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goldrush
03-13-2012, 2:50 PM
If this intermediate scrutiny nonsense becomes the "standard" the court uses to measure our freedom under the Second Amendment, we've done ourselves a world of harm.

Never again will we be able to claim that a state has no constitutional permission to enact any permit scheme governing the carry of a firearm, and never again will we be able to say that if the government cannot regulate the carrying of a book in a place, neither can it regulate the carrying of a firearm in that place. Thus are lost the lawsuits claiming a state has no right to tax a right by requiring a permit, and lost the lawsuits against states that would require its gun owners to carry concealed or openly, per state preference.

While intermediate scrutiny may arguably improve the lives of gun owners in California and Illinois, this "standard" worsens the citizens' position in most of the states and ratifies the belief of state governments that the Second Amendment is free to restrict much further than other rights. As favorable states elect occasional legislatures that are unfavorable to gun rights, they'll see a wide road, ready to be trod. Worse, as we've seen with the absolute erosion of the Fourth Amendment, allowing the court to engage in line drawing within a right is a slow death of the entire right.

To the extent that gun cases are being driven by persons desiring to make life a bit better for the West Coast, stop. The principal objective of present gun legislation ought to be screaming bloody murder that intermediate scrutiny is a direct attack on the Constitution, the Bill of Rights, the Spirit of '76, Washington's memory and the heroes of the Revolution.

Intermediate scrutiny should only be viewed as a resounding defeat.

goldrush
03-13-2012, 2:58 PM
Further, it is an additional source of infuriation to see judges during summary judgment proceedings talking about gun laws and public safety as if there is an established fact that one has bearing on the other.

Summary judgment is issued only to settle purely legal questions. Any question of fact is to be left to a jury. The relationship of gun laws to public safety is nowhere a deductive fact, nor is it so empirically proven elsewhere that the question is settled.

If these judges wish to blather about gun laws having a bearing on public safety, they owe the country the duty to hold an evidentiary hearing on the question so that this essential foundation of the summary judgment argument can be factually considered and thus the proceeding argument will have a factual foundation.

wildhawker
03-13-2012, 3:21 PM
Do you agree that it is inevitable some case(s) will certainly be litigated on the basis of claims that some regulation violates the Second [and Fourteenth Amendments]?

-Brandon

Stonewalker
03-13-2012, 3:27 PM
As I understand it, the goal is to get strict scrutiny applied to "traditionally lawful uses" with guns. All other activity gets intermediate. Not saying this with any authority. I'm still trying to understand the exact legal strategy regarding the court's treatment of RKBA. I believe the Maryland Federal court ruled this way in Woolard V Sheridan.

Tarn_Helm
03-13-2012, 4:20 PM
If this intermediate scrutiny nonsense becomes the "standard" the court uses to measure our freedom under the Second Amendment, we've done ourselves a world of harm.

Never again will we be able to claim that a state has no constitutional permission to enact any permit scheme governing the carry of a firearm, and never again will we be able to say that if the government cannot regulate the carrying of a book in a place, neither can it regulate the carrying of a firearm in that place. Thus are lost the lawsuits claiming a state has no right to tax a right by requiring a permit, and lost the lawsuits against states that would require its gun owners to carry concealed or openly, per state preference.

While intermediate scrutiny may arguably improve the lives of gun owners in California and Illinois, this "standard" worsens the citizens' position in most of the states and ratifies the belief of state governments that the Second Amendment is free to restrict much further than other rights. As favorable states elect occasional legislatures that are unfavorable to gun rights, they'll see a wide road, ready to be trod. Worse, as we've seen with the absolute erosion of the Fourth Amendment, allowing the court to engage in line drawing within a right is a slow death of the entire right.

To the extent that gun cases are being driven by persons desiring to make life a bit better for the West Coast, stop. The principal objective of present gun legislation ought to be screaming bloody murder that intermediate scrutiny is a direct attack on the Constitution, the Bill of Rights, the Spirit of '76, Washington's memory and the heroes of the Revolution.

Intermediate scrutiny should only be viewed as a resounding defeat.

I hear, understand, and share your frustration.

Unfortunately, I have never heard of any sort of legal "silver bullet" that destroys the need to follow the path of piecemeal litigation. I wish there were.

As far as I understand the legal problem, it originates in the failure to incorporate the Bill of Rights against lower jurisdictions such as the states, counties, cities, etc.

Since that is the status quo that gave rise to the issue of levels or standards of scrutiny (http://en.wikipedia.org/wiki/Intermediate_scrutiny), we are stuck with the sisyphean task of gradually chipping away at each successive level of encrustation that envelops and partially circumvents fullest and freest exercise of the right to keep and bear arms for purposes of lawful self-defense.

I hate the notion of "levels of scrutiny," but we are stuck with it.

We can wish we did not have "levels of scrutiny," or we can wish we had "strict scrutiny" being applied to Second Amendment cases.

But we don't.

Yet.

Perhaps if we fight hard enough and long enough, we will be able to create that as the constitutional status quo.

Until then, we can only fight from where we are now not where we wish we were.

From here, we can push for ever greater freedom of exercise in this matter and ever more stringent "levels of scrutiny," until we reach the day when all rights--enumerated and unenumerated--are regarded as protected by a sort of maximum scrutiny.

I don't see any other way.

Do you?
:cool:

P.S. The current struggle can only be regarded as a defeat if we stop fighting.

So let's keep at it, step by step.

Gray Peterson
03-13-2012, 4:35 PM
If this intermediate scrutiny nonsense becomes the "standard" the court uses to measure our freedom under the Second Amendment, we've done ourselves a world of harm.

Never again will we be able to claim that a state has no constitutional permission to enact any permit scheme governing the carry of a firearm, and never again will we be able to say that if the government cannot regulate the carrying of a book in a place, neither can it regulate the carrying of a firearm in that place. Thus are lost the lawsuits claiming a state has no right to tax a right by requiring a permit, and lost the lawsuits against states that would require its gun owners to carry concealed or openly, per state preference.

While intermediate scrutiny may arguably improve the lives of gun owners in California and Illinois, this "standard" worsens the citizens' position in most of the states and ratifies the belief of state governments that the Second Amendment is free to restrict much further than other rights. As favorable states elect occasional legislatures that are unfavorable to gun rights, they'll see a wide road, ready to be trod. Worse, as we've seen with the absolute erosion of the Fourth Amendment, allowing the court to engage in line drawing within a right is a slow death of the entire right.

To the extent that gun cases are being driven by persons desiring to make life a bit better for the West Coast, stop. The principal objective of present gun legislation ought to be screaming bloody murder that intermediate scrutiny is a direct attack on the Constitution, the Bill of Rights, the Spirit of '76, Washington's memory and the heroes of the Revolution.

Intermediate scrutiny should only be viewed as a resounding defeat.

To the underlined above, I'm not sure who you are speaking to here.

It is typical in modern strategic civil litigation to argue that something violates all standards of scrutiny. It's how you maximize a potential of a win.

For example, in Ezell, the district court was obsessed with public safety and used intermediate scrutiny masquerading as rational basis.

When it went up to the 7th Circuit, we got almost strict scrutiny, and it resulted in a strike down of the gun range ban.

In both Heller and McDonald, SCOTUS did not use scrutiny level. They are using a categorical standard which is rather new. If such a law prevents a law abiding citizen from arming oneself for confrontation, it is struck down without reference to a standard. The inferior courts are having difficulty adopting to this way of doing things, which is why they are defaulting back to scrutiny levels when they shouldn't be doing so.

Many of the early lawsuits involving school desegregation did not start out to demand allowing black children to attend school with white children. They started out first attacking the "equal" part, demanding that school districts fix up the black schools to white school standards. Only with the 6 federal court cases that made up Brown v Board of Education that they then argued that separate but equal is unconstitutional. They also used *drumroll* social science to prove forced by government racial segregation was bad for children.

It takes years and many follow on cases to bring things to a heel.

Woollard used intermediate scrutiny, yes, but this is because he was limited by a higher court's decision on the matter, and cannot summarily ignore their decision in (Masciandaro). He wrote the decision, however, in a way that if the 4th Circuit tries to overturn his decision, they would have to overturn both Masciandaro and Chester. Circuit courts are not allowed to overturn previous 3 judge panel decisions unless they are sitting en banc or case law from SCOTUS annihilates the underpinning of their previous decisions.

We also filed Kwong v. Bloomberg in New York, going after the highest in the nation fees for possessing a handgun in the home. Just like targeting DC and Chicago for their unique in the nation handgun bans, Kwong deals with fees. If the government cannot charge fees, they may opt out of licensing possession all together.

Tarn_Helm
03-13-2012, 4:55 PM
Mr. Peterson's amended comment: "Woollard used intermediate scrutiny, yes, but this is because he was limited by a higher court's decision on the matter, and cannot summarily ignore their decision in (Masciandaro). He wrote the decision, however, in a way that if the 4th Circuit tries to overturn his decision, they would have to overturn both Masciandaro and Chester. Circuit courts are not allowed to overturn previous 3 judge panel decisions unless they are sitting en banc or case law from SCOTUS annihilates the underpinning of their previous decisions.

(red emphasis added by me)

Mr. Peterson: Thanks for taking the time and having the patience to point this out.

***

I repeat, to the fellow who started the thread: The nature of the beast is this: gradualism & proceduralism.

There is no magic bullet.

No home run case that wipes out multiple obstacles in one fell swoop.

I wish there were.

But it is what it is.

If every single gun owner in America took the day off work tomorrow, showed up at all the local, county, and federal legislature buildings, surrounded them while wearing loaded pistols on their hips and carrying loaded semi-auto rifles as a show of their political leanings, then and only then might we send a sufficiently loud and clear message to all appointed and elected office holders that they need to consider all our rights essentially "absolute"--or else.

But that is not going to happen, and I would never advocate it.

Gradual proceduralism is how things get done here and now.

The Battle of Athens Part 2 (http://en.wikipedia.org/wiki/Battle_of_Athens_(1946)) is unlikely to ever happen in our lifetime. :(

ed bernay
03-13-2012, 6:33 PM
We also filed Kwong v. Bloomberg in New York, going after the highest in the nation fees for possessing a handgun in the home. Just like targeting DC and Chicago for their unique in the nation handgun bans, Kwong deals with fees. If the government cannot charge fees, they may opt out of licensing possession all together.

Interesting theory but I suspect it is the incorrect one. NY doesn't regulate possession to earn fees but rather uses fees to regulate possession. If they can't charge fees, that won't change their desire to inhibit possession. They will just come up with something else as a hurdle to ensure minorities and other non connected people are dissuaded from exercising their 2nd amendment rights. I believe the same goes for Chicago, DC, etc

SilverTauron
03-13-2012, 6:44 PM
The problem is that much like with the school segregation problem, we are fighting social customs with the law.

The people who are on the other side do not see regulating guns as a legal duty. They view it as a moral duty of their office, and damn the consequences. Look at Chicago when the SCOTUS decisions came down. Daley called a press conference shaming the Supreme Court and stating that he, in paraphrase, was going to keep doing what he was doing and change the laws to just barely within compliance. Such people spend hours thinking and saying behind closed doors " how can we ban guns without being sued?"

If we force through the courts a necessity for such people to resort to contortionist maneuvers to keep their districts disarmed, that's exactly what they will do until the last court ruling comes down deciding any and all laws against legal ownership of guns are infringing on a constitutional right. We are quite a ways away from that, so until then I wouldn't be expecting any overnight miracles on Michigan Avenue.

Do not be surprised if you see crazy laws from the Bloomberg club such as bans on gun holsters and the like. When that great day comes when the 2nd Amendment has to be recognized as a civil right under penalty of law by EVERYONE, the leftists will resort to silliness like banning SERPA holsters once they realize regulating guns is a ticket to a losing party in a lawsuit.

Gray Peterson
03-13-2012, 6:45 PM
Interesting theory but I suspect it is the incorrect one. NY doesn't regulate possession to earn fees but rather uses fees to regulate possession. If they can't charge fees, that won't change their desire to inhibit possession. They will just come up with something else as a hurdle to ensure minorities and other non connected people are dissuaded from exercising their 2nd amendment rights. I believe the same goes for Chicago, DC, etc

Not applicable. DC is checked by Congress, who have threatened to step in repeatedly (the recent reactions to "Emily Gets Her Gun" was specifically to preempt her from going to the Congress and testify about getting a gun). Illinois is very close (within 2 years) of annihilating local gun control laws applicable to FOID card holders, or at a minimum LTC holders.

New York State law is very strict with preemption in re handgun licensing and possession. In order to require a training course for pistol licensees, Westchester County had to go to the Legislature to ask for a special exemption. The makeup of the State Senate, at current, does not allow for New York City requiring things beyond what state law currently allows.

2009_gunner
03-13-2012, 6:58 PM
Worst case scenario, states could do what Iowa is trying to do to their constitution:

The right of individuals to acquire, keep, possess, transport, carry, transfer, and use arms for defense of life and liberty and for all other legitimate purposes is fundamental and shall not be denied or infringed. Mandatory licensing, registration, or special taxation as a condition of the exercise of this right is prohibited, and any other restriction shall be subject to strict scrutiny.


http://www.opposingviews.com/i/society/guns/iowa-house-approves-2-gun-bills-after-walkout

IVC
03-13-2012, 7:00 PM
The principal objective of present gun legislation ought to be screaming bloody murder that intermediate scrutiny is a direct attack on the Constitution, the Bill of Rights, the Spirit of '76, Washington's memory and the heroes of the Revolution.

You can scream, but nobody will listen. There is a method to the madness and it includes working the system, not working against the system. Pointing out the obvious works only with the willing participants. The unwilling can just say "I don't think so" or "La, la, la, la" and decide otherwise. You can repeat the cycle of "yell-denied" as many times as you wish, but the outcome is the same. That's the reality. The trick is to figure out how to make it happen with the system at hand.

hoffmang
03-13-2012, 8:35 PM
1. Under intermediate scrutiny, faithfully applied, we win carry - just like Woolard in Maryland.

2. The three tiers are actually wrong for almost all 2A cases. Historical categorical will be the method used to adjudicate 2A cases long term. For a preview of that as applied to the usual disputes, read the dissent in Heller II. Almost everything we gun owners care about goes the way of the dodo under historical/categorical. The three tiers come in only after the historical/categorical puts it on the edge of the right and one needs to decide if that restriction then serves the right government interest.

Note that almost every intermediate scrutiny gun case violates clearly established SCOTUS precedent that predates even Heller.

-Gene

ed bernay
03-13-2012, 8:38 PM
Not applicable. DC is checked by Congress, who have threatened to step in repeatedly (the recent reactions to "Emily Gets Her Gun" was specifically to preempt her from going to the Congress and testify about getting a gun). Illinois is very close (within 2 years) of annihilating local gun control laws applicable to FOID card holders, or at a minimum LTC holders.

New York State law is very strict with preemption in re handgun licensing and possession. In order to require a training course for pistol licensees, Westchester County had to go to the Legislature to ask for a special exemption. The makeup of the State Senate, at current, does not allow for New York City requiring things beyond what state law currently allows.

Doesn't NYC regulate long guns more stringently than the rest of the state? E.g. require registration for long gun possession unlike the rest of the state. Also don't they have a more stringent assault weapons ban? e.g. No ARs at all unlike the rest of the state. If true, I think those actions signify to what lengths they will go to prevent people from exercising their rights.

ed bernay
03-13-2012, 8:40 PM
[QUOTE=Gray Peterson;8212780]Not applicable. DC is checked by Congress, who have threatened to step in repeatedly (the recent reactions to "Emily Gets Her Gun" was specifically to preempt her from going to the Congress and testify about getting a gun). Illinois is very close (within 2 years) of annihilating local gun control laws applicable to FOID card holders, or at a minimum LTC holders.

QUOTE]

If DC is checked by Congress why is their City Council even involved in changing the rules to make registration easier? (I know theoretically it is but not in reality)

nick
03-13-2012, 8:49 PM
Woollard used intermediate scrutiny, yes, but this is because he was limited by a higher court's decision on the matter, and cannot summarily ignore their decision in (Masciandaro). He wrote the decision, however, in a way that if the 4th Circuit tries to overturn his decision, they would have to overturn both Masciandaro and Chester. Circuit courts are not allowed to overturn previous 3 judge panel decisions unless they are sitting en banc or case law from SCOTUS annihilates the underpinning of their previous decisions.

I hear you, but I just can't resist inserting a snide remark here - summarily ignoring the "inconvenient" higher court rulings doesn't seem to bother the anti-gun judges.

IVC
03-13-2012, 9:14 PM
I hear you, but I just can't resist inserting a snide remark here - summarily ignoring the "inconvenient" higher court rulings doesn't seem to bother the anti-gun judges.

To be fair, there is a sea of cases that restrict the 2A rights. As some point out, 40 years of gun restrictions cannot be undone overnight. Understanding that what is happening now is a paradigm shift in an inherently inertial institution helps manage expectations. It takes time.

Tarn_Helm
03-13-2012, 9:16 PM
1. Under intermediate scrutiny, faithfully applied, we win carry - just like Woolard in Maryland.

2. The three tiers are actually wrong for almost all 2A cases. Historical categorical will be the method used to adjudicate 2A cases long term. For a preview of that as applied to the usual disputes, read the dissent in Heller II. Almost everything we gun owners care about goes the way of the dodo under historical/categorical. The three tiers come in only after the historical/categorical puts it on the edge of the right and one needs to decide if that restriction then serves the right government interest.

Note that almost every intermediate scrutiny gun case violates clearly established SCOTUS precedent that predates even Heller.

-Gene

I really hope you are right--sooner rather than later.

If I were to win the lottery this week, I would give a HUGE chunk to CalGuns Foundation for the sake of waging an all out war for shall-issue in the courts until we have re-written ever aspect of self-defense law in this state--including civil liability in the event of a shooting, as well as numerous other related issues.
:rant:

fiddletown
03-13-2012, 9:21 PM
...The principal objective of present gun legislation ought to be screaming bloody murder that intermediate scrutiny is a direct attack on the Constitution, the Bill of Rights, the Spirit of '76, Washington's memory and the heroes of the Revolution...By all means, scream bloody murder. Who is listening?

Tarn_Helm
03-13-2012, 9:37 PM
By all means, scream bloody murder. Who is listening?

+1 ^

I encourage the person you responded to watch and re-watch the following brief lecture on the philosophical and cultural differences between the thinkers who enacted the American Revolution and those who enacted the French Revolution: The Battle of Big Ideas, Part 1 (http://www.youtube.com/watch?v=_dwz_Z62e0s).

The ideal of American political action is not about screaming bloody murder and impassioned mob rule--though it has happened on occasion.

We Americans, however, aspire to be better than and different from the other revolutionaries who have come and gone since our revolution.

Check it out.

cacop
03-13-2012, 9:41 PM
To be fair, there is a sea of cases that restrict the 2A rights. As some point out, 40 years of gun restrictions cannot be undone overnight. Understanding that what is happening now is a paradigm shift in an inherently inertial institution helps manage expectations. It takes time.

This is what I remind myself with when I wonder what is taking so long with the CA AWB.

I remind myself that even though Miranda came out nearly 50 years ago we still have cases coming out of the courts that further refine it. I think it is safe to say most of it is pretty well settled. I can hear about a Miranda rights case working it's way through the system and I can guess which way the courts are going to go most of the time. It wasn't like that when my father first started out.

I just have to tell myself I may never be able to walk into a gunstore and walk out with a non bullet buttoned AR-15 and 30 round mags without showing anything other than an instacheck card...but my kids might.

Gray Peterson
03-13-2012, 9:59 PM
Doesn't NYC regulate long guns more stringently than the rest of the state? E.g. require registration for long gun possession unlike the rest of the state. Also don't they have a more stringent assault weapons ban? e.g. No ARs at all unlike the rest of the state. If true, I think those actions signify to what lengths they will go to prevent people from exercising their rights.

Which is why I said "Handguns" and not "long guns". That's one aspect of Heller II that will likely be litigated downwards and then upwards. We'll see if it goes en banc in the DC Circuit or goes to SCOTUS in a year or two....

Gray Peterson
03-13-2012, 10:11 PM
To the extent that gun cases are being driven by persons desiring to make life a bit better for the West Coast, stop.

Goldy,

Assuming here for a minute that this is actually what you think is going on (Last I checked, Alan lives in Virginia and SAF is based in a pro-gun state called Washington), why should "these persons" listen to you when you refuse to put real life name to paper?

