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View Full Version : IL AG Madigan files to DISMISS Shepard-Moore as Moot: effect on Woollard?


Paladin
07-09-2013, 7:48 PM
From:
http://bigstory.ap.org/article/lawmakers-poised-override-quinns-gun-bill

Quinn had urged Democratic Attorney General Lisa Madigan to appeal the ruling to the U.S. Supreme Court. Madigan filed motions to dismiss the lawsuits Tuesday after the override, reporting to a federal judge the issue is moot now that there's a law that answers the original legal action.

The motion said further legal action involving the law would require a new lawsuit.

IIRC, in some other thread there was a discussion re. Gura waiting for Madigan to decide re. Shepard-Moore before he decides what to do re. Wollard.

What is Gura likely to do w/Woollard now that Madigan is NOT going to appeal Shepard-Moore to SCOTUS?

When is Gura's deadline for asking for cert? (IIRC, its sometime around July 20th)

W/Mehl gone and now this, hopefully the log jam is broken and we'll get a Carry Case before SCOTUS this fall.

Paladin
07-09-2013, 7:53 PM
Is this good news or would we have preferred Shepard-Moore to go to SCOTUS rather than Woollard???

yellowfin
07-09-2013, 8:02 PM
Is this good news or would we have preferred Shepard-Moore to go to SCOTUS rather than Woollard???It would have been REALLY nice if we could have gotten some insider intelligence on what went wrong with Kachalsky to be able to answer this question.

Calplinker
07-09-2013, 8:09 PM
This was expected in light of IL. passing shall-issue legislation today.

Moore -v- Madigan was a better case as it allowed SCOTUS to issue a narrow ruling on the right to carry, which is their norm.

They could simply say that states must have a licensing scheme and cannot deny the right.

Shepard/Moore is not so narrow. If SCOTUS is so inclined, it may be our last chance this term. We shall see.

We certainly live in interesting times!!!!!!

taperxz
07-09-2013, 8:22 PM
It may come down to a CA case now.

wildhawker
07-09-2013, 9:30 PM
It may come down to a CA case now.

More accurately, probably all of them (e.g. Richards and Peruta) and perhaps also Baker, though I suspect that's more of a GVR if the Ninth doesn't remand directly.

-Brandon

Mulay El Raisuli
07-10-2013, 6:29 AM
Is this good news or would we have preferred Shepard-Moore to go to SCOTUS rather than Woollard???


Wollard is better. The only way we in the PRK will ever get any kind of meaningful "and bear" is via some form of unlicensed carry. And the only case in the pipeline that has any chance of getting that issue before SCOTUS is Wollard.


The Raisuli

M. D. Van Norman
07-10-2013, 8:00 AM
The upside is that the Supreme Court can’t issue a now meaningless ruling on no-issue regimes and then duck everything else. The downside is that the court may now decide to duck everything else anyway.

Bhobbs
07-10-2013, 10:43 AM
I bet SCOTUS will duck carry or issue a ruling that doesn't change much.

stag1500
07-10-2013, 11:57 AM
I noticed in the Calguns Wiki regarding Woolardthat "April 8th, plaintiffs file for en banc review." Is that going to prevent Alan Gura from petitioning for cert before SCOTUS?

hardlyworking
07-10-2013, 12:01 PM
I noticed in the Calguns Wiki regarding Woolardthat "April 8th, plaintiffs file for en banc review." Is that going to prevent Alan Gura from petitioning for cert before SCOTUS?

Pretty sure he was denied en banc. Unless I'm thinking about a different case. He tried (also to buy time for Moore to resolve) and was rebuffed, opening the way to SCOTUS

stag1500
07-10-2013, 12:14 PM
You're right. They did deny the en banc petition.

CCWFacts
07-10-2013, 12:25 PM
You're right. They did deny the en banc petition.

That's cool:

The petition for rehearing en banc was circulated to the full court. No judge
requested a poll under Fed. R. App. P. 35. The court denies the petition for
rehearing en banc.

I assume that means he is free to file for cert? There is no other step ahead of that?

Kharn
07-10-2013, 1:14 PM
Gura's cert petition in Woollard is due very shortly, by the end of this month from my understanding but the way the en banc denial worked out it is kinda hazy to a non-appellate-lawyer.

Woollard is better than the CA cases because MD has one permit for OC and CC, with off-duty police officers, security guards, business owners and personal protection permittees all having identical permits, with none of the UOC, LUCC, ABCD123CC, etc nonsense to confuse the issue, and there is a single issuing authority in the MD State Police's Handgun Licensing Division.

With Moore dropped, Woollard is the cleanest case possible above the district level, Palmer would probably be even better, but that case seems to be stuck in permanent purgatory and hasn't even had a district court ruling in what, 3 years?

nicki
07-10-2013, 1:49 PM
The Supreme court would have liked to have gotten a "pure carry" case, but that didn't happen nor will it because every state now has some form of carry, at least on paper.

If the Supreme court really does believe the second amendment is an individual right, the will take "Woolard".

After the "Heller ruling", prohibitions were supposed to be "off the table", yet that is exactly the types of gun laws that have been passed or are being voted on in Colorado, Conn, Maryland, NY and our own state.

The issues in the "Woolard" case will probably expand beyond just "carry".

If we have a right to "common and functional arms", then laws aimed at reducing the self defense function of a firearm could possibly be raised as issues.

Comnon sense would say that laws that restrict "Ergonomic features, magazine capacities, ammo restrictions would all burden the right of self defense.

Restrictions on where to carry or so called sensitive zones would also become an issue. Let's take a city like San Francisco.

Right now with the 1000 foot school zone, when we could open carry, most of the city was a no carry zone.

In high density urban areas, a restriction on carrying in school zones would effectively gut a CCW permit.

Nicki

press1280
07-10-2013, 2:21 PM
The Supreme court would have liked to have gotten a "pure carry" case, but that didn't happen nor will it because every state now has some form of carry, at least on paper.

If the Supreme court really does believe the second amendment is an individual right, the will take "Woolard".

After the "Heller ruling", prohibitions were supposed to be "off the table", yet that is exactly the types of gun laws that have been passed or are being voted on in Colorado, Conn, Maryland, NY and our own state.

The issues in the "Woolard" case will probably expand beyond just "carry".

If we have a right to "common and functional arms", then laws aimed at reducing the self defense function of a firearm could possibly be raised as issues.

Comnon sense would say that laws that restrict "Ergonomic features, magazine capacities, ammo restrictions would all burden the right of self defense.

Restrictions on where to carry or so called sensitive zones would also become an issue. Let's take a city like San Francisco.

Right now with the 1000 foot school zone, when we could open carry, most of the city was a no carry zone.

In high density urban areas, a restriction on carrying in school zones would effectively gut a CCW permit.

Nicki

Well, technically there's still a pure carry case out there (Palmer), which has languished in DC district court for 4 years. I hope the court will now not wait for that to get there.
Best thing going for Woollard is that the license is a general carry license, and not a CCW like NY. This would make an opinion easier especially in light of the many 19th century cases upholding CCW bans.
I believe Gura's window for an extension may have lapsed already, so in all likelyhood Woollard will file for cert in a week or two.

Al Norris
07-10-2013, 7:37 PM
What? You thought it was all over?

Yeah, so did I.... Apparently the lady has yet to sing!!

