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Peaceful John
03-05-2012, 12:05 PM
To the attorneys:

Because McDonald incorporated Heller, if Palmer is decided favorably is it automatically also incorporated as to the States?

Cordially,
John

(Cross-posted on MDShooters)

BlindRacer
03-05-2012, 12:16 PM
I think I asked this same exact question quite a while ago, but I don't remember if I got a real clear answer.

As a non lawyer, I would think it's obvious that it should. So therefor, I bet it does not. That's how it works, right?

wildhawker
03-05-2012, 12:22 PM
No.

BlindRacer
03-05-2012, 12:24 PM
No.

I knew it! Do I win a cookie?

Scarecrow Repair
03-05-2012, 3:40 PM
I knew it! Do I win a cookie?

You won't be able to carry it legally in a holster until Palmer is incorporated.

kcbrown
03-05-2012, 6:34 PM
Even when it gets incorporated against the states (via a Supreme Court ruling), it won't mean much until the various laws at the various state levels are challenged. Until that point, those laws stay on the books and will continue to be enforced.

It's one of the things I really hate about our system of "law". :mad:

BlindRacer
03-06-2012, 10:05 AM
Even when it gets incorporated against the states (via a Supreme Court ruling), it won't mean much until the various laws at the various state levels are challenged. Until that point, those laws stay on the books and will continue to be enforced.

It's one of the things I really hate about our system of "law". :mad:

Wow! That is messed up!

So you basically can still be arrested, brought to trial, and use the SCOTUS rulings as your defense, and could still possibly be found guilty with the judges completely ignoring SCOTUS, because they didn't like the decision!?!

That's not law/justice. That's a totalitarian police state. :facepalm:

Window_Seat
03-06-2012, 10:14 AM
Incorporation does not happen on the federal level.

I should rephrase that as it doesn't address the question...

The ordinance that Heller challenged was not one that was created by a state or a subdivision of a state, therefore, Heller did not incorporate the Second Amendment against the states because it struck an ordinance within a federal enclave.

Palmer is the same condition here, as it challenges the licensing scheme that was created within a federal enclave, not a state, so the Fourteenth Amendment doesn't apply.

McDonald was also one that did not challenge a statute created by a state or a subdivision of a state, but it still incorporated the Second Amendment because Chicago's ordinances were within a state (unlike in Heller).

Did I get that right, and I've had plenty of sandwiches and naps... :o

Erik.

Crom
03-06-2012, 10:28 AM
Wow! That is messed up!

So you basically can still be arrested, brought to trial, and use the SCOTUS rulings as your defense, and could still possibly be found guilty with the judges completely ignoring SCOTUS, because they didn't like the decision!?!

That's not law/justice. That's a totalitarian police state. :facepalm:

Not everyone shares kcbrowns overwhelming pessimistic views. The Judiciary relies on the executive branch for enforcement of it's decisions. If SCOTUS expands the right, you can expect Sheriffs in California to start issuing permits to everyday citizens. If there are some holdouts, then a temporary restraining orders (TRO) from a Federal Judge to compel the sheriff can be had relatively quickly [60 days or so].

The notion that all 58 sheriffs will not comply with a SCOTUS decision is amusing to me.

Drivedabizness
03-06-2012, 10:52 AM
Not everyone shares kcbrowns overwhelming pessimistic views. The Judiciary relies on the executive branch for enforcement of it's decisions. If SCOTUS expands the right, you can expect Sheriffs in California to start issuing permits to everyday citizens. If there are some holdouts, then a temporary restraining orders (TRO) from a Federal Judge to compel the sheriff can be had relatively quickly [60 days or so].

The notion that all 58 sheriffs will not comply with a SCOTUS decision is amusing to me.

How so? Recalcitrant enclaves like SF passed blatantly unconstitutional measures post Heller. What makes you think (or want us to believe) they will change pending yet another ruling from a Federal judge?

Crom
03-06-2012, 11:19 AM
How so? Recalcitrant enclaves like SF passed blatantly unconstitutional measures post Heller. What makes you think (or want us to believe) they will change pending yet another ruling from a Federal judge?