You keep saying "stop", but as far as they can tell, you're just a random person who has above average knowledge of law on the internet. Also, you've attacked Gene, you've attacked Alan's work, you've repeatedly attacked me and others to the point where you were banned from the forum for a few days.

You keep speaking as an supposed authority, without telling us who you actually are. This is why you keep being summarily ignored.

Who are you?

wildhawker
03-13-2012, 10:15 PM
You keep speaking as an supposed authority, without telling us who you actually are. This is why you keep being summarily ignored.

I think it's more likely due to his being often wrong.

-Brandon

IVC
03-13-2012, 10:27 PM
Who are you?

The first rule of agitation is... (drum beat)... agitate. The second rule of agitation is... (drum beat)... feel good about it when successful.

Goldrush is getting under your skin and that's one pleasure that you can deny him/her. Probably better to say "Why do you think so?", then repost all arguments. See who rots first.

Gray Peterson
03-13-2012, 10:30 PM
I think it's more likely due to his being often wrong.

-Brandon

That could be very well true. However, his continual hiding of who he really is when giving legal analysis in complete contrarian fashion speaks to an embarrassment of his own analysis being connected to who he is.

At least Charles Nichols puts his name on his flawed litigation theory and practices, and take the arrows that come from it forthwith. I don't like Charles for numerous reasons, in that he'll likely destroy any chance of a judicial resolution on certain subject matters, but at least he puts his own name on it. Goldy, though contrarian, isn't a nutjob. Why is he hiding his name again?

wildhawker
03-13-2012, 10:34 PM
Your sense of humor must be broken tonight. That's ok. Mine was broken last night. It happens.

-Brandon

That could be very well true. However, his continual hiding of who he really is when giving legal analysis in complete contrarian fashion speaks to an embarrassment of his own analysis being connected to who he is.

At least Charles Nichols puts his name on his flawed litigation theory and practices, and take the arrows that come from it forthwith. I don't like Charles for numerous reasons, in that he'll likely destroy any chance of a judicial resolution on certain subject matters, but at least he puts his own name on it. Goldy, though contrarian, isn't a nutjob. Why is he hiding his name again?

Gray Peterson
03-13-2012, 10:35 PM
The first rule of agitation is... (drum beat)... agitate. The second rule of agitation is... (drum beat)... feel good about it when successful.

Goldrush is getting under your skin and that's one pleasure that you can deny him/her. Probably better to say "Why do you think so?", then repost all arguments. See who rots first.

I would say that he isn't "getting under my skin", but he's asking the supposed "power players" (I'll have to assume he's speaking to CGF volunteers and directorship) to change the way the litigation is being done, without saying who he is and why he has any authority to speak on such matters.

If he's a federal litigator, he can spend the $200 for admission into a federal court bar and submit an amicus brief to a district court or an appeals court, perhaps asking the court to consider strict scrutiny on everything involving 2A. He can't submit it as "goldrush" though.

Librarian
03-13-2012, 11:42 PM
I believe we don't want to stoop to character assassination.

goldrush
03-14-2012, 5:27 AM
From here, we can push for ever greater freedom of exercise in this matter and ever more stringent "levels of scrutiny," until we reach the day when all rights--enumerated and unenumerated--are regarded as protected by a sort of maximum scrutiny.

I don't see any other way.

Do you?


Yes, insist that judges do their jobs. Once upon a time, lawyers were taught that the first canon of statutory interpretation was to review the statute at question against the Constitution, giving a plain reading to both. Further judicial analysis was only permitted if a plain reading of the Constitution failed to answer the question.

"Plain reading" was the original method of constitutional analysis, yet every court today blows right by that requirement and straightway engages in poppycock judge-made law where our Constitution is not the immutable first legal principle and supreme governmental charter: legal analysis juxtaposed against a backdrop of the Constitution is the real Constitution.

Every court should be reminded that its first obligation is to give the Constitution a plain reading when it hints that it might be departing from that principal obligation.

In Woollard, nowhere does Legg engage in an "infringement" analysis, though a plain reading requirement would compel him to do so. He jumps in with both feet into that judicial poppycock of their made-up levels of scrutiny being the supreme law of the land. He utters this line "After a lengthy examination of the historical record, the Heller majority held that the Constitution guarantees the individual right to possess and carry weapons in case of confrontation, but left the contours of that right largely undefined," and he's off to the races. So long, plain reading. The "contours" are obviously the infringements proscribed by the Amendment, but that potent word has been summarily denied limiting effect.

Your hope of gradual nibbling expanding the right should be completely inverted. With no Supreme Court imperative to conduct a plain reading of the right, it is the right that will be gradually restricted, as we've seen with the Fourth Amendment. When cops and citizens square off, state power inexorably advances, and the citizen must learn to live in an ever-narrowing prison cell.

In absence of a plain reading requirement, the powerful language of the Amendment is read out of the Constitution and is not binding upon the courts who will only see prior opinions and nonsensical levels of scrutiny as the suggestive text of the right. Note that the prior court texts are at best merely suggestive, as nothing is ever fixed in this environment of legal deconstructionism that is judicial review and stare decisis.

Gray Peterson
03-14-2012, 6:25 AM
Yes, insist that judges do their jobs. Once upon a time, lawyers were taught that the first canon of statutory interpretation was to review the statute at question against the Constitution, giving a plain reading to both. Further judicial analysis was only permitted if a plain reading of the Constitution failed to answer the question.

"Plain reading" was the original method of constitutional analysis, yet every court today blows right by that requirement and straightway engages in poppycock judge-made law where our Constitution is not the immutable first legal principle and supreme governmental charter: legal analysis juxtaposed against a backdrop of the Constitution is the real Constitution.

Every court should be reminded that its first obligation is to give the Constitution a plain reading when it hints that it might be departing from that principal obligation.

Did SCOTUS in Heller use a "plain reading" or "textual" analysis?

In Woollard, nowhere does Legg engage in an "infringement" analysis, though a plain reading requirement would compel him to do so. He jumps in with both feet into that judicial poppycock of their made-up levels of scrutiny being the supreme law of the land. He utters this line "After a lengthy examination of the historical record, the Heller majority held that the Constitution guarantees the individual right to possess and carry weapons in case of confrontation, but left the contours of that right largely undefined," and he's off to the races. So long, plain reading. The "contours" are obviously the infringements proscribed by the Amendment, but that potent word has been summarily denied limiting effect.

Your hope of gradual nibbling expanding the right should be completely inverted. With no Supreme Court imperative to conduct a plain reading of the right, it is the right that will be gradually restricted, as we've seen with the Fourth Amendment. When cops and citizens square off, state power inexorably advances, and the citizen must learn to live in an ever-narrowing prison cell.

In absence of a plain reading requirement, the powerful language of the Amendment is read out of the Constitution and is not binding upon the courts who will only see prior opinions and nonsensical levels of scrutiny as the suggestive text of the right. Note that the prior court texts are at best merely suggestive, as nothing is ever fixed in this environment of legal deconstructionism that is judicial review and stare decisis.


There's no "imperative" outside of the analysis in Heller in re possession of firearms in the home. Judge Legg is bound by the 4th Circuit's determination of scrutiny, and if he were to go off of that determination and attempt to do textual analysis/plain reading, his decision would have been overturned by the 4th Circuit and the people of Maryland would be, in a manner, screwed until SCOTUS can straighten it out.

Only SCOTUS can do what you're asking these lower court judges to do. If you think the 4th Circuit can do it, you can file an amicus brief within 7 days after the appellee's file their brief asking them to do this, and if it makes it to SCOTUS on the merits, you can do the same thing.

More on this:

McDonald v. City of Chicago and the standard of review for gun control laws by Eugene Volokh (http://volokh.com/2010/06/28/mcdonald-v-city-of-chicago-and-the-standard-of-review-for-gun-control-laws/)

OleCuss
03-14-2012, 6:55 AM
Gray:

It's more fun to throw bombs.

It is very easy to say it all sucks and it is going to suck for a very long time. It takes a different mindset to look at what has been happening and realize that the enemies of freedom have messed up immensely and have given us the tools to eventually regain much of our freedom.

I'm actually amazed when I realize that 5-15 years from now we may have a more robust RKBA than was envisioned by those who wrote the 2A.

There are some of us who can only see disaster looming. Me? I realize that our RKBA in California is advancing despite (and sometimes because of) the enemies of liberty who hold power in this state.

There are still huge problems here, but the fix is in thanks to you and so many others who are fighting for our freedom.

goldrush
03-14-2012, 7:43 AM
You can scream, but nobody will listen. There is a method to the madness and it includes working the system, not working against the system.

What are you possibly talking about?

"The system" nominally owes us a plain reading of the Constitution. Demanding plain reading in pleading and in argument, in addition to every other avenue of relief, is yet working within the system. Compel the court to give a straight answer to why we are not given a plain reading.

The Second Amendment is stronger than the Fourth, which gives the courts self-granted permission to wander hither and yon under a "reasonableness" query. The Second is blunt and does not permit the court a way to insert itself into the Amendment. When they try such chicanery, it's fair to ask from whence such permission logically came, and far better it is to remind them ab initio that no such permission exists, so they'd better tread lightly.

One is at a disadvantage to appeal a lack of a plain reading analysis unless one first asked for a plain reading. In any event, it's ineffective lawyering not to seek the greatest remedy alongside inferior remedies.

No court can ever supersede the Second Amendment, and every court knows that they have a foundational obligation to give every Amendment its plain reading. Never give a court permission to squirm out from under their inescapable duty.

I dare a court to publish thusly: "We decline to give the Second Amendment a literal reading and application, as we find public safety considerations outweigh the right of the people to each and every freedom they would conceive the Second Amendment may confer."

OleCuss
03-14-2012, 7:48 AM
.
.
.
I dare a court to publish thusly: "We decline to give the Second Amendment a literal reading and application, as we find public safety considerations outweigh the right of the people to each and every freedom they would conceive the Second Amendment may confer."

Why would a court do that?

fiddletown
03-14-2012, 8:19 AM
...It is very easy to say it all sucks and it is going to suck for a very long time. It takes a different mindset to look at what has been happening and realize that the enemies of freedom have messed up immensely and have given us the tools to eventually regain much of our freedom...Yes. It's one thing to wander the Internet blathering about what's wrong. It's another thing to be out in the world, dealing with the realities of the world and attempting to achieve what can be achieved.

IVC
03-14-2012, 8:24 AM
"The system" nominally owes us a plain reading of the Constitution. Demanding plain reading in pleading and in argument, in addition to every other avenue of relief, is yet working within the system. Compel the court to give a straight answer to why we are not given a plain reading.

Your argument is very similar to the "what part of shall not be infringed don't you understand" argument. Theory - yes. Reality - no.

The court doesn't "owe us" anything because we have no way of enforcing it. Let's say the court really "owed us", but they didn't deliver. Now what? We go back to the court to ask again? It's their word against yours, except their word is binding.

Another way of looking at it is that the court is really doing the "plain reading", except that the sides don't agree what it means. No different than what "infringed" means, or whether it is a collective or individual right. The judge rules and the only remedy is to move up. That's how the system works.

Unrelated: There is also a plain reading of "voluntary taxes" and "commerce clause for inactivity", yet you can't just say "I don't think so" and do it your way. It would land you in jail. Feel free to try, though. The label you get is "protester."

Maestro Pistolero
03-14-2012, 10:00 AM
Why would a court do that?

They wouldn't, they can't, and they wouldn't dare, and I think that is Goldrush's point.

Whatever the many virtues of our strategy, I agree that demanding a plain reading is conspicuously absent from our briefs. Thank you, Goldrush, for forcefully and passionately raising this point.

fiddletown
03-14-2012, 10:23 AM
...demanding a plain reading is conspicuously absent from our briefs....A brief is written to be effective.

goldrush
03-14-2012, 10:23 AM
Your argument is very similar to the "what part of shall not be infringed don't you understand" argument. Theory - yes. Reality - no.


That's actually quite wide of the mark. In courts across this country, plain reading analyses are applied to countless statutes, every day. Argue a constitutional scrutiny level on your next traffic ticket, and see how much depth the judge sees in the law.

Why is this law different?

The problem with so many of these lawsuits is, as I've said, the outcome of the lawsuit ruins things for people who live in "better" states. While these cases bring relief to some people, intermediate scrutiny kills cases that could provide true freedom for people who live in other states.

I have a much greater interest in removing all carry restrictions in free states than I do in seeing Marylanders or Californians get a little more freedom in carrying.

OleCuss
03-14-2012, 10:24 AM
They wouldn't, they can't, and they wouldn't dare, and I think that is Goldrush's point.

Whatever the many virtues of our strategy, I agree that demanding a plain reading is conspicuously absent from our briefs. Thank you, Goldrush, for forcefully and passionately raising this point.

Maybe someone should seriously ask whether a court should behave that way?

There are many things which I wish for. Not so sure it would be a good thing if I got them.

As an illustration? I sometimes muse about what the military would have to do in order to get me to join once again. The fun part is that if they actually met my demands I wouldn't join because meeting my demands would mean that they were too dysfunctional to be worth joining. . .

Let's face a fact. If today a local district court ruled precisely as I wished on the RKBA they would be reversed at the circuit level and the SCOTUS probably would not grant cert. If SCOTUS granted cert my position would likely lose in their venue as well.

That's probably true for what many of us want - not just me.

At this point in time what I want (and likely what you want) are loser propositions because the proper judicial foundation/case law/whatever just isn't there. It will eventually be there, but enough of what we need hasn't yet been built.

It's sort of like trying to finish the interior of the house before you've framed it. You have to develop the case law very carefully and (much to my chagrin) that takes significant time periods to do.

Gray Peterson
03-14-2012, 10:26 AM
I note that Goldy is refusing to answer my basic questions about textual & categorical analysis.

From Gene:

1. Under intermediate scrutiny, faithfully applied, we win carry - just like Woolard in Maryland.

2. The three tiers are actually wrong for almost all 2A cases. Historical categorical will be the method used to adjudicate 2A cases long term. For a preview of that as applied to the usual disputes, read the dissent in Heller II. Almost everything we gun owners care about goes the way of the dodo under historical/categorical. The three tiers come in only after the historical/categorical puts it on the edge of the right and one needs to decide if that restriction then serves the right government interest.

Note that almost every intermediate scrutiny gun case violates clearly established SCOTUS precedent that predates even Heller.

-Gene

Gray Peterson
03-14-2012, 11:02 AM
The problem with so many of these lawsuits is, as I've said, the outcome of the lawsuit ruins things for people who live in "better" states. While these cases bring relief to some people, intermediate scrutiny kills cases that could provide true freedom for people who live in other states.

I have a much greater interest in removing all carry restrictions in free states than I do in seeing Marylanders or Californians get a little more freedom in carrying.

And yet you refuse to explain why you have an interest, so you continue to plead with people here, without stating what your interest is. Otherwise it sounds like whining..

In Woollard, Alan Gura argued for strict scrutiny & textual analysis. It's preserved for the purpose of en banc review and SCOTUS.

goldrush
03-14-2012, 11:38 AM
And yet you refuse to explain

Note to Board: I tried to block Gray but was barred from doing so, as he's an admin/moderator of this board. Evidently, such persons cannot be blocked. I learned that others are also admins/moderators, though their usernames bear no distinction.

The best I can do is to ignore his posts.

http://www.uploadup.com/di-OJ58.jpg

taperxz
03-14-2012, 11:44 AM
Note to Board: I tried to block Gray but was barred from doing so, as he's an admin/moderator of this board. Evidently, such persons cannot be blocked. I learned that others are also admins/moderators, though their usernames bear no distinction.

The best I can do is to ignore his posts.

NO!! He is not!!

Mesa Tactical
03-14-2012, 11:45 AM
Note to Board: I tried to block Gray but was barred from doing so, as he's an admin/moderator of this board. Evidently, such persons cannot be blocked. I learned that others are also admins/moderators, though their usernames bear no distinction.

The best I can do is to ignore his posts.

The best you can do is answer his questions.

taperxz
03-14-2012, 11:47 AM
Note to Board: I tried to block Gray but was barred from doing so, as he's an admin/moderator of this board. Evidently, such persons cannot be blocked. I learned that others are also admins/moderators, though their usernames bear no distinction.

The best I can do is to ignore his posts.

By doing this^^^ shows that you are talking out your XXXX and have no comprehension of your own statements.

Untamed1972
03-14-2012, 11:49 AM
That's actually quite wide of the mark. In courts across this country, plain reading analyses are applied to countless statutes, every day. Argue a constitutional scrutiny level on your next traffic ticket, and see how much depth the judge sees in the law.

Why is this law different?

The problem with so many of these lawsuits is, as I've said, the outcome of the lawsuit ruins things for people who live in "better" states. While these cases bring relief to some people, intermediate scrutiny kills cases that could provide true freedom for people who live in other states.

I have a much greater interest in removing all carry restrictions in free states than I do in seeing Marylanders or Californians get a little more freedom in carrying.

With many "free states" already being shall issue, or even Con-Carry (with more on the way, and many of those states having strong RKBA in their state constitutions.....it would seem they are already fairly well protected wouldn't you say? CA does have that protection on the state constitution level so we must take it up the chain. Not to mention those strong protections and recognized rights in other states, along with lack of decernable safety issues arising from carry in those states just reinforces the claims being made in these suits to spread those rights to everyone.

goldrush
03-14-2012, 12:05 PM
With many "free states" already being shall issue, or even Con-Carry (with more on the way, and many of those states having strong RKBA in their state constitutions.....it would seem they are already fairly well protected wouldn't you say?

Hardly.

These must be changed:

1. You can't tax a right, so gun permits are as offensive as book permits.

2. As you can't require someone read only Chaucer, neither can you require that someone carry only as you prefer, be it concealed, openly, partially concealed, or any of the crazy schemes states concoct.

Intermediate scrutiny permits these things, and far more.

taperxz
03-14-2012, 12:08 PM
Hardly.

These must be changed:

1. You can't tax a right, so gun permits are as offensive as book permits.

2. As you can't require someone read only Chaucer, neither can you require that someone carry only as you prefer, be it concealed, openly, partially concealed, or any of the crazy schemes states concoct.

Intermediate scrutiny permits these things, and far more.

Are you saying a permit is also illegal to assemble in a public place?

Gray Peterson
03-14-2012, 12:12 PM
The best you can do is answer his questions.

He won't, because he has a secretive agenda of being in opposition to the litigation strategy of Alan Gura & allies. He's worried as a lawyer in a "free state". He attended GRPC 2011, which means he's probably from a great lakes state. My guess is, considering he's complaining about challenging gun laws in a free state, either IN or MN (both have licenses required for carry in both manners).

He just wants to be able to shake Gura's & Gene's hands at a conference without them knowing he's secretly blasting them and their methods on this forum.

Uxi
03-14-2012, 12:25 PM
Agree with the general sentiment of the OP. All scrutiny for enumerated rights should be strict scrutiny. We all know what the left considers "reasonable regulation" and it includes the Clinton AWB, waiting periods, arbitrary bans on scary looking components, and the stuff we deal with here EVERY day.

The prospect of moving (or perhaps just a vacation!) to a Free State has a certain appeal now, but I can see how intermediate scrutiny could potentially ruin that to only slightly less onerous. That said, I think blowback would be pretty fierce on it in the Red States and could be just the catalyst we need. Hopefully for reform instead of another Lexington & Concord.

taperxz
03-14-2012, 12:33 PM
WOW, I stand corrected! I had no idea that some here were Mods and yet unidentified.

Gray Peterson
03-14-2012, 12:35 PM
WOW, I stand corrected! I had no idea that some here were Mods and yet unidentified.

I'm a mod in the LTC discussion subforum.

taperxz
03-14-2012, 12:38 PM
I'm a mod in the LTC discussion subforum.


:facepalm: Yes you are! forgot about the Sunshine Initiative you are helping with.

GrizzlyGuy
03-14-2012, 12:42 PM
WOW, I stand corrected! I had no idea that some here were Mods and yet unidentified.

I'm an unidentified mod as well (limited to only one subforum) and I had no idea that I couldn't be placed on ignore lists. Cool, I guess everyone has to listen to me prattle on about this, that or some other thing! :43:

Hey OP, I don't understand why you believe that you'd get a better outcome related to scrutiny in a free state. At some point SCOTUS is going to step in and lay down consistent rules for all the courts, so why does it matter where the cases start from?

