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View Full Version : Kachalsky - CA2 Decision is out - Loss


Al Norris
11-27-2012, 7:06 AM
Kachalsky et al. v. Cty. of Westchester et al. (http://www.ca2.uscourts.gov/decisions/isysquery/1b51e228-1ff1-45cd-b60b-93ef575872ac/1/doc/11-3642_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/1b51e228-1ff1-45cd-b60b-93ef575872ac/1/hilite/)

The decision of the district court is affirmed. See this thread (http://thefiringline.com/forums/showthread.php?t=468335) for further details.

The CA2 panel did exactly what many of us thought. Although the suit was aimed at carry in public, as part and parcel of the right, the court looked only at concealed carry and concluded that the NY State law was a valid regulation. This, regardless of the fact that open carry is completely banned. The court sweeps past this with barely any regard at all.

The court does spend 2 pages of writing on why they will not address 2A concerns by importing certain 1A standards. This, despite the fact that the CA4 and CA3 (and even another CA2 panel - US v. DeCastro) did import some of that reasoning.

The core of the right, as seen by this CA2 panel, is "in the home." Anything else deserves less scrutiny. Here, the court couches its "reasonable regulation" in terms of intermediate scrutiny. This, like so many district court decisions is nothing more than rational basis in which the law stands.

Mesa Tactical
11-27-2012, 7:37 AM
Al Norris, that was a spectacular opening post to that thread on The Firing Line.

Calplinker
11-27-2012, 7:50 AM
So what's next with this case? Appeal?

AyatollahGondola
11-27-2012, 7:51 AM
Depressing. The court pretty much shot down a 1st amendment challenge without it being at the core of the challenge to the 2nd. While they didn't say you couldn't carry a firearm as a demonstration of a 2nd amendment right, they chiseled a pathway for that to happen in the future.

Al Norris
11-27-2012, 7:52 AM
Thanks.

What makes this decision really bad, is that the law in MD is very similar. The CA4 in Woollard might well use the CA2 decision in overturning Judge Legg's decision at district court.

This constant harping about punting to the Supreme Court, as if it was the Court of First Impression, is getting old. Especially when the circuit courts say the same thing.

I sincerely hope that Justice Scalia and Justice Thomas are following these escapades.

OleCuss
11-27-2012, 8:31 AM
My questions are on the timing. I think a lot of us are not at all surprised by a loss.

Are they going to appeal in time to have a shot at getting cert for this session of SCOTUS?

Is it likely that they are going to ask for en banc resulting in further delay?

Just wondering. . .

kcbrown
11-27-2012, 8:36 AM
Frankly, I'm very surprised they issued an opinion this "early". This means we can appeal to SCOTUS immediately. And this is an Alan Gura case, so it is well-targeted.

Now, that said, it should be clear to all of you by now that the lower courts are going to continue to use the Supreme Court as the effective "court of first resort" and act, merely, as delaying and expense-adding mechanisms for getting a real decision (see Osterweil v Bartlett). Even after the Supreme Court weighs in on the issue of public carry, you can expect cases that are the same as this one in all the ways that matter to have to go to SCOTUS for resolution. SCOTUS will be forced to rule on the merits of all those cases, as was the case in NAACP v Alabama.


Regardless, it is very heartening that the 2nd Circuit gave us the "loss" and thus give us the opportunity to appeal to SCOTUS for a ruling. A certain quote comes to mind on this. What was it? Ah, yes: "please, please don't throw me into that briar patch!". :43:

M. D. Van Norman
11-27-2012, 8:36 AM
At the moment, delay is the only viable strategy the prohibitionists have. Avoid meaningful decisions until the Supreme Court changes or until our frustration breaks.

Dantedamean
11-27-2012, 8:41 AM
If they go to SCOTUS I hope it's quickly before Obama can get his grubby hands on a new appointment or two.

bruss01
11-27-2012, 9:17 AM
Actually, this seems like GOOD news.

They have set themselves up to be reversed by the Supreme Court. If, as mentioned above, this is an Alan Gura case, he has a history of taking 2A to the highest court and WINNING. That win sets us up in a good position nationwide, including here in CA.

It seems like our prayers are being answered and the anti's keep pitching us slow balls right over the plate in the strike zone. Couldn't ask for better!

curtisfong
11-27-2012, 9:33 AM
Seriously. The more glaringly deficient the CA2 decision is, the better it is for us.

Believe it or not, this is probably the best case outcome.

bulgron
11-27-2012, 9:42 AM
Seriously. The more glaringly deficient the CA2 decision is, the better it is for us.

Believe it or not, this is probably the best case outcome.

Not if SCOTUS finds the decision so bad that they simply decide to reverse and remand. Then we get to stay on this merry-go-round even longer.

volksweegle
11-27-2012, 9:44 AM
SCOTUS is going down the tubes. They wont side for us any more.

bulgron
11-27-2012, 9:45 AM
SCOTUS is going down the tubes. They wont side for us any more.

There's still time to squeak one more win out of them. But after that, you're right, we're screwed.

kcbrown
11-27-2012, 9:46 AM
Not if SCOTUS finds the decision so bad that they simply decide to reverse and remand. Then we get to stay on this merry-go-round even longer.

Even I am skeptical that SCOTUS would do that. GVR requires that there be prior SCOTUS guidance on the issue, but for this there is effectively none. This case is all about the right to keep and bear arms in public, something that was never explicitly addressed in Heller.

It's possible (likely, even) that SCOTUS will hear the case, issue a ruling, and then remand for further proceedings, but they will give guidance one way or the other, and that requires that they rule on the merits.


No, the two most likely scenarios are that they rule on the merits, or they deny cert altogether. I'm hopeful they won't deny cert, but won't be surprised at all if they do -- they may be waiting for Moore or its equivalent, which is a more "pure" case than this.

yellowfin
11-27-2012, 9:55 AM
An interesting question is whether they'll rule strongly enough to minimize the nullification of the ruling by deliberate noncompliance of the lower courts following it.

kcbrown
11-27-2012, 10:00 AM
An interesting question is whether they'll rule strongly enough to minimize the nullification of the ruling by deliberate noncompliance of the lower courts following it.

There is no such kind of ruling, short of one in which they directly threaten the lower court judges with jail or something. I am unaware of any case in the history of the Court in which they issue such a ruling against lower court judges (but that isn't necessarily saying much, as my knowledge of SCOTUS cases in general is so far from encyclopedic that it might be regarded as laughably vacant).

yellowfin
11-27-2012, 10:26 AM
They could make such a ruling by stating the possible rebuttals, excuses, and sidesteps and thoroughly squash them explicitly one by one. They might be in the habit of issuing airtight rulings but it can be done if they're willing and thinking ahead.

yellowfin
11-27-2012, 10:30 AM
Might not be, that is.

Window_Seat
11-27-2012, 10:35 AM
It doesn't necessarily have to be a Kachalsky RVR (reverse vacate remand), it could be any one of six other U.S. Court of Appeals cases that go to SCOTUS on certiorari. Remember, these cases are designed for SCOTUS.

Erik.

yellowfin
11-27-2012, 10:42 AM
Well, it might not have to be one vs. another in theory, but I concur with kc's conclusion that the worst offending states will need to be told specifically THIS MEANS YOU AND NO FURTHER SCREWING AROUND, I DON'T CARE IF YOU DON'T LIKE IT, ISSUE THE DAMN PERMITS TODAY. I just hope they see this situation for what it is and no more of this "nothing in this shall cast doubt on longstanding..." nonsense.

SilverTauron
11-27-2012, 10:57 AM
I hate to be Mr. Pessimist,but it must be said all the same:attaching concealed carry to the 2nd Amendment as a fundamental right just ain't gonna fly.Our culture is to regressive for a lower court to do anything different than observe the status quo.That norm is this:basically,you can own a gun AT HOME as an exercise of your 2nd Amendment rights,but once you cross the property line you're in the public domain,where Big Government has the " duty" to ensure public safety at the expense of individual rights if the same government deems it necessary.

Since public safety is a "government prerogative" ,it can regulate gun use and possession all the way up to a complete CCW ban if it feels the need. If a total prohibition akin to Illinois' passes legal muster, then naturally discretionary issue becomes immune to legal challenge. Equal rights and treatment under the law becomes an irrelevant canard when carrying in public is a government issued privilege instead of a codified right as gun ownership at home is.

stix213
11-27-2012, 11:19 AM
Frankly, I'm very surprised they issued an opinion this "early". This means we can appeal to SCOTUS immediately. And this is an Alan Gura case, so it is well-targeted.

