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View Full Version : NRA's petition of the 7th's Chicago case vs the 9th taking Nordyke en banc


Paladin
06-04-2009, 12:29 PM
With the NRA petitioning SCOTUS to review the 7th CA's Chicago decision, how will that affect whether the 9th CA chooses to review Nordyke en banc?

A) It will encourage the antis on the 9th to seek en banc so that they can hope to prevail and, voi la, there is no longer a split among circuits and SCOTUS is less likely to grant cert.

B) It will encourage the antis on the 9th to seek en banc so that SCOTUS will wait until the 9th has rendered its en banc opinion before deciding whether to grant cert. This is a stalling action for its own sake, to give the 9th's antis a chance of giving the Heller 4 more ammo to use against the Heller 5, and in the hope that Obama may get 1 or 2 new justices on SCOTUS before incorporation has to be decided.

C) It will encourage the pros on the 9th to seek en banc so that they, regardless of whether they prevail or not, can offer an elaborate opinion directly on point that will give the pros on SCOTUS more ammo to use against the Heller 4.

D) It will encourage the 9th to say, screw it, why mess w/en banc, this is something best resolved by SCOTUS who left incorporation hanging out there to be decided, so regardless of our individual opinions, let's just go w/the Nordyke opinion knowing that the split among circuits will encourage SCOTUS to clean up what it needs to clean up that much faster.

E) No effect.

What say you?

GaryV
06-04-2009, 12:51 PM
With the NRA is petitioning SCOTUS to review the 7th CA's Chicago decision, how will that affect whether the 9th CA chooses to review Nordyke en banc?

A) It will encourage the antis on the 9th to seek en banc so that they can hope to prevail and, voi la, there is no longer a split among circuits and SCOTUS is less likely to grant cert.

B) It will encourage the antis on the 9th to seek en banc so that SCOTUS will wait until the 9th has rendered its en banc opinion before deciding whether to grant cert. This is a stalling action for its own sake, to give the 9th's antis a chance of giving the Heller 4 more ammo to use against the Heller 5, and in the hope that Obama may get 1 or 2 new justices on SCOTUS before incorporation has to be decided.

C) It will encourage the pros on the 9th to seek en banc so that they, regardless of whether they prevail or not, can offer an elaborate opinion directly on point that will give the pros on SCOTUS more ammo to use against the Heller 4.

D) It will encourage the 9th to say, screw it, why mess w/en banc, this is something best resolved by SCOTUS who left incorporation hanging out there to be decided, so regardless of our individual opinions, let's just go w/the Nordyke opinion knowing that the split among circuits will encourage SCOTUS to clean up what it needs to clean up.

What say you?

My view is that D is the only likely possible effect. A, B, and C don't really make sense for two reasons. First, the petition for cert has already been filed in Maloney, so if either antis or pros wanted to get an en banc decision in before cert is granted in an incorporation case, they were already in a race against the New York case. Second, whether the incorporation case ends up being Maloney, NRA, or some other case (or some consolidation of them), an incorporation case before SCOTUS is coming. This is the one and only chance they'll have to make any further statement on the issue, whether they feel a time pressure or not. So if anyone in the 9th who hasn't yet done so wants to get their $0.02 worth in, they will need en banc. That has nothing to do with the Chicago case.

DDT
06-04-2009, 12:53 PM
A) is irrelevant as a split circuit is not a requirement for SCOTUS cert.

B) SCOTUS will not wait on the 9th to grant or refuse cert. (We'll get back to this option though)

C) the panel opinion is excellent and needs no elaboration.

D) This is just the opposite of what I suspect the 9th will do.


Looking back at B I suspect the antis will vote to go en banc on the last possible day. This will pull Nordyke and it will be useless as precedence in other cases. They will then delay the process until after SCOTUS hears NRA.

It is also possible that Nordykes will petition for SCOTUS cert hoping to be combined with NRA to have the Sensitive Areas doctrine re-visited.

tombinghamthegreat
06-04-2009, 1:11 PM
It appears that the supreme court will be involved in this.

hoffmang
06-04-2009, 1:19 PM
If anyone of the 9th Judges wish to opine, a failed vote for en banc is a perfect place for them to write dissents to the denial of en banc. The vote should be complete on July 13. What I'm not sure is if they'll publish the outcome of the vote that day.

-Gene

truthseeker
06-04-2009, 1:49 PM
If anyone of the 9th Judges wish to opine, a failed vote for en banc is a perfect place for them to write dissents to the denial of en banc. The vote should be complete on July 13. What I'm not sure is if they'll publish the outcome of the vote that day.