The ISRA has filed a response to the MTD and contemperaeously has filed motions to quash the newly enacted law, as it doesn't meet the timeline set by the court. Gun Group Demands Concealed Carry By Next Week | WUIS 91.9 (http://wuis.org/post/gun-group-demands-concealed-carry-next-week) Here's the relevant portion of the Sheppard docket, with links to the motions:

2013-07-09 73 (http://www.archive.org/download/gov.uscourts.ilsd.52207/gov.uscourts.ilsd.52207.73.0.pdf) MOTION to Dismiss for Lack of Jurisdiction (moot) by Tyler R Edmonds, Lisa M Madigan, Patrick J Quinn. Responses due by 8/12/2013 (Triebel, Karl) (Entered: 07/09/2013)

2013-07-10 74 (http://www.archive.org/download/gov.uscourts.ilsd.52207/gov.uscourts.ilsd.52207.74.0.pdf) RESPONSE to Motion re 73 MOTION to Dismiss for Lack of Jurisdiction (moot) filed by Illinois State Rifle Association, Mary Shepard. (Howard, William) (Entered: 07/10/2013)

2013-07-10 75 (http://www.archive.org/download/gov.uscourts.ilsd.52207/gov.uscourts.ilsd.52207.75.0.pdf) MOTION for Declaration of Unconstitutionality and Preliminary and/or Permanent Injunction by Illinois State Rifle Association, Mary Shepard. (Howard, William) (Entered: 07/10/2013)

2013-07-10 76 (http://www.archive.org/download/gov.uscourts.ilsd.52207/gov.uscourts.ilsd.52207.76.0.pdf) MOTION to Expedite Briefing on Plaintiffs' re 75 MOTION for Declaration of Unconstitutionality and Preliminary and/or Permanent Injunction by Illinois State Rifle Association, Mary Shepard. (Howard, William) (Entered: 07/10/2013)

For those that don't want to read these short documents, the NRA (through the ISRA) is saying that the law does not meet the time limits of the mandate, as it adds another 9 months for anyone in IL to be able to lawfully carry. That's not to be tolerated, since they've already been infringed these last 7 months of the Stay. The State has had plenty of time to come up with a practical law. They dithered. Then they have given themselves another 9 months of "stay" via the law to make the law work. Since the UUW and AUUW laws are still on the books (they are now excepted by the carry statute, but...) and they will still be enforced, the court needs to issue the injunction immediately.

The ISRA is asking for FOID carry in the same manner and with the same restrictions as the current law would allow, if permits were available, today.

Over at the other district, Judge Myerscough has indicated she wants a response from Moore on the States MTD, so David Jenson has filed a motion to extend the time to file costs so that he can answer the MTD.... This time around, they should copy the NRA briefs and file similar motions.

Paladin
07-10-2013, 7:45 PM
What? You thought it was all over?

Yeah, so did I.... Apparently the lady has yet to sing!!

...

For those that don't want to read these short documents, the NRA (through the ISRA) is saying that the law does not meet the time limits of the mandate, as it adds another 9 months for anyone in IL to be able to lawfully carry. That's not to be tolerated, since they've already been infringed these last 7 months of the Stay. The State has had plenty of time to come up with a practical law. They dithered. Then they have given themselves another 9 months of "stay" via the law to make the law work. Since the UUW and AUUW laws are still on the books (they are now excepted by the carry statute, but...) and they will still be enforced, the court needs to issue the injunction immediately.

The ISRA is asking for FOID carry in the same manner and with the same restrictions as the current law would allow, if permits were available, today.

...

I'm luvin' it! :D

Calplinker
07-10-2013, 9:04 PM
The 7th doesn't seem to have much patience with IL., but on this one I think they will give them a pass and IL., residents will have to wait the 9 months.

Boy, I sure hope I'm wrong!!!!

ziegenbock
07-10-2013, 10:39 PM
The 7th doesn't seem to have much patience with IL., but on this one I think they will give them a pass and IL., residents will have to wait the 9 months.

Boy, I sure hope I'm wrong!!!!

LOL...74/75/76....quick reads...Can't wait for the district court to rule. Looks like it is still going to take some time for a reply or at least ISRA said IL should reply back by 7/16.

Mulay El Raisuli
07-11-2013, 7:31 AM
Well, technically there's still a pure carry case out there (Palmer), which has languished in DC district court for 4 years. I hope the court will now not wait for that to get there.
Best thing going for Woollard is that the license is a general carry license, and not a CCW like NY. This would make an opinion easier especially in light of the many 19th century cases upholding CCW bans.
I believe Gura's window for an extension may have lapsed already, so in all likelyhood Woollard will file for cert in a week or two.


COULD make things easier. But only if Open Carry is the Schwerpunkt.


The Raisuli

Paladin
07-11-2013, 8:34 PM
So, let's say the district court agrees w/Shepard. Madigan does NOT want FOID carry, so she appeals to CA7. CA7 agrees w/the DC. Will Madigan have to appeal this motion to SCOTUS (if that's even possible) before her regular cert deadline of July 22? Would SCOTUS (or subset thereof), take this motion on an expedited basis?

It could go pretty much the same way if the DC disagrees w/Shepard's motion and Shepard appeals to CA7. If they agree w/Shepard, at that point Madigan may appeal to SCOTUS.

Could SCOTUS deal with this motion w/o dealing w/some important 2nd A issues (e.g., standard of review/scrutiny or RKBA in public)?

ETA: Let's say SCOTUS upholds the motion and IL immediately gets FOID carry, but going thru all of this w/the motion goes beyond Madigan's cert deadline of July 22nd. Would SCOTUS extend the cert deadline b/c of the motions? Could Madigan ask for cert in time for SCOTUS' long conference? Might Shepard-Moore end up in front of SCOTUS this term after all??? :)

Would Madigan rather ask for cert than allow FOID carry (no training requirement, no extra fees) for 9 months???

glbtrottr
07-11-2013, 9:13 PM
Here are Obama and Madigan discussing the Moore dismissal:

http://www.ironicsurrealism.com/wp-content/uploads/2013/02/sen-obama-illinois-ag-lisa-madigan-2008.jpg

Or could it be that Obummer was pointing at the Magazine Cover of TCW?

http://www.wellesparkbulldog.com/wp-content/uploads/2010/10/temp.png

I DON'T WANT FOID CARRY!!!!!

http://www.gunssavelife.com/wp-content/uploads/2013/04/angry-lisa.jpg

Then again, it's all about Lisa and running for Governor with Obama's sponsorship...

http://chicago.cbslocal.com/2013/06/28/axelrod-lisa-madigans-dad-a-genuine-problem-if-she-runs-for-governor/

I hope the USSC doesn't entertain a Madigan request.

IVC
07-11-2013, 10:36 PM
The upside is that the Supreme Court can’t issue a now meaningless ruling on no-issue regimes and then duck everything else. The downside is that the court may now decide to duck everything else anyway.

This is actually a great summary, albeit a bit cryptic.

Madigan case was a very good case for two reasons: (1) it addressed a no-issue state, and, (2) the cert would have been filed by the state, giving it extra weight at SCOTUS.

Now, the court would have somewhat of an easy out by saying "some form of carry must be allowed," without saying anything about what the carry should look like (akin to Heller and ban on all handguns, but not addressing, e.g., AWB). On the other hand, by removing this from the table, the court might choose not to hear any carry case since they might not feel ready to address the "allowed restrictions" on carry, much like they didn't address the "allowed restrictions" on firearms (read: AWB).

M. D. Van Norman
07-12-2013, 10:10 AM
In the hierarchy of possible outcomes, the worst would be for the U.S. Supreme Court to rule that blanket prohibitions are unconstitutional and then to refuse further guidance in the face of legislative and judicial revolts. This is the only possible route back to something resembling the old status quo. It would allow the political noose to continue slowly tightening around our necks, demonstrating once again that there are possibilities worse than violence.

Violence would certainly be a result of the next possible bad outcome. If the Supreme Court simply refuses to rule on the right to carry, frustrations will build until they erupt into some form of defiance, whether it is passive resistance to unjust laws or an active insurrection aimed at our oppressors and/or their proxies. Even low level violence, though, would likely lead to more popular opposition to the right to arms, so it’s also a losing course.

Therefore, a ruling that the Second Amendment doesn’t protect a right to bear arms outside the home would actually be a neutral or even positive outcome. Such a shocking decision would certainly rally right-to-arms proponents to obtain a more comprehensive political solution. This could result in a new constitutional amendment being submitted for ratification or possibly even the calling of a constitutional convention. The fate of our nation might be dramatically changed, but at least it would happen in an orderly, peaceful manner.

The best outcome, of course, would be for the Supreme Court to take up a challenge to may-issue regimes and rule them unconstitutional. This would finally begin to secure a meaningful right to bear arms for the nation as a whole and even more immediately for the hundred million people living in restrictive states. The American political process would be preserved and reinforced, and the United States would move a step closer to becoming the shining example of liberty and opportunity that it was meant to be.

kcbrown
07-12-2013, 5:11 PM
In the hierarchy of possible outcomes, the worst would be for the U.S. Supreme Court to rule that blanket prohibitions are unconstitutional and then to refuse further guidance in the face of legislative and judicial revolts.


No. In the hierarchy of possible outcomes, the worst would be for the U.S. Supreme Court to remain silent from this point forward, thereby only protecting keep in the home, and even that is something the judiciary is interpreting as narrowly as possible (see Osterweil v Bartlett).



