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View Full Version : Q re the Carry Cases getting Cert.: Do we really need a Circuit split?


Paladin
12-10-2012, 6:59 AM
If Heller really laid out a "fundamental right" to bearing functional weapons in public and if the core of that right is self-defense and if we keep losing carry cases in the federal Circuit Courts of Appeal, will the Heller 5 really say, "no harm, no foul," and deny granting cert merely because all Americans are equally being denied their fundamental RKBA for SD? Doesn't make sense to me.

I just don't see the Heller 5 not granting cert merely because ACs are timid, refuse to do their job as courts of first impression for legal review and are consistent in getting the law wrong and consistent in denying Americans' ability to exercise a fundamental right for its core purpose.

Is a circuit split really that vital for carry cases?

OT: FWIW IMHO, having to protect the right to mere SD would have been beyond the pale for the Founders and The People (i.e., the ratifiers of the BoR), the 2nd A was to protect the RKBA suitable for militia duty -- yep, those good ol' "weapons of war designed only to kill people."

M. D. Van Norman
12-10-2012, 7:16 AM
A circuit split would be helpful, but it isn’t required—which is good, because I don’t think we’ll get one.

IVC
12-10-2012, 9:02 AM
What Heller said is open for debate as various courts demonstrate. A circuit split creates legal ambiguity of a technical nature, so it greatly increases chances of a case being picked up by SCOTUS.

Fate
12-10-2012, 9:10 AM
What Heller said is open for debate as various courts demonstrate. A circuit split creates legal ambiguity of a technical nature, so it greatly increases chances of a case being picked up by SCOTUS.
I wish they would get on with it.

Paladin
12-10-2012, 9:23 AM
What Heller said is open for debate as various courts demonstrate. At the trial/district court level, how many have gone our way besides Maryland?

At the appeals court level, how many have gone our way?

A circuit split creates legal ambiguity of a technical nature, so it greatly increases chances of a case being picked up by SCOTUS.What I'm saying is that inconsistent AC decisions among AC circuits are not needed if they're consistently against the will of the Heller 5. I don't see the Heller 5 just sitting there saying, "Oh well. We tried our best, but since all the ACs are zigging when we thought we made it clear to zag, we'll just leaving zigging the law of the land until one of the ACs follows us and says to zag. Then we'll grant cert. to judge among the ACs."

Bottom line: as long as the Heller 5 remain on SCOTUS, I don't think there's a chance they will NOT grant cert to a carry case before fall 2014.

IVC
12-10-2012, 9:32 AM
What I'm saying is that inconsistent AC decisions among AC circuits are not needed if they're consistently against the will of the Heller 5.

You are assuming you are reading correctly "the will of the Heller 5". So are the courts. The quest is to find out who's assumption is correct.

Paladin
12-10-2012, 10:17 AM
You are assuming you are reading correctly "the will of the Heller 5". So are the courts. The quest is to find out who's assumption is correct.
(at least) 3 options:

1) The Heller 5 discussed "bear" for a reason and that was to guide the TCs and esp the ACs in extending the RKBA for SD beyond one's own residence/property in future cases. (Our position.)

2) The Heller 5's discussion of "bear" is irrelevant, the only law in Heller is the holding of the Court for the facts of that specific case. (The ACs' positions.)

This is untenable since every 1L is trained to distinguish the law of the case (rule) from the holding (the conclusion resulting from the application of the rule to the issue(s) at bar). IRAC: Issue, Rule (the general law expressed in the case), Application (of the rule to the case's facts), and Conclusion (holding, decision re the case's issue)

3) The Heller 5 were intentionally ambiguous re. "bear" because they could not get 5 votes otherwise or haven't sorted it out themselves.

But then why even bring it up???

Number 3 is not an option because the Heller 5 brought "bear" up and discussed it for a reason.

That leaves #2: either mental dullness or, more likely since some of them have implicated themselves in it, moral cowardice in not doing their jobs on a controversial issue. They are too timid to "man up" and extend our RKBA outside of the home without being able to say SCOTUS forced them to do so. (Why? Remember, SCOTUS are political nominees and if an anti is president, extending our RKBA will kill that appeals court judge's prospects for a SCOTUS nomination during that administration.)

stix213
12-10-2012, 11:11 AM
(at least) 3 options:

1) The Heller 5 discussed "bear" for a reason and that was to guide the TCs and esp the ACs in extending the RKBA for SD beyond one's own residence/property in future cases. (Our position.)

2) The Heller 5's discussion of "bear" is irrelevant, the only law in Heller is the holding of the Court for the facts of that specific case. (The ACs' positions.)

This is untenable since every 1L is trained to distinguish the law of the case (rule) from the holding (the conclusion resulting from the application of the rule to the issue(s) at bar). IRAC: Issue, Rule (the general law expressed in the case), Application (of the rule to the case's facts), and Conclusion (holding, decision re the case's issue)

3) The Heller 5 were intentionally ambiguous re. "bear" because they could not get 5 votes otherwise or haven't sorted it out themselves.

But then why even bring it up???

Number 3 is not an option because the Heller 5 brought "bear" up and discussed it for a reason.

That leaves #2: either mental dullness or, more likely since some of them have implicated themselves in it, moral cowardice in not doing their jobs on a controversial issue. They are too timid to "man up" and extend our RKBA outside of the home without being able to say SCOTUS forced them to do so. (Why? Remember, SCOTUS are political nominees and if an anti is president, extending our RKBA will kill that appeals court judge's prospects for a SCOTUS nomination during that administration.)

I personally think the Heller 5 intentionally left "bear" vague because it wasn't especially relevant to the case in front of them, and they wanted to see where the chips would fall with regard to the 2A in lower courts before ruling on more 2A cases.

I think they will take a carry case without a circuit split, because now that the sky hasn't fallen post-heller, they will be ready to further expand the right to "outside the home."

M. D. Van Norman
12-12-2012, 7:17 AM
A circuit split would be helpful, but it isn’t required—which is good, because I don’t think we’ll get one.

These were some of the tastiest words I’ve ever eaten! :grilling:

newbee1111
12-12-2012, 11:45 AM
I think Illinois could get the bear question answered all by themselves if they want to appeal. The probably wouldn't get the answer that they wanted though.

Paladin
12-12-2012, 2:46 PM
I personally think the Heller 5 intentionally left "bear" vague .... Judge Posner disagrees with you. ;)

DVSmith
12-12-2012, 2:59 PM
With two of the Heller 5 being 76 years old, there is the very real possibility that Obama could get a chance to replace one of them before they take up another 2A case.

It isn't likely that either one would retire under Obama, but humans are fragile and become more so the older they get.

Keep your fingers crossed.

DVSmith
12-12-2012, 2:59 PM
The dreaded duplipost problem strikes again! Deleted it.