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View Full Version : Richards v Prieto - (Carry) CA-9 Appeal opening brief filed


hoffmang
08-24-2011, 9:46 PM
Earlier today, SAF and CGF filed the opening brief (http://www.hoffmang.com/firearms/richards-v-prieto/Richards-v-Prieto-Opening-Brief-20110824.pdf) o appeal challenging California's "good moral character" and "good cause" requirements to issue carry licensing.

-Gene

AVgunGUY
08-24-2011, 9:48 PM
:-)

FullMetalJacket
08-24-2011, 10:04 PM
EPIC!

Joe
08-24-2011, 10:05 PM
Very cool. Great job!

HalfMeltingEyes
08-24-2011, 10:08 PM
Get 'em!

dndgeek
08-24-2011, 10:09 PM
Thanks for all your good work!

pitchbaby
08-24-2011, 10:10 PM
Music to my ears

Paladin
08-24-2011, 10:10 PM
Thanks for answering my Q

redrex
08-24-2011, 10:17 PM
Thank you so much. It is laws like this, "good cause", and the way they are implemented that make me feel like we are living a lie when we say that we live in a free society.

And then there are people like you who fight for our rights and once again restore my hope in our society.

Give 'em hell!

chiselchst
08-24-2011, 10:23 PM
Thanks to the SAF, the CGF and Gene! It's getting exciting now... :D

MrClamperSir
08-24-2011, 10:26 PM
I’m too tired to read any further but I did get about halfway through the text and so far it's excellent.

Thanks guys!!

AndrewMendez
08-24-2011, 10:26 PM
I remember a day when I used to remember everything that was going on to fight against this state....that was a looooong time ago.

Keep the steam roller rolling!

Spyder
08-24-2011, 10:44 PM
Is it alright to cut and paste pieces of that?

freonr22
08-24-2011, 10:46 PM
yessssssssssssssssssssssssssssssssssssssssssssssss ssssssssssssssssssssssssssssssssssssssssss cgf

Liberty1
08-24-2011, 10:48 PM
My dumb 'smart' phone won't download the file. :(

Apocalypsenerd
08-24-2011, 10:49 PM
Go get 'em guys.

For years I felt our 2A rights were slipping away and it was hopeless. After I started coming to this forum, I became hopeful.

When I read stuff like this, I am pretty positive that while the 2A might not end up where I think it should be, it will end up more than where we need it to be.

freonr22
08-24-2011, 10:54 PM
Ok, down loaded file on laptop, unplugged from internet, on front porch, gonna read 90 pages....priceless

Citizen 14
08-24-2011, 10:58 PM
Outstanding, thank you!

CitaDeL
08-24-2011, 11:02 PM
Where fundamental rights are concerned, a system of prior restraint cannot employ unbridled discretion.

This sentence is almost sublimely Jeffersonian. I think I would like this formatted for a forehead tattoo. Not for myself, but for someone who needs a daily reminder when he his grooming. In fact, this person has sufficient forehead to accomdate this 'reminder message' so that it could be readable from a few feet away.:)

CHS
08-24-2011, 11:09 PM
Crap. More reading for tomorrow :)

CANT WAIT!

Matt C
08-24-2011, 11:15 PM
“f the Sheriff or his designee [I]feels there is
sufficient reason to renew the license.”

What a fortunate choice of policy language... ;)

SoCal Bob
08-24-2011, 11:17 PM
A long, but rewarding read. I especially liked this part:

The Second Amendment does not exist merely to increase the security of previously victimized individuals.

ivsamhell
08-24-2011, 11:26 PM
beauty! looks water tight. obligatory: what happens next?

quick draw mcgraw
08-24-2011, 11:29 PM
I love CGF, SAF, Alan Gura, et al!!!!

Thank you for the amazing work!!!

Funtimes
08-24-2011, 11:30 PM
I am looking forward to reading this. I love the concise writing of AG.

DeanW66
08-24-2011, 11:34 PM
:hurray: Sick'em!

choprzrul
08-24-2011, 11:59 PM
For an example of these prior restraint principles applied in the
Second Amendment context, the Court need look no further than
Heller. Among other provisions, Heller challenged application of the
District of Columbia’s requirement that handgun registrants obtain a
discretionary (but never issued) permit to carry a gun inside the home.
The Supreme Court held that the city had no discretion to refuse
issuance of the permit: “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 in the
home.” Heller, 554 U.S. at 635. In other words, the city could deny
Heller a permit if it could demonstrate there was some constitutionally
valid reason for denying him Second Amendment rights. But the city
could not otherwise refuse to issue the permit.

In rejecting self-defense as good cause for a carry
license, Defendants’ policy all but confirms its unconstitutionality.

ZING!!!

But here, the issue is whether Defendants may bar individuals from
exercising the right at all by use of a permitting scheme. This comes
literally within the definition of a prior restraint—there is no better,
indeed, there may be no other, logical interpretive tool. After all, the
right to carry firearms is a “freedom which the Constitution
guarantees,” and “an ordinance which . . . makes the peaceful
enjoyment of freedoms which the Constitution guarantees contingent
upon the uncontrolled will of an official” is “an unconstitutional
censorship or prior restraint upon the enjoyment of those freedoms.”
Staub, 355 U.S. at 322

ZING, ZING!!!

“Where fundamental rights and liberties are asserted under
the Equal Protection Clause, classifications which might invade or
restrain them must be closely scrutinized.”

Dang straight.

There is something deeply illogical about Defendants’ refusal to
issue a permit to carry a handgun until after a threat to one’s life
and/or loved ones has materialized. Individuals enjoy a right to carry
handguns “for the purpose . . . of being armed and ready for offensive or
57
Case: 11-16255 08/24/2011 ID: 7870015 DktEntry: 11 Page: 69 of 90
defensive action in a case of conflict with another person.” Heller, 554
U.S. at 584 (citations omitted). The Second Amendment does not exist
merely to increase the security of previously victimized individuals.

Gura/Kilmer for President/Vice President?

Red meat for the CGN faithful. Team CGF once again is rocking the establishment's world, and I love every shake, rattle, and roll of it!

.

wildhawker
08-25-2011, 12:30 AM
Speaking of zingers:

FN1 Plaintiffs respectfully suggest that two cases pending in this
Court, alleging malfeasance on the part of Sacramento County and its
former Sheriffs by disgruntled handgun carry permit applicants, Mehl
v. Blanas, No. 08-15773 and Rothery v. County of Sacramento, No. 09-16852,
are mooted by the very different practices which now prevail in
Sacramento County. In any event, Plaintiffs’ claims differ starkly from
the sort of allegations leveled in Mehl and Blanas.

radioburning
08-25-2011, 12:36 AM
Turning up the heat!!!!

spgripside
08-25-2011, 12:56 AM
Earlier today, SAF and CGF filed the opening brief (http://www.hoffmang.com/firearms/richards-v-prieto/Richards-v-Prieto-Opening-Brief-20110824.pdf) o appeal challenging California's "good moral character" and "good cause" requirements to issue carry licensing.

Thank you and all involved. I'll try to find time and read it tomorrow.

mrrsquared79
08-25-2011, 1:23 AM
Wow, just WOW!

I read this brief and see it covering any/every avenue the defense may conceivably come up with to deny issuing a LTC answered before the defense even brings any counterarguments forward thus leaving no option but to force 'shall issue' while striking all the bs requirements to deny a LTC for law abiding citizens.

Definitely worth the time to read!!!

:43:

Thank you to all involved with this!!!

press1280
08-25-2011, 2:16 AM
beauty! looks water tight. obligatory: what happens next?

