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View Full Version : Peņa (Roster): Dueling Motions and a Stay


hoffmang
10-02-2009, 3:02 PM
Today, per the court's order (http://www.hoffmang.com/firearms/pena/gov.uscourts.caed.191444.20.0.pdf) earlier this week, both (http://www.hoffmang.com/firearms/pena/gov.uscourts.caed.191444.21.0.pdf) sides (http://www.hoffmang.com/firearms/pena/gov.uscourts.caed.191444.22.0.pdf) filed motions on whether the case should be stayed. Plaintiffs filed a reply (http://www.hoffmang.com/firearms/pena/gov.uscourts.caed.191444.23.0.pdf) to Cid. The court ruled (http://www.hoffmang.com/firearms/pena/gov.uscourts.caed.191444.24.0.pdf) that Peņa is stayed until after Nordyke is decided which will be after McDonald is decided. It appears that the Cid is attempting to stall and the court is hoping for guidance on scrutiny from McDonald and Nordyke.

-Gene

the_quark
10-02-2009, 3:52 PM
I can't say I'm surprised. Certainly what I would've done if I were the Judge.

dantodd
10-02-2009, 4:17 PM
I am a bit surprised they are going to wait for Nordyke. After all, aside from incorporation the only thing 2A related in Nordyke would be a sensitive areas clarification. I suppose the judge is worried that McDonald will not define a level of scrutiny for 2A claims and that Nodyke will?

This seems a bit awkward. If Mcdonald doesn't provide guidance on level of scrutiny then whichever side loses Nordyke will surely petition for cert and then Peņa gets shoved back another year, at least....

Very frustrating.

hoffmang
10-02-2009, 4:28 PM
If Mcdonald doesn't provide guidance on level of scrutiny then whichever side loses Nordyke will surely petition for cert and then Peņa gets shoved back another year, at least....

The last part doesn't necessarily follow. Once Nordyke is decided, this case will move forward either way and will not be stayed further.

-Gene

ivanimal
10-02-2009, 4:32 PM
Ill put the suit back in the closet. I dont look good in suits anyway.:cool:

CHS
10-02-2009, 4:53 PM
*le'sigh*

What's the timeframe for Nordyke again?

I really really really really really REALLY want the roster to just go the hell away already.

dantodd
10-02-2009, 4:56 PM
The last part doesn't necessarily follow. Once Nordyke is decided, this case will move forward either way and will not be stayed further.

-Gene

I agree it doesn't necessarily follow but it is a very real possibility. I personally don't see SCOTUS passing on the opportunity to, at the very least, giving guidance on the level of scrutiny so they aren't inundated in gun cases for the next decade.

kf6tac
10-02-2009, 5:18 PM
I agree it doesn't necessarily follow but it is a very real possibility. I personally don't see SCOTUS passing on the opportunity to, at the very least, giving guidance on the level of scrutiny so they aren't inundated in gun cases for the next decade.

Considering that they can reject gun cases (and any other cert petitions) at will, I don't think that's a particularly heavy concern for them. Most likely they'll give the Courts of Appeal another shot at it - if they all come up with the same standard, or minor variations on the same standard, SCOTUS will probably just pass -- unless maybe they all come up with rational basis -- I feel like there must be at least 4 Justices who think rational basis is too weak a standard. If another conflict between the circuits crops up, then we'll be more likely to see the Nine step in for another round.

loather
10-02-2009, 5:36 PM
I really really really really really REALLY want the roster to just go the hell away already.

You and me both, sir. Asinine law.

BigDogatPlay
10-02-2009, 7:26 PM
So the question seems to be begged.... are we truly expectant of a standard for scrutiny out of McDonald? Or will that ultimately have to be litigated seperately?

If all they do is, basically, cite Heller then it seems the latter might be the case.

elSquid
10-02-2009, 7:42 PM
So, does "shall not be infringed" imply "rational basis"?

