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hoffmang
01-13-2011, 6:55 PM
Today, Alan Gura, Don Kilmer, SAF and CGF filed the motion for summary judgement (http://www.archive.org/download/gov.uscourts.caed.191626/gov.uscourts.caed.191626.54.1.pdf) in Richards v. Prieto.

The rest of the supporting documents can be found on the docket (http://www.archive.org/download/gov.uscourts.caed.191626/gov.uscourts.caed.191626.docket.html).

Oral argument is scheduled at 2PM on February 10, 2011 in Courtroom 7 of the Sacramento Eastern District Federal District Court (http://www.caed.uscourts.gov/caed/staticOther/page_623.htm) - 501 I Street, Suite. 4-200 Sacramento, CA 95814 (http://maps.google.com/maps?f=q&source=s_q&hl=en&geocode=&q=501+I+Street,+Suite.+4-200+Sacramento,+CA+95814&sll=37.0625,-95.677068&sspn=47.080837,75.673828&ie=UTF8&hq=&hnear=501+I+St+%234,+Sacramento,+California+95814&z=16).

-Gene

n2k
01-13-2011, 6:58 PM
One step closer.......:thumbsup:

yellowfin
01-13-2011, 7:01 PM
What's the projection on likelihood of Prieto appealing if the ruling is favorable to our side?

Of course, Defendants have an interest in regulating firearms in the interest of public
safety,Uhm, no they don't. There is no interest in doing so because doing so has nothing at all in common with that particular goal; the inverse has been shown to be true. Why even entertain their assertion, assigning it credibility where none is deserved, when it's as equally dishonest as it is ineffective, not to mention contemptible?

kf6tac
01-13-2011, 7:15 PM
Uhm, no they don't. There is no interest in doing so because doing so has nothing at all in common with that particular goal; the inverse has been shown to be true. Why even entertain their assertion, assigning it credibility where none is deserved, when it's as equally dishonest as it is ineffective, not to mention contemptible?

The brief doesn't say that the state has an interest in regulating concealed carry in the interest of public safety. It says that they have an interest in regulating firearms in the interest of public safety. Are you seriously asserting that there is no conceivable firearm regulation that furthers public safety?

ColdDeadHands1
01-13-2011, 7:15 PM
One step closer.......:thumbsup:

Exactly! Movement in the slow as molasses legal system is good. Looking forward to 2/10/11.

yellowfin
01-13-2011, 7:29 PM
The brief doesn't say that the state has an interest in regulating concealed carry in the interest of public safety. It says that they have an interest in regulating firearms in the interest of public safety. Are you seriously asserting that there is no conceivable firearm regulation that furthers public safety?Yes I am, because virtually nothing in firearms regulation really works towards that intended purpose. How many people do you HONESTLY REALLY BELIEVE have ever REALLY been restrained from harming someone in a criminal manner because they couldn't get a firearm when they really wanted to when other means were available, or a particular kind when they had access to others? Has there EVER been a reported crime in recent history where someone who was shot said "Thank God they didn't have a ______________ because then I might have died!", or a criminal taken into custody who actually said "Well damn, if I'd had ______________, I would have done it, but I didn't so I stopped" ?

There is almost no effective impediment to criminal intention to commit crime in a country occupying this size of land mass that is anything short of making every square mile of it a police state in total lockdown. It is total fantasy to say when we can't even keep several million people out of our country who aren't supposed to be here, plus billions upon billions of dollars of illegal substances consumed every year, that somehow prohibiting firearms to certain people or certain kinds to everyone that magically that wish of law will be complied with just by having it on paper, and that that wish will remove from said individuals the intent to do harm with them.

So yes, I'm pretty thoroughly convinced that people will do what they will do if they really want to do it. As such, there is virtually zero such thing as restriction of firearms that ultimately works towards public safety, when human nature is a far more powerful influence of what people will and won't do. Laws against lawlessness are nothing more than "Stop! Or I will yell 'Stop' again!"

Window_Seat
01-13-2011, 7:29 PM
Exactly! Movement in the slow as molasses legal system is good. Looking forward to 2/10/11.

Likewise! Can we go to the hearing, or is it a closed hearing? DQ, but is it likely that our side will win SJ given that the facts and everything is all undisputed? Has the Judge ever awarded SJ on the day of such a hearing from the bench?

Erik.

Dreaded Claymore
01-13-2011, 7:30 PM
Awesome. Can't (but will) wait to hear about the next step.

Uhm, no they don't. There is no interest in doing so because doing so has nothing at all in common with that particular goal; the inverse has been shown to be true. Why even entertain their assertion, assigning it credibility where none is deserved, when it's as equally dishonest as it is ineffective, not to mention contemptible?

It means that the Defendants have an interest in regulating firearms insofar as it furthers public safety. If, hypothetically, you were to prove that it never did, then sure, there'd be no governmental interest in regulating firearms. However, I bet there are some examples of firearm regulations that do indeed make the public safer, though to be sure, CCW laws in California are not among them.

lgm118icbm
01-13-2011, 7:31 PM
That just made my day.
:)

I will keep my fingers crossed.

choprzrul
01-13-2011, 7:33 PM
Figured that since I needed to go look, someone else might benefit from my efforts:

Intent
Declaratory relief that the “good moral character” and “good cause” provisions of California Penal Code § 12050 are unconstitutional either on their face and/or as applied to bar applicants who are otherwise legally qualified to possess firearms and who assert self-defense as their “good cause” for seeking a handgun carry permit;
An order permanently enjoining Defendants, their officers, agents, servants, employees, and all persons in active concert or articipation with them who receive actual notice of the injunction, from enforcing the “good moral character” and “good cause” requirements of California Penal Code § 12050 against handgun carry permit applicants who seek the permit for self-defense and are otherwise qualified to obtain a handgun carry permit under that section

Copied from HERE (http://wiki.calgunsfoundation.org/index.php/Richards_v._Prieto)

hoffmang
01-13-2011, 7:40 PM
Uhm, no they don't. There is no interest in doing so because doing so has nothing at all in common with that particular goal; the inverse has been shown to be true. Why even entertain their assertion, assigning it credibility where none is deserved, when it's as equally dishonest as it is ineffective, not to mention contemptible?

Uhm, yes they do. Laws against actual brandishing, carrying while intoxicated, carrying in an actually unsafe manner (the state could ban horizontal shoulder holsters - sweeping people is bad ju-ju), and on and on are real, actual regulations in the interest of public safety. Arguably, discharge regulations that have self defense exceptions also fall into this boat. Further, the state can make a compelling case that requiring concealed carry is in the public interest because it serves to give society herd immunity to crime as criminals are unsure of which targets are armed and thus are deterred from attacking everyone.

Your sweeping knee jerk reaction means you're blinded by the other sides rhetoric. You need to think past that rhetoric to real actual honest regulations that the state could have real actual honest reasons to regulate.

-Gene

hoffmang
01-13-2011, 7:41 PM
Likewise! Can we go to the hearing, or is it a closed hearing? DQ, but is it likely that our side will win SJ given that the facts and everything is all undisputed? Has the Judge ever awarded SJ on the day of such a hearing from the bench?

Erik.

This is open court. The courtroom's gallery is a bit small - think smaller than the Court of Appeals. It would be highly unusual for him to rule from the bench however.

-Gene

yellowfin
01-13-2011, 7:43 PM
You need to think past that rhetoric to real actual honest regulations that the state could have real actual honest reasons to regulate.

-GenePerhaps, if the state were honest, which they are not.

hoffmang
01-13-2011, 7:52 PM
Perhaps, if the state were honest, which they are not.

But we are honest and Federal Courts believe they are honest so we have to assume honesty. Hence the very true statement in the MSJ.

-Gene

RobG
01-13-2011, 8:13 PM
This is open court. The courtroom's gallery is a bit small - think smaller than the Court of Appeals. It would be highly unusual for him to rule from the bench however.

If I understand correctly, a msj is asking the judge to rule based on the facts as presented? So if it is unlikely he would rule, what is the point/strategy of asking him to do so?

the_quark
01-13-2011, 8:14 PM
If I understand correctly, a msj is asking the judge to rule based on the facts as presented? So if it is unlikely he would rule, what is the point/strategy of asking him to do so?

"Rule from the bench" means he gives his answer right there, in the court room. Obviously, we hope to win, it's just we'd expect that if we do it'll be in a written opinion he'll issue some time later.

RobG
01-13-2011, 8:22 PM
"Rule from the bench" means he gives his answer right there, in the court room. Obviously, we hope to win, it's just we'd expect that if we do it'll be in a written opinion he'll issue some time later.

So its an attempt to obtain a decision quicker than a full trial? Could it possibly hurt the lawsuit? Just trying to learn how the system works.

Thanks

Crom
01-13-2011, 8:25 PM
This is great news. MSJ's are my favorite type of court filing, so are opinions that go are way. :)

Thank you Gene for the update.

Purple K
01-13-2011, 8:28 PM
AND... Nordyke is approaching 90-days. 2011 will prove to be a very good year!

the_quark
01-13-2011, 8:32 PM
So its an attempt to obtain a decision quicker than a full trial? Could it possibly hurt the lawsuit? Just trying to learn how the system works.

Thanks

I think you ran down a rathole, here.

So, we've presented the Motion for Summary Judgement (MSJ). This says, "Hey, we're so completely going to win, we don't need to have a full trial."

Window_Seat then wondered:


Has the Judge ever awarded SJ on the day of such a hearing from the bench?


Which, yes, sometimes Motions for Summary Judgement are, in fact, ruled from the bench. That's the dramatic courtroom moment when the Judge bangs his gavel and says "I rule for the plaintiffs on all counts" that you see in movies. However, you basically never see them in real life, as hoffmang noted:


It would be highly unusual for him to rule from the bench however.


Anyway, so, we filed an MSJ, which we hope to win, but if we do win, it'll probably be a written opinion sometime later.

If the Judge denies the motion (which honestly isn't unlikely), then we'll actually have to have a trial. What we're saying here is "the facts are so overwhelmingly on our side, we don't even need a trial, you can just find for us right now". Obviously, we think that's the case. We'll see if the judge agrees, or if he wants to go through the whole process. I wouldn't read much into it if he denies our motion. If he grants it, though, we win as soon as he does. :)

Liberty1
01-13-2011, 9:15 PM
Nice work Don & Alan!

hoffmang
01-13-2011, 9:29 PM
If the Judge denies the motion (which honestly isn't unlikely), then we'll actually have to have a trial. What we're saying here is "the facts are so overwhelmingly on our side, we don't even need a trial, you can just find for us right now". Obviously, we think that's the case. We'll see if the judge agrees, or if he wants to go through the whole process. I wouldn't read much into it if he denies our motion. If he grants it, though, we win as soon as he does. :)

Err. Not exactly.

If we lose the MSJ, we will immediately appeal. Heller went all the way on cross motions for summary judgement and never saw a jury and had no need of one.

Trials are needed to find facts as only juries can find facts that are truly disputed. No material facts are in dispute in this case. The Sheriff's policy is what it is and we agree with him that that is his policy. It's a futile act to apply with just self defense and he in fact denied one of our people who only had self defense as good cause. However, we are saying that as a legal matter his policy and the denial are unconsitutional. Constitutionality isn't judged by a jury but by judges.

-Gene

uyoga
01-13-2011, 9:53 PM
The first of several wins in California for 2011.

Goldseeker
01-13-2011, 10:14 PM
Are you seriously asserting that there is no conceivable firearm regulation that furthers public safety?

Well - maybe only a very few, for example:

"No one shall make, manufacture, or sell in commerce, a firearm that doesn't go bang when the trigger is activated".

"No one shall be shot with a firearm, except for them that really need killin'"

mdimeo
01-13-2011, 10:17 PM
Trials are needed to find facts as only juries can find facts that are truly disputed. No material facts are in dispute in this case.

That's one of the positive differences from the Peruta case, in my humble non-lawyer opinion. Peruta was pushing equal protection claims about the special treatment of the friends-of-the-sheriff organization, with really quite weak evidence.

The weak link in this brief may be the leap from

California's only useful carry method is CCW

to

The second amendment therefore requires shall-issue.


We're kinda telling the judge that the law must be rewritten, and here's how it has to be. But it's not intuitively obvious to me that a judicially-imposed shall-issue licensing scheme is the only possible rewrite consistent with 2A rights.

I'm not a lawyer, so I'm probably missing something.

-m@

Librarian
01-13-2011, 10:27 PM
That's one of the positive differences from the Peruta case, in my humble non-lawyer opinion. Peruta was pushing equal protection claims about the special treatment of the friends-of-the-sheriff organization, with really quite weak evidence.

The weak link in this brief may be the leap from

California's only useful carry method is CCW

to

The second amendment therefore requires shall-issue.


We're kinda telling the judge that the law must be rewritten, and here's how it has to be. But it's not intuitively obvious to me that a judicially-imposed shall-issue licensing scheme is the only possible rewrite consistent with 2A rights.

I'm not a lawyer, so I'm probably missing something.

-m@

What I think you're missing is

Heller says a functional firearm for self defense is 2nd Amendment right

California generally denies open carry

If open carry is out, what is left is the Legislature's preferred method, concealed carry

Concealed carry, being the implementation of the right identified in Heller in the method that California favors, cannot be conditional on 'whim' or 'proof of need' - that's not how rights work.

Anchors
01-13-2011, 10:35 PM
Today, Alan Gura, Don Kilmer, SAF and CGF filed the motion for summary judgement (http://www.archive.org/download/gov.uscourts.caed.191626/gov.uscourts.caed.191626.54.1.pdf) in Richards v. Prieto.

The rest of the supporting documents can be found on the docket (http://www.archive.org/download/gov.uscourts.caed.191626/gov.uscourts.caed.191626.docket.html).

Oral argument is scheduled at 2PM on February 10, 2011 in Courtroom 7 of the Sacramento Eastern District Federal District Court (http://www.caed.uscourts.gov/caed/staticOther/page_623.htm) - 501 I Street, Suite. 4-200 Sacramento, CA 95814 (http://maps.google.com/maps?f=q&source=s_q&hl=en&geocode=&q=501+I+Street,+Suite.+4-200+Sacramento,+CA+95814&sll=37.0625,-95.677068&sspn=47.080837,75.673828&ie=UTF8&hq=&hnear=501+I+St+%234,+Sacramento,+California+95814&z=16).

-Gene

Hell of a good motion. Very well written and explained so that even the stupidest and most anti-gun person on the planet can logically understand it.
I have faith in this.

Anchors
01-13-2011, 10:38 PM
What I think you're missing is

Heller says a functional firearm for self defense is 2nd Amendment right

California generally denies open carry

If open carry is out, what is left is the Legislature's preferred method, concealed carry

Concealed carry, being the implementation of the right identified in Heller in the method that California favors, cannot be conditional on 'whim' or 'proof of need' - that's not how rights work.

This.

Strict scrutiny must be applied to the right to keep and bear arms as per Heller. Therefore they may not interpret it with intermediate scrutiny and take this enumerated right and regulate it to the point of effectively restricting it.

It is a very solid motion in my also non-lawyer opinion.