Now, that said, it should be clear to all of you by now that the lower courts are going to continue to use the Supreme Court as the effective "court of first resort" and act, merely, as delaying and expense-adding mechanisms for getting a real decision (see Osterweil v Bartlett). Even after the Supreme Court weighs in on the issue of public carry, you can expect cases that are the same as this one in all the ways that matter to have to go to SCOTUS for resolution. SCOTUS will be forced to rule on the merits of all those cases, as was the case in NAACP v Alabama.


Regardless, it is very heartening that the 2nd Circuit gave us the "loss" and thus give us the opportunity to appeal to SCOTUS for a ruling. A certain quote comes to mind on this. What was it? Ah, yes: "please, please don't throw me into that briar patch!". :43:


So does this mean Kachalsky just jumped to the head of the pack and could even go before SCOTUS this session if we (Gura, etc) act quickly?

Do I detect a small amount of uncharacteristic optimism in your post KC? ;)

On all the other similar cases that will continue to be kicked up to SCOTUS after a "bear arms" decision, wouldn't SCOTUS likely just quickly reverse & remand those rather than basically hearing the same case over again?


I hate to be Mr. Pessimist,but it must be said all the same:attaching concealed carry to the 2nd Amendment as a fundamental right just ain't gonna fly.Our culture is to regressive for a lower court to do anything different than observe the status quo.That norm is this:basically,you can own a gun AT HOME as an exercise of your 2nd Amendment rights,but once you cross the property line you're in the public domain,where Big Government has the " duty" to ensure public safety at the expense of individual rights if the same government deems it necessary.

Since public safety is a "government prerogative" ,it can regulate gun use and possession all the way up to a complete CCW ban if it feels the need. If a total prohibition akin to Illinois' passes legal muster, then naturally discretionary issue becomes immune to legal challenge. Equal rights and treatment under the law becomes an irrelevant canard when carrying in public is a government issued privilege instead of a codified right as gun ownership at home is.

Then what exactly does "bear arms" refer to? I believe SCOTUS will say banning concealed carry is just fine...... as long as alternative forms of carry for all law abiding people are available.

OleCuss
11-27-2012, 11:20 AM
I hate to be Mr. Pessimist,but it must be said all the same:attaching concealed carry to the 2nd Amendment as a fundamental right just ain't gonna fly.Our culture is to regressive for a lower court to do anything different than observe the status quo.That norm is this:basically,you can own a gun AT HOME as an exercise of your 2nd Amendment rights,but once you cross the property line you're in the public domain,where Big Government has the " duty" to ensure public safety at the expense of individual rights if the same government deems it necessary.

Since public safety is a "government prerogative" ,it can regulate gun use and possession all the way up to a complete CCW ban if it feels the need. If a total prohibition akin to Illinois' passes legal muster, then naturally discretionary issue becomes immune to legal challenge. Equal rights and treatment under the law becomes an irrelevant canard when carrying in public is a government issued privilege instead of a codified right as gun ownership at home is.

I think that as the SCOTUS is currently constituted that you are wrong. There was obvious interest last session in taking a case to clean things up. The cases, however, were criminal and not clean.

The "Heller 5" seems likely to take a case and to issue a ruling which will be more consistent with the proper exercise of our rights than the circuit courts have been willing to allow. It won't be as good as I would like, but it is difficult to read Heller 1 and McDonald without thinking that they wanted a more robust right to be recognized.

IVC
11-27-2012, 11:38 AM
Equal rights and treatment under the law becomes an irrelevant canard when carrying in public is a government issued privilege instead of a codified right as gun ownership at home is.

Not really. If it worked that way, there would still be segregation in some parts of the deep south. Equal protection is 14A and is independent of any 2A argument.

If the rest of your argument is to stand, the state would have to ban carry completely, or allow similar people to carry regardless of their political connections.

SilverTauron
11-27-2012, 11:40 AM
The "Heller 5" seems likely to take a case and to issue a ruling which will be more consistent with the proper exercise of our rights than the circuit courts have been willing to allow. It won't be as good as I would like, but it is difficult to read Heller 1 and McDonald without thinking that they wanted a more robust right to be recognized.

"Robust" is in the eye of the beholder. The "Heller 5" may be interested in taking a carry case so as to clarify what the " well regulated" portion of the 2nd Amendment precisely means. This can be anything from carry open & concealed being an absolute civil right, to concealed carry being a government issued privilege subject to unlimited regulation at State, local, and Federal levels in the name of public security.




Then what exactly does "bear arms" refer to? I believe SCOTUS will say banning concealed carry is just fine...... as long as alternative forms of carry for all law abiding people are available.

I doubt they care about alternative forms of anything. Like it or not the judicial precedent is that public safety is a government prerogative-and few things are more relevant to public safety than the carrying of personal weapons. A consistent ruling is also impossible because of cultural differences between the states; a ruling of absolute carry rights will royally offend millions of urban people and force the rewrite of a metric sh-t ton of gun regulations.

By comparison, a ruling that A) states can determine the matter at their discretion or B) carry nationwide is an activity subject to regulation without limit due to the "well regulated militia" clause maintains the status quo, upsets fewer people,and clarifies the issue .

Its relevant to note that culturally speaking VERY few people actually want carry to be considered a civil right in the same manner that gun ownership period is; the theme being that while a rifle over the fireplace is kosher, that same gun owner better ask permission from SOMEONE before walking out the door with a pistol. Heck, many gun owners believe CCW shouldn't even be an option without a state mandated training process-and a SCOTUS ruling for absolute carry rights would render such regs unconstitutional.

SilverTauron
11-27-2012, 11:47 AM
Not really. If it worked that way, there would still be segregation in some parts of the deep south. Equal protection is 14A and is independent of any 2A argument. .

Good point , and this is true in the subject of civil rights law.

However,I direct you to the current situation at the University of Colorado where gun owners very much are "segregated" from the rest of the student body by being compelled to stay in a separate dormitory.

Another example are weapons permits in NYC. Wealthy people and politically connected residents can obtain CCW permits quite easily, while the average New Yorker has no chance in he-l of ever getting one.

Where firearms are concerned, it would seem "equal protection" is all but lip service.




If the rest of your argument is to stand, the state would have to ban carry completely, or allow similar people to carry regardless of their political connections.

A simple way out of this conundrum would be to punt it back as a states rights issue. Put simply SCOTUS says its a state's right to decide how its residents define the right to keep and bear arms, and that's that. Places which respect the RKBA will of course continue as usual, while repressive regimes in NJ and California will hit the gas pedal on IL-style CCW bans. Note carefully that in Illinois politicians are deputized as "reserve officers" so as to dodge the state carry prohibition.

IVC
11-27-2012, 11:55 AM
Its relevant to note that culturally speaking VERY few people actually want carry to be considered a civil right in the same manner that gun ownership period is; the theme being that while a rifle over the fireplace is kosher, that same gun owner better ask permission from SOMEONE before walking out the door with a pistol.

The point of civil rights is that it doesn't matter what people think.

Arguably more important consequence of 2A being a recognized civil right is that those who tend to support and talk about civil rights the most also tend to hate guns and the gun culture the most. The same irony as when Google complains China is restricting them, while at the same time arbitrarily restricting gun sales themselves.

It's just a matter of time before this hypocrisy becomes too obvious to those who have "cultural unacceptance" of concepts they don't like, while pretending to be civil rights activists and open to all ideas.

IVC
11-27-2012, 12:00 PM
However,I direct you to the current situation at the University of Colorado where gun owners very much are "segregated" from the rest of the student body by being compelled to stay in a separate dormitory.

Patience. This is an extremely new development and it has already received a lot of attention precisely for the "segregation" aspect. It takes time to untangle a big mess.

Note carefully that in Illinois politicians are deputized as "reserve officers" so as to dodge the state carry prohibition.

Heh. Look at the Ajax thread about "reserve officers" in Montana as a way to use LEOSA and carry in all 50 states. Funny how humans always find a way to get around an injustice, even if they pretend publicly to support it...

AyatollahGondola
11-27-2012, 12:05 PM
A member of the "right" wrote this terrible opinion, despite indicating at oral argument that he agreed with us.

The higher a person achieves in appointed or elected position, the less significant their personal past affiliations and stated beliefs become. Even the great messiah obama himself has disappointed his many followers and supporters at "people" level by enabling big banks and finance institutions, furthering the war(s), and signing bills into law like NDAA. And his wishy washy words on gay marriage. Gun rights too for that matter.
The power at the top at this point, although limited in size, is positioned like a great lever.

yellowfin
11-27-2012, 12:06 PM
a ruling of absolute carry rights will royally offend millions of urban people and force the rewrite of a metric sh-t ton of gun regulations. And that's supposed to be a bad thing? Screw them. A lot of people were offended by negation of lots of laws by court decision, so only now do they care?

stix213
11-27-2012, 12:09 PM
I doubt they care about alternative forms of anything. Like it or not the judicial precedent is that public safety is a government prerogative-and few things are more relevant to public safety than the carrying of personal weapons. A consistent ruling is also impossible because of cultural differences between the states; a ruling of absolute carry rights will royally offend millions of urban people and force the rewrite of a metric sh-t ton of gun regulations.