Are you sure? Exactly which post-Heller measures are you referring to?

I am aware of the legal battles over ammunition and storage being waged by Chuck's office. But those laws were passed before Heller (2008).

kcbrown
03-06-2012, 11:35 AM
Wow! That is messed up!

So you basically can still be arrested, brought to trial, and use the SCOTUS rulings as your defense, and could still possibly be found guilty with the judges completely ignoring SCOTUS, because they didn't like the decision!?!


Well, no, not quite. The court proceedings could go either way.

If the system behaved sanely, the case would be ruled in your favor on Constitutional grounds under those conditions, and the law you violated struck down right then and there. But courts can be stubborn about issues such as guns, and you'll probably have to appeal. You'll be in the state system, not the federal system, so your appeal would go up the chain to the state supreme court, after which you could appeal to SCOTUS. If there's anything different about the law in comparison with the one that was struck down by SCOTUS, the California supreme court could easily rule against you. Indeed, I would expect that to be a near certainty given how anti-gun California is in general.

Here's the problem: nothing guarantees that SCOTUS will grant cert to your case. Most recently, SCOTUS denied cert to two 2A-related criminal cases (Williams and Masciandaro) seemingly only because they were criminal cases and not civil cases, and as a result two people are still in jail as a result of exercising their fundamental Constitutional rights. SCOTUS could deny cert to your case on the same grounds. It all depends on whether or not they're "comfortable" with taking on such cases. It could easily be that they view criminal 2A cases as being unworthy of their attention because they view lawbreakers as being unworthy of "saving". Or it could be something else entirely.



That's not law/justice. That's a totalitarian police state. :facepalm:

And that's more or less what we live in today. There is no real justice anymore. The legal system is just that: the legal system, not the justice system.

kcbrown
03-06-2012, 11:36 AM
Not everyone shares kcbrowns overwhelming pessimistic views. The Judiciary relies on the executive branch for enforcement of it's decisions. If SCOTUS expands the right, you can expect Sheriffs in California to start issuing permits to everyday citizens. If there are some holdouts, then a temporary restraining orders (TRO) from a Federal Judge to compel the sheriff can be had relatively quickly [60 days or so].

The notion that all 58 sheriffs will not comply with a SCOTUS decision is amusing to me.

*Cough* Laurie Smith *cough*.

Drivedabizness
03-06-2012, 11:41 AM
How about their latest "findings" BS?

The burden of proof is all yours. There are any number of Sheriffs (most urban, but not all) that one would have to be willfully overly optimistic to assume will fall into line because a Federal judge says so.

Scarecrow Repair
03-06-2012, 11:58 AM
How so? Recalcitrant enclaves like SF passed blatantly unconstitutional measures post Heller. What makes you think (or want us to believe) they will change pending yet another ruling from a Federal judge?

Heller was at the Federal level; McDonald (2010) incorporated it, and was by the same 5-4 margin. Why would any SF Sheriff act before then?

Crom
03-06-2012, 12:05 PM
*Cough* Laurie Smith *cough*.

Of course there will be hold outs, but I believe they'll be the exception and not the norm. That's also where a TRO/PRO would be utilized.

How about their latest "findings" BS?

The burden of proof is all yours. There are any number of Sheriffs (most urban, but not all) that one would have to be willfully overly optimistic to assume will fall into line because a Federal judge says so.

Please do not be ambiguous. And please answer my question: Exactly which post-Heller measures are you referring to in your post (http://www.calguns.net/calgunforum/showpost.php?p=8167297&postcount=10) or did you make a mental-timeline mistake?

kcbrown
03-06-2012, 1:05 PM
Of course there will be hold outs, but I believe they'll be the exception and not the norm. That's also where a TRO/PRO would be utilized.


Those holdouts will be in the most densely populated areas, so while the number of sheriffs doing that will be small, the size of the affected population will be very large. Santa Clara, San Francisco, and LA Counties alone cover 35 percent of the population.

No, you badly underestimate the effect holdouts will have on RKBA in California.


Only time will tell how effective TRO/PRO court actions will be against those holdouts. I'm hopeful, but I know better than to expect immediate results from such action.