More briefs back and forth and I'm assuming oral arguments. However, unless this thing really speeds along, I think there's a possibility this(along with the other "bear arms" cases) will be put on ice if SCOTUS picks up Masciandaro or Williams. Those could be picked up as early as late October I believe and almost all 2A cases these days have been running long.

ccmc
08-25-2011, 4:42 AM
OK, I'm not a lawyer, but I can see that this is a very well written brief. But my big question is this: Aren't GC and GMC written into state law, and each sheriff has the discretion on how to interpret that? If I'm the sheriff I would say STATE LAW requires that applicants have GC and be of GMC, and that the decider-in-chief of those two factors (again as written into state law) is the county sheriff (l'etat c'est moi). If your beef is with GC and GMC, then take it up with the state. I didn't write those items into law, I just do what they tell me with the discretion they have given me.

sighere
08-25-2011, 4:42 AM
Half way through the read, and man... this is good! Alan Gura just keeps getting better and better and is focusing the issues better than ever before!

HowardW56
08-25-2011, 4:51 AM
This brief is a wonderful example of legal writing at it's finest!

choprzrul
08-25-2011, 5:53 AM
Does the other side really think that they can beat Gura at this? At some point, they will see "Gura" listed and just throw in the towel.....


.

Mulay El Raisuli
08-25-2011, 6:22 AM
Its a very good Brief. I have little doubt that the logic of Gura will prevail. Still, one thing bugs me.

On page 43: Quoting Gonzalez v. Village of W. Milwaukee; "No reasonable person would dispute that walking into a store openly carrying a firearm is highly disruptive conduct virtually certain to cause a disturbance." The argument is then made that we should adjust to the modern thinking & substitute CCW for LOC as the Constitutionally protected method of "and bear."

My problem with this is that our argument has always been that the meaning 2nd & the 14th now is the meaning that applied at the time of their adoption. This is an excellent way to look at the Right. Applying 'modern' thought is what lead to all the BS & restrictions we are only just now getting rid of. It is only by the application of the historical meaning that we've gotten where we are now. Which is why I like having the historical meaning applied, & why I think it should always be the standard.

Also, I guess I'm not a "reasonable person." I do dispute that walking into a store LOC is, all by itself, "disruptive." It isn't just the UOC events that lead me to think this. Some people practice individual UOC in this state frequently & kittens do not die. In other states, people LOC & again, kittens do not die. I don't deny that disruptions won't happen at all, but like all things new, people will adjust.

And its important to the cause that people do adjust. The re-introduction of the "gun culture" won't happen if every carrying is doing so concealed. If all that "gun culture" promotes is good & true (as I happen to think) then sticking to the historical meaning (and re-installing LOC as the Constitutionally protected method of "and bear") is the way to achieve this.

But, mine is clearly a minority opinion.


The Raisuli

HowardW56
08-25-2011, 6:41 AM
Speaking of zingers:

FN1 Plaintiffs respectfully suggest that two cases pending in this Court, alleging malfeasance on the part of Sacramento County and its former Sheriffs by disgruntled handgun carry permit applicants, Mehl v. Blanas, No. 08-15773 and Rothery v. County of Sacramento, No. 09-16852, are mooted by the very different practices which now prevail in Sacramento County. In any event, Plaintiffs’ claims differ starkly from the sort of allegations leveled in Mehl and Blanas.

That is some of Mr. Gorski's finest work............... :eek:

HowardW56
08-25-2011, 6:45 AM
Its a very good Brief. I have little doubt that the logic of Gura will prevail. Still, one thing bugs me.

On page 43: Quoting Gonzalez v. Village of W. Milwaukee; "No reasonable person would dispute that walking into a store openly carrying a firearm is highly disruptive conduct virtually certain to cause a disturbance." The argument is then made that we should adjust to the modern thinking & substitute CCW for LOC as the Constitutionally protected method of "and bear."

My problem with this is that our argument has always been that the meaning 2nd & the 14th now is the meaning that applied at the time of their adoption. This is an excellent way to look at the Right. Applying 'modern' thought is what lead to all the BS & restrictions we are only just now getting rid of. It is only by the application of the historical meaning that we've gotten where we are now. Which is why I like having the historical meaning applied, & why I think it should always be the standard.

Also, I guess I'm not a "reasonable person." I do dispute that walking into a store LOC is, all by itself, "disruptive." It isn't just the UOC events that lead me to think this. Some people practice individual UOC in this state frequently & kittens do not die. In other states, people LOC & again, kittens do not die. I don't deny that disruptions won't happen at all, but like all things new, people will adjust.

And its important to the cause that people do adjust. The re-introduction of the "gun culture" won't happen if every carrying is doing so concealed. If all that "gun culture" promotes is good & true (as I happen to think) then sticking to the historical meaning (and re-installing LOC as the Constitutionally protected method of "and bear") is the way to achieve this.

But, mine is clearly a minority opinion.


The Raisuli

Some sacrifices are made to reach the end objective...

dantodd
08-25-2011, 7:50 AM
What a fortunate choice of policy language... ;)

Nice new username.

HowardW56
08-25-2011, 8:00 AM
I have read the brief twice now. I found myself smiling as I was reading it the second time, it is incredibly well written and presents wonderful arguments...

emgee00
08-25-2011, 8:04 AM
Wow, a lot of effort was put into this important case! Thanks to everyone who are fighting the good fight!

dantodd
08-25-2011, 8:08 AM
Also, I guess I'm not a "reasonable person." I do dispute that walking into a store LOC is, all by itself, "disruptive." It isn't just the UOC events that lead me to think this. Some people practice individual UOC in this state frequently & kittens do not die. In other states, people LOC & again, kittens do not die. I don't deny that disruptions won't happen at all, but like all things new, people will adjust.

Briefs have a target audience just like any other writing. While I might consider you a reasonable person wrt guns it is highly likely that the panel sitting on this case wouldn't and that the case quoted would be more representative of the panel's world view. I seriously doubt that the brief was written without research of the panels previous opinions. I would strongly expect that a brief to SCOTUS would be very different. In future cases you will certainly see reference to integration cases etc. that talk about "public outrage" or "disruption" isn't a valid reason to infringe on a fundamental right. I'd also expect to see reference to things like Blackman's "social cost" model.


its important to the cause that people do adjust. The re-introduction of the "gun culture" won't happen if every carrying is doing so concealed. If all that "gun culture" promotes is good & true (as I happen to think) then sticking to the historical meaning (and re-installing LOC as the Constitutionally protected method of "and bear") is the way to achieve this.

But, mine is clearly a minority opinion.

even in shall issue states only 5% of people apply for an LTC, less in most. Contrast that to the average 35% who own guns. If we rely on only carry advocacy to reinvigorate the gin culture we are doomed. Get your foodie friends who are into "sustainability" and are trying to "get closer to their food" to go out and kill something with you. If we all did that it would probably be more than the 5% who are likely to apply for a LTC.
The Raisuli[/QUOTE]

Uxi
08-25-2011, 8:15 AM
Excellent news! Saw it on Facebook earlier.


My problem with this is that our argument has always been that the meaning 2nd & the 14th now is the meaning that applied at the time of their adoption. This is an excellent way to look at the Right. Applying 'modern' thought is what lead to all the BS & restrictions we are only just now getting rid of. It is only by the application of the historical meaning that we've gotten where we are now. Which is why I like having the historical meaning applied, & why I think it should always be the standard.


Agreed. Until properly Amended, that is arguably the proper interpretation.

JJE
08-25-2011, 8:47 AM
Yes, the characterization of open carry as obviously disruptive was the only part that gave me pause. However, overall the case for shall-issue in CA seems much stronger than I had previously realized, and the brief contains too many zingers to quote. I am inspired to break out my checkbook for the cause.

HowardW56
08-25-2011, 8:50 AM
I am inspired to break out my checkbook for the cause.

I do it often, progress cannot be made without funding....