Violence would certainly be a result of the next possible bad outcome. If the Supreme Court simply refuses to rule on the right to carry, frustrations will build until they erupt into some form of defiance, whether it is passive resistance to unjust laws or an active insurrection aimed at our oppressors and/or their proxies. Even low level violence, though, would likely lead to more popular opposition to the right to arms, so it’s also a losing course.

Therefore, a ruling that the Second Amendment doesn’t protect a right to bear arms outside the home would actually be a neutral or even positive outcome. Such a shocking decision would certainly rally right-to-arms proponents to obtain a more comprehensive political solution. This could result in a new constitutional amendment being submitted for ratification or possibly even the calling of a constitutional convention. The fate of our nation might be dramatically changed, but at least it would happen in an orderly, peaceful manner.
Right. But the problem here is that an attempt to address the issue through a Constitutional Convention will be co-opted by the states in an effort to grab power for themselves. Rather than result in nationwide protection of the right to keep and bear arms, the end result will be that the states will declare complete sovereignty over control of the right, thereby enshrining that which already exists.

Nobody but a saint ever willingly gives up power unless they must, or unless they gain something greater by it. The states gain nothing by actually protecting the right to keep and bear arms nationwide, and gain power by taking full control of the right for themselves. Gee, I wonder which of those two options a state legislature would choose... :rolleyes:

You people who think a Constitutional Convention will actually make it possible to solve this issue are living in a dream world. The state legislatures are no less interested in wielding power than is the federal government.



The best outcome, of course, would be for the Supreme Court to take up a challenge to may-issue regimes and rule them unconstitutional. This would finally begin to secure a meaningful right to bear arms for the nation as a whole and even more immediately for the hundred million people living in restrictive states. The American political process would be preserved and reinforced, and the United States would move a step closer to becoming the shining example of liberty and opportunity that it was meant to be.And as the best outcome, it's also the least likely. It's still possible, of course, and I hold out hope for it, but I regard it as the least likely option, particularly given the Supreme Court's handling of Kachalsky.


No, at this point, it looks to me like we're almost certainly done, but the fat lady hasn't sung yet, and I'm not about to actually call the game until the game is actually over.

Paladin
07-12-2013, 5:23 PM
So, let's say the district court agrees w/Shepard. Madigan does NOT want FOID carry, so she appeals to CA7. CA7 agrees w/the DC. Will Madigan have to appeal this motion to SCOTUS (if that's even possible) before her regular cert deadline of July 22? Would SCOTUS (or subset thereof), take this motion on an expedited basis?

It could go pretty much the same way if the DC disagrees w/Shepard's motion and Shepard appeals to CA7. If they agree w/Shepard, at that point Madigan may appeal to SCOTUS.

Could SCOTUS deal with this motion w/o dealing w/some important 2nd A issues (e.g., standard of review/scrutiny or RKBA in public)?

ETA: Let's say SCOTUS upholds the motion and IL immediately gets FOID carry, but going thru all of this w/the motion goes beyond Madigan's cert deadline of July 22nd. Would SCOTUS extend the cert deadline b/c of the motions? Could Madigan ask for cert in time for SCOTUS' long conference? Might Shepard-Moore end up in front of SCOTUS this term after all??? :)

Would Madigan rather ask for cert than allow FOID carry (no training requirement, no extra fees) for 9 months???Now, factor into the above mess, Gura asking for cert. in Woollard....

Apocalypsenerd
07-12-2013, 6:04 PM
I've said it before, and I'll say it again: The economics of our nation preclude a Con-Con that successfully secures liberty.

Furthermore, KC is in all likelihood correct, the SCOTUS is no longer interested in securing the 2A for future generations.


No. In the hierarchy of possible outcomes, the worst would be for the U.S. Supreme Court to remain silent from this point forward, thereby only protecting keep in the home, and even that is something the judiciary is interpreting as narrowly as possible (see Osterweil v Bartlett).


Right. But the problem here is that an attempt to address the issue through a Constitutional Convention will be co-opted by the states in an effort to grab power for themselves. Rather than result in nationwide protection of the right to keep and bear arms, the end result will be that the states will declare complete sovereignty over control of the right, thereby enshrining that which already exists.

Nobody but a saint ever willingly gives up power unless they must, or unless they gain something greater by it. The states gain nothing by actually protecting the right to keep and bear arms nationwide, and gain power by taking full control of the right for themselves. Gee, I wonder which of those two options a state legislature would choose... :rolleyes:

You people who think a Constitutional Convention will actually make it possible to solve this issue are living in a dream world. The state legislatures are no less interested in wielding power than is the federal government.


And as the best outcome, it's also the least likely. It's still possible, of course, and I hold out hope for it, but I regard it as the least likely option, particularly given the Supreme Court's handling of Kachalsky.


No, at this point, it looks to me like we're almost certainly done, but the fat lady hasn't sung yet, and I'm not about to actually call the game until the game is actually over.

M. D. Van Norman
07-12-2013, 9:02 PM
Oh, if there is a constitutional convention, it will probably mean the end of the United States. The nation may break into two or more entities, but that would be preferable to civil war. It would solve the problem peacefully but at a great political price.

However, I must confess that after Kachalsky was rejected, my confidence in a positive outcome was shaken. I’ve now realized that, whether I intended it or not, my plans for the future have begun to assume that we won’t get any ruling on the right to carry. My focus has thus turned to retreat from California. :(

meaty-btz
07-12-2013, 9:34 PM
Oh, if there is a constitutional convention, it will probably mean the end of the United States. The nation may break into two or more entities, but that would be preferable to civil war. It would solve the problem peacefully but at a great political price.

However, I must confess that after Kachalsky was rejected, my confidence in a positive outcome was shaken. I've now realized that, whether I intended it or not, my plans for the future have begun to assume that we won't get any ruling on the right to carry. My focus has thus turned to retreat from California. :(

To put it bluntly the issue in the cases of Republics is that their health is determined by the level of corruption and decadence of the the Society that supports it. No nation that has socially fallen into decadence as our's has, ever recovered. Not even a single one. The change of administrations was intended to be a rejuvenation of government, however if the society be corrupt then that system stops. The nation ceases to regenerate. It then must die, as all nations eventually do. The solution in this country has almost nothing to do with government or a revolution against a "government". Such a revolution by corrupt people cannot produce a change in government. The new government will remain as corrupt as the society that drives it.

When a Republic falls into decay it's only means of regeneration is rebirth through social revolution. Social revolutions usually are far worse than those against governments. They are far less certain and almost always has that revolution of society taken the form of a transfer from Republic to some form of Oligarchy or Totalitarian system as that is usually viewed as the only means by the members of a society to "regenerate" the society and purge it of the chaotic and self-indulgent members. The cycle beings again there for where a powerful government uses oppression to "cleanse the society. That society then regenerates on it's own and as the government decays, now independently from the society the society will again rise up and throw off the chains and seek after freedoms again.

We are today in the rather absurd position held by all liberty minded people in a Republic at the end of it's time, entering into the long slide of decadence into collapse and reformation into oligarchy. We are attempting to use government to perform a social regeneration. It has never worked before, why would it now? We do have some small chance of finding a path to social regeneration. If we can do that, we might pull off the impossible twice in human history in a single nation. Though my study of history and looking at the players in the game right now I see perfect matches to all past cycles, including ourselves. Is it even possible to regenerate a society where 1/3 are fully corrupted through welfare system, where at least another 1/3 are up an coming adults psychologically engineered to be little more than impulsive and self indulgent? Always such regenerations were accomplished by purging, caused by war mostly, where an internal or external force ate up that portion of society in violence.

I believe SCOTUS is done with us. That part of the game is almost played out. The final cases moving through now will be the final nails in that coffin. After that we will see a restructuring of the court to ensure no possible further gains will ever be made and likely reversals will begin.

Unless our side can generate a nucleus of a new society and through that effect the beginnings of social change, we have little hope in the future. As I have seen the pieces we have on our side on the game board I understand that to be practically impossible. Too many of us rank as members of the corrupt and decadent, self-interested and self-important, to be able to be able to form a new society that is free from the current societal issues. A good example is the Zimmerman Threads. I don't except myself from any of my own judgments.