Untamed1972
03-14-2012, 12:45 PM
Hardly.

These must be changed:

1. You can't tax a right, so gun permits are as offensive as book permits.

2. As you can't require someone read only Chaucer, neither can you require that someone carry only as you prefer, be it concealed, openly, partially concealed, or any of the crazy schemes states concoct.

Intermediate scrutiny permits these things, and far more.

But as noted several states are already "No-Permit required" for carry option of your choice. And just as shall issue swept the nation, so likely will "No-Permit required" also follow suit. Once it is established that you have a right to carry in public......the gov't ability to or need to tax/regulate it starts to diminish.

taperxz
03-14-2012, 12:45 PM
I'm an unidentified mod as well (limited to only one subforum) and I had no idea that I couldn't be placed on ignore lists. Cool, I guess everyone has to listen to me prattle on about this, that or some other thing! :43:

Hey OP, I don't understand why you believe that you'd get a better outcome related to scrutiny in a free state. At some point SCOTUS is going to step in and lay down consistent rules for all the courts, so why does it matter where the cases start from?

I'll just close my eyes like i do when Kes shows up:p

goldrush
03-14-2012, 12:55 PM
All scrutiny for enumerated rights should be strict scrutiny. We all know what the left considers "reasonable regulation" and it includes the Clinton AWB, waiting periods, arbitrary bans on scary looking components, and the stuff we deal with here EVERY day.

Exactly. Note that plain reading is much higher protection than even strict scrutiny. If a plain reading answers the question, no further analysis is permitted. Analysis is only allowed if a statute facially does not answer or address the question or fact before the court.

The prospect of moving (or perhaps just a vacation!) to a Free State has a certain appeal now, but I can see how intermediate scrutiny could potentially ruin that to only slightly less onerous. That said, I think blowback would be pretty fierce on it in the Red States and could be just the catalyst we need. Hopefully for reform instead of another Lexington & Concord.

There are red states and then there are red states. South Dakota is going to be a lot freer than South Carolina, for example. Even red states go through cycles where the outgoing Republican governor has annoyed everyone by raising a tax or getting into a scandal, so a Dem governor and a Dem general assembly gets elected, and things run blue, for a while.

Red states can even get popular Dem governors who feel like they have to support their party. The last thing we need is a state attorney general in a "free state" issuing an opinion for someone in the government telling them how far they can go, if they really want to. He or she is going to pull up Westlaw, and see that they can do anything they want that survives "intermediate scrutiny." We need to keep that skirmish line deep into enemy territory.

Even with Republicans, though, if some nutjob shoots up a school, politicians being what they are think that they have to "do something."

Nobody really wants another Lexington and Concord, but someone has to tell a judge "is this case really worth putting a few cracks in the Union?" So gun owners can carry in Manhattan, judge, so what? Gun owners can already carry in Philadelphia, Atlanta, Dallas, Houston, Phoenix, Miami, Cleveland, and a bunch of other big cities.

Gray Peterson
03-14-2012, 1:01 PM
Nobody really wants another Lexington and Concord, but someone has to tell a judge "is this case really worth putting a few cracks in the Union?" So gun owners can carry in Manhattan, judge, so what? Gun owners can already carry in Philadelphia, Atlanta, Dallas, Houston, Phoenix, Miami, Cleveland, and a bunch of other big cities.

Already pointed out specifically in Palmer for certain, & I believe Kachalsky as well.

IVC
03-14-2012, 1:02 PM
That's actually quite wide of the mark. In courts across this country, plain reading analyses are applied to countless statutes, every day. Argue a constitutional scrutiny level on your next traffic ticket, and see how much depth the judge sees in the law.

Why is this law different?

Because the court said so. Again, I don't think it *should* be different, just noticing that it *is* different. First we have to accept the facts on the ground.

Here is a speculation (repeat: speculation). The main reason these laws are different is because they are deeply entrenched through consistent and lengthy legislative efforts. Another speculation is that these laws are highly contentious. Compare to the racial equality: good luck going to court and attacking courts' methods on segregation in late 1800-s or first half of the 20th century.

How much are you willing to bet that the "plain reading" of 2A for many people implies "militia rights"? They are wrong, but that's the "plain reading" by the majority. Again, just a fact.

Untamed1972
03-14-2012, 1:04 PM
Nobody really wants another Lexington and Concord, but someone has to tell a judge "is this case really worth putting a few cracks in the Union?" So gun owners can carry in Manhattan, judge, so what? Gun owners can already carry in Philadelphia, Atlanta, Dallas, Houston, Phoenix, Miami, Cleveland, and a bunch of other big cities.


So what if some blacks in the south can't drink from the water fountain or sit at the lunch counter......there are plenty of blacks in the north that can.

Although philosophically I certainly agree with much of what you're saying. By your reasoning that what CA does could harm other states, then since those other states already had carry of some form then what you're saying is CA or DC should have don nothing so as not to harm what already existed in others states. But then wouldn't that have left other states to at some point adopt handgun bans if they chose since there would have been no Heller or McD?

I have yet to read a Gura filing that does not make the case or indicate that Strict Scutiny is the correct level of review. So I'm not sure why you think they are throwing everyone under the bus. If the court decides on intermediate despite what the filing asked for, that is not the filer's fault is it?

And in actual "boots on the ground" reality how do you/we/us/anyone FORCE the court to adopt a certain methodology? If a case makes it all the way to SCOTUS and the Supremes decide on intermediate......then what?

From there the only other option would be to seek some sort of legislative redress putting into place a law which requires strict scrutiny, if such a thing is even possible.

goldrush
03-14-2012, 1:09 PM
Hey OP, I don't understand why you believe that you'd get a better outcome related to scrutiny in a free state. At some point SCOTUS is going to step in and lay down consistent rules for all the courts, so why does it matter where the cases start from?

I like cases based on state constitutions and state laws that make reference to the U.S. Constitution as a vague guiding light. This light needs to be so blindingly bright that nobody can see much detail in it. State cases are taking on water when the city government gets to say "even our Federal Circuit has said that this type of action is only subject to intermediate scrutiny, and further, blah, blah, blah case was similar to this and survived constitutional analysis in the Blahblah Circuit." The judge, wanting to side with the local government, looks for any peg to hang his or her ruling on, and feels they have cover with the Feds only having intermediate scrutiny.

The city also feels emboldened that you won't walk the case over to Federal Court if the best you have is an arguable position. It's hard and expensive to win those arguments in Federal Court, and the motion to dismiss is freely granted.

In the presence of intermediate scrutiny, here's your Second Amendment:

"A well regulated militia being essential to the security of a free state, the right of the people to keep and bear arms shall not be infringed unless the government‘s interest in infringing is significant, substantial, or important."

So what if some blacks in the south can't drink from the water fountain or sit at the lunch counter......there are plenty of blacks in the north that can.

Basically, Breyer's argument in Heller. Just go to Maryland if you want to own a gun.

Not sure if I made my point clearly. A NY judge is going to need some cover in making a ruling favorable to gun owners carrying in Manhattan. If he or she sees that other major cities do just fine with guns, it gets easier to close the deal.


Although philosophically I certainly agree with much of what you're saying. By your reasoning that what CA does could harm other states, then since those other states already had carry of some form then what you're saying is CA or DC should have don nothing so as not to harm what already existed in others states. But then wouldn't that have left other states to at some point adopt handgun bans if they chose since there would have been no Heller or McD?


Heller and McDonald were pretty good. Gura's subsequent litigation in the 7th against Chicago is also good, as it's pursuant to McDonald and won't apply much beyond Chicago. There was some bad dicta in those cases, but those cases needed to be fought. Now, however, as I said in the Woollard thread, the cases are going to start containing lots of bad language amidst smaller and smaller wins.


I have yet to read a Gura filing that does not make the case or indicate that Strict Scutiny is the correct level of review.

He's wrong. Plain reading is the correct level of review.


So I'm not sure why you think they are throwing everyone under the bus. If the court decides on intermediate despite what the filing asked for, that is not the filer's fault is it?

Why not? Gura openly, loudly and frequently blames other counsel for filing cases that produce bad law. Nichols is here disparaged for filing cases that could produce unfavorable precedent.


From there the only other option would be to seek some sort of legislative redress putting into place a law which requires strict scrutiny, if such a thing is even possible.

Let's get off strict scrutiny as any concept worthy of respect. It's new, made from whole cloth, unknown to the Founders, without fixed bounds and unsupported by logic.


How much are you willing to bet that the "plain reading" of 2A for many people implies "militia rights"? They are wrong, but that's the "plain reading" by the majority. Again, just a fact.

Review the canons of statutory interpretation. "Plain reading" does not mean that a simpleton is the reader. Plain reading imposes an obligation to read correctly, and judges are presumed to have sufficient grammar skills to understand the ablative absolute. Even patent laws and international trade laws are due a plain reading.

Untamed1972
03-14-2012, 1:29 PM
Not sure if I made my point clearly. A NY judge is going to need some cover in making a ruling favorable to gun owners carrying in Manhattan. If he or she sees that other major cities do just fine with guns, it gets easier to close the deal.

Isn't that basically what all of the current 2A cases are doing in pointing to all the shall-issue and con-carry states?

I still dont get how you think filing the challenge from a free state is going to guarantee getting strict scrutiny?

Uxi
03-14-2012, 1:31 PM
At some point SCOTUS is going to step in and lay down consistent rules for all the courts, so why does it matter where the cases start from?

It could matter a great deal if that point is after 2012 and there's a change in administration (or not) along with a vacancy on the court.

goldrush
03-14-2012, 1:36 PM
I still dont get how you think filing the challenge from a free state is going to guarantee getting strict scrutiny?

Wow. I'm trying to untangle this. How did you arrive at that question and your belief in what my positions are?

Untamed1972
03-14-2012, 1:37 PM
He's wrong. Plain reading is the correct level of review.

Well if strict has been asked for thus far and not given......why would asking for something higher than strict have netted a different result?

Heller and McDonald were pretty good. Gura's subsequent litigation in the 7th against Chicago is also good, as it's pursuant to McDonald and won't apply much beyond Chicago. There was some bad dicta in those cases, but those cases needed to be fought. Now, however, as I said in the Woollard thread, the cases are going to start containing lots of bad language amidst smaller and smaller wins.

So the whole incorporation thing has no application beyond Chicago?

So then by your line of thinking....the only way to avoid bad language/precedent is to just not ever challenge anything?

Again I ask.....how does anyone FORCE the court to adpot a certain level of review? And how would filing a challenge from a free state guarantee the outcome you're asking for?

Untamed1972
03-14-2012, 1:40 PM
Wow. I'm trying to untangle this. How did you arrive at that question and your belief in what my positions are?

you are saying the current cases "from the west coast" are hurting free states are you not?

So we the challenges shouldn't be coming from the west coast....where should the come from?

Or is your position that we on the west coast should simply do nothing so as not to ruffle your free state feathers and just deal with the oppression we are suffering?

My point is that prior to Heller and McD.....even free states had no protection except that provided from some state constitutions. For states that had no such protection, Heller/McD gave them some. For states with stronger state RKBA protection or stronger state court rulings based on their state constitution, Heller/McD will not detract from that, because the stronger state Con/court rulings will still set the bar.

And I see where Gray's frustration with you comes in. You love to dissect and criticize what everyone else says without ever putting anything of substance of your own on the table.

So the simple question (requiring only plain reading) is: How does anyone FORCE the court to adopt the "plain reading" method you are advocating for?

Constantly repeating that is what the court should be doing without offering any plan, method, or strategy to actually attain that is just pointless blathering. So answer the question!

goldrush
03-14-2012, 1:58 PM
So the whole incorporation thing has no application beyond Chicago?


Please read more closely and quote more honestly, seeking principally truth and not to score a point.

The pronoun 'it' refers to what in this sentence?

"Gura's subsequent litigation in the 7th against Chicago is also good, as it's pursuant to McDonald and won't apply much beyond Chicago."

Obviously, "Subsequent litigation in the 7th." Subsequent to what? McDonald, of course. Suing Chicago over that city's harassing the opening of gun ranges, the "subsequent litigation" noted above, won't have much application beyond Chicago, as this litigation is too fact specific, unlikely to be 1:1 relevant elsewhere.

This is arduous.



And I see where Gray's frustration with you comes in. You love to dissect and criticize what everyone else says without ever putting anything of substance of your own on the table.


So I don't put anything of substance of my own on the table (nebulous statement, that), but I simultaneously advocate for a stronger method of analysis for our rights than what is tossed around here?

I want to talk about gun laws, and you want to talk about me. That's a common affliction around here.


Or is your position that we on the west coast should simply do nothing so as not to ruffle your free state feathers and just deal with the oppression we are suffering?

That's a moral question. Are you willing to make yourselves a little better off while laying down a body of law that will hurt this right for most of the states?

As I said previously, if what you're doing results in intermediate scrutiny, you've lost, and you've hurt this right.

M. D. Van Norman
03-14-2012, 2:05 PM
Once it is established that you have a right to carry in public … the gov’t ability to or need to tax/regulate it starts to diminish.

Yes, but even that development will probably require years or even decades of uneventful licensed carry in the populous states.

IVC
03-14-2012, 2:13 PM
Review the canons of statutory interpretation. "Plain reading" does not mean that a simpleton is the reader. Plain reading imposes an obligation to read correctly, and judges are presumed to have sufficient grammar skills to understand the ablative absolute. Even patent laws and international trade laws are due a plain reading.

You are giving me a runaround on the issue. Again, I am not disagreeing with how "plain reading" is defined. The question is "who decides?"

If the judge is the one to make the decision and he/she has decided, than it's a done deal because he/she said so. Your recourse is to move up the system chain. Assuming you've been in a court of law before, it's the same as when the judge says "overruled" - end of discussion, he/she made the decision. Keep pushing your angle and you will be in contempt. Keep pushing further and you can spend a night in the local accommodations.

The judge decides. The judge has decided. Other judges have decided. This defines the framework. Within that framework one can get things done, or go for contempt, two counts, three counts...

goldrush
03-14-2012, 2:18 PM
You are giving me a runaround on the issue.

Nah, you're just arguing against gun rights for some reason I don't have the interest to analyze.

Find me where any court has ever said that the Second Amendment is not due a plain reading, and you've won the point.

M. D. Van Norman
03-14-2012, 2:20 PM
There is a question on the table. How do we force judges to employ “plain reading” of the Constitution?

Gray Peterson
03-14-2012, 2:22 PM
Please read more closely and quote more honestly, seeking principally truth and not to score a point.

The pronoun 'it' refers to what in this sentence?

"Gura's subsequent litigation in the 7th against Chicago is also good, as it's pursuant to McDonald and won't apply much beyond Chicago."

Obviously, "Subsequent litigation in the 7th." Subsequent to what? McDonald, of course. Suing Chicago over that city's harassing the opening of gun ranges, the "subsequent litigation" noted above, won't have much application beyond Chicago, as this litigation is too fact specific, unlikely to be 1:1 relevant elsewhere.

This is arduous.

Except for the fact that Chicago had stated in the Ezell oral argument that it would be "10 years before surrounding cites could claim it is unsafe for such a densely populated area". Please tell that to all residents of Cook County.



So I don't put anything of substance of my own on the table (nebulous statement, that), but I simultaneously advocate for a stronger method of analysis for our rights than what is tossed around here?

I want to talk about gun laws, and you want to talk about me. That's a common affliction around here.

That's a moral question. Are you willing to make yourselves a little better off while laying down a body of law that will hurt this right for most of the states?

As I said previously, if what you're doing results in intermediate scrutiny, you've lost, and you've hurt this right.

Except both strict scrutiny & textual analysis was the primary force behind all of the civil carry cases in the anti gun states. Alan Gura argued this specifically in the Woollard MSJ, that both historical/textual/categorical analysis & strict scrutiny were used.

OleCuss
03-14-2012, 2:26 PM
.
.
.
I want to talk about gun laws, and you want to talk about me. That's a common affliction around here.
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.
.

That does happen a bit too much and is unfortunate. We should try to keep it to a minimum but I don't think we can fully prevent it. We are human and are therefore prone to frequent error.

taperxz
03-14-2012, 2:31 PM
Nah, you're just arguing against gun rights for some reason I don't have the interest to analyze.

Find me where any court has ever said that the Second Amendment is not due a plain reading, and you've won the point.

Show me where a right has no rules, regulations or parameters so as to not infringe on others.

Gray Peterson
03-14-2012, 2:38 PM
That does happen a bit too much and is unfortunate. We should try to keep it to a minimum but I don't think we can fully prevent it. We are human and are therefore prone to frequent error.

Appealling to your own authority as "true & correct" and saying that the leading authority is doing something wrong (provable as wrong by reading said leading authorities MSJ memorandum on the issue), tends to generate legitimate questions of identity.....

Uxi
03-14-2012, 2:44 PM
Appealling to your own authority as "true & correct" and saying that the leading authority is doing something wrong (provable as wrong by reading said leading authorities MSJ memorandum on the issue), tends to generate legitimate questions of identity.....

He could have good reasons for desiring anonymity, particularly if he's an associate at even a modest firm with any peripheral concerns to this end that he doesn't want a partner seeing. I definitely disagree with his opinions WRT Gura, but I don't think you do your side credit by calling him out as "Goldy" either.

vincewarde
03-14-2012, 2:49 PM
Getting back to the main point, intermediate scrutiny is much better then what the antigunners want: Complete invalidation of the 2nd Amendment.

Uxi
03-14-2012, 2:52 PM
Show me where a right has no rules, regulations or parameters so as to not infringe on others.

Did infringe mean the same thing in 1791 that it does in 2012?

Less rhetorically, we could take a snap shot on what the RTKBA meant in 1791, 1861, 1865, 1921, and 1933 and see relatively the same thing as long as you were white, anyway. Only with NFA '34 did the Federal Leviathan start squirming around the issue, much less begin to stomp it outright for ordinary white citizens... but the precedent came with the Black Codes.

The larger issue he's talking about is the horrid selective incorporation business, which is based on the horrible Slaughter House. What did John Bingham really mean when he wrote the privileges and immunities clause of the 14th Amendment? What changes were made in the process of ratification? That's all he's saying there.

taperxz
03-14-2012, 3:04 PM
Did infringe mean the same thing in 1791 that it does in 2012?

Less rhetorically, we could take a snap shot on what the RTKBA meant in 1791, 1861, 1865, 1921, and 1933 and see relatively the same thing as long as you were white, anyway. Only with NFA '34 did the Federal Leviathan start squirming around the issue, much less begin to stomp it outright for ordinary white citizens... but the precedent came with the Black Codes.

The larger issue he's talking about is the horrid selective incorporation business, which is based on the horrible Slaughter House. What did John Bingham really mean when he wrote the privileges and immunities clause of the 14th Amendment? What changes were made in the process of ratification? That's all he's saying there.

By your standard, we should all own nuclear arms then? The 2A says you have the right to bear arms. Not firearms. Regardless, firearms were the common weapon when drawn and therefore part of the 2A. You can certainly not infringe and still have parameters/regulation.

Whats at stake is the manner and degree of regulation by the federal government and incorporated into the states and their constitutions.

Uxi
03-14-2012, 3:06 PM
By your standard, we should all own nuclear arms then? The 2A says you have the right to bear arms. Not firearms. Regardless, firearms were the common weapon when drawn and therefore part of the 2A. You can certainly not infringe and still have parameters/regulation.

Right. Arms meaning everything from swords and daggers to the cannons the Redcoats were looking to seize at Lexington and Concord to those on the privately owned ships that the Constitution authorizes the Congress to issues Letters of Marque to. Bear means to carry. Shouldn't matter if it's concealed, or open. They certainly had concealable pistols in the Framers day... Great anlogy I'm fond of. A handgun is like a diary. A rifle is like a blog. A battleship or tank is like a printing press. The latter all require loads of manpower and money to operate and support but the government shouldn't have a say in the ownership of any of them. Use your blog to slander someone and you'll face the consequences just like if you rob someone on the highway or commit piracy on the high seas....

I think an Amendment would probably be required to outright ban NBC. I would support it, too. ;)

OleCuss
03-14-2012, 3:06 PM
Appealling to your own authority as "true & correct" and saying that the leading authority is doing something wrong (provable as wrong by reading said leading authorities MSJ memorandum on the issue), tends to generate legitimate questions of identity.....