Ubermcoupe
08-25-2011, 10:00 AM
Nice work! Lots of time into that so I thank you! :)

vonderplatz
08-25-2011, 10:41 AM
Just curious, when it come to reasons for denial many counties have a policy in their Criteria for Approval or Denial that merely being denied a LTC in the past is reason enough for denial in the future. Would this action force counties to look at those people again.

I have always thought this was a stupid reason for denial, since GC circumstances can change. Even in counties that have a very strict criteria.

6172crew
08-25-2011, 10:44 AM
I hope this is shown to the full 9th and they see it our way, enough of the wing-nut crap already.

Wherryj
08-25-2011, 10:52 AM
A long, but rewarding read. I especially liked this part:

The Second Amendment does not exist merely to increase the security of previously victimized individuals.

The Second Amendment was written to increase the security of not yet victimized individuals.

G60
08-25-2011, 10:54 AM
Just curious, when it come to reasons for denial many counties have a policy in their Criteria for Approval or Denial that merely being denied a LTC in the past is reason enough for denial in the future. Would this action force counties to look at those people again.


Quoting Gene from the 'carry strategy' thread:


"That's already illegal per Salute v. Pitchess. Just ignore it. Apply. If you're turned down reapply when you feel like it. If there is a problem, email or call us as we'd enjoy continuing our education mission...

-Gene"

dantodd
08-25-2011, 11:12 AM
Just curious, when it come to reasons for denial many counties have a policy in their Criteria for Approval or Denial that merely being denied a LTC in the past is reason enough for denial in the future. Would this action force counties to look at those people again.

I have always thought this was a stupid reason for denial, since GC circumstances can change. Even in counties that have a very strict criteria.

The current statute prohibits the sheriff from refusing to accept such applications. If you are directly effected by this please contact wildhawker (Brandon) via PM

Didn't notice G60 already answered, PM Beandon if you've applied and the sheriff refuses to accept a new application or denies based on a previous app.

Paladin
08-25-2011, 8:27 PM
Acc to my notes, tomorrow there's supposed to be something happening in another CGF LTC case. . . . :whistling:

Must ... resist ... posting more ....

wazdat
08-25-2011, 8:43 PM
Acc to my notes, tomorrow there's supposed to be something happening in another CGF LTC case. . . . :whistling:

Must ... resist ... posting more ....

Go on... Go ahead... Do it... DO IT!!!

Anchors
08-25-2011, 8:44 PM
How confident are you guys in this appeal as compared to the original case?

Connor P Price
08-25-2011, 9:09 PM
Awesome brief, but of course that's expected from Gura and Kilmer. There isn't much that gets me as amped up as reading a well crafted argument that can't be logically refuted. It's good to be on the team with the constitution on its side.

mosinnagantm9130
08-25-2011, 10:17 PM
:D:D:D

hoffmang
08-25-2011, 11:38 PM
OK, I'm not a lawyer, but I can see that this is a very well written brief. But my big question is this: Aren't GC and GMC written into state law, and each sheriff has the discretion on how to interpret that? If I'm the sheriff I would say STATE LAW requires that applicants have GC and be of GMC, and that the decider-in-chief of those two factors (again as written into state law) is the county sheriff (l'etat c'est moi). If your beef is with GC and GMC, then take it up with the state. I didn't write those items into law, I just do what they tell me with the discretion they have given me.
You're forgiven for not understanding the nuances of how the 14th amendment amends the 10th and 11th. By suing the sheriff, we are also asking for an injunction against the law. The basic relief we request is that, to the extent that state law requires GC and GMC those must be interpreted only as self defense and not validly prohibited to possess - which would make the standards objective and then not a prior restraint.
Acc to my notes, tomorrow there's supposed to be something happening in another CGF LTC case. . . . :whistling:

Must ... resist ... posting more ....
That was taken off calendar for a judge reassignment. See http://www.archive.org/download/gov.uscourts.cand.238467/gov.uscourts.cand.238467.19.0.pdf

-Gene

ccmc
08-26-2011, 4:20 AM
You're forgiven for not understanding the nuances of how the 14th amendment amends the 10th and 11th. By suing the sheriff, we are also asking for an injunction against the law. The basic relief we request is that, to the extent that state law requires GC and GMC those must be interpreted only as self defense and not validly prohibited to possess - which would make the standards objective and then not a prior restraint.


Never claimed to be a lawyer (constitutional or otherwise). So if I understand your explanation correctly the action is not to overturn GC and GMC, but to allow self-defense aka personal protection as a valid GC (since the sheriff has no power to do away with either GC or GMC as they are written into state law). Is that correct, and if so, how does GMC enter into the equation? If anything GMC is even more subjective than GC.

HowardW56
08-26-2011, 4:33 AM
Never claimed to be a lawyer (constitutional or otherwise). So if I understand your explanation correctly the action is not to overturn GC and GMC, but to allow self-defense aka personal protection as a valid GC (since the sheriff has no power to do away with either GC or GMC as they are written into state law). Is that correct, and if so, how does GMC enter into the equation? If anything GMC is even more subjective than GC.


If someone is not a member of a prohibited class (i.e. Felon, adjudicated as mentally ill, domestic abuser, etc..) they would be presumed to be of good moral character...

ccmc
08-26-2011, 4:35 AM
If someone is not a member of a prohibited class (i.e. Felon, adjudicated as mentally ill, domestic abuser, etc..) they would be presumed to be of good moral character...

Thank you. That makes perfect sense.

Mulay El Raisuli
08-26-2011, 5:16 AM
Briefs have a target audience just like any other writing. While I might consider you a reasonable person wrt guns it is highly likely that the panel sitting on this case wouldn't and that the case quoted would be more representative of the panel's world view. I seriously doubt that the brief was written without research of the panels previous opinions. I would strongly expect that a brief to SCOTUS would be very different. In future cases you will certainly see reference to integration cases etc. that talk about "public outrage" or "disruption" isn't a valid reason to infringe on a fundamental right. I'd also expect to see reference to things like Blackman's "social cost" model.


I didn't think about 'tailoring' for the audience. Still, as "public outrage" and "disruption" weren't allowed to infringe upon Rights before, I'm not sure putting the idea into the judges heads is a good idea.


even in shall issue states only 5% of people apply for an LTC, less in most. Contrast that to the average 35% who own guns. If we rely on only carry advocacy to reinvigorate the gin culture we are doomed. Get your foodie friends who are into "sustainability" and are trying to "get closer to their food" to go out and kill something with you. If we all did that it would probably be more than the 5% who are likely to apply for a LTC.


I'm thinking that the more public the better, & open carry at the local Starbucks will play better on TV than "killing something" will.


Some sacrifices are made to reach the end objective...


What could be a better "end objective" than restoring the gun culture?


The Raisuli

RKV
08-26-2011, 5:23 AM
Not to rain on everyone's parade, but you going to have to explain to me why this appeal is going anywhere. Here's a bit from Judge England's ruling...
"Based upon this, Heller cannot be read to invalidate Yolo County's concealed weapon policy, as the Second Amendment does not create a fundamental right to carry a concealed weapon in public. Furthermore, the policy does not create a total carrying a firearm, such that the policy completely infringes on the rights protected by the Second Amendment. Since the Supreme Court has yet to articulate the appropriate standard of review the Ninth Circuit Court has determined... [under Nordyke]... rational basis review applies." Instead of attacking rational basis as the standard directly the appeal uses the words "rational basis" only once. It is an error in my non-lawyer way of thinking not to explain directly what England's error in law was in the original ruling.