By comparison, a ruling that A) states can determine the matter at their discretion or B) carry nationwide is an activity subject to regulation without limit due to the "well regulated militia" clause maintains the status quo, upsets fewer people,and clarifies the issue .

Its relevant to note that culturally speaking VERY few people actually want carry to be considered a civil right in the same manner that gun ownership period is; the theme being that while a rifle over the fireplace is kosher, that same gun owner better ask permission from SOMEONE before walking out the door with a pistol. Heck, many gun owners believe CCW shouldn't even be an option without a state mandated training process-and a SCOTUS ruling for absolute carry rights would render such regs unconstitutional.

Allowing blacks into white only schools and to sit at the front of the bus offended more people than carry rights will, it still happened, and it forced a rewrite of plenty of laws.

NotEnufGarage
11-27-2012, 12:36 PM
There's still time to squeak one more win out of them. But after that, you're right, we're screwed.

Kennedy or Scalia would need to retire or die for it to be a problem for us. I think Ginsberg or Breyer retiring or passing away (most likely for Ginsberg) in the next 4 years is much more likely. Granted, the replacement will more than likely be the most politically leftist justice ever to serve.

SilverTauron
11-27-2012, 12:40 PM
Allowing blacks into white only schools and to sit at the front of the bus offended more people than carry rights will, it still happened, and it forced a rewrite of plenty of laws.

....after coming >< close to Civil War #2. The governor of Arkansas-a Democrat by the way-ordered the state national guard to block black students entering Little Rock High School after the SCOTUS ruled in Brown vs Board of Education, prompting President Dwight Eisenhower to send the 101st Airborne in to restore lawful order.

Considering the intransigence of the anti-gun political lobby is just as strong as the segregationists' were in that time, assuming the SCOTUS ruled in favor of carry rights the only realistic way Sacramento, Albany, NYC, D.C.,Springfield , & Chicago would obey a carry ruling is at the point of a Federal gun

Somehow, I doubt Obama is inclined to send the US Army to those capitols when they rebel against the SCOTUS .

SilverTauron
11-27-2012, 12:45 PM
I said that everywhere I could. I certainly don't participate on internet forums only when they're California specific.

Of course, there were certainly plenty of supposedly pro-gun advocates out on forums with a national and international audience who were badmouthing Romney. So, you know, they won. Yay. When our gun rights go down the tubes, I'll bet they'll even have the unmitigated gall to claim they fought for those rights as hard as they could. But what they really are, are hypocrites, to put it mildly.

We need to abstain from the political commentary. Not only is it counterproductive its also pointless, because we already know millions of gun owning Americans voted for Obama. Put simply gun rights aren't a priority issue for most folks, who nowadays would just hand over the goods if the G-men came knocking tomorrow.

Incoming chest pounding molon laabe post in 5....4....3....2.....

Gray Peterson
11-27-2012, 2:14 PM
Back on topic, is there still time to appeal this to SCOTUS for a decision in 2013?

Yes. The chance of resolution just went way up.

hornswaggled
11-27-2012, 3:49 PM
McDonald is settled law. If it gets to SCOTUS, I'd imagine the lower court's failure to respect precedent would not be looked kindly upon.

Bhobbs
11-27-2012, 7:37 PM
McDonald is settled law. If it gets to SCOTUS, I'd imagine the lower court's failure to respect precedent would not be looked kindly upon.

AFAIK, there is no precedent on carry. McDonald set the precedent for owning a handgun in the home nationwide. Other than that, the 2A is open for interpretation.

If I'm wrong, which isn't unlikely, someone correct me and I'll go back to sitting in the corner. ;)

Librarian
11-27-2012, 7:38 PM
I go out for an afternoon errand and the thread goes off the rails.

In case you can't figure it out, this thread is about the court case.

Wanna talk about something else? Start your own thread.

jdberger
11-27-2012, 7:40 PM
I go out for an afternoon errand and the thread goes off the rails.

In case you can't figure it out, this thread is about the court case.

Wanna talk about something else? Start your own thread.

Boo!

Things were just starting to get interesting.

AyatollahGondola
11-27-2012, 7:56 PM
Put simply gun rights aren't a priority issue for most folks, who nowadays would just hand over the goods if the G-men came knocking tomorrow.


Or State troopers, as would be the case if it was decided that the federal government had no duty to intervene

Gray Peterson
11-27-2012, 8:05 PM
My questions are on the timing. I think a lot of us are not at all surprised by a loss.

Are they going to appeal in time to have a shot at getting cert for this session of SCOTUS?

Is it likely that they are going to ask for en banc resulting in further delay?

Just wondering. . .

The state cannot ask for en banc because they were affirmed entirely. The loser controls the appeal. It is Gura's choice of how to appeal now. We'll see how that works.

kcbrown
11-27-2012, 8:11 PM
So does this mean Kachalsky just jumped to the head of the pack and could even go before SCOTUS this session if we (Gura, etc) act quickly?


That's exactly what it means.



Do I detect a small amount of uncharacteristic optimism in your post KC? ;)


Only a bit. The "downside", if you could call it that, is that if we appeal this and get cert granted for this session, all the California carry cases will be stayed pending the SCOTUS decision. It'll be just the beginning of the interminable stays of those cases. The dynamic I speak of is this (http://calguns.net/calgunforum/showpost.php?p=9799572&postcount=32).

I have no idea if this case is better than Richards as regards a first-impression case on carry in front of SCOTUS. Regardless of whether Richards is the first to arrive there or not, SCOTUS will have to rule on the merits of Richards, guaranteed, for the right to carry in public to come into existence in California. It'll take further cases to actually cause it to materialize in California.



On all the other similar cases that will continue to be kicked up to SCOTUS after a "bear arms" decision, wouldn't SCOTUS likely just quickly reverse & remand those rather than basically hearing the same case over again?


I expect that's what they'll try, and if they simply GVR then they'll be forced to revisit those cases again and again until they rule on the merits (or deny cert and have the opposite of what they intend be encoded into circuit-level precedence). See NAACP v Alabama (http://en.wikipedia.org/wiki/National_Association_for_the_Advancement_of_Colore d_People_v._Alabama) for an example of the Court actually being forced to rule on the merits in that very same way during the civil rights movement. The circuit courts and state supreme courts will do exactly the same thing to us as Alabama did to the NAACP in that case.

kcbrown
11-27-2012, 8:26 PM
Heh. Look at the Ajax thread about "reserve officers" in Montana as a way to use LEOSA and carry in all 50 states. Funny how humans always find a way to get around an injustice, even if they pretend publicly to support it...

That effort will be neutered at the federal level. I will not say how that can be accomplished, but if the opposition has more than a couple of brain cells between them, it won't be hard for them to figure out how (hey, if I can do it, they certainly can). And no, the police unions, etc., will not have a problem with their "solution".

IVC
11-27-2012, 8:38 PM
Only a bit. The "downside", if you could call it that, is that if we appeal this and get cert granted for this session, all the California carry cases will be stayed pending the SCOTUS decision.

This type of delay is almost a given regardless of what happens elsewhere. We don't expect 9th circuit to give us anything meaningful, so all carry cases would anyway be used only to create circuit splits and to provide a pathway to SCOTUS. The faster we get there the better.

kcbrown
11-27-2012, 8:58 PM
This type of delay is almost a given regardless of what happens elsewhere. We don't expect 9th circuit to give us anything meaningful, so all carry cases would anyway be used only to create circuit splits and to provide a pathway to SCOTUS. The faster we get there the better.

Correct. But interminable stays pending SCOTUS action will have the effect of slowing us down drastically.

IVC
11-27-2012, 9:52 PM
Correct. But interminable stays pending SCOTUS action will have the effect of slowing us down drastically.

Not sure about that. There are four outcomes of any 9th case: (1) positive ruling; (2) negative ruling, opening ability to petition SCOTUS, (3) remanding and starting the process all over, or (4) staying pending anything.

A potential positive ruling is marginally affected by this precedent since 9th was unlikely to go that route regardless of the CA2. A negative ruling opens path to petition SCOTUS, and this remains a viable option. Remanding is unlikely when the question is constitutional and not procedural (if they did, it would be just a delay tactics that would be independent of this CA2 ruling). Finally, if it turns out that cases are stayed pending Kachalsky, it would imply that the cert was granted, so we got a carry case in front of SCOTUS anyway.

nicki
11-27-2012, 10:02 PM
Alan Gura will be in San Fran on Dec 6th, on a CCW case no less, so for those of you who have burning questions, make your way up to San Fran that day.