Connor P Price
01-13-2011, 10:48 PM
It's very clear that there must be an available method to carry functional firearms for those individuals not prohibited from doing so. Functional of course meaning loaded and capable of being fired. Since the open carrying of functional firearms is prohibited, they must be allowed to be carried concealed.This concept does not seem to be a departure from logic in any sense, nor does it seem difficult to understand. On a factual basis alone, from a legal standpoint it would appear that the motion should be granted. Although I don't expect for a moment that it will.

The Calguns Foundation has taken one more important step today, a step toward freedom for all of us. These steps are not taken for free however, lawyers are expensive. We should all look at this as a reminder that we need to donate, so tonight is the night that I sponsor my county in the Sunshine Initiative. I hope others will join me.

RRangel
01-13-2011, 10:51 PM
This is like the first cracks in the dam. It's only a matter of time before laws in this state have to change.

Dreaded Claymore
01-13-2011, 11:05 PM
Well - maybe only a very few, for example:

"No one shall make, manufacture, or sell in commerce, a firearm that doesn't go bang when the trigger is activated".

"No one shall be shot with a firearm, except for them that really need killin'"

Goldseeker, I like this. We need to start collecting signatures to put these laws on the ballot as initiatives. :D

N6ATF
01-13-2011, 11:18 PM
Of course, Defendants have an interest in regulating firearms in the interest of public safety,

Doesn't "of course, Defendants" in a brief imply "the Defendants should"?

Because denying practically everyone but criminals from bearing arms is achieving exactly the opposite of that interest.

hoffmang
01-13-2011, 11:46 PM
Doesn't "of course, Defendants" in a brief imply "the Defendants should"?

Because denying practically everyone but criminals from bearing arms is achieving exactly the opposite of that interest.

Though a complex statement, when parsed you are absolutely correct. Issuing widely to the peaceable law abiding residents of a county will create a strong deterrent effect on the local criminal element.

-Gene

pitchbaby
01-14-2011, 12:14 AM
Sac is my turf... Thursdays suck for me... but I'm gonna fight my way through and will be there any way I can.

Shall we plan a gathering for post hearing?

safewaysecurity
01-14-2011, 12:42 AM
SAHWEEET!!:D

M1A Rifleman
01-14-2011, 8:12 AM
Cool, and good luck in February,

The State allows three methods of carry - restricted licensed CCW, restricted licensed loaded OC, and unlicensed, and supposedly limited restrictions to UOC.

We know the problem with the UOC method is this in practicality is also restricted to the point of being prohibited by a means thatis not documented in the law, which is the harassment by police agency's responding to "man with a gun calls". This is not a blame on police, its just a fact of their current training.

I did see the short section about the restricted license to loaded open carry (LOC) in some parts of the state, but nothing on what really happens to those that to exercise UOC, and this seems like a weak link here.

My worry is the judge will simply rule the same as recently before - that we have an UOC right, and this is good enough with no consideration of what really happens to UOC practitioners.

tabrisnet
01-14-2011, 8:17 AM
I'm not sure... there was some points in the brief that pointed at a prior determination that restrictions that make the weapon useless are also unconstitutional. This might include mandatory unloaded.

The debate for some time on calguns is whether to prefer LOC or CCW, and much indication that the Heller & McDonald decisions suggest that the state must either allow LOC or CCW, but nowhere is UOC part of that list.

pitchbaby
01-14-2011, 8:27 AM
Forget about man with gun calls... It's the GFSZ's that make it useless for many.

M1A Rifleman
01-14-2011, 8:39 AM
Forget about man with gun calls... It's the GFSZ's that make it useless for many.

True, but this is also is a problem for those with a CCW or license to LOC. The resolution and removal of the GFSZ would seem to be high on the list for future challenges after the actual right to carry is hopfully established in this state.

tabrisnet
01-14-2011, 8:49 AM
If I remember correctly, there is a CCW exception to GFSZ.

Paladin
01-14-2011, 8:53 AM
1st off, GREAT NEWS! ! ! :jump: Things are moving right along.

"Rule from the bench" means he gives his answer right there, in the court room. Obviously, we hope to win, it's just we'd expect that if we do it'll be in a written opinion he'll issue some time later.With federal constitutional issues like this, what sort of time period is this judge most likely to issue their ruling? (Please skip the "two weeks" or equivalents posts.) Within a month? Before June? Request best estimates by those who have knowledge about such things.

pitchbaby
01-14-2011, 8:54 AM
If I remember correctly, there is a CCW exception to GFSZ.

Counties have discretion on this issue with CCW.

mdimeo
01-14-2011, 8:55 AM
What I think you're missing is

Heller says a functional firearm for self defense is 2nd Amendment right

California generally denies open carry

If open carry is out, what is left is the Legislature's preferred method, concealed carry

Concealed carry, being the implementation of the right identified in Heller in the method that California favors, cannot be conditional on 'whim' or 'proof of need' - that's not how rights work.

Oh, I understand the logic, and it comports with my preferred public policy, I'm just not sure it covers everything.

Couldn't the judge equally declare that the state's limitation of open carry permits to unpopulated areas is unconstitutional, and suggest that the plaintiffs go apply for one of them, instead?

When I called this the weak link of the MSJ's argument, I was perhaps overstating it. I think it's the weakest part of a strong argument :)

Untamed1972
01-14-2011, 9:32 AM
1st off, GREAT NEWS! ! ! :jump: Things are moving right along.

With federal constitutional issues like this, what sort of time period is this judge most likely to issue their ruling? (Please skip the "two weeks" or equivalents posts.) Within a month? Before June? Request best estimates by those who have knowledge about such things.

Yuh just never know....the Peruta decision came out about a month after the orals tho.

tabrisnet
01-14-2011, 9:39 AM
Counties have discretion on this issue with CCW.

From what I can tell, this is more that the issuing county can add to your permit that they do NOT exempt you from the GFSZ, but if they do not put such an restriction on your permit then you are exempt... or I've been reading the wrong calguns threads.


From http://www.calguns.net/calgunforum/showthread.php?t=324414
Unless it is stated on the CCW permit [PC 12050(c)] that you can not carry on school grounds [PC 12050(b)], you can legally carry on school property/in a GFSZ [PC 626.9(l)].




Penal Code 12050
(b) A license may include any reasonable restrictions or conditions which the issuing authority deems warranted, including restrictions as to the time, place, manner, and circumstances under which the person may carry a pistol, revolver, or other firearm capable of being concealed upon the person.
(c) Any restrictions imposed pursuant to subdivision (b) shall be indicated on any license issued.

Penal Code 626.9
(a) This section shall be known, and may be cited, as the Gun-Free School Zone Act of 1995.
(l) This section does not apply to a duly appointed peace officer as defined in Chapter 4.5 (commencing with Section 830) of Title 3 of Part 2, a full-time paid peace officer of another state or the federal government who is carrying out official duties while in California, any person summoned by any of these officers to assist in making arrests or preserving the peace while he or she is actually engaged in assisting the officer, a member of the military forces of this state or of the United States who is engaged in the performance of his or her duties, a person holding a valid license to carry the firearm pursuant to Article 3 (commencing with Section 12050) of Chapter 1 of Title 2 of Part 4, or an armored vehicle guard, engaged in the performance of his or her duties, as defined in subdivision (e) of Section 7521 of the Business and Professions Code.

pitchbaby
01-14-2011, 9:43 AM
From what I can tell, this is more that the issuing county can add to your permit that they do NOT exempt you from the GFSZ, but if they do not put such an restriction on your permit then you are exempt... or I've been reading the wrong calguns threads.


From http://www.calguns.net/calgunforum/showthread.php?t=324414

The way you are saying it is the way I understand it to be... for example, Sac county CCW'ers had the restriction listed till recently from what I have read in the forums.

FABIO GETS GOOSED!!!
01-14-2011, 9:59 AM
It's very clear that there must be an available method to carry functional firearms for those individuals not prohibited from doing so. Functional of course meaning loaded and capable of being fired.

Peruta really highlighted that "functional" does not necessarily mean "loaded." The Heller decision never said that it did and in my opinion carefully avoided that question. Heller only ruled on that part of D.C.'s law that required firearms to be "disassembled or locked" (and also said that its analysis did not "suggest the invalidity of of laws regulating the storage of firearms to prevent accidents"). Although footnote 2 in this brief tries to finesse it, Heller is not properly cited as direct authority that "functional" means "loaded." The issue is unsettled I would much prefer to see it addressed head-on with good arguments.

nobody_special
01-14-2011, 10:08 AM
Fabio, have you ever tried to make an unloaded firearm "function"?

Nice brief, thanks again to CGF!

FABIO GETS GOOSED!!!
01-14-2011, 10:12 AM
Fabio, have you ever tried to make an unloaded firearm "function"?

According to Heller a firearm is "functional," without reference to whether it is loaded or unloaded, if it is assembled and not bound by a trigger lock.

Librarian
01-14-2011, 10:20 AM
Cool, and good luck in February,

The State allows three methods of carry - restricted licensed CCW, restricted licensed loaded OC, and unlicensed, and supposedly limited restrictions to UOC.

We know the problem with the UOC method is this in practicality is also restricted to the point of being prohibited by a means thatis not documented in the law, which is the harassment by police agency's responding to "man with a gun calls". This is not a blame on police, its just a fact of their current training.

I did see the short section about the restricted license to loaded open carry (LOC) in some parts of the state, but nothing on what really happens to those that to exercise UOC, and this seems like a weak link here.

My worry is the judge will simply rule the same as recently before - that we have an UOC right, and this is good enough with no consideration of what really happens to UOC practitioners.

I believe yesterday's introduction of AB 144 to extinguish UOC moots that last argument.

M1A Rifleman
01-14-2011, 10:29 AM
I believe yesterday's introduction of AB 144 to extinguish UOC moots that last argument.

Thanks, and good point/info. Obviously, I'm not as up-to-speed as some. I would think this would work in out favor, but after its passage.

Untamed1972
01-14-2011, 10:37 AM
Just read the MSJ.....absolute artistry I tell you. Gura/SAF filings are so simple and to the point it's no wonder they have such and impressive winning record.

This is the MSJ that SHOULD have been filed in San Diego. All the HDSA stuff in the Peruta case just muddied the waters I think. That case needed more laser focus.

Can't wait to see the outcome of this one! :thumbsup:

safewaysecurity
01-14-2011, 11:46 AM
Just read the MSJ. Good stuff but I could see certain areas where an anti-gunner could justify their beliefs just like the judge in the Peruta case went out of her way to deny Peruta his rights.

wildhawker
01-14-2011, 12:11 PM
I'm quite sure that USSC will be glad to make it clear that "functional" equals "loaded". The argument that they are mutually exclusive is laughable - can you tell me why the military, police, and armed security don't UOC?

-Brandon

Peruta really highlighted that "functional" does not necessarily mean "loaded." The Heller decision never said that it did and in my opinion carefully avoided that question. Heller only ruled on that part of D.C.'s law that required firearms to be "disassembled or locked" (and also said that its analysis did not "suggest the invalidity of of laws regulating the storage of firearms to prevent accidents"). Although footnote 2 in this brief tries to finesse it, Heller is not properly cited as authority that "functional" means "loaded." The issue is unsettled I would much prefer to see it addressed head-on with good arguments.

wildhawker
01-14-2011, 12:13 PM
I believe yesterday's introduction of AB 144 to extinguish UOC moots that last argument.

If it passes, which it surely will, then yes. Probably won't matter for the purposes of the Peruta appellate cycle, but very well might for Richards.

RobG
01-14-2011, 12:17 PM
According to Heller a firearm is "functional," without reference to whether it is loaded or unloaded, if it is assembled and not bound by a trigger lock.

A gun cannot function without bullets. Same as a car cannot function without gasoline.

FABIO GETS GOOSED!!!
01-14-2011, 12:26 PM
I'm quite sure that USSC will be glad to make it clear that "functional" equals "loaded". The argument that they are mutually exclusive is laughable - can you tell me why the military, police, and armed security don't UOC?

Did I say they were mutually exclusive? No. You can have a "functional" firearm that is loaded, and you can have a "functional" firearm that is unloaded. Whether a firearm is functional does not depend on whether it is loaded or unloaded. That is the current state of the law on what is a "functional" or "operable" firearm under Heller. Whether UOC only or unloaded storage would violate the 2A has not been decided and Heller clearly did not say that a "functional" firearm must be loaded.

Connor P Price
01-14-2011, 12:26 PM
Peruta really highlighted that "functional" does not necessarily mean "loaded." The Heller decision never said that it did and in my opinion carefully avoided that question. Heller only ruled on that part of D.C.'s law that required firearms to be "disassembled or locked" (and also said that its analysis did not "suggest the invalidity of of laws regulating the storage of firearms to prevent accidents"). Although footnote 2 in this brief tries to finesse it, Heller is not properly cited as authority that "functional" means "loaded." The issue is unsettled I would much prefer to see it addressed head-on with good arguments.

True on all accounts. I didn't mean to say that we have a solid decision proving that functional means loaded, that was just me throwing in what I believe to be true.

An unloaded gun is like a car with no gas, it is not capable of functioning as designed until the gas is added. This seems like common sense to me, however that doesn't at all mean that a judge will agree with me.

RobG
01-14-2011, 12:29 PM
Did I say they were mutually exclusive? No. You can have a "functional" firearm that is loaded, and you can have a "functional" firearm that is unloaded. Whether a firearm is functional does not depend on whether it is loaded or unloaded. That is the current state of the law on what is a "functional" or "operable" firearm under Heller. Whether UOC only or unloaded storage would violate the 2A has not been decided and Heller clearly did not say that a "functional" firearm must be loaded.

How is an unloaded semi automatic pistol functional if it takes a fired projectile to cycle the slide, eject the spent shell, and insert a new one?

FABIO GETS GOOSED!!!
01-14-2011, 12:31 PM
A gun cannot function without bullets. Same as a car cannot function without gasoline.

The supreme court defines "functional" more narrowly than you do; it is disassembly or binding with a trigger lock that renders a firearm "nonfunctional" or "inoperable," not unloading. This is straight from the text of Heller.

BoxesOfLiberty
01-14-2011, 12:32 PM
MSJ was good reading. Good to see the wheels turning.

Thanks, Gene

FABIO GETS GOOSED!!!
01-14-2011, 12:37 PM
True on all accounts. I didn't mean to say that we have a solid decision proving that functional means loaded, that was just me throwing in what I believe to be true.

I understood this, wasn't trying to challenge what you were saying. The point I was making is that dropping a footnote citing Heller for a proposition that it clearly does not stand for is not the optimal way to go about arguing why we should have loaded carry. "Loaded" and "functional" are discrete concepts under Heller; only one of them is established at this point, and there is a bad decision (Peruta) on the other.

Fjold
01-14-2011, 12:44 PM
Very good read, although I had to look up "cabins" when used as a verb.
(Page 25, IIRC)

krucam
01-14-2011, 12:53 PM
Congratulations Gene & Don and the rest of you left-coasters. Many of these dozens of cases are at the boiling point....there is going to be a lot of drama this year. :)

Untamed1972
01-14-2011, 12:57 PM
I understood this, wasn't trying to challenge what you were saying. The point I was making is that dropping a footnote citing Heller for a proposition that it clearly does not stand for is not the optimal way to go about arguing why we should have loaded carry. "Loaded" and "functional" are discrete concepts under Heller; only one of them is established at this point, and there is a bad decision (Peruta) on the other.

