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hoffmang
10-20-2011, 6:17 PM
In the last two days, there has been an interesting development. Yesterday, former SG Paul Clement substituted into Peruta (http://www.hoffmang.com/firearms/richards-v-prieto/Peruta-Associate-Atty-Clement-20111019.pdf) (and off of the NRA Amicus if you will.) Today he filed a letter (http://www.hoffmang.com/firearms/richards-v-prieto/Peruta-Ltr-AB144-20111020.pdf) pointing out the impact of AB-144 on the lower court's reasoning.

-Gene

safewaysecurity
10-20-2011, 6:22 PM
Clement is a very smart guy. I heard him in the Heller Orals and it was impressive to say the least.

taperxz
10-20-2011, 6:27 PM
CGF is full of fun news today:)

Barabas
10-20-2011, 6:27 PM
In brief: Please don't send this back to the District Court.

Gray Peterson
10-20-2011, 6:29 PM
I find this interesting, considering earlier reported comments by Chuck Michel about asking for a remand...Sean and Chris can slap me if I read these reports wrong or the media skewered the meaning...

wash
10-20-2011, 6:32 PM
I thought he was the "machine guns" guy at Heller.

He was better at McDonald but still I prefer Alan Gura.

Is this move going to make it harder for the Judge to pull some lame excuse out of their posterior?

I thought the original council was doing an adequate job, why is someone pulling these strings?

safewaysecurity
10-20-2011, 6:36 PM
I thought he was the "machine guns" guy at Heller.

He was better at McDonald but still I prefer Alan Gura.

Is this move going to make it harder for the Judge to pull some lame excuse out of their posterior?

I thought the original council was doing an adequate job, why is someone pulling these strings?

Yup he is the machine guns guy. I think he's correct in that regard. I don't like that Gura said the right does not protect "machine guns".

Tier One Arms
10-20-2011, 6:50 PM
I agree, the right absolutely protects machine guns, and I would go even farther than that...

G60
10-20-2011, 6:51 PM
Gura said what he needed to say to win.

Ubermcoupe
10-20-2011, 6:54 PM
the district court placed great emphasis upon its determination that California law does not “restrict[] the open carry of unloaded firearms and ammunition ready for instant loading,"

It does now! :D

The Shadow
10-20-2011, 7:39 PM
I'm getting that warm fuzzy feeling. :D

chief003
10-20-2011, 7:45 PM
Does this mean that the NRA or some other (important) party thinks this case has significant implications beyond California?

HowardW56
10-20-2011, 7:50 PM
I would have loved to be a fly on the wall when the county council received that notice....

:rolleyes:

Connor P Price
10-20-2011, 8:10 PM
Does this mean that the NRA or some other (important) party thinks this case has significant implications beyond California?

It most certainly does have broader implications than just CA.

This is pretty interesting, the .gov has backed itself into quite a corner in Peruta. I've got to imagine that they are beginning to see the writing on the wall here.

Sent from my SGH-T959 using Tapatalk

dantodd
10-20-2011, 8:28 PM
Gura isn't an option since this is an "NRA case" now. I don't think BRA would have put Clement on the case if they thought this wasn't a winner at this point. They provably wouldn't have put him on the case if they thought it would flat out win in district or even circuit. My guess is they expect it to win but not until getting to SCOTUS.

Will be interesting to see if they support sharing Oral's at SCOTUS with Alan if Richards is "related" since that's what happened with McDonald.

OleCuss
10-20-2011, 8:40 PM
I'm no expert in such things, but I think I may be seeing something that has not been pointed out.

IIRC, Chuck Michel's firm was representing Peruta. So far as I can tell that is a very good law firm whom I'd be happy to represent me if I were in their area and needed their assistance. But I don't think they have any members of that firm who work before/in/whatever the SCOTUS.

But Clements does represent clients before the SCOTUS. So when Clements takes over the case and tells the court they should not remand but should go ahead and decide the case - it really looks to me like Mr. Peruta is sort of telling the court that they are preparing to take this case to the SCOTUS and that it really is wasting time to remand. It is also a sort of warning to the court to pay close attention to the existing SCOTUS rulings because if they don't get it right they are going to have a heavy hitter asking the SCOTUS to slap the Circuit around.

Interesting moves. I'll be very interested in what happens in the next week or so and also what the circuit does with the case.

Purple K
10-20-2011, 9:36 PM
Hmmm.... Maybe a firearms carry case from the left coast will make it to SCOTUS.

Al Norris
10-20-2011, 9:48 PM
And OleCuss wins the donut!!

Like him or not, Paul Clement is the equivalent of bringing out the 16inch Navel Artillery.

Crom
10-20-2011, 9:56 PM
Very interesting indeed. Does anyone feel that there could be a chance to win in the 9th here and have that decision confirmed at SCOTUS? Think about it. The 9th circuit in Nordyke IV (http://scholar.google.com/scholar_case?case=5678782307901693880) (2009) incorporated the 2A. They made the leap. They can do this! We could get carry sooner than I originally thought. :grouphug:

For those that don't know I'd like to point out the Peruta case is funded by CRPAF and the NRA.

The lawsuit and appeal are being funded by the NRA-CRPA Foundation Legal Action Project (LAP). To fight for the self-defense civil rights of all Californians, the NRA and CRPA Foundation have joined forces. Through LAP, NRA/CRPAF attorneys fight ill-conceived gun control laws and ordinances, educate state and local officials about available programs that are effective in reducing accidents and violence without infringing on the rights of law-abiding gun owners, and produce valid science about game and wildlife resource management.

To contribute to the NRA/CRPAF Legal Action Project (LAP) and support this and similar efforts and Second Amendment litigation in California, visit www.crpafoundation.org (http://www.crpafoundation.org/) and www.nraila.org (http://www.nraila.org/).
-Source (http://www.nraila.org/Legislation/Read.aspx?ID=6847)

Connor P Price
10-20-2011, 10:28 PM
Crom, I love your optimism but hoping for a win in the 9th seems overly optimistic does it not? Even if they know they'll get reversed I think they'll punt it up to scotus just because they don't want to be the ones to make that call. It is the ninth after all, what's one more reversal?

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wildhawker
10-20-2011, 10:54 PM
Hmmm.... Maybe a firearms carry case from the left coast will make it to SCOTUS.

Alan Gura, Don Kilmer, SAF, CGF, fantastic individual plaintiffs, and an artfully-crafted lawsuit that challenges both "good cause" and "good moral character"... yeah, not so worried about the left coast.

-Brandon

unusedusername
10-20-2011, 10:59 PM
I would have loved to be a fly on the wall when the county council received that notice....

It is very unlikely that the county council is as familiar with nationwide firearms litigation as the folks on this board are. It is very likely that the county council had never heard the name before receiving the filing.

I would like to be the fly on the wall when they researched who he is though :)

safewaysecurity
10-21-2011, 12:31 AM
It is very unlikely that the county council is as familiar with nationwide firearms litigation as the folks on this board are. It is very likely that the county council had never heard the name before receiving the filing.

I would like to be the fly on the wall when they researched who he is though :)

It's very likely that they have heard of him given that he was the former Solicitor General.

press1280
10-21-2011, 2:15 AM
I've gotten the impression that if Clement asks for certiorari, he'll get it no matter what..........

Wolverine
10-21-2011, 3:35 AM
I've gotten the impression that if Clement asks for certiorari, he'll get it no matter what..........

Among some members of the court, it helps that Clement clerked for Scalia.

PsychGuy274
10-21-2011, 4:18 AM
This makes me happy.

HowardW56
10-21-2011, 7:18 AM
It's very likely that they have heard of him given that he was the former Solicitor General.

:iagree:

Patrick-2
10-21-2011, 7:51 AM
I'm with Al (and the rest of you): Big Guns. The Court likes the man. He was a good SG even if we did not agree with him all the time.

Ubermcoupe
10-21-2011, 8:34 AM
Clement clerked for Scalia.

I didn't know that. That's somewhat promising. :yes:

Big Ben
10-21-2011, 8:39 AM
Very interesting. It will be interesting to see whether the case gets kicked back down or not.

Crom
10-21-2011, 10:19 AM
Crom, I love your optimism but hoping for a win in the 9th seems overly optimistic does it not? Even if they know they'll get reversed I think they'll punt it up to scotus just because they don't want to be the ones to make that call. It is the ninth after all, what's one more reversal?

Sent from my SGH-T959 using Tapatalk

Connor, I don't know for sure. In retrospect, it was very unreasonable for me to hope for a win at trial court. However, I do think there is at least a chance to win here. Let me give three examples of why I think this.

First take Heller. Remember that Heller lost at trial court, won on Appeal and was affirmed by SCOTUS. (Loss -> Win -> Win)

Second Let's look some text from McDonald. The bold text illustrates my point.

The District Court rejected plaintiffs' argument that the Chicago and Oak Park laws are unconstitutional. See App. 83-84; NRA, Inc. v. Oak Park, 617 F. Supp. 2d 752, 754 (ND Ill. 2008). The court noted that the Seventh Circuit had "squarely upheld the constitutionality of a ban on handguns a quarter century ago," id., at 753 (citing Quilici v. Morton Grove, 695 F. 2d 261 (CA7 1982) (http://scholar.google.com/scholar_case?case=2213243195673531187&q=mcdonald+v+chicago&hl=en&as_sdt=2003)), and that Heller had explicitly refrained from "opin on the subject of incorporation vel non of the Second Amendment," [I]NRA, 617 F. Supp. 2d, at 754. The court observed that a district judge has a "duty to follow established precedent in the Court of Appeals to which he or she is beholden, even though the logic of more recent caselaw may point in a different direction." Id., at 753.