Your point is well taken, but you are missing just a little bit. I may drop you a PM on it.

goldrush
03-14-2012, 3:15 PM
Great anlogy I'm fond of. A handgun is like a diary. A rifle is like a blog. A battleship or tank is like a printing press.

I'll be stealing this, thank you.

bulgron
03-14-2012, 3:16 PM
The larger issue he's talking about is the horrid selective incorporation business, which is based on the horrible Slaughter House. What did John Bingham really mean when he wrote the privileges and immunities clause of the 14th Amendment? What changes were made in the process of ratification? That's all he's saying there.

We attempted to get that addressed in McDonald, and SCOTUS declined to get into it.

After reading through this thread, I am left bewildered. Goldrush is saying that we are somehow harming the 2A in states other than CA/NY/etc and so we should stop litigating. But this is a false fear. The right to arms in those other states is strong regardless of the situation on the federal level. The populations and state-level constitutions in those states have made it so.

We can't possibly weaken the right to arms in, say, Arizona even if we somehow end up with an intermediate scrutiny standard at the federal level because it is the Arizona state constitution, and the people of Arizona, that make the right to arms strong there. I suppose we could be afraid that at some point the federal government will move to limit, for example, concealed carry for all the states. But if we do nothing, then the federal government will be able to do anything it wants, while if we do something then at least all the states will enjoy whatever protection we can dig out of the courts for that activity.

So I really don't understand Goldrush's concerns. Is he saying that intermediate scrutiny is worse than strict scrutiny? I'll agree with that. But when he says, "and so you should stop litigating," then I guess the question I have is, does he really think that intermediate scrutiny is worse than the rational basis that the federal courts have used up until now?

All of that said, I have faith that eventually SCOTUS will weigh in on this, and all these concerns about standards of scrutiny will be put aside, and in our favor too.

Untamed1972
03-14-2012, 3:19 PM
You always know when someone is avoiding the question when they try to deflect attention by being an arrogant grammar Nazi.

So I don't put anything of substance of my own on the table (nebulous statement, that), but I simultaneously advocate for a stronger method of analysis for our rights than what is tossed around here?

I want to talk about gun laws, and you want to talk about me. That's a common affliction around here.

You are adovcating for something, but not stating how you would go about achieving that. So yes.....you are not putting anything on the table. Just repeating that something "should be so" with no plan to get there, while also attacking those who are doing something is not putting anything on the table.

So answer the question......how do you FORCE the court to adopt what you say is the proper mode of analysis?

If you have no answer, or plan to bring such about then your entire arguement is moot.

That's a moral question. Are you willing to make yourselves a little better off while laying down a body of law that will hurt this right for most of the states?

As I said previously, if what you're doing results in intermediate scrutiny, you've lost, and you've hurt this right.

As I've stated I dont see how it does hurt anyone. Because anyone who already had stronger state protection still has that, for those who had no protection.....they now have some.

goldrush
03-14-2012, 3:21 PM
There is a question on the table. How do we force judges to employ “plain reading” of the Constitution?

You can't force them to do it, but you can force them to acknowledge it, to disavow it and to refuse to perform it.

Demand it in the Complaint, and in oral argument, outright ask the judge: "We believe the Second Amendment is first due a plain reading. Do you agree? We also believe that if a plain reading answers the question in toto, the inquiry stops. Do you also agree?" Get really creative, and draft a motion for this very purpose a bit earlier in the case. Be cheerful about it all, but still always be trying to get your answer.

It's a stare-down, to be certain, but nothing is more important.

Untamed1972
03-14-2012, 3:29 PM
You can't force them to do it, but you can force them to acknowledge it, to disavow it and to refuse to perform it.

Demand it in the Complaint, and in oral argument, outright ask the judge: "We believe the Second Amendment is first due a plain reading. Do you agree? We also believe that if a plain reading answers the question in toto, the inquiry stops. Do you also agree?" Get really creative, and draft a motion for this very purpose a bit earlier in the case. Be cheerful about it all, but still always be trying to get your answer.

It's a stare-down, to be certain, but nothing is more important.

And if the judges answer is "NO".....then what?

Just like alotta thing over the years, these types of things have to follow a strategy. The right time, the right place, the right plaintiff, etc. Trying to gain to much ground all at once, or break new ground can be tough. So go for stacking up smaller strategic wins and build a solid foundation and THEN try to break the new ground. Much of the 2A stuff is following the existing 1A framework......build a foundation on that and then find the right, narrowly focused case to argue for the "plain reading" issue, where that is perhaps the only question, or only major question before the court in that case. And even then SCOTUS may simply decline to hear the case. And you walk away with nothing.

But the fact is....prior to Heller/McD even free states has ZERO federal protection of 2A.....now they do. Can't see how that's a bad thing.

Uxi
03-14-2012, 3:37 PM
I'll be stealing this, thank you.

I adapted it from the original from someone on THR, so have at it. :D


So I really don't understand Goldrush's concerns. Is he saying that intermediate scrutiny is worse than strict scrutiny? I'll agree with that. But when he says, "and so you should stop litigating," then I guess the question I have is, does he really think that intermediate scrutiny is worse than the rational basis that the federal courts have used up until now?


Isn't the same argument some made against open carry? Or about discouraging the Front Sight ballot Initiative? Or cherry picking the right case like Heller instead of picking some gang banger or hillbilly to use as a RTKBA vehicle?

I agree it's unlikely Arizona is going to tighten up NOW, but what he's saying is that it lowers the Constitutional bar and that we're only a massacre or two away from even a normally Red State from going where they are now to something more like what we have here in Ca or potentially even worse, like what they have in DC or Chicago or NYC. Realistically it would take a pretty big stretch but if you had a couple in a row anywhere, the politicians would be kneejerking all over each other to be the first to do something, regardless of whether it makes sense or not. That the principle of the incorporation mechanism is based on a horribly racist precedent no more worthy of stare decisis than Dred Scott is another matter.

taperxz
03-14-2012, 3:48 PM
Like i mentioned in another thread. goldrush is the kind of analyst that will walk up to someone who won the lottery and tell them just how bad that money will ruin there lives without offering on ways to take care of it and theirs.

Goldrush has not ONCE come up with a solution on how to get his ideas invoked into the mainstream populace or has shown any ability whatsoever to come out and say he would like to help.

What do they say? "all show and no go"?

M. D. Van Norman
03-14-2012, 4:04 PM
The stare-down already occurred in McDonald, and the Supreme Court declined our argument but still handed us a lower-order victory.

bulgron
03-14-2012, 4:12 PM
I agree it's unlikely Arizona is going to tighten up NOW, but what he's saying is that it lowers the Constitutional bar and that we're only a massacre or two away from even a normally Red State from going where they are now to something more like what we have here in Ca or potentially even worse, like what they have in DC or Chicago or NYC. Realistically it would take a pretty big stretch but if you had a couple in a row anywhere, the politicians would be kneejerking all over each other to be the first to do something, regardless of whether it makes sense or not. That the principle of the incorporation mechanism is based on a horribly racist precedent no more worthy of stare decisis than Dred Scott is another matter.

How is what we're doing lowering the constitutional bar? Before Gura & co. came along, there WAS no constitutional bar. At least, none that the federal courts were willing to enforce.

Imagine for a moment that Gura had never pursued Heller, and that the courts were still operating on the idea that the 2A protected no individual right to arms. Now imagine your hypothetical massacres. Would you be happier with what would likely result in that scenario, than what would happen if all we can manage is intermediate scrutiny after all this litigation?

Gura and his pals have already managed to raise the floor on the federal level way higher than it ever was over the last 70 years. But that's just for 'keep'. Now he's going for 'carry.'

So I really don't understand the fear that Goldrush apparently has when he looks at our litigation strategy. After all, if we do as he suggest, and stop litigating, then what we end up with is zero protection on the federal level, at least where carry is concerned. How can 'nothing' therefore be better?

If you want to argue that intermediate scrutiny is wrong and improper in the face of "shall not be infringed," fine. I'll even agree with you. But if you want to say, "and therefore we should stop litigating so that we don't end up with intermediate scrutiny," then I have to respectfully disagree. Doing nothing is a disaster for the country. Even intermediate scrutiny is better than that disaster.

M. D. Van Norman
03-14-2012, 4:22 PM
Yes, as I’ve said before, we have to push for victory here and now or else lose it all.

Gray Peterson
03-14-2012, 4:29 PM
What's even worse here for Goldy is the fact that Gura is already pushing strict scrutiny & textual analysis. It's not his fault the lower courts won't bite...

hoffmang
03-14-2012, 8:52 PM
I do love someone who favors suing under a state constitutional right to bear arms. In his state he doesn't have the guts to file that case under state law because he knows that he'd lose - especially since his permit structure was one of the first modern ones.

Of course there is no right to keep and bear arms in the California state constitution AT ALL. In the rest of the nasty 7 states, the right has been eviscerated in state court. There's your "plain reading."

The Supreme Court has made clear what the analysis mode will be and that is historical/categorical with the three tiers only employed at the edges of that core analysis. Felons are out that way while instant background checks are in.

Side note - their is a dearth of Supreme Court citations for this fanciful "plain reading" concept in the 20th or 21st century....

-Gene

nicki
03-15-2012, 12:54 AM
Alan Gura is approachable and I asked him several tough questions on things like the NFA.

He wants to get as much as we can with this Supreme court makeup and his strategy is to make sure he gets at least 5 justices.

For anyone who wants a good overview of the battle for "Heller", the book "Gunfight" by Adam Winkler is an easy read and is accurate to what went on.

Many of us here on this board were following the "Heller case" from the beginning, I was one of them, so when I read "Gunfight", it was easy for me to verify what Professor Winkler wrote because what he wrote I saw first hand.

Alan Gura is extremely methodical, he is the grand chess master of lawyers, he plays to win and he accepts that in chess you will lose pieces in order to checkmate your opponent.

We all want "strict scrutiny" on everything, but we won't get it because no one got "strict scrutiny" on any other right I know of either.

Intermediate Scrutiny is not good, but it is not necessarily a disaster because the government still has the burden of proof.

The real disaster is "rational basis" because basically that means the right ain't worth the paper it is written on.

Nicki

wildhawker
03-15-2012, 12:59 AM
What do they say? "all show and no go"?

In the southern tradition, the patriarchs of my family oft quip "all hat and no cattle."

-Brandon

goldrush
03-15-2012, 3:57 AM
The Supreme Court has made clear what the analysis mode will be

You missed the point.

and that is historical/categorical with the three tiers only employed at the edges of that core analysis.

Again, nothing fixed, no real protection for our rights, only another means by which the court can gut an animal and claim to read the entrails.

Felons are out that way while instant background checks are in.

Noxious permits are also sanctified, and it's shameful that we willingly accept the bar of felons. No, thank you. Like I said, courts reverse-engineer their rulings. This is shameful, shallow anti-logic.

Side note - their is a dearth of Supreme Court citations for this fanciful "plain reading" concept in the 20th or 21st century....

Further proving my point. Additionally, you claim that the most elementary analysis is "fanciful?" Far and away the most common way laws are read, every day, you consider "fanciful"? Or is it rather that you've committed so deeply to litigation that failed to make this basic demand that you can't admit a glaring error? Or is your intransigence perhaps the result of your own inventiveness seeking creative readings in the face of unfavorable plain readings? In firing off your passel of lawsuits, please recall Hippocrates: "First, do no harm."

By the way, I learned you too are a moderator. So is Brandon.


Intermediate Scrutiny is not good...

There's the fact that few are willing to admit.


If you want to argue that intermediate scrutiny is wrong and improper in the face of "shall not be infringed," fine. I'll even agree with you.

The very point of the thread.

But if you want to say, "and therefore we should stop litigating so that we don't end up with intermediate scrutiny," then I have to respectfully disagree. Doing nothing is a disaster for the country. Even intermediate scrutiny is better than that disaster.

Here's what I see after Heller, the pro-gun states are still pro-gun, and that anti-gun states are still anti-gun. The great Wisconsin success had nothing to do with Heller; it was the result of changing governors. I'll say again, what post-Heller litigation is doing is making life slightly, and only slightly, better for the very anti-gun states, including D.C. I cannot recall an instance where litigation has made an anti-gun state pro-gun. Maryland may yet be that case, but we have to see how the appeal goes and how the Maryland legislature barely changes the law to be within the letter of the ruling. If Maryland becomes that success, along the way, the effort will have laid down a most unfavorable body of law that will have damaging consequences, for centuries. My comments elsewhere in this thread explain that position in abundant detail.

Perhaps worst of all, we know that the courts, including the Supreme Court, will do everything they can to keep guns off the streets of Manhattan. This is the end to which all this litigation is speeding headlong, and it is the outcome that every court sees as the consequence of their rulings. Chances are very high that we'll lose that fight, and in doing so, we'll really have caused some horrific caselaw to be committed to the reporters.

As I've said repeatedly, the best solutions are legislative solutions. The states that switched to allow carry over the past two decades did so out of fear of voters, not judges.

Maestro Pistolero
03-15-2012, 7:58 AM
I see no harm in demanding courts recognize that the scrutiny (if any) to be applied is written bluntly into the amendment. No other amendment in the bill is so written.

If 'shall not be infringed' doesn't mandate strict scrutiny, what other possible language would accomplish it?

If and when the MD AG appeals, this issue should be raised. I agree, make the court explain why intermediate scrutiny equals shall not be infringed.

goldrush
03-15-2012, 8:17 AM
I see no harm in demanding courts recognize that the scrutiny (if any) to be applied is written bluntly into the amendment. No other amendment in the bill is so written.

If 'shall not be infringed' doesn't mandate strict scrutiny, what other possible language would accomplish it?

If and when the MD AG appeals, this issue should be raised. I agree, make the court explain why intermediate scrutiny equals shall not be infringed.

Strict scrutiny sucks.

Wiki is as good a source as any for this.

"Legal scholars, including judges and professors, often say that strict scrutiny is "strict in theory, fatal in fact," because popular perception is that most laws subjected to this standard are struck down. However, an empirical study of strict scrutiny decisions in the federal courts found that laws survive strict scrutiny more than 30% of the time. In one area of law, religious liberty, laws that burden religious liberty survived strict scrutiny review in nearly 60% of cases."

http://en.wikipedia.org/wiki/Strict_scrutiny

Heaven forbid they say they're applying strict scrutiny and find a gun ban survives it. Then we're much worse off than we are with intermediate scrutiny.

These levels are just made-up judge nonsense. There is nothing fixed or rigid to them, and they emanate from the judges' own hands, not from any constitutional fount. I want my rights grounded in something deeper and more deliberative than a footnote drafted by a law clerk. In case you didn't know, this "levels of scrutiny" hogwash arose from Footnote 4 in Carolene Products. It's nothing but judges exceeding their bounds and playing God.

Gray Peterson
03-15-2012, 8:30 AM
Strict scrutiny sucks.

Wiki is as good a source as any for this.

"Legal scholars, including judges and professors, often say that strict scrutiny is "strict in theory, fatal in fact," because popular perception is that most laws subjected to this standard are struck down. However, an empirical study of strict scrutiny decisions in the federal courts found that laws survive strict scrutiny more than 30% of the time. In one area of law, religious liberty, laws that burden religious liberty survived strict scrutiny review in nearly 60% of cases."

http://en.wikipedia.org/wiki/Strict_scrutiny

Heaven forbid they say they're applying strict scrutiny and find a gun ban survives it. Then we're much worse off than we are with intermediate scrutiny.

These levels are just made-up judge nonsense. There is nothing fixed or rigid to them, and they emanate from the judges' own hands, not from any constitutional fount. I want my rights grounded in something deeper and more deliberative than a footnote drafted by a law clerk. In case you didn't know, this "levels of scrutiny" hogwash arose from Footnote 4 in Carolene Products. It's nothing but judges exceeding their bounds and playing God.

Which is why Gura is arguing textual/categorical analysis as well.

I guess you'll keep moving the goal posts when you don't get the reaction you want, Goldy?

Untamed1972
03-15-2012, 8:35 AM
The very point of the thread.

Except that you are essentially arguing for something doesn't exist, and hasn't existed in the history of the nation. Gura et al, created something that previously did not exist. The die have been cast......deal with it and stop attacking those who had the balls to be a force for change.

The only thing worse than a sore loser.....is a sore winner.


Here's what I see after Heller, the pro-gun states are still pro-gun, and that anti-gun states are still anti-gun. The great Wisconsin success had nothing to do with Heller; it was the result of changing governors. I'll say again, what post-Heller litigation is doing is making life slightly, and only slightly, better for the very anti-gun states, including D.C.

So if pro-gun states aren't going to get any worse, and anti-gun states will get or are getting slightly better then isn't that better than nothing at all? The "have-nots" now have something better than what they had, and the "Haves" still have what they always had....and some (states that have gone "no permit required" have gotten more."

So please point to some actual imperical evidence of the disaster you are claiming all of this is.

Also dont overlook that now having some constitutional bars set, places a hammer in the hands of the campaigners to bring down anti's in the .leg, because it can now be claimed that they are actively working against constitutionally protected, SCOTUS reviewed civil rights. You know.....that "fear the voters" thing you talked about.

Maestro Pistolero
03-15-2012, 8:42 AM
The vitriol and personalizing every argument in this thread is unbecoming of the discussion. Just saying.

goldrush
03-15-2012, 8:48 AM
So if pro-gun states aren't going to get any worse,

That's a deliberate misreading. As was abundantly explained above, in several posts, subjecting the Second to intermediate scrutiny might very well make life worse in the free states.

M. D. Van Norman
03-15-2012, 8:53 AM
I’ll say again, what post-Heller litigation is doing is making life slightly, and only slightly, better for the very anti-gun states.… I cannot recall an instance where litigation has made an anti-gun state pro-gun.… If Maryland becomes that success, along the way, the effort will have laid down a most unfavorable body of law that will have damaging consequences, for centuries.…

Unfavorable as opposed to what? Hoisting the black flag and killing the bastards?

Gray Peterson
03-15-2012, 9:04 AM
The vitriol and personalizing every argument in this thread is unbecoming of the discussion. Just saying.

I don't like people who:

1) Denigrate good work

2) would sentence 100 million people to purgatory of lack of carry ability, all to save his own skin, without realizing the Chicago mentality will swallow his state whole in 50 years.

3) Has the unmitigated gall to have us ignore the strategic civil rights litigation path that has been used by three different civil rights movements to success.

4) thinks that shaking Gene & Alan's hands at GRPC gives him carte blanche to knife them in the back secretly in the forum, causing discord in support of an extremist position not being pushed at this time.

At it's core, this is contrived stupidity over the Heller oral argument and sour grapes. "No compromise" extremists like Goldy have no understanding of the two decades of work that went into Brown v. Board of Education. They don't understand that equal was attacked first before separate was challenged. Brown was "no permit for OC/CC", and the busing cases was annihilation of "sensitive areas".

curtisfong
03-15-2012, 9:17 AM
the best solutions are legislative solutions.

If you could trust the legislature, you wouldn't need the Bill of Rights.

Untamed1972
03-15-2012, 9:23 AM
That's a deliberate misreading. As was abundantly explained above, in several posts, subjecting the Second to intermediate scrutiny might very well make life worse in the free states.


It's not a deliberate misreading......the problem is you are contradicting yourself. I did plain reading of, and quoted your own words and you're trying to say it doesn't say what it plainly says.

If the pro-gun states (scared of voters as you said) got to where they were pre-heller with ZERO recognized individual right......why would they start back-pedaling now?

Regardless of scrutiny level....pro-gun states with a strong pro-gunvoting block will continue to be so, just as they were pre-heller.

I think you are arguing for minutia. Just because something is miniscually possible does not mean it is plausible or likely in reality.

curtisfong
03-15-2012, 9:34 AM
If the pro-gun states (scared of voters as you said) got to where they were pre-heller with ZERO recognized individual right......why would they start back-pedaling now?

Because he's afraid of the legislature, except when he's not afraid of the legislature.

goldrush
03-15-2012, 9:40 AM
If you could trust the legislature, you wouldn't need the Bill of Rights.

???

The Bill of Rights was passed by the legislature.

Untamed1972
03-15-2012, 9:42 AM
Because he's afraid of the legislature, except when he's not afraid of the legislature.

Exactly.....essentially he has allowed his fears to create an "analysis to paralysis" situation and boxed himself into a corner where the possible reprecusions, even though miniscual, of any action then warrant taking no action at all.

"Fortune favors the bold." The reason we all know who Gura is, is because he was bold and made a move AND WON!!! And why do we not know who Goldrush is? See my 1st paragraph above.