Please bear in mind that Alan lost at every level in the 7th circuit with the MacDonald case and the SCOTUS corrected their ways.

Any, since MacDonald the 7th gave us Ezzell.:43:

Perhaps the 2nd will change their ways after a SCOTUS smackdown.

Nicki

kcbrown
11-27-2012, 10:09 PM
Not sure about that. There are four outcomes of any 9th case: (1) positive ruling; (2) negative ruling, opening ability to petition SCOTUS, (3) remanding and starting the process all over, or (4) staying pending anything.

A potential positive ruling is marginally affected by this precedent since 9th was unlikely to go that route regardless of the CA2. A negative ruling opens path to petition SCOTUS, and this remains a viable option. Remanding is unlikely when the question is constitutional and not procedural (if they did, it would be just a delay tactics that would be independent of this CA2 ruling). Finally, if it turns out that cases are stayed pending Kachalsky, it would imply that the cert was granted, so we got a carry case in front of SCOTUS anyway.

I'm presuming that we get Kachalsky in front of SCOTUS and win it.

In that scenario, the 9th will stay our cases pending that ruling. Then, when the ruling is issued, they'll wait as long as they can to see if any other carry cases make it in front of SCOTUS. If any 2A case goes in front of SCOTUS at that point, they'll stay the case again. Lather, rinse, repeat until we get a SCOTUS session with no 2A cases in it. At that point, they'll either hand us a loss (but only after we petition SCOTUS to force the circuit to issue a ruling) or will remand to the district court with instructions that will cause the district court to hand us a loss (frankly, the possibility of the circuits remanding to the district courts is one I hadn't thought of, and introduces some significant additional delays that otherwise wouldn't be there).

Now, take the above and presume that all of the anti-gun circuits behave the same way. The only way a case gets before SCOTUS is either as a result of us forcing the circuit to issue a ruling or as a result of us lucking out and getting a panel that isn't so strongly anti-gun that they play games like that.


Remember: the circuit courts know that SCOTUS' stance on the 2nd Amendment is now time-limited thanks to Obama's election and the high probability of losing one of the Heller 5 within the next 4 years (http://calguns.net/calgunforum/showpost.php?p=9805345&postcount=49).

yellowfin
11-28-2012, 5:20 AM
The state cannot ask for en banc because they were affirmed entirely. The loser controls the appeal. It is Gura's choice of how to appeal now. We'll see how that works.I REALLY hope he doesn't even consider going en banc. That would be a costly quagmire that could have worse consequences in lost opportunity.

Paladin
11-28-2012, 6:39 AM
I REALLY hope he doesn't even consider going en banc. That would be a costly quagmire that could have worse consequences in lost opportunity.

Is it up to him, or does SCOTUS expect you to exhaust all your possible lower appeals court options before bothering them?

MODS: I hope you guys/gals tack these updates onto the "official" CGN court case threads linked to by CGF's Litigation webpage page.

Gray Peterson
11-28-2012, 7:38 AM
Is it up to him, or does SCOTUS expect you to exhaust all your possible lower appeals court options before bothering them?

MODS: I hope you guys/gals tack these updates onto the "official" CGN court case threads linked to by CGF's Litigation webpage page.

SCOTUS rules say that you can chose to appeal to SCOTUS after a bad 3 judge decision. A good lawyer always tells the public that he may choose to appeal using either route (en banc or SCOTUS), because that's good practice to say.

Remember also that Gura has case prepping for the CA9 carry cases in California next week. Remember that his appeal of McDonald after the 7th Circuit ruling was in record time (7 days, CA7 decided June 2nd, Cert petition was filed in June 9th).

stator
11-28-2012, 7:51 AM
SCOTUS is going down the tubes. They wont side for us any more.

I agree. Why many here continue to support Democrats and falsely confess their 2nd amendment rights are a priority is beyond me. Even the big names here are Democratic supporters.

We will exit these next four years of Obamation with the most hurtful to our liberties being:

1- SCOTUS ruled the taxing power of the federal government is boundless.
2- SCOTUS rules that regulating does not preempt rights.

It will be 50 to 100 years to undo that.

Paladin
11-28-2012, 7:53 AM
Remember also that Gura has case prepping for the CA9 carry cases in California next week. Remember that his appeal of McDonald after the 7th Circuit ruling was in record time (7 days, CA7 decided June 2nd, Cert petition was filed in June 9th).So, that's the long way of saying...

:twoweeks:

;)

Al Norris
11-28-2012, 8:21 AM
There are three things that Gura can do, at this moment.

Ask for reconsideration of the panel.
Ask for an en banc hearing.
Petition the SCOTUS for a grant of certiorari.

The first two items are generally done together in a single motion. IIRC, there is a 14 day time limit to file the motion. Considering that the CA2 very seldom accepts motions for en banc hearings, this would be a long shot. If accepted, Alan Gura runs the risk of a negative ruling with a well written decision (as opposed to this piece of circular writing).

If Gura decides to seek a petition of cert, he can attempt to get it before the Court in this years session. Or, he can take his time (he has until Feb. 27, 2013 to file) to craft a very well written brief, with the goal towards next years court session (and an early Oct. 2013 hearing date).

Understand, there are risks in carrying this case further. Alan Gura will necessarily be weighing those risks. The State of New York will continue to quantify this case as a concealed carry case, as opposed to Gura's general right to carry. This will be an obstacle, as the lower courts have assumed the State is correct and relegated Gura's actual case to footnotes. This will be no small feat to turn this around, at this stage.

Should Gura go for cert, and it is granted, the Court will not simply GVR the case. The Court will have to reach the merits and give some guidance to the lower courts before any such remand can be made.

A more likely scenario (should cert be sought and granted) would be for the Court to decide if public carry is close enough to the core right of self-defense, that the State law should fall. That's not as easy as it might seem to us, on first blush.

I believe that Justice Thomas and Justice Alito would be on our side. C.J. Roberts and Justice Scalia would lean towards our side, but would have to be convinced.

Justice Kennedy however, would have to be coerced. Such coercion would necessarily entail Judge Posner (CA7 - Moore/Sheppard) issuing a well written decision in favor of the SAF/NRA. Gura holding back (in the hopes of a favorable CA7 decision) in filing for cert is a tactical response I believe he will make.

Judge Posner is very well respected in legal circles, even within the Supreme Court. A decision written by him (Posner) striking the IL law and stating that citizens must be allowed some manner of carry for self-defense, would go a long way towards turning the current case from one of concealed carry alone, back to allowable carry in some form. This would probably move Justice Kennedy over to our side.

Too, should a favorable decision be given at the CA7, and IL moves for cert, the odds for Kalchalsky would have just increased.

There are several other scenarios, depending upon what the CA4 and CA3 decide. So, at this point in time, the dynamics are pretty fluid.

Gray Peterson
11-28-2012, 8:29 AM
I agree. Why many here continue to support Democrats and falsely confess their 2nd amendment rights are a priority is beyond me. Even the big names here are Democratic supporters.

If you're attempting to bring up the $500 canard with Gene again, he never voted for the guy, and it was before he actually filed papers for the Presidency.

If you're speaking of the Ami Bera/Dan Lungren situation, Lungren grabbed guns as AG & stabbed the NRA & gun owners in the back when he sponsored an amendment to the reciprocity bill like he was supporting it, and then voted against HR 822 in 2011. He also engaged in illegal activity against an issuing authority (Chief Byrd of Isleton, CA in 1995-1996 when he was destroying the Sacramento Sheriff's carry licensing cartel). Simply put, he was anti-gun, has been anti-gun for the last 30 years, and major supporter of police state tactics. The guy actually suggested during his first stint in Congress that anyone doing a service a person "who the person should have known is a drug dealer" should lose their business, using civil forfeiture where the person having their business seized has to prove their innocence rather than the government having to prove their guilt.

Support has been given to specific state Democratic Legislators when they're willing to run small-change bills such as fixing the carry licensing system provisions (steamlining application processes & eliminating insurance requirements directly in the statute), whereas the state Republican legislators would rather showboat and introduce bills solely as an partisan attack vector rather than accomplishing anything.

We will exit these next four years of Obamation with the most hurtful to our liberties being:

1- SCOTUS ruled the taxing power of the federal government is boundless.

We already knew this. What little rules in the constitution which regulated taxes were swept aside by the 16th amendment a century ago.

2- SCOTUS rules that regulating does not preempt rights.