Kukuforguns
07-12-2013, 11:28 PM
The SAF has filed a petition for certiorari in Woollard. Http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/13-42.htm

readysetgo
07-12-2013, 11:52 PM
To put it bluntly the issue in the cases of Republics is that their health is determined by the level of corruption and decadence of the the Society that supports it. No nation that has socially fallen into decadence as our's has, ever recovered.

Wow, you'd be a good dinner guest. Nice post. + tagged for updates.

Mulay El Raisuli
07-13-2013, 7:16 AM
The best outcome, of course, would be for the Supreme Court to take up a challenge to may-issue regimes and rule them unconstitutional. This would finally begin to secure a meaningful right to bear arms for the nation as a whole and even more immediately for the hundred million people living in restrictive states. The American political process would be preserved and reinforced, and the United States would move a step closer to becoming the shining example of liberty and opportunity that it was meant to be.


This just won't happen. We've seen the process many times before. In gun cases as well as in re other Constitutional Rights:

Step 1; The reviewing court will ask: Does the law infringe on a Constitutional Right?

If the answer is "yes," they proceed to Step 2; badly enough for us to strike down the law?

Then follows their Findings.


When it comes to carrying concealed, the answer to Step 1 is always the same; "No. Because carrying concealed is not Constitutionally protected."

There is no step 2.

Then follows our efforts being tossed out of the door.

But in Peterson, the 10th (following the HUGE hint in Heller) offered us this:

By contrast, had Peterson challenged the Denver ordinance, he may have obtained a ruling that allows him to carry a firearm openly while maintaining the state’s restrictions on concealed carry.


Which is perfectly HUGE hint from the 10th that we should be focusing on Open Carry.

True, the 7th Circuit did (in Moore) force concealed carry in Ill. But, is that really good for us? IVC gives me pause (ESPECIALLY since Madigan dropped the request for cert.):


This is actually a great summary, albeit a bit cryptic.

Madigan case was a very good case for two reasons: (1) it addressed a no-issue state, and, (2) the cert would have been filed by the state, giving it extra weight at SCOTUS.

Now, the court would have somewhat of an easy out by saying "some form of carry must be allowed," without saying anything about what the carry should look like (akin to Heller and ban on all handguns, but not addressing, e.g., AWB). On the other hand, by removing this from the table, the court might choose not to hear any carry case since they might not feel ready to address the "allowed restrictions" on carry, much like they didn't address the "allowed restrictions" on firearms (read: AWB).


Maybe. Then again, maybe not. Maybe SCOTUS is waiting for us to take the hint. Maybe they're wondering why the Circuits can read Heller so clearly & why we can't. Maybe we should make LOC the schwerpunkt of Woolard. SCOTUS mentioned Nunn & all those other 19th Century carry cases for a reason. As requiring a license for the exercise of a Constitutional Right is repugnant to the Constitution, make it a case for UNlicensed LOC. While a win would allow stupid CCW regs, the practical effect would be sensible CCW regs (as in Ohio).

It would also protect the interstate carriage of guns.

If we can carry a handgun across state lines, there would be no reason we couldn't buy handguns across state lines.

State restrictions on what we can buy (like the PRK's Roster) would be gone.

Sec. 626.9 CPC would be gone.

True, separate cases would have to be filed for each of these, but we would be attacking from a position of strength. Instead of arguing REAL common sense vs. the grabberz version of "common sense," we'd have the power of a clearly delineated Right to throw at them.

In short, there's nothing bad with having unlicensed LOC as the Minimum Constitutional Standard & a whole lotta good.


The Raisuli

M. D. Van Norman
07-13-2013, 8:33 AM
We are attempting to use government to perform a social regeneration. It has never worked before, why would it now? We do have some small chance of finding a path to social regeneration. If we can do that, we might pull off the impossible twice in human history in a single nation.…

All our hopes and fears …

I had allowed myself to hope, because a true victory for the right to arms would strike to the very heart of the problem … but it appears increasingly likely that our legalistic victories may prove empty.

On the other hand, the moment that the social contract is completely broken will be as profoundly liberating as it will be frightening. That moment may come in October. I find myself looking toward the possibility with that curious mixture of elation and dread.

IVC
07-13-2013, 8:54 AM
In short, there's nothing bad with having unlicensed LOC as the Minimum Constitutional Standard & a whole lotta good.

Justice Ruth Bader Ginsburg would get a hear attack just from hearing such a case. The "living breathing document" doctrine would certainly rule out LOC as anything close to reasonable in today's society. We can barely get that 2A is an *individual* right and Sotomayor acknowledged Heller, but dissented in McDonald anyway.

radgokart
07-13-2013, 9:06 AM
Which is perfectly HUGE hint from the 10th that we should be focusing on Open Carry.
[...]
Maybe. Then again, maybe not. Maybe SCOTUS is waiting for us to take the hint. Maybe they're wondering why the Circuits can read Heller so clearly & why we can't. Maybe we should make LOC the schwerpunkt of Woolard. SCOTUS mentioned Nunn & all those other 19th Century carry cases for a reason. As requiring a license for the exercise of a Constitutional Right is repugnant to the Constitution, make it a case for UNlicensed LOC.

This seems to be what Nichols v. Brown is focusing on, but on his website, Nichols says that the CA pro-gun side hates him for his lawsuit. Any ideas on that?

meaty-btz
07-13-2013, 9:34 AM
All our hopes and fears …

I had allowed myself to hope, because a true victory for the right to arms would strike to the very heart of the problem … but it appears increasingly likely that our legalistic victories may prove empty.

On the other hand, the moment that the social contract is completely broken will be as profoundly liberating as it will be frightening. That moment may come in October. I find myself looking toward the possibility with that curious mixture of elation and dread.

Indeed but the price of social reformation has always been bloodshed. People think anti-government revolutions are bloody. Social revolutions (real ones, not the 60s which was embracing of decadence and self-interest) solidify their hold by elimination of the other society. I tell people over and over again culture wars are terrible things. Most of the middle east issues are culture wars, very old ones. We happen to be involved in a culture war with them as well. There cannot ever exist two dominant cultures or societies side by side. One must grow and the other diminish. They are always antagonistic towards each other and often openly violent.

So when it comes it will be as it always has been in history: convert or die. Ugly by any measure. It is little wonder that being mostly good people we try to find a less bloody route, even knowing it to be a pointless move. We are moral people and that really drives us, elsewise we would be like the rest.

Now there is still a small hope but it would require grave changes to ourselves first. Sometimes a government that is For the People is less bad than a government By the People. A government by the people will always be as corrupt as the People are. A government for the People is only as bad as itself. Which is better? A benign and loving dictatorship or a Corrupt Republic led by some of the most evil men in existence? I think the Great Experiment that our founders put in place is starting to complete it's course. They of course knew the nature of thins when they established it. Which is why you see writings concerning how it is only fit for a moral people. They hoped regular regime changes would continue a system of governmental regeneration and hoped that society itself would find peaceful means to regenerate over time and thus found a renewing good nation. It was a nice dream.

El Toro
07-13-2013, 9:48 AM
This just won't happen..
...The reviewing court will ask: Does the law infringe the protected Constitutional Right? No, Because carrying concealed is not Constitutionally protected.

...Which is perfectly HUGE hint... that we should be focusing on Open Carry.
....In short, there's nothing bad with having unlicensed LOC as the Minimum Constitutional Standard & a whole lotta good.

The Raisuli

This has struck me many times over as our true focus since I joined this site. I couldnt get my head around why our efforts have been to focus on CCW as a right. Its always been an exclusive privlege while open carry would have been the founders intent as "BEAR" would indicate.

The problem is that for over 150 years, local and State governemnts have trampled this right in the name of police order. If youre bearing within the city limits, you are disturbing the peace.

I think we absolutely need to define a strategy for "bear" that the SCOTUS would accept.

press1280
07-13-2013, 10:04 AM
This has struck me many times over as our true focus since I joined this site. I couldnt get my head around why our efforts have been to focus on CCW as a right. Its always been an exclusive privlege while open carry would have been the founders intent as "BEAR" would indicate.

The problem is that for over 150 years, local and State governemnts have trampled this right in the name of police order. If youre bearing within the city limits, you are disturbing the peace.

I think we absolutely need to define a strategy for "bear" that the SCOTUS would accept.