The Seventh Circuit affirmed, relying on three 19th-century cases—United States v. Cruikshank, 92 U. S. 542 (1876), (http://scholar.google.com/scholar_case?case=9699370891451726349&q=mcdonald+v+chicago&hl=en&as_sdt=2003) Presser v. Illinois, 116 U. S. 252 (1886), (http://scholar.google.com/scholar_case?case=4596878248056996108&q=mcdonald+v+chicago&hl=en&as_sdt=2003) and Miller v. Texas, 153 U. S. 535 (1894) (http://scholar.google.com/scholar_case?case=7735014691628913926&q=mcdonald+v+chicago&hl=en&as_sdt=2003)—that were decided in the wake of this Court's interpretation of the Privileges or Immunities Clause of the Fourteenth Amendment in the Slaughter-House Cases, 16 Wall. 36 (1873) (http://scholar.google.com/scholar_case?case=12565118578780815007&q=mcdonald+v+chicago&hl=en&as_sdt=2003). The Seventh Circuit described the rationale of those cases as "defunct" and recognized that they did not consider the question whether the Fourteenth Amendment's Due Process Clause incorporates the Second Amendment right to keep and bear arms. NRA, Inc. v. Chicago, 567 F. 3d 856, 857, 858 (2009) (http://scholar.google.com/scholar_case?case=10667104164195572468&q=mcdonald+v+chicago&hl=en&as_sdt=2003). Nevertheless, the Seventh Circuit observed that it was obligated to follow Supreme Court precedents that have "direct application," and it declined to predict how the Second Amendment would fare under this Court's modern "selective incorporation" approach. Id., at 857-858 (internal quotation marks omitted).

So understanding the operating principals of the different levels of the federal courts is very important. In McDonald the district judge did his job as he was bound by established precedent, even though "the logic of more recent caselaw may point in a different direction."

Reading the next McDonald quote tells us that the Seventh Circuit declined to opine on what SCOTUS would do, but they could have formed an opinion, and that is the point.

My last example is what happened in Nordyke IV when the 9th cir. incorporated the 2A through the 14A due process clause. They formed an opinion, and a correct one at that.

It's anybody's guess as to what's going to happen. But why not? Why wouldn't the Peruta 3-judge panel form an opinion and help define the core of the 2A?

I guess it all depends on the Judges and of course the attorneys and legal arguments.

wash
10-21-2011, 10:48 AM
I'm still skeptical, the whole Peruta case happened because Ed Peruta pushed his lawsuit and pretty much forced NRA/CRPA to send in Chuck Michel to do cleanup.

It wound up in court before Sykes née Richards because CGF/SAF was busy convincing Sacramento County to go shall issue to drop out of the lawsuit. Then Peruta lost. I'm not blaming that on his legal team, but the result of not waiting for CGF/SAF is that several counties that were on the fence about going shall issue decided to stick with discretionary issue after Peruta lost.

That was a big time tactical error.

Now Clement comes in? Is this just a case of NRA not wanting to give SAF any credit for turning California shall issue? What happens if they lose?

News flash: Ed Peruta isn't the right plaintiff for this case.

Lawsuits like these have to be carefully crafted, plaintiffs have to be searched out and vetted, it sounds backwards but going out and suing the government because you were wronged (like Ed did) is not the right way to actually win. Just look at the plaintiffs in Sykes née Richards, they don't have any of the residency issues that Peruta has, they are in Sacramento and Yolo counties specifically for the judges they would draw and then their personal backrounds create sympathy even with left leaning judges.

I'm sorry to say this but Ed Peruta set back California carry about 18 months and Clement might kill it.

I hope that doesn't happen but those are the stakes in the game.

Kharn
10-21-2011, 11:10 AM
Wash,
So how do you think Clement will harm the RKBA in CA? Lawyers argue for their client's interests, even if last week they were on the opposite side of the issue.

wash
10-21-2011, 11:26 AM
If it's the wrong case and SCOTUS doesn't want to hear it, we get screwed.

Crom
10-21-2011, 11:26 AM
[...] Peruta lost.

Every single carry case thus far has lost at trial court.


Now Clement comes in? What happens if they lose?

It doesn't matter, the case will get appealed either way. What matters are the sound legal arguments that are made before the court.


News flash: Ed Peruta isn't the right plaintiff for this case.

Why do you say this? He is a non-prohibited person who was denied his permit to carry for self defense?


they don't have any of the residency issues that Peruta has

The county folded on that argument conceding that he is a resident. This is old news.


I'm sorry to say this but Ed Peruta set back California carry about 18 months and Clement might kill it.

I recommend that you check your facts and get informed then form a different opinion. If you don't like they guy that's one thing but at least try to be correct in what you post.

wash
10-21-2011, 11:31 AM
Think about it.

Realize that we would have lost McDonald v. Chicago if NRA's case had been chosen for cert.

This ain't checkers.

wash
10-21-2011, 11:35 AM
Not everything has to win at SCOTUS but Peruta was losing in San Diego while Sykes was busy winning in Sacramento...

wildhawker
10-21-2011, 11:39 AM
I'm with Al (and the rest of you): Big Guns. The Court likes the man. He was a good SG even if we did not agree with him all the time.

Sure, but there's something else. It's not what, but when.

-Brandon

1BigPea
10-21-2011, 11:44 AM
Interesting, to me this seems to be a good thing.

mdimeo
10-21-2011, 12:05 PM
Realize that we would have lost McDonald v. Chicago if NRA's case had been chosen for cert.

Nah. Thomas would have written exactly the same concurrence, and the result would have been the same.

OleCuss
10-21-2011, 12:17 PM
Nah. Thomas would have written exactly the same concurrence, and the result would have been the same.

Actually, it is not at all clear that Thomas would have concurred.

If the NRA had gotten cert then Gura may not have gotten time to argue before the court at the same level - either in writing or in orals.

Gura did not make his P or I argument just because he liked it or wanted to see if he could get incorporation under P or I and thus get P or I generally accepted in jurisprudence. It appears highly likely that Gura figured that getting four justices to vote for incorporation under substantive due process was nearly a slam dunk. The problem may have been that Thomas wasn't going to go along with the substantive due process but would buy a P or I argument. So Gura made the substantive due process argument in his writings along with the P or I argument - and when the NRA took away his time for doing the due process orals he did the P or I orals.

Net effect is that the expected four votes under due process came in and Thomas bought the P or I argument as a concurrence.

But if the NRA's case had gotten cert the P or I argument probably would not have been made and the Thomas concurrence based on the P or I argument would not have been written - and it is not at all clear he would have voted for incorporation under due process.

Peaceful John
10-21-2011, 12:33 PM
Does this mean that the NRA or some other (important) party thinks this case has significant implications beyond California?

Someone correct me if I'm wrong, but doesn't Peruta contend that "self-defense" is cause to issue a license to carry? If that is the case, then, yes, this might be important.

First, self-defense doesn't stop at your front door. It is arguably more likely that self-defense will be required outside the home. This bears on "bear".

Second, "sensitive areas" are impacted. How can the law-abiding who arm themselves for self-defense be disarmed when in a school zone that does not insure disarmament of the non-law abiding? One would think that sensitive areas would need to be clearly defined to areas where there is one access / egress point and *everyone* is checked at the limits of technology.

Others will doubtlessly expand this list, but if Peruta only helps to establish those two points it'll probably be worth Mr. Clement's effort.

Connor P Price
10-21-2011, 12:34 PM
Connor, I don't know for sure. In retrospect, it was very unreasonable for me to hope for a win at trial court. However, I do think there is at least a chance to win here. Let me give three examples of why I think this.

First take Heller. Remember that Heller lost at trial court, won on Appeal and was affirmed by SCOTUS. (Loss -> Win -> Win)

Second Let's look some text from McDonald. The bold text illustrates my point.





So understanding the operating principals of the different levels of the federal courts is very important. In McDonald the district judge did his job as he was bound by established precedent, even though "the logic of more recent caselaw may point in a different direction."

Reading the next McDonald quote tells us that the Seventh Circuit declined to opine on what SCOTUS would do, but they could have formed an opinion, and that is the point.

My last example is what happened in Nordyke IV when the 9th cir. incorporated the 2A through the 14A due process clause. They formed an opinion, and a correct one at that.

It's anybody's guess as to what's going to happen. But why not? Why wouldn't the Peruta 3-judge panel form an opinion and help define the core of the 2A?

I guess it all depends on the Judges and of course the attorneys and legal arguments.

I definitely see where your coming from. The reason I'm skeptical is because this is the 9th rather than the 7th, and look at how long it took to get Nordyke only marginally right. Maybe I've got a touch of BGOS, who knows.

Sent from my SGH-T959 using Tapatalk

Rossi357
10-21-2011, 12:58 PM
IMHO
I think the legislative intent regarding concealed carry was to have the sheriff weed out the dirty, sneaky people from concealing their firearms. Men of good moral character could carry concealed. Honorable men carried their firearms in the open.
Irregardless of legislative intent regarding concealed carry, and AB144, I think the lower courts will use rational basis till SCOTUS says otherwise.
I also think that Ezell would have lost but for the fact that Chicago required qualifing at a gun range.

Glock22Fan
10-21-2011, 1:01 PM
I looked up BGOS and only found two definitions:

*****BGOS (http://www.acronymfinder.com/Burton-Global-Open-Series-(snowboarding-competition)-(BGOS).html)Burton Global Open Series (snowboarding competition)

**BGOS (http://www.acronymfinder.com/Barry-Graham-Oil-Service-(Alabama)-(BGOS).html)Barry Graham Oil Service (Alabama)

I must admit I am puzzled by the reference here.

Crom
10-21-2011, 1:06 PM
[BGOS] Battered Gun Owner Syndrome - Usually a chronic condition in which pessimism dominates the attitude of the afflicted gun owner with respect towards the future of the 2A right.

^My definition.

wash
10-21-2011, 1:11 PM
How about UGOS?

Unrealistic gun owner syndrome, people who think being right on the issues guarantees victory in court.

Look at the carry cases who have been denied cert.

Crom
10-21-2011, 1:24 PM
Someone correct me if I'm wrong, but doesn't Peruta contend that "self-defense" is cause to issue a license to carry? If that is the case, then, yes, this might be important.

First, self-defense doesn't stop at your front door. It is arguably more likely that self-defense will be required outside the home. This bears on "bear".

