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JALLEN
11-02-2007, 10:32 AM
I am posting this here from Sig Forum where it appeared this morning. I do not know the author, or where he is or which law school he refers to, but it is of interest:

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Yesterday I had the pleasure of hosting the lead attorney in the Parker case that overturned the DC gun ban. I am an officer in my law school's Federalist Society chapter and Alan Gura was kind enough to visit upon my invitiation.

Let me start off by saying we, as gunowners, are truly blessed to have Alan as the attorney handling this case. He is a genius, simply put. I have never met a practicing attorney with such a broad command of every nuance in constitutional law.

My biggest concern coming in to my meeting with Mr. Gura was how the Court will vote if they grant cert. He showed me language in some cases in which Justice Kennedy has stated that the second amendment is an individual right. Likewise, Ginsberg has defined the term "bear" by likening it to the second amendment. She stated that bear means to keep and to have, not to bear during service or some narrow definition such as that. I think those two things alone make this a 6-3 vote (at least), if Alito and Roberts go our way.

My next biggest concern was that how the circuit court's opinion might lead to a rubber stamp on registration. I was told that the issue to be decided has nothing to do with registration and that the sole issue to be decided is whether the SA grants an individual right to own firearms. Once we establish that principle then we can challenge registration and the government would have to satisfy strict scrutiny in order to permit registration. Once we make it there then it's the government on the defense. The way this case was picked is brilliant, it narrows the issue so much that the Court almost has to rule in our favor.

The historical analysis relied upon is better than anything I could have hoped for. If there's a positive word uttered by a founding father about the SA, Alan knows about it. He even has several newspapers of the day on record illustrating that the SA is an individual right. On the other side, there simply is not a single negative reference that takes a collective rights point of view.

Regarding the milita part of the amendment, there is a perfect metaphore. A well educated electorate, being necessary for the security of a free state, the right of the people to keep and read books shall not be infringed. Try that one on someone, it's hard ot argue with. Does that metaphoe lead one to believe that only those who vote can keep and read books? Does it mean only fiction or nonfiction books are permissible but yet magazines are not protected? No one would make that argument. We only need look at the second part of the Amendment. This is not to say that the militia analysis would go against us.

Next point, I didn't realize this but the Miller case that okayed the NFA was actually remanded by SCOTUS for a new trial with new evidence as to how a SBS could be used towards the common defense. Mr. Miller died before the case could be heard on remand. Thus, its bad law because it's unsettled.

I left with a very very positive feeling on this one. I think we will win and win big. DC does not have their argument straight. A lot of states have come down against DC in filing their amicus briefs. We have a lot of support guys.

Don't worry about Mr. Gura being a flip-flopper either. He's against any middleground approach. He is with us in believing that the NFA needs to be deemed unconstitutional along with most other gun restrictions. This case will be the first in many fights. But it is going to give us all the ammo we need.

Hold your heads up high. Quit whining about a new assault weapon ban. Things are looking great for gun owners. :)
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hoffmang
11-02-2007, 11:09 AM
I happen to know Mr. Gura and this is an accurate rendition of him. Our analysis of the justices is about the same. I've posted it here before, but I have it on my blog as well: http://www.hoffmang.com/archives/000716.html

-Gene

tgriffin
11-02-2007, 12:03 PM
Gene,

I'm still hoping I owe you a bottle of whiskey.

;)

aileron
11-02-2007, 12:18 PM
You and me both hope you owe him a bottle. ;)

tiki
11-02-2007, 1:35 PM
You and me both hope you owe him a bottle. ;)

I would like to offer up a nice Reposado or Anejo.

tgriffin
11-02-2007, 2:34 PM
I would like to offer up a nice Reposado or Anejo.

Tiki,

Gene and I have a side bet as to how the Justices will rule in the case. Im open to another wager if you'd like to participate.

McMadCow
11-02-2007, 4:25 PM
...A lot of states have come down against DC in filing their amicus briefs. ...


I'd like to know more about this. Are other states really filing briefs AGAINST DC? I'm finding that a little hard to get my brain around.

Shotgun Man
11-02-2007, 4:36 PM
Does anyone know when we can expect a decision on whether SCOTUS grants review? Or have they already?

I've been trying to read the DC appeals court decision. It seems very well thought out and extremely long and dense. They've given guidance to the Supremes if they want to follow it.

This is a huge issue: Does the Bill of Rights grant the individual the right to possess arms or doesn't it? I believe the SCOTUS will grant review, and the decision will be the DC gun-banning ordinance will be unconstitutional.

Edit: As a follow-up, doesn't the U.S. Solictor General or somebody like that weigh in on these requests for review? What is the official position of the United States Goverment?

As much as I dislike the current adminstration, I wouldn't necessarily expect them to back a DC gun ban law.

Librarian
11-02-2007, 5:11 PM
Does anyone know when we can expect a decision on whether SCOTUS grants review? Or have they already?