And you badly underestimate the ability of those holdouts to accomplish their goals through underhanded means. There are numerous ways they can do that, some of which will be difficult to challenge (e.g., placing "not valid in GFSZs" restrictions on licenses).

GaryV
03-06-2012, 1:11 PM
Incorporation does not happen on the federal level.

I should rephrase that as it doesn't address the question...

The ordinance that Heller challenged was not one that was created by a state or a subdivision of a state, therefore, Heller did not incorporate the Second Amendment against the states because it struck an ordinance within a federal enclave.

Palmer is the same condition here, as it challenges the licensing scheme that was created within a federal enclave, not a state, so the Fourteenth Amendment doesn't apply.

McDonald was also one that did not challenge a statute created by a state or a subdivision of a state, but it still incorporated the Second Amendment because Chicago's ordinances were within a state (unlike in Heller).

Did I get that right, and I've had plenty of sandwiches and naps... :o

Erik.

Hmmm. Okay, IANAL, but a couple of things seem wrong to me here. First, Chicago, being a city within a state, is a subdivision of the state, so McDonald was a direct challenge to a statute created by a subdivision of the State of Illinois, which is why it led to incorporation.

Second, rights are incorporated, not court decisions, so while Palmer is not a suit involving a statute created by a state or a subdivision of a state, if it is decided on 2nd Amendment grounds, it does not need independent incorporation by SCOTUS. The 2A being incorporated means that anything ruled to be protected under the 2A automatically applies to the states as well as to the federal government, even if the case only deals with the statutes of a federal enclave like DC. The only limitation is the area under jurisdiction of the court that makes the ruling. Any states within that area are automatically covered by the decision.

No separate case would be needed to incorporate the decision against the states, although striking down individual state laws might require additional lawsuits. This is no different than McDonald though. Just because McDonald incorporated the 2A doesn't mean that other cities and states automatically abide by the decision. They sometimes need to be sued independently in order to get them to comply. That doesn't mean McDonald didn't incorporate the 2A, only that people (including those in city and state government) violate the law and continue to need to be dealt with.

lhecker51
03-06-2012, 1:32 PM
Of course there will be hold outs, but I believe they'll be the exception and not the norm. That's also where a TRO/PRO would be utilized.



Please do not be ambiguous. And please answer my question: Exactly which post-Heller measures are you referring to in your post (http://www.calguns.net/calgunforum/showpost.php?p=8167297&postcount=10) or did you make a mental-timeline mistake?

Someone correct me here, but it seems that a certain law enforcement agency was or still actively ignoring court orders to process CCW's in SoCal. From what I see in these forums, the gun laws are so convoluted and poorly written that they are left up to jurisdictional interpretation by the various DA's to the point that any challenge, win or loose, you will be out a substantial sum of cash. The DA's know this and use it to keep their foot on the throat of law abiding gun owners. The risk-reward of walking an unknowable gun law compliance path can only be shouldered by the financially secure citizen. Case in point are GFSZs. How does one comply as you cannot draw a circle from the center point because it is actually measured from the borders of school zone property lines. This alone doubles the size of GFSZ's that were erroneously mapped with the center of property method. The point is that poorly written laws make every well intentioned gun owner a potential criminal depending on the will of local/fed law enforcement and DA's.

Crom
03-06-2012, 2:11 PM
Those holdouts will be in the most densely populated areas, so while the number of sheriffs doing that will be small, the size of the affected population will be very large. Santa Clara, San Francisco, and LA Counties alone cover 35 percent of the population.

We both agree there will be some holdouts.


No, you badly underestimate the effect holdouts will have on RKBA in California.

I think it is particularly wrong-headed of you to say that. You have a theory, saying so does not make it correct and as of now you have no way to test it.


Only time will tell how effective TRO/PRO court actions will be against those holdouts. I'm hopeful, but I know better than to expect immediate results from such action.

I agree that time will be the litmus test. Until then we're just arguing opinions.