This country was founded by bold men of action......My life, my fortune and my sacred honor! They put it all on the line.....AND WON!!!!

If they followed the OPs mentality we'd all still be British subjects.

goldrush
03-15-2012, 9:54 AM
If the pro-gun states (scared of voters as you said) got to where they were pre-heller with ZERO recognized individual right......why would they start back-pedaling now?

This was explained above. I know you read the posts. You even responded to others' comments on this very point.

Further, where do you get this false first premise "Zero recognized right"? In the free states, the Second Amendment says it, so it's recognized. What could possibly be higher than the Bill of Rights? In the free states, McDonald was the more important of the two cases, as Heller told us only what we knew for over 200 years. McDonald merely shut up the doubters who were able to feign doubt only because the Supreme Court came up with a silly "incorporation" doctrine that tried to muddy what we already knew.

I think you are arguing for minutia. Just because something is miniscually possible does not mean it is plausible or likely in reality.

I have never seen a gun board that had a better grasp on the methods of constitutional jurisprudence and a worse grasp on how politics are played. Usually, it's the exact opposite. Gun owners are usually the type to think the law is the law is the law.

Here's reality: in every pro-gun state, there are anti-gun bills offered, every year. Often, some very nasty ones. Usually, these never get out of committee, but if the Speaker needs a budget passed and has to go looking for votes, who knows? All it takes is a moment of weakness and a legislative aide to say that the law will pass constitutional muster. But we discussed this yesterday.

curtisfong
03-15-2012, 10:05 AM
???

The Bill of Rights was passed by the legislature.

*A* legislature. Not *the* legislature. You're going to have a tough time finding *a* legislature that can gather enough support to eliminate any of them, let alone all of them.

I'll say it again, instead of explaining it, since I don't think it requires any further explanation.

If you could trust the legislature, you wouldn't need the Bill of Rights (and their incorporation against the states).

curtisfong
03-15-2012, 10:07 AM
All it takes is a moment of weakness and a legislative aide to say that the law will pass constitutional muster. But we discussed this yesterday.

And the protection against a legislature that thinks it has (or really DOES have) the popular mandate to challenge the bill of rights is .... what?

Oh, right, the legislature? Uh. Ok. /me backs away slowly.

goldrush
03-15-2012, 10:09 AM
Exactly.....essentially he has allowed his fears to create an "analysis to paralysis" situation and boxed himself into a corner where the possible reprecusions, even though miniscual, of any action then warrant taking no action at all.

Utterly untrue, as described yesterday.

"Fortune favors the bold." The reason we all know who Gura is, is because he was bold and made a move AND WON!!! And why do we not know who Goldrush is? See my 1st paragraph above.

This country was founded by bold men of action......My life, my fortune and my sacred honor! They put it all on the line.....AND WON!!!!

Were this a gunfight, not a courtfight, I'd greatly up our odds. Your analogy fails.

If they followed the OPs mentality we'd all still be British subjects.

So you suggest that the Colonists ought have taken their grievances to the House of Lords? That's the analogy to which you're necessarily bound.

About Gura, he made a "bold" move in New York and has been slapped down perhaps the hardest I've ever seen an attorney be abused by a judge. That case is on a path to becoming binding precedent that will be gleefully and hourly cited in the Ninth.

He "won" Woollard, and we're burdened with Intermediate Scrutiny which permits all manner of demons.

I don't agree with all of the oral argument Gura made in Heller, and I don't agree with the court being too prolix in its holding, but I congratulate Gura and Levy on their success in that case. Deep congratulations also for McDonald. We needed to know if we had a Second Amendment in this country that covered all persons, so these cases were necessary.

If Gura appeals Kachalsky, gets strict scrutiny, and loses, we're all in trouble.

There comes a time when you have to be smart enough to stop. Gura may very well give all his chips back to the dealer before this is all over.

curtisfong
03-15-2012, 10:13 AM
There comes a time when you have to be smart enough to stop.

Stop, and wait for, what, exactly?

The gun owning minority to magically become a majority and reign in the legislature? Must be nice of you to talk from a position where you are the majority in your locality. Be interesting to see what happens when that isn't true any longer.

goldrush
03-15-2012, 10:14 AM
And the protection against a legislature that thinks it has (or really DOES have) the popular mandate to challenge the bill of rights is .... what?


This discussion is about a state harassing some aspect of gun rights, not denying its citizens the right to own guns, which the state would be unable to do under even intermediate scrutiny. Straw man with yourself.

Bye, Curtis.

curtisfong
03-15-2012, 10:18 AM
So you suggest that the Colonists ought have taken their grievances to the House of Lords? That's the analogy to which you're necessarily bound.


So your solution is to stop litigation and move directly to armed revolt?

About Gura, he made a "bold" move in New York and has been slapped down perhaps the hardest I've ever seen an attorney be abused by a judge. That case is on a path to becoming binding precedent that will be gleefully and hourly cited in the Ninth.


Or create a circuit split. Make up your mind, do you want Gura to ask for less (oh nos! intermediate scrutiny!), or more (omg! he gots a smack down!)? Are you really demanding that everybody BUT you be inflexible when it comes to stance? Or that everybody BUT you be wishy washy when it comes to stance?


Bye, Curtis


I am not going anywhere.

Gray Peterson
03-15-2012, 10:41 AM
By the way, I learned you too are a moderator. So is Brandon.


Tried to block them, too?


Perhaps worst of all, we know that the courts, including the Supreme Court, will do everything they can to keep guns off the streets of Manhattan.

I call this "Goldy's Judicial Conspiracy Theory". A secret group of judges who receive carry cases, along with all court
of appeals judges & SCOTUS justices, go on a conference call or an email list, & discuss in detail, in violation of all judicial canons, to plot on behalf of some benefactor we can't see? Talk about tinfoil hat..


This is the end to which all this litigation is speeding headlong, and it is the outcome that every court sees as the consequence of their rulings. Chances are very high that we'll lose that fight, and in doing so, we'll really have caused some horrific caselaw to be committed to the reporters.

and Goldy will try to slither away when proven wrong, like with Judge Legg in Maryland & the 10th circuit. Like circuit judges in OK, NM, & CO care about Manhattan...

M. D. Van Norman
03-15-2012, 10:42 AM
There comes a time when you have to be smart enough to stop.

If we stop now, I would have to accept life as an outlaw or refugee. Elsewhere, frustration would lead to violence. That rebellion would most likely be quashed, and the prohibitionists would be thanked by a fearful public for repealing the Second Amendment.

I would rather lose at the Supreme Court than face the above scenario. Should the court rule that there is no right to bear arms outside the home, then we could formulate a proper legislative response (constitutional amendment). Failing that, the option for non-violent civil disobedience would still then be open to us.

Gray Peterson
03-15-2012, 10:46 AM
This discussion is about a state harassing some aspect of gun rights, not denying its citizens the right to own guns, which the state would be unable to do under even intermediate scrutiny. Straw man with yourself.

Bye, Curtis.

If you keep blocking people, you'll find yourself only seeing posts by me, Gene, & Brandon, & a few people who are not seeing through your obvious concern trolling....

goldrush
03-15-2012, 11:02 AM
If we stop now, I would have to accept life as an outlaw or refugee. Elsewhere, frustration would lead to violence. That rebellion would most likely be quashed, and the prohibitionists would be thanked by a fearful public for repealing the Second Amendment.

I would rather lose at the Supreme Court than face the above scenario. Should the court rule that there is no right to bear arms outside the home, then we could formulate a proper legislative response (constitutional amendment). Failing that, the option for non-violent civil disobedience would still then be open to us.

Good argument.

HowardW56
03-15-2012, 11:02 AM
If it weren't for goldrush being so arrogant, he might still be entertaining... I don't have an issue with someone playing the role of devil’s advocate, but it appears that goldrush enjoys some sort of glee in being the antagonist...

goldrush, you have evolved from being mildly entertaining, always arguing the minority position, or your singular position on issues, to being insulting and an irritant...

Now feel free to put me on your ignore list too, I’m sure that I will be in good company.

bulgron
03-15-2012, 11:06 AM
Here's what I see after Heller, the pro-gun states are still pro-gun, and that anti-gun states are still anti-gun. The great Wisconsin success had nothing to do with Heller; it was the result of changing governors. I'll say again, what post-Heller litigation is doing is making life slightly, and only slightly, better for the very anti-gun states, including D.C.

It has also made things better for the pro-gun states, and it did this in two ways:

1. It raised the bar for what state and federal governments can get away with if they ever do swing anti-gun. Prior to this litigation, they could do whatever they want. Now, they can't. It's as simple as that. In time, when Gura & co. are successful, their actions will be even more hog-tied. This is a good thing. (You keep missing the point that without this litigation, we had no actual court protection from legislative gun control action.)

2. By finding guns to be a right, the court changed public opinion on guns. We've continuing to see the public as a whole swing further and further away from the idea that gun control laws are a good idea. More, liberals can no longer tell me that I don't have a right to my guns and so I should just give them up. Even here in California, I've seen that part of their rhetoric completely shut down. At the end of the day, the court of public opinion is incredibly important where it comes to civil liberties. Post-Heller and McDonald, the anti's are not so easily able to convince that court that they are right.

So when you say that the Heller/McDonald cases "only slightly made things better," you are wrong. Just flat wrong. And things are only going to get better from here as we proceed with what is really a winning strategy.

I cannot recall an instance where litigation has made an anti-gun state pro-gun.

That's because this effort is in it's infancy. You have to give it time, perhaps even a generation, before you'll see anti-gun states turn pro-gun. But by declaring firearms to be a right, the courts are essentially normalizing firearm ownership. When we win carry, the courts will then have given people in urban/suburban areas (who do not traditionally hunt) a reason to be interested in guns. These two things will eventually turn all the anti-gun states into pro-gun states. But, like I said, it's going to take time.

The reason why I know this is going to happen is because I can see how we're tracking the successful civil liberties litigation strategy from the 60's and 70's, and I can see how opinions changed in the wake of those successes. But I can also see how long it took to change public opinion. Question is, can you?


If Maryland becomes that success, along the way, the effort will have laid down a most unfavorable body of law that will have damaging consequences, for centuries.

I disagree with your analysis. In fact, it looks like Fear, Uncertainty, and Doubt to me. Usually people who engage in FUD have some kind of an agenda that they're trying to protect. I don't know what your agenda is, nor do I care, but just know that your arguments are proving to be less-than-effective.

Perhaps worst of all, we know that the courts, including the Supreme Court, will do everything they can to keep guns off the streets of Manhattan.

We know this? How do we know this? I don't know this.

In fact, I don't think there's any way you can prove that point. See, here you've stepped straight over the line into conspiracy theory. Now we're into UN Black Helicopter and Area 51 territory. You might as well say, "Sasquatch is using mind control to make the courts be anti-gun." That kind of thing might fly in some circles, but for most people it just makes them roll their eyes.


As I've said repeatedly, the best solutions are legislative solutions. The states that switched to allow carry over the past two decades did so out of fear of voters, not judges.

And you are right about that. But if we don't have these court cases, then the court of public opinion will never change, and so we'll never have the legislative successes in the anti-gun states. As it is, the court of opinion is already changing. Give it time, and we will win this fight. But if anyone is thinking on timeframes of less than a generation, they are going to be sorely disappointed.

goldrush
03-15-2012, 11:11 AM
If you keep blocking people, you'll find yourself only seeing posts by me, Gene, & Brandon, & a few people who are not seeing through your obvious concern trolling....

But I thought you were ignoring me?


You keep speaking as an supposed authority, without telling us who you actually are. This is why you keep being summarily ignored.


19 posts by you in this thread. If you "ignore" me any more, people will think we're kin.

Gray Peterson
03-15-2012, 11:23 AM
But I thought you were ignoring me?



Twisting words...

Maestro Pistolero
03-15-2012, 11:25 AM
http://www.christopherjhoffman.com/images/Gold Rush.jpg

curtisfong
03-15-2012, 11:29 AM
For the record, I don't believe in the "ignore" feature. I have never used it, and no forum software I have written has that feature. It is the quickest way to groupthink, confirmation bias, and other, more severe, kinds of cognitive dissonance.

If liberal use of "ignore" is the type of discourse goldrush prefers, he is welcome to it. Me? No thank you.

Gray Peterson
03-15-2012, 11:29 AM
http://www.christopherjhoffman.com/images/Gold Rush.jpg

LOL :thumbup: hateful.

goldrush
03-15-2012, 11:31 AM
If it weren't for goldrush being so arrogant, he might still be entertaining... I don't have an issue with someone playing the role of devil’s advocate, but it appears that goldrush enjoys some sort of glee in being the antagonist...

goldrush, you have evolved from being mildly entertaining, always arguing the minority position, or your singular position on issues, to being insulting and an irritant...


Moderators, everywhere, but personal attacks are always tolerated here against a minority opinion. Worse, the personal attacks come from the moderators. I can't understand how a discussion of an issue could ever become personal.

Now feel free to put me on your ignore list too, I’m sure that I will be in good company.

I can't. You're a moderator.

M. D. Van Norman
03-15-2012, 11:36 AM
“Conservative” gun owners are as emotional as any bleeding-heart “liberal,” despite what some tell themselves. :D

vincewarde
03-15-2012, 11:47 AM
There is a question on the table. How do we force judges to employ “plain reading” of the Constitution?

The short answer is: VOTE REPUBLICAN

The long answer is: Even this is not a guarantee - but you are guaranteed to not get such justices under today's Democrats.

Gray Peterson
03-15-2012, 11:50 AM
Moderators, everywhere, but personal attacks are always tolerated here against a minority opinion. Worse, the personal attacks come from the moderators. I can't understand how a discussion of an issue could ever become personal.



Because you're using your anonymity to act like an *******. You get no respect because of it.

creekside
03-15-2012, 11:51 AM
While these cases bring relief to some people, intermediate scrutiny kills cases that could provide true freedom for people who live in other states.

I have a much greater interest in removing all carry restrictions in free states than I do in seeing Marylanders or Californians get a little more freedom in carrying.

I'm little people here, as my interest is strictly California. I take great offense to this remark if your obliviousness, or even callousness, costs me the right to save my life in exchange for a little more freedom in Texas or Wyoming.

We don't have CCW/LTC in most urban counties, despite extraordinary and greatly appreciated efforts from Calguns Foundation. We don't have open carry of handguns. We are in grave danger of losing open carry of long arms.

This is life and death for many law-abiding California gun owners. I believe it is also a crucial factor in the health of California communities.

I would cheerfully trade, oh, background purchase checks in Texas for shall-issue CCW in California.

Where can I contribute money to fight you?

goldrush
03-15-2012, 11:55 AM
That's because this effort is in it's infancy. You have to give it time, perhaps even a generation, before you'll see anti-gun states turn pro-gun. But by declaring firearms to be a right, the courts are essentially normalizing firearm ownership. When we win carry, the courts will then have given people in urban/suburban areas (who do not traditionally hunt) a reason to be interested in guns. These two things will eventually turn all the anti-gun states into pro-gun states. But, like I said, it's going to take time.

I hope you're right.

If you want your neighbor to be interested in guns, ask him to go shooting.

The reason why I know this is going to happen is because I can see how we're tracking the successful civil liberties litigation strategy from the 60's and 70's, and I can see how opinions changed in the wake of those successes. But I can also see how long it took to change public opinion. Question is, can you?

As I've said here, I'm not entirely sure we're seen in the same needful class as those who were beaten, denied service, treated as second-class citizens, attacked by cops and their dogs and lynched for sport.

I disagree with your analysis. In fact, it looks like Fear, Uncertainty, and Doubt to me. Usually people who engage in FUD have some kind of an agenda that they're trying to protect. I don't know what your agenda is, nor do I care, but just know that your arguments are proving to be less-than-effective.

To an audience that long ago made up its mind and can't help but engage in confirmation bias.

In fact, I don't think there's any way you can prove that point. See, here you've stepped straight over the line into conspiracy theory. Now we're into UN Black Helicopter and Area 51 territory. You might as well say, "Sasquatch is using mind control to make the courts be anti-gun." That kind of thing might fly in some circles, but for most people it just makes them roll their eyes.

How much time do you spend anywhere near the East Coast? Do you fully appreciate how important New York City is to America?

Read Kachalsky to understand what the court has in store for us if we open that can of worms.


And you are right about that. But if we don't have these court cases, then the court of public opinion will never change,

Dead wrong. You change public opinion politically.


and so we'll never have the legislative successes in the anti-gun states.

If you want legislative success, start talking to legislators. This is where the NRA really shines. SAF sues. NRA-ILA lobbies.


As it is, the court of opinion is already changing. Give it time, and we will win this fight. But if anyone is thinking on timeframes of less than a generation, they are going to be sorely disappointed.

Things are pretty good regarding guns where I am, and in many similar states. I'm not too interested in people messing up what we worked so hard to get.

I've always wondered, if you want good gun laws, why not move? I get the weather, but you'll probably be happier somewhere else.

Untamed1972
03-15-2012, 11:57 AM
Further, where do you get this false first premise "Zero recognized right"? In the free states, the Second Amendment says it, so it's recognized. What could possibly be higher than the Bill of Rights? In the free states, McDonald was the more important of the two cases, as Heller told us only what we knew for over 200 years. McDonald merely shut up the doubters who were able to feign doubt only because the Supreme Court came up with a silly "incorporation" doctrine that tried to muddy what we already knew.


and yet again you contradict yourself. The "zero recognized right" is refering to FEDERAL recognition of an individual right. Most of the free states had RKBA in there STATE constitutions, or the state chose to give the 2A more weight then courts had up to that time.

Again....the point being those free states did that all on their own prior to any FEDERAL recognition of an individual right. So just because NOW the Feds have recognized the individual right, at perhaps a lower level, then those states did on their own....why would the federal standard change the higher state standard even thought the state standard was set before their was any federal recognition? You are trying to apply a "cause and effect" in a manner in which the evidence does not support. If anything it was those higher state standards that swayed SCOTUS to rule as they did.

But it is quite apparent that your MO is to just avoid answering questions that you know will undermine your position.

Free states didn't get to where they are because of Heller......Heller or anything after it will not change them. How many states have gone "no permit carry" since Heller/McD? Did they do it BECAUSE of those cases? No....they did it because they wanted too. The tides and public opinion are changing......you arguing about how the tides might change in the event of an asteroid passing close to earth and altering the gravitational pull.

Untamed1972
03-15-2012, 12:03 PM
I don't agree with all of the oral argument Gura made in Heller, and I don't agree with the court being too prolix in its holding, but I congratulate Gura and Levy on their success in that case. Deep congratulations also for McDonald. We needed to know if we had a Second Amendment in this country that covered all persons, so these cases were necessary.

If Gura appeals Kachalsky, gets strict scrutiny, and loses, we're all in trouble.

There comes a time when you have to be smart enough to stop. Gura may very well give all his chips back to the dealer before this is all over.


Would you care to post the text of YOUR oral arguements in Heller? :rolleyes:

It's easy to monday morning quarterback when you dont have any skin in the game.

It's easy to pick someone else work apart and find fault.....it's quite another to have the balls to put your own work on the table and make a move.

command_liner
03-15-2012, 12:14 PM
Strict scrutiny sucks.

Wiki is as good a source as any for this.

"Legal scholars, including judges and professors, often say that strict scrutiny is "strict in theory, fatal in fact," because popular perception is that most laws subjected to this standard are struck down. However, an empirical study of strict scrutiny decisions in the federal courts found that laws survive strict scrutiny more than 30% of the time. In one area of law, religious liberty, laws that burden religious liberty survived strict scrutiny review in nearly 60% of cases."

http://en.wikipedia.org/wiki/Strict_scrutiny

Heaven forbid they say they're applying strict scrutiny and find a gun ban survives it. Then we're much worse off than we are with intermediate scrutiny.

These levels are just made-up judge nonsense. There is nothing fixed or rigid to them, and they emanate from the judges' own hands, not from any constitutional fount. I want my rights grounded in something deeper and more deliberative than a footnote drafted by a law clerk. In case you didn't know, this "levels of scrutiny" hogwash arose from Footnote 4 in Carolene Products. It's nothing but judges exceeding their bounds and playing God.

Strict scrutiny does suck, and it is a complete fabrication with no basis in
the Constitution. But the source is not really Carolene. The whole notion
really comes from the Slaugherhouse cases, which were an obvious ploy to
overturn the 14th judicially.