Easy one to find (http://www.nraila.org/Legislation/Read.aspx?ID=3272):On November 9, the U.S. Supreme Court will consider the petition for the District of Columbia v. Heller (formerly known as Parker) case. We should learn within days whether or not the Court will decide to review the case. Presuming they choose to hear it, the case could possibly heard in early 2008. If the Court refuses to hear the case, the lower courtís decision, which struck down the D.C. gun ban as unconstitutional, will stand.Current guess is decision to grant/deny cert on Nov 13.

M. Sage
11-02-2007, 10:52 PM
I'll throw in a bottle of whiskey if Gene wins! :D

I'll throw a bottle in... Of course, I'm planning on drinking it. :p

dfletcher
11-02-2007, 11:08 PM
It is very interesting to hear complex judgements and the various interpretations of phrases such as "a well regulated militia" and "keep and bear arms" as well as the single words which comprise those phrases. My concern is that SCOTUS could determine anything short of a ban is acceptable, and I am very interested (a hopeful) SCOTUS will pay attention to the word "infringe". I hope their interpretation is the same as mine.

FreedomIsNotFree
11-03-2007, 12:04 AM
I've spent the last few hours going over, just some, of the pleading from Parker v. DC. I knew this case was extensive, but I really had no idea how massive this undertaking has actually been.

This may have been posted in a prior thread, forgive me if its a dupe, but here is a link to the pleadings...
http://www.gurapossessky.com/news/parker/pleadings.html

We are lucky to have Alan on this.

jjperl
11-03-2007, 12:50 AM
man... I really hope the decide to hear the case.

Liberty1
11-03-2007, 12:57 AM
I've spent the last few hours going over, just some, of the pleading from Parker v. DC. I knew this case was extensive, but I really had no idea how massive this undertaking has actually been.

http://www.gurapossessky.com/news/parker/pleadings.html

We are lucky to have Alan on this.

It inspires me to have the wife go out and get arrested for 12031 so we can get the ball rolling out here! ;)

Army
11-03-2007, 4:06 AM
Call my cynical, but I think I'll wait for the ink to dry on the SCOTUS decision before I put the bottle on ice.

Too often, too many times, we think it's in the bag, and........poof. More freedoms gone.

Hey, cities cannot sue gun makers for their guns being used in crimes, it's Federal law.........hasn't stopped the lawsuits.

I'll wait and see.

FreedomIsNotFree
11-03-2007, 5:31 AM
It inspires me to have the wife go out and get arrested for 12031 so we can get the ball rolling out here! ;)

Interesting you should mention that...I dont remember exactly which pleading it was in, but it made the argument that an otherwise law abiding citizen shouldn't have to break the law to challenge its constitutionality.

Makes perfect sense to me...we shouldn't have to put our freedom on the line to legally challenge laws.

I would agree that a simple, first time, possession of a conealed weapon, a misdeamor charge, would be worth it to many...if thats what it took to have standing.

aileron
11-03-2007, 2:51 PM
Interesting you should mention that...I dont remember exactly which pleading it was in, but it made the argument that an otherwise law abiding citizen shouldn't have to break the law to challenge its constitutionality.

Makes perfect sense to me...we shouldn't have to put our freedom on the line to legally challenge laws.

I would agree that a simple, first time, possession of a conealed weapon, a misdeamor charge, would be worth it to many...if thats what it took to have standing.


What you need to do is show that you tried every available avenue known to get your rights, and upon documenting that failure, then you can try for standing.

FreedomIsNotFree
11-03-2007, 4:54 PM
What you need to do is show that you tried every available avenue known to get your rights, and upon documenting that failure, then you can try for standing.

I'm sure that may work in some situations, but others...not so much.

For example, how would you go about challenging the laws against concealed carry? Sure, some will say you must first apply for a CCW, if you are refused, then you have standing. But what if you dont believe the Government, be it Federal, State or local, has the authority to regulate such action?

The way the system is currently setup, quite often a person must break the law to have standing. That must change.

CCWFacts
11-03-2007, 5:38 PM
What you need to do is show that you tried every available avenue known to get your rights, and upon documenting that failure, then you can try for standing.

And even so, it's very difficult to get federal standing. In this particular situation, DC made a huge mistake when the police chief (?) told the media, "yeah, if these guys keep guns, we'll prosecute them." If he had kept his yap shut, apparently they might not have had standing. Woops!

To get standing there must be injury, causation, and redress. If the city hadn't said, "we'll go after these guys" it would have been very hard to show the first two of these.

aileron
11-03-2007, 6:08 PM
I'm sure that may work in some situations, but others...not so much.

For example, how would you go about challenging the laws against concealed carry? Sure, some will say you must first apply for a CCW, if you are refused, then you have standing. But what if you dont believe the Government, be it Federal, State or local, has the authority to regulate such action?

The way the system is currently setup, quite often a person must break the law to have standing. That must change.

Standing is a sticky issue when it comes to rights and those laws imposed that have no avenue for reproach inherit in the system by the ways the laws are written.

I agree with you on principle that we should be allowed to get standing on unconstitutional laws on the books without being forced to break the law to get standing. Though I still think you should make an attempt at a CCW, then when its failed bring it up.

This place is soo screwed up you will not get standing even though your right. Look at what happened with Parker vs. DC only heller got standing. Which I disagree with.

