry) be possible to get precedents that say it is mainly about them. It might pass the laugh test *today*. Then *tomorrow*, when there is a better personal weapon technology, we'd have precedents on the books that couldn't passed by then (because of the laugh test).

Worst case, though possibly unlikely, is that then the precedent gets applied to some brand-new information technology; unlike personal weapon technology, that *is* advancing at a tremendous rate.

7x57

7x57
04-01-2009, 4:48 PM
My worry is that nothing gets to SCOTUS before the mix of the court changes.

If I was a gun grabber, that would be my strategy.

Are you sure it wouldn't be to get to SCOTUS first with a bad case? <cough> <cough> Maloney <cough>. :eek:

Gene thinks the current court *wants* a good incorporation case, and we're very very likely to get one there soon, and they can calculate as well as we can. They, or even just a few of them, may decide that their odds are better rigging the dice in today's game rather than hoping they can not roll at all until tomorrow's game.

7x57

7x57
04-01-2009, 4:49 PM
:offtopic:


I should be sorry for opening the door for that, but I'm not. :p

7x57

lioneaglegriffin
04-01-2009, 7:56 PM
Then again, if you're well instructed and are "strong" with the force, you would not necessarily need to use a lightsaber. You could do anything from "persuading" the other guy into not fighting you, to throwing him and his buddies against a convenient wall, to simply anticipating an attack and therefore not be there at the specific moment of the attack (VERY frustrating to attacker as he just can't seem to hit you no matter how hard he tries and gets exhausted...), to flinging other objects (including kitchen sinks) at him at inopportune times for him... and so on! Besides, you could still carry that lightsaber and a good blaster...

good example kyle katarn he used his blaster first then his lightsaber (yes im off the reservation on star wars.)

for those not fluent in post episode six star wars universe see:http://en.wikipedia.org/wiki/Kyle_Katarn

(oh sorry gene) on topic though:how long Should people wait to UOC after the appeals process?

hoffmang
04-01-2009, 8:09 PM
(oh sorry gene) on topic though:how long Should people wait to UOC after the appeals process?

En banc finality. If it doesn't go en banc that shouldn't be very far away.

-Gene

MindBuilder
04-04-2009, 2:11 PM
It just occurred to me that if the en-banc panel supports incorporation then the Supreme Court appeal can't be held up too long, because I think the majority of the en-banc panel can probably return its decision whenever it wants. But if the majority of the en-banc panel is against the Second Amendment, then they may be able to hold up the Supreme Court appeal virtually forever by delaying the return of their opinion for as long as they want, or sending it back to the lower court repeatedly for various reasons. Can the parties appeal past the en-banc panel to the Supreme Court if the en-banc panel takes too long?

AngelDecoys
04-04-2009, 2:50 PM
Gene thinks the current court *wants* a good incorporation case, and we're very very likely to get one there soon, and they can calculate as well as we can. - 7x57

Yup, my guess would be that both sides may want an incorporation case primarily to strengthen the "Privileges and Immunities clause." Both have their reasons. The right, to fight land law and government regulation. And the left, to establish rights in social issues such as gay rights, national health care, etc. Very likely the Chicago case would be a better case for that purpose.

Either way, the upside is once the 9th incorporates, we can start speculating on the next challenge. :D

KylaGWolf
04-04-2009, 3:42 PM
BAH PNS do NOT make me play on Word to make a flowchart....although I wonder how well a flow chart for this would look in my job portfolio :devil2:

yellowfin
04-04-2009, 4:33 PM
Given the disasters of the last couple of weeks I really hope they make this a good ruling and hurry up about it so we can use this before we're in too bad of a situation to matter. 6 month chemotherapy isn't too good if you've got a tumor that can kill you in 6 days.

Are they aware of this?

sfpcservice
04-04-2009, 5:28 PM
En banc finality. If it doesn't go en banc that shouldn't be very far away.