And you badly underestimate the ability of those holdouts to accomplish their goals through underhanded means. There are numerous ways they can do that, some of which will be difficult to challenge (e.g., placing "not valid in GFSZs" restrictions on licenses).

There will be 2A litigation until kingdom come, and California will most certainly be at the front lines of the battle. I don't think anybody will deny that.

Regarding GFSZ, once properly challenged I don't think it will survive the sensitive places doctrine.

I think where you run astray is that perhaps you undervalue the determination and devotion of our side to shepherd through the courts important cases which will shape a robust meaningful 2A right.

I am cautiously optimistic over the long term--if you fault me for that, then so be it.

Window_Seat
03-06-2012, 6:11 PM
BTW, and I forgot to add.. IANAL either...

Hmmm. Okay, IANAL, but a couple of things seem wrong to me here. First, Chicago, being a city within a state, is a subdivision of the state, so McDonald was a direct challenge to a statute created by a subdivision of the State of Illinois, which is why it led to incorporation.


I believe you're right... I goofballed on that part, and stand corrected. I should have said that Heller did not challenge a state or subdivision of a state, and was way off my rocker. :laugh:

Erik.

kcbrown
03-06-2012, 6:27 PM
I think it is particularly wrong-headed of you to say that. You have a theory, saying so does not make it correct and as of now you have no way to test it.


Well, sure, there's no certainty that the counties in question will be holdouts, but look at their track records! If any counties are going to be holdouts, it'll be those. And as I stated, they cover 35% of the entire state's population. That isn't something you can merely dismiss with the wave of your hand.



There will be 2A litigation until kingdom come, and California will most certainly be at the front lines of the battle. I don't think anybody will deny that.


And guess what areas will be responsible for the bulk of that? Yep: the very counties that are going to be "holdouts".



Regarding GFSZ, once properly challenged I don't think it will survive the sensitive places doctrine.


And yet, Gene has said that GFSZ is essentially impossible to challenge because of "judicial politics", which suggests that it will survive said doctrine.

Maybe I'm reading too much into what he's said, but I've never seen a refutation come from him on this, and that alone has me gravely concerned.



I think where you run astray is that perhaps you undervalue the determination and devotion of our side to shepherd through the courts important cases which will shape a robust meaningful 2A right.


No, I don't underestimate that at all. What is in question is the willingness of the courts to go along with us, most especially to the degree necessary to impose their will on defiant outliers through force.



I am cautiously optimistic over the long term--if you fault me for that, then so be it.

I don't fault anyone for being optimistic or pessimistic. We each have our own interpretation of the various goings on. All I can point out is the set of facts available to us and the logical conclusions that can be drawn from them. Some of my view is based on the stated interpretations of others who are more privy to the facts than I am. If I miss the mark on that, it's either because my logic is faulty (something I'm eager to correct) or my data is faulty (something I cannot necessarily correct because the data in question may not be available to me, hence my occasional reliance on the interpretations of others).

But the bulk of my view is based on logical deduction from the facts at hand, combined with an all-too-keen awareness that the real world tends to be worse than most people predict (most people are optimists), and I try my level best to be as realistic as possible about everything.

Crom
03-08-2012, 4:25 PM
Well, sure, there's no certainty that the counties in question will be holdouts, but look at their track records! If any counties are going to be holdouts, it'll be those. And as I stated, they cover 35% of the entire state's population. That isn't something you can merely dismiss with the wave of your hand.

I'm reminded by a quote from Alan Gottlieb once said... To paraphrase him. He was grateful for the anti's. "It is only because of them that we have our Supreme Court victories. Had they folded, the modern 2A would not exist."



And yet, Gene has said that GFSZ is essentially impossible to challenge because of "judicial politics", which suggests that it will survive said doctrine.

Maybe I'm reading too much into what he's said, but I've never seen a refutation come from him on this, and that alone has me gravely concerned.

Dunno about Gene's comments... I hardly think that the 1000' zone is narrowly tailored to a gov. interest. If anything it's arbitrary. Have you seen what Patrick (http://www.mdshooters.com/showthread.php?t=56249) has wrote on the subject of sensitive places? I happen to agree with his views and as such GFSZ just don't fit IMO.

hoffmang
03-08-2012, 8:19 PM
We both agree there will be some holdouts.