I hope I am wrong but I detect the strong aroma of "Slaughter-House" here. As in the fix is in. The fix? No total ban = no 2nd Amendment violation. Business as usual - the connected get to carry, and the politicians get the grift. I hope I'm wrong here. I certainly enjoyed reading the appeal. Someone please explain to me why the 9th Circuit wants to take it?

choprzrul
08-26-2011, 6:45 AM
I think that whatever you see coming out of the 9th will be in contrdiction of decisions from other circuits. The split IS THE STRATEGY. Team Kilmer/Gura know this and tailored their brief accordingly so that they could point back to it and then compare/contrast the 9ths wrongness. I am confident that Gura chose the 9th for a very specific reason. Knowing how conveluted their decision will be has to be behind that decision. So, as strange as it sounds, rooting for some wacky decision from the 9th will help further our cause.

Gura's strategy is not willy-nilly. The 9th is now playing chess with the grand master.

.

Not to rain on everyone's parade, but you going to have to explain to me why this appeal is going anywhere. Here's a bit from Judge England's ruling...
"Based upon this, Heller cannot be read to invalidate Yolo County's concealed weapon policy, as the Second Amendment does not create a fundamental right to carry a concealed weapon in public. Furthermore, the policy does not create a total carrying a firearm, such that the policy completely infringes on the rights protected by the Second Amendment. Since the Supreme Court has yet to articulate the appropriate standard of review the Ninth Circuit Court has determined... [under Nordyke]... rational basis review applies." Instead of attacking rational basis as the standard directly the appeal uses the words "rational basis" only once. It is an error in my non-lawyer way of thinking not to explain directly what England's error in law was in the original ruling.

I hope I am wrong but I detect the strong aroma of "Slaughter-House" here. As in the fix is in. The fix? No total ban = no 2nd Amendment violation. Business as usual - the connected get to carry, and the politicians get the grift. I hope I'm wrong here. I certainly enjoyed reading the appeal. Someone please explain to me why the 9th Circuit wants to take it?

RKV
08-26-2011, 7:15 AM
IANALNDIPOOTV, but I believe there is a logic flaw in the circuit split strategy. 9th Circuit doesn't have to take the appeal. If I may follow your analogy, check-mate. So, let me repeat, "Why does the 9th Circuit WANT to take the appeal?" Would I like them to? Yes. Do I expect them to? No. Why not? Because its not in the gun-grabbers interest to find errors in law or in fact in England's opinion. So much for circuit split.

Rossi357
08-26-2011, 7:17 AM
Not to rain on everyone's parade, but you going to have to explain to me why this appeal is going anywhere. Here's a bit from Judge England's ruling...
"Based upon this, Heller cannot be read to invalidate Yolo County's concealed weapon policy, as the Second Amendment does not create a fundamental right to carry a concealed weapon in public. Furthermore, the policy does not create a total carrying a firearm, such that the policy completely infringes on the rights protected by the Second Amendment. Since the Supreme Court has yet to articulate the appropriate standard of review the Ninth Circuit Court has determined... [under Nordyke]... rational basis review applies." Instead of attacking rational basis as the standard directly the appeal uses the words "rational basis" only once. It is an error in my non-lawyer way of thinking not to explain directly what England's error in law was in the original ruling.

I hope I am wrong but I detect the strong aroma of "Slaughter-House" here. As in the fix is in. The fix? No total ban = no 2nd Amendment violation. Business as usual - the connected get to carry, and the politicians get the grift. I hope I'm wrong here. I certainly enjoyed reading the appeal. Someone please explain to me why the 9th Circuit wants to take it?

Correct me if I am wrong.....
Judge Englands ruling was before Ezell.
In Ezell, it was found that a slight burden on the core of the 2A is still a burden and is unconstitutional. The use of a shooting gallery (proficency) is ancillary to the core right and is a slight burden. Smells like a circuit split.

FERGUSON
08-26-2011, 7:18 AM
TWO WEEKS?

choprzrul
08-26-2011, 7:25 AM
IANALNDIPOOTV, but I believe there is a logic flaw in the circuit split strategy. 9th Circuit doesn't have to take the appeal. If I may follow your analogy, check-mate. So, let me repeat, "Why does the 9th Circuit WANT to take the appeal?" Would I like them to? Yes. Do I expect them to? No. Why not? Because its not in the gun-grabbers interest to find errors in law or in fact in England's opinion. So much for circuit split.

Better yet! Then Gura can take his appeal directly to the Supreme Court where the 9th knows that Gura has a perfect record. No, I think that the 9th will want to hear this so that they can inject their opinions in the hope that they can still sway the process.

.

Uxi
08-26-2011, 7:43 AM
I'm thinking that the more public the better, & open carry at the local Starbucks will play better on TV than "killing something" will.


Right! Have weapons become part of fashion, again.

wazdat
08-26-2011, 7:44 AM
I didn't think about 'tailoring' for the audience. Still, as "public outrage" and "disruption" weren't allowed to infringe upon Rights before, I'm not sure putting the idea into the judges heads is a good idea.

I think the idea was to preemptively let the air out of Judge Gonzalez opinion in Peruta that unloaded open carry fulfills the right to bear arms (as unloaded makes the firearm not suitable for immediate use for self defense).

Crom
08-26-2011, 7:53 AM
Speaking of zingers:FN1 Plaintiffs respectfully suggest that two cases pending in this
Court, alleging malfeasance on the part of Sacramento County and its
former Sheriffs by disgruntled handgun carry permit applicants, Mehl
v. Blanas, No. 08-15773 and Rothery v. County of Sacramento, No. 09-16852,
are mooted by the very different practices which now prevail in
Sacramento County. In any event, Plaintiffs’ claims differ starkly from
the sort of allegations leveled in Mehl and Blanas. x1,000,000! :cool:

viet4lifeOC
08-26-2011, 8:22 AM
TWO WEEKS?

When will the 2 weeks be up?

Fate
08-26-2011, 8:37 AM
When will the 2 weeks be up?

In two weeks. DUH.

chief003
08-26-2011, 8:49 AM
From a guy in the cheap seats watching this unfold, this is great argument. :thumbsup:

Government cannot create undefined and arbitrary rules. They must create defined sets of standards that can be met by the public. This is why we have defined speed limits, set hours for juvenile curfew, and land use zoning laws. The rules are defined (hopefully plainly) and discretion is provided to a higher authority for appeal.

If I’m sitting in Yolo County’s County Counsel office reading this brief, I’m wondering what in the hell my Sheriff just got me into…cause I’m either going to spend too much time and money defending his policy, or I’m drafting an argument that is ‘good enough’ to hold up to professional review and effectively passing on the idea of defending the State’s law.

Ike Arumba
08-26-2011, 9:25 AM
Loved this zinger.
... the lower court believed Heller is limited to its specific facts—as though the majority needlessly filled 66 pages of the U.S. Reports for its own edification where a oneline holding would have sufficed to deliver the same precedential value. Apparently rejecting the idea that it should seek guidance in the reasoning offered by a higher court’s opinion, the lower court explained,“Heller’s ultimate holding is not the Court’s interpretation of the historical significance of the Second Amendment’s language.” ... In other words, the Supreme Court’s “interpretation of the historical significance of the Second Amendment’s language” is meaningless. Although review here is in any event de novo, Plaintiffs stress the lower court’s opinion is unusually devoid of persuasive merit, as among its many errors, it appeared to reject the very notion that the Supreme Court’s considered views of the Constitution offered it any guidance.

Paladin
08-26-2011, 3:57 PM
That was taken off calendar for a judge reassignment. See http://www.archive.org/download/gov.uscourts.cand.238467/gov.uscourts.cand.238467.19.0.pdf

-Gene
Ugh. Thanks, Gene. As AndrewM posted somewhere, it's really becoming hard to keep up w/all the pro-RKBA litigation ... and that's a good thing!

Hmm. Dare I ask if the Aug 29th deadline for a "LTC-related" CGF case has been changed?

hoffmang
08-26-2011, 4:14 PM
IANALNDIPOOTV, but I believe there is a logic flaw in the circuit split strategy. 9th Circuit doesn't have to take the appeal. If I may follow your analogy, check-mate. So, let me repeat, "Why does the 9th Circuit WANT to take the appeal?" Would I like them to? Yes. Do I expect them to? No. Why not? Because its not in the gun-grabbers interest to find errors in law or in fact in England's opinion. So much for circuit split.