-Gene

Why wouldnt they? Is it not FOIA material, thus open to public scrutiny?

hoffmang
06-04-2009, 3:02 PM
Why wouldnt they? Is it not FOIA material, thus open to public scrutiny?

The court has taken the position that it is not FOIA-able. No one has yet challenged that determination under the First Amendment yet.

Remember you'd be in front of one of those judges when bringing the case.

-Gene

Theseus
06-04-2009, 6:27 PM
I think they are doing just so that I can't use it. Damn them!

But if I was to rely on a Nordyke 2A incorporated I need to do so BEFORE July 13th. . .

DDT
06-04-2009, 7:33 PM
I think they are doing just so that I can't use it. Damn them!

But if I was to rely on a Nordyke 2A incorporated I need to do so BEFORE July 13th. . .

that shouldn't be a problem in your case. If the other side requests a continuation for the en banc vote agree only if your get in writing that they'll wait for SCOTUS to rule if it is appealed that far.

hoffmang
06-04-2009, 11:08 PM
But if I was to rely on a Nordyke 2A incorporated I need to do so BEFORE July 13th. . .

You can rely on Nordyke as Nordyke says the 2A is incorporated. The risk is that it might go away on July 13.

-Gene

Maestro Pistolero
06-05-2009, 9:05 AM
Is there any chance the present SCOTUS panel could move this to the front burner and put the issue to bed, paste haste, and prior to any Sotomayor influence?

hoffmang
06-05-2009, 10:53 AM
Is there any chance the present SCOTUS panel could move this to the front burner and put the issue to bed, paste haste, and prior to any Sotomayor influence?

The earliest this would be heard is after the summer recess as there are no more oral arguments. There is a wildly unlikely chance that they'd issue a per-curiam saying "incorporated you fools."

Odds are this is next term and oral argument will be in early 2010.

-Gene

7x57
06-05-2009, 11:01 AM
The earliest this would be heard is after the summer recess as there are no more oral arguments. There is a wildly unlikely chance that they'd issue a per-curiam saying "incorporated you fools."


I'd pay a lot of money to see that if that were the exact wording. :rofl:

So any thoughts on the speculation about whether they'll just rule on the ban itself or just on incorporation and send it back? And also on the probability of the doomsday scenario where it all goes four-feet-in-the-air and they don't incorporate? I know you think that isn't going to happen, but I can't be reassured often enough. :rolleyes:

7x57

hill billy
06-05-2009, 11:04 AM
Do you still feel that we might have resolution to this by summer 10'? hoping,hoping,hoping.

N6ATF
06-05-2009, 11:26 AM
There is a wildly unlikely chance that they'd issue a per-curiam saying "incorporated you fools."

-Gene

:hurray::rofl2:

GaryV
06-05-2009, 11:49 AM
I'd pay a lot of money to see that if that were the exact wording. :rofl:

So any thoughts on the speculation about whether they'll just rule on the ban itself or just on incorporation and send it back? And also on the probability of the doomsday scenario where it all goes four-feet-in-the-air and they don't incorporate? I know you think that isn't going to happen, but I can't be reassured often enough. :rolleyes:

7x57

I'd pay money to see it no matter what the wording.

They can't rule on the ban without addressing incorporation, because without incorporation the ban is legal. They could just rule on incorporation and then send the question of the ban back, but I doubt they'd do that. Don't worry, SCOTUS seems to be drooling to get a case like this. I think the odds are better than 50/50 that they'll even overturn Slaughterhouse and incorporate the whole BoR under the Privileges and Immunities Clause.

7x57
06-05-2009, 2:12 PM
They can't rule on the ban without addressing incorporation, because without incorporation the ban is legal.


I know, when I re-read it I realized I'd worded it incorrectly. The first "just" shouldn't be there, so the question is the chance they'll rule on the ban, and therefore the whole ball of wax, or just on incorporation and send it back to the 7th circuit to rule on the ban in the light of incorporation.


They could just rule on incorporation and then send the question of the ban back, but I doubt they'd do that. Don't worry, SCOTUS seems to be drooling to get a case like this.


While that does seem likely, my trust in the ability of judges to follow the law has become quite low. That's the problem of reading the history of incorporation; I'd call it legal malpractice if there was anybody bigger who could spank SCOTUS for sheer cussedness. So I always like reassurance. :rolleyes:

To some, the glass is half full, to others, the glass is half empty. I say I really have no proof that clear liquid isn't enough nitroglycerin to blow up the whole place. ;)


I think the odds are better than 50/50 that they'll even overturn Slaughterhouse and incorporate the whole BoR under the Privileges and Immunities Clause.