On that note, Woollard's petition ends this way: Finally, because Maryland’s law operates without
distinction between the concealed and open carrying
of handguns, confusing questions as to the manner in
which Woollard might exercise his rights are avoided.
Petitioners would assert that the Legislature may
determine the manner in which handguns are carried,
but that issue is absent here.
I don't see that an unlicensed LOC case would gain any more support for cert than what we currently have in Woollard, other than the court may be waiting for other opinions on the matter.

MudCamper
07-13-2013, 10:12 AM
In the hierarchy of possible outcomes, the worst would be for the U.S. Supreme Court to rule that blanket prohibitions are unconstitutional and then to refuse further guidance in the face of legislative and judicial revolts. This is the only possible route back to something resembling the old status quo. It would allow the political noose to continue slowly tightening around our necks, demonstrating once again that there are possibilities worse than violence.

No. In the hierarchy of possible outcomes, the worst would be for the U.S. Supreme Court to remain silent from this point forward, thereby only protecting keep in the home, and even that is something the judiciary is interpreting as narrowly as possible (see Osterweil v Bartlett).

However, I must confess that after Kachalsky was rejected, my confidence in a positive outcome was shaken. I’ve now realized that, whether I intended it or not, my plans for the future have begun to assume that we won’t get any ruling on the right to carry. My focus has thus turned to retreat from California. :(

Sadly I am coming to the same conclusion. If SCOTUS denies cert in Woolard, I will seriously consider leaving my beloved home state of California.

OleCuss
07-13-2013, 10:46 AM
This has struck me many times over as our true focus since I joined this site. I couldnt get my head around why our efforts have been to focus on CCW as a right. Its always been an exclusive privlege while open carry would have been the founders intent as "BEAR" would indicate.
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To put it in a fairly simplistic manner? California has already chosen its manner of carry - which is CCW.

It is fairly well accepted within pro-RKBA jurisprudence that the government must allow carry but may choose the manner of carry. So trying to take on California law and to try to make them allow LOC is a losing proposition at this time.

So in California you get carry in the form of the Concealed Pistol License/CCW and you can actually be quite happy - and are likely to get far fewer "Man With Gun" calls (my apologies to the fairer sex, but that's what they're called). Getting shall-issue CCW also reduces the immediate hassles with GFSZs which makes shall-issue CCW actually useful for almost everyone in the state.

Personally, I think that once we have CCW established in this state that it will be merely a matter of time before the courts also require that LOC be legalized. It seems pretty darned inevitable if you ask me. . .

So we start with CCW and later get LOC. This is actually doable.

Trying to go initially to LOC in California would get us slapped around in court a lot. And even if you managed to get LOC in California, I do not see the path to eventually get CCW as well (might happen like in another state (Ohio?) but I'm not so sure it'd work the same in California).

El Toro
07-13-2013, 12:27 PM
Yes But....

LOC is only RECENTLY illegal. CalGuns has been so focused on CCW that when the open carry movement sprung up, our side was unprepared, lots of infighting, yada-yada. Now we have neither right except for vague and confusing CCW regulations that DO NOT ensure "bear". California has essentially denied all of its citizens a guaranteed right with PC-26350 including unloaded firearms.

Bringing me back to the question of 'What is our best strategy for overturning the open carry restrictions?' because waiting on SCOTUS to grant cert to a CCW case is not the path to obtain our right.

curtisfong
07-13-2013, 12:51 PM
the open carry movement

The CA "open carry movement" has no qualified legal minds participating in litigation that I can tell.

Until they do so, they will not make any progress in CA, where any sort of populist pro-rkba progress is simply arithmetically impossible.

Apocalypsenerd
07-13-2013, 2:20 PM
meaty-btz has a very articulate post on the core of our problem.

kf6tac
07-13-2013, 5:29 PM
Yes But....

LOC is only RECENTLY illegal.

Do you mean UOC is only recently illegal?

IIRC, LOC has been mostly illegal ever since the 60s when then-Governor Reagan banned it after seeing Black Panthers marching around in public with loaded guns. It could be done in unincorporated areas where discharge of a firearm is not prohibited, but that's it.

OleCuss
07-13-2013, 6:08 PM
Yes But....

LOC is only RECENTLY illegal. CalGuns has been so focused on CCW that when the open carry movement sprung up, our side was unprepared, lots of infighting, yada-yada. Now we have neither right except for vague and confusing CCW regulations that DO NOT ensure "bear". California has essentially denied all of its citizens a guaranteed right with PC-26350 including unloaded firearms.

Bringing me back to the question of 'What is our best strategy for overturning the open carry restrictions?' because waiting on SCOTUS to grant cert to a CCW case is not the path to obtain our right.

When LOC was made "illegal" is actually pretty irrelevant to determining legal strategy. The fact that the state has clearly chosen CCW as its method of carry is very relevant.

The OC which was recently outlawed is UOC. What is amazing to me is that the folk who went out and did demonstrations with UOC did not pursue legal action under the 1st Amendment. Their devotion to the cause was apparently eliminated by a stroke of the governor's pen. Seriously, I don't understand it and I wish someone would explain it.

But getting back to the LOC vs. CCW?

How, exactly, would you even file suit for LOC at this time? SCOTUS did a historical analysis and did not find that LOC constituted the fundamental right. SCOTUS also made it quite clear that the right was subject to regulation.

So right now if you were to file suit against the State of Kalifornia with a 2A argument that they must allow you to LOC, the court will virtually laugh at you. You haven't established either statutory or case law in this state showing that you have the right to carry outside your own home.

Oh, yes, I believe that the right extends way outside the home and that prohibited areas should meet extremely strict criteria. Don't get me wrong on what my opinion is. But the opinion of the majority of the courts which have opined is that the RKBA pretty much stops when you step outside your home.

We've expected the SCOTUS to correct what appears to be a glaring error in the case law but so far SCOTUS has declined every opportunity to correct this problem. This suggests that at this time SCOTUS either agrees with the proposition that the 2A protects only the RKBA inside the home - or just doesn't care to fix the problem for some reason.

So we've got a problem in this state. In this state the RKBA is considered to be a privilege at best - and subject to severely restrictive regulation. So far the 9th Circuit has effectively agreed.

So if you go to the court and say they have to grant LOC they're going to look at you like you both demented and under the influence of mind-altering medications. They won't believe that they have to grant the RKBA at all and even if they did think that they'd say that the state has every right to regulate the manner of carry.

There is no chance at this time that the state is going to allow LOC. Even my sheriff (whose policy is shall-issue CCW) wouldn't go along with LOC. The politics of LOC simply don't work for California at this time.

Net effect is that no matter what you want or believe, in this state we will get CCW before we get LOC no matter what you or I might desire. You'd have to have a horrifying disaster such as the entire LA and SF metropolitan areas slide off into the ocean in order to change the politics enough to go LOC in the near future.

So we pursue the possible. We go for shall-issue CCW. And frankly, once we've got CCW I'm convinced we can get LOC (although it would take a few years).

And immediate tactics? When the state outlawed UOC, logic dictated a virtually automatic win in Peruta. If you managed to get UOC back it might actually damage our chances of getting true carry of any sort.

The only winning strategy in this state is to argue for carry of a firearm ready for immediate defense in case of a deadly confrontation. The courts won't laugh at that argument although they are predisposed to disagree with us. But once we've got the RKBA this state will default to CCW. Then we can go for LOC - and I think it is almost obvious that we'll get it.

But you have to establish the RKBA first.

Let me point out a more practical standing issue which is more tactical than strategic? If you tried to file suit for LOC the court would simply say you didn't have standing. They would say that you already have a carry option available to you in the form of CCW. Since you didn't apply for a CCW and get denied, you don't have standing. And if you did apply for a CCW and got denied, you could then potentially have standing to sue, but that suit would be on the grounds that you were denied CCW rather than that you were denied LOC.

Now don't get me wrong, once your CCW denial case is filed the LOC issue does arise just a little bit in that you argue that the state has to allow carry. You argue that since the state has no mechanism for you to LOC, they have to let you CCW - and if they deny you CCW they have to let you LOC.

I'm not saying this is they way it should work. But I'm saying that this is how it does work. In this state if you want even a tiny chance at RKBA you bring suit based on denial of CCW.

But again, once you've got CCW you can go for LOC by an argument which may not be evident to everybody at this time but seems obvious to me.