I think if you look at the quotes from Heller about bearing arms in a manner so as to be ready for defense if conflict arises (my words...didn't wanna look up the quote) then I think it would be hard to argue that if your firearm is NOT loaded that you'd be ready/prepared to defend yourself in the face of immediate conflict or threat.

gose
01-14-2011, 1:05 PM
I'll join the tugging when the case has been won :)

wildhawker
01-14-2011, 1:29 PM
If, by way of saying that "functional" is distinct from 'ready' and 'effective', then I would say that you are arguing they are mutually exclusive.

I do agree, however, that to bridge the distinction will almost certainly require at least a circuit-level decision, especially here in the Ninth.

Did I say they were mutually exclusive? No. You can have a "functional" firearm that is loaded, and you can have a "functional" firearm that is unloaded. Whether a firearm is functional does not depend on whether it is loaded or unloaded. That is the current state of the law on what is a "functional" or "operable" firearm under Heller. Whether UOC only or unloaded storage would violate the 2A has not been decided and Heller clearly did not say that a "functional" firearm must be loaded.

Patrick-2
01-14-2011, 1:43 PM
This.

Strict scrutiny must be applied to the right to keep and bear arms as per Heller. Therefore they may not interpret it with intermediate scrutiny and take this enumerated right and regulate it to the point of effectively restricting it.

It is a very solid motion in my also non-lawyer opinion.

Err...kinda.

I know where you are going with this and it makes sense. But seeing as how we are discussing the details of this MSJ, it thought it useful to point out that Gura is not relying on any standard of scrutiny, strict or otherwise.

Heller, McDonald and the current crop of cases concerning bearing of arms in public all rely on a categorical analysis framework that relies on history and common use.

Strict scrutiny will be important for 2A, but here it exceptionally limiting. Scrutiny is only useful when the core of the right is clearly defined. Here we are still arguing over what the core of the right actually is. Replying on a standards-based analysis (scrutiny) means that we are trying to evaluate the core using standards that do not exist. Or more succinctly, all we have clearly defined at the core of Heller is the right to bear arms for defense in the home.

Applying any form of scrutiny to "in the home" will not yield "in the streets". Heller hinted strongly that a core right exists beyond your door, but because the question was not framed at that time the answer still awaits us.

So we need to define our core before we can start applying standards to it.

Chicken meet Egg.

Hope this makes sense.

FABIO GETS GOOSED!!!
01-14-2011, 1:50 PM
I do agree, however, that to bridge the distinction will almost certainly require at least a circuit-level decision, especially here in the Ninth.

Do you agree that Heller decided the "disassembled or locked" component of the DC law but but did not decide "unloaded"?

Kukuforguns
01-14-2011, 2:07 PM
With respect to the functional discussion, the brief cites Heller for the proposition that the Second Amendment protects the right to a functional arm. The footnote does not cite Heller for the proposition that an unloaded firearm is non-functional. It certainly implies (and pointedly so) that an unloaded firearm is not functional. This is an aspect of the brief that I believe could be improved by expressly arguing that an unloaded firearm is not functional for self defense and should not have been hidden in a footnote. It is subject to judicial notice that an unloaded firearm cannot be discharged. Any law prohibiting the loaded carrying of a firearm is a significant infringement on the right of self-defense. I think the brief would have been stronger if it had directly stated, with a citation to Heller, that unloaded firearms are not functional firearms for purposes of the Second Amendment. Briefs routinely cite cases for holdings that are analogous to the propositions for whcih they are cited, and there is a whole custom of how to cite a case to reflect how directly the case supports the proposition. For example, citing a case with nothing before it signals that the case directly supports the proposition. Putting "see" before a citation indicates that the case strongly supports the proposition, but not directly.

The brief also fails to address another point made by the court in Peruta, that California law does allow the open, loaded carrying of a firearm "by a person who reasonably believes that the person or property of himself or herself or of another is in immediate, grave danger." Cal. Penal Code Sec. 12031(j). You can be sure that California is going to argue that subsection (j) satisfies the Second Amendment right to self-defense. It does not. Police do not carry unloaded weapons and then load them when they believe a loaded weapon will be needed. Plaintiffs will get an opportunity to address this argument in their reply brief, but it might have been more effective to address it in the moving papers.

Good brief. Well done. Good luck.

FABIO GETS GOOSED!!!
01-14-2011, 2:18 PM
I think the brief would have been stronger if it had directly stated, with a citation to Heller, that unloaded firearms are not functional firearms for purposes of the Second Amendment. Briefs routinely cite cases for holdings that are analogous to the propositions for whcih they are cited, and there is a whole custom of how to cite a case to reflect how directly the case supports the proposition. For example, citing a case with nothing before it signals that the case directly supports the proposition. Putting "see" before a citation indicates that the case strongly supports the proposition, but not directly.

Yes. "Functional" should mean loaded in addition to assembled and not bound by a trigger lock. The Supreme Court did not go there but according to the cite it already has.

IGOTDIRT4U
01-14-2011, 2:29 PM
Yes. "Functional" should mean loaded in addition to assembled and not bound by a trigger lock. The Supreme Court did not go there but according to the cite it already has.

I think we are all on the same page for that. It's a small step, but it is a good, building block for future cases once we get past that.

As to "strict" versus "intermediate" the post on this is working the wrong way. Even if it applies for this motion (it is irrelevant at this point) what we want is a loose interpretation of 'restrictions', not a tight one. If we get a bright, hard line on what things are to be restricted, we may find ourselves painted in a corner.

wildhawker
01-14-2011, 2:38 PM
Do you agree that Heller decided the "disassembled or locked" component of the DC law but but did not decide "unloaded"?

Actually, I think it did decide the issue of "unloaded" also, though the opinion provides opportunity for those who would prefer to read it out to do so.

We must also address the District’s requirement (as applied to respondent’s handgun) that firearms in the home be rendered and kept inoperable at all times. This makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional. The District argues that we should interpret this element of the statute to contain an exception for self-defense. See Brief for Petitioners 56–57. But we think that is precluded by the unequivocal text, and by the presence of certain other enumerated exceptions: “Except for law enforcement personnel … , each registrant shall keep any firearm in his possession unloaded and disassembled or bound by a trigger lock or similar device unless such firearm is kept at his place of business, or while being used for lawful recreational purposes within the District of Columbia.” D. C. Code §7–2507.02. The nonexistence of a self-defense exception is also suggested by the D. C. Court of Appeals’ statement that the statute forbids residents to use firearms to stop intruders, see McIntosh v. Washington, 395 A. 2d 744, 755–756 (1978).FN28

In contrast to D.C.'s former law challenged in Heller, California's PC 12050 permit is itself an exception to the provisions of those statutes making the carry of a loaded firearm in public illegal. Note Gura's core argument that "self-defense" is, indeed, "good cause" [to issue an applicant a permit for loaded carry outside the home].

Reinforcing the case for loaded carry is PC 12031's self-defense exemption (j) making it permissible to carry[] "any loaded firearm, under circumstances where it would otherwise be lawful, by a person who reasonably believes that the person or property of himself or herself or of another is in immediate, grave danger and that the carrying of the weapon is necessary for the preservation of that person or property."

If unloaded carry were sufficient for the purpose of self-defense, and the manner the Legislature prefers Californians to carry firearms, why would the Legislature make it explicit that "loaded firearms" were permissible not only under the 12031 exemption, but also for the purposes of licensed firearms pursuant to PC 12050 et al - which, I'll note, also exempts the permit-holder from the penalties of violating the GFSZ defined in PC 626.9? Why even create a system of regulation and licensure (e.g., 12050) if the preferred manner of carry were already expressed in the Legislature's [silent] allowance of unloaded carry and transport (excepting through school zones)?

In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it [bc: a loaded, operable firearm] in the home.

Webster:

im·me·di·ate adj
\i-ˈmē-dē-ət, British often -ˈmē-jit\

occurring, acting, or accomplished without loss or interval of time : instant <an immediate need>

directly touching or concerning a person or thing <the child's immediate world is the classroom>

J.D.Allen
01-14-2011, 2:43 PM
I forsee this case, along with others from this region, going to SCOTUS. We'll just have to see which one gets there first. I don't think we'll get this one decided in our favor at this stage. :mad:

wildhawker
01-14-2011, 2:46 PM
I forsee this case, along with others from this region, going to SCOTUS. We'll just have to see which one gets there first. I don't think we'll get this one decided in our favor at this stage. :mad:

Very possibly not. The faster we can get Gura in front of the USSC, the better off we'll be.

BigDogatPlay
01-14-2011, 2:47 PM
I believe yesterday's introduction of AB 144 to extinguish UOC moots that last argument.

Utterly and completely moots..... assuming eventual passage and the governor's signature of this bill. It largely slams the door on UOC.

Untamed1972
01-14-2011, 2:53 PM
With respect to the functional discussion, the brief cites Heller for the proposition that the Second Amendment protects the right to a functional arm. The footnote does not cite Heller for the proposition that an unloaded firearm is non-functional. It certainly implies (and pointedly so) that an unloaded firearm is not functional. This is an aspect of the brief that I believe could be improved by expressly arguing that an unloaded firearm is not functional for self defense and should not have been hidden in a footnote. It is subject to judicial notice that an unloaded firearm cannot be discharged. Any law prohibiting the loaded carrying of a firearm is a significant infringement on the right of self-defense. I think the brief would have been stronger if it had directly stated, with a citation to Heller, that unloaded firearms are not functional firearms for purposes of the Second Amendment. Briefs routinely cite cases for holdings that are analogous to the propositions for whcih they are cited, and there is a whole custom of how to cite a case to reflect how directly the case supports the proposition. For example, citing a case with nothing before it signals that the case directly supports the proposition. Putting "see" before a citation indicates that the case strongly supports the proposition, but not directly.

The brief also fails to address another point made by the court in Peruta, that California law does allow the open, loaded carrying of a firearm "by a person who reasonably believes that the person or property of himself or herself or of another is in immediate, grave danger." Cal. Penal Code Sec. 12031(j). You can be sure that California is going to argue that subsection (j) satisfies the Second Amendment right to self-defense. It does not. Police do not carry unloaded weapons and then load them when they believe a loaded weapon will be needed. Plaintiffs will get an opportunity to address this argument in their reply brief, but it might have been more effective to address it in the moving papers.

Good brief. Well done. Good luck.

I think that issues was basically addressed in his comments about how crime is random and no one can predict when they might become a victim of a random act of violent crime.

I think such an argument falls apart when considering they DO issue CCWs to some people. If it was possible to know when you might be the victim of a crime then why would one need a CCW permit at all? Why is that a person with "good cause" can't know when trouble is coming, but magically someone w/o a CCW is supposed to be able to? Doesn't such an argument then imply that CCW holders and LEOs must be inept and oblivious to the point that THEY NEED loaded guns, but the rest of us are clarvoyant enough to know when trouble is coming and prepare well in advance?

It's a ridiculous arguement that if addressed head-on can not be supported.

IGOTDIRT4U
01-14-2011, 2:55 PM
Utterly and completely moots..... assuming eventual passage and the governor's signature of this bill. It largely slams the door on UOC.

JB is not that stupid. He knows this upsets the playing field, so unless he is willing to tell his party to go "shall issue", there is a good chance he would not sign such a bill.

wildhawker
01-14-2011, 3:05 PM
Unless it clarifies the manner of carry California prefers...

nobody_special
01-14-2011, 3:29 PM
You can have a "functional" firearm that is loaded, and you can have a "functional" firearm that is unloaded.

That is not clear to me. Can you point to specific language in Heller to this effect?

The supreme court defines "functional" more narrowly than you do; it is disassembly or binding with a trigger lock that renders a firearm "nonfunctional" or "inoperable," not unloading. This is straight from the text of Heller.

Disassembly or locking certainly renders a firearm as non-functional. That does not preclude a firearm from being rendered non-functional by other means, such as being unloaded. Heller's silence on this issue is disconcerting. The DC law did require that the gun be kept unloaded; was this struck along with the lock provision? Or does the license that the Court ordered DC to issue render this moot?

FABIO GETS GOOSED!!!
01-14-2011, 3:37 PM
Actually, I think it did decide the issue of "unloaded" also, though the opinion provides opportunity for those who would prefer to read it out to do so.

This is not even a close call. Neither the Supreme Court nor the DC Circuit Court of Appeals considered Heller to be a challenge to the "unloaded" requirement, this is explicit in both opinions. Heller only goes so far; it does not rule out "self-defense exceptions" that require unloaded storage or transport while permitting the firearm to be loaded and employed when the need arises.

Kukuforguns
01-14-2011, 3:42 PM
It's a ridiculous arguement that if addressed head-on can not be supported.

My point exactly. It is a ridiculous argument. But it was an argument that the court in Peruta adopted. Accordingly, plaintiffs should have preemptively and explicitly addressed that argument.
Originally Posted by FABIO GETS GOOSED!!!
The Supreme Court did not go there but according to the cite it already has.
Again, the MSJ did not cite Heller for the proposition that unloaded is nonfunctional. Read the footnote carefully. Heller was cited for the proposition that the Second Amendment protects the right to a functional firearm. Which accurately portrays one of the holdings of Heller.

wildhawker
01-14-2011, 3:42 PM
Pray tell, how are firearms available for immediate self-defense if they are not in a condition by which they can be used for same?

the_quark
01-14-2011, 3:58 PM
I forsee this case, along with others from this region, going to SCOTUS. We'll just have to see which one gets there first. I don't think we'll get this one decided in our favor at this stage. :mad:

Ironically, a quick loss here can be better for us than a long victory.

FABIO GETS GOOSED!!!
01-14-2011, 4:09 PM
California law permits individuals to openly carry unloaded firearms, subject to warrantless search and seizure. Cal. Penal Code § 12031(e). But the right to arms is a right to functional firearms. Heller, 128 S. Ct. at 2818; contra Peruta v. County of San Diego, __ F. Supp. 2d __, 2010 U.S. Dist. LEXIS 130878 (S.D. Cal. Dec. 10, 2010).

Are you saying the footnote does not equate "functional" with "loaded"? How is Peruta "contra" to Heller i.e. how does it say that the right to arms it not a right to functional firearms? I realize that Heller did say that the right to arms is a right to "functional" firearms so the footnote not technically misquoting Heller, I just don't think this type of "clever" wordplay and suggestion is the optimal way to make the arguments that need to be made.

FABIO GETS GOOSED!!!
01-14-2011, 4:16 PM
Pray tell, how are firearms available for immediate self-defense if they are not in a condition by which they can be used for same?

It is an open question whether an unloaded firearm can nevertheless be "available for immediate self-defense" (your phrase) if it is assembled and not bound by a trigger lock. You're not there yet.

wildhawker
01-14-2011, 4:21 PM
It is an open question whether an unloaded firearm can nevertheless be "available for immediate self-defense" (your phrase) if it is assembled and not bound by a trigger lock. You're not there yet.

Why do police and others carry loaded defensive firearms?

glockwise2000
01-14-2011, 4:25 PM
Can you put probability that this would be judged favorably on our side? If so, what's the number? I am still upset about the Peruta vs SD.