Second, "sensitive areas" are impacted. How can the law-abiding who arm themselves for self-defense be disarmed when in a school zone that does not insure disarmament of the non-law abiding? One would think that sensitive areas would need to be clearly defined to areas where there is one access / egress point and *everyone* is checked at the limits of technology.

Others will doubtlessly expand this list, but if Peruta only helps to establish those two points it'll probably be worth Mr. Clement's effort.

John,

Yes. Peruta asserts that "Self Defense" = "Good Cause."

However, in this case sensitive places are not at stake.

I like how in Paul Clement's letter he is telling the court that they should take action and review this case. I think he is asking them to do de novo review.

Moreover, whatever impact A.B. 144 has on this case is a pure question of law that this Court can and should consider in the first instance.


The third standard of review is de novo (http://en.wikipedia.org/wiki/Standard_of_review), review as if the appellate court were considering the question for the first time. Legal decisions of a lower court on questions of law are reviewed using this standard. This is also called the "legal error" standard. It allows the appeals court to substitute its own judgment about whether the lower court correctly applied the law.

Peaceful John
10-21-2011, 1:40 PM
John,

Yes. Peruta asserts that "Self Defense" = "Good Cause."

However, in this case sensitive places are not at stake.

Thanks, Crom. I'm afraid I wasn't as clear as I should have been, I didn't intend to say that sensitive places are a current issue with Peruta. What I meant was that if Peruta turns out the way we would hope, then at that point judicial support for all the sensitive places that now exist (and the ease with which new ones can be created) will be reduced, for the reasons mentioned in my post.

Cordially,
John

hoffmang
10-21-2011, 7:43 PM
Why do you say this? He is a non-prohibited person who was denied his permit to carry for self defense?

...

I recommend that you check your facts and get informed then form a different opinion. If you don't like they guy that's one thing but at least try to be correct in what you post.

I suggest that there is a reason that the Peruta case does not challenge the "good moral character" requirement. I suggest trying some google key words with Mr. Peruta's name to see about his early law enforcement career or his stint in the securities business. He's not prohibited, but....

-Gene

Edward Peruta
10-22-2011, 4:24 AM
To Gene Hoffman:

Your repeated attempts to confuse the issue(s) in my case on this public forum are not unexpected and appear to have some type of misguided self serving motive.

So, against the advice of my legal team, I will exercise my right to respond through the use of my keyboard.

What you fail to tell the readers of this forum is that the San Diego Sheriff’s Department at the time of my application, received several letters from high ranking well respected former and current members of law enforcement here on the east coast who attested to my “GOOD MORAL CHARACTER”.

FOR THE RECORD:

The reason that "GOOD MORAL CHARACTER" was not addressed or challenged in my San Diego CCW case is very simple.

After FULL DISCLOUSURE of my background in the application for a CCW in San Diego, the County denied my application on two and only two very specific grounds.

RESIDENCY and GOOD CAUSE.

GOOD MORAL CHARACTER WAS NEVER AN ISSUE IN THEIR REASON FOR MY DENIAL.

A PLAINTIFF CANNOT APPEAL AN ISSUE THAT WAS NOT PRESENT OR PART OF THE REASON FOR A DENIAL.

wildhawker
10-22-2011, 4:37 AM
Ed,

Do you know the difference between a facial challenge and an as-applied challenge?

-Brandon

PsychGuy274
10-22-2011, 4:41 AM
To Gene Hoffman:

Your repeated attempts to confuse the issue(s) in my case on this public forum are not unexpected and appear to have some type of misguided self serving motive.

So, against the advice of my legal team, I will exercise my right to respond through the use of my keyboard.

What you fail to tell the readers of this forum is that the San Diego Sheriff’s Department at the time of my application, received several letters from high ranking well respected former and current members of law enforcement here on the east coast who attested to my “GOOD MORAL CHARACTER”.

FOR THE RECORD:

The reason that "GOOD MORAL CHARACTER" was not addressed or challenged in my San Diego CCW case is very simple.

After FULL DISCLOUSURE of my background in the application for a CCW in San Diego, the County denied my application on two and only two very specific grounds.

RESIDENCY and GOOD CAUSE.

GOOD MORAL CHARACTER WAS NEVER AN ISSUE IN THEIR REASON FOR MY DENIAL.

A PLAINTIFF CANNOT APPEAL AN ISSUE THAT WAS NOT PRESENT OR PART OF THE REASON FOR A DENIAL.

:popcorn:

OleCuss
10-22-2011, 4:57 AM
Ed,

Do you know the difference between a facial challenge and an as-applied challenge?

-Brandon

Ouch.

Gray Peterson
10-22-2011, 5:12 AM
Ed,

Do you know the difference between a facial challenge and an as-applied challenge?

-Brandon

Ouch.

Ouch is right. When it comes to fundamental civil rights, facial challenges, though more difficult, is the preferred option as the government cannot weasel out.

Kid Stanislaus
10-22-2011, 8:36 AM
I agree, the right absolutely protects machine guns, and I would go even farther than that...

I want my fully functional Abrams battle tank!:eek:

dantodd
10-22-2011, 9:46 AM
Ouch is right. When it comes to fundamental civil rights, facial challenges, though more difficult, is the preferred option as the government cannot weasel out.

At least we have adult supervision post-district.

Crom
10-22-2011, 10:41 AM
Gene, Why the continued hostility? Can't the hatchet be buried? At this point personalities should not be a factor and Peruta represents purely a question of law for the court to answer. That's what Clement said Right?

Ed,

Do you know the difference between a facial challenge and an as-applied challenge?

-Brandon

Ouch is right. When it comes to fundamental civil rights, facial challenges, though more difficult, is the preferred option as the government cannot weasel out.

Whats the real point here?

If you examine the Richards legal arguments in the Second Amended Complaint (http://www.archive.org/download/gov.uscourts.caed.191626/gov.uscourts.caed.191626.48.0.pdf) you will see quite plainly in the Prayer for Relief that Richards asks the court for one or the other. You make both arguments and let the court decide. Come on guys.


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;

The Peruta case may not be perfect but I'd wager that it will get the trick done.

I think the real issue here is that some people are mad because the case is beyond their control and I think it's that which drives them absolutely crazy.

Quser.619
10-22-2011, 11:12 AM
I agree, the time for nit-picking & shots from the peanut gallery are over. The ruling relied upon open-carry being a viable alternative. Open-carry's days are numbered. Maybe Rumsfeld was correct, you use the army that you have. Clements' involvement, to me at least, looks like an acceptable means to attack LTC in San Diego. Granted I'm biased, I live here & am obviously not an attorney... I'll admit straight out I do not always see the long term goals or the moves being made behind-the-scenes. I say this out of respect & openly admitting my lack of knowledge of the inside game. It is not meant to offend.

Ed, thanks for chiming in, but please follow your legal advice & quit posting regarding this case. I promise you that if you win, the doubters here are man enough to admit their wrongs. Let's not possibly endanger that potentially by making a rookie mistake. You already have the Sheriff of CA's 2nd largest city doubting you, who really cares what said until final judgement is rendered?

hoffmang
10-22-2011, 11:43 AM
Gene, Why the continued hostility? Can't the hatchet be buried? At this point personalities should not be a factor and Peruta represents purely a question of law for the court to answer. That's what Clement said Right?

If only that were true. What do you think the headline in the New York Times will be when Ladd Everitt of CSGV does the google searches I mention above?

Are you sure this is the plaintiff we're ok with going all the way? At least Mr. Williams in MD had a less colorful past. Wonder if that will keep the Peruta case from being granted... Heh.

Mr. Peruta doesn't take the advice of his lawyers or anyone else. I've got personal experience with that.

The Peruta case will leave the good moral character issue out there. Remember that the Peruta complaint was copied word for word from the original Sykes/Richards complaint - well, except for the good moral character prayer. Then Chuck Michel ammended and left the GMC issue out again.

I leave it to the reader to draw an apporpriate conclusion.

Leaving lose ends in something so important for the Second Amendment is troubling.

-Gene

Kharn
10-22-2011, 12:05 PM
Not everyone can make perfect strategic decisions every time and a lot of people have colorful pasts, can we move on without the mud slinging?

dantodd
10-22-2011, 12:15 PM
Not everyone can make perfect strategic decisions every time and a lot of people have colorful pasts, can we move on without the mud slinging?

Some people do have colorful pasts, that is true. Those with such pasts should not be proscribed from exercising their 2A rights. However; they also shouldn't be the ones leading the fight.

We need sympathetic plaintiffs who can be the face of the movement and let the rest enjoy the rights protected thereby.

Also, Peruta didn't make an imperfect strategy decision. He purposefully ignored advice that was given before he filed. Then, aft ignoring that advice he stole the intellectual property of Alan Gura and CGF et. al.

The Shadow
10-22-2011, 12:52 PM
I suggest that there is a reason that the Peruta case does not challenge the "good moral character" requirement. I suggest trying some google key words with Mr. Peruta's name to see about his early law enforcement career or his stint in the securities business. He's not prohibited, but....

-Gene

Do tell.

If only that were true. What do you think the headline in the New York Times will be when Ladd Everitt of CSGV does the google searches I mention above?

Are you sure this is the plaintiff we're ok with going all the way? At least Mr. Williams in MD had a less colorful past. Wonder if that will keep the Peruta case from being granted... Heh.

Mr. Peruta doesn't take the advice of his lawyers or anyone else. I've got personal experience with that.

The Peruta case will leave the good moral character issue out there. Remember that the Peruta complaint was copied word for word from the original Sykes/Richards complaint - well, except for the good moral character prayer. Then Chuck Michel ammended and left the GMC issue out again.

I leave it to the reader to draw an apporpriate conclusion.

Leaving lose ends in something so important for the Second Amendment is troubling.