El Toro
07-13-2013, 6:42 PM
WOW Sorry for the bad statement I meant UOC being recently denied yet my statement still stands, we have focused on CCW when we need a strategy to get LOC. THIS could be the way....

Let me point out a more practical standing issue which is more tactical than strategic? If you tried to file suit for LOC the court would simply say you didn't have standing. They would say that you already have a carry option available to you in the form of CCW. Since you didn't apply for a CCW and get denied, you don't have standing. And if you did apply for a CCW and got denied, you could then potentially have standing to sue, but that suit would be on the grounds that you were denied CCW rather than that you were denied LOC.

Now don't get me wrong, once your CCW denial case is filed the LOC issue does arise just a little bit in that you argue that the state has to allow carry. You argue that since the state has no mechanism for you to LOC, they have to let you CCW - and if they deny you CCW they have to let you LOC.

Maestro Pistolero
07-14-2013, 12:10 AM
Is it really moot if they are still enforcing the old law until their CCW licensing is up and running?

OleCuss
07-14-2013, 3:38 AM
Is it really moot if they are still enforcing the old law until their CCW licensing is up and running?

Nope. And I've heard that they plan legal action to fix that - I'm not at all certain it will work.

Mulay El Raisuli
07-14-2013, 3:48 AM
All our hopes and fears …

I had allowed myself to hope, because a true victory for the right to arms would strike to the very heart of the problem … but it appears increasingly likely that our legalistic victories may prove empty.

On the other hand, the moment that the social contract is completely broken will be as profoundly liberating as it will be frightening. That moment may come in October. I find myself looking toward the possibility with that curious mixture of elation and dread.


What happens in October?


This seems to be what Nichols v. Brown is focusing on, but on his website, Nichols says that the CA pro-gun side hates him for his lawsuit. Any ideas on that?


Nichols just ain't that good a litigator.


On that note, Woollard's petition ends this way: Finally, because Maryland’s law operates without
distinction between the concealed and open carrying
of handguns, confusing questions as to the manner in
which Woollard might exercise his rights are avoided.
Petitioners would assert that the Legislature may
determine the manner in which handguns are carried,
but that issue is absent here.
I don't see that an unlicensed LOC case would gain any more support for cert than what we currently have in Woollard, other than the court may be waiting for other opinions on the matter.


The problem here is that legislatures do NOT get to determine manner of carry. Heller defined which manner of carry is Constitutionally protected quite clearly. Concealed Carry isn't the Right. OPEN carry is. That's why an LOC case would "gain more support" than a CCW case.


To put it in a fairly simplistic manner? California has already chosen its manner of carry - which is CCW.

It is fairly well accepted within pro-RKBA jurisprudence that the government must allow carry but may choose the manner of carry. So trying to take on California law and to try to make them allow LOC is a losing proposition at this time.

So in California you get carry in the form of the Concealed Pistol License/CCW and you can actually be quite happy - and are likely to get far fewer "Man With Gun" calls (my apologies to the fairer sex, but that's what they're called). Getting shall-issue CCW also reduces the immediate hassles with GFSZs which makes shall-issue CCW actually useful for almost everyone in the state.

Personally, I think that once we have CCW established in this state that it will be merely a matter of time before the courts also require that LOC be legalized. It seems pretty darned inevitable if you ask me. . .

So we start with CCW and later get LOC. This is actually doable.

Trying to go initially to LOC in California would get us slapped around in court a lot. And even if you managed to get LOC in California, I do not see the path to eventually get CCW as well (might happen like in another state (Ohio?) but I'm not so sure it'd work the same in California).


Again (and as shown before in this thread) the states don't get to choose manner of carry. While the belief that they do is indeed "well accepted," that thinking is wrong. As shown by my quote from the 10th Circuit above. So, no, we wouldn't get slapped around by the courts. Not the Federal Courts anyway.

Can you share your thoughts as to why you think the Ohio precedent wouldn't work here in the PRK?


How, exactly, would you even file suit for LOC at this time? SCOTUS did a historical analysis and did not find that LOC constituted the fundamental right. SCOTUS also made it quite clear that the right was subject to regulation.

So right now if you were to file suit against the State of Kalifornia with a 2A argument that they must allow you to LOC, the court will virtually laugh at you. You haven't established either statutory or case law in this state showing that you have the right to carry outside your own home.


Yes, SCOTUS did indeed analyze the Right. And concluded that it is Open Carry that is the Protected Right. Which would the case law to use.


Oh, yes, I believe that the right extends way outside the home and that prohibited areas should meet extremely strict criteria. Don't get me wrong on what my opinion is. But the opinion of the majority of the courts which have opined is that the RKBA pretty much stops when you step outside your home.


Actually, it isn't. The courts have gone along with Heller & Found that Concealed Carry isn't the Protected Right.


We've expected the SCOTUS to correct what appears to be a glaring error in the case law but so far SCOTUS has declined every opportunity to correct this problem. This suggests that at this time SCOTUS either agrees with the proposition that the 2A protects only the RKBA inside the home - or just doesn't care to fix the problem for some reason.


It isn't for "some reason." Its because each & every case to be presented to them has tried to make Concealed Carry the Protected Right. Since they were clear in Heller that Concealed Carry is NOT the Protected Right, I was & am not surprised that SCOTUS declined to look at those cases.


So we've got a problem in this state. In this state the RKBA is considered to be a privilege at best - and subject to severely restrictive regulation. So far the 9th Circuit has effectively agreed.

So if you go to the court and say they have to grant LOC they're going to look at you like you both demented and under the influence of mind-altering medications. They won't believe that they have to grant the RKBA at all and even if they did think that they'd say that the state has every right to regulate the manner of carry.


OF COURSE the 9th has agreed. Concealed Carry isn't the Protected Right. What would happen if we took the hint offered in Heller is something we won't know until we try.


There is no chance at this time that the state is going to allow LOC. Even my sheriff (whose policy is shall-issue CCW) wouldn't go along with LOC. The politics of LOC simply don't work for California at this time.

Net effect is that no matter what you want or believe, in this state we will get CCW before we get LOC no matter what you or I might desire. You'd have to have a horrifying disaster such as the entire LA and SF metropolitan areas slide off into the ocean in order to change the politics enough to go LOC in the near future.


The politics are irrelevant when Rulings from Federal Courts are concerned.


So we pursue the possible. We go for shall-issue CCW. And frankly, once we've got CCW I'm convinced we can get LOC (although it would take a few years).


Again, making Concealed Carry the Protected Right isn't possible.


And immediate tactics? When the state outlawed UOC, logic dictated a virtually automatic win in Peruta. If you managed to get UOC back it might actually damage our chances of getting true carry of any sort.

The only winning strategy in this state is to argue for carry of a firearm ready for immediate defense in case of a deadly confrontation. The courts won't laugh at that argument although they are predisposed to disagree with us. But once we've got the RKBA this state will default to CCW. Then we can go for LOC - and I think it is almost obvious that we'll get it.

But you have to establish the RKBA first.


Who's pushing for UOC? Certainly not me.

As for what should be established first, my suggestion is to follow Heller.


Let me point out a more practical standing issue which is more tactical than strategic? If you tried to file suit for LOC the court would simply say you didn't have standing. They would say that you already have a carry option available to you in the form of CCW. Since you didn't apply for a CCW and get denied, you don't have standing. And if you did apply for a CCW and got denied, you could then potentially have standing to sue, but that suit would be on the grounds that you were denied CCW rather than that you were denied LOC.


Of course I'd have standing. The "option" of CCW doesn't matter since Concealed Carry isn't the Protected Right.


Now don't get me wrong, once your CCW denial case is filed the LOC issue does arise just a little bit in that you argue that the state has to allow carry. You argue that since the state has no mechanism for you to LOC, they have to let you CCW - and if they deny you CCW they have to let you LOC.

I'm not saying this is they way it should work. But I'm saying that this is how it does work. In this state if you want even a tiny chance at RKBA you bring suit based on denial of CCW.


But the state is allowed to deny Concealed Carry. It isn't the Protected Right. The only form of carry that is Protected is Open Carry.


But again, once you've got CCW you can go for LOC by an argument which may not be evident to everybody at this time but seems obvious to me.


Well, its not obvious to me. Would you share?