I live for holdouts. Holdouts create the really, really fun precedent. They engorge the estates of our best lawyers. And we can kick them on almost internet time TROs and PIs.

I just can NOT WAIT for the holdouts! :26:

-Gene

Librarian
03-08-2012, 9:37 PM
I live for holdouts. Holdouts create the really, really fun precedent. They engorge the estates of our best lawyers. And we can kick them on almost internet time TROs and PIs.

I just can NOT WAIT for the holdouts! :26:

-Gene

Sadly, they also impoverish the local governments who are silly enough to cling to a bad position.

I hope I may be pardoned if I say I prefer money to go to librarians and libraries instead of lawyers.

( The real problem, of course, is that at the next election, voters do not punish those bad decisions. :mad: )

Tarn_Helm
03-08-2012, 9:42 PM
I knew it! Do I win a cookie?

. . . no.
:mad:

hoffmang
03-08-2012, 10:21 PM
Sadly, they also impoverish the local governments who are silly enough to cling to a bad position.

I think that's a bit more self healing than you're worried about. The intransigents are generally the largest governments with lots of slop and waste in their budgets.

Those with tighter budgets realize they can't afford the payout as it would hurt their re-election to have not enough money left to keep their constituents from turning to pitchforks.

-Gene

kcbrown
03-09-2012, 1:55 AM
I think that's a bit more self healing than you're worried about. The intransigents are generally the largest governments with lots of slop and waste in their budgets.


And which are cash-flush enough that they simply aren't going to care about even a multimillion dollar judgment against them when it took years to get to that point. For them, that's money well spent.


The holdouts are good for us in the very long run. The problem is that the "very long run" is a very long stretch: many, many years, if not many decades. During that entire time, the holdouts will keep busting out method after method of ensuring that the right to bear arms we pursue amounts to nothing in their jurisdiction. Whether it be as a result of permit restrictions, or ordinances, or interminal delays, or insufferable fees, or any number of other thing, their goal is to make the right as useless, hazardous, and difficult to obtain and exercise as possible. And every single one of those things will have to be fought individually.

Nevertheless, it is a fight we must fight, and a fight I believe we will eventually win. The real question is how many of us will still be alive when we finally secure a right that is fully usable in the jurisdictions in question.


Institutional corruption of the kind we're talking about here is immensely difficult to overcome. Such corruption has survived for generations (see, e.g., Chicago).



Those with tighter budgets realize they can't afford the payout as it would hurt their re-election to have not enough money left to keep their constituents from turning to pitchforks.


Exactly. Which is why they roll over early.

Peaceful John
03-09-2012, 10:19 AM
Have you seen what Patrick (http://www.mdshooters.com/showthread.php?t=56249) has wrote on the subject of sensitive places? I happen to agree with his views and as such GFSZ just don't fit IMO.

Thanks for the link, Crom. I know it's often troublesome to find an old link, but it's insertion adds value to the posting.

wildhawker
03-09-2012, 10:39 AM
Thanks for the link, Crom. I know it's often troublesome to find an old link, but it's insertion adds value to the posting.

Here are a few links to discussion of/posts on sensitive places in re Nordyke:

http://www.calguns.net/calgunforum/showthread.php?p=4543279&highlight=sensitive#post4543279

http://www.calguns.net/calgunforum/showthread.php?t=444689

http://www.calguns.net/calgunforum/showpost.php?p=4604307&postcount=23

-Brandon

hoffmang
03-09-2012, 8:17 PM
The problem is that the "very long run" is a very long stretch: many, many years, if not many decades.

In the first cycle of these cases we have to use motions for summary judgement. In the second cycle we get to use Temporary Restraining Orders (7-10 days) and Preliminary Injunctions (30-45 days) and losing the latter is immediately appealable.

As such, they move like the Ezell initial timeline, not the Palmer time line for example.

-Gene

kcbrown
03-09-2012, 9:43 PM
In the first cycle of these cases we have to use motions for summary judgement. In the second cycle we get to use Temporary Restraining Orders (7-10 days) and Preliminary Injunctions (30-45 days) and losing the latter is immediately appealable.