Uhm... First, an appeal is a right. Second, this is the appeal!

At the bottom of the Calguns Wiki is some explanation of how Federal Court process works. It is kind of an important read if you wish to opine on strategy here.

The lower court ruling is just really poor reasoning. The brief explains that.

-Gene

HowardW56
08-26-2011, 6:25 PM
IANALNDIPOOTV, but I believe there is a logic flaw in the circuit split strategy. 9th Circuit doesn't have to take the appeal. If I may follow your analogy, check-mate. So, let me repeat, "Why does the 9th Circuit WANT to take the appeal?" Would I like them to? Yes. Do I expect them to? No. Why not? Because its not in the gun-grabbers interest to find errors in law or in fact in England's opinion. So much for circuit split.

The 9th Circuit doesn't get a choice... An appeal from the judgement of the district court is a right. The Supreme Court has the discression to grant or deny cert (the appeal).

(OOPS... Gene got here before I did....)

goober
08-26-2011, 7:01 PM
Love it.

Mulay El Raisuli
08-27-2011, 5:20 AM
Right! Have weapons become part of fashion, again.


Actually, I commented on this a while ago. My thought was to have some prominent cutie (Paris Hilton was my choice) start Open carrying. With a holster that was very pretty & girly, carrying an equally pretty gun. Something laser-etched, with Ivory handles, & all that.


I think the idea was to preemptively let the air out of Judge Gonzalez opinion in Peruta that unloaded open carry fulfills the right to bear arms (as unloaded makes the firearm not suitable for immediate use for self defense).


Ah.


The Raisuli

Maestro Pistolero
08-27-2011, 5:38 AM
Originally Posted by Uxi
Right! Have weapons become part of fashion, again.Let's not underestimate he potential of this. I don't know about Paris Hilton as the poster child, though.

But imagine a push for gun safety education that didn't demonize guns, but rather, mainstreamed them through a concerted PR campaign with pro-gun stars as spokespeople. Include women, LGBT, diverse ethnic background, etc , all touting voluntary gun safety education as fun, hip, and part of the responsibility that accompanies the right. Show them in fashionable attire OC'ing in style. This would be very powerful.

Once the floodgates of public carry have swung open, this kind of campaign could be effective and needed. Lots of folks will be handling guns for the first time. Relying completely on a licensing course for all one's training is probably not sufficient for a complete newbie.

The PR and public safety benefits have huge potential here, IMO.

Anchors
08-27-2011, 5:49 AM
Get Perry or Paul (either Paul will do) to win POTUS and then get that person to open carry everywhere. The rest of the socialist world will laugh at us, but being different from them is what has made us who we are.

Get Bruce Willis to OC outside of movies. He is pretty pro-gun already.

RKV
08-27-2011, 7:49 AM
Gene, you and others miss the fundamental point I made. Given what I read in your posts here that's no surprise to me. Gura did not directly confront "rational basis" in his appeal brief. Period. And the only answer I get here when I ask why not is cheer leading or misdirection. Not everyone who asks difficult questions is your "enemy" btw, so just calm down a bit. And maybe try and answer the question of an admitted non-lawyer. I did read the brief and I did read England's opinion, and I can at least say what's in and what's not in both. Give me at least that much. Whatever I may not know about the appeals process is irrelevant to the issue of the construction of the appeal.

Contrary to popular sentiment on this board, our track record to date is not without some loses. We lost Montana Shooting Sports, Peruta, Peterson and Lane (and Richards) at the district level - that by definition is what the word "appealing" means at the wiki, Gene. And Nordyke is looking more and more like Jarndyce and Jarndyce after 12 years of litigation. Ditto the interminable delays in Heller II and Palmer. We classify Ventura as a win, before the sheriff actually delivers the documents. That's a bit over optimistic when you consider how long LA County Sheriff can ignore court orders with no penalties. We are not out of the woods, even after Heller and McDonald - England's judicial nullification in Richards is rather more of what we should expect for a while. My point in bringing these facts up is that I believe we need a realistic understanding of our actual position vis a vis expectations from the appeals process. Which is another reason why Gura's arguments/approach in Richards matters.

On a related note (and I'd love to find out I was wrong on this point, but don't think I am), did Gura ever get paid by DC or Chicago? The answer to that question ought to clarify where we really are.

glockwise2000
08-27-2011, 7:57 AM
How did I missed this. Gotta read a lot after work today.

Thanks Gene.

Connor P Price
08-27-2011, 8:12 AM
Gene, you and others miss the fundamental point I made. Given what I read in your posts here that's no surprise to me. Gura did not directly confront "rational basis" in his appeal brief. Period. And the only answer I get here when I ask why not is cheer leading or misdirection. Not everyone who asks difficult questions is your "enemy" btw, so just calm down a bit. And maybe try and answer the question of an admitted non-lawyer. I did read the brief and I did read England's opinion, and I can at least say what's in and what's not in both. Give me at least that much. Whatever I may not know about the appeals process is irrelevant to the issue of the construction of the appeal.


Why do you think he needed to confront rational basis any more directly?


Contrary to popular sentiment on this board, our track record to date is not without some loses. We lost Montana Shooting Sports, Peruta, Peterson and Lane (and Richards) at the district level - that by definition is what the word "appealing" means at the wiki, Gene. And Nordyke is looking more and more like Jarndyce and Jarndyce after 12 years of litigation. Ditto the interminable delays in Heller II and Palmer. We classify Ventura as a win, before the sheriff actually delivers the documents. That's a bit over optimistic when you consider how long LA County Sheriff can ignore court orders with no penalties. We are not out of the woods, even after Heller and McDonald - England's judicial nullification in Richards is rather more of what we should expect for a while. My point in bringing these facts up is that I believe we need a realistic understanding of our actual position vis a vis expectations from the appeals process. Which is another reason why Gura's arguments/approach in Richards matters.

Those "losses" that you refer to can't be considered losses in any real serious sense. The cases are designed specifically for higher courts. Think about what gives the gun rights community the most bang for out buck, a win in district or a win at SCOTUS? Isn't it then better on the whole to "lose" in lower courts and be able to point out the various flaws in their thinking to a higher court and get a win that sets precedent for a wider area? Your focused on battles when you should be focused on the war.


On a related note (and I'd love to find out I was wrong on this point, but don't think I am), did Gura ever get paid by DC or Chicago? The answer to that question ought to clarify where we really are.

No, neither DC nor Chicago has paid up but I don't think anyone expected them to pay without a separate court battle. Just because they haven't yet doesn't mean they wont be paying at the conclusion of their fight. I think Gura is pretty safe assuming further victories there.

HowardW56
08-27-2011, 8:20 AM
Gene, you and others miss the fundamental point I made. Given what I read in your posts here that's no surprise to me. Gura did not directly confront "rational basis" in his appeal brief. Period. And the only answer I get here when I ask why not is cheer leading or misdirection. Not everyone who asks difficult questions is your "enemy" btw, so just calm down a bit. And maybe try and answer the question of an admitted non-lawyer. I did read the brief and I did read England's opinion, and I can at least say what's in and what's not in both. Give me at least that much. Whatever I may not know about the appeals process is irrelevant to the issue of the construction of the appeal.