The Raisuli

OleCuss
07-14-2013, 6:18 AM
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The problem here is that legislatures do NOT get to determine manner of carry. Heller defined which manner of carry is Constitutionally protected quite clearly. Concealed Carry isn't the Right. OPEN carry is. That's why an LOC case would "gain more support" than a CCW case.
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Again (and as shown before in this thread) the states don't get to choose manner of carry. While the belief that they do is indeed "well accepted," that thinking is wrong. As shown by my quote from the 10th Circuit above. So, no, we wouldn't get slapped around by the courts. Not the Federal Courts anyway.

I'm sorry, I think I missed where Heller specified LOC as the "Protected Right" and where McDonald either reinforced that or at least did not modify it. And it would help if any such applicable verbiage from SCOTUS were not dicta. If you could help me out on this, I'd be much obliged.

Can you share your thoughts as to why you think the Ohio precedent wouldn't work here in the PRK?

I didn't say I didn't think the Ohio precedent wouldn't work here in the PRK.

Yes, SCOTUS did indeed analyze the Right. And concluded that it is Open Carry that is the Protected Right. Which would the case law to use.

Again, I'd really appreciate seeing the citation and I'm hoping it won't be dicta.

Actually, it isn't. The courts have gone along with Heller & Found that Concealed Carry isn't the Protected Right.

At best that is somewhat over-generalized (I admit to having made that error much more than once myself). But in any case, I am not sure that the statement is on point.

The problem with the courts is that a whole bunch of them have said that the RKBA is effectively limited to inside the home. They mostly don't even effectively reach the question of LOC vs. CCW since even here in the PRK you can do LOC inside the home.

It isn't for "some reason." Its because each & every case to be presented to them has tried to make Concealed Carry the Protected Right. Since they were clear in Heller that Concealed Carry is NOT the Protected Right, I was & am not surprised that SCOTUS declined to look at those cases.

I'm sorry, but this one is just plain silly.

Could you please present your evidence that the SCOTUS has been denying cert ". . .because each & every case to be presented to them has tried to make Concealed Carry the Protected Right"?

I don't think I've yet run into anyone else who had that kind of back-channel communication with/from SCOTUS to where they could make such an assertion.

If you do, indeed, have that kind of communication with SCOTUS to where you:
1. Get the information on how and why cert is denied in various cases.
2. Are free to disclose that information in a public forum.

- I (and a whole bunch of lawyers and non-lawyers) have a whole lot of questions for you.

And I don't think it is a proper characterization to say that, ". . .each & every case to be presented to them has tried to make Concealed Carry the Protected Right."

Those cases have generally been in the mode of, "LOC is prohibited and CCW is technically allowed but in practice they deny even CCW. Carry is a fundamental right and you have to allow carry in some form."

There is no attempt to "make CCW the Protected Right". It's a matter of doing what is actually possible. And as I pointed out earlier, in states such as Kalifornia, if you file a case suing for LOC you'll get no respect from the courts and will lose based on standing.

I suspect you won't agree with me, but that doesn't mean you're right.


OF COURSE the 9th has agreed. Concealed Carry isn't the Protected Right. What would happen if we took the hint offered in Heller is something we won't know until we try.

I'm sorry, but do you really think that the 9th believes that LOC is a Protected Right? Seriously? It seems like that is what you are implying. . . Do remember that this is the court which, when presented with a 3-judge panel which incorporated the 2A was so horrified at the very idea that having/carrying a firearm was a right at all that the court took the case en banc (without a request for en banc IIRC) and thereby de-published the opinion.

The idea that the 9th Circuit accepts any form of carry, let alone LOC is quite unsupported. Now if the 9th hands down one of the cases they are sitting on, then your suggestion just might gain credence depending on exactly what they say. You have no idea how entertained/pleased/stunned I'd be if the 9th said something like, "your prayer for relief is denied because CCW is not a protected right, it is LOC which is a protected right and which must be respected by the State".

The politics are irrelevant when Rulings from Federal Courts are concerned.

Oh, I wish.

Again, making Concealed Carry the Protected Right isn't possible.

Absolutely correct on this statement.

Who's pushing for UOC? Certainly not me.

This is really quite interesting and sort of eludes a question I asked.

First, I didn't say you were pushing for UOC.

Second, I really don't understand why the UOC movement evaporated. These were folk who insisted UOC is a fundamental right and it must be exercised in order to preserve it. Then the Moonbeam signs the law outlawing it and the UOC movement (at least from my perspective) evaporated.

To me it seemed like the UOCers had an obvious 1st Amendment case in that their right to free expression had just been gutted. They'd effectively worked at getting standing since they had been having demonstrations (can we say "speech" here) and now their demonstrations were outlawed.

It just seems so obvious that they should have filed suit but instead it appears to me that they went meekly away instead of eviscerating the idiot legislation which took away their free speech rights.
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Of course I'd have standing. The "option" of CCW doesn't matter since Concealed Carry isn't the Protected Right.

I do not doubt you believe you would have standing. The bald assertion does not make it so, however.

To go a little further? I actually think that you should have standing in such a case. I just don't believe that any court would agree with me - or you.

I think that the history of standing arguments in 2A cases does not give me any confidence at all that you would be considered by the courts to have standing.

But the state is allowed to deny Concealed Carry. It isn't the Protected Right. The only form of carry that is Protected is Open Carry.

Again, I'm not asserting that CCW is the protected right. I actually don't know anyone who does.

Personally, I would be interested in seeing if you could get any lawyer to actually even try to file an LOC case on your behalf. If you managed to find the lawyer who would help you, I'd still bet that you very rapidly get dismissed.

Well, its not obvious to me. Would you share?


The Raisuli

Nope. Not going to share that one as I'd rather that DOJ and company not understand just how that would work.

hardlyworking
07-14-2013, 7:44 AM
IMO OleCuss is right as rain here, not just from a legal standpoint but also a "common man" logical reasoning.

Politics ARE at play. Absolutely. There's a reason the 9th is so anti, and its not because they forgot to eat their Wheaties.

His logic on CCW vs LOC as relates to major metro coastal CA (the reason we are so infringed right now) is very well reasoned, and likely the only way to fly in terms of how we can get RKBA in ANY form here from the 9th.

Chatterbox
07-14-2013, 8:18 AM
The main effect will be that if SCOTUS takes up Woollard, the 9th will put a hold on Richards, Peruta et. al until Woollard is done. So we won't have any movement on those cases until late 2014 at the earliest.

El Toro
07-14-2013, 8:43 AM
To me it seemed like the UOCers had an obvious 1st Amendment case in that their right to free expression had just been gutted. They'd effectively worked at getting standing since they had been having demonstrations (can we say "speech" here) and now their demonstrations were outlawed.


OleCuss,

Both Raisuli and you make good points although I think some of Raisuli's conclusions regarding SCOTUS intent is inferred but I don't think he meant to say they were anything otherwise. It is the only info we have right now.

Look, this is how I see our current situation in CA, NO LOC, NO UOC, NO Guarantee of CCW so we've affectively got zero 2A rights (outside of the home) Inside the home we are told exactly what we can keep so, NO AW, NO Un-Rostered Handguns (just go with it here) Our state has THE MOST restrictive 2A rights and our side has been trying to get CCW, the least guaranteed right.

With Kachalsky, we can infer that SCOTUS will not support CCW as THE Right. So we can infer LOC and therefore need to pursue that as the Right in which case I presume is Woolard.

In the meantime, we should also pursue UOC because of the good points you make above.

Sorry BTW, Didn't mean to start a flame war :cool:

press1280
07-14-2013, 9:33 AM
Woollard is NOT a CCW case, unlike Kachalsky and even Richards/Peruta. The court won't have to deal with that issue. The problem with an unlicensed open carry case is getting standing (w/o being arrested first), not to mention the state will make a big stink about licensing,exc. That's why Woollard is a better case for the court than say Nichols at this time.

OleCuss
07-14-2013, 9:43 AM
OleCuss,

Both Raisuli and you make good points although I think some of Raisuli's conclusions regarding SCOTUS intent is inferred but I don't think he meant to say they were anything otherwise. It is the only info we have right now.

Look, this is how I see our current situation in CA, NO LOC, NO UOC, NO Guarantee of CCW so we've affectively got zero 2A rights (outside of the home) Inside the home we are told exactly what we can keep so, NO AW, NO Un-Rostered Handguns (just go with it here) Our state has THE MOST restrictive 2A rights and our side has been trying to get CCW, the least guaranteed right.