It will be 50 to 100 years to undo that.

Your statement is nonsense. There's no such thing as absolute rights. A lot of us do not give a damn about your continual gnashing of teeth in re the Obamacare ruling, and do not view it as an omen that one of the Heller 5 would turncoat on us when carry is presented.

BTW, did you ever make good on your promise?

Al Norris
11-28-2012, 10:01 AM
With all that I wrote, above, in mind, see: N.Y.'s Concealed Gun Licensing Scheme Is Upheld by Circuit (http://www.ctlawtribune.com/PubArticleCT.jsp?id=1202579515171&NYs_Concealed_Gun_Licensing_Scheme_Is_Upheld_by_Ci rcuit&slreturn=20121028114925)

Maestro Pistolero
11-28-2012, 12:42 PM
With all that I wrote, above, in mind, see: N.Y.'s Concealed Gun Licensing Scheme Is Upheld by Circuit (http://www.ctlawtribune.com/PubArticleCT.jsp?id=1202579515171&NYs_Concealed_Gun_Licensing_Scheme_Is_Upheld_by_Ci rcuit&slreturn=20121028114925)

My comment on that forum:


Rest assured the fat lady has not yet sung. Would the Supreme Court dare say that the Second Amendment was codified to protect the right of indoor militias? Unlikely, even given its current makeup. Quite obviously, the use of firearms for whatever lawful purpose is primarily an outdoor activity.

The government's interest in public safety cannot reasonably extend to licensed, screened, trained individuals whose actual safety record and lack of criminal behavior should earn the envy of the modern world.

Indeed, if the crime rate of weapon permit holders could be magically superimposed on the rest of this country, we might mistakenly think we woke up in Switzerland, which has a microscopically low rate of violence and crime. Yet Swiss citizens typically store government issued machine guns and a caches of ammunition in their homes, and often transport them to and from firing ranges slung over their backs on bicycles. No one even blinks, let alone runs for cover.

Nowhere in this case, nor in any similar lower court cases denying of the right to self-defense, has any meaningful analysis of the actual public safety risk been conducted. The idea that licensed, trained individuals, screened for prohibitive factors, present a prima facia threat to public safety has been left unchallenged. In the absence of such an inquiry, the foundation of such decisions is completely hollow.

Indeed, the several credible studies in existence indicate that carry licensing schemes have a significant negative affect on crime rates, including gun crime, rape, and assault.

In the worst-cases, licensed gun-toters had no effect on crime rates one way or the other.

However counter-intuitive the notion that armed, law-abiding citizen make us safer, it must be fully examined before any strong government interest in public safety can be credibly asserted.

See http://en.wikipedia.org/wiki/Gary_Kleck http://en.wikipedia.org/wiki/John_Lott

nicki
11-28-2012, 12:49 PM
There are carry cases all over the country, we eventually will get a "split circuit".

The 9th circuit district courts already recognized that we have some right to carry in public(open and unloaded) and used that to avoid ruling on our CCW permit system.

Of course our state legislature "corrected" that problem with AB144 so now our appeals court panel can't say that our CCW laws are constitutional because we still have the ability to open carry.

Reading through the reading, that panel focused that the right to keep and bear arms only applies in the "home".

That "self defense" only applies to "special folks" that can show a need.

It is interesting that one of the plantiffs was a "transgendered individual" who wanted a gun for generalized "self defense".

This one is a "brilliant move" on the part of Alan Gura because one of his plantiffs is in a group of the population that has the highest rate of violence against them.

In particular, the vast majority of hate crimes violence occurs OUTSIDE the home and the Federal government and many state governments wouldn't have passed hate crime legislation if there wasn't a problem with violence.

I hope that Alan will be able to join us for the luncheon next week on Dec 6th because I definitely will talk with him on this because this is the sleeper on this case.

Nicki

Maestro Pistolero
11-28-2012, 1:07 PM
I didn't realize that SAF lost standing in this case. How the hell did that happen?

wildhawker
11-28-2012, 2:41 PM
There are carry cases all over the country, we eventually will get a "split circuit".

Just a note that it's "circuit split."

I didn't realize that SAF lost standing in this case. How the hell did that happen?

What's more important? Getting the case up to SCOTUS ASAP or appealing a bad decision on standing, going back down, and starting at virtually zero again?

-Brandon

Gray Peterson
11-28-2012, 3:31 PM
I didn't realize that SAF lost standing in this case. How the hell did that happen?

Irrelevant & immaterial.

OleCuss
11-28-2012, 4:28 PM
Irrelevant & immaterial.

You may be right, but I persist in thinking that Maestro asked a good question.

If legitimate standing is being denied and it sticks, then we may have further standing problems in the future.

However, for this particular case I understand that our team basically told the court that SAF's standing should have been recognized but that they weren't going to fight the issue because the case could readily advance whether or not SAF's standing was recognized.

This means that the adverse ruling on standing really has little to no precedential value and probably won't be a significant problem in the future.

If I am wrong I'm sure someone will slap me around a little.

Gray Peterson
11-28-2012, 4:39 PM
You may be right, but I persist in thinking that Maestro asked a good question.

If legitimate standing is being denied and it sticks, then we may have further standing problems in the future.

However, for this particular case I understand that our team basically told the court that SAF's standing should have been recognized but that they weren't going to fight the issue because the case could readily advance whether or not SAF's standing was recognized.

This means that the adverse ruling on standing really has little to no precedential value and probably won't be a significant problem in the future.

If I am wrong I'm sure someone will slap me around a little.

We have numerous individual plaintiffs for a reason. Once the right is actually recognized, the organization standing is easy to do.

hoffmang
11-28-2012, 7:37 PM
Justice Kennedy however, would have to be coerced. Such coercion would necessarily entail Judge Posner (CA7 - Moore/Sheppard) issuing a well written decision in favor of the SAF/NRA. Gura holding back (in the hopes of a favorable CA7 decision) in filing for cert is a tactical response I believe he will make.
When Justice Kennedy was just a CA-9 Judge he already voted to hold may issue up to equal protection scrutiny in Guillory v. Gates.
You may be right, but I persist in thinking that Maestro asked a good question.

If legitimate standing is being denied and it sticks, then we may have further standing problems in the future.

However, for this particular case I understand that our team basically told the court that SAF's standing should have been recognized but that they weren't going to fight the issue because the case could readily advance whether or not SAF's standing was recognized.

This means that the adverse ruling on standing really has little to no precedential value and probably won't be a significant problem in the future.

If I am wrong I'm sure someone will slap me around a little.

SAF's standing here is irrelevant. Every time SAF's standing has been directly at issue, the 7th Circuit and the DC Circuit courts of appeals have held that SAF has standing (Ezell, Dearth.) CA-4 is determining standing for SAF right now in Lane, but even the 5th Circuit held NRA had standing as it lost its 18-20 year olds purchasing handguns case. The clear majority of circuits are ruling that SAF and NRA have standing and if one does not that's likely to get Cert.

Even this panel in CA-2 is doing the "right thing" in that it is irrelevant whether SAF has standing in this case. It does because it's members - who are the actual plaintiffs - certainly do.

-Gene

Maestro Pistolero
11-28-2012, 8:56 PM
Maestro Pistolero:I didn't realize that SAF lost standing in this case. How the hell did that happen?

Gray Peterson:Irrelevant & immaterial.

Gene Hoffman:SAF's standing here is irrelevant.

It may well be irrelevant to the outcome, but I insist it is WTF-worthy.

hoffmang
11-28-2012, 9:51 PM
It may well be irrelevant to the outcome, but I insist it is WTF-worthy.

Again, and with reinforcement - this panel (Kachalsky) knows better than to say SAF doesn't have standing. Instead it is saying correctly that it doesn't matter as at least one of the plaintiffs does have standing. Think of it as them saying, "well, the lower courts are even more full of it than us, but we're going to avoid that pile of steaming BS because it would further undermine our steaming pile of BS for us to address that issue."

To, even this panel, it's so wrong that it's not even worth addressing because their decision does nothing to undermine SAF or any other .org's standing at all.

-Gene

Maestro Pistolero
11-28-2012, 10:16 PM
Again, and with reinforcement - this panel (Kachalsky) knows better than to say SAF doesn't have standing. Instead it is saying correctly that it doesn't matter as at least one of the plaintiffs does have standing. Think of it as them saying, "well, the lower courts are even more full of it than us, but we're going to avoid that pile of steaming BS because it would further undermine our steaming pile of BS for us to address that issue."