-Gene

I found something about an "Ed Peruta" in Connecticut, regarding Freedom of information issues with the State Police. The pejorative they assign to Peruta's name is "Gadfly". But I'm not sure what problems Peruta had while he was in LE or doing securities. Is this really important, or would they simply be issues that could muddy the water and be used as propaganda to push the anti-gun agenda ?

dantodd
10-22-2011, 12:56 PM
I found something about an "Ed Peruta" in Connecticut, regarding Freedom of information issues with the State Police. The pejorative they assign to Peruta's name is "Gadfly". But I'm not sure what problems Peruta had while he was in LE or doing securities. Is this really important, or would they simply be issues that could muddy the water and be used as propaganda to push the anti-gun agenda ?

you'll remember the story of D'Cruz v. BATFE which is now Jennings v. BATFE.

Plaintiffs matter, even if it is just for appearances.

The Shadow
10-22-2011, 1:18 PM
you'll remember the story of D'Cruz v. BATFE which is now Jennings v. BATFE.

Plaintiffs matter, even if it is just for appearances.

I'm not sure I follow you. That case is about adults under 21 years, not being able to purchase a handgun without mommy and daddy's help. None of them seem to have a "colorful" past, so am I missing something ?

kcbrown
10-22-2011, 1:24 PM
Leaving lose ends in something so important for the Second Amendment is troubling.


And yet, that's exactly what we do whenever we bring before the court a case which does not address "keep" or "bear" in their entirety, including things like permitting schemes, etc.

Is it not true that you want the court to answer the minimum number of questions in order to maximize the chances of winning the case? Would not involving GMC with the same case as GC reduce the chance of winning? Somehow, I presume not, since Gura is counsel for Richards and that case asks both questions, but if Peruta gets to SCOTUS before Richards does and gets the GC question answered, wouldn't Richards then be able to bring the GMC question before the same court?

Looks to me like it's going to be a timing issue more than anything else.


I'm not really defending the Peruta case here. I expect that Gura's strategy with respect to Richards is sound, and you can't argue against success.

G60
10-22-2011, 1:26 PM
Plaintiff D'cruz was vilified, and still is by the brady's & their friends because of some pictures of himself and quotes he had put up on his Facebook page.

They still bring up the 'violent' quotes and images of him in a zoot suit holding a tommy gun and call him the 'NRA's poster boy' for the case even thought he is no longer a plaintiff.

kcbrown
10-22-2011, 1:27 PM
But if the NRA's case had gotten cert the P or I argument probably would not have been made and the Thomas concurrence based on the P or I argument would not have been written - and it is not at all clear he would have voted for incorporation under due process.

Wouldn't the PorI argument have been made through an amicus brief, then? Or is the implication here that amicus briefs are summarily ignored by the court when the chips are down?

Al Norris
10-22-2011, 1:28 PM
you'll remember the story of D'Cruz v. BATFE which is now Jennings v. BATFE.

Plaintiffs matter, even if it is just for appearances.

Are you trying to imply that the NRA knows this?

Court of Appeals Docket #: 11-10959 Docketed: 10/07/2011
Nature of Suit: 2440 Other Civil Rights
National Rifle Association, et al v. Bureau of Alcohol, Tobacco, et al
Appeal From: Northern District of Texas, Lubbock

God forbid that the NRA take a back seat to an 18 yr. old girl!

hoffmang
10-22-2011, 3:17 PM
I found something about an "Ed Peruta" in Connecticut, regarding Freedom of information issues with the State Police. The pejorative they assign to Peruta's name is "Gadfly". But I'm not sure what problems Peruta had while he was in LE or doing securities. Is this really important, or would they simply be issues that could muddy the water and be used as propaganda to push the anti-gun agenda ?

I think the other side could make some serious hay with these facts (http://www.myrockyhill.com/uploads/Peruta%20Papers.pdf).

-Gene

kcbrown
10-22-2011, 4:35 PM
I think the other side could make some serious hay with these facts (http://www.myrockyhill.com/uploads/Peruta%20Papers.pdf).


Aren't such things more likely to cause SCOTUS to deny cert, the way they did with Williams, than cause them to issue an anti-2A ruling?

If so, that would bring up Richards next (as regards cases from California, at any rate), no?


ETA: Admittedly, there's the risk that SCOTUS will take the case and issue an anti-2A ruling, and this isn't the sort of thing to be taking chances with. Not for cases of first impression, at any rate, which is what this is.

livinofframen
10-22-2011, 5:39 PM
I think the other side could make some serious hay with these facts (http://www.myrockyhill.com/uploads/Peruta%20Papers.pdf).

-Gene

:facepalm:

Smokeybehr
10-22-2011, 5:52 PM
:popcorn:

Don't bogart that bag, my friend. Pass it along to the next brother... :cool:

dantodd
10-22-2011, 5:53 PM
"too violent and immature to carry a gun as a cop and now NRA's poster boy for concealed carry". I can see CSGV saying that.

G60
10-22-2011, 5:55 PM
Haha bogart, haven't heard that in years.

AragornElessar86
10-22-2011, 6:05 PM
Lol, you're not much for diplomacy, manners and good behavior are you Ed?

All the same, I wish you luck.

The Shadow
10-22-2011, 6:42 PM
I think the other side could make some serious hay with these facts (http://www.myrockyhill.com/uploads/Peruta%20Papers.pdf).

-Gene

Wow, Ed has quite the resume. Going from cop to securities swindler, to aspiring politician, to worm farmer, to obnoxious talk show host.

And this has all been confirmed as factual ? That's probably a ridiculous questions since he hasn't written a post that reads like he's screaming like a banshee.

Meplat
10-22-2011, 7:01 PM
I think the other side could make some serious hay with these facts (http://www.myrockyhill.com/uploads/Peruta%20Papers.pdf).

-Gene

Good Lord Gene!

I’m not saying we should be trying to cover anything up or adopt this guy as our poster boy, but is it not a bad idea to pour gasoline on a **** can fire? :eek:

ColdDeadHands1
10-22-2011, 7:17 PM
Wow, Ed has quite the resume. Going from cop to securities swindler, to aspiring politician, to worm farmer, to obnoxious talk show host.

And this has all been confirmed as factual ? That's probably a ridiculous questions since he hasn't written a post that reads like he's screaming like a banshee.

While I don't agree with the posting linking of that compilation of everything Ed's done wrong in life, here is how it could be construed. Ed was 21-22 when all of that PD stuff went down and he was dismissed. You know what I thought when I read it? That he was a young, immature, and hot headed... Just like every other 21yo cop! How many threads are there on CG complaining about young, shaved head, sunglasses wearing, ego maniac cops these days?

Illegal Securities trading, or whatever it said? He wasn't a Wall St. crook like so many IN THE GOV'T today, he was hawking gold & silver over the phone without registering. While not wise, it's not like he was robbing banks, or worse yet, the American public! By the way, he was never convicted as far as I could tell.

Worm farmer? No, he was trying to operate a motocross park on private property. Gov't tyranny wouldn't allow it so he kept some worms and called it a farm. Good for him! 1) motorcycles are cool, and 2) I'm all for sticking it to the man when he is preventing me from liberty and my private property rights.

From that point in his life forward, with the radio shows and wrangling with local municipalities, I see that as a somewhat anti-establishment patriot. Always challenging gov't and not being pushed around by a tyrannical government. Again, if 40% of the threads on CG are about bad cops, then 50% of them are about how bad our government sucks, and the other 10% are about guns!

While Ed doesn't appear to have lived a squeaky clean life, quiet, and without run ins with the forces that control our lives in this country, I don't think he is such a bad guy.

That said, the anti's will most surely use all of this against him to try and paint an ugly picture about the man. For all the rest of us here on Calguns.net, is Ed really that different from many of us? Seems like he has lived a pretty eventful life.

wildhawker
10-22-2011, 7:21 PM
Wouldn't the PorI argument have been made through an amicus brief, then? Or is the implication here that amicus briefs are summarily ignored by the court when the chips are down?

I'm sure it would have been briefed, but that doesn't mean the Court would address the issue head-on as it did when argued directly by a party (in this case, Plaintiffs/Appellants Otis McDonald et al).

And yet, that's exactly what we do whenever we bring before the court a case which does not address "keep" or "bear" in their entirety, including things like permitting schemes, etc.

No. For example, Heller struck a number of ordinances under one Cert grant because they (plural) were germane to the core question of 2A being an individual right and Plaintiff Heller's ability to exercise that individual right he argued was protected under 2A:

07-290 DISTRICT OF COLUMBIA V. HELLER
DECISION BELOW:478 F. 3d 370

THE PETITION FOR A WRIT OF CERTIORARI IS GRANTED LIMITED TO THE FOLLOWING QUESTION: WHETHER THE FOLLOWING PROVISIONS - D.C. CODE §§ 7-2502.02(a)(4), 22-4504(a), AND 7-2507.02 - VIOLATE THE SECOND AMENDMENT RIGHTS OF INDIVIDUALS WHO ARE NOT AFFILIATED WITH ANY STATE-REGULATED MILITIA, BUT WHO WISH TO KEEP HANDGUNS AND OTHER FIREARMS FOR PRIVATE USE IN THEIR HOMES?

It's possible that the Court is persuaded by amicus briefs to take a case such as Peruta and expand the question to be considered, but assuming that it will is an imprudent strategy. Better would be to offer a case to decide such facts explicitly... as we did in Richards.

Is it not true that you want the court to answer the minimum number of questions in order to maximize the chances of winning the case? Would not involving GMC with the same case as GC reduce the chance of winning? Somehow, I presume not, since Gura is counsel for Richards and that case asks both questions, but if Peruta gets to SCOTUS before Richards does and gets the GC question answered, wouldn't Richards then be able to bring the GMC question before the same court?

See above.

You might misunderstand the actual question to the Court that presents by both GC and GMC (e.g. subjective prior restraint of a fundamental right). These are matters of pure law, both of which must be addressed if California's discretionary system of issuance is to be directly brought into conformance with constitutional principles.

What do you think is going to happen in lower courts if the Court decides a "GC" case (or simply, as in Masciandaro, to answer the question of the right's existence outside one's home) that provides substantive analysis of the right, but doesn't actually say "GMC"? See, Heller decision on bearing arms; see also, every bear case decided by district and circuit courts to date.