Contrary to popular sentiment on this board, our track record to date is not without some loses. We lost Montana Shooting Sports, Peruta, Peterson and Lane (and Richards) at the district level - that by definition is what the word "appealing" means at the wiki, Gene. And Nordyke is looking more and more like Jarndyce and Jarndyce after 12 years of litigation. Ditto the interminable delays in Heller II and Palmer. We classify Ventura as a win, before the sheriff actually delivers the documents. That's a bit over optimistic when you consider how long LA County Sheriff can ignore court orders with no penalties. We are not out of the woods, even after Heller and McDonald - England's judicial nullification in Richards is rather more of what we should expect for a while. My point in bringing these facts up is that I believe we need a realistic understanding of our actual position vis a vis expectations from the appeals process. Which is another reason why Gura's arguments/approach in Richards matters.

On a related note (and I'd love to find out I was wrong on this point, but don't think I am), did Gura ever get paid by DC or Chicago? The answer to that question ought to clarify where we really are.

As I understand it, in the Heller decision the Supreme Court found that the 2nd Amendment represents a fundamental right and that forecloses the possibility of a rational basis standard of review.

Please, somebody correct me if I am wrong...

dantodd
08-27-2011, 8:41 AM
Actually, I commented on this a while ago. My thought was to have some prominent cutie (Paris Hilton was my choice) start Open carrying. With a holster that was very pretty & girly, carrying an equally pretty gun. Something laser-etched, with Ivory handles, & all that.


I don't know about Paris Hilton but I have thought about opening a "fashion" gun shop somewhere like Santana Row. Sell very high end collectible and decorated firearms, do custom desk hideouts and safes etc. I think that bringing firearms into that demographic rather than fighting for crap locations with cities would do a ton for the public perception. I also have a TV/reality show tie in that could work. Unfortunately such a project would need finding for an extended period of unprofitability in the name the cause and I can't afford such a thing.

Connor P Price
08-27-2011, 9:04 AM
As I understand it, in the Heller decision the Supreme Court found that the 2nd Amendment represents a fundamental right and that forecloses the possibility of a rational basis standard of review.

Please, somebody correct me if I am wrong...

Rational basis is not an appropriate standard of review for something affecting a fundamental right. However, our opposition will claim that carrying firearms is not at the core of the right. Its a pretty darn flimsy argument considering the text of the second amendment but its all they've got.

HowardW56
08-27-2011, 10:06 AM
No, neither DC nor Chicago has paid up but I don't think anyone expected them to pay without a separate court battle. Just because they haven't yet doesn't mean they wont be paying at the conclusion of their fight. I think Gura is pretty safe assuming further victories there.

In DC the battle isn't if they are going to pay, it is how much, they have already lost the battle on if they are going to pay...

They have disputed the value of his time and the number of hours spent, I believe that battle is ongoing..


In Chicago (McDonald), he has won the battle that he is entitled to fees, the amount is left to be determined...

dantodd
08-27-2011, 10:09 AM
In DC the battle isn't if they are going to pay, it is how much, they have already lost the battle on if they are going to pay...

They have disputed the value of his time and the number of hours spent, I believe that battle is ongoing..

Gura has already received judgement in both cases that fees are due to him. As you said the only question now is how much.

Connor P Price
08-27-2011, 10:11 AM
In DC the battle isn't if they are going to pay, it is how much, they have already lost the battle on if they are going to pay...

They have disputed the value of his time and the number of hours spent, I believe that battle is ongoing..

That's definitely ringing a bell, I had forgotten the nature of that argument. So much to keep up with lately.

RKV
08-27-2011, 3:24 PM
So why did I think Gura needed to address the fundamental principle on which England based his ruling in Richards (i.e. use of the rational basis standard)? Because any judge who would honestly read Heller/McDonald would know he had to over-rule England! Is that plain enough for you? Believe me, I ENJOYED reading the appeal, that said, what I want to enjoy is a VICTORY. Sometimes you need to spell it out. Maybe because I do software for a living I really like to have assumptions and dependencies spelled out, ditto specific requirements. It doesn't make sense to me why Gura wouldn't just come out and say something like "Heller makes carry a part of the individual right and McDonald makes it a "fundamental right", so based on [insert appropriate case reference here (as noted IINALNDIPOOTV)] intermediate scrutiny is the MINIMUM which can be applied...etc. and BTW strict scrutiny applies here due to ..." Seems straightforward enough to me, and assumptions and lawyerly snide comments (which I was certain I saw in the appeal) just might not convince the court of appeals.

And by the way, I guess from the comments above Gura isn't paid yet, and regardless of the "wins" it ain't over until the check clears the bank folks. At least that's my policy (and given time value of money, I believe it to be rational [us MBAs are like that]).

dantodd
08-27-2011, 3:30 PM
It is relatively unwise to simultaneously disclaim any specialized legal knowledge and criticize the most successful 2A lawyervin the land. Put down the shovel, climb up the ladder and watch, contribute, participate.

Maestro Pistolero
08-27-2011, 3:43 PM
It is relatively unwise to simultaneously disclaim any specialized legal knowledge and criticize the most successful 2A lawyervin the land. Put down the shovel, climb up the ladder and watch, contribute, participate.I don't know. Except for the embarrassment of putting one's foot in one's mouth, I don't see the harm in hashing out logic and strategy here from the layman's POV.

Even if it results in many misguided ideas that have been considered and rejected, one never knows when an undiscovered kernel of logic, strategy or wisdom may be happened upon. What better place to incubate 2A thought?

dantodd
08-27-2011, 3:54 PM
I don't know. Except for the embarrassment of putting one's foot in one's mouth, I don't see the harm in hashing out logic and strategy here from the layman's POV.

Even if it results in many misguided ideas that have been considered and rejected, one never knows when an undiscovered kernel of logic, strategy or wisdom may be happened upon. What better place to incubate 2A thought?

Discussing options are not the same thing as criticizing work product. It's the difference between asking an architect why he used a certain sized beam rather than telling him the beam is inadequate when one doesn't know anything about calculating load bearing capacity etc.

RKV
08-27-2011, 4:17 PM
So shut up and toe the party line is all you have to offer Dan? [Expletive.] I ask what is a reasonable question, and I cannot seem to get a reasonable answer. In case you don't know it, I DO contribute to Calguns, and SAF and NRA, and I'm a former member of the board of directors of my local gun club, so does that meet your freaking standards? I'd LOVE to have the circuit deliver some Ezell grade smackdown here. And that's the discussion I'm aiming to promote. Ever heard of an amicus brief? Think some straight to the hoop logic for a layup might make some sense there? As for work product - NO one is perfect. No one. Not even the great Alan Gura. Ask Justice Scalia about what he thought about Gura's privileges and immunities take in McDonald?

Maestro Pistolero
08-27-2011, 4:27 PM
Discussing options are not the same thing as criticizing work product.No, but either can be productive and useful. Critical analysis is invaluable. Better to shoot holes in a brief here than in front of justices.

I am not speaking to the validity (or lack thereof) of RFK's points here, only saying that to suggest he is out of line as you have, Dan, is not encouraging of a healthy discourse.
One never knows where the next best idea may come from. We all need to keep our eyes, ears, and minds open.

Connor P Price
08-27-2011, 5:40 PM
In the brief, it was mentioned that strict scrutiny is the appropriate standard of review. To say that is also to say that rational basis and intermediate are inappropriate. To me it would be redundant to say both.

Sent from my SGH-T959 using Tapatalk

dantodd
08-27-2011, 5:40 PM
Gene, you and others miss the fundamental point I made. Given what I read in your posts here that's no surprise to me. Gura did not directly confront "rational basis" in his appeal brief. Period.

On a related note (and I'd love to find out I was wrong on this point, but don't think I am), did Gura ever get paid by DC or Chicago? The answer to that question ought to clarify where we really are.

No, but either can be productive and useful. Critical analysis is invaluable. Better to shoot holes in a brief here than in front of justices.

I am not speaking to the validity (or lack thereof) of RFK's points here, only saying that to suggest he is out of line as you have, Dan, is not encouraging of a healthy discourse.
One never knows where the next best idea may come from. We all need to keep our eyes, ears, and minds open.