That would end quite a lot of stupid tricks, and maybe even teach a salutory lesson to other courts that just maybe the law means what it says. You can't beat that into judges often enough for my money.

7x57

GaryV
06-05-2009, 2:53 PM
You can't beat that into judges often enough for my money.

Unfortunately you can't beat it into them at all; which is too bad, because that would probably work a lot better than logical argument or historical fact.

383green
06-05-2009, 4:39 PM
I think the odds are better than 50/50 that they'll even overturn Slaughterhouse and incorporate the whole BoR under the Privileges and Immunities Clause.

I can't even begin to imagine the magnitude of the ensuing celebration if that were to come to pass! Such a ruling would be far beyond awesomely-awesome.

BigDogatPlay
06-06-2009, 9:17 AM
Assuming, for a moment, that en banc on Nordyke either fails to happen or is found in our favor... could the SCOTUS pass on hearing Nordyke at all and use it and Heller as the cudgel with which to overturn the 7th and send the Chicago case back for trial with "it's incorporated, deal with it"?

That seems like a pretty reasonable outcome.

hill billy
06-06-2009, 9:21 AM
Assuming, for a moment, that en banc on Nordyke either fails to happen or is found in our favor... could the SCOTUS pass on hearing Nordyke at all and use it and Heller as the cudgel with which to overturn the 7th and send the Chicago case back for trial with "it's incorporated, deal with it"?

That seems like a pretty reasonable outcome.

Boy I hope so. :thumbsup:

bulgron
06-06-2009, 9:28 AM
There are larger issues at play here than just 2A incorporation. I think SCOTUS may well want the opportunity to look at and possibly overturn Slaughterhouse/Cruikshank (and, thus, of course, Presser). If so, no way are they going to duck the opportunity to hear one of these 2A incorporation cases.

hoffmang
06-06-2009, 10:18 AM
I predict SCOTUS is going to directly overrule Slaughter-House Cases.

I also fully expect them to rule directly that the Chicago and Oak Park restrictions are unconstitutional. That will likely include the annual re-registration requirement for all guns in Chicago and the pre-acquisition requirement.

-Gene

rob
06-06-2009, 11:43 AM
Gene,

Part of the complaint is that if you let your registration lapse, you are unable to re-register your firearm. This is not too different from registration for the AWB here in California.

What do you think the chances are of SCOTUS granting cert and allowing a question of registration to be included?

hoffmang
06-06-2009, 11:49 AM
Gene,

Part of the complaint is that if you let your registration lapse, you are unable to re-register your firearm. This is not too different from registration for the AWB here in California.

What do you think the chances are of SCOTUS granting cert and allowing a question of registration to be included?

The question granted will be about the 14th Amendment. However, just like Heller, the court will likely go to the merits of the complaints once they complete the 14A analysis.

-Gene

DDT
06-06-2009, 4:58 PM
I predict SCOTUS is going to directly overrule Slaughter-House Cases.

That would be AMAZING. If slaughter-House falls then so do Cruikshank and Presser. This would open up P&I across the board for the BoR and then some.

That would make for some pretty exciting times. Once again the "republicans" would be responsible for reinvigorating the civil rights movement.

DDT
06-06-2009, 5:02 PM
Gene,

Part of the complaint is that if you let your registration lapse, you are unable to re-register your firearm. This is not too different from registration for the AWB here in California.

What do you think the chances are of SCOTUS granting cert and allowing a question of registration to be included?

This is different, AW registration in CA does not "expire" as does handgun registration in Chicago. Missing a deadline to register is not the same thing as acquisition without a permit. You might make a case for the FEW folks who have pre-registration arms who would like to register but most of those who had arms pre-registration and chose not to would also choose not to register them EVER. The AWB simply has to be done away with as it prohibits people from exercising their 2A rights while allowing others to do so with the same weapons. I think it will be gone within 5 years (if CGF keeps up the pressure.)

bulgron
06-06-2009, 5:08 PM
This is different, AW registration in CA does not "expire" as does handgun registration in Chicago. Missing a deadline to register is not the same thing as acquisition without a permit. You might make a case for the FEW folks who have pre-registration arms who would like to register but most of those who had arms pre-registration and chose not to would also choose not to register them EVER. The AWB simply has to be done away with as it prohibits people from exercising their 2A rights while allowing others to do so with the same weapons. I think it will be gone within 5 years (if CGF keeps up the pressure.)

Actually, I'm assuming that the AW ban will stand, but that the California DOJ will be forced to issue AW permits on a shall-issue basis.

I'll be buying popcorn for THAT show.