RobG
01-14-2011, 4:32 PM
I forsee this case, along with others from this region, going to SCOTUS. We'll just have to see which one gets there first. I don't think we'll get this one decided in our favor at this stage. :mad:

Very possibly not. The faster we can get Gura in front of the USSC, the better off we'll be.

Since this could mean years down the road, are there alternatives to obtaining a ccw from an authority other than your county sheriff? In other words, approval from a ccw friendly sheriff of a different county.

wildhawker
01-14-2011, 4:40 PM
The likelihood that SCOTUS grants cert for a carry case in the next cycle is high. CA9 will probably resolve carry case(s) within ~12-18 months unless held over for a SCOTUS case.

In CA, the only permit you can get outside your city or county is a 90-day business permit (virtually none exist, if any - our research shows none).

Since this could mean years down the road, are there alternatives to obtaining a ccw from an authority other than your county sheriff? In other words, approval from a ccw friendly sheriff of a different county.

Kukuforguns
01-14-2011, 4:48 PM
Why do police and others carry loaded defensive firearms?
Fabio agrees (as he stated above) that functional should invalidate a requirement that a firearm be unloaded. He's simply stating that the Supreme Court has not held that functional invalidates unloaded requirements.
Originally Posted by FABIO GETS GOOSED!!!
Are you saying the footnote does not equate "functional" with "loaded"? How is Peruta "contra" to Heller i.e. how does it say that the right to arms it not a right to functional firearms? I realize that Heller did say that the right to arms is a right to "functional" firearms so the footnote not technically misquoting Heller, I just don't think this type of "clever" wordplay and suggestion is the optimal way to make the arguments that need to be made.
Which gets us right back to my first post - I think the plaintiffs should have made this point explicitly. It's easy enough to do:
Functional requires the ability to immediately use (Heller);
Unloaded firearms cannot be immediately utilized;
Unloaded is not functional.

There, I did it.

I note however, that the MSJ was not a short document. And while I do not doubt that significant attention was paid to its creation (which shows), I cannot expect plaintiffs' counsel to pay exacting attention to every nuance. Moreover, there may be valid strategic reasons why counsel addressed this issue in a roundabout fashion.

In all events, well done. May the force (or at least the Supreme Court) be with us.

wildhawker
01-14-2011, 5:24 PM
I acknowledge his agreement; I'll also agree that, clearly, district courts will (as a practical matter) require more express language from a higher court on the issue of "operable for the purpose of immediate self-defense" meaning "loaded", or not.

-Brandon

Fabio agrees (as he stated above) that functional should invalidate a requirement that a firearm be unloaded. He's simply stating that the Supreme Court has not held that functional invalidates unloaded requirements.

Which gets us right back to my first post - I think the plaintiffs should have made this point explicitly. It's easy enough to do:
Functional requires the ability to immediately use (Heller);
Unloaded firearms cannot be immediately utilized;
Unloaded is not functional.

There, I did it.

I note however, that the MSJ was not a short document. And while I do not doubt that significant attention was paid to its creation (which shows), I cannot expect plaintiffs' counsel to pay exacting attention to every nuance. Moreover, there may be valid strategic reasons why counsel addressed this issue in a roundabout fashion.

In all events, well done. May the force (or at least the Supreme Court) be with us.

Wrangler John
01-14-2011, 5:56 PM
I have been reading this site for some time. After reading this topic I decided to make a donation. I have spent a lot of time and money on classroom work on subjects from Admin of Justice to Wastewater Biology, and I have learned just as much from this forum as any class. It is illuminating, reminding me that the law is a fascinating exercise, if not in logic, then certainly in nuanced semantics. To be conversant in that language of purpose and intent requires a professionalism on a par with medical science. It is heartening to know that we can directly support these efforts on all our behalves.

hoffmang
01-14-2011, 6:51 PM
FGG,

1. It's an argument bordering on specious to claim that an unloaded firearm is a "'functional firearm,' by which they mean ones that could be 'readily accessible to be used effectively when necessary' for self-defense in the home." See Parker (http://www.gurapossessky.com/news/parker/documents/parkerdc030907.pdf). It will be fun to see if Yolo will make it.

2. Heller specifically voided D.C. Code § 7-2507.02 that required a registered firearm be kept “unloaded and disassembled or bound by trigger lock or similar device, unless such firearm is kept at [a] place of business, or while being used for lawful recreational purposes within the District of Columbia.”

3. Parker held, "[a]s appellants accurately point out, § 7-2507.02 would reduce a pistol to a useless hunk of “metal and springs.” Heller does not appear to challenge the requirement that a gun ordinarily be kept unloaded or even that a trigger lock be attached under some circumstances. He simply contends that he is entitled to the possession of a “functional” firearm to be employed in case of a threat to life or limb."

4. Heller requires an historical analysis. Can anyone point to historical references that shows an unloaded firearm is "bearing arms?" Heller talked approvingly of state supreme court cases that hold exactly the opposite. One state supreme court decision goes so far as to state that even the transport of a firearm to the gunsmith (as opposed to the bearing of it since it is unloaded) is 2A protected activity.

Seeing as Alan was counsel in Heller I think his interpretation of the case is due some deference. Also, some arguments are opening arguments, some are reply arguments. Let's see what arguments Yolo wishes to make before jumping to conclusions.

-Gene

jpigeon
01-14-2011, 7:35 PM
CA right to carry state. Is'nt that an oxymoron??? Well lets hope it wont be for my children:)

FABIO GETS GOOSED!!!
01-14-2011, 8:16 PM
It's an argument bordering on specious to claim that an unloaded firearm is a "'functional firearm,' by which they mean ones that could be 'readily accessible to be used effectively when necessary' for self-defense in the home."

Not when Heller explicitly says that it is disassembly or binding with a trigger lock that renders a firearm nonfunctional or inoperable and goes no further than that. We know that when Heller talks about rendering firearms inoperable it is only talking about disassembly or binding with a trigger lock ("[The DC law] also requires that any lawful firearm in the home be disassembled or bound by a trigger lock at all times, rendering it inoperable.") And when Heller says that the "prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense" violates the second amendment, it means the prohibition against unlocking or assembling the firearm. That is the only sense in which it uses the words "render" and "operable" and the trigger-lock/disassembly requirement is the only component of 7-2507.02 being challenged or considered. Your Parker quote confirms that this was not an "unloaded" challenge and that "functional" means something else i.e. assembled and unlocked. Again it remains to be seen whether unloaded storage or transport laws violate the 2nd amendment.

tabrisnet
01-14-2011, 8:33 PM
Yes, that is the minimum that the court can be held to. Does not mean that one or more circuits might not accept a wider reading.

I agree that there is some value in advocatus diaboli, it helps keep us in line for forming our arguments. But that does not make the devil right.

FABIO GETS GOOSED!!!
01-14-2011, 8:35 PM
In case it was not clear, a requirement that a handgun be kept unloaded at all times with no self-defense exception is clearly unconstitutional. Short of that (unloaded storage or transport with self-defense exception) is an open question.

N6ATF
01-14-2011, 8:39 PM
Magazines are integral parts of self-loading firearms. Forcing them and their ammo to be separate from the body of the firearm means they are disassembled. ex malo bonum

mkasda
01-14-2011, 8:52 PM
Great job guys. I can't wait till this is decided.

FYI on the MSJ- the Davis Police Chief's name is Landy Black, not Lanny.

BillCA
01-14-2011, 10:29 PM
Not when Heller explicitly says that it is disassembly or binding with a trigger lock that renders a firearm nonfunctional or inoperable and goes no further than that. We know that when Heller talks about rendering firearms inoperable it is only talking about disassembly or binding with a trigger lock ("[The DC law] also requires that any lawful firearm in the home be disassembled or bound by a trigger lock at all times, rendering it inoperable.") And when Heller says that the "prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense" violates the second amendment, it means the prohibition against unlocking or assembling the firearm. That is the only sense in which it uses the words "render" and "operable" and the trigger-lock/disassembly requirement is the only component of 7-2507.02 being challenged or considered. Your Parker quote confirms that this was not an "unloaded" challenge and that "functional" means something else i.e. assembled and unlocked. Again it remains to be seen whether unloaded storage or transport laws violate the 2nd amendment.

Don't forget that DC municipal law also required firearms to be unloaded and then either partially disassembled or bound by a trigger lock. Reference to that section referred primarily to the locks and disassembly state, but it also implied the firearm was also unloaded and thus non-functional.

BillCA
01-14-2011, 11:02 PM
Yet another little "gotcha" in CA law is the implementation of Gun-Free Zones around schools and other facilities. Last I heard, there was a bill introduced to expand the distance from 1,000 feet to 1,500 ft (just over 1/4 mile).

The problem here is that these distance laws apply regardless of the type of zoning, street markings or signage. There is no statutory requirement that signs be erected designating and area as part of a GFZ. The CVC says yellow crosswalk markings are to be used within 800 ft of a school, so reliance on these could still allow a violation.

This means you could travel to an unfamiliar part of town and be within the GFZ without any warning whatsoever since there may be no visual indication that there is a school within x,x00 feet.

Sections 626 (etc) only encourages local jurisdictions to erect GFZ signs. The few I've seen have always been within eyeball distance of a school. Two of our local high schools have these only on the block on which the school sits. I've driven the blocks behind and adjacent to the schools and there are no signs, not even within 200 feet of the school's fence line.

While the acts themselves may be a time, place or manner restriction and constitutionally valid, I posit its execution is constitutionally flawed because it can be very difficult (near impossible in some cases) for a citizen to determine he's about to "cross the line" into a prohibited area.

I used Google Earth to highlight schools nearby in my city and drew a 1,000 foot radius circle around each one.¹ In some areas, these circles overlapped and in some, they reached to freeways, expressways and arterial roads well outside the "school zone". In a few cases, your route to travel 8 miles directly would require twice the distance in a "drunken sailor walk" to avoid GFZ's.

While 626.6 currently includes a CCW exception, the legislature could easily repeal that provision if forced to swallow a bitter "shall-issue" pill.

¹ According to legal sources, the distance is measured from the edge of the school property, which may or may not be a fence line or several feet beyond a fence line. This creates even more difficult-to-predict irregular shapes to deal with.

hoffmang
01-14-2011, 11:45 PM
Your Parker quote confirms that this was not an "unloaded" challenge and that "functional" means something else i.e. assembled and unlocked. Again it remains to be seen whether unloaded storage or transport laws violate the 2nd amendment.

Maybe if I type slower?

The law that DC Circuit Court of Appeals struck and the Supreme Court affirmed the striking of a requirement that a firearm be either unloaded and disassembled or bound by a trigger lock. Striking an "and" law invalidates both requirements.

Can you show me the historical reference in 1789 or 1868 that "functional" includes unloaded please?

You're just factually and legally wrong about the holding in Heller. Yours is a non serious point and I am starting to get back into the realm of "as usual."

-Gene

Patrick-2
01-15-2011, 4:40 AM
Holy cow this thread has gone downhill.

Gene is right. As someone who lives out in the DC area and works there regularly, I can assure you they DC Council gave ample time and consideration to the idea that their post-Heller regulations could/should prohibit loaded guns in the home. They considered it for a very brief moment before nearly all involved agreed it was not allowed by Heller.

So if your arguments could not pass the laugh test with the DC Council, it won't pass here. Let Yolo make the case. That would make my day, as it would demonstrate they got nothing.


Trying to tear apart the opening arguments for this MSJ is silly. You dont waste your time and precious page space preemptively fighting specious claims. You all recognize the court limits to the word the size of the brief, right?

The defendants will respond. If they use your arguments they are doomed. You might as well go out and buy a concealed carry holster and get it fitted to you pants.

We have a saying on MDShooters for thinking like this: Battered Gun Owners Syndrome (BGOS). It's not your fault. It's the years of beating we have taken at the hands of the state that have made us cynical, angry and pessimistic at every turn.

I prescribe a 2 step program: enjoy the sun and go to the range. :)

There are not-so subtle differences between this brief and some of those filed on the East Coast. I don't think it is timing related. We are looking at a slightly different approach in each geography. Smart.

yellowfin
01-15-2011, 4:45 AM
How is being left at home any different and ergo unconstitutional an impediment to functionality than disassembly or locks?

Patrick-2
01-15-2011, 6:13 AM
How is being left at home any different and ergo unconstitutional an impediment to functionality than disassembly or locks?

An excellent point.

sighere
01-18-2011, 6:37 PM
Great comments from all. The MSJ is absolute lawyer porn! Love it!

hoffmang
01-18-2011, 6:53 PM
The MSJ is absolute lawyer porn! Love it!

Alan Gura is the John Holmes of Conlaw.

-Gene

sighere
01-18-2011, 6:56 PM
Alan Gura is the John Holmes of Conlaw.

-Gene
That's for sure! But not only that he puts it in plain language too. Something for everyone!

Now I need to find an excuse to find myself in Sacto on the 10th!

FABIO GETS GOOSED!!!
01-18-2011, 7:10 PM
The law that DC Circuit Court of Appeals struck and the Supreme Court affirmed the striking of a requirement that a firearm be either unloaded and disassembled or bound by a trigger lock. Striking an "and" law invalidates both requirements.

So if I interpreted the DC law as requiring the firearm to be (1) unloaded and (2) either disassembled or bound by a trigger lock that would be incorrect?

Think about it this way. Do you trigger lock a loaded firearm? No (not unless you don't follow the instructions). Do you disassemble a loaded firearm? No, you need to unload it first, which is part of the normal operation of a firearm. When a firearm is rendered inoperable by trigger locking or disassembly (which are what Heller explicitly stated render the firearm inoperable), the firearm is necessarily unloaded prior to its being rendered inoperable. Which means that in its unloaded state the firearm is still “operable” or “functional” in Supreme Court parlance.

In light of that it is “specious” to argue that an “operable” or “functional” firearm in must be loaded according to Heller. It never says that and the opinion assumes that the unloaded firearm is "operable" prior it's being rendered "inoperable."

The “prohibition against rendering any lawful firearm in the home operable” that Heller refers to is specifically the "disassembled or bound by a trigger lock" language which the opinion repeatedly affirms is the only language being challenged. When you render the firearm operable again, i.e., by assembling or unlocking the firearm, you have what you started with in the first place, prior to the firearm’s being rendered inoperable, i.e., an unloaded firearm.

Obviously a law that requires a handgun to be unloaded at all times would violate the 2nd amendment. Short of that (unloaded storage or transport, with a self-defense exception) is unsettled.

Can you show me the historical reference in 1789 or 1868 that "functional" includes unloaded please?

Why would I need to when Heller has already decided that unloaded fierarms are "functional"?

nobody_special
01-18-2011, 7:47 PM
Why would I need to when Heller has already decided that unloaded fierarms are "functional"?

Heller says nothing of the sort. At best (for your argument) it is silent on the matter.

FABIO GETS GOOSED!!!
01-18-2011, 7:51 PM
Heller says nothing of the sort. At best (for your argument) it is silent on the matter.

If disassembling or trigger locking an unloaded fierarm renders it inoperable, that can only mean one thing, i.e., the unloaded firearm was operable before it was disassembled or trigger locked. Do you trigger lock loaded firearms? I don't. And if Heller were silent on the matter, it is no more or less silent on the "functional firearms must be loaded" argument. Either way the footnote is screwed up. There is a good argument there which would be more effective IMO if it were stated directly.

hoffmang
01-18-2011, 8:00 PM
So if I interpreted the DC law as requiring the firearm to be (1) unloaded and (2) either disassembled or bound by a trigger lock that would be incorrect?