-Brandon

Connor P Price
10-22-2011, 7:46 PM
Cold dead hands- You may be completely correct on all accounts. In fact Mr Peruta may not be all that dissimilar in standing from any number of Calguns members. I don't think anyone from our side ever intends to vilify him for his past or to say that he should be a prohibited person or that he is not deserving of a license to carry. That doesn't make him a good plaintiff though. Even if 99% of calgunners had an equally colored past it wouldn't make a difference, when crafting strategic civil rights litigation EVERYTHING needs to be accounted for from the very beginning and plaintiffs need to be chosen very carefully.

When these suits are filed the opposition will use ANYTHING they can against us so even a tiny little problem with a plaintiff can result in bad case lawwhich will hurt everyone.

Sent from my SGH-T959 using Tapatalk

ColdDeadHands1
10-22-2011, 8:03 PM
Cold dead hands- You may be completely correct on all accounts. In fact Mr Peruta may not be all that dissimilar in standing from any number of Calguns members. I don't think anyone from our side ever intends to vilify him for his past or to say that he should be a prohibited person or that he is not deserving of a license to carry. That doesn't make him a good plaintiff though. Even if 99% of calgunners had an equally colored past it wouldn't make a difference, when crafting strategic civil rights litigation EVERYTHING needs to be accounted for from the very beginning and plaintiffs need to be chosen very carefully.

When these suits are filed the opposition will use ANYTHING they can against us so even a tiny little problem with a plaintiff can result in bad case lawwhich will hurt everyone.

Sent from my SGH-T959 using Tapatalk

I agree, he probably isn't the best plaintiff. However, he believes in his rights and is fighting to secure them. What should he do, stand down and hope someone else does it for him?

The point of my post was to present my opinion on Ed's history. If one just reads through that data without putting things in context, one could walk away thinking he is a pretty bad dude. I guess it just depends on one's perspective.

kcbrown
10-22-2011, 8:17 PM
I agree, he probably isn't the best plaintiff. However, he believes in his rights and is fighting to secure them. What should he do, stand down and hope someone else does it for him?


This raises a very good question, which I think needs to be answered:

Suppose Peruta actually wanted to help the RKBA movement in the most effective way possible but without giving up his own personal fight. What would be his best course of action at this point?

This is something that I think needs an answer in public, unless answering it would somehow compromise the litigation strategy. People with the wherewithal to bring suit need to know how best to proceed without giving up their specific fight.

It is exceedingly difficult, if one has a legitimate and substantial gripe, to be told to simply sit down and shut up just because one isn't the best possible plaintiff. It is simply not reasonable to expect someone to take it up the *** if they have the determination to fight and they're in the right. At some point, there must be recognition that rights apply to everyone, or they are not rights at all.


This is particularly difficult for me, because I want our strategy to be as effective as possible.

wildhawker
10-22-2011, 8:21 PM
I agree, he probably isn't the best plaintiff. However, he believes in his rights and is fighting to secure them. What should he do, stand down and hope someone else does it for him?

Recall that Sykes was already filed by SAF (who just won McDonald) and CGF by Alan Gura (the lawyer who just won BOTH Heller and McDonald) - and, in fact, those filings provided him with the compliant to copy for his own case. What does it say when SAF, CGF, and Gura are on a case? "We're going all the ****ing way with this one."

Let me ask you this: have you filed your 2A bear case yet?

The answer is that 99.9^x% of the population is going to be subject to the contours of the right as found in the case of one or a few specific individuals. If Ed knows as much about litigation as he seems to claim, then he'd also have known that Sykes would do for him what it will for everyone else. However, his actions prove that either: (A) he isn't/wasn't knowledgeable about strategic [civil rights] litigation, 2A issues, and the parties/lawyers involved, or (B) he trusted himself and a San Diego condo lawyer to create a better outcome than SAF/CGF/Gura/Kilmer.

If one just reads through that data without putting things in context, one could walk away thinking he is a pretty bad dude.

So, you think that busy court clerks and judges/justices are going to spend the time to gather the context you would? :rolleyes:

-Brandon

ColdDeadHands1
10-22-2011, 8:29 PM
Let me ask you this: have you filed your 2A bear case yet?

No, I'm waiting on the outcome of Scocca v Smith to submit my application. Following that, we'll see. ;)



So, you think that busy court clerks and judges/justices are going to spend the time to gather the context you would? :rolleyes:

-Brandon

No I don't think they will. I am in agreement that the bad guys will paint an ugly picture of Ed. I merely gave my point of view for the benefit of my fellow 2A loving bretheren.

wildhawker
10-22-2011, 8:33 PM
No, I'm waiting on the outcome of Scocca v Smith to submit my application. Following that, we'll see. ;)

Scocca v. Smith is a 14A EP case, much like Peruta was supposed to be. Why wait for your 2A, or 14A, case for that matter? Are you saying that these cases in play have a direct affect on what you can do, or the outcomes possible? Maybe even pre-determine the outcome of your own case (likely making yours unnecessary)?

No I don't think they will. I am in agreement that the bad guys will paint an ugly picture of Ed. I merely gave my point of view for the benefit of my fellow 2A loving bretheren.

Which is fine for Calguns.net, but not for SCOTUS, New York Times, or AP.

-Brandon

Connor P Price
10-22-2011, 8:39 PM
I agree, he probably isn't the best plaintiff. However, he believes in his rights and is fighting to secure them. What should he do, stand down and hope someone else does it for him?

The point of my post was to present my opinion on Ed's history. If one just reads through that data without putting things in context, one could walk away thinking he is a pretty bad dude. I guess it just depends on one's perspective.

Regarding your first question. Yes, I absolutely think standing down from the get go would have been the most prudent course of action. However, it's not standing down and hoping somebody else does it, it's standing down specifically because somebody situated better IS doing it.

Most civil cases follow a simple pattern, plaintiff is or feels wronged, plaintiff sues. Cases like this don't work well that way, to much is at stake because a loss can severely damage the right. Strategic civil rights litigation usually involves a recognition of some inequity in the law, figuring out the best way to attack it and using the perfect person to attack it.

Regarding your second point, I've never met the man, so I wouldn't dare pass judgement regarding his character myself. However your right that one could quite easily walk away thinking he is a bad dude and that's specifically why he isn't the right plaintiff. It doesn't have to be true, it just has to give a judge a reason to rule against our cause.

ETA: Wow I type slow on my phone, most of that was already covered.

Sent from my SGH-T959 using Tapatalk

Funtimes
10-22-2011, 8:49 PM
Man :P can't wait to see all the crap that gets said about me in the future lol. I think this type of thing comes up every few months.

ColdDeadHands1
10-22-2011, 8:50 PM
Scocca v. Smith is a 14A EP case, much like Peruta was supposed to be. Why wait for your 2A, or 14A, case for that matter? Are you saying that these cases in play have a direct affect on what you can do, or the outcomes possible? Maybe even pre-determine the outcome of your own case (likely making yours unnecessary)?



Which is fine for Calguns.net, but not for SCOTUS, New York Times, or AP.

-Brandon

Yes, I understand the inference...

Connor P Price
10-22-2011, 9:57 PM
This raises a very good question, which I think needs to be answered:

Suppose Peruta actually wanted to help the RKBA movement in the most effective way possible but without giving up his own personal fight. What would be his best course of action at this point?

This is something that I think needs an answer in public, unless answering it would somehow compromise the litigation strategy. People with the wherewithal to bring suit need to know how best to proceed without giving up their specific fight.

It is exceedingly difficult, if one has a legitimate and substantial gripe, to be told to simply sit down and shut up just because one isn't the best possible plaintiff. It is simply not reasonable to expect someone to take it up the *** if they have the determination to fight and they're in the right. At some point, there must be recognition that rights apply to everyone, or they are not rights at all.


This is particularly difficult for me, because I want our strategy to be as effective as possible.

I agree that it is hard to sit and do nothing when you feel your being wronged by the law. So I'll give my two cents on what the right thing to do is, but of course its worth just what you paid for it.

In this situation, the law at hand was already being challenged by CGF and SAF, with Gura representing. So what's the right course of action if you feel wronged by a law already being challenged by arguably the very best people to be challenging it? Donate. It's that simple, duplicate cases are not necessary unless they are challenging a law in a substantially different way, that's just a waste of resources. Of course that's a moot point now because the bell has already been rung. At this point the moves being made are much wiser, bringing in Michel and now Clement, but ideally that bell just wouldn't have been rung in the first place.

What if the circumstances are different from the beginning though, as is likely to happen in the future? Let's say I feel that law X is infringing upon my rights and I believe that the new case law established by case Y makes that law ripe for challenge, no case has been filed and I know just the way to do it. If I'm not the perfect plaintiff then filing a case would be foolish, the right thing to do would be to bring my novel idea to CGF, SAF, NRA, Gura, Davis, Kilmer, Michel, Clements, whoever! If my idea is good and I can fund it or one of the foundations thinks its worth funding then from there a better plaintiff or group of plaintiffs could be found and a solid strategic complaint could be filed.

Some people just want to be the quarterback throwing touchdown passes and getting the glory. If your 6'8" 320lbs, then snap the damn ball, block, and recognize that the team is more important than your selfish desire to be in the limelight cuz you sure as heck aren't a quarterback.

Sent from my SGH-T959 using Tapatalk

hoffmang
10-22-2011, 10:11 PM
While I don't agree with the posting of that compilation of everything Ed's done wrong in life, here is how it could be construed.

I didn't post it. I simply link to something already posted that was has been on the internet for at least 3 years.

-Gene

ColdDeadHands1
10-22-2011, 10:27 PM
While I don't agree with the posting linking of that compilation of everything Ed's done wrong in life, here is how it could be construed.

There, I fixed it.:rolleyes:

Connor P Price
10-22-2011, 10:30 PM
There, I fixed it.:rolleyes:

If things go sour because of that "color" it affects all of us potentially. Don't you think we have a right to know what could change the way our rights will be recognized?