As such, they move like the Ezell initial timeline, not the Palmer time line for example.

-Gene

Yes, but we're talking about the Ezell timeline separately for each single individual thing the holdout can attempt to do. Worse, because the holdout is a county, we're constrained in terms of where we can file the case. This isn't like AB962 where we were able to pick the initial battleground. We're going to get the same kind of court that we got in Scocca.

Speaking of that, does Scocca v Smith ask for a Preliminary Injunction? I don't see one explicitly requested in the demand for relief. I do see a demand for "Injunctive and declaratory relief to prevent future Constitutional violations and miscarriages of Justice", which does sounds suspiciously like a demand for a preliminary injunction (for how can "future", as measured relative to the time the complaint was filed, Constitutional violations be prevented while the case is ongoing if the injunction is not a preliminary one?).

If it is a demand for a PI, then why isn't Scocca indicative of what we can actually expect as regards timelines for such cases? If it is not a demand for a PI, then why wasn't one demanded?


Regardless, even if you take the most realistic scenario on the optimistic side of things, a loss in an unsympathetic district court followed by an immediate appeal, we're looking at many months per case, and there will be many, many such cases that will need to be filed, appealed, and ultimately won before the right is truly secure in those holdouts. That is why I say we're looking at many, many years if not many decades before we have a truly useful, functional right to keep and bear arms in those holdout areas.

Fjold
03-09-2012, 9:57 PM
In the first cycle of these cases we have to use motions for summary judgement. In the second cycle we get to use Temporary Restraining Orders (7-10 days) and Preliminary Injunctions (30-45 days) and losing the latter is immediately appealable.

As such, they move like the Ezell initial timeline, not the Palmer time line for example.

-Gene

Not to be too pessimistic but everything seems to be on the Nordyke timeline.

Anchors
03-09-2012, 10:04 PM
Hmmm. Okay, IANAL, but a couple of things seem wrong to me here. First, Chicago, being a city within a state, is a subdivision of the state, so McDonald was a direct challenge to a statute created by a subdivision of the State of Illinois, which is why it led to incorporation.

Second, rights are incorporated, not court decisions, so while Palmer is not a suit involving a statute created by a state or a subdivision of a state, if it is decided on 2nd Amendment grounds, it does not need independent incorporation by SCOTUS. The 2A being incorporated means that anything ruled to be protected under the 2A automatically applies to the states as well as to the federal government, even if the case only deals with the statutes of a federal enclave like DC. The only limitation is the area under jurisdiction of the court that makes the ruling. Any states within that area are automatically covered by the decision.

No separate case would be needed to incorporate the decision against the states, although striking down individual state laws might require additional lawsuits. This is no different than McDonald though. Just because McDonald incorporated the 2A doesn't mean that other cities and states automatically abide by the decision. They sometimes need to be sued independently in order to get them to comply. That doesn't mean McDonald didn't incorporate the 2A, only that people (including those in city and state government) violate the law and continue to need to be dealt with.

This is what I thought too, but there seems to be differing opinions here.

hoffmang
03-10-2012, 1:16 AM
Not to be too pessimistic but everything seems to be on the Nordyke timeline.

You mean like the win in Maryland and the second oral argument in Denver?

-Gene

Anchors
03-10-2012, 8:42 PM
This is what I thought too, but there seems to be differing opinions here.

Anyone? Gene, Brandon? haha.

hoffmang
03-10-2012, 8:59 PM
Anyone? Gene, Brandon? haha.

GaryV is essentially correct in his post above.

-Gene

kcbrown
03-10-2012, 9:25 PM
GaryV is essentially correct in his post above.


Note, however, that it only applies when the win is in a federal enclave. Such a win causes the resulting jurisprudence to apply to the entire federal government and, because of incorporation, to the states as well.

The reverse is not the case. A win in a district court against a state law covers that entire state but nothing else. To spread the effect further, the case has to be appealed to the circuit, and a win there only affects the area covered by the circuit. Nationwide coverage and federal coverage come only from appeals to the U.S. Supreme Court.