Yes.

Your interpretation of the old DC law is incorrect. It was (1) unloaded and disassembled, or (2) loaded or unloaded but bound by a trigger lock.

Read the code again. "Functional" means loaded and not bound by a trigger lock. For evidence that your interpretation is incorrect see the Chief Justice's line of inquiry towards the end of oral argument in Heller which is but a google away.

-Gene

FABIO GETS GOOSED!!!
01-18-2011, 8:13 PM
Yes.

Your interpretation of the old DC law is incorrect. It was (1) unloaded and disassembled, or (2) loaded or unloaded but bound by a trigger lock.

If I'm wrong, then I suppose Gura is wrong too:

[A]ll lawfully registered arms must be kept unloaded and either disassembled or bound by a trigger lock, without exception for otherwise lawful self-defense in the home.

If it were not already abundantly clear from your prior quote from the Court of Appeals opinion that the court was considering functionality in terms of the disassembly or trigger-locking requirement only, the court's order (http://www.gurapossessky.com/news/parker/documents/order_092507.pdf) denying Heller's motion to lift the stay of mandate puts the nail in the coffin.

Read the code again. "Functional" means loaded and not bound by a trigger lock. For evidence that your interpretation is incorrect see the Chief Justice's line of inquiry towards the end of oral argument in Heller which is but a google away.

The line of inquiry is equivocal and in any event the actual opinion is carefully limited to the challenged provision, i.e., the trigger lock/disassembly requirement.

command_liner
01-18-2011, 8:36 PM
Two ideas...
IIRC John Holmes was killed by a certain type of exposure to occupational hazard.
We do not want Alan to have the same sort of problem.

I am still waiting for the federal jury duty summons issue to be litigated. If you
get a jury summons for the federal jury, but the federal courthouse is within a
CA GFSZ, do you need to have to surrender your fundamental, enumerated civil
rights to fullfil your jury summons? Why is that, when local police, a much newer
idea than armed federal jurors, are exempt?

Patrick-2
01-19-2011, 3:53 AM
As someone who was here during Heller and all the follow on mess - and is here now - I can assure you are incorrect. I promise the Supreme Court, the DC City Council and Alan Gura did not all miss a loophole that you alone suddenly caught.

Functional firearm means ready for action. Not unloaded. Respectfully, stop thinking anything in California has any relevance to the real world.

And if your mythical loophole and Heller failure had any possibility of existence, you can bet everything you have that the DC Council and Chicago would have tried it.

But when the council reviewed the rules they had to work under, they clearly acknowledged that functional firearms meant a gun with zero encumbrances. That included so-called safety systems that require new technology to operate.

And the reason the DC Council was reviewing the rules? Because they wanted to craft as horrible a set of regulations that they could, while staying on the right side of Heller. They still failed to stay legal, but even they did not fail anywhere as bad as suggesting a firearm is functional despite not having any ammunition.

Chicago is another city who is not afraid to push the rules, and they also never seriously considered what you suggest.

Happy yet? :)

If I'm wrong, then I suppose Gura is wrong too:

If it were not already abundantly clear from your prior quote from the Court of Appeals opinion that the court was considering functionality in terms of the disassembly or trigger-locking requirement only, the court's order (http://www.gurapossessky.com/news/parker/documents/order_092507.pdf) denying Heller's motion to lift the stay of mandate puts the nail in the coffin.



The line of inquiry is equivocal and in any event the actual opinion is carefully limited to the challenged provision, i.e., the trigger lock/disassembly requirement.

J.D.Allen
01-19-2011, 6:41 AM
While 626.6 currently includes a CCW exception, the legislature could easily repeal that provision if forced to swallow a bitter "shall-issue" pill.


This is not likely. Remember any state level restrictions on CCW's mean that ALL CCW holders must comply with them. So even all the HDSA members, friends of the sheriff, and donators to sheriff's campaigns would also be bound by them. Not likely to happen. I think that the most that could happen along these lines would be individual sheriffs trying to put those restrictions on individual permits. But I think the sunshine initiative is working on things like that no?

hoffmang
01-19-2011, 7:33 PM
If it were not already abundantly clear from your prior quote from the Court of Appeals opinion that the court was considering functionality in terms of the disassembly or trigger-locking requirement only, the court's order (http://www.gurapossessky.com/news/parker/documents/order_092507.pdf) denying Heller's motion to lift the stay of mandate puts the nail in the coffin.

You confuse a standing argument with an argument on the merits. Read your link again.

You ignored your error in statutory interpretation by compounding it with an error related to standing.

I am reminded again and again why you wish to keep your anonymity...

-Gene

Purple K
01-19-2011, 7:42 PM
Fabio Gets Goosed = Paul Helmke

FABIO GETS GOOSED!!!
01-19-2011, 8:10 PM
You confuse a standing argument with an argument on the merits. Read your link again.

The order is entirely consistent with the court of appeals ruling on the merits, i.e., it is the disassembly or the trigger locking that makes the firearm "useless for self-defense." That was the extent of its ruling as far as the handgun plaintiff was concerned.

You ignored your error in statutory interpretation by compounding it with an error related to standing.

You realize that my "statutory interpretation" is the interpretation that Gura argued in the case (I lifted it from one of his briefs)? But according to you it's "incorrect" lol.

I am reminded again and again why you wish to keep your anonymity...

We're at that place again where dig your heels in, start making personal attacks, won't concede what can't reasonably be refuted (i.e., Gura interpreted the DC law to require (1) unloaded and (2) either disassembled or trigger-locked, not "(1) unloaded and disassembled, or (2) loaded or unloaded but bound by a trigger lock" which was what you and Dellinger argue lol) and have to have the last word. So "I leave you to it."

CenterX
01-19-2011, 8:35 PM
WOW - a lot of discourse on speculation and misunderstanding - I'm all for patiently awaiting the court ruling next month.

Jonl
01-19-2011, 8:46 PM
I have a good feeling about this..:D Very exciting.

El Gato
01-23-2011, 8:05 PM
Fabio Gets Goosed = Paul Helmke

Well... that does explain things now doesn't it...

krucam
02-11-2011, 1:31 PM
The visiting team was busy yesterday....from Pacer:
02/10/2011 58 MOTION for SUMMARY JUDGMENT by County of Yolo, Ed Prieto. Motion Hearing set for 3/10/2011 at 02:00 PM in Courtroom 7 (MCE) before Judge Morrison C. England Jr.. (Sanders, Serena) (Entered: 02/10/2011)

02/10/2011 59 MEMORANDUM by County of Yolo, Ed Prieto in SUPPORT of 58 MOTION for SUMMARY JUDGMENT. (Attachments: # 1 Appendix)(Sanders, Serena) (Entered: 02/10/2011)

02/10/2011 60 DECLARATION of Undersheriff Thomas Lopez in SUPPORT OF 58 MOTION for SUMMARY JUDGMENT. (Attachments: # 1 Exhibit 1)(Sanders, Serena) (Entered: 02/10/2011)

02/10/2011 61 STATEMENT of Undisputed Facts by Defendants County of Yolo, Ed Prieto re 58 MOTION for SUMMARY JUDGMENT. (Sanders, Serena) (Entered: 02/10/2011)

02/10/2011 62 RESPONSE by County of Yolo, Ed Prieto to 54 AMENDED MOTION for SUMMARY JUDGMENT amending 52 MOTION for SUMMARY JUDGMENTAMENDED MOTION for SUMMARY JUDGMENT amending 52 MOTION for SUMMARY JUDGMENTAMENDED MOTION for SUMMARY JUDGMENT amending 52 MOTION for SUMMARY JUDGMENT. (Sanders, Serena) (Entered: 02/10/2011)

02/10/2011 63 REQUEST for JUDICIAL NOTICE by County of Yolo, Ed Prieto in re 58 Motion for Summary Judgment, 61 Statement, 59 Memorandum in Support of Motion. (Attachments: # 1 Exhibit 1)(Sanders, Serena) (Entered: 02/10/2011)

02/10/2011 64 APPLICATION for APPLICATION OF BRADY CENTER TO PREVENT GUN VIOLENCE TO FILE BRIEF AS AMICUS CURIAE by Brady Center to Prevent Gun Violence. Attorney Dixon, Megan added. (Dixon, Megan) (Entered: 02/10/2011)

The Brady's are knocking as well...

The big item is 59 Memorandum in Support of 58 Defendant MSJ IRT to Plaintiff MSJ and is the only one I pulled.

MSJ IRT MSJ #59 (http://www.archive.org/download/gov.uscourts.caed.191626/gov.uscourts.caed.191626.59.0.pdf)

Summary of their arguments:
A. THE RIGHT TO CARRY CONCEALED WEAPONS IS NOT WITHIN THE AMBIT OF SECOND AMENDMENT PROTECTIONS..............6
B. CALIFORNIA’S STATUTORY FRAMEWORK DOES NOT CREATE AN ABSOLUTE BAN ON CARRYING FIREARMS THAT COULD ARGUABLY BRING SHERIFF PRIETO’S POLICY INTO THE PURVIEW OF THE SECOND AMENDMENT.......11
C. THE PLAINTIFFS’ CHALLENGE FAILS BECAUSE EVEN IF THE SECOND AMENDMENT APPLIES, SHERIFF PRIETO’S GOOD CAUSE POLICY MEETS THE INTERMEDIATE STANDARD OF SCRUTINY......14
D. PLAINTIFFS’ FACIAL CHALLENGE TO PENAL CODE SECTION 12050 NECESSARILY FAILS......17
E. SHERIFF PRIETO’S CONCEALED WEAPON PERMITTING POLICY DOES NOT VIOLATE PLAINTIFFS’ RIGHT TO EQUAL PROTECTION...............19
Docket (http://ia700408.us.archive.org/4/items/gov.uscourts.caed.191626/gov.uscourts.caed.191626.docket.html)

BigDogatPlay
02-11-2011, 1:47 PM
Like a sore thumb on page 1.....

Nothing in California’s law prohibits Plaintiffs from openly carrying an unloaded weapon with ammunition close at hand and loading that weapon in an emergency situation where the need for self-defense arises

Really? Apparently the GFSZ issue and open carry, among other things, isn't on their radar.

N6ATF
02-11-2011, 1:59 PM
It is, they're just BSing their arses off to get away with their victim disarmament.

sighere
02-11-2011, 2:04 PM
Lots of stuff to digest. Zimrig's filing is most likely a carbon copy of all of his amici briefs. The usual harping about how Heller was about "in the home". Interesting, when the opinion went into a long discussion about what "bear" means. Also, a very misleading about "presumably constitutional" laws against concealed carry. In Heller Scalia talks about laws like misfits/criminals/courthouses. These guys are trying to lump "any" law that exists into the "presumably constitutional" category. Lots of reading to do, but that's my quick take on it.

Window_Seat
02-11-2011, 2:07 PM
The visiting team was busy yesterday....from Pacer:


The Brady's are knocking as well...

The big item is 59 Memorandum in Support of 58 Defendant MSJ IRT to Plaintiff MSJ and is the only one I pulled.

MSJ IRT MSJ #59 (http://www.archive.org/download/gov.uscourts.caed.191626/gov.uscourts.caed.191626.59.0.pdf)

Summary of their arguments:

Docket (http://ia700408.us.archive.org/4/items/gov.uscourts.caed.191626/gov.uscourts.caed.191626.docket.html)

Link doesn't work, getting this:

We’re sorry, the page you have requested is not available.

The archive page only shows what was updated on 02/02.

Erik.

dantodd
02-11-2011, 2:10 PM
Even if you apply only intermediate scrutiny GC has to fall. You cannot demand one have an elevated necessity to exercise an enumerated right. "Good Moral Character" might pass intermediate at the district level but not once SCOTUS sees it. (at least the current make up)

Sent via tapatalk on my Samsung Vibrant.

krucam
02-11-2011, 2:11 PM
Link doesn't work, getting this:



The archive page only shows what was updated on 02/02.

Erik.

Sorry...I had the pdf, I grabbed the hyperlink from PACER/RECAP once available and replaced the pdf with the link...

See my 2:31 post #124 again for the pdf. It'll go away again AFTER I've verified the link.

pitchbaby
02-11-2011, 2:22 PM
It is, they're just BSing their arses off to get away with their victim disarmament.

We all know they would gladly go after open carry if they succeeded here.

Maestro Pistolero
02-11-2011, 2:37 PM
According to Heller a firearm is "functional," without reference to whether it is loaded or unloaded, if it is assembled and not bound by a trigger lock.The court said the right was to a functional firearm for "immediate use for self defense". This can only mean loaded.

Window_Seat
02-11-2011, 5:07 PM
Sorry...I had the pdf, I grabbed the hyperlink from PACER/RECAP once available and replaced the pdf with the link...

See my 2:31 post #124 again for the pdf. It'll go away again AFTER I've verified the link.

Thanks!

Erik.

gun toting monkeyboy
02-11-2011, 5:18 PM
So what is the Clif notes version of what happened?

wildhawker
02-11-2011, 5:40 PM
So what is the Clif notes version of what happened?

A totally predictable (and predictably milquetoast) MSJ by defendants.

yellowfin
02-11-2011, 5:45 PM
The court said the right was to a functional firearm for "immediate use for self defense". This can only mean loaded.Also it can only mean carried with you wherever you go. What good is it for self defense if it's not where and when you need it? How is that even possible to argue against?

PsychGuy274
02-11-2011, 5:50 PM
Lots of stuff to digest. Zimrig's filing is most likely a carbon copy of all of his amici briefs. The usual harping about how Heller was about "in the home". Interesting, when the opinion went into a long discussion about what "bear" means. Also, a very misleading about "presumably constitutional" laws against concealed carry. In Heller Scalia talks about laws like misfits/criminals/courthouses. These guys are trying to lump "any" law that exists into the "presumably constitutional" category. Lots of reading to do, but that's my quick take on it.

Maybe Prieto should have read THIS (http://www.examiner.com/la-in-los-angeles/such-as-does-not-mean-only-d-c-v-heller-gun-rights-decision)

wildhawker
02-11-2011, 6:02 PM
Maybe Prieto should have read THIS (http://www.examiner.com/la-in-los-angeles/such-as-does-not-mean-only-d-c-v-heller-gun-rights-decision)

With all due respect, I wouldn't cite that author as any sort of authority on the laws or subject matter in question.

Fjold
02-11-2011, 6:23 PM
So, I'm confused. Were there oral arguments yesterday?

wildhawker
02-11-2011, 6:35 PM
Orals were resched to March 10.

Glock22Fan
02-11-2011, 6:50 PM
Orals were resched to March 10.

Who was it said "Justice delayed is justice denied?"

As someone who, relative to the youngsters on this board, hasn't got much time left to enjoy the supposed eventual fruits of everyone's labor, I hate any delays.

OleCuss
02-11-2011, 7:24 PM
I didn't go too far into what they had to say, but I'm kinda curious as to whether anyone other than Brandon could argue the case any better for the defense?