My take is that Gura is working to fix the whole mess. Yes, RKBA is the
most obvious attack vehicle, and Gura's work is good for us. But the
real goal is to scrap the whole body of non-Constitutional "law" which
dates back to the 1870s.

But I do not know for sure what his plan is. I did meet him, and speak
to him at length, before he became famous. And I have spoken to him
a few times since.

goldrush
03-15-2012, 12:16 PM
I'm little people here, as my interest is strictly California. I take great offense to this remark if your obliviousness, or even callousness, costs me the right to save my life in exchange for a little more freedom in Texas or Wyoming.

Wyoming has great gun laws. Texas, not so much.

Using Wyoming as an example, it has the most possible gun freedom. It would be hard for Wyoming to give itself any more gun freedom, as its greatest regulations are Federal.

Wyoming thus can't get more gun freedom, but it could be exposed to less if people go messing around with constitutional law.

We don't have CCW/LTC in most urban counties, despite extraordinary and greatly appreciated efforts from Calguns Foundation. We don't have open carry of handguns. We are in grave danger of losing open carry of long arms.

This is life and death for many law-abiding California gun owners. I believe it is also a crucial factor in the health of California communities.

I understand, and I sympathize, but why not move? Our weather sucks, but we'll let you shoot .50BMGs until you run out of cash. We buy fireworks like Skittles. Swearing is perfectly acceptable. Our menus don't have calories on them. There's only one trash can. All my AR mags are 30 rounders. If I see a gun on Armslist I want, I drive over to the dude's house and buy it.

I would cheerfully trade, oh, background purchase checks in Texas for shall-issue CCW in California.

I went dumb. I don't get that. Even in Texas, they still have the 4473.

Where can I contribute money to fight you?

You can't. Where I live, we think folks from your state are the problem, and we spell your state's name with a 'K.' Where I live, they haven't quite yet figured out what the result will be from the lawsuits filed by people who live in "bad" states, but when they get an idea, they won't be happy.

Around here, everyone asks Californians "why not just move to America."

Let Jerry, Pelosi, Boxer, Feinstein and the other crazies choke on their state.

Gray Peterson
03-15-2012, 12:18 PM
I


To an audience that long ago made up its mind and can't help but engage in confirmation bias.

So why do you try to do public convincing instead of sending an email.

How much time do you spend anywhere near the East Coast? Do you fully appreciate how important New York City is to America?



8 million people out of 310 million. Part of a dwindling population in a state losing Congressional seats. Viewed with disdain even by people from New Jersey & upstate. Home of the financial sector, which is not well regarded.

goldrush
03-15-2012, 12:18 PM
Strict scrutiny does suck, and it is a complete fabrication with no basis in
the Constitution. But the source is not really Carolene. The whole notion
really comes from the Slaugherhouse cases, which were an obvious ploy to
overturn the 14th judicially.

My take is that Gura is working to fix the whole mess. Yes, RKBA is the
most obvious attack vehicle, and Gura's work is good for us. But the
real goal is to scrap the whole body of non-Constitutional "law" which
dates back to the 1870s.

But I do not know for sure what his plan is. I did meet him, and speak
to him at length, before he became famous. And I have spoken to him
a few times since.

Thanks for clearing up the origins of the method.

I hope you're right about the outcome.

Untamed1972
03-15-2012, 12:20 PM
Things are pretty good regarding guns where I am, and in many similar states. I'm not too interested in people messing up what we worked so hard to get.

I've always wondered, if you want good gun laws, why not move? I get the weather, but you'll probably be happier somewhere else.

So it is immoral for those in restricted states to seek the freedom they are entitled to because in some gravitational altering fiction world you live it, it might change something for you.

Yet is completely moral for you to throw everyone under the bus to save your "I've got mine" position? :rolleyes:

These cases do not "lower the bar" for free states.....it "raises the floor" for them. Dont forget.....what a legislature gives......it can also take away. The protection against that is a court ruling......which prior to Heller......even free states didn't have, unless it was a state court ruling which remains unchanged by any of the current litigation.

goldrush
03-15-2012, 12:25 PM
8 million people out of 310 million. Part of a dwindling population in a state losing Congressional seats. Viewed with disdain even by people from New Jersey & upstate. Home of the financial sector, which is not well regarded.

You are gravely underestimating your opponent. One in six Americans lives within 200 miles of New York City. NYC metro is 17 million, easily the largest in America. Its status as the financial, cultural, media and diplomatic capital of America is unchallenged.

Have you been to Manhattan? If you think New York is viewed with "disdain," you'll be shocked at the art on the walls of any decent deli.


Yet is completely moral for you to throw everyone under the bus to save your "I've got mine" position?

Rather, we've got ours. Most states are like mine. Get yours the same way. Get your guys elected, and pass good laws.

These cases do not "lower the bar" for free states.....it "raises the floor" for them.

Depending on how they come out, you're exactly correct. if they come out the other way, you're dead wrong. These post HM cases could produce fantastic rulings that give us all boundless freedom. My handicapping says they won't, quite the opposite.

taperxz
03-15-2012, 12:27 PM
OK since im probably the only one goldrush has been able to ignore. I think its official that he is indeed a troll.

Goldrush, if you can read this you make fabiogotgoosed a relevant factor to arguing differing opinions on gun rights issues. I would love to see you and fabs go a couple rounds. You would get a huge smack down by someone who plays your game but seems to do it without contradicting himself.

Gray Peterson
03-15-2012, 12:31 PM
Wyoming has great gun laws. Texas, not so much.

Using Wyoming as an example, it has the most possible gun freedom. It would be hard for Wyoming to give itself any more gun freedom, as its greatest regulations are Federal.

Wyoming thus can't get more gun freedom, but it could be exposed to less if people go messing around with constitutional law.

You mean like the fact that they discriminate against non residents for permit less carry, making them " unfriendly aliens" rather than "welcome visitors" (Saenz v. Roe)?

Untamed1972
03-15-2012, 12:31 PM
Around here, everyone asks Californians "why not just move to America."

Let Jerry, Pelosi, Schroeder, Feinstein and the other crazies choke on their state.

Because that is about the most UN-AMERICAN attitude that there is. A true American fights for the civil rights of ALL....EVERYWHERE in the USA. It should be appauling to ALL freedom loving Americans to tolerate or turn a blind eye to civil rights violations ANYWHERE within our borders. PERIOD!

The attitude of "why not move" is just plain cowardly.

I guess all the Blacks in the south shoulda just moved north too huh?

Lemme ask you something....were the Free-Staters affected by the Clinton/Federal AWB? :eek: Oh Crap! :eek: You forgot about that one didn't you! Do you think the Feds could pull that off again today? Politically most wont touch it. But with building court precedent.....in time they wont even have the option of considering it even if they want too.

bulgron
03-15-2012, 12:32 PM
I hope you're right.

If you want your neighbor to be interested in guns, ask him to go shooting.

We do better than that. Via the NRA Members' Council of Santa Clara County, we throw a low-cost shoot for people who have never fired a gun. This happens three times a year. The next one is coming up, and rumor has it that some city council members from a certain large city near us will attend.

So it isn't all about the litigation around here. Just in case you were wondering.



As I've said here, I'm not entirely sure we're seen in the same needful class as those who were beaten, denied service, treated as second-class citizens, attacked by cops and their dogs and lynched for sport.

I am. All we have to do is point to the numbers on battered and abused women.



How much time do you spend anywhere near the East Coast? Do you fully appreciate how important New York City is to America?

I fail to see how the importance of New York City to east coast elites can really be used as proof that the Supreme Court will never issue an opinion that forces carry rights on NYC. You're making a leap in your logic that is unprovable. The only way we can find out for sure is by pursuing the litigation.

If you want legislative success, start talking to legislators. This is where the NRA really shines. SAF sues. NRA-ILA lobbies.

Talking to legislators has proven to be a near 100% losing strategy in California. Our only path forward is through the courts. For that reason alone, you're unlikely to get much sympathy around here.



Things are pretty good regarding guns where I am, and in many similar states. I'm not too interested in people messing up what we worked so hard to get.

I've always wondered, if you want good gun laws, why not move? I get the weather, but you'll probably be happier somewhere else.

If you knew me, you'd know that I've made multiple serious efforts to get out of California. However, my family is not supportive of that. So if I want my right to arms I can either (1) divorce my wife and abandon my children or (2) support organizations like CGF, SAF, NRA who are fighting to change the gun laws in California and other anti-gun locations around the country. So I pick 2.

I might have some sympathy when you say that we're going to somehow screw things up for you, wherever it is that you happen to live. Except that I don't for a minute think that's going to happen. The only thing we can possibly do is improve the protection that the federal courts are willing to give to gun rights. Remember: without our litigation strategy, you have no right to arms in the eyes of the federal courts. It's better for your state, in the long run, if we pursue this strategy and win in federal court than if we do nothing at all. Without our litigation, you have no protection. With our litigation, you have protection, and quite a lot of it too. It's as simple as that.

kcbrown
03-15-2012, 12:34 PM
That's a moral question. Are you willing to make yourselves a little better off while laying down a body of law that will hurt this right for most of the states?


In other words, "don't endanger the rights of blacks in the north with your 'civil rights' litigation -- keep your mouth shut and go to the back of the bus like a good little black person". Right?

kcbrown
03-15-2012, 12:37 PM
You can't force them to do it, but you can force them to acknowledge it, to disavow it and to refuse to perform it.


No, you can't.

The court can and will ignore anything and everything it wishes to, including your "demands".



Demand it in the Complaint, and in oral argument, outright ask the judge: "We believe the Second Amendment is first due a plain reading. Do you agree? We also believe that if a plain reading answers the question in toto, the inquiry stops. Do you also agree?" Get really creative, and draft a motion for this very purpose a bit earlier in the case. Be cheerful about it all, but still always be trying to get your answer.

It's a stare-down, to be certain, but nothing is more important.

And if the stare-down fails, then what? What is your remedy when the court grants the MTD and ignores your every demand utterly?

kcbrown
03-15-2012, 12:40 PM
???

The Bill of Rights was passed by the legislature.

The Bill of Rights was passed by a legislature made up of people who fought the American Revolution. It was composed of the kind of people who no longer exist in legislatures.

Today's legislatures are composed of people who will happily throw your every "right" under the bus if it gets them more money, power, fame, or anything else.

And yet, those are the people you would entrust your rights to.


There is no way at all that the people in today's legislatures would vote for inclusion of the Bill of Rights into the Constitution. They are far too enamored of their own power for that.

goldrush
03-15-2012, 12:47 PM
In other words, "don't endanger the rights of blacks in the north with your 'civil rights' litigation -- keep your mouth shut and go to the back of the bus like a good little black person". Right?

You guys keep trying to make that analogy, but it's nowhere close.

Have you ever really seen a real, live, racist interaction in the South? It ain't pretty.

When they write songs like this about gun owners, you'll have something:

http://www.youtube.com/watch?v=2vNzz2VMWac

The guy in the video is severely warped. Hilarious, but warped. That song was popular in the 60's. Inconvenient thought: What do you want to bet that the guy who wrote it was a gun owner?

kcbrown
03-15-2012, 12:48 PM
Goldrush, your stance is internally contradictory. On the one hand, you insist that those who go before the court should insist on a plain reading of the Constitution, and that this will somehow get us what we all want. On the other hand, you also state that the courts will do whatever they want.

Well, how can the former possibly be effective in the face of the latter? The courts will do what they want no matter what "demands" you may place in front of them.

So what is your remedy when the inevitable happens as described above?

Maestro Pistolero
03-15-2012, 12:49 PM
I have a much greater interest in removing all carry restrictions in free states than I do in seeing Marylanders or Californians get a little more freedom in carrying.Since you brought up your interest, what, exactly IS your interest?

And what on earth do you mean by "a little more freedom"? There is no freedom in Jersey, NYC, very damn little in CA and quite a number of other places. If your priorities are to throw those folks to the wolves so other wolves can gorge on the carcass of freedom, then your priorities are not mine. And I live in Nevada.

kcbrown
03-15-2012, 12:51 PM
You guys keep trying to make that analogy, but it's nowhere close.


It doesn't have to be terribly close in scope, only in kind.

You're asking those who do not have a recognized right to keep and bear arms to continue to suffer that condition just on the chance that their efforts to gain recognition of and ability to exercise their Constitutional rights might somehow diminish those in areas where the right is already recognized. You are asking the blacks of the south to shut up and just take it so that the blacks of the north are not exposed to the risk of having their rights diminished.

wildhawker
03-15-2012, 12:55 PM
Have you ever really seen a real, live, racist interaction in the South? It ain't pretty.

Yes. My family hails from Texas and my kin reside in a number of areas (urban, suburban, and rural) throughout the south, southeast, and southwest US.

No racist interaction is pretty. That said, the very worst of my experiences -by a longshot - were in places like San Francisco, California; Oakland, California; Los Angeles, California; Chicago, Illinois; Baltimore, Maryland; and various northwestern states.

So, back to your point. What was that, again?

-Brandon

goldrush
03-15-2012, 1:00 PM
On the one hand, you insist that those who go before the court should insist on a plain reading of the Constitution, and that this will somehow get us what we all want.

Whoa, bad straw man, there. Start over.



No racist interaction is pretty. That said, the very worst of my experiences -by a longshot - were in places like San Francisco, California; Oakland, California; Los Angeles, California; Chicago, Illinois; Baltimore, Maryland; and various northwestern states.


You were persecuted as a gun owner in places like San Francisco, California; Oakland, California; Los Angeles, California; Chicago, Illinois; Baltimore, Maryland; and various northwestern states? If not, your response is utterly irrelevant.

goldrush
03-15-2012, 1:03 PM
It doesn't have to be terribly close in scope, only in kind.

You're asking those who do not have a recognized right to keep and bear arms to continue to suffer that condition just on the chance that their efforts to gain recognition of and ability to exercise their Constitutional rights might somehow diminish those in areas where the right is already recognized. You are asking the blacks of the south to shut up and just take it so that the blacks of the north are not exposed to the risk of having their rights diminished.

Horrible logic. In California, all have the same rights to keeping and bearing. In the South, rights were unequally distributed.

wildhawker
03-15-2012, 1:06 PM
You were persecuted as a gun owner in places like San Francisco, California; Oakland, California; Los Angeles, California; Chicago, Illinois; Baltimore, Maryland; and various northwestern states? If not, your response is utterly irrelevant.

Gun owners in many of those areas are actively persecuted to this day. In any case, my point was to say that persecution in any form and for any reason anywhere is ugly; it's certainly not limited to race, and race persecution is not limited to the south.

-Brandon

taperxz
03-15-2012, 1:08 PM
Whoa, bad straw man, there. Start over.



You were persecuted as a gun owner in places like San Francisco, California; Oakland, California; Los Angeles, California; Chicago, Illinois; Baltimore, Maryland; and various northwestern states? If not, your response is utterly irrelevant.

word twister! I don't know why anyone gives you the time of day.

taperxz
03-15-2012, 1:09 PM
Horrible logic. In California, all have the same rights to keeping and bearing. In the South, rights were unequally distributed.

And so is your logic and train of thought.

Untamed1972
03-15-2012, 1:10 PM
You guys keep trying to make that analogy, but it's nowhere close.

Have you ever really seen a real, live, racist interaction in the South? It ain't pretty.

When they write songs like this about gun owners, you'll have something:

http://www.youtube.com/watch?v=2vNzz2VMWac

The guy in the video is severely warped. Hilarious, but warped. That song was popular in the 60's. Inconvenient thought: What do you want to bet that the guy who wrote it was a gun owner?

So innocent people being assaulted and mudered is pretty?

Law-abiding citizens being harrassed, arrested, and threatened with deadly weapons for engaging in lawful activity is pretty?

People losing their rights in the name of public and officer safety is pretty?

Fact of the matter is that the people in urbans areas, and the most likely to need effective means of self-defense are also the people who are completely denied. But they should just suck it up so you and your redneck buddies can drive to feed store while packin' heat and a few dollars for a permit is just out of the question.

kcbrown
03-15-2012, 1:11 PM
Whoa, bad straw man, there. Start over.


Is it now?

You said:


From here, we can push for ever greater freedom of exercise in this matter and ever more stringent "levels of scrutiny," until we reach the day when all rights--enumerated and unenumerated--are regarded as protected by a sort of maximum scrutiny.

I don't see any other way.

Do you?

Yes, insist that judges do their jobs. Once upon a time, lawyers were taught that the first canon of statutory interpretation was to review the statute at question against the Constitution, giving a plain reading to both. Further judicial analysis was only permitted if a plain reading of the Constitution failed to answer the question.

...

Every court should be reminded that its first obligation is to give the Constitution a plain reading when it hints that it might be departing from that principal obligation.



In other words, you suggested that we demand a plain reading of the Constitution as a way to achieve the goal of maximizing recognition of our 2nd Amendment rights.

No, what I said is not a straw man, it is a plain transcription of your very words in the very context you said them.


So my assertion about your stance being internally contradictory stands.

kcbrown
03-15-2012, 1:13 PM
Horrible logic. In California, all have the same rights to keeping and bearing. In the South, rights were unequally distributed.

Pray tell how "may issue" carry licensing as implemented in California has resulted in everyone having the "same rights" to keep and bear.

And that's just California. The South is composed of multiple states, and so too there are multiple states in which the right to keep and bear arms is greatly infringed upon. And between those states, all most certainly do not have the "same rights" to keep and bear.

goldrush
03-15-2012, 1:20 PM
Gun owners in many of those areas are actively persecuted to this day. In any case, my point was to say that persecution in any form and for any reason anywhere is ugly; it's certainly not limited to race, and race persecution is not limited to the south.

-Brandon

Well, you and KC will be onto something when you can find persecution of gun owners so shocking that people place it alongside the abuse the Freedom Riders suffered.

Ever heard of a Mississippi Wind Chime? We're really going to get a lot of bad press if we start claiming that we stand in the shoes of the Civil Rights Movement.

Adopt their tactics, sure, but it bespeaks a massive lack of historical awareness to claim that we have suffered similarly. People might laugh if they saw us coming up the street, arm in arm, singing We Shall Overcome.

Pray tell how "may issue" carry licensing as implemented in California has resulted in everyone having the "same rights" to keep and bear.

So only Whites are getting the licenses? Looks to me like the right to get rejected is applied equally across the races. If you get the cops to come out and beat you unconscious when you apply for a permit, I'll be able to use that
footage.

kcbrown
03-15-2012, 1:21 PM
Well, you and KC will be onto something when you can find persecution of gun owners so shocking that people place it alongside the abuse the Freedom Riders suffered.


Again, difference in scope but not in kind.

Nevertheless, the point remains: you are insisting that those who are unable to exercise their rights stand down from their efforts to remedy the situation simply because it might have an effect on those who currently have the maximum ability to exercise theirs. You are insisting that they continue to suffer infringements of their rights simply so that others who do not suffer in the same way are not subject to any changes whatsoever. That is an immensely selfish and petty position to take.

Whether it be civil rights or gun rights, it's ultimately the same: gun rights are civil rights.

taperxz
03-15-2012, 1:22 PM
Well, you and KC will be onto something when you can find persecution of gun owners so shocking that people place it alongside the abuse the Freedom Riders suffered.

Ever heard of a Mississippi Wind Chime? We're really going to get a lot of bad press if we start claiming that we stand in the shoes of the Civil Rights Movement.

Adopt their tactics, sure, but it bespeaks a massive lack of historical awareness to claim that we have suffered similarly. People might laugh if they saw us coming up the street, arm in arm, singing We Shall Overcome.

Hmmm from contradictions to drama. You would not be my first choice on the debate team. You speak, now show me facts.

taperxz
03-15-2012, 1:24 PM
Hopefully someone will quote me so he can see what i post. LOL I still call it like i see it:p

goldrush
03-15-2012, 1:26 PM
In other words, you suggested that we demand a plain reading of the Constitution as [perhaps the best or the most forceful] a way to of achieve [achieving] the goal of maximizing recognition of our 2nd [Second] Amendment rights.


Note changes.

wildhawker
03-15-2012, 1:27 PM
Goldrush: "What is working cannot possibly work!"

:rolleyes:

-Brandon

goldrush
03-15-2012, 1:29 PM
Nevertheless, the point remains: you are insisting that those who are unable to exercise their rights stand down from their efforts to remedy the situation simply because it might have an effect on those who currently have the maximum ability to exercise theirs. You are insisting that they continue to suffer infringements of their rights simply so that others who do not suffer in the same way are not subject to any changes whatsoever. That is an immensely selfish and petty position to take.