This has the implication that with incorporation of the right against the states in place, if you can choose between challenging a federal law (or a local law in a federal enclave) and a state law, all other things being equal, you're better off challenging the federal/enclave law because the path is notably shorter: a win in district court gets you a win throughout the entire nation immediately (unless the judgment is stayed pending an appeal).

Of course, Palmer throws that entire timing argument into the toilet. I will be entirely unsurprised if, by the time Palmer gets decided by the district court, we already have a carry win at the Supreme Court level despite that case having been filed later than Palmer.

wildhawker
03-10-2012, 9:50 PM
kcbrown,

DC District is appealable to the CA DC. CA DC is appealable to the US SC.

Other District is appealable to the CA x Circuit. CA x Circuit is appealable to the US SC.

I'm not sure what you're trying to say, but you might want to read Bolling v. Sharpe (http://scholar.google.com/scholar_case?q=Bolling+v.+Sharpe&hl=en&as_sdt=2,5&case=16234924501041992561&scilh=0), 347 U.S. 497 (1954).

-Brandon

hoffmang
03-11-2012, 12:10 AM
kcbrown,

All Federal Appellate court decisions are highly persuasive.

-Gene

kcbrown
03-11-2012, 12:32 PM
kcbrown,

All Federal Appellate court decisions are highly persuasive.


"Persuasive" is not the same as "binding", most especially as regards jurisprudence which is in its infancy. Interestingly, that could go both ways. A district court in one circuit may find the ruling of a circuit court in a different circuit more persuasive than usual simply due to lack of jurisprudence in its own circuit. In-circuit jurisprudence is, I would guess, more persuasive than out-of-circuit jurisprudence, even when the in-circuit jurisprudence originates from another district court and the out-of-circuit jurisprudence originates from a circuit court.

If I'm not mistaken, DC district court rulings are binding on all other federal courts other than CA DC and SCOTUS when the rulings are on an incorporated enumerated right.




DC District is appealable to the CA DC. CA DC is appealable to the US SC.

Other District is appealable to the CA x Circuit. CA x Circuit is appealable to the US SC.


Yes.

My point wasn't regarding the chain of appeals, but rather how the applicability of a ruling varies with where it's made, and in particular how the applicability of a DC district court ruling on an incorporated fundamental right is wider in scope than even non-DC CAs.



I'm not sure what you're trying to say, but you might want to read Bolling v. Sharpe (http://scholar.google.com/scholar_case?q=Bolling+v.+Sharpe&hl=en&as_sdt=2,5&case=16234924501041992561&scilh=0), 347 U.S. 497 (1954).


Thanks, I'll read it.

Scarecrow Repair
03-11-2012, 1:24 PM
"Persuasive" is not the same as "binding"

You'd probably call the law of gravity persuasive. I can assure you it's binding.

hoffmang
03-11-2012, 8:39 PM
"Persuasive" is not the same as "binding", most especially as regards jurisprudence which is in its infancy.

A state supreme court or another court or appeals going against persuasive court of appeals authority leads to cert grants at something like an 80% rate. Getting SCOTUS in is pretty darn persuasive. If you're an anti gun court, you know this and have to behave accordingly since you too can count to 5.

-Gene

GaryV
03-11-2012, 8:45 PM
Note, however, that it only applies when the win is in a federal enclave. Such a win causes the resulting jurisprudence to apply to the entire federal government and, because of incorporation, to the states as well.

The reverse is not the case. A win in a district court against a state law covers that entire state but nothing else. To spread the effect further, the case has to be appealed to the circuit, and a win there only affects the area covered by the circuit. Nationwide coverage and federal coverage come only from appeals to the U.S. Supreme Court.

This has the implication that with incorporation of the right against the states in place, if you can choose between challenging a federal law (or a local law in a federal enclave) and a state law, all other things being equal, you're better off challenging the federal/enclave law because the path is notably shorter: a win in district court gets you a win throughout the entire nation immediately (unless the judgment is stayed pending an appeal).