They've been handed what looks like a losing case to me and it looks to me like they're giving the court the best arguments they can to give the court an excuse to rule in a manner which I consider inconsistent with my understanding of the relevant law.

And no, I'm not even close to a lawyer so maybe I'm reading it wrong - but I think that in this case they're doing a fairly competent job.

I remember Ezell and how the court went along with arguments which I thought were even weaker than what these guys are trying.

I think they hope that all they have to do is to give the judge an excuse to rule against us.

PsychGuy274
02-11-2011, 7:38 PM
With all due respect, I wouldn't cite that author as any sort of authority on the laws or subject matter in question.

Neither would I, but it's a good article IMO.

Shiboleth
02-11-2011, 8:24 PM
So what is the Clif notes version of what happened?
The key points...

Defense asserts that historically upheld bans on concealed carry restrictions did not hinge on availability of open carry.

Defense asserts that the self defense clause of 12031 allowing loaded carry for defense, satisfies the self-defense aspect of the 2A.

Defense asserts that people with good cause according to Yolo sheriff standards, are not situated similarly to those without, and as such does not trigger equal protection violations.

cabinetguy
02-14-2011, 11:58 AM
this just made me a calgun contributor. keep up the good work

Big Ben
02-14-2011, 12:51 PM
I was under the impression that this case was being continued pending resolution of both McDonald and Nordyke. If Nordyke is still outstanding, why all the movement now?

Not that I'm complaining, just trying to understand.

N6ATF
02-14-2011, 1:06 PM
It isn't.

dantodd
02-14-2011, 1:08 PM
I was under the impression that this case was being continued pending resolution of both McDonald and Nordyke. If Nordyke is still outstanding, why all the movement now?

Not that I'm complaining, just trying to understand.

It is Peña that is awaiting Nordyke.

Purple K
02-27-2011, 7:29 AM
If there is an appeal of the Nordyke decision, will the Peña case be stayed during the appeal?

dantodd
02-27-2011, 7:45 AM
If there is an appeal of the Nordyke decision, will the Peña case be stayed during the appeal?

Probably not. Once Nordyke opinion us released Peña starts back up. Even if Nordyke is later pulled, which is not automatic in appeals, it won't stop Peña again unless the judge rules such. And even if Nordyke is , once again, depublished it is not quite the lynchpin it was first time around.

Window_Seat
02-27-2011, 8:48 AM
Who's going to the Richards orals? I'd like to go, but won't if it's not appropriate.

Erik.

Purple K
02-27-2011, 9:13 AM
I'll likely go if all is well at work.

wildhawker
02-27-2011, 9:32 AM
I'm going to the orals as well.

Window_Seat
02-27-2011, 11:54 AM
GOOD! :thumbsup:

I'm going, and will drive from Newark.

ETA: 10 DAYS & A WAKE-UP (I think)!!!!!!!

Erik.

Window_Seat
02-27-2011, 2:09 PM
I just looked at the map of the courthouse and noticed that AMTRAK stops right down the street from the courthouse building. It's about 760' in a straight line from the station to the courthouse. I'm seriously considering taking AMTRAK. It might be much cheaper than driving and paying for the gas, which would cost me around 50.00 at least. AMTRAK from Fremont would cost me just under $28.00. No worries about parking, tickets, gas, traffic, etc...

Amtrak SAC (http://www.amtrak.com/servlet/Satellite?SnippetName=IBLegacy&pagename=am/AM_Snippet_C/SnippetWrapper&code=SAC)

AMTRAK Station (SAC)
401 I Street
Sacramento, CA95814

CAED
501 I Street, Suite. 4-200
Sacramento, CA 95814

87620

N6ATF
02-27-2011, 2:45 PM
$71 round trip and 11 hrs, 20 mins from San Diego to SAC.

Window_Seat
02-27-2011, 3:48 PM
My AMTRAK reservation is made. See you all there. :thumbsup:

Erik.

dantodd
02-27-2011, 4:09 PM
Wish I could go, I love orals.

Purple K
02-27-2011, 5:50 PM
I love the double entendre

hoffmang
02-27-2011, 8:14 PM
Just a word of warning that the courtroom gallery is kind of small.

-Gene

BillCA
02-28-2011, 9:37 AM
Probably not. Once Nordyke opinion us released Peña starts back up. Even if Nordyke is later pulled, which is not automatic in appeals, it won't stop Peña again unless the judge rules such. And even if Nordyke is , once again, depublished it is not quite the lynchpin it was first time around.
An appeal is likely from either side. The 9th Circus Circuit is on of the most overturned circuits in the country. SCOTUS has recently spanked the 9th Circuit (http://www.foxnews.com/politics/2011/02/02/hint-supreme-court-rejects-rulings-row-west-coast-bench/), five cases in a row (a record even for the 9th).

With all the time and treasure involved in Nordyke on both sides, I would expect it to be appealed to SCOTUS. Alameda County has spent millions on the case and is likely to appeal an unfavorable ruling. The Nordykes, SAF, CCRKBA, et al will appeal if the ruling is unfavorable too. Each side is likely to believe the 9th got it wrong if it goes against them.

Manic Moran
02-28-2011, 2:29 PM
The 9th Circus Circuit is on of the most overturned circuits in the country

Did you not actually read the article that you linked to?

Judicial statistics kept by SCOTUSblog show that 9th Circuit decisions actually have a better-than-average showing before the Supreme Court. In the last session, 27 percent of its rulings were affirmed, while 60 percent were reversed. For all circuits, the reversal rate was 71 percent.

NTM

craneman
02-28-2011, 4:33 PM
Yea , but still you gotta admit 60% reversal rate is pretty bad. ANYBODY else performs with that miserable rate of failure, and they wouldn't be employed long. Good for them that its an appointed postition. If my rate of interpeting the law correctly was that bad, I think I would find another way to make a living. I would be too embarassed to face anyone that knew me.

stix213
02-28-2011, 4:41 PM
Yea , but still you gotta admit 60% reversal rate is pretty bad. ANYBODY else performs with that miserable rate of failure, and they wouldn't be employed long. Good for them that its an appointed postition. If my rate of interpeting the law correctly was that bad, I think I would find another way to make a living. I would be too embarassed to face anyone that knew me.

In fairness, SCOTUS doesn't take up cases that aren't controversial. Almost all cases appealed to SCOTUS are ignored and are let stand, even from the 9th. That 60% is just the percentage of cases that peak their interest enough to take up in the first place, which are more likely to be cases by nature that would be overturned.

BillCA
03-01-2011, 12:05 PM
Did you not actually read the article that you linked to?


Yes, I did. One can ignore the media-provided "qualifier" because the 9th Circuit has been overturned on both controversial cases as well as those that should have been routine, but were decided wrongly. The 9th has a long history of being wrong on major controversies.

If your boss was correcting 60% of your decisions only when someone complained, he'd expect you to start making better decisions in the future or he'd replace you with someone who could.

The recent spanking by SCOTUS, with the sharply worded decisions, is notice to the 9th that they'd better pay more attention to the legal principles of their work. Being overturned because you shouldn't have heard a case in the first place is a serious error. SCOTUS can (and has) cause circuit judges to step down if they find too many competency issues.

BusBoy
03-01-2011, 12:23 PM
The recent spanking by SCOTUS, with the sharply worded decisions, is notice to the 9th that they'd better pay more attention to the legal principles of their work. Being overturned because you shouldn't have heard a case in the first place is a serious error. SCOTUS can (and has) cause circuit judges to step down if they find too many competency issues.

Gotta cite?? Not that I dont believe you, Thats gotta be damn interesting reading.

Manic Moran
03-01-2011, 2:15 PM
Yes, I did. One can ignore the media-provided "qualifier" because the 9th Circuit has been overturned on both controversial cases as well as those that should have been routine, but were decided wrongly. The 9th has a long history of being wrong on major controversies.

If your boss was correcting 60% of your decisions only when someone complained, he'd expect you to start making better decisions in the future or he'd replace you with someone who could.

There is a difference between saying that 'The 9th is one of the most overturned courts' and saying 'the 9th has an unacceptable overturn rate'.

Stix's post addresses the latter case. There are some 15,000 cases a year which are appealed to the 9th, about 1,000 of which are settled via mediation. SCOTUS reversed 31 from the 9th last year which, doing the maths, is 0.2%. That doesn't seem too bad. If you still have issue with the numbers, however, I might ask how you would plan to reform the entire US legal system, since the 9th seems to be doing better than average.

Which brings us to the 'one of the most overturned courts' comment. That implies comparison. We already know that it's doing better than the average. If you want a really overturned court, how about the 6th, which hasn't had a ruling affirmed by SCOTUS since 2008?

From last week which goes into the whole theory:
http://www.usatoday.com/news/nation/2011-02-20-circuit-court_N.htm

NTM

BillCA
03-02-2011, 2:39 PM
Gotta cite?? Not that I dont believe you, Thats gotta be damn interesting reading.
I don't have a cite to the specific cases, but you can read more at these sites:

FoxNews (http://www.foxnews.com/politics/2011/02/02/hint-supreme-court-rejects-rulings-row-west-coast-bench/):

LA Times (http://articles.latimes.com/2009/jun/29/local/me-9th-scotus29):

As to SCOTUS and judges, IIRC there is a method of the Justices to remove a lower court judge. I just can't find it at the moment. The justices themselves don't preside, but a panel of other circuit judges do.


There is a difference between saying that 'The 9th is one of the most overturned courts' and saying 'the 9th has an unacceptable overturn rate'.

The 9th has long been known (for 20 years at least) as the most overturned circuit in the nation. Read the above LA Times article.


But the 9th Circuit's record this term, with 94% of its cases reversed at least in part, extends a long-running trend of being disproportionately overturned. The 9th Circuit -- the only one in which a majority of judges were appointed by Democratic presidents -- has had a larger-than-average share of its cases overturned in eight of the last 10 years.

I think your math is faulty. Taking the percentage of all cases heard by the 9th to compare against those overturned by SCOTUS sets up a false number. More telling would be the number appealed to SCOTUS from the 9th against those accepted by SCOTUS to be heard. Those numbers would indicate how many cases the high court thought were important enough to be reviewed. Compare the overturn rate to the total appeals gives a more meaningful number.

hoffmang
03-02-2011, 8:49 PM
As to SCOTUS and judges, IIRC there is a method of the Justices to remove a lower court judge. I just can't find it at the moment. The justices themselves don't preside, but a panel of other circuit judges do.

Not really. The Judicial counsel can refer judges to the House for impeachment. There have only been a handful of impeached judges but one happened pretty recently: http://en.wikipedia.org/wiki/Thomas_Porteous

You have to be pretty bad to get tossed off the Federal Bench...

-Gene

BusBoy
03-02-2011, 9:17 PM
I don't have a cite to the specific cases, but you can read more at these sites:

FoxNews (http://www.foxnews.com/politics/2011/02/02/hint-supreme-court-rejects-rulings-row-west-coast-bench/):

LA Times (http://articles.latimes.com/2009/jun/29/local/me-9th-scotus29):

As to SCOTUS and judges, IIRC there is a method of the Justices to remove a lower court judge. I just can't find it at the moment. The justices themselves don't preside, but a panel of other circuit judges do.



Thanks! Perfect timing, the baby is being stubborn about sleeping so it gives me something to read on my iphone till she passes out! :D

Manic Moran
03-02-2011, 9:48 PM
The 9th has long been known (for 20 years at least) as the most overturned circuit in the nation. Read the above LA Times article.

Yet the Fox News and USA Today articles linked earlier are saying that the court seems to be having a better than average success rate. Obviously the various organisations are using different methodology or samples, assuming that all are correct. Unless you want to suggest that one media organisation is more accurate than another. We'd need to know what the various methodologies are.

More telling would be the number appealed to SCOTUS from the 9th against those accepted by SCOTUS to be heard. Those numbers would indicate how many cases the high court thought were important enough to be reviewed. Compare the overturn rate to the total appeals gives a more meaningful number.

It depends on what I meant to convey. I understand what you're saying, and to a point I agree with you. But even at that, as your LA Times article points out, the demographic diversity within the 9th automatically also means that there is going to be a more interesting selection of case types for SCOTUS to pick from.

NTM

BillCA
03-03-2011, 10:39 AM
Yet the Fox News and USA Today articles linked earlier are saying that the court seems to be having a better than average success rate. Obviously the various organisations are using different methodology or samples, assuming that all are correct. Unless you want to suggest that one media organisation is more accurate than another. We'd need to know what the various methodologies are.
The statistics may indicate their record is "better than average" but the devil is in the details. A good portion of the SCOTUS reversals in other districts are due to lower courts following old SCOTUS precedents or disagreements over the effect of procedural errors by trial courts. The 9th's reversals seem to be due to "over-reaching" and misapplication of principles. No, I can't cite specific cases as I don't keep track of such things.


It depends on what I meant to convey. I understand what you're saying, and to a point I agree with you. But even at that, as your LA Times article points out, the demographic diversity within the 9th automatically also means that there is going to be a more interesting selection of case types for SCOTUS to pick from.

AFAIK, there has been a long running debate in the judiciary to split the 9th circuit up into two circuits. I understand one of the problems is getting Congress to fund such a split. It currently holds sway over Alaska, Arizona, California, Hawaii, Idaho, Oregon, Montana, Nevada plus Guam and the Northern Mariana Islands. Another problem seems to be where the lines get drawn. Arizona, Alaska, Montana Nevada and Idaho are politically (and legally) significantly different than California, Washington and Oregon.

Be that as it may, I can recall the 9th Circuit being "spanked" by SCOTUS as far back as 1979 for decisions that were, bluntly, just wrong.

stix213
03-03-2011, 11:08 AM
We're on track for a decision in this case around September right?

Blackhawk556
03-03-2011, 11:14 AM
^^^^Where are you getting September from?

stix213
03-03-2011, 11:49 AM
^^^^Where are you getting September from?

Don't we have oral arguments this month? Then after all the back and forth it seems decisions take at least 3 months, plus various delays, so I put it at 5 to 6 months out. I hope I'm way off, just wondering what the ETA is basically.

wildhawker
03-03-2011, 12:24 PM
It's reasonable to think we should see a decision sometime in the range of June-September. Slightly earlier is possible but far less likely.

Paladin
03-03-2011, 3:00 PM
It's reasonable to think we should see a decision sometime in the range of June-September. Slightly earlier is possible but far less likely.Time for another sandwich and another nap . . . .

N6ATF
03-03-2011, 3:04 PM
Just freaking amber us... :rolleyes:

Gray Peterson
03-03-2011, 3:23 PM
Just freaking amber us... :rolleyes:

Fringe fan! :D

N6ATF
03-03-2011, 3:51 PM
Yep, after watching the first couple episodes and quitting, I really got into it when I heard on this film/TV/pop culture podcast (http://itunes.apple.com/WebObjects/MZStore.woa/wa/viewPodcast?id=317253141) that there was alternate universe travel - :wub:. Their reviews and "Best of Walter Bishop" drops kept me advised pretty well in the meantime, but I'll still watch the episodes from the beginning if my brother gets gifted the DVD set.