If you bring me a win using a plain reading approach, sue away, because you guys are rockin'. I'll even take wins with strict scrutiny and harsh language from the court to the state. If you bring me lots of bad losses and one weak win, with intermediate scrutiny as the benchmark, then, yes, stand down.

Whether it be civil rights or gun rights, it's ultimately the same: gun rights are civil rights.

Agreed, but not every quest for greater civil rights stands in the same shoes as the Civil Rights Movement.

M. D. Van Norman
03-15-2012, 1:32 PM
True. This one is more important.

kcbrown
03-15-2012, 1:33 PM
Note changes.

"Get us what we all want" was said in the context of this discussion, which is about securing our 2nd Amendment rights. So the changes you note do nothing to diminish or change the argument.

You claim that demanding a plain reading of the Constitution will somehow get us recognition of our 2nd Amendment rights in the courts and you simultaneously claim that the courts will do whatever they want. Those two things are inherently contradictory. We simply cannot get what we want from the courts by demanding that which they are unwilling to give.

taperxz
03-15-2012, 1:34 PM
Agreed, but not every quest for greater civil rights stands in the same shoes as the Civil Rights Movement.

No, but the road map certainly exists much like the quest for same sex marriage which is BTW going through the courts to achieve their goals. HMMMM

Untamed1972
03-15-2012, 1:37 PM
If you bring me a win using a plain reading approach, sue away, because you guys are rockin'. I'll even take wins with strict scrutiny and harsh language from the court to the state. If you bring me lots of bad losses and one weak win, with intermediate scrutiny as the benchmark, then, yes, stand down.

First off.....if you know better why dont YOU bring it to us......why must we bring you anything? Again....another example of you unwillingness to put anything on the table except criticism.

Can you point to ONE single instance of any free state moving backwards following Heller/McD, or any subsequent case?

Examples of free states getting freer, and less free states get better are numerous and easy to find. You keep calling "strawman" on everyone else....where in reality YOU are the strawman.....because everything you've posted relies on fear and conjecture, where the imperical data every day is proving the exact opposite of what you claim to be true.

Fact is carry rights have only continued to expand and become more free for the vast majority of the country. So your fears are completely baseless.

goldrush
03-15-2012, 1:38 PM
You claim that demanding a plain reading of the Constitution will somehow get us recognition of our 2nd Amendment rights in the courts

Whoa, slow down. Straw man. Start over. I know it's easy to argue against positions you make up, but that's not how it's done.

You keep calling "strawman" on everyone else....where in reality YOU are the strawman.....because everything you've posted relies on fear and conjecture,


Do you know what "straw man" means?

kcbrown
03-15-2012, 1:43 PM
If you bring me a win using a plain reading approach, sue away, because you guys are rockin'. I'll even take wins with strict scrutiny and harsh language from the court to the state. If you bring me lots of bad losses and one weak win, with intermediate scrutiny as the benchmark, then, yes, stand down.


Don't get me wrong. I agree with you in principle. In principle, we should be able to get a plain reading win.

But in practice, we can't. We can't precisely because of the other thing you said, which is that the courts will do whatever they want.

And so your "solution" in the context of the real-world situation is for those of us in 2A-infringing states to continue to suffer as we have been, with no hope and no future, all the while the states we live in continue to enact ever stricter gun control laws.

And all the while, you'll sit there in the smug belief that your rights are safe simply because we're not taking any action to raise the floor for ourselves and anyone else whose rights are being infringed.



Agreed, but not every quest for greater civil rights stands in the same shoes as the Civil Rights Movement.

That doesn't matter. Civil rights need to be fought for whenever and wherever they're infringed, as long as doing so can be done successfully (one must choose the proper battleground and timing when possible). Or are you so lacking in courage that you would insist that such things not be fought for at all in order to avoid exposing those whose rights are not infringed to any risk to their rights whatsoever?

kcbrown
03-15-2012, 1:44 PM
Whoa, slow down. Straw man. Start over. I know it's easy to argue against positions you make up, but that's not how it's done.


I have shown your words, in the context in which they were said. If my reading of what you said is incorrect, it is on you to state plainly what you meant.

So please do so. I cannot correct a "straw man" that results from my incorrect interpretation of your words without first knowing what the correct interpretation is.

Untamed1972
03-15-2012, 1:47 PM
Do you know what "straw man" means?

Do you? (Out comes the grammar, intellect Nazi again. You gonna ask me where I went to school next?)

Just calling "straw man" on everyone else doesn't make it so, especially when you cannot and will not provide any single shred of evidence to back up any of your "chicken little, sky is falling" claims.

Your only position relies on self-imposed superiority and intellectual dishonesty.

goldrush
03-15-2012, 1:48 PM
No, but the road map certainly exists much like the quest for same sex marriage which is BTW going through the courts to achieve their goals. HMMMM

Now there's a darn good argument. They tried the Prop route, lost, and got what they wanted through a really contorted opinion that was put through a two-ton press to get the desired outcome.

What do they have that we don't? Favorable courts. They came in with a case that should have been a quick loser, and won, changing entire state law, despite voter desire to the contrary.

Those same courts like them and hate us. We need to understand this. Courts reverse-engineer their rulings, so it really doesn't matter what the law says, unless you give the court no way it can turn without embarrassing itself, and even then, they'll still look first to outcomes.

We need to understand that judges come from different stock than gun owners.

kcbrown
03-15-2012, 1:53 PM
Those same courts like them and hate us. We need to understand this. Courts reverse-engineer their rulings, so it really doesn't matter what the law says, unless you give the court no way it can turn without embarrassing itself, and even then, they'll still look first to outcomes.

We need to understand that judges come from different stock than gun owners.

By this, I presume you believe that Heller and McDonald were losses?

If we cannot get what we want from the courts (as seems to be your belief), and we cannot get what we want from the legislatures (as we know from experience), then what is your solution?

Untamed1972
03-15-2012, 1:55 PM
Those same courts like them and hate us. We need to understand this. Courts reverse-engineer their rulings, so it really doesn't matter what the law says, unless you give the court no way it can turn without embarrassing itself, and even then, they'll still look first to outcomes.

We need to understand that judges come from different stock than gun owners.


I'm really starting to think you might be bi-polar, or maybe schitzo because your every post contradicts the last one, and then back to the other side on the next one.

taperxz
03-15-2012, 1:56 PM
http://dailycaller.com/2010/10/25/scalia-takes-kagan-to-gun-range-sources-say/

There are many judges who ARE gun owners. You obviously form your argument based on stereotypical ideas.

taperxz
03-15-2012, 1:58 PM
Nothing like backing yourself into a corner. GR?

Untamed1972
03-15-2012, 2:14 PM
Nothing like backing yourself into a corner. GR?

:gene: LOL

Maybe the third personality finally told the other 2 to shut up?

Gray Peterson
03-15-2012, 2:44 PM
:gene: LOL

Maybe the third personality finally told the other 2 to shut up?

Someone should have told Goldy that we don't take too kindly to unhelpful out of state *******s who tell us we're the problem.

Also, the fact he didn't just email or PM Gene, or emailed Alan, tells me he is here to troll, sow discontent. He's a sad panda.

taperxz
03-15-2012, 2:49 PM
Someone should have told Goldy that we don't take too kindly to unhelpful out of state *******s who tell us we're the problem.

Also, the fact he didn't just email or PM Gene, or emailed Alan, tells me he is here to troll, sow discontent. He's a sad panda.


:D LOL

Untamed1972
03-15-2012, 2:52 PM
Someone should have told Goldy that we don't take too kindly to unhelpful out of state *******s who tell us we're the problem.

Also, the fact he didn't just email or PM Gene, or emailed Alan, tells me he is here to troll, sow discontent. He's a sad panda.


Gotta love a guy who argues himself into a corner by contradicting himself and then bascially calls "straw man" on his own arguments. LOL

goldrush
03-15-2012, 2:55 PM
Huh. Guess I was wrong. Gura does make a strong plain-reading argument.

http://ia600408.us.archive.org/2/items/gov.uscourts.dcd.137887/gov.uscourts.dcd.137887.25.0.pdf

Gray Peterson
03-15-2012, 3:03 PM
Huh. Guess I was wrong. Gura does make a strong plain-reading argument.

http://ia600408.us.archive.org/2/items/gov.uscourts.dcd.137887/gov.uscourts.dcd.137887.25.0.pdf

Which we told you.....how many times? :rolleyes:

goldrush
03-15-2012, 3:03 PM
Someone should have told Goldy that we don't take too kindly to unhelpful out of state *******s who tell us we're the problem.

YOU'RE OUT OF STATE! YOU'RE NOWHERE REMOTELY CLOSE TO CALIFORNIA! YOU'RE 500 MILES TO THE STATE LINE!

THAT'S LIKE TRYING TO BE FROM TORONTO WHILE LIVING IN CHICAGO!

Which we told you.....how many times?

aCCORDING TO A FORUM SEARCH, YOU SAID IT zero times.

Not once.

You did argue against it and insult me for saying it. Gura argues hard against your statement below in Palmer, telling the court they're bound to do lots of plain reading. Damn good Reply, too. Nice work, Alan.

There's no "imperative" outside of the analysis in Heller in re possession of firearms in the home. Judge Legg is bound by the 4th Circuit's determination of scrutiny, and if he were to go off of that determination and attempt to do textual analysis/plain reading, his decision would have been overturned by the 4th Circuit and the people of Maryland would be, in a manner, screwed until SCOTUS can straighten it out.

Only SCOTUS can do what you're asking these lower court judges to do. If you think the 4th Circuit can do it, you can file an amicus brief within 7 days after the appellee's file their brief asking them to do this, and if it makes it to SCOTUS on the merits, you can do the same thing.

Good to know Gura's going the way I'd go.

stix213
03-15-2012, 3:06 PM
If we cannot get what we want from the courts (as seems to be your belief), and we cannot get what we want from the legislatures (as we know from experience), then what is your solution?

He won't answer your question. Goldrush doesn't have any solutions, because he is already happy with the current state of the RKBA, and is only concerned about anyone making waves that could affect him while caring nothing for anyone else. A case of "I've got mine...."

But I'm not telling you anything you don't already know.

Also, it appears he's broken his capslock.

Gray Peterson
03-15-2012, 3:08 PM
YOU'RE OUT OF STATE! YOU'RE NOWHERE REMOTELY CLOSE TO CALIFORNIA! YOU'RE 500 MILES TO THE STATE LINE!

THAT'S LIKE TRYING TO BE FROM TORONTO WHILE LIVING IN CHICAGO!

Wow, I'm really getting under your skin, am I, Goldy? Haven't you ever heard of family ties? You realize that current location means nothing?

Ask some of the folks here if I'm a Californian. You might be surprised by the answer.....

taperxz
03-15-2012, 3:10 PM
YOU'RE OUT OF STATE! YOU'RE NOWHERE REMOTELY CLOSE TO CALIFORNIA! YOU'RE 500 MILES TO THE STATE LINE!

THAT'S LIKE TRYING TO BE FROM TORONTO WHILE LIVING IN CHICAGO!



aCCORDING TO A FORUM SEARCH, YOU SAID IT zero times.

Not once.

You really do have issues. You can get help you know. Use a search engine and your problems will just disappear.;)

Gray Peterson
03-15-2012, 3:12 PM
YOU'RE OUT OF STATE! YOU'RE NOWHERE REMOTELY CLOSE TO CALIFORNIA! YOU'RE 500 MILES TO THE STATE LINE!

THAT'S LIKE TRYING TO BE FROM TORONTO WHILE LIVING IN CHICAGO!



aCCORDING TO A FORUM SEARCH, YOU SAID IT zero times.

Not once.

You did argue against it and insult me for saying it.



Good to know Gura's going the way I'd go.

Textual/Categorical Analysis = Plain Reading Analysis.

Untamed1972
03-15-2012, 3:13 PM
He won't answer your question. Goldrush doesn't have any solutions, because he is already happy with the current state of the RKBA, and is only concerned about anyone making waves that could affect him while caring nothing for anyone else. A case of "I've got mine...."
But I'm not telling you anything you don't already know.


Despite the fact that he cannot point to a single instance of any of this litigation resulting in a loss of rights "free states" already had, and completely ingnores the fact that post Heller MORE states have gone shall issue, and already shall issue states have gone "No permit required carry."

In the immediate days following Heller, his argument might have been one to consider......but now.....4 years later the imperical evidence is ALL moving in the other direction and his concerns are at best a remote possibility, but nearly moot.

taperxz
03-15-2012, 3:14 PM
Goldrush, you really don't want to let the genie (kes) out of the bottle.

JTecalo
03-15-2012, 3:14 PM
:hide:

taperxz
03-15-2012, 3:17 PM
THAT'S LIKE TRYING TO BE FROM TORONTO WHILE LIVING IN CHICAGO!





.

Cough cough, Last i heard Toronto was in another country than Chicago. USA v Canada????

Gray Peterson
03-15-2012, 3:38 PM
It appears he's close to an apparent epiphany about Gura's textual analysis.

taperxz
03-15-2012, 3:42 PM
It appears he's close to an apparent epiphany about Gura's textual analysis.

Gray and CGF having to change hearts and minds one by one:eek:

Gray Peterson
03-15-2012, 3:52 PM
Not once.

You did argue against it and insult me for saying it. Gura argues hard against your statement below in Palmer, telling the court they're bound to do lots of plain reading. Damn good Reply, too. Nice work, Alan.





The Fourth Circuit took textual/categorical analysis off the table for "outside the home". Until an en banc sitting of the Circuit overturns Masciandaro's statement of scrutiny for "outside of the home", or SCOTUS puts "outside of the home" squarely into textual analysis rather than intermediate scrutiny, Judge Legg is absolutely bound to the 4th Circuit determination on the matter.

Neither Judge Legg or Alan Gura are stupid. Alan argued textual as well as scrutiny, just like he did in Ezell (find the oral argument audio). It is preserved for higher argument.

HowardW56
03-15-2012, 4:43 PM
WOW, did he go away? I was getting a gold plated headache...

Mesa Tactical
03-15-2012, 4:48 PM
Law is hard.

goldrush
03-15-2012, 5:04 PM
Haven't you ever heard of family ties?

Sure, Michael J. Fox as Alex Keaton.

Gray Peterson
03-15-2012, 5:19 PM
Sure, Michael J. Fox as Alex Keaton.

Also known as Marty McFly.

scarville
03-15-2012, 7:30 PM
NO!! He is not!!
Out of curiosity I tried to block Gray Peterson and got the same message so the software thinks he is.

Gray Peterson
03-15-2012, 7:38 PM
Out of curiosity I tried to block Gray Peterson and got the same message so the software thinks he is.

I'm one of the moderators of the subforum for LTC county info.

The guy tried to block Gene and Brandon, too, when he was disagreeing with him. Talk about his own echo chamber.

HowardW56
03-15-2012, 7:42 PM
I'm one of the moderators of the subforum for LTC county info.

The guy tried to block Gene and Brandon, too, when he was disagreeing with him. Talk about his own echo chamber.


He blocks anyone that calls him on his BS, or tries to... :)

hoffmang
03-15-2012, 9:16 PM
Goldrush,

The civil rights movement succeeded because people like the founder of the gun rights movement carried firearms and threatened to shoot KKK members - not to mention King, Howard, etc. You assume that none of us know the racists south or spend as much time in NYC as you do. I'll buy you drinks next time you're there because my odds of being there are much higher than yours.

Just sue your state under your state constitution to say that permits are an infringement. You can pontificate that we're wrong when you even get a "weak win" on that one.

I'll be watching. I know which court system to watch.

-Gene

bulgron
03-15-2012, 9:47 PM
I'll be watching. I know which court system to watch.

-Gene

Which one is that, pray tell?

hoffmang
03-15-2012, 10:11 PM
Which one is that, pray tell?

You should ask the counselor. His state was one of the first to go to a decent permitting system is all I can say.

-Gene

bulgron
03-15-2012, 10:13 PM
You should ask the counselor. His state was one of the first to go to a decent permitting system is all I can say.

-Gene

Really. So if he's already got his, what's he *****in' for?

For me and not for thee?

Sgt Raven
03-15-2012, 11:17 PM
I keep thinking if Goldy was playing poker and was dealt 4 Aces and a King, he would throw 3 Aces away trying to draw a Royal Flush. :TFH:

mosinnagantm9130
03-15-2012, 11:18 PM
You'd think at some point he'd stop digging...

Law is hard.

This, lol^^

hoffmang
03-15-2012, 11:49 PM
Really. So if he's already got his, what's he *****in' for?

For me and not for thee?

Mr G'Rush thinks that shall issue permit systems are unconstitutional. He thinks that his permit is an infringement on his right to bear arms even though he's able to carry a gun and you aren't.

-Gene

bulgron
03-16-2012, 12:04 AM
Mr G'Rush thinks that shall issue permit systems are unconstitutional. He thinks that his permit is an infringement on his right to bear arms even though he's able to carry a gun and you aren't.

-Gene

Well, he'd better get used to it. I'm 99% certain that no court anywhere is going to declare shall-issue carry permits to be unconstitutional.

There's the way some of us think things should be, and then there's the way the world actually works. People need to make peace with the way the world actually works.

kcbrown
03-16-2012, 12:10 AM
Mr G'Rush thinks that shall issue permit systems are unconstitutional. He thinks that his permit is an infringement on his right to bear arms even though he's able to carry a gun and you aren't.


And to the extent that a shall-issue permit system delays in any way the exercise of the right to keep and bear firearms, he's right. That's because the necessity of effective self defense is something that cannot be delayed, most especially for the convenience of the state. You do not choose the time at which self defense is necessary, that time chooses you. This is entirely unlike the forms of speech that are governed via permit systems, so don't even try to go there.


But he's not right about it infringing his right to bear arms, because he already has the permit if I'm not mistaken. He's only right about it infringing the right of someone who does not yet have a permit.

kcbrown
03-16-2012, 12:15 AM
Well, he'd better get used to it. I'm 99% certain that no court anywhere is going to declare shall-issue carry permits to be unconstitutional.


I'm not so sure about this. This remains to be seen, and there are much bigger fish to fry. Baby steps...



There's the way some of us think things should be, and then there's the way the world actually works. People need to make peace with the way the world actually works.

If we did that, we wouldn't be in this fight at all. So I cannot agree with this.

We can and do change how the world works through our actions.

bulgron
03-16-2012, 2:32 AM
I'm not so sure about this. This remains to be seen, and there are much bigger fish to fry. Baby steps...


What's this? You're more optimistic than I am? :eek:




If we did that, we wouldn't be in this fight at all. So I cannot agree with this.

We can and do change how the world works through our actions.

I understand what you're saying, but I also know there's those words in Heller that say CCW is something which can be regulated by the state. (I'm paraphrasing, of course.) That's going to be an awfully huge hurdle to overcome if you're looking for the courts to hand us constitutional carry.

That isn't to say that constitutional carry can't come to all 50 states. But I think the last little step from shall-issue to no-permits-necessary has to come from the various state legislatures. And in some states, that requires a generational shift in attitudes about guns.

kcbrown
03-16-2012, 2:44 AM
What's this? You're more optimistic than I am? :eek:


Surprising, I know, but there are situations that even shall-issue permit systems have great difficulty addressing. :43:

(if you figure it out on your own, you should probably keep it to yourself for now)


Of course, it depends on how the current carry cases actually go, because we won't know how seriously the Supreme Court takes the right to bear in public until it takes at least one of the carry cases coming up the ladder.



I understand what you're saying, but I also know there's those words in Heller that say CCW is something which can be regulated by the state. (I'm paraphrasing, of course.) That's going to be an awfully huge hurdle to overcome if you're looking for the courts to hand us constitutional carry.


I don't expect the courts to hand us Constitutional carry. I don't think that's going to happen at all.

But something even less burdening on the right than shall-issue concealed carry is something that, believe it or not, I can envision us getting.



That isn't to say that constitutional carry can't come to all 50 states. But I think the last little step from shall-issue to no-permits-necessary has to come from the various state legislatures. And in some states, that requires a generational shift in attitudes about guns.

Well, we'll see. :43:

kimber_ss
03-16-2012, 6:56 AM
Well the OP's point is well taken. Ever since Gura, the ability to purchase a holster in Arizona has been rescinded. Now what? Should have just left well enough alone. Must have started with holsters with "evil" features.