Sent from my SGH-T959 using Tapatalk

mdimeo
10-22-2011, 10:39 PM
IMHO
I think the legislative intent regarding concealed carry was to have the sheriff weed out the dirty, sneaky people from concealing their firearms. Men of good moral character could carry concealed. Honorable men carried their firearms in the open.

I've seen evidence that the legislative intent was primarily to disarm Chinese and Mexican immigrants. There's a contemporary newspaper article floating around on the net, but I can never find it when I go looking for it.

hoffmang
10-22-2011, 10:43 PM
I've seen evidence that the legislative intent was primarily to disarm Chinese and Mexican immigrants. There's a contemporary newspaper article floating around on the net, but I can never find it when I go looking for it.

This I did post (http://www.hoffmang.com/firearms/AB263-Hawes-1923.pdf).

-Gene

Rossi357
10-23-2011, 10:50 AM
I've seen evidence that the legislative intent was primarily to disarm Chinese and Mexican immigrants. There's a contemporary newspaper article floating around on the net, but I can never find it when I go looking for it.

What you say is true. Any 2nd amendment language was deliberatly left out of the Calif. constitution so guns could be controled by police power. Mexicans and Chinese were definatly in the dirty sneaky catagory when it came to issuing concealed carry licenses, along with some white people.

Window_Seat
11-03-2011, 1:31 AM
Just yesterday, Mr. Michel filed a response to the appellees' October 27 "28-J letter".

Erik.

Funtimes
11-03-2011, 2:26 AM
I can't seem to access that pdf.

ilbob
11-03-2011, 4:44 AM
I can't seem to access that pdf.

me either.

HowardW56
11-03-2011, 5:21 AM
http://michellawyers.com/wp-content/uploads/2010/11/Peruta_Conformed-Response-to-Appellees-October-27_2011-Rule-28j-letter.pdf

Window_Seat
11-10-2011, 9:47 PM
Appellants’ Citation of Supplemental Authority Pursuant to Rule 28(j) (http://michellawyers.com/wp-content/uploads/2010/11/Peruta_Conformed-Appellants-Citation-of-Supplemental-Authority-Pursuant-to-Rule-28j_11.7.11.pdf) (filed on 11/07), this time, based on WI going Shall Issue this month.

Erik.

GM4spd
11-11-2011, 3:29 AM
How about UGOS?

Unrealistic gun owner syndrome, people who think being right on the issues guarantees victory in court.

Look at the carry cases who have been denied cert.

UGOS---there is a lot of that going around. Pete

Wherryj
11-11-2011, 10:13 AM
I want my fully functional Abrams battle tank!:eek:

While I would be inclined to agree with you, personally I don't want an Abrams. The maintenance on my wife's BMW is already too expensive. I can only imagine what "the dealer" will charge for maintenance on that.

Window_Seat
12-24-2011, 11:25 AM
I suppose the same thing will happen with Richards v. Prieto, yes?

Erik.

Rossi357
12-24-2011, 12:00 PM
And the second coming of Christ is stayed pending the decision on Nordyke v. King.

Window_Seat
12-24-2011, 12:13 PM
And the second coming of Christ is stayed pending the decision on Nordyke v. King.

All of us at Starbucks LOLed. :laugh:

Erik.

nick
12-24-2011, 12:23 PM
How convenient :)

safewaysecurity
12-24-2011, 12:29 PM
Ugh. At least the chances of a good Nordyke ruling is more likely now.

Chatterbox
12-24-2011, 12:38 PM
Ugh. At least the chances of a good Nordyke ruling is more likely now.

Why? The en banc panel could just as well reaffirm the decision of the 3 judge panel, or even better - send it back to lower court for rehearing. "The wheels on the bus go round and round". :rolleyes:

hoffmang
12-24-2011, 1:10 PM
I suppose the same thing will happen with Richards v. Prieto, yes?

Erik.

Both were stayed on the same day, yes. That news was posted on the CGF twitter feed - http://twitter.com/CalgunsFdn

-Gene

kcbrown
12-24-2011, 2:00 PM
Both were stayed on the same day, yes. That news was posted on the CGF twitter feed - http://twitter.com/CalgunsFdn

-Gene

Is it possible to appeal the stay order to the Supreme Court (not necessarily now, but at some point in the future if it appears the 9th Circuit is intent on going back and forth between the normal panel and en banc interminably)?

Since Richards and Peruta are about carry in public in general, it seems quite the stretch to claim, as the 9th Circuit obviously is, that Nordyke will somehow be relevant. It's becoming clear that the 9th Circuit is determined to deny RKBA through delay tactics, among other things.

Though the last Nordyke decision was vacated, I fully expect to see the reasoning they used in that decision reappear (most especially, their reasoning that turned all forms of scrutiny into a form of rational basis).

hoffmang
12-24-2011, 3:44 PM
Is it possible to appeal the stay order to the Supreme Court (not necessarily now, but at some point in the future if it appears the 9th Circuit is intent on going back and forth between the normal panel and en banc interminably)?

No but Nordyke will not get any more bites at the Richards/Peruta apple. There is a 99% chance we have a decision in Nordyke and then it's either a W or a cert petition. Timing will be the only issue and the current best guess for a Nordyke opinion would have it around 1 year from today best case.

-Gene

kcbrown
12-24-2011, 4:46 PM
No but Nordyke will not get any more bites at the Richards/Peruta apple. There is a 99% chance we have a decision in Nordyke and then it's either a W or a cert petition. Timing will be the only issue and the current best guess for a Nordyke opinion would have it around 1 year from today best case.


1 year best case?

Then that means we're already adding yet another year to the point in time that we get some form of real carry here in California, because it means that none of our carry cases are going to hit the Supreme Court next year. And Richards/Peruta being stayed pending Nordyke sets the clock back an additional year on top of that.

Which is to say:


Nordyke opinion comes out a year from now (December, 2012).
Nordyke gets appealed to the Supreme Court.
Richards/Peruta stayed pending Supreme Court decision on Nordyke.
Supreme Court grants cert for Nordyke and issues ruling by July 2013.
Richards/Peruta are unstayed in July 2013. 9th issues ruling July 2014.
Richards/Peruta appealed to Supreme Court July 2014. Cert granted.
Supreme Court issues ruling for Richards/Peruta July 2015.
We start challenging anti-gun strongholds in court (because you know they're not just going to cave) July 2015.
We get wins in court by July 2016 against anti-gun strongholds (see Scocca for what we can expect as far as judicial speed on such things).



Sans the extremely unlikely event that we get a full win on Nordyke in the 9th, that's the best case scenario now?? Now we're talking at least a full 3 years beyond the maximum post-McDonald projections for meaningful carry in anti-gun strongholds here in California. And that's on the basis of some optimistic projecting of my own in the above (namely, the 6 month turnaround in the Supreme Court for Nordyke and the 1 year turnaround on litigation against anti-gun strongholds. 1 year is probably highly optimistic for the latter).


And you guys wonder why I claim it's going to take years (if not decades), before we get real carry here in California. The projections are already starting to line up with my expectations, which means my expectations may actually be optimistic given how early the projections are starting to line up with them.

1859sharps
12-24-2011, 8:05 PM
No but Nordyke will not get any more bites at the Richards/Peruta apple. There is a 99% chance we have a decision in Nordyke and then it's either a W or a cert petition. Timing will be the only issue and the current best guess for a Nordyke opinion would have it around 1 year from today best case.

-Gene

Just to be clear, is that 1 year from today just to hear what the 9th's opinion on Nordyke is?

Or is that 1 year estimate the 9th releasing it's opinion + cert petition time if necessary.

wash
12-24-2011, 9:07 PM
Wow.

I would love to know the reasoning for the stay.

So the Peruta loss derailed the Richards case which would have been decided before the new Nordyke en banc and now both of them are on hold for about a year and then they have to run their course after that.

So thank you Edward Peruta by delaying carry rights in California for two years plus.

Paladin
12-24-2011, 11:03 PM
Both were stayed on the same day, yes. That news was posted on the CGF twitter feed - http://twitter.com/CalgunsFdn

-Gene

As a Christian, I cannot say what I am thinking and should not even be thinking it. :mad: :mad: :mad: :mad: :mad:

I seem to recall a Right Person once predicting winning Shall Issue in CA within 1 1/2 yrs of McDonald, so I guess I'm not the only one who was overly optimistic. The folks I am really sorry for are the law-abiding poor whose neighborhoods are oppressed by the lawless worse than the way the villagers were in The Seven Samurai/The Magnificent Seven.

The longer these cases get delayed, the more important US Senate and Presidential elections become since they'll determine who will sit on federal benches, incl SCOTUS. And that means the more we need the NRA-PVF and NRA-ILA -- as well as the general NRA -- to get larger and stronger. IMHO, too many people here have faith in paper and precedents. Precedent did not stop Roe v. Wade or Lawrence v. Texas, so it certainly won't stop the narrow construction of Heller-McDonald, until such time as they can be overturned. :mad: To liberals, jurisprudence is "politics by other means."

I guess the only major CA carry case wins that we might get in 2012 are Rossow and/or Scocca. Correct?

hoffmang
12-25-2011, 1:40 AM
Richards is far from the only carry case in the United States.

-Gene

kcbrown
12-25-2011, 2:17 AM
Richards is far from the only carry case in the United States.


Maybe, but that doesn't matter. Some case challenging the California law has to be ruled on. California's law doesn't suddenly go away just because some other jurisdiction wins carry, even when that win is at the Supreme Court.

So either Peruta or Richards have to be ruled on, or we have to send up some other case after SCOTUS rules on some other case and gives us bear in public. Since Peruta and Richards are already in the system, we have to wait for them to get ruled on regardless of whether or not they make it to SCOTUS before other carry cases.

Everything depends on which other case gets us bear in public.

If it's a case from an area with a blanket prohibition on carry (i.e., a no-issue state such as Illinois), then it won't buy us anything more than a nice backstop, because the 9th will simply rule that because the state does issue concealed carry permits, the right isn't being violated, and that if SCOTUS means that carry in public must be shall-issue, it will have to "say so more plainly".