BillCA
03-04-2011, 9:06 AM
Don't we have oral arguments this month? Then after all the back and forth it seems decisions take at least 3 months, plus various delays, so I put it at 5 to 6 months out. I hope I'm way off, just wondering what the ETA is basically.
AFAIK, the courts usually try to get their decisions out within 3 months of the orals. SCOTUS finishes issuing their rulings in June and spends the summer on administrative work, reviewing cases for the next session and vacations. I'd presume the circuit courts have a similar schedule.

BillCA
03-04-2011, 9:12 AM
Yep, after watching the first couple episodes and quitting, I really got into it when I heard on this film/TV/pop culture podcast (http://itunes.apple.com/WebObjects/MZStore.woa/wa/viewPodcast?id=317253141) that there was alternate universe travel - :wub:. Their reviews and "Best of Walter Bishop" drops kept me advised pretty well in the meantime, but I'll still watch the episodes from the beginning if my brother gets gifted the DVD set.
Fringe is currently the best show on TV. Every show just gets better and adds to the mystery of what's going on. Think X-Files meets Twilight Zone.

It's worth renting the DVD's and starting at the beginning. If you do that, you'll certainly be hooked. :)

hoffmang
03-05-2011, 9:43 AM
Yolo replied. This link (http://www.archive.org/download/gov.uscourts.caed.191626/gov.uscourts.caed.191626.67.0.pdf) at archive.org should work but... A temporary version is here (http://www.hoffmang.com/temp/gov.uscourts.caed.191626.67.0.pdf).

Oral arguments are Thursday 3/10/11.

-Gene

Gray Peterson
03-05-2011, 9:53 AM
Yolo replied. This link (http://www.archive.org/download/gov.uscourts.caed.191626/gov.uscourts.caed.191626.67.0.pdf) at archive.org should work but... A temporary version is here (http://www.hoffmang.com/temp/gov.uscourts.caed.191626.67.0.pdf).

Oral arguments are Thursday 3/10/11.

-Gene

Wow....just wow....

hoffmang
03-05-2011, 9:57 AM
Wow....just wow....

If Yolo thinks they can issue a non concealed carry permit, we'd take it! Too bad they don't realize it's not us requiring the firearm be concealed...

Maybe Sheriff Preito could force about 3000 people to leave the county so he can issue open carry permits instead... (Yolo county population is 202,953.)

-Gene

Dirtbozz
03-05-2011, 10:00 AM
Yolo replied. This link (http://www.archive.org/download/gov.uscourts.caed.191626/gov.uscourts.caed.191626.67.0.pdf) at archive.org should work but... A temporary version is here (http://www.hoffmang.com/temp/gov.uscourts.caed.191626.67.0.pdf).

Oral arguments are Thursday 3/10/11.

-Gene

Will the transcripts of these orals be posted on CalGuns? If not, how can they be accessed? Would a video camera be allowed in the court?

Window_Seat
03-05-2011, 10:09 AM
An individual carrying a concealed weapon, even lawfully, obviously poses a greater risk of physical danger to those around him than a teenager holding a “Bong Hits 4 Jesus” sign. See Morse v. Frederick, 551 U.S. 393 (2007). The two rights are too dissimilar for analogy.

(edited statement)

The "TWO RIGHTS"... Hmmmm... Why bring it up... By doing so, they are now acknowledging that "An individual carrying a concealed weapon, even lawfully" is a right. :laugh:

Erik.

hoffmang
03-05-2011, 10:52 AM
Will the transcripts of these orals be posted on CalGuns? If not, how can they be accessed? Would a video camera be allowed in the court?

There will be no transcripts and cameras are not allowed in Federal District Courts. You have to be there if you want to hear/see it.

-Gene

Purple K
03-05-2011, 11:55 AM
A non-concealled permit. How truly sad it is when those entrusted with enforcement of the law, don't even know the law.

Big Ben
03-05-2011, 1:11 PM
Nothing but solid, ironclad arguments here .... (is there a special font I can use for sarcasm?)

tabrisnet
03-05-2011, 1:16 PM
The Obvious one would be Comic Sans

But you just can't beat the IMPACT of Impact

gucci pilot
03-05-2011, 1:39 PM
"Bong hits 4 Jesus"? I can't believe I live in this damn county.

safewaysecurity
03-05-2011, 1:43 PM
Holy Moly... did they honestly just cite cases that were reversed and remanded and made moot after McDonald? The funny thing is that I think the people at the Brady Bunch look at responses like this and nod their heads and say " MY GOD PURE GENIUS " lol. That was probably among the worst responses I have ever seen. I feel like they don't even know what they are talking about and are just throwing out things without even giving proper justification. I also like how they are using the "age" of certain cited cases as a way to sort of diminish their relevance and importance. They probably mentioned the age of those 4 cases about 3-4 times. Basically saying yes thy are right... BUT IT'S OLD!!! Lol as if the Constitution should be thrown out because it's even older than those cases.

But guys I hate to agree with them but:
An individual carrying a concealed weapon,
even lawfully, obviously poses a greater risk of physical danger to those around him than a
teenager holding a “Bong Hits 4 Jesus” sign

Their logic in infallible. LOLOLOLOL. I can't believe they actually used that.

N6ATF
03-05-2011, 1:49 PM
A non-concealled permit. How truly sad it is when those entrusted with enforcement of the law, don't even know the law.

They know it, they also know they can get away with committing perjury to further their life's work of victim disarmament.

Smokeybehr
03-05-2011, 2:05 PM
Yolo replied. This link (http://www.archive.org/download/gov.uscourts.caed.191626/gov.uscourts.caed.191626.67.0.pdf) at archive.org should work but... A temporary version is here (http://www.hoffmang.com/temp/gov.uscourts.caed.191626.67.0.pdf).

Oral arguments are Thursday 3/10/11.

-Gene

Am I the only one that has a headache after trying to wrap my head around their circular logic and misreading of law and precedent? I know some knotheads that would be envious at how twisted up the arguments in that brief are.

microwaveguy
03-05-2011, 2:35 PM
Nothing but solid, ironclad arguments here .... (is there a special font I can use for sarcasm?)

I am thinking Zapf dingbats for a font :43: ( yes that really is a font type )

Window_Seat
03-05-2011, 2:43 PM
Nothing but solid, ironclad arguments here .... :sarcasm: (is there a special font I can use for sarcasm?)

There ya are! :cool:

dantodd
03-05-2011, 2:46 PM
I actually think it was not a terrible brief. Peruta is pretty damning in this case. I think they did a decent job of obfuscating the idea that some sort of ,usable for self-defense, carry must be allowed because of Heller. Now, I think that they are wrong and we will win out in the end, but it is not right to suggest that the brief is not well written.

safewaysecurity
03-05-2011, 3:32 PM
I actually think it was not a terrible brief. Peruta is pretty damning in this case. I think they did a decent job of obfuscating the idea that some sort of ,usable for self-defense, carry must be allowed because of Heller. Now, I think that they are wrong and we will win out in the end, but it is not right to suggest that the brief is not well written.

I have to admit when I wrote that i was very bad I had only read the about the first half which was terrible. I will admit that it fell within some realm of sanity towards the end but honestly it looked like it was written by some wannabe lawyer for a mock trial in high school.

BigDogatPlay
03-05-2011, 3:32 PM
Peruta is pretty damning in this case.

Very sad, but oh so very true.

I think they did a decent job of obfuscating the idea that some sort of ,usable for self-defense, carry must be allowed because of Heller.

Exactly... their mission here is to confuse and turn around Heller and McDonald to the point that the court finds them not germane to the question at hand. This brief, holes and all, does that, IMO.

Good luck to the good guys at orals is all I can wish for at this point.

stix213
03-05-2011, 3:33 PM
Today, concealed carry poses an even greater danger to police and the unarmed, unsuspecting public

Its like a war zone out there with CCW holders just opening fire on police and the public at will. :rolleyes:

I also think its silly they cite the self defense exemption in 12031, as if that is actually useful. How are you supposed to have a loaded firearm ready for self defense if you weren't aware you were about to be attacked? And if you were aware you were about to be attacked, why the hell are you still standing there?

pitchbaby
03-05-2011, 4:18 PM
I am glad to see from what all of you are saying that I'm not the only one who's head hurts after reading that mess. Well written... perhaps if you consider the grammar and sentence structure.... but I too had the impression that this work was about as solid as a well written high school essay.

hoffmang
03-05-2011, 8:21 PM
Good luck to the good guys at orals is all I can wish for at this point.

There are some serious admissions in there that I expect Alan Gura to drive an armored car through at oral argument. Yolo County basically said they have a government interest in directly invalidating a fundamental individual right. Note they didn't discriminate between keep and carry there. Thanks!

-Gene

Someday
03-05-2011, 9:09 PM
tagged

Patrick-2
03-07-2011, 9:35 AM
Defendants spend an excessive amount of their time talking about Concealed Carry dicta in Heller. To their credit, they do not ignore Nunn and the related cases. But then they completely miss the point of those cases. Nowhere do they acknowledge that the cases limit the ability of government to regulate the manner of carry into non-existence.

I think their suggestion that Open Carry would answer the claim is fatal. They seem to think the case is about Concealed Carry, but it is not (as clearly stated in the complaint). It is about public carry - the suit just accepts the manner of carry decision made previously by the state. But in trying to knock down CC, they almost acknowledge that the claim is correct by suggesting OC would do the trick, then blast the Plaintiffs for not going that route.

I won't even get into LOC versus UOC. That is the goofiest debate you can come up with, and unique to California. Really, it's not a factor anywhere else. It's not worth discussion. The fact they make it at all is evidence of a weak case, in my mind.

I politely disagree with those who think Peruta is a bad influence here. The defense leaves a lot out of that opinion because it contradicts their positions. Keep in mind Peruta did find a right, it just nullified it with poor logic.

It seems obvious to me in here that the Plaintiffs found a soft spot: Nunn and it's cousins (as espoused in Heller). Much of this argument attacks these gems and tries to link Heller's concealed carry dicta to these cases as if that alone results in some sort of nugatory linkage. Odd, considering the Heller decision actually used them to bolster its cause regarding the bearing of arms. SCOTUS will be happy to see they got this one wrong.


Also, I love the ending: The exact point of gun control is to prevent the free exercise of the rights claims by the Plaintiffs. Ergo: when the right is finally recognized, we just declared the intent of our regulations to be the infringement of those rights; such admission therefore making the laws null and void. Also setting up a civil rights damages case by getting rid of any pretense of argument over 'intent' if they keep up the games post-win.

Thanks, Yolo. That's going to make things a lot easier someday.

sighere
03-07-2011, 9:58 AM
Am I the only one that has a headache after trying to wrap my head around their circular logic and misreading of law and precedent? I know some knotheads that would be envious at how twisted up the arguments in that brief are.

I'm with you. Nowhere in Heller or McDonald did I see anything that said that outlawing concealed weapons was within the 2nd amendment. Nearest I can remember it cited controls over incompetents and sensitive areas such as courthouses. I'm not sure what SCOTUS decisions these guys are reading???

dantodd
03-07-2011, 10:13 AM
I'm with you. Nowhere in Heller or McDonald did I see anything that said that outlawing concealed weapons was within the 2nd amendment. Nearest I can remember it cited controls over incompetents and sensitive areas such as courthouses. I'm not sure what SCOTUS decisions these guys are reading???

Heller: Page 2 (though part of the syllabus)
"For example, concealed weapons prohibitions have been upheld under the Amendment or state analogues."

Heller: page 43
"Aymette held that the state constitutional guarantee of the right to “bear” arms did not prohibit the banning of concealed weapons."

Heller: page 54
"For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues."

In short. We have a right to be armed against confrontation. The state has a right to regulate the manner in which we are armed. CA has generally outlawed Openly Carrying a loaded firearm (only a loaded firearm is usable for self-defense.) CA has chosen to generally outlaw openly carried loaded weapons but to permit licensed individuals to carry concealed. Access to such licensing cannot be discretionary when it infringes upon a fundamental consitutional right.

Patrick-2
03-07-2011, 10:27 AM
I'm with you. Nowhere in Heller or McDonald did I see anything that said that outlawing concealed weapons was within the 2nd amendment. Nearest I can remember it cited controls over incompetents and sensitive areas such as courthouses. I'm not sure what SCOTUS decisions these guys are reading???

SCOTUS did say you can regulate the manner of carry - essentially open versus concealed carry (though minor tweaks of either would also be covered). But in doing so, the court used a four key cases (the ones the Defendants spent so much time denigrating) to demonstrate that you cannot regulate manners to the point you extinguish the right entirely. As is so happens, the preferred mode of carry at that point in history Heller was discussing was open. Concealed was considered bad. So the cases largely upheld prohibitions on concealed carry in favor of open. By no means does this suggest one manner is "better" than another - only that the government can make that choice.


Please do not let the above statements devolve this thread into an open vs. concealed carry argument or a series of posts on how the SAF is misreading Nunn. I am merely reporting the arguments made in this case. If you think Alan Gura got it wrong, please call him because I am not the one to whom you should argue your points. Love them or hate them, these are the arguments being used in this case.

The opposition likes to use only half the Heller dicta regarding "historical prohibitions on concealed carry"; they ignore the motivating rationale and supporting jurisprudence behind the words. That is going to harm them in the end.

Blackhawk556
03-07-2011, 11:26 AM
Is this the only concealed carry case that Gura is working on? Are there other CC cases that might make it SCOTUS instead of this one?

OleCuss
03-07-2011, 12:24 PM
Are we sure that this one will really be appealed? If Yolo loses I'm not convinced they'll appeal - which would happily leave a ruling in our favor on the books for the 9th Circuit?

I have an odd thought which I quickly dismiss that wonders if maybe Yolo is trying to throw the case in order to get a ruling in favor of the RKBA. I know that it is exceedingly unlikely and I strongly suspect that doing that would violate rules if not laws - but it would explain why what really looks like a losing case is being pursued. . .

sighere
03-07-2011, 12:27 PM
Are we sure that this one will really be appealed? If Yolo loses I'm not convinced they'll appeal - which would happily leave a ruling in our favor on the books for the 9th Circuit?

I have an odd thought which I quickly dismiss that wonders if maybe Yolo is trying to throw the case in order to get a ruling in favor of the RKBA. I know that it is exceedingly unlikely and I strongly suspect that doing that would violate rules if not laws - but it would explain why what really looks like a losing case is being pursued. . .

Not so fast. Everyone was licking their chops before Peruta was decided, and look at what a turd that turned out to be! Don't ever forget we're living in the land of fruits and nuts!

dantodd
03-07-2011, 12:33 PM
Is this the only concealed carry case that Gura is working on? Are there other CC cases that might make it SCOTUS instead of this one?

Palmer is the other case.

Gray Peterson
03-07-2011, 12:36 PM
Is this the only concealed carry case that Gura is working on? Are there other CC cases that might make it SCOTUS instead of this one?

Kachalsky in NY, Woollard in MD, Bateman in NC. My case in Denver is coalition litigated with John Monroe, who's also in Georgia and Wisconsin on different angles.

OleCuss
03-07-2011, 12:47 PM
Not so fast. Everyone was licking their chops before Peruta was decided, and look at what a turd that turned out to be! Don't ever forget we're living in the land of fruits and nuts!

Yeah, thanks for the reminder. As it turns out, I remember Peruta very well. I also remember Ezell and a few others. I remember that when Kilmer won incorporation that the decision was yanked en banc and thus de-published.