Hopefully the cross petition wins out. And maybe that cross petition can be used for cases in California. But I'm really wet behind the ears with legal stuff so will shut up now because I don't have enough knowledge to know whether it could.

aileron
11-03-2007, 6:14 PM
And even so, it's very difficult to get federal standing. In this particular situation, DC made a huge mistake when the police chief (?) told the media, "yeah, if these guys keep guns, we'll prosecute them." If he had kept his yap shut, apparently they might not have had standing. Woops!

To get standing there must be injury, causation, and redress. If the city hadn't said, "we'll go after these guys" it would have been very hard to show the first two of these.

Yes they did make a huge mistake and thank god for that.

Injury, so rights removed, is not injurious???
Rights removed is not cause for standing? Thats a good question.
Rights removed have no need for redress?

I think our founders would feel differently about that. Sad to see where are legal system stands with its thought tools.

If I say its not a right, then you have no standing. If I disagree with you about whether you have an inherent right here, you have no standing.

Wow. Thats just wrong.

CCWFacts
11-03-2007, 6:37 PM
Well, you can always break the law, and get injured by being prosecuted, and then you've got standing. What's a bummer is that it is so very difficult to challenge these laws from the safety of not violating them.

anothergunnut
11-03-2007, 6:42 PM
The Supremes have a long history of distorting reality. During the depression, a man was found to have violated the marketing order for wheat because he was growing wheat for his own consumption on his own farm. The Supremes found the federal marketing order was valid because the farmer, by not having to enter into interstate commerce to buy his wheat, was affecting interstate commerce. Since he was affecting interstate commerce, the interstate commerce clause gave the feds the authority to regulate him. With that kind of logic, there is little that cannot be regulated by the feds.

The second amendment is especially problematic for the establishment since it exists so that people have the ability to violently overthrow the existing government. Take's a strong person to give somebody the right to own a gun so that the person can use it to kill him.

I suspect the outcome will be that the second amendment is an individual right but that doesn't preclude the state's from heavily restricting your ability to own, use, and carry a gun of your choice.

hoffmang
11-03-2007, 6:48 PM
CCW,

Standing is actually not that hard to get at all if its not the 2A. Here in the 9th where "the people" in the Second aren't you and me, we always get thrown out for standing. The DC Circuit tried to go there in Navagear as well, but there was in internal circuit split around standing and the Second, so standing was an issue in Parker. That's why Parker cross appealed.

-Gene

FreedomIsNotFree
11-04-2007, 12:21 AM
CCW,

Standing is actually not that hard to get at all if its not the 2A. Here in the 9th where "the people" in the Second aren't you and me, we always get thrown out for standing. The DC Circuit tried to go there in Navagear as well, but there was in internal circuit split around standing and the Second, so standing was an issue in Parker. That's why Parker cross appealed.

-Gene

Correct me if I'm wrong Gene, but didn't Navagear get kicked because they sued the wrong person...specifically John Ashcroft? The court said the Feds had not prosecuted such a crime so the plaintiff had no "real" fear of prosecution.

tiki
11-04-2007, 6:09 AM
Tiki,

Gene and I have a side bet as to how the Justices will rule in the case. Im open to another wager if you'd like to participate.

Sure, whats the bet? Individual v. Collective?

FreedomIsNotFree
11-04-2007, 11:38 PM
Sure, whats the bet? Individual v. Collective?

If cert. is granted, I cant think of any way SCOTUS could come to the conclusion that the 2nd Amendment is a "colelctive" right. The real question will be to what extent States can regulate.

Outlaw Josey Wales
11-05-2007, 12:25 AM
The real question will be to what extent States can regulate.

In other words, what infringements will be allowed!:mad:

FreedomIsNotFree
11-05-2007, 12:02 PM
In other words, what infringements will be allowed!:mad:

Exactly.

tgriffin
11-12-2007, 8:54 AM
Sure, whats the bet? Individual v. Collective?

Gene bet 6-3 or higher individual
I bet 5-4 or lower individual


See why I said I want him to win? :D

tiki
11-12-2007, 9:58 AM
Gene bet 6-3 or higher individual
I bet 5-4 or lower individual


See why I said I want him to win? :D

If they come out 6-3 or higher for individual, i'll meet you boys in the Bay and pickup the first bottle of Reposado. ;)

aileron
11-12-2007, 12:23 PM
The suspense is driving me nuts, I cant wait for it to be Wednesday so I know we got cert or not.

Shotgun Man
11-12-2007, 1:24 PM
The suspense is driving me nuts, I cant wait for it to be Wednesday so I know we got cert or not.

Why Wednesday? Might we hear tomorrow?

hoffmang
11-12-2007, 3:55 PM
Tomorrow is certainly a possibility.

The thing I'm most interested in is what question(s) they actually certify.

-Gene

Piper
11-12-2007, 4:33 PM
I'm looking forward to the final decision on this case. Since the feds said that a total ban is unconstitutional, I'm curious to know to what extent SCOTUS will limit government regulation at any level. And how does the 14th amendment play in the final equation? And finally, to what extent will government be required to adhere to the same laws as citizen's ?