-Gene

Gene, just wondering about school zones and UOC after a no en-banc ruling?

hoffmang
04-04-2009, 10:24 PM
Gene, just wondering about school zones and UOC after a no en-banc ruling?

School zones will remain a troublesome issue that everyone needs to watch out for until they are specifically challenged.

The 1000' ring is likely to be defeated (though bans on campus will survive) but that will not be the first or probably even second post incorporation case.

-Gene

sfpcservice
04-05-2009, 8:15 AM
School zones will remain a troublesome issue that everyone needs to watch out for until they are specifically challenged.

The 1000' ring is likely to be defeated (though bans on campus will survive) but that will not be the first or probably even second post incorporation case.

-Gene

I can't wait to see what you guys challenge after incorporation. I'm guessing the paperwork is already drawn up and will take about 10 minutes to submit. :thumbsup:

sfpcservice
04-05-2009, 8:17 AM
PS- The city is threatening to ration water on my Private property Island surrounded by an ocean of School Zone.

sfpcservice
04-27-2009, 2:50 PM
Gene,

Can you give us a rundown on exactly when and how this decision goes into effect with an explanation of the variables involved? I don't think anyone anticipated a "win" for both sides. Mainly curious when exactly this decision becomes law.

hoffmang
04-27-2009, 3:11 PM
The window for an en-banc appeal ends 5/4.

After that it is my understanding the decision is final unless and until Cert would be granted if the Nordykes apply.

-Gene

sfpcservice
04-27-2009, 3:46 PM
The window for an en-banc appeal ends 5/4.

After that it is my understanding the decision is final unless and until Cert would be granted if the Nordykes apply.

-Gene

Thanks Gene! I hope you guys drop something on 5/5!

GunSlinga
04-27-2009, 4:50 PM
Personally, I would like to see blunt weapons made legal in California again. Batons have great utility. But most importantly is the humble hiking staff. It's the only potential weapon that you're guaranteed to have in your hands, always, while on the trail. (And yes, I know, I can legally use a staff as a weapon -- but only so long as I had it for some other reason other than a weapon when my need for it in my own personal self-defense presents itself.)

I actually see nothing weird about staffs or nunchaku or any of the rest of it, unless you think that 'unpopular' == 'weird.'

In any case, unfortunately Heller has language in it about protecting "popular" weapons. Hopefully that will eventually be expanded to "any weapon that the law-abiding resident of this nation thinks is appropriate for his or her own personal use."

Apparently, New York's own Division of Criminal Justice Services complained to the Governor in 1974 that nunchucks ("chuka sticks") were popular then and shouldn't be banned. Go figure . . .

See this pdf memo (http://homepages.nyu.edu/~jmm257/murraymem.pdf) that is accessible from a link at the bottom of the Maloney v. Rice homepage (http://homepages.nyu.edu/~jmm257/mvc.html).

Anyway, maybe they're not as popular now because they have been illegal for 35 years. Relates to the point I've seen others make on this thread: illegality leads to unpopularity or lack of "common use by law-abiding citizens" (Heller test) etc. and therefore allows a sort of "bootstrapping" into no protection for the weapon.

Didn't Halbrook publish a sociology article about Okinawan peasants and their weaponry before he went to law school?

elenius
04-27-2009, 5:13 PM
How long do the Nordykes have to file for cert? I think I remember 90 days.

E Pluribus Unum
04-27-2009, 6:01 PM
How long do the Nordykes have to file for cert? I think I remember 90 days.

Most appeal deadlines are 30 days or less. Some are even 15 days.

GunSlinga
04-27-2009, 6:22 PM
How long do the Nordykes have to file for cert? I think I remember 90 days.

90 days is correct. See Rule 13 of the Rules (http://www.supremecourtus.gov/ctrules/2007rulesofthecourt.pdf).

Also note subparagraph 3: if there is a petition for rehearing the time to petition for cert is extended.