As you can see from the above quoted, his are not critical analyses but rather attacks and blatant misunderstandings of how the judicial system works. When the issues are explained, by people who are much more knowledgeable and experienced in what is going on he ignores the answers and alludes that Gene, of all people, is incapable of understanding his point.

As another example of a lack of understanding and unwillingness to learn look at his comments regarding attorneys' fees. Both Heller and McDonald have been won and the courts have awarded fees in both cases yet he tries to insinuate that somehow this will never happen. It shows complete ignorance of the system and even after it was explained he not only refused to accept it but appealed to himself as an authority on how attorney fees work by referencing his MBA.

Gray Peterson
08-27-2011, 5:57 PM
As for work product - NO one is perfect. No one. Not even the great Alan Gura. Ask Justice Scalia about what he thought about Gura's privileges and immunities take in McDonald?

Justice Thomas was the target of the P&I focus, not Justice Scalia. If P&I had not been argued at SCOTUS, we would have lost 5/4 in McDonald

From Justice Thomas in Gonzalez v. Carhart, to which Justice Scalia joined:

I join the Court’s opinion because it accurately applies current jurisprudence, including Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992) . I write separately to reiterate my view that the Court’s abortion jurisprudence, including Casey and Roe v. Wade, 410 U. S. 113 (1973) , has no basis in the Constitution. See Casey, supra, at 979 (Scalia, J., concurring in judgment in part and dissenting in part); Stenberg v. Carhart, 530 U. S. 914, 980–983 (2000) (Thomas, J., dissenting). I also note that whether the Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it. See Cutter v. Wilkinson, 544 U. S. 709 , n. 2 (2005) (Thomas, J., concurring)

Simply put, RKV, if Gura did not bring up PorI or make it the main focus, he would have lost Justice Thomas definitely, and there was the bare possibility he would have lost Scalia as well (a concern given the Carhart concurrence).

You play to win. You could not count to 5 votes without PorI being briefed and argued. You're seeing deficiencies where there is none....

Gray Peterson
08-27-2011, 6:14 PM
So why did I think Gura needed to address the fundamental principle on which England based his ruling in Richards (i.e. use of the rational basis standard)? Because any judge who would honestly read Heller/McDonald would know he had to over-rule England! Is that plain enough for you? Believe me, I ENJOYED reading the appeal, that said, what I want to enjoy is a VICTORY. Sometimes you need to spell it out.

If one could draft a 200 or 300 page appeals brief I'm sure he would have. There are limitations, however, per the Federal Rules of Appellate Procedure.

Maybe because I do software for a living I really like to have assumptions and dependencies spelled out, ditto specific requirements. It doesn't make sense to me why Gura wouldn't just come out and say something like "Heller makes carry a part of the individual right and McDonald makes it a "fundamental right", so based on [insert appropriate case reference here (as noted IINALNDIPOOTV)] intermediate scrutiny is the MINIMUM which can be applied...etc. and BTW strict scrutiny applies here due to ..." Seems straightforward enough to me, and assumptions and lawyerly snide comments (which I was certain I saw in the appeal) just might not convince the court of appeals.

The "snide comment" thing is how legal briefs work. An appeal is a review of the errors in the lower court judge. If it doesn't come off as "snide" about the lower court judge being wrong (if you're the appellant), then you're not doing your job as a lawyer and it's malpractice.

And by the way, I guess from the comments above Gura isn't paid yet, and regardless of the "wins" it ain't over until the check clears the bank folks. At least that's my policy (and given time value of money, I believe it to be rational [us MBAs are like that]).

He won on the merits (notice the DC Handgun ban doesn't exist anymore? It also shut up every politician on the federal level wanting a handgun ban), and the only question is how much. DC only wants to pay Gura $800K, claiming poverty and saying Gura doesn't create good billing records. Gura wants $3.17 million. Even if Gura gets $0, the merit ruling still stands.

Kid Stanislaus
08-27-2011, 8:07 PM
Some EXPEDIENCIES are made to reach the end objective...:eek:

There, fixed it for ya!

Kid Stanislaus
08-27-2011, 8:08 PM
My favorite poet used to be Robert Frost, now its Alan Gura!

wildhawker
08-27-2011, 8:46 PM
I don't think it's fair to draw the conclusion that Thomas would not have incorporated 2A but for the P or I argument. Each Justice may offer their opinion, and Thomas did so in McDonald. I do think that, long term, the P or I decision from Thomas was good for future cases (possibly, maybe even probably, not 2A) and liberty interests generally; I do not think that we would have "lost" him if the P or I argument was not on the table.

The Constitution says what it says, history was what is was, and the briefs argued as they did. Thomas was honest enough to reflect it in his plurality opinion, but the fact that he did not join Alito is not probative that he wouldn't have found 2A fundamental. He clearly does, and simply chose the more historically and Constitutionally-appropriate outcome.

-Brandon

Justice Thomas was the target of the P&I focus, not Justice Scalia. If P&I had not been argued at SCOTUS, we would have lost 5/4 in McDonald

From Justice Thomas in Gonzalez v. Carhart, to which Justice Scalia joined:

I join the Court’s opinion because it accurately applies current jurisprudence, including Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992) . I write separately to reiterate my view that the Court’s abortion jurisprudence, including Casey and Roe v. Wade, 410 U. S. 113 (1973) , has no basis in the Constitution. See Casey, supra, at 979 (Scalia, J., concurring in judgment in part and dissenting in part); Stenberg v. Carhart, 530 U. S. 914, 980–983 (2000) (Thomas, J., dissenting). I also note that whether the Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it. See Cutter v. Wilkinson, 544 U. S. 709 , n. 2 (2005) (Thomas, J., concurring)

Simply put, RKV, if Gura did not bring up PorI or make it the main focus, he would have lost Justice Thomas definitely, and there was the bare possibility he would have lost Scalia as well (a concern given the Carhart concurrence).

You play to win. You could not count to 5 votes without PorI being briefed and argued. You're seeing deficiencies where there is none....

Tango-Alpha
08-27-2011, 10:04 PM
Good news indeed. I have my party hat on. :biggrinjester:

Meplat
08-27-2011, 10:49 PM
This sentence is almost sublimely Jeffersonian. I think I would like this formatted for a forehead tattoo. Not for myself, but for someone who needs a daily reminder when he his grooming. In fact, this person has sufficient forehead to accomdate this 'reminder message' so that it could be readable from a few feet away.:)

He probably would not hold still long enough for a tattoo. Just have a branding iron made so you can strike quickly.:43::eek:

Mulay El Raisuli
08-28-2011, 3:40 AM
Let's not underestimate he potential of this. I don't know about Paris Hilton as the poster child, though.

But imagine a push for gun safety education that didn't demonize guns, but rather, mainstreamed them through a concerted PR campaign with pro-gun stars as spokespeople. Include women, LGBT, diverse ethnic background, etc , all touting voluntary gun safety education as fun, hip, and part of the responsibility that accompanies the right. Show them in fashionable attire OC'ing in style. This would be very powerful.

Once the floodgates of public carry have swung open, this kind of campaign could be effective and needed. Lots of folks will be handling guns for the first time. Relying completely on a licensing course for all one's training is probably not sufficient for a complete newbie.

The PR and public safety benefits have huge potential here, IMO.


I don't know about Paris Hilton but I have thought about opening a "fashion" gun shop somewhere like Santana Row. Sell very high end collectible and decorated firearms, do custom desk hideouts and safes etc. I think that bringing firearms into that demographic rather than fighting for crap locations with cities would do a ton for the public perception. I also have a TV/reality show tie in that could work. Unfortunately such a project would need finding for an extended period of unprofitability in the name the cause and I can't afford such a thing.