Gray Peterson
03-16-2012, 8:12 AM
WOW, did he go away? I was getting a gold plated headache...

I think so. Tends to happen when you get embarrassed. I mean, he tried to put Gene on his ignore list. Really?

HowardW56
03-16-2012, 8:32 AM
I think so. Tends to happen when you get embarrassed. I mean, he tried to put Gene on his ignore list. Really?


I think he tried to put anyone that questioned or challenged him on ignore...

It didn't work for quite a few people...

Mesa Tactical
03-16-2012, 10:00 AM
And to the extent that a shall-issue permit system delays in any way the exercise of the right to keep and bear firearms, he's right.

That's not what Heller says. And for the moment and foreseeable future Heller is the arbiter of what the 2nd Amendment means. Not you, not Goldrush, not anyone else.

Folks in this forum spend a lot of energy arguing about the application of the 2nd Amendment as if Heller never happened. I have no idea why they do this. Typing practice?

Meplat
03-16-2012, 11:17 AM
???

The Bill of Rights was passed by the legislature.

Aum..........NO, the BILL OF RIGHTS was passed by the continental congress, which predated and created the legislature.

Mike

taperxz
03-16-2012, 11:30 AM
Aum..........NO, the BILL OF RIGHTS was passed by the continental congress, which predated and created the legislature.

Mike

I think this is inaccurate. It came from the first US congress, not the continental congress.

bulgron
03-16-2012, 11:39 AM
I think this is inaccurate. It came from the first US congress, not the continental congress.

Correct. The only way they could get the new constitution ratified was if the framers promised to amend it with a bill of rights as their first order of business in the new congress. What a different world that must have been. Politicians promised to do something in the future, everyone took them at their word, and then they went on to actually do it. Can you imagine any of that happening today?

stix213
03-16-2012, 11:53 AM
What's this? You're more optimistic than I am? :eek:


I'm thinking Kcbrown is on some new anti-depressants ;)

Meplat
03-16-2012, 11:58 AM
Mr G'Rush thinks that shall issue permit systems are unconstitutional. He thinks that his permit is an infringement on his right to bear arms even though he's able to carry a gun and you aren't.

-Gene

And he is correct. The disagreement lies in what to do about it. If he and about half a million of his closest friends are ready to grab their fowling peaces and squirrel guns and march on washington I might even pick up my Jagar rifle and go along. But I don't see that happening any time soon.

Mike

Meplat
03-16-2012, 12:22 PM
I think this is inaccurate. It came from the first US congress, not the continental congress.

I think it came from the SECOND continental congress that was called together to address problems with the Articles Of Confederation. It was felt that a stronger federal government was needed mainly to address problems with interstate commerce. The states and the people were leery of a strong federal government and would not ratify the new constitution that was written by the congress. The bill of rights was created to alleviate those fears. After the bill of rights was passed, the several states ratified the new constitution which created the three branches of government, the executive, the legislative, and the judicial.

I may be wrong as to the proper nomenclature. It could have been called the first US Congress, rather than the second Continental Congress. But it was most certainly not the legislature as we know it today, which was created by a Congress that was a very different animal.

Untamed1972
03-16-2012, 12:37 PM
And he is correct. The disagreement lies in what to do about it. If he and about half a million of his closest friends are ready to grab their fowling peaces and squirrel guns and march on washington I might even pick up my Jagar rifle and go along. But I don't see that happening any time soon.

Mike

Or since he was hot for "legislative solutions" why aren't he and his pistol packin' buddies marching on their state capitol to get Con-Carry passed in his state.

He just seems like one of those who wants everyone else to do the heavy lifting and then criticize how they do it.

kcbrown
03-16-2012, 2:04 PM
That's not what Heller says. And for the moment and foreseeable future Heller is the arbiter of what the 2nd Amendment means. Not you, not Goldrush, not anyone else.


Of course. But that's because Heller doesn't address the timing issue of permit systems at all. It is entirely silent on that issue.

However, it does give us a hint. Self-defense is the core of the right. And as I said, the necessity of self-defense does not wait for the government to hand you a permit. That has implications. The only question is whether or not the Supreme Court will recognize those implications and deal with them appropriately.

kcbrown
03-16-2012, 2:06 PM
I'm thinking Kcbrown is on some new anti-depressants ;)

:rofl2:

Well, I am on vacation, so maybe that has something to do with it (a natural anti-depressant?). :D

taperxz
03-16-2012, 2:56 PM
:)I think it came from the SECOND continental congress that was called together to address problems with the Articles Of Confederation. It was felt that a stronger federal government was needed mainly to address problems with interstate commerce. The states and the people were leery of a strong federal government and would not ratify the new constitution that was written by the congress. The bill of rights was created to alleviate those fears. After the bill of rights was passed, the several states ratified the new constitution which created the three branches of government, the executive, the legislative, and the judicial.

I may be wrong as to the proper nomenclature. It could have been called the first US Congress, rather than the second Continental Congress. But it was most certainly not the legislature as we know it today, which was created by a Congress that was a very different animal.

The amendments were introduced by James Madison to the 1st United States Congress as a series of legislative articles. They were adopted by the House of Representatives on August 21, 1789,[1][2] formally proposed by joint resolution of Congress on September 25, 1789, and came into effect as Constitutional Amendments on December 15, 1791, through the process of ratification by three-fourths of the States. While twelve amendments were passed by Congress, only ten were originally passed by the states. Of the remaining two, one was adopted as the Twenty-seventh Amendment and the other technically remains pending before the states.

:)

OleCuss
03-17-2012, 8:27 AM
Of course. But that's because Heller doesn't address the timing issue of permit systems at all. It is entirely silent on that issue.

However, it does give us a hint. Self-defense is the core of the right. And as I said, the necessity of self-defense does not wait for the government to hand you a permit. That has implications. The only question is whether or not the Supreme Court will recognize those implications and deal with them appropriately.

Yeah, I think you are touching on where things might go with SCOTUS. You get your instant background check, you pay your nominal licensing fee - and you have your carry license.

None of this having to wait for six months to get an appointment to apply, pay for a prolonged training program, get interviewed by the sheriff department, wait for weeks or months to actually get the permit, etc.

The idea that you should be required to get a special training program, wait for an extended time, pay a bunch of money to the government, and then have the right to political speech in an approved venue - makes about as much sense as the similar requirements to exercise our RKBA.

I don't think we get to make the licensure go away entirely, but it should eventually be hardly a bother.

scarville
03-17-2012, 9:36 AM
Mr G'Rush thinks that shall issue permit systems are unconstitutional. He thinks that his permit is an infringement on his right to bear arms even though he's able to carry a gun and you aren't.
I agree with that. If I need permission from the state it is not a right but a privilege.

I see in goldrush's postings an additional desire to not have to give up any freedom he already has so others can have more. In that he has a point. This should not a be zero sum fight where people in one state end up with less freedom so Californians can have a little more.

OleCuss
03-17-2012, 10:02 AM
I agree with that. If I need permission from the state it is not a right but a privilege.

I see in goldrush's postings an additional desire to not have to give up any freedom he already has so others can have more. In that he has a point. This should not a be zero sum fight where people in one state end up with less freedom so Californians can have a little more.

IMHO, goldrush was exceedingly wrong. Maybe well-intentioned, but wrong.

We may not like it and we may think/know that it is wrong, but licensure is just not likely to ever disappear. We have to face reality or we're at best neurotic if not actually psychotic.

The other thing to realize is that what a legislature grants it can also take away.

CGF/SAF and related are securing our rights in case law at the core right level. This is far more durable than the action of a state legislature and governor. So you could end up with rights which are less expansive than what has been done at the state level, but those rights will be far more secure.

The rest of the nation should be incredibly grateful for the legal moves made by those in the most restrictive of environments for securing all our rights in a way which cannot be done in a less repressive environment.

It sucks that it must be done this way, but without the legal actions in D.C., Illinois, and now California, Colorado, Maryland, etc. - our RKBA would slowly erode and disappear nationwide. The movement in the most repressive environments has galvanized the movement elsewhere as well and has thus advanced our rights everywhere.

I have long contended that maturity is the willingness to endure a period of deprivation/discomfort/inconvenience in order to achieve one's more important goals. We need to exhibit that maturity.

hoffmang
03-17-2012, 10:31 AM
I have long contended that maturity is the willingness to endure a period of deprivation/discomfort/inconvenience in order to achieve one's more important goals. We need to exhibit that maturity.

This. The only way to get California's legislature back to any semblance of reason on the right to arms and self defense is to box them in from the Federal Courts and then let public opinion shift as it always has. This is another strong parallel from the civil rights movement. We have to have the patience to take down the next easiest domino knowing that when you stack enough up, it's over. Just as it became uncomfortable in the 1980's to openly be a member of the KKK, it will become uncomfortable in the near future to openly admit you're a member of LCAV or Brady.

-Gene

Paladin
03-17-2012, 11:00 AM
I have long contended that maturity is the willingness to endure a period of deprivation/discomfort/inconvenience in order to achieve one's more important goals. We need to exhibit that maturity.

The Marshmallow Test, first performed at Standford back in 1972....

amsqeYOk--w

http://en.wikipedia.org/wiki/Marshmallow_experiment

scarville
03-17-2012, 12:51 PM
IMHO, goldrush was exceedingly wrong. Maybe well-intentioned, but wrong.

We may not like it and we may think/know that it is wrong, but licensure is just not likely to ever disappear. We have to face reality or we're at best neurotic if not actually psychotic.
I agree that licensing will be around a while. Doesn't make it right. As to it never going away, I think that Vermont, Alaska, Arizona and Wyoming are counter examples which disprove your hypothesis

The other thing to realize is that what a legislature grants it can also take away.
Yes but that is much harder to do. There is a fancy name for it which I cannot remember (I tend to think of it as the "porno effect") but it describes the phenomenon where people accustomed to having something will try harder to keep it than they did to get it in first place. Nevertheless, rights can be chipped away piecemeal despite favorable courts decisions. Look at the successful attacks on the Fourth and Fifth Amendments and Habeus Corpus.

CGF/SAF and related are securing our rights in case law at the core right level. This is far more durable than the action of a state legislature and governor. So you could end up with rights which are less expansive than what has been done at the state level, but those rights will be far more secure.

The rest of the nation should be incredibly grateful for the legal moves made by those in the most restrictive of environments for securing all our rights in a way which cannot be done in a less repressive environment.

It sucks that it must be done this way, but without the legal actions in D.C., Illinois, and now California, Colorado, Maryland, etc. - our RKBA would slowly erode and disappear nationwide. The movement in the most repressive environments has galvanized the movement elsewhere as well and has thus advanced our rights everywhere.

I have long contended that maturity is the willingness to endure a period of deprivation/discomfort/inconvenience in order to achieve one's more important goals. We need to exhibit that maturity.
Californians have very little in the way of carry "rights" to lose. If the courts do, in fact, cobble together some legal "reasoning" that lets states regulate (or burden if you prefer) carry outside the home then Californians lose nothing. Not everybody lives in California and those is more free states do stand to lose something.

From what I've read goldrush doesn't see it as being asked to endure but to risk what he already has for people who offer him little or nothing in return. I can see his point. "I'll gladly pay you Tuesday for a hamburger today", is not a good basis for a working relationship.

hoffmang
03-17-2012, 3:32 PM
From what I've read goldrush doesn't see it as being asked to endure but to risk what he already has for people who offer him little or nothing in return. I can see his point. "I'll gladly pay you Tuesday for a hamburger today", is not a good basis for a working relationship.

He has his state constitution and his existing easy carry licensing regime, a favorable legislature and does not need the Federal 2A to save his bacon. We have only the 2A and people supposedly on our side who undermine the wins and then tell us to move out of California. Missing is that 1 in 9 Americans lives in California.

-Gene

Sobriquet
03-17-2012, 3:57 PM
Missing is that 1 in 9 Americans lives in California.

-Gene

Not to mention New York, Illinois, Massachusetts...

goldrush
03-19-2012, 9:14 AM
Mr G'Rush thinks that shall issue permit systems are unconstitutional.

Perhaps. I've been reading posts by jpk1md over on mdshooters.com who has me reconsidering the entire concept of constitutionality and the proper level of intervention by the federal government in the affairs of the states. A permit clearly temporally separates one from the exercise of a right and imposes a tax on the right, so a permit is, at a minimum, an infringement on the right. Does a permit scheme violate constitutionality, to the extent that the Constitution is the Supreme Court reporters and not the Constitution? Hard to say, especially in the wake of intermediate scrutiny and core and non-core exercise.

jpk1md: "The approach I've argued many times is that 2A doesn't grant Fed Gov the power or authority to determine RKBA AT ALL....but thats not the approach that most have taken in granting SCOTUS the power to "Incorporate" 2A."

https://mdshooters.com/showpost.php?p=1548727&postcount=23

Depending on state constitutions, however, the answer is often "absolutely."

He thinks that his permit is an infringement on his right to bear arms even though he's able to carry a gun and you aren't.

-Gene

That doesn't follow, catastrophically so. My being able to carry a gun while you are not is not proof that a permit scheme imposed on a right is not an infringement.

He has his state constitution and his existing easy carry licensing regime, a favorable legislature and does not need the Federal 2A to save his bacon.

Do the hard work, and get the same for yourself.

We have only the 2A and people supposedly on our side who undermine the wins and then tell us to move out of California. Missing is that 1 in 9 Americans lives in California.

-Gene

Voting with your feet is the correct approach. The "wins" aren't really so, and the losses have become many and harsh.

I'll borrow, again, from jpk1md at mdshooters.com who says:

"No, you should seek resolution in your state courts and if you cannot get satisfaction move to a state that better matches your values....vote with your dollars and deprive the State of the fruits of your labor.....if enough people did it there would be a sea change in behavior at the state level."

http://www.mdshooters.com/showthread.php?t=52234&page=37

See post 727.

This is, exactly, my point, as it's the correct answer.

goldrush
03-19-2012, 9:42 AM
This. The only way to get California's legislature back to any semblance of reason on the right to arms and self defense is to box them in from the Federal Courts and then let public opinion shift as it always has.

Dead wrong. Dead, dead, dead wrong, and a logical non sequitur. Winning a weak gun victory, if you even get one, isn't going to make anyone think that carrying guns is acceptable, any more than letting the Nazis march in Skokie shifted public opinion to think that Nazis were fine.

That's a refusal to do the hard work required to change hearts and minds in California.

Just as it became uncomfortable in the 1980's to openly be a member of the KKK, it will become uncomfortable in the near future to openly admit you're a member of LCAV or Brady.

Thinking racists in sheets were nutjobs and kooks had nothing to do with any court win. The KKK still holds marches and rallies, perfectly legally, and people still think they're kooks. There are no limits on membership, either. Everyone could join the KKK, and it would dominate public opinion. Why doesn't it?

So also does public opinion disfavor Earth Day and the Occupy movement, though their assemblies are legally allowed. What you must understand is that public opinion is utterly disconnected from what you're legally allowed to do.

If you want to change public opinion with CGF, lawsuits are not the best way to do it, and the strategy may very well backfire.

OleCuss
03-19-2012, 10:25 AM
goldrush:

I do not question your motives or sincerity. But the idea of people who object to California's continual attempt to crush our RKBA simply leaving just won't work.

There tend to be cycles in political venues. There is something of a tendency to cycle from conservative to leftist and vice versa. If you think about it, that is the primary reason why the leftists got "baseline budgeting" enshrined in law and in practice.

If California and a few other populous and influential states are allowed to continue to violate our RKBA then the next time your state (wherever that may be) goes further toward fascism the probability will be unfortunately high that they will adopt much of California law and enshrine it in case law at many levels.

I am not as confident as is Gene that public opinion in California will follow federal case law. There is reason to believe that it will, but my confidence level is lower. But the funny thing is that I think that California's government is far more fascist than is its population. It really won't take a whole lot of movement for the state to become an at least moderately conservative state - unfortunately there is no significant political party in the state which is devoted to conservative/libertarian principles and that makes getting the shift rather on the difficult side.

But getting the baseline federal case law is going to help a lot with protecting our RKBA for generations despite the political oscillations.

stix213
03-19-2012, 10:55 AM
Once carry becomes "normal" in California, as in everyone knows at least someone who carries and contrary to local media brainwashing they do not end up killing random people on the street over parking spots, then and only then will public opinion in California begin to change in favor of carry. That requires the law to change in California to allow carry in populous areas prior to the change in public opinion, not the reverse order.

You're not going to change the public opinion here without being able to point to local examples. There is too much elitism and bigotry here to point to other states where carry already works, since those are all "backwards redneck states" that are inferior to California who's examples don't apply here.

Uxi
03-19-2012, 11:13 AM
Once carry becomes "normal" in California, as in everyone knows at least someone who carries and contrary to local media brainwashing they do not end up killing random people on the street over parking spots, then and only then will public opinion in California begin to change in favor of carry. That requires the law to change in California to allow carry in populous areas prior to the change in public opinion, not the reverse order.


Agreed. It's contingent on carry becoming "normal." That won't happen with CCW since most people won't ever know unless they start talking. Constitutional carry is the answer.

The bad guys are already illegally concealing anyway.

goldrush
03-19-2012, 11:32 AM
If California and a few other populous and influential states are allowed to continue to violate our RKBA then the next time your state (wherever that may be) goes further toward fascism the probability will be unfortunately high that they will adopt much of California law and enshrine it in case law at many levels.

The quickest way to ensure that bad laws can apply outside their own legislatures is to find them upheld in the federal reporters.

Once carry becomes "normal" in California, as in everyone knows at least someone who carries and contrary to local media brainwashing they do not end up killing random people on the street over parking spots, then and only then will public opinion in California begin to change in favor of carry. That requires the law to change in California to allow carry in populous areas prior to the change in public opinion, not the reverse order.

You might be playing chicken-and-egg with that, forever.

You're not going to change the public opinion here without being able to point to local examples. There is too much elitism and bigotry here to point to other states where carry already works, since those are all "backwards redneck states" that are inferior to California who's examples don't apply here.

You already have several hundred thousand people who carry in California, every day, under your imperfect permit plan. Build from this. You can't build an ad campaign around these carriers like the "I'm a Mormon" campaign? You're in California, with access to all the media talent you'd ever need. There's no excuse for not using the media, instead of, or in addition to the courts, to expand your message and to move public opinion.

You could make one of those horribly annoying commercials where the actors say, in turn:

"I carry."
"I carry."
"I carry."
"I carry."

Run a similar campaign for shooting. Close with "Visit Calshoots.com (or whatever) to find a place near you to try shooting. Please take advantage of our ShootingBuddy program which matches you with a CalGuns/CalShoots ambassador who will, free of charge, personally introduce you to the sport of shooting."

This is what CGF should be doing. I'd come out and run CGF if there were enough cash behind it. Run these commercials for a year, or two, then use that boost in popular opinion to get modest legislative change or to stop proposed bad laws.

You win this by getting more people to the range and having those people be your free advertising arm.

stix213
03-19-2012, 11:45 AM
You already have several hundred thousand people who carry in California, every day, under your imperfect permit plan. Build from this. You can't build an ad campaign around these carriers like the "I'm a Mormon" campaign? You're in California, with access to all the media talent you'd ever need. There's no excuse for not using the media, instead of, or in addition to the courts, to expand your message and to move public opinion.


Those are more of the "rednecks" that the elitists in the urban areas think they are better than. The vast majority of people in CA have no idea that someone can get an LTC in Mendocino County and carry in San Francisco.

The media is against carry in California, so trying to use them will only result in promoting their anti-gun agenda. Trying to use the media to promote gun rights will be just as effective as trying to call into the Rush Limbaugh show to promote late term abortion.

IVC
03-19-2012, 11:47 AM
If you want to change public opinion with CGF, lawsuits are not the best way to do it, and the strategy may very well backfire.

Not sure why you are intentionally misrepresenting the strategy.

The public opinion will NOT change with the lawsuits and nobody expects it to happen that way nor plans it that way. The change in public opinion comes as a consequence of normalization of carrying laws, when the doomsday predictions don't materialize and it becomes obvious that whether some fraction of the population carries or not doesn't affect latte-drinking, iPad-listening, McJob-holding hippies' day to day routine.

IVC
03-19-2012, 11:52 AM
I'd come out and run CGF if there were enough cash behind it.

Ha, ha, ha. You can come out and run Apple - there is a lot of cash behind them and they are in CA.