If it's a case from an area with discretionary issue carry, then it'll depend on the particulars. If it's discretionary issue concealed carry, then that will be a more or less direct analog to California and the 9th might actually rule in our favor at that point. It's doubtful, but possible (they'll do their level best to find something different about California that SCOTUS didn't account for in its holding and use that as a reason to rule against us, again saying that if SCOTUS meant its holding to apply to California's system, it will have to "say so more plainly"). If it's discretionary issue open carry, then the 9th will certainly rule against us, because the Supreme Court's holding won't be against a direct analog to California's system and that if the Supreme Court meant it to apply then it will ... wait for it ... have to "say so more plainly".

The bottom line is that at least one of Richards or Peruta (and possibly both) is likely to have to go to SCOTUS regardless of whether or not some other carry case makes it there before either of them.

And that means that either way, it's very likely the timeline winds up being the same as if either Richards or Peruta made it to SCOTUS first, if not even longer. Because if some other case gets there first, Richards and Peruta are likely to be stayed pending SCOTUS' ruling on that other carry case, even if Nordyke has already been ruled on. :mad:

kcbrown
12-25-2011, 2:34 AM
As a Christian, I cannot say what I am thinking and should not even be thinking it. :mad: :mad: :mad: :mad:


I would be as inflamed as well, if it weren't for the fact that I have been expecting very long delays like this. This is only the beginning of them. :mad:



I seem to recall a Right Person once predicting winning Shall Issue in CA within 1 1/2 yrs of McDonald, so I guess I'm not the only one who was overly optimistic.


And now you understand why I have the viewpoint I have. The real world really doesn't tolerate optimism terribly well.

Very little catches me by surprise, because amazingly good things almost never happen in the real world without a very heavy price being paid in terms of time, sweat, and sometimes even blood. Amazingly bad things, on the other hand, are routine. The universe itself is arrayed against us.

And still, what we fight for is worth every bit of pain we endure. Bring it! :43:



I guess the only major CA carry case wins that we might get in 2012 are Rossow and/or Scocca. Correct?

Scocca is in a district court in the SF Bay Area. Short of a total miracle, I can't see how we could possibly get a win there. That means it's gonna have to go to the 9th at a minimum. Ain't no way (again, short of an outright miracle) we're going to get a win in Scocca in 2012.

No idea about Rossow....

Librarian
12-25-2011, 9:40 AM
And now you understand why I have the viewpoint I have. The real world really doesn't tolerate optimism terribly well.

Very little catches me by surprise, because amazingly good things almost never happen in the real world without a very heavy price being paid in terms of time, sweat, and sometimes even blood. Amazingly bad things, on the other hand, are routine. The universe itself is arrayed against us.


D1NAwlepnSs

Merry Christmas - let not the sands of time get into your lunch!

hoffmang
12-25-2011, 2:28 PM
Maybe, but that doesn't matter. Some case challenging the California law has to be ruled on. California's law doesn't suddenly go away just because some other jurisdiction wins carry, even when that win is at the Supreme Court.

In practical reality, no. Should any of the other discretionary issuance cases be ruled on by SCOTUS, both Richards and Peruta will move very quickly and in fact most counties will go shall issue as they don't want to take on an obvious loser. If it's the IL or DC cases Richards/Peruta might take 90 days as it's not exactly on point (though most counties will flip upon the ruling.) If it's MD or NY, Richards and Peruta would be summarily reversed and remanded. Things would move at about the same speed the new laws came out in Chicago.

-Gene

kcbrown
12-25-2011, 2:51 PM
In practical reality, no. Should any of the other discretionary issuance cases be ruled on by SCOTUS, both Richards and Peruta will move very quickly and in fact most counties will go shall issue as they don't want to take on an obvious loser. If it's the IL or DC cases Richards/Peruta might take 90 days as it's not exactly on point (though most counties will flip upon the ruling.) If it's MD or NY, Richards and Peruta would be summarily reversed and remanded. Things would move at about the same speed the new laws came out in Chicago.


What would make those cases move so much faster than, say, Ezell or Palmer?


By the way, Gene (and the rest of you guys), have a VERY MERRY Christmas! You guys have certainly made mine with the Silvester filing. :43:

Gray Peterson
12-25-2011, 3:30 PM
Maybe, but that doesn't matter. Some case challenging the California law has to be ruled on. California's law doesn't suddenly go away just because some other jurisdiction wins carry, even when that win is at the Supreme Court.


I'm still wondering how you can believe that even to this day. The math doesn't add up.

How is it that, post AB144, that a carry win at SCOTUS with Kachalsky or Peterson has no force or effect in California? You cannot unloaded open carry as a normal citizen in an incorporated city in California as of 7 days from now. Peterson' entire case underpinning has to do with the state of Colorado's largest city.

I still do not understand why you think a SCOTUS ruling with a holding that carry is a fundamental right will somehow just be ignored by the 9th Circuit. You keep using the Nordyke example....

The first en banc of Nordyke was slightly unplanned (it was done sua sponte), however that was done during the interregnum period between Heller and McDonald. The 4/20/2009 Nordyke ruling, despite for a 2 month period of being in effect, applied 2A to the state, but wasn't a good ruling for us. It got en banc-ed the first time around so the bad ruling got tossed and no longer in effect. En Banc panel held up for McDonald. McDonald came down, sent it back to the three judge panel, and they made the wrong decision on the merits.

There are net negatives and net positives to this going en banc again. A SCOTUS appeal of Nordyke 2011 decision would have let some dogs loose that don't need to be loose.

The things you use as evidence of 9th Circuit intransigence on our issues was due to interregnum times between Heller and McDonald, and the intentional asking of rehearing/en banc instead of going right for a SCOTUS appeal. First was created by circumstances of Heller to McDonald, the second time was done intentionally for a reason.

Death penalty cases are not directly applicable here. There are issues there that have NOTHING to do at all with gun cases, and a specific set of statutes involving such in terms of due process issues upon conviction.

hoffmang
12-25-2011, 4:03 PM
What would make those cases move so much faster than, say, Ezell or Palmer?


How long were there handgun bans in DC after Heller? The range ban was gone the day the opinion was issued in Ezell. In that case there are new regulations, but one can open a range in Chicago now. Palmer is in district court so it's an apple to these oranges.

A SCOTUS decision directly on point of discretionary issuance would end the practice nationwide almost immediately. Only 2-5 counties in CA and New York City would even attempt to hold out at all.

-Gene

Gray Peterson
12-25-2011, 4:18 PM
What would make those cases move so much faster than, say, Ezell or Palmer?



Ezell I was a prohibition on gun ranges case. Which created very good caselaw for us to go by in the 7th Circuit. Chicago passed a zoning ordinance which was unreasonable. Now, instead of a prohibition, the district court is dealing with an ordinance that sets down standards, many of them unreasonable. Now, essentially, the Annex Books case controls.

Annex Books:

http://caselaw.findlaw.com/us-7th-circuit/1446592.html

Btw, gun ranges have been in urban densely populated cities for the last 100 years without anything near the regulations that Chicago has. What "secondary effects" are there with indoor gun ranges?

kcbrown
12-25-2011, 4:55 PM
How long were there handgun bans in DC after Heller? The range ban was gone the day the opinion was issued in Ezell. In that case there are new regulations, but one can open a range in Chicago now.


But those actions occurred as a result of litigation that was directly against those ordinances. That's not what we're talking about here at all.

We're talking about litigation against some other state's ordinances. Somehow, that's magically supposed to invalidate the ordinances here without direct litigation against those ordinances? When has that ever happened? A challenge in court to the ordinances in question is the only mechanism I know of to force their removal. Anything else is strictly voluntary on the part of the law enforcement machinery.



A SCOTUS decision directly on point of discretionary issuance would end the practice nationwide almost immediately.


You mean once the cases that directly challenge California's system are ruled upon? Or earlier even than that?

I admit that some counties will simply change their policies right then and there, but they do so voluntarily, the way Sacramento did.


Only 2-5 counties in CA and New York City would even attempt to hold out at all.


That may be, but those counties are the ones that account for the bulk of the California population, are they not?

nicki
12-25-2011, 5:31 PM
Every no issue California county seems to have severe budget problems and unions that are having to get their members to agree to "concessions".

It is kinda hard to get Union members to accept "concessions" when the counties are funding losing "civil rights" lawsuits.

I am sure that the "right people" have "surprises".

One thing the "right people" do have is they lack "egos and pride" and they are "humble". This means they are willing to make it easy for the other side to settle.

Of course, settling is something that can only be on the table so long.

Nicki

Fjold
12-25-2011, 5:42 PM
I've reached the pont where I have to agree with kcbrown. A ruling even by SCOTUS applied to another State's laws seems to have little or no affect on California'a laws. California courts don't apply the decisions to cases in front of them if there is any way to find any circumstance that they can find any exception to.

Over the years, I've also learned to ignore the best case timelines of any court case and instead take the most pessimistic time estimate and triple it.

hoffmang
12-25-2011, 6:12 PM
But those actions occurred as a result of litigation that was directly against those ordinances. That's not what we're talking about here at all.

You probably weren't paying attention when Oak Park (who wasn't sued in McDonald) repealed their handgun ban or when San Francisco Public Housing ran away from a lawsuit as fast as possible after Heller.

The main reason that there are not a lot of analogues in gun rights is that most of the cases so far are against relatively rare restrictions.

Every school system responded to Brown v. Board of Education. When the legal issue is nearly identical and SCOTUS has spoken the matter of getting a final ruling against a particular state law is an afterthought.

-Gene

randian
12-25-2011, 7:33 PM
A SCOTUS decision directly on point of discretionary issuance would end the practice nationwide almost immediately. Only 2-5 counties in CA and New York City would even attempt to hold out at all.
Why do you think Hawaii and New Jersey wouldn't try to hold out? Hawaii won't issue to anybody, even the well connected, and NJ's courts have effectively nullified NJ's discretionary issue statue. I don't see them rolling over that easily.