Well, OK, it doesn't have to be Ms. Hilton. :)


The Raisuli

hoffmang
08-28-2011, 9:09 AM
Arguing about rational basis is pointless. Either it's protected and therefor subject to something more than rational basis or it's not and then we lose.

Heller and McDonald were both lost at the District Court.

I can't comment on Gura getting paid beyond saying that you should expect news. He has binding rulings that the various entities owe him money.

-Gene

RKV
08-28-2011, 1:17 PM
Your opinion Gene (all due respect etc.). As I already stated - amicus briefs might well be able to cover bases missed in the filing. Which was why I bothered to bring the subject up in the first place. YMMV.

WRT Gura getting actually paid, that is certainly not the focus of this thread, but it does indicate is where we really stand at this particular moment. Two big wins, no $$ paid by the losers, and we're still getting judicial nullification at the district court level. Yeah for Ezell, yeah for our appeals on our prior district court losses. Now we gotta get back to the work of actually winning, because right now we don't really scare anyone (well maybe Oak Park). Not the County of LA, not DC, not Chicago, not the PRK (see AB809). Soon I hope.

I'm old enough (just barely) to remember the desegregation of my little home town (in California btw, and yes black people could not stay in some towns in the PRK back in the day). It took a concert by Louis Armstrong to break the color barrier and it happened about the same time as George Wallace was standing in the schoolhouse door at U of A - which was years after Brown v. Board of Education. I don't expect to wake up one morning and have all the unconstitutional gun laws disappear - that's not realistic. That said, we have to do better, and if getting a few members of this board a bit riled up is what it takes, so be it.

M. D. Van Norman
08-28-2011, 2:31 PM
As noted, compliance will be part of the fight.

MTG Firearms
08-28-2011, 2:38 PM
Man you guys are good.

HowardW56
08-28-2011, 2:45 PM
As noted, compliance will be part of the fight.

I vaguely remember an incident in the early 80's when someone had a judgment against the City of Los Angeles (I believe it was the City of LA), and the city didn't or wouldn't pay...

That person or law firm obtained a writ from the court and started towing away city owned vehicles, that ended quickly and the issue went quiet, but governmental agencies can be persuaded to comply...

Gray Peterson
08-28-2011, 4:54 PM
WRT Gura getting actually paid, that is certainly not the focus of this thread, but it does indicate is where we really stand at this particular moment.

No it does not. Attorneys fees case law is completely different than constitutional merit case law. During the middle of the arguments over attorney fees there was a case called Perdue v. Kenny A (http://www.scotuswiki.com/index.php?title=Perdue_v._Kenny_A). The District Court actually held up the entire attorneys fee case for almost 18 months from cert stage to decision. THAT is why Gura hasn't gotten the attorney fees yet.

Meplat
08-28-2011, 8:31 PM
It is impossible to "scare” in any, useful political or legal sense, ideologues who are able to use your own money against you. If that is your definition of success you will be waiting a very long time. We are gaining ground. But litigation has its limitations. One is speed, or lack thereof. I understand your impatience, I share it. But know this, if you want to frighten the enemy under present circumstances you will need to dismiss the ballot box and the jury box. Be very sure you have the fortitude to see it through before you reach for that final box. In the meantime, let me advise you that whining is unbecoming of mature adults. Your opinion Gene (all due respect etc.). As I already stated - amicus briefs might well be able to cover bases missed in the filing. Which was why I bothered to bring the subject up in the first place. YMMV.

WRT Gura getting actually paid, that is certainly not the focus of this thread, but it does indicate is where we really stand at this particular moment. Two big wins, no $$ paid by the losers, and we're still getting judicial nullification at the district court level. Yeah for Ezell, yeah for our appeals on our prior district court losses. Now we gotta get back to the work of actually winning, because right now we don't really scare anyone (well maybe Oak Park). Not the County of LA, not DC, not Chicago, not the PRK (see AB809). Soon I hope.

I'm old enough (just barely) to remember the desegregation of my little home town (in California btw, and yes black people could not stay in some towns in the PRK back in the day). It took a concert by Louis Armstrong to break the color barrier and it happened about the same time as George Wallace was standing in the schoolhouse door at U of A - which was years after Brown v. Board of Education. I don't expect to wake up one morning and have all the unconstitutional gun laws disappear - that's not realistic. That said, we have to do better, and if getting a few members of this board a bit riled up is what it takes, so be it.

hoffmang
08-28-2011, 11:32 PM
Your opinion Gene (all due respect etc.).

It's also Alan Gura's opinion. He's 2-0 and the Supreme Court and 3-0 on landmark 2A litigation (Ezell.)

But, unlike the guy who is winning these cases...

Rational basis analysis does not matter. What matters is intermediate scrutiny dressed as rational basis. Also recall that this is an opening brief. Some of the best arguments are reply arguments and you reserve them for the reply.

Can you tell me why, under your theory of conlaw, we won Heller and McDonald yet lost them in the district courts?

-Gene

Connor P Price
08-28-2011, 11:47 PM
The matter of whether Gura gets paid should be put to bed. There is little question as to whether he will be receiving compensation from DC and Chicago, the only question is how much he'll be getting. I'm guessing more than enough for season tickets to his favorite hockey team with room left over for a nice house on the beach.

stag6.8
08-29-2011, 10:55 AM
I read the brief....very encouraging...I have a few questions..when will a court decision be made regarding this case?.....Also.. whats the story on peruta v. san diego. whats thier court date(if any)? any updated info regarding them? I know their case is just as important....also I`d like to state that...after reading the case documents regarding richards v. prieto.....SB 610 MUST PASS!!!!! thats what going to be the next excuse that law enforcement is going to use against us if we win in the 9th circuit....For those not fimiliar with SB 610 ...please read it ....it goes hand in hand with this present case.

Librarian
08-29-2011, 12:03 PM
I read the brief....very encouraging...I have a few questions..when will a court decision be made regarding this case?.....Also.. whats the story on peruta v. san diego. whats thier court date? any updated info regarding them? I know their case is just as important.

Follow Richards here -- http://wiki.calgunsfoundation.org/index.php/Richards_v._Prieto

Major progress points will be announced on Calguns as they occur.

Apellees get to file a reply brief. Probably will be a bit of back and forth, then oral arguments set. I'd guess those might be October.

After oral arguments, court could provide an opinion as soon as 1 day (IIRC, 7th Circuit did that with McDonald, but everyone expected that decision to be appealed to SCOTUS anyway) or as long as a year or more. Other cases, especially those moving to the Supreme Court, can put lower court cases 'on hold'.

kcbrown
08-29-2011, 3:50 PM
What a pleasurable read! I like, especially, how we're essentially daring the 9th to use strict scrutiny, which will mean the 9th will use its particular variant of "strict scrutiny" wherein the "least restrictive means" test is the only test the court won't automatically find in favor of the disputed law (see here (http://mobile.calguns.net/calgunforum/showpost.php?p=6348434&postcount=287) for my reasoning). :43:

This one pretty much covers all the bases. It's the most comprehensive briefing I've seen to date. Great stuff.

Apocalypsenerd
08-29-2011, 6:46 PM
^^^A rare, upbeat note from KC.

ddestruel
08-29-2011, 8:39 PM
What a pleasurable read! I like, especially, how we're essentially daring the 9th to use strict scrutiny, which will mean the 9th will use its particular variant of "strict scrutiny" wherein the "least restrictive means" test is the only test the court won't automatically find in favor of the disputed law (see here (http://mobile.calguns.net/calgunforum/showpost.php?p=6348434&postcount=287) for my reasoning). :43:

This one pretty much covers all the bases. It's the most comprehensive briefing I've seen to date. Great stuff.



Are you feeling ok? or did h*** (CA) just freeze over

kcbrown
08-29-2011, 9:21 PM
Are you feeling ok? or did h*** (CA) just freeze over

No, that'll happen when we get LOC here in California. :D