Fair enough. Steaming pile indeed. Can't wait 'til we are singing this:

7TNecaCESbE

Al Norris
11-29-2012, 7:00 AM
Justice Kennedy however, would have to be coerced. Such coercion would necessarily entail Judge Posner (CA7 - Moore/Sheppard) issuing a well written decision in favor of the SAF/NRA. Gura holding back (in the hopes of a favorable CA7 decision) in filing for cert is a tactical response I believe he will make.When Justice Kennedy was just a CA-9 Judge he already voted to hold may issue up to equal protection scrutiny in Guillory v. Gates.

Gene, I disagree.

It doesn't matter what he did before he was appointed to the Supreme Court. What matters is how he has sided since. More on point, how Justice Kennedy has voted since the passing of C.J. Rehnquist and A.J. O'Conner's leaving.

For all the blathering of the liberal and conservative members of the Court, it is Justice Kennedy that drives this bus. That is something that every appellate attorney knows.

bussda
11-29-2012, 7:37 AM
I didn't realize that SAF lost standing in this case. How the hell did that happen?

It is my belief this is a tactic to limit the scope of the case. When SAF or another group is denied standing, the court can then focus solely on the plaintiff, and find grounds to dismiss the case, because the other group can argue more generally, where an individual is limited to his singular issues.

Net effect is to delay the case.

Also see: http://www.calguns.net/calgunforum/showthread.php?t=627300

hoffmang
11-30-2012, 8:58 PM
Gene, I disagree.

It doesn't matter what he did before he was appointed to the Supreme Court. What matters is how he has sided since. More on point, how Justice Kennedy has voted since the passing of C.J. Rehnquist and A.J. O'Conner's leaving.

For all the blathering of the liberal and conservative members of the Court, it is Justice Kennedy that drives this bus. That is something that every appellate attorney knows.

Are you really opposing the idea that Justice "Grizzly Bears" Kennedy isn't pro-carry? Grizzly Bears are not "in the home." It may be worth re-listening to the oral argument in Heller.

-Gene

Maestro Pistolero
11-30-2012, 9:55 PM
Are you really opposing the idea that Justice "Grizzly Bears" Kennedy isn't pro-carry? Grizzly Bears are not "in the home." It may be worth re-listening to the oral argument in Heller.

-Gene

Huh? Please dumb that one down for the rest of us.

wildhawker
11-30-2012, 10:08 PM
Huh? Please dumb that one down for the rest of us.

Listen to/read the Heller orals.

-Brandon

safewaysecurity
11-30-2012, 10:17 PM
Huh? Please dumb that one down for the rest of us.

He talks about how grizzly bears were around during the time of the founding and people needed guns to defend against bears in the wild. I don't know how that would transfer to an urban carry case where they could argue that carry is permitted for hunters in areas where bears would be present.

stix213
11-30-2012, 11:18 PM
He talks about how grizzly bears were around during the time of the founding and people needed guns to defend against bears in the wild. I don't know how that would transfer to an urban carry case where they could argue that carry is permitted for hunters in areas where bears would be present.

Tell that to the guy texting....

WYsAkjfXxzU

safewaysecurity
11-30-2012, 11:24 PM
Tell that to the guy texting....

WYsAkjfXxzU

That was hilarious. I'm sure if he was able to carry his little pocket .380 he would have been able to defend himself from that thing. But in all seriousness handguns in urban settings are not to defend yourself against grizzly bears is my point. I didn't like when Justice Kennedy talked about bears instead of Native Americans or outlaws.

Al Norris
12-01-2012, 5:13 AM
Are you really opposing the idea that Justice "Grizzly Bears" Kennedy isn't pro-carry? Grizzly Bears are not "in the home." It may be worth re-listening to the oral argument in Heller.

-Gene

Are you really opposing the idea that Justice Scalia tailored the Heller decision in the manner he did, to retain Justice Kennedy's vote?

kcbrown
12-01-2012, 6:49 AM
Are you really opposing the idea that Justice Scalia tailored the Heller decision in the manner he did, to retain Justice Kennedy's vote?

Completely agree. But despite being tailored in that way, a plain reading of Heller quite clearly shows that the right to keep and bear arms exists in public, because otherwise there would be no need for a "sensitive places" doctrine.

The real problem, of course, is that the antis are going to attempt to argue that urban areas are "sensitive places" in their entirety, but a plain reading of Heller dispenses with that as well, for it calls out small and specific places that are generally deep within urban areas as being "sensitive".


No, the bottom line is this, and it's where I think Heller got it very wrong: the need for self-defense is most acute wherever you happen to be put in mortal danger by a bad guy, not at any particular place or time. That very observation quite clearly reveals the core right as existing in public, in the home, or anywhere else where one's defense has not been made an explicit and immediately available duty on the part of whoever is responsible for the place one finds himself.

That last has very specific implications, of course. It's not sufficient merely for there to be armed guards in the "sensitive place" -- they must be present everywhere one might go in the place in question, because the need for defense is immediate when it arises.


These are things that may need to be explained to the court. That self-defense is the core of the 2nd Amendment as stated by the Supreme Court has huge implications that will give the Court nowhere to logically go, as per the above, if it is to be consistent in its rulings.

A change of the composition of the Court during Obama's watch will remove what little desire it has to issue consistent rulings. Obama's reelection has made time of the greatest essence.

Mulay El Raisuli
12-01-2012, 6:52 AM
Regardless, it is very heartening that the 2nd Circuit gave us the "loss" and thus give us the opportunity to appeal to SCOTUS for a ruling. A certain quote comes to mind on this. What was it? Ah, yes: "please, please don't throw me into that briar patch!". :43:


Yes it is. And there's much to like in this case. The 2nd cited all the 19th cases that I'm so very fond of (Nunn, etc), AND they quote the cases that counter those examples. Thus giving SCOTUS a clear-cut alternative to choose from.


Alan Gura will be in San Fran on Dec 6th, on a CCW case no less, so for those of you who have burning questions, make your way up to San Fran that day.

Please bear in mind that Alan lost at every level in the 7th circuit with the MacDonald case and the SCOTUS corrected their ways.

Any, since MacDonald the 7th gave us Ezzell.:43:

Perhaps the 2nd will change their ways after a SCOTUS smackdown.

Nicki


Yup. And I'm expecting that to be the case all over once the mega-smackdown gets delivered.

Good news also for New Yorkers, the words of the 2nd here do seem to spell doom for NY City's prohibition on guns in the home. A future victory there won't be as good as things good be, but it would certainly help.


The Raisuli

IVC
12-01-2012, 8:59 AM
...a plain reading of Heller quite clearly shows that the right to keep and bear arms exists in public...

What gets lost in looking at Heller this way is that the Heller decision exists against a backdrop of legal precedents and legislative activity that provide the framework for the courts. This framework for the longest time used implied "collective interpretation" incorrectly derived from Miller and never really challenged until Heller.

If we look at the legal landscape objectively, Heller provides guidance, but the framework still needs to be built. In that respect, Heller indeed is "in the home" precedent, with a clear guidance for the future cases, but those have to be fought and won before they become the framework. Lower courts will change when the framework changes.

Maestro Pistolero
12-01-2012, 9:04 AM
No, the bottom line is this, and it's where I think Heller got it very wrong: the need for self-defense is most acute wherever you happen to be put in mortal danger by a bad guy, not at any particular place or timeDing ding, a winner. This is a fact which must be argued. It can be sensitively contexted so as not to appear to undermine the concept of the sancitity of the home to which Heller was apparently referring. It is more true that the need is less acute in the home, but merely more historically protected. Far more lethal attacks occur outside the home where there are usually no doors and walls that must first be breached.

SilverTauron
12-01-2012, 9:04 AM
Completely agree. But despite being tailored in that way, a plain reading of Heller quite clearly shows that the right to keep and bear arms exists in public, because otherwise there would be no need for a "sensitive places" doctrine.

The real problem, of course, is that the antis are going to attempt to argue that urban areas are "sensitive places" in their entirety, but a plain reading of Heller dispenses with that as well, for it calls out small and specific places that are generally deep within urban areas as being "sensitive".


No, the bottom line is this, and it's where I think Heller got it very wrong: the need for self-defense is most acute wherever you happen to be put in mortal danger by a bad guy, not at any particular place or time. That very observation quite clearly reveals the core right as existing in public, in the home, or anywhere else where one's defense has not been made an explicit and immediately available duty on the part of whoever is responsible for the place one finds himself.

That last has very specific implications, of course. It's not sufficient merely for there to be armed guards in the "sensitive place" -- they must be present everywhere one might go in the place in question, because the need for defense is immediate when it arises.



The problem isn't the need for self defense, per se. The issue with regard to carry outside the home is whether or not the Government's mandate to enforce public safety supersedes the 2nd Amendment right to individually keep and bear arms.