I also think "hold out" can be accomplished rather more subtly. Should shall-issue become the law of the land, conditions of carry become the new battleground, and I don't think for one second that the usual suspects won't try to nullify shall-issue by either severely restricting where you can actually carry or adding expensive conditions (like liability insurance and training) that ordinary people can't afford. More litigation? Certainly. Will they lose? Maybe, but that might be a decade or more from now.

I wouldn't be surprised that even if SCOTUS bans discretionary-issue its decision won't touch no-issue, giving the de facto no-issue jurisdictions an impetus to become de jure no-issue jurisdictions.

pointedstick
12-25-2011, 8:57 PM
I made Mr. Peruta's acquaintance once. Within five minutes, he had brought up machine gun ownership. Mr. Peruta is surely as worthy of exercising his second amendment rights as any one of us, but he is not a sympathetic plaintiff, especially not to liberal judges, who will look for every opportunity to deny him relief.

Some people seem to underestimate the importance of personal and emotional appeal, probably because of the implication that the wheels of justices turn more quickly or reliably for those who the judge sympathizes with. This is true and it is indeed quite unfair. But it's also the world we live in, and ignoring this fact is a sure way to lose your cases.

Don't fight, win. Subtle distinction, but it makes all the difference in the world.

Paladin
12-25-2011, 9:37 PM
Richards is far from the only carry case in the United States.

-Gene
I know that. But none of those cases will help the 9th Cir or CA in 2012. They may help us at the 9th Cir and/or SCOTUS in '13 (using date of opinions, not orals), but no positive impact in CA next year.

It seems like -- other than Scocca (unlikely per KCB above), Rossow and possible incremental Sunshine Initiative advances -- 2012 will be all "maneuvering/positioning of pieces/'middle game'" in carry cases for CA, not actual "end game" in any of them. Thus, as far as actually increasing issuance of LTCs in CA, we cannot expect any major improvements in 2012.

Bottom line for different newbies I talk to every week when I share my LTC "business card fliers" is no real progress in carry in CA until 2013, and probably summer '13 at earliest. :(

FWIW I'd LOVE to be proved wrong before 2012 Dec 31st! ;)

kcbrown
12-25-2011, 11:03 PM
You probably weren't paying attention when Oak Park (who wasn't sued in McDonald) repealed their handgun ban or when San Francisco Public Housing ran away from a lawsuit as fast as possible after Heller.

The main reason that there are not a lot of analogues in gun rights is that most of the cases so far are against relatively rare restrictions.


That certainly seems like a plausible explanation. I remain skeptical about the anti-gun strongholds caving when they're not directly forced to, but am open minded enough about it to believe it to be possible.



Every school system responded to Brown v. Board of Education. When the legal issue is nearly identical and SCOTUS has spoken the matter of getting a final ruling against a particular state law is an afterthought.


That's because school systems actually care (at least somewhat) about the money they spend. Municipalities and counties that engage in anti-gun religious zealotry don't. See Oakland, San Francisco, Santa Clara, etc.

kcbrown
12-26-2011, 12:36 AM
I'm still wondering how you can believe that even to this day. The math doesn't add up.

How is it that, post AB144, that a carry win at SCOTUS with Kachalsky or Peterson has no force or effect in California? You cannot unloaded open carry as a normal citizen in an incorporated city in California as of 7 days from now. Peterson' entire case underpinning has to do with the state of Colorado's largest city.

I still do not understand why you think a SCOTUS ruling with a holding that carry is a fundamental right will somehow just be ignored by the 9th Circuit. You keep using the Nordyke example....


I keep using the Nordyke example because it is an excellent example of exactly what the 9th Circuit is capable of attempting to do with even such big wins as Heller and McDonald. Prior to it going en banc a second time, they managed to turn SCOTUS' implication that a law which infringes upon the core right is Unconstitutional on its face into one that says that such an infringement deserves heightened scrutiny. Worse, they managed to turn strict scrutiny itself (indeed, any form of scrutiny that requires a test of the strength of the government's interest and/or a test of how strongly related the law is to that interest and/or how narrowly tailored it is) into nothing more than a different version of rational basis.

And that's with Heller/McDonald. Who knows what fun they can have with a carry decision in which SCOTUS is sure to repeat, in no uncertain terms, that the decision does nothing to challenge certain "longstanding prohibitions", nor apply in "sensitive places", etc.? We can expect at least the same degree of wishy-washiness on the part of SCOTUS that we got in Heller, if not quite a lot more (since it's public carry we speak of here) and the 9th Circuit will attempt to use that against us. I also suspect that the prose they used in their rejection of Breyer's "interest balancing" approach was mere grandstanding on their part.



The things you use as evidence of 9th Circuit intransigence on our issues was due to interregnum times between Heller and McDonald, and the intentional asking of rehearing/en banc instead of going right for a SCOTUS appeal. First was created by circumstances of Heller to McDonald, the second time was done intentionally for a reason.


It is not only the fact of going en banc multiple times, nor the resulting additional time spent in litigation, that I use as evidence of 9th Circuit intransigence. It is the Nordyke decision itself that I also use. And while the en banc process depublished that decision, you most certainly cannot state that the 9th Circuit didn't say what it said in its decision.

I don't think this is the last we'll see of the "logic" they used in that decision, either.



Death penalty cases are not directly applicable here. There are issues there that have NOTHING to do at all with gun cases, and a specific set of statutes involving such in terms of due process issues upon conviction.

Fair enough. We'll see what we see. But the general sense I get from the 9th Circuit is that it is highly anti-gun, but perhaps not entirely so. There are, after all, some judges in the 9th Circuit (e.g., Kozinski) that appear not to be anti-gun. But an anti-gun court is the way to bet. The Nordyke ruling itself certainly seems to reinforce that notion.

And while the death penalty cases may not be directly applicable, it seems to me that they may provide at least some insight into the willingness of the 9th Circuit to find any reason at all to rule in a manner contrary to SCOTUS' intent, when that intent is contrary to the 9th Circuit's wishes and isn't explicitly stated by SCOTUS in no uncertain terms.

Gray Peterson
12-26-2011, 1:35 AM
I keep using the Nordyke example because it is an excellent example of exactly what the 9th Circuit is capable of attempting to do with even such big wins as Heller and McDonald. Prior to it going en banc a second time, they managed to turn SCOTUS' implication that a law which infringes upon the core right is Unconstitutional on its face into one that says that such an infringement deserves heightened scrutiny. Worse, they managed to turn strict scrutiny itself (indeed, any form of scrutiny that requires a test of the strength of the government's interest and/or a test of how strongly related the law is to that interest and/or how narrowly tailored it is) into nothing more than a different version of rational basis.

And that's with Heller/McDonald. Who knows what fun they can have with a carry decision in which SCOTUS is sure to repeat, in no uncertain terms, that the decision does nothing to challenge certain "longstanding prohibitions", nor apply in "sensitive places", etc.? We can expect at least the same degree of wishy-washiness on the part of SCOTUS that we got in Heller, if not quite a lot more (since it's public carry we speak of here) and the 9th Circuit will attempt to use that against us. I also suspect that the prose they used in their rejection of Breyer's "interest balancing" approach was mere grandstanding on their part.




It is not only the fact of going en banc multiple times, nor the resulting additional time spent in litigation, that I use as evidence of 9th Circuit intransigence. It is the Nordyke decision itself that I also use. And while the en banc process depublished that decision, you most certainly cannot state that the 9th Circuit didn't say what it said in its decision.

I don't think this is the last we'll see of the "logic" they used in that decision, either.




Fair enough. We'll see what we see. But the general sense I get from the 9th Circuit is that it is highly anti-gun, but perhaps not entirely so. There are, after all, some judges in the 9th Circuit (e.g., Kozinski) that appear not to be anti-gun. But an anti-gun court is the way to bet. The Nordyke ruling itself certainly seems to reinforce that notion.

And while the death penalty cases may not be directly applicable, it seems to me that they may provide at least some insight into the willingness of the 9th Circuit to find any reason at all to rule in a manner contrary to SCOTUS' intent, when that intent is contrary to the 9th Circuit's wishes and isn't explicitly stated by SCOTUS in no uncertain terms.

Didn't we not have a conversation about you erroneously viewing the 9th Circuit as a monolithic entity?

kcbrown
12-26-2011, 1:52 AM
Didn't we not have a conversation about you erroneously viewing the 9th Circuit as a monolithic entity?

Yes. And as a result, I don't view it as a monolithic entity. I view it as a D26. :D

A D26 that's heavily loaded against us, that is...


Yeah, we could get lucky. But that's not the way to bet.

Window_Seat
12-26-2011, 2:25 AM
I'm looking forward to law school more than ever, but hopefully I get there. ;)

Erik.

dantodd
12-26-2011, 6:57 AM
Bottom line for different newbies I talk to every week when I share my LTC "business card fliers" is no real progress in carry in CA until 2013, and probably summer '13 at earliest. :(


Since SCOTUS chose not to take on any of the carry cases this session I think that timeline is close.

OleCuss
12-26-2011, 7:28 AM
I think one thing needs to be understood. A good win on a carry case from SCOTUS can create a legal nightmare for non-compliant entities.

As nicki suggested, CGF and company seem quite ready and willing to settle cases. A part of this is that CGF really isn't in this fight for the money, it's in the fight to advance our civil rights.

But once SCOTUS lays down a specific ruling about right to carry provisions, you are going to have a lot of lawyers salivating over the opportunity to sue big-pocket entities such as cities, counties, and states over their denial of civil rights to their citizens. You could have multiple lawyers suing each of our most non-compliant entities in our state - and doing it with near-certainty of an eventual win!

You ask me as a city councilman or county supervisor or state legislator whether I want to plow a bunch of resources into defending multiple lawsuits with a near-guarantee of a loss?

Yes, in some of the bigger budget entities they'll happily defend the indefensible. I have both sympathy for their residents and glee at the opportunity for CGF/SAF to make good case law due to their obstinacy. This has the potential to be a loser legally, financially, and politically for the nutcase entities.