:whistling:

-- Michael

hoffmang
10-02-2009, 8:17 PM
1. Peņa will not be stayed again. It's just not how FRCP works.

2. Heller rejected "rational basis." We're at intermediate or strict scrutiny.

-Gene

yellowfin
10-02-2009, 9:29 PM
How much better is intermediate scrutiny? Can't they just recite their stupid "for the children" incantation and anything goes if the judge believes it, particularly if they hate the 2A?

KylaGWolf
10-02-2009, 9:38 PM
Gene sorry they delayed Pena. When is McDonald going to be heard? I too would love to see the roster go away. Then again I would love to see a lot of the stupid moronic gun laws this state has on the books go poof.

hoffmang
10-02-2009, 10:27 PM
How much better is intermediate scrutiny? Can't they just recite their stupid "for the children" incantation and anything goes if the judge believes it, particularly if they hate the 2A?
Intermediate scrutiny requires things like peer reviewed studies at minimum.

Gene sorry they delayed Pena. When is McDonald going to be heard? I too would love to see the roster go away. Then again I would love to see a lot of the stupid moronic gun laws this state has on the books go poof.

McDonald is likely to be heard in February/March. We'll get the hearing date soon. However, I expect the decision to be released in late June - just like Heller was.

-Gene

artherd
10-02-2009, 11:47 PM
... you guys didn't expect this to be easy did you?

The good news here - is that we're going to get a ruling on the Roster AFTER the 2A applies to the states...

THink about it, they're delaying the game so the star quarterback can make it to the field.

1859sharps
10-05-2009, 2:17 PM
... you guys didn't expect this to be easy did you?



Actually, I think a lot of people are not understanding this.

The other side isn't going to roll over just because we have what appears to be an air tight case filled with logic and reason. if they cared about logic and reason we wouldn't have to be fighting to repeal bad laws.

And even if the DOJ lawyers do not agree with the law, they represent the state and it's their job to defend the law in question.

put those to factors together, it won't be smooth sailing without stalls and maybe even a set back or two. But I think if we stick together we will ultimately win.

yellowfin
10-05-2009, 2:25 PM
Intermediate scrutiny requires things like peer reviewed studies at minimum.What might some examples be of such?

hoffmang
10-05-2009, 4:54 PM
What might some examples be of such?

I'd suggest reading Judge Easterbrook's opinion in Annex Books for a feeling of what that should look like:

http://indianalawblog.com/archives/2009/09/ind_decisions_7_379.html

-Gene

artherd
10-05-2009, 7:57 PM
Actually, I think a lot of people are not understanding this.

The other side isn't going to roll over just because we have what appears to be an air tight case filled with logic and reason. if they cared about logic and reason we wouldn't have to be fighting to repeal bad laws.

And even if the DOJ lawyers do not agree with the law, they represent the state and it's their job to defend the law in question.

Quite true. The tide has swung in our favor, but that does not mean victory is automatic or overnight.

It simply means that now the real and effective work can begin.

(Now's a great time to remind everyone that Freedom is Not Free, and that a donation to CGF (http://www.calgunsfoundation.org/index.php/donate) is one of the most effective ways to realize these goals we all share.)

yellowfin
10-05-2009, 8:22 PM
I'd suggest reading Judge Easterbrook's opinion in Annex Books for a feeling of what that should look like:

http://indianalawblog.com/archives/2009/09/ind_decisions_7_379.html

-Gene Some things about that ruling bother me. It upholds discretionary issuing of a license due to the nature of the business, and although it demands a presentation of relevant facts for evidence that depends entirely upon whose evidence gets heard. In the presence of a good judge we should win, but in plenty of places, particularly those where we'll have the hardest fights, I can foresee too many who are against us hearing what they want to hear and from whose side they lend a friendlier ear to. I've come to distrust discretion of authorities rather than concrete, enumerated standards to which adherence is mandated and they are held closely accountable...gee, I wonder why.