Our side will argue that the civil rights to keep and bear arms outside the home isn't invalidated by leaving it. The anti's will say that plenty of civil rights are regulated in public, and as such the 2nd Amendment is subject to restriction in the public domain.

kcbrown
12-01-2012, 9:32 AM
What gets lost in looking at Heller this way is that the Heller decision exists against a backdrop of legal precedents and legislative activity that provide the framework for the courts. This framework for the longest time used implied "collective interpretation" incorrectly derived from Miller and never really challenged until Heller.

If we look at the legal landscape objectively, Heller provides guidance, but the framework still needs to be built. In that respect, Heller indeed is "in the home" precedent, with a clear guidance for the future cases, but those have to be fought and won before they become the framework. Lower courts will change when the framework changes.

For the above to be strictly true, the "sensitive places" discussion must be regarded as dictum, and not an essential part of the ruling itself.

press1280
12-01-2012, 9:33 AM
The problem isn't the need for self defense, per se. The issue with regard to carry outside the home is whether or not the Government's mandate to enforce public safety supersedes the 2nd Amendment right to individually keep and bear arms.

Our side will argue that the civil rights to keep and bear arms outside the home isn't invalidated by leaving it. The anti's will say that plenty of civil rights are regulated in public, and as such the 2nd Amendment is subject to restriction in the public domain.

SCOTUS will have to set the courts straight on the difference between "regulating" and de facto bans. Open carry over concealed, licensing w/training, sensitive places off limits are examples of regulating. Allowing the government to pick and choose who gets the licenses is another matter.

kcbrown
12-01-2012, 9:36 AM
The problem isn't the need for self defense, per se. The issue with regard to carry outside the home is whether or not the Government's mandate to enforce public safety supersedes the 2nd Amendment right to individually keep and bear arms.


The problem with the above line of reasoning is that in the context of the "public safety" mandate, the need for self-defense in public arises directly from the failure of the state in its mandate to enforce public safety. And the Supreme Court has already knocked the "public safety" angle off the table by ruling that the police are not mandated to protect anyone -- they do so strictly by choice.

Which is to say, the "mandate" of the state to enforce public safety is no such thing, as per Supreme Court jurisprudence. Since enforcement of public safety is optional for the state, it follows that the state has neither the means nor the mandate to come to the rescue of someone whose life is in immediate peril, and thus to uphold the right to life. That means it is left to us as individuals, and that is where the self-defense core of the right to keep and bear arms comes into play. Because the state cannot and will not uphold the right to life when the need for such is at its greatest, we must do so for ourselves, and the 2nd Amendment as an individual right arises from that need and right.

More to the point, the state does not have the legitimate power to interfere with the right to life of the law-abiding population, but that is precisely what it is doing when it interferes with the right to keep and bear arms.



Our side will argue that the civil rights to keep and bear arms outside the home isn't invalidated by leaving it. The anti's will say that plenty of civil rights are regulated in public, and as such the 2nd Amendment is subject to restriction in the public domain.

It probably doesn't serve our purposes well to attempt to argue about the right in a vacuum. The right exists for a reason: because we have the right to live. The state's denial of our right to meaningful self-defense is the same as its denial of our right to life, for the latter does not exist without the former.

press1280
12-01-2012, 9:39 AM
When Justice Kennedy was just a CA-9 Judge he already voted to hold may issue up to equal protection scrutiny in Guillory v. Gates.




-Gene


On that note, our side will still be pushing the equal protection in some manner, correct?
Would this be useful in other cases where the info regarding license issuance is NOT open to the public?

Maestro Pistolero
12-01-2012, 9:42 AM
Listen to/read the Heller orals.

-Brandon

safewaysecurity:He talks about how grizzly bears were around during the time of the founding and people needed guns to defend against bears in the wild. I don't know how that would transfer to an urban carry case where they could argue that carry is permitted for hunters in areas where bears would be present.

Thanks for a responsive post, safewaysecurity. Having read and listened to the Heller orals awhile back, I now recall the reference.

I guess I really am slow today, because I still don't see how Al Norris's point that Kennedy 'drives the bus' sits in conflict with the fact that Kennedy is a cautious, if not reluctant participant in the restoration of the right.

AyatollahGondola
12-01-2012, 9:59 AM
It probably doesn't serve our purposes well to attempt to argue about the right in a vacuum. The right exists for a reason: because we have the right to live. The state's denial of our right to meaningful self-defense is the same as its denial of our right to life, for the latter does not exist without the former.

the court will split the hairs of that premise to achieve a collective goal. ie firing a gun in your self defense in a crowded apartment complex risks the lives of 14 un-involved people expecting a degree of safety in their own home. I believe this will be coming soon

IVC
12-01-2012, 10:20 AM
For the above to be strictly true, the "sensitive places" discussion must be regarded as dictum, and not an essential part of the ruling itself.

We are actively looking for the first "carry" case in front of SCOTUS. The sensitive places should be addressed at that time, assuming the court doesn't deliberately avoid the question, which would be hard to do if the court is about to define the applicability of the "outside the home."

IVC
12-01-2012, 10:22 AM
On that note, our side will still be pushing the equal protection in some manner, correct?
Would this be useful in other cases where the info regarding license issuance is NOT open to the public?

Correct, but this is a 14A issue that is in many ways independent of 2A. Even if we got all the loses at the Supreme Court level, the Equal Protection clause would remain and the state would have to either issue LTC equally, or cease issuing them altogether.

M. D. Van Norman
12-01-2012, 11:03 AM
the court will split the hairs of that premise to achieve a collective goal. ie firing a gun in your self defense in a crowded apartment complex risks the lives of 14 un-involved people expecting a degree of safety in their own home.…

Foreclosing the act of armed self-defense by common citizens in public environments would similarly disarm the police. Such a conclusion would be poor public policy and is very unlikely though not impossible.

IVC
12-01-2012, 11:07 AM
Been attempted in UK. They disarmed their police.

Maestro Pistolero
12-01-2012, 11:33 AM
Foreclosing the act of armed self-defense by common citizens in public environments would similarly disarm the police.I don't agree. Police carry right now in nearly every environment that might be considered sensitive, including for many federal agents, on board commercial aircraft.

Police will never be held to the same standard as citizens. Laws are enforced through the use of force, up to and including lethal force at significant risk to the public (especially, it seems, in NYC recently). Society tolerates that risk in return for the perception of security and order.

SilverTauron
12-01-2012, 11:40 AM
Correct, but this is a 14A issue that is in many ways independent of 2A. Even if we got all the loses at the Supreme Court level, the Equal Protection clause would remain and the state would have to either issue LTC equally, or cease issuing them altogether.

You're an anti-gun politician with a voting base that considers the entire US Constitution to be 18th Century cow dung. The High Court is offering you two options: Ban Concealed Carry equally, or honor Shall Issue CCW across your jurisdiction.

Given those choices, there's only one move to make.Two actually. One, you cancel all CCW permits outstanding immediately. The second act is to grant reserve LEO status to your large campaign donors and benefactors.

Voila! Your subjects are happy, Cletus from Montana can't carry without threat of jail, and you stuck it to the gun lobby too.

M. D. Van Norman
12-01-2012, 11:49 AM
I don’t agree.…

It’s a legalistic argument. If the government abandons legalism for fiat and caprice, then none of this will matter.

Maestro Pistolero
12-01-2012, 12:01 PM
It’s a legalistic argument. If the government abandons legalism for fiat and caprice, then none of this will matter.

It would matter, because such arbitrary rule will need more than ever, a means of enforcement. That may well mean military rule, in which case you might be technically correct that the police could be disarmed, but the military would step into their place.

IVC
12-01-2012, 12:04 PM
Police will never be held to the same standard as citizens.

The idea was NOT to use "equal protection" in comparison to the police. It doesn't apply.

The idea is that the state would have to prove that there is no need for armed self defense in order to prevent general public from carrying, and the best way to prove it is to disarm the police. If there is really no threat, police don't need guns. If they do need guns, then their argument that the state has provided the necessary safety falls short.

Equal protection is used later, to prevent/exploit corruption inherent in the system.

IVC
12-01-2012, 12:09 PM
Voila! Your subjects are happy, Cletus from Montana can't carry without threat of jail, and you stuck it to the gun lobby too.

This generally doesn't work for civil rights.

You are discussing using *only* equal protection (14A) and rational basis. What we have is a civil right and heightened scrutiny in *addition* to the equal protection.

I know the scrutiny argument hasn't worked out great yet, but those were all lower courts addressing issues that were not explicitly established by the SCOTUS.

kcbrown
12-01-2012, 2:10 PM
The idea was NOT to use "equal protection" in comparison to the police. It doesn't apply.