But with arguments the likes of which Yolo is making they have to be figuring that theirs is a lost cause. When you're really stretching your arguments past all credulity you have to figure you have an extremely friendly court or that you're desperate. I wish I really knew which is the case. . .

sighere
03-07-2011, 12:50 PM
Yeah, thanks for the reminder. As it turns out, I remember Peruta very well. I also remember Ezell and a few others. I remember that when Kilmer won incorporation that the decision was yanked en banc and thus de-published.

But with arguments the likes of which Yolo is making they have to be figuring that theirs is a lost cause. When you're really stretching your arguments past all credulity you have to figure you have an extremely friendly court or that you're desperate. I wish I really knew which is the case. . .

I hope you're right. But as my dearly departed dad used to say...."famous last words...." If the 9th circuit is known for its looniness then I can't imagine its "children" are any more sane...

krucam
03-07-2011, 1:03 PM
Kachalsky in NY, Woollard in MD, Bateman in NC. My case in Denver is coalition litigated with John Monroe, who's also in Georgia and Wisconsin on different angles.

To add to Gray's response, Gura is also involved in the Hightower v Boston carry case.

And if you take it past Gura and into SAF-sponsored carry cases, we have Muller v. Maenza in NJ.

This is far from the extent of Gura's involvement in these cases...Ezell comes to mind...

Patrick-2
03-07-2011, 1:14 PM
Gura has earned a lot of beers in a lot of places. So have others.

What got me surprised about this response was the absolute cursory treatment of keeping public carry away from the "core" of 2A. Yolo said Heller didn't allow it (per dicta), but provided little in the way of justification. They tried to shoot down Chester...but that fizzled due to serious circular logic. Not sure if they covered the core of 2A in detail in other submissions, but they seemed to just announce "public carry is not constitutional" as forgone and move along. They really tried to hang their hat on concealed carry prohibitions via misread dicta and that seems a non-starter (to me). And UOC...? Nope.

Up until now Defendants nationwide have all taken the 1-2 approach of trying to get the right evaluated as "not core to the Second Amendment" so they can assign it intermediate scrutiny...then use rational basis (disguised as intermediate) to give the knock-out punch. Some of us have been calling it the "2A To-Step".

Lately it seems the responses from a few venues have all given less emphasis on the core argument (Step 1); instead they are focusing on either some kind of compelling need or obtuse arguments over dicta that they say allows trespass on the core right for public RKBA (modified Step 2).

For those who read these things nationwide for fun and profit: Am I alone in that feeling here? Is the 2A Two-Step already out of style? Has the opposition given up the core argument so fast, before they even got through their first fight?

Maestro Pistolero
03-07-2011, 6:57 PM
http://www.examiner.com/la-in-los-angeles/loaded-open-carry-gets-an-unexpected-and-unwitting-ally

N6ATF
03-07-2011, 7:07 PM
http://www.facepalm.org/img.php

stix213
03-07-2011, 7:08 PM
http://www.examiner.com/la-in-los-angeles/loaded-open-carry-gets-an-unexpected-and-unwitting-ally

Did the author say in that last paragraph that Gura did a crappy job with this case?

Connor P Price
03-07-2011, 7:25 PM
Did the author say in that last paragraph that Gura did a crappy job with this case?

It sure sounded that way. Although, considering that the comment is found at the end of a fairly poorly written article I don't see why anyone would care.

stix213
03-07-2011, 7:27 PM
It sure sounded that way. Although, considering that the comment is found at the end of a fairly poorly written article I don't see why anyone would care.

Ya it seemed like more of a rehash of Peruta than any incite into Richards

G60
03-07-2011, 7:40 PM
It sure sounded that way. Although, considering that the comment is found at the end of a fairly poorly written article I don't see why anyone would care.

that site is just a blog site passing itself off as a journalistic resource.
Wikipedia even blacklisted the site for people trying to use it as a 'reliable source' which should put it into perspective. (I know some of you on here wouldn't believe the sun rises in the east if you saw wikipedia used as a reference)


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LAK Supply
03-07-2011, 7:48 PM
The brief doesn't say that the state has an interest in regulating concealed carry in the interest of public safety. It says that they have an interest in regulating firearms in the interest of public safety. Are you seriously asserting that there is no conceivable firearm regulation that furthers public safety?

Correct. There is no firearm regulation (other than the obvious "don't kill, don't shoot your neighbor's house, etc") that furthers public safety. Firearm regulations only create more classes of people that can be banned, which firearms may be owned, and how you may possess them. Regulations only present lip service in recognition of people that will break the law anyway.

MP301
03-07-2011, 8:52 PM
Ya it seemed like more of a rehash of Peruta than any incite into Richards


Yeah, the guy wasnt talking smack about Gura, he was echoing what the "right people" said about the Peruta case in the first place. Wrong case, Wrong Venue.

Although CGF may have helped with input after they couldnt talk the guy outta pushing the case, IIRC, they did it under duress. Everyone was hopeful, but a lot of us thought it was going to go down in flames anyway.

In the end, the article wasnt that bad...whether you respect the source or not. Plus, they have appearred to be very pro gun from what I have read and their articles are linked here on CGN constently with great reviews from CGers. If they have spewed BS, I am unaware of it.

People sometimes need to step away from the torches and pitchforks and quit eating their own!

hoffmang
03-07-2011, 10:51 PM
Couple of updates.

Mr. Nichols (the link above) doesn't understand the law above. This fight is not about district courts but is about 5 justices of the Supreme Court.

Courtroom 7 is somewhat small. I've alerted the US Marshals that overflow options (closed circuit TV or similar) would be useful but the didn't sound hopeful.

There are a limited number of firearms lockers for LEO's and 12050 permit holders who will be attending.

-Gene

wildhawker
03-07-2011, 11:00 PM
Where is N6ATF when you need him? I need a setup for my boilerplate Nichols retort.

N6ATF
03-07-2011, 11:21 PM
LOL, I threw up a facepalm... not sure this works in this context:

Great, now Charles Nichols is going to be screaming "I told you so" from the rooftops.

Gray Peterson
03-08-2011, 12:59 AM
There are a limited number of firearms lockers for LEO's and 12050 permit holders who will be attending.

-Gene

Not sure if PC12050 permit holders are allowed there. I would recommend getting this in WRITING, or at the very least, making sure you speak with the head martial and get a name. I don't like countermanding Gene on this, but make damned sure, as it's a federal felony offense if we're wrong on it.

safewaysecurity
03-08-2011, 2:18 AM
Not sure if PC12050 permit holders are allowed there. I would recommend getting this in WRITING, or at the very least, making sure you speak with the head martial and get a name. I don't like countermanding Gene on this, but make damned sure, as it's a federal felony offense if we're wrong on it.

I think you're right because it's a federal courthouse not state. So even with writing I don't think it's ok lol.

Vindo310
03-08-2011, 3:14 AM
So oral arguments are on March 10th and when would a decision be made? Sorry court noob<-----

wildhawker
03-08-2011, 5:19 AM
60-90 days likely, possibly a little longer.

tango-52
03-08-2011, 5:30 AM
Not sure if PC12050 permit holders are allowed there. I would recommend getting this in WRITING, or at the very least, making sure you speak with the head martial and get a name. I don't like countermanding Gene on this, but make damned sure, as it's a federal felony offense if we're wrong on it.

When I went to the Peruta hearing in San Diego, I asked specifically about that. The marshal said that the lockers there were for LEOs only. If I had come in CCWing, they would have made me return to my vehicle to lock it up. He even dug out the procedures manual to show me the internal memo they used for guidance. I think they don't get asked that one very often.

Window_Seat
03-08-2011, 7:32 AM
Counsel, et all:

Do we wear a coat & tie, dress shoes, etc? Or other decent casual form of dress to the hearing on Thursday?

Erik.

Caladain
03-08-2011, 7:36 AM
Counsel, et all:

Do we wear a coat & tie, dress shoes, etc? Or other decent casual form of dress to the hearing on Thursday?

Erik.

Looking sharp never hurts.

Kharn
03-08-2011, 7:48 AM
Counsel, et all:

Do we wear a coat & tie, dress shoes, etc? Or other decent casual form of dress to the hearing on Thursday?

Erik.Coat & tie.

Sgt Raven
03-08-2011, 8:25 AM
Looking sharp never hurts.

What if one looks like a bum in a Brady Bunch T shirt? :p

sfpcservice
03-08-2011, 8:38 AM
What if one looks like a bum in a Brady Bunch T shirt? :p

Ok, who invited Cindy? :(

Big Ben
03-08-2011, 9:15 AM
What if one looks like a bum in a Brady Bunch T shirt? :p

Just tell them you are there supporting Yolo County.

Untamed1972
03-08-2011, 10:36 AM
When I went to the Peruta hearing in San Diego, I asked specifically about that. The marshal said that the lockers there were for LEOs only. If I had come in CCWing, they would have made me return to my vehicle to lock it up. He even dug out the procedures manual to show me the internal memo they used for guidance. I think they don't get asked that one very often.

Well if you think about technically it kinda makes sense in this regard:

Except for specified exemptions for various LEOs, it is against federal law to posess a firearm in a federal building. So if you hafta step inside the building to place your CCW gun in the locker, then you're in violation of federal law by entering the building with a gun.

What they need to do is have the lockers outside the door.

Window_Seat
03-08-2011, 11:25 AM
Ok, who invited Cindy? :(

Sheehan? She'd look perfect in one. :p

Erik.

trevilli
03-08-2011, 11:51 AM
A totally predictable (and predictably milquetoast) MSJ by defendants.
Really? I think the argument worked pretty well in the Peruta case. I'm not a lawyer, so I don't know how (if it all) this case differs from that one, but I don't see why this judge wouldn't follow that same line of reasoning. Does our side have a good response to the "open carry satisfies your constitutionally protected right to carry"? Don't get me wrong, I'd love to see this state go shall-issue, and since the legislature won't do this, then through the courts. However, I'd think twice before declaring their arguments 'milquetoast' since we have yet to win on this issue, in this state.

Untamed1972
03-08-2011, 12:11 PM
Really? I think the argument worked pretty well in the Peruta case. I'm not a lawyer, so I don't know how (if it all) this case differs from that one, but I don't see why this judge wouldn't follow that same line of reasoning. Does our side have a good response to the "open carry satisfies your constitutionally protected right to carry"? Don't get me wrong, I'd love to see this state go shall-issue, and since the legislature won't do this, then through the courts. However, I'd think twice before declaring their arguments 'milquetoast' since we have yet to win on this issue, in this state.

The only real response to the "UOC is sufficient" arguement is that an unloaded gun does not meet the Heller critera of a functional firearm ready for defense in case of confrontation or attack.

If UOC was sufficient then wouldn't it be safer for LEOs to carry unloaded as well.....that would likely prevent many instances of LEOs getting shot with their own gun wouldn't it?

It could also be argued that because of the "e" check requirement you are essentially then telling people they must surrender their 4A & 5A rights to exercise their 2A. Doesnt seem very constitutionally harmonious to me.

trevilli
03-08-2011, 12:35 PM
The only real response to the "UOC is sufficient" arguement is that an unloaded gun does not meet the Heller critera of a functional firearm ready for defense in case of confrontation or attack.

If UOC was sufficient then wouldn't it be safer for LEOs to carry unloaded as well.....that would likely prevent many instances of LEOs getting shot with their own gun wouldn't it?

It could also be argued that because of the "e" check requirement you are essentially then telling people they must surrender their 4A & 5A rights to exercise their 2A. Doesnt seem very constitutionally harmonious to me.


The Court disagrees. There is an important distinction between section 12031 and the District
of Columbia law at issue in Heller, which required that firearms in the home be rendered and kept
inoperable at all times. See Heller, 128 S. Ct. at 2818. Unlike section 12031, the District of Columbia
law did not contain, and the Supreme Court declined to infer, an exception for self-defense. Id. The
Heller Court did not reach the question of whether the law would have been constitutional had there
been an exception for self-defense. See id. As a consequence, the Court declines to assume that
section 12031 places an unlawful burden on the right to carry a firearm for self-defense, and Plaintiffs
have elected not to challenge section 12031.6

Peruta Decision (http://ia600406.us.archive.org/23/items/gov.uscourts.casd.308678/gov.uscourts.casd.308678.64.0.pdf)

I'm not saying your argument is wrong, I'm saying that the judge rejected it.

Untamed1972
03-08-2011, 12:41 PM
Peruta Decision (http://ia600406.us.archive.org/23/items/gov.uscourts.casd.308678/gov.uscourts.casd.308678.64.0.pdf)

I'm not saying your argument is wrong, I'm saying that the judge rejected it.

Because she chose to assume that allowing someone to load a firearm in the face of immediate danger is sufficient which we all know is BS and Heller clearly rejected and addressed in the dicta.

oaklander
03-08-2011, 12:42 PM
If you go to the orals, PLEASE wear a coat and tie. Judges strongly prefer to see people who dress like they "respect the room."

We respect the room, in fact - we asked to be there (by filing the case) - so let's make sure we "show" it.

trevilli
03-08-2011, 12:45 PM
Because she chose to assume that allowing someone to load a firearm in the face of immediate danger is sufficient which we all know is BS and Heller clearly rejected and addressed in the dicta.

If you're going to argue that she misread the Heller decision that's fine. It should be an instant slam-dunk on appeal. I hope you are right, but until I see a judge in this state agree with you, I have my doubts.

stix213
03-08-2011, 12:51 PM
Really? I think the argument worked pretty well in the Peruta case. I'm not a lawyer, so I don't know how (if it all) this case differs from that one, but I don't see why this judge wouldn't follow that same line of reasoning. Does our side have a good response to the "open carry satisfies your constitutionally protected right to carry"? Don't get me wrong, I'd love to see this state go shall-issue, and since the legislature won't do this, then through the courts. However, I'd think twice before declaring their arguments 'milquetoast' since we have yet to win on this issue, in this state.

The response is a firearm is not usable for immediate self defense when required by law to be unloaded, so any legal manner of carrying a non-functional unloaded firearm is irrelevant to the discussion and is not protected 2nd amendment activity.

We can go ahead and agree with the Sheriff that loaded open carry would certainly satisfy the 2A. Too bad the legislature banned that for almost everyone in the state.

Untamed1972
03-08-2011, 1:02 PM
If you're going to argue that she misread the Heller decision that's fine. It should be an instant slam-dunk on appeal. I hope you are right, but until I see a judge in this state agree with you, I have my doubts.

I hear yuh.....I attended the Peruta orals and was floored when I read her final decision.....it was like it was 2 different people.

At least in this Yolo case the plaintiff's counsel actually stated in their filings that LEOs dont carry unloaded because it is absurd to think that doing so is sufficient for self-defense. That point was never made in the Peruta filings or orals to my recollection.

trevilli
03-08-2011, 1:17 PM
At least in this Yolo case the plaintiff's counsel actually stated in their filings that LEOs dont carry unloaded because it is absurd to think that doing so is sufficient for self-defense. That point was never made in the Peruta filings or orals to my recollection.
I agree with you, it's absurd to think unloaded is good enough. The self defense firearms in my home are loaded and ready for immediate use. I'm encouraged by the fact that it was including in this filing hope it helps to sway the judge.