Of course, Palmer throws that entire timing argument into the toilet. I will be entirely unsurprised if, by the time Palmer gets decided by the district court, we already have a carry win at the Supreme Court level despite that case having been filed later than Palmer.

Exactly why I said this (and everything after):

The only limitation is the area under jurisdiction of the court that makes the ruling. Any states within that area [i.e., states within a circuit] are automatically covered by the decision.

kcbrown
03-11-2012, 10:47 PM
A state supreme court or another court or appeals going against persuasive court of appeals authority leads to cert grants at something like an 80% rate. Getting SCOTUS in is pretty darn persuasive. If you're an anti gun court, you know this and have to behave accordingly since you too can count to 5.


If the court in question is anti-gun and the persuasive opinion is pro-gun, then they can either issue a ruling that is consistent with that ruling for a 100% chance of yielding a ruling that goes against their preference, or they can issue a ruling that goes against the persuasive opinion, for an at most 80% chance (at most because that 80% chance assumes that the Supreme Court will always rule in opposition of how this court wants to rule) of yielding a ruling that goes against their preference.

Why would they issue a pro-gun ruling under those conditions, when the chance of getting what they want is less by doing that than by issuing the ruling they want to issue?

hoffmang
03-11-2012, 11:17 PM
Why would they issue a pro-gun ruling under those conditions, when the chance of getting what they want is less by doing that than by issuing the ruling they want to issue?

They can try to lessen the impact in the circuit and the likelihood that SCOTUS would broaden the impact to all circuits.

-Gene

kcbrown
03-12-2012, 1:30 AM
They can try to lessen the impact in the circuit and the likelihood that SCOTUS would broaden the impact to all circuits.


Except that this calculus doesn't work, at least as regards as broadening the impact to all circuits.

If all the other circuits follow suit, then the impact in question is guaranteed to be as broad as it would be if SCOTUS issued the ruling itself, because if one circuit ruling is persuasive, then more than one is even more persuasive.

That leaves the degree of the impact. On that, I cannot say. What happens when one circuit issues a more pro-gun ruling than another? Does that not cause the same sort of circuit split as a result of a later case? This is the 2nd Amendment we're talking about here, after all, a right which has been incorporated against the states, so substantial regularity across the country is going to be demanded one way or the other, and circuit splits are bound to occur. It won't do for the right to mean more as a right (i.e., as regards limits on what laws the states may pass) in one jurisdiction than in another.

If circuit splits don't occur in that event under the watchful eye of SCOTUS, doesn't that imply that the end result will be as if SCOTUS maximized the impact to that of the most staunch 2A advocate to be found amongst the circuit courts? After all, the concern a circuit court is going to have is that SCOTUS will intervene and increase the impact. With a pro-2A SCOTUS, a circuit court isn't going to be concerned about being too pro-2A when there's no SCOTUS guidance otherwise, will it?

goldrush
03-12-2012, 4:24 AM
To the attorneys:

Because McDonald incorporated Heller, if Palmer is decided favorably is it automatically also incorporated as to the States?

Cordially,
John

(Cross-posted on MDShooters)

If decided favorably at the appellate level, then it would be fairly said to be binding on the states in that circuit until overruled or clarified by the Supreme Court.

FABIO GETS GOOSED!!!
03-12-2012, 7:01 AM
If decided favorably at the appellate level, then it would be fairly said to be binding on the states in that circuit until overruled or clarified by the Supreme Court.

Which states would be included in that circuit?

Maestro Pistolero
03-12-2012, 8:57 AM
Which states would be included in that circuit?

MD, DC, WV, VA, NC, and SC.

FABIO GETS GOOSED!!!
03-12-2012, 9:18 AM
MD, DC, WV, VA, NC, and SC.

Thanks. For some reason I thought it was just DC but couldn't find what I was looking for on the DC Circuit court of appeals website.

wildhawker
03-12-2012, 11:57 AM
Thanks. For some reason I thought it was just DC but couldn't find what I was looking for on the DC Circuit court of appeals website.

You were correct; the DC Circuit doesn't include those states (which are actually in the Fourth Circuit).

-Brandon