The idea is that the state would have to prove that there is no need for armed self defense in order to prevent general public from carrying, and the best way to prove it is to disarm the police. If there is really no threat, police don't need guns. If they do need guns, then their argument that the state has provided the necessary safety falls short.


That doesn't work, because the state will counter that it is through the armed police that it achieves the goal of the citizenry not needing armed self-defense.

Of course, the very existence of crime that results in bodily injury and death negates that entire argument, but the courts (the 9th Circuit, at the very least) will ignore that because that is a matter of fact and not law...

IVC
12-01-2012, 2:23 PM
That doesn't work, because the state will counter that it is through the armed police that it achieves the goal of the citizenry not needing armed self-defense.

That's a slippery slope since the Supreme Court ruled several times that the police have no duty to protect citizens, hence the state cannot use the argument that the police (armed or not) provides protection to the citizenry.

Tarn_Helm
12-01-2012, 2:39 PM
That's a slippery slope since the Supreme Court ruled several times that the police have no duty to protect citizens, hence the state cannot use the argument that the police (armed or not) provides protection to the citizenry.

Subtle difference here:

Until the SCOTUS rules that all levels of government have a duty to allow us to protect ourselves, then the issue of LEA protection--or lack thereof--is irrelevant.

The key issue is this: Do all levels of government have a duty to allow us to protect ourselves--a duty derived from recognition of something implicit in the Second Amendment?

Such a duty or obligation on the government--from top to bottom, federal to local--could easily be argued to be within the "penumbra" of rights implicit in the Second Amendment.

This type of argument is not my invention.

See "Second Amendment Penumbras: Some Preliminary Observations (Final)," by Glenn Harlan Reynolds, University of Tennessee College of Law, in the February 9, 2012 Southern California Law Review, Vol. 85, No. 247, 2012; University of Tennessee Legal Studies Research Paper No. 169.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2002132

:cool:

kcbrown
12-01-2012, 3:02 PM
That's a slippery slope since the Supreme Court ruled several times that the police have no duty to protect citizens, hence the state cannot use the argument that the police (armed or not) provides protection to the citizenry.

Of course they can. Lack of duty to do something does not automatically imply that said something won't be done, only that it isn't something that must be done. The state can still choose to protect citizens even if it does not have the duty to do so.

Where this really heads is, of course, towards whether or not the people have the right to meaningful defense of their lives, whether it's self-provided or provided by the state. The Supreme Court has ruled that the people have the right to meaningful and effective self-defense by declaring it as being at the core of the 2nd Amendment, while also having ruled elsewhere that the state has no duty to provide meaningful defense of the lives of the citizenry. Taken together, that forecloses the state's option of taking the right to keep and bear arms in public off the table.

The only way out of this for the state is for it to, in essence, argue that the citizenry has no right to meaningful and effective defense of their lives when in public and thus to argue, in essence, that the citizenry does not have the right to life when in public.

The state will never actually argue that, of course, for to do so would be tantamount to political suicide, an admission that the state exists to wield power over the citizenry rather than to serve the citizenry. However, I expect that such is precisely what those who oppose armed self-defense enough to argue against the right to it in court actually believe -- that the citizenry is "little people" who serve the state, rather than the state serving the citizenry.

Maestro Pistolero
12-01-2012, 3:18 PM
The Supreme Court has ruled that the people have the right to meaningful and effective self-defense by declaring it as being at the core of the 2nd Amendment, while also having ruled elsewhere that the state has no duty to provide meaningful defense of the lives of the citizenry. Taken together, that forecloses the state's option of taking the right to keep and bear arms in public off the table. Agree wholeheartedly. See my sig below. No right can be more fundamental than the right to life itself.

Mulay El Raisuli
12-02-2012, 5:34 AM
You're an anti-gun politician with a voting base that considers the entire US Constitution to be 18th Century cow dung. The High Court is offering you two options: Ban Concealed Carry equally, or honor Shall Issue CCW across your jurisdiction.

Given those choices, there's only one move to make.Two actually. One, you cancel all CCW permits outstanding immediately. The second act is to grant reserve LEO status to your large campaign donors and benefactors.

Voila! Your subjects are happy, Cletus from Montana can't carry without threat of jail, and you stuck it to the gun lobby too.


Being as this how things (basically) work in ILL., this isn't entirely out in left field.

The only counter to this tactic is to make LOC the Minimum Constitutional Standard.


The Raisuli

M. D. Van Norman
12-02-2012, 10:43 AM
It would matter, because such arbitrary rule … may well mean military rule.…

And that would render these little discussions of ours irrelevant, which was my point. :o

hoffmang
12-02-2012, 1:21 PM
Are you really opposing the idea that Justice Scalia tailored the Heller decision in the manner he did, to retain Justice Kennedy's vote?

Yes. I'm far more concerned that the opinion's dicta was to keep the Chief. However, even in that dicta is clear evidence that public carry is an expected part of the right. There are certainly no schools or government buildings in my house. Yours?

-Gene

kcbrown
12-02-2012, 2:06 PM
Yes. I'm far more concerned that the opinion's dicta was to keep the Chief. However, even in that dicta is clear evidence that public carry is an expected part of the right. There are certainly no schools or government buildings in my house. Yours?


The antis will argue that the dicta was put there because the Court was concerned about governments taking transport off the table. They'd be incorrect, but that's how they'll argue.

SilverBulletZ06
12-02-2012, 2:16 PM
The antis will argue that the dicta was put there because the Court was concerned about governments taking transport off the table. They'd be incorrect, but that's how they'll argue.

You all are on crack if you don't think that, if permitted, the court wouldn't skip over the carry issue altogether.

I hold no illusion that we are going to win on SCOTUS review.:oji:

MOA1
12-02-2012, 5:28 PM
Nothing to add, I just wanted to say I appreciate reading all this, taking it in and thinking where we are headed.

My concern is CA laws and how this may help us in CA.

We can not open carry since Jan1 of this year, and we also can not obtain a CWP unless you are famous or rich or politician.

Is the "may issue" being challenged? Sorry if I'm not up on current topics here and missed it somewhere.

CA is NOT a may issue state, not in any real sense of the word. I've pursued every avenue and since I'm in LA county there is no way I'll get one. IF a court case regarding CCW permits goes in our favor, will it be of benefit to have already applied and been denied? Will the county be ordered to issue those denied permits?

hoffmang
12-02-2012, 6:26 PM
Is the "may issue" being challenged? Sorry if I'm not up on current topics here and missed it somewhere.
The California cases to watch are Richards v. Prieto and Peruta v San Diego.

-Gene

MOA1
12-02-2012, 6:34 PM
Thanks mang. :)

kcbrown
12-02-2012, 7:11 PM
You all are on crack if you don't think that, if permitted, the court wouldn't skip over the carry issue altogether.

I hold no illusion that we are going to win on SCOTUS review.:oji:

Fortunately, since this case is entirely about carry, it would be difficult for the court to skip the issue. Not saying that it would be impossible, mind you (the Supreme Court can ultimately do whatever it pleases, after all)...

As for winning upon SCOTUS review, while I don't think such a win is a lock, I think the odds of us winning are currently greater than 50%. I think it's more likely that SCOTUS will simply deny cert than go to the trouble of explicitly ruling against us.

Al Norris
12-03-2012, 5:46 AM
Yes. I'm far more concerned that the opinion's dicta was to keep the Chief.

Interesting opinion.

However, even in that dicta is clear evidence that public carry is an expected part of the right.

In that, we agree.

Librarian
12-03-2012, 6:42 PM
At TFL, Al Norris (http://thefiringline.com/forums/showpost.php?p=5309332&postcount=225) has posted an update to Woolard that seems to bear on Kachalsky.

Alan Gura has posted his 28j letter noting the Kachalsky result - and like Al, I agree that last paragraph is indicative Finally, Kachalsky’s use of rational basis review was not sanctioned simply by being euphemistically styled “intermediate scrutiny.” Kachalsky eviscerated the right to bear arms merely upon the State having declared it unacceptable as a matter of public policy. The Kachalsky Court refused to question a legislative judgment relating to an enumerated, fundamental right. But in so doing, Kachalsky second-guessed the People’s ratification of the Second Amendment—an act the Supreme Court will soon have an opportunity to review.

stix213
12-03-2012, 8:50 PM
At TFL, Al Norris (http://thefiringline.com/forums/showpost.php?p=5309332&postcount=225) has posted an update to Woolard that seems to bear on Kachalsky.

Alan Gura has posted his 28j letter noting the Kachalsky result - and like Al, I agree that last paragraph is indicative

Gura is a master wordsmith. We're fortunate he didn't end up a writer or journalist.