With Kachalsky, we can infer that SCOTUS will not support CCW as THE Right. So we can infer LOC and therefore need to pursue that as the Right in which case I presume is Woolard.

In the meantime, we should also pursue UOC because of the good points you make above.

Sorry BTW, Didn't mean to start a flame war :cool:

Good post. Much appreciated.

But I think too much is inferred from the lack of cert so far.

Cert officially requires 4 Justices to support cert for the case. But especially on something like the RKBA a strong supporter of the RKBA is not going to take a 2A case unless he/she has 5 votes in hand for a favorable outcome.

It may be that SCOTUS at this time is simply unwilling to go any farther than they've already gone.

It may be that they don't want Gura in their courtroom again.

It may be that they don't think the jurisprudence is really ripe for a ruling.

It may be that they are waiting for more legislative action of a certain type.

Remember that some of these folk are fairly good at prognosticating on what will happen. Scalia has shown some ability in this regard. So you might argue that one or more of the Heller 5 really don't like where certain cases would take them.

There are a whole lot of reasons they might choose not to take a case and there could be a whole bunch of reasons I cannot imagine.

I think it is going way too far to suggest that their failure to take a carry case is because they want a LOC case. After all, they could easily take care of that by taking a CCW-related case and then rule against them and specify in their holding that they are refusing to grant the relief in the CCW case because the right is for LOC.

And it would be very, very simple for them to do that since I think every single carry case which has petitioned for cert has said that we have a right to carry and that since LOC is not available they have a right to CCW. The net effect is that the prayer for relief is for carry, not really for CCW or for LOC. That leaves it a trivial matter for the court to simply say, "No, you don't get to have CCW because the fundamental right is for LOC."

If SCOTUS did that the problem would be very nicely solved and we'd have LOC. Then we could try what was done in Ohio to get a legislative cure for the lack of CCW (potential legal action as well although the legal path to go from LOC to CCW is not as clear to me as it is for going from CCW to LOC).

Net effect is that we don't know why SCOTUS has not yet taken a carry case. But I find it very difficult to argue that it is because it is a CCW case when they could very easily use a CCW case to rule for LOC.

M. D. Van Norman
07-14-2013, 10:02 AM
What happens in October?

The results of the Supreme Court’s long conference will be announced. We will most likely know whether Woollard will be reviewed at that time.

Maestro Pistolero
07-14-2013, 2:34 PM
Yes, SCOTUS did indeed analyze the Right. And concluded that it is Open Carry that is the Protected Right. Which would the case law to use.Then the Moore decision stands in conflict with SCOTUS view, no? Would that not compell the court to take a related case to clear the record on the matter? And what of the possibility that enough of the Heller five aren't biting on any cert petitions because they don't have votes for a favorable result?

kcbrown
07-14-2013, 2:45 PM
Yes, SCOTUS did indeed analyze the Right. And concluded that it is Open Carry that is the Protected Right. Which would the case law to use.


No, this is patently incorrect.

SCOTUS cited cases in which the courts explicitly protected open carry, from a time when society regarded concealed carry as something only scofflaws would do.

SCOTUS did not conclude that open carry is the protected right from that. They did not state any conclusions to that effect whatsoever, and I challenge you to cite the passage where they actually state that conclusion.


No, the inference here is yours. It is your belief that SCOTUS favors open carry, on the basis of the cases they have cited. But that is very different from SCOTUS concluding that open carry is the right, for the latter requires that they actually say as much, and they haven't.

Unless, of course, you're SCOTUS. In which case, why didn't you take Kachalsky and explicitly rule that open carry is the right? :D

El Toro
07-14-2013, 4:51 PM
Inference is all we have. Of course it's a guessing game but that is the how we appropriately develop a plan, by trying to guess at possible meaning to SCOTUS action/inaction.

You and I both know that it's a game but Id like to have a strategy that's sound before we exhaust so much effort on things we don't have to guess (e.g. CCW isn't a protected right) won't get us anywhere. If there is any chance at Bear outside the home, which is most likely? CCW? LOC? UOC?

Now if there is a bigger plan, of which most of us cannot even fathom, then so be it. I can sit in the dark a little while longer. However, if we're just poking a stick at it to see what happens then we are going about this the wrong way. There are a lot of people here that would get behind the folks fighting this fight if only we know which way we were headed. Right now, it doesn't look like we are headed anywhere near a good outcome.

hardlyworking
07-14-2013, 5:29 PM
If there is any chance at Bear outside the home, which is most likely? CCW? LOC? UOC?
If I had to guess? Some form of carry must be allowed to non-prohibited persons, left up to state legislatures to decide for themselves. I can't see them pushing open carry as the default because "living document" types heads would explode. Best to leave it up to the states and just say "you must do SOMEthing, what you do is up to you"

readysetgo
07-14-2013, 5:40 PM
If there is any chance at Bear outside the home, which is most likely? CCW? LOC? UOC?

Why the need to define it so narrowly? Aren't those all different forms of "bear"? Throw out unloaded anything right away anyways, IMO.

If I had to guess? Some form of carry must be allowed to non-prohibited persons, left up to state legislatures to decide for themselves. I can't see them pushing open carry as the default because "living document" types heads would explode. Best to leave it up to the states and just say "you must do SOMEthing, what you do is up to you"

^^^ Pretty much.

At the top level, acknowledge the right to "bear" outside the home and that it shall not be infringed. Defining bear as to carry upon ones person. After that, it's for the birds. This seems to be the general theory, I think. That's not taking into account what's possible/being asked w/ the current line up of available litigation.

Peaceful John
07-14-2013, 5:50 PM
If there is any chance at Bear outside the home, which is most likely? CCW? LOC? UOC?

It's not clear that we have any direct "bear" cases ready for SCOTUS at the moment. Expectations are high, however, with Woollard, which challenges whether a person must provide "good and substantial" reason(s) prior to exercising a fundamental right. If Woollard prevails "may issue" might swiftly segue into "shall issue".

Although the argument is phrased in a 2nd A context, it is not solely a 2nd A question, but lies at the core of our form of government.

press1280
07-15-2013, 12:01 AM
It's not clear that we have any direct "bear" cases ready for SCOTUS at the moment. Expectations are high, however, with Woollard, which challenges whether a person must provide "good and substantial" reason(s) prior to exercising a fundamental right. If Woollard prevails "may issue" might swiftly segue into "shall issue".

Although the argument is phrased in a 2nd A context, it is not solely a 2nd A question, but lies at the core of our form of government.

Woollard is a direct "bear" case-MD's law is a "permit to carry a handgun". Not specific on CC or OC. That's what we want, IMO. Watch MD's response do their best to simply tie this to CC, and not mention OC.

Peaceful John
07-15-2013, 6:27 AM
Woollard is a direct "bear" case-MD's law is a "permit to carry a handgun". Not specific on CC or OC. That's what we want, IMO. Watch MD's response do their best to simply tie this to CC, and not mention OC.

SECOND AMENDMENT FOUNDATION, INC.,
Petitioners,
v.
DENIS GALLAGHER, et al.,
Respondents.
---------------------------------  ---------------------------------
On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Fourth Circuit
---------------------------------  ---------------------------------
PETITION FOR A WRIT OF CERTIORARI
---------------------------------  ---------------------------------
CARY HANSEL
JOSEPH, GREENWALD
AND LAAKE
6404 Ivy Lane, Suite 400
Greenbelt, Maryland 20770
301.220.2200
ALAN GURA*
GURA & POSSESSKY, PLLC
101 N. Columbus Street,
Suite 405
Alexandria, Virginia 22314
703.835.9085
alan@gurapossessky.com
*Counsel of Record
================================================== ==============
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
QUESTION PRESENTED
This Court has held that the Second Amendment
“guarantee[s] the individual right to possess and
carry weapons in case of confrontation.” District of
Columbia v. Heller, 554 U.S. 570, 592 (2008). Maryland
generally prohibits the carrying of handguns for
self-defense absent a permit, issued only to individuals
who first prove a “good and substantial reason” for
doing so. Md. Code Ann., Pub. Safety § 3-506(a)(5)(ii).

The question presented is:
Whether state officials violate the Second
Amendment by requiring that individuals wishing to
exercise their right to carry a handgun for selfdefense
first prove a “good and substantial reason” for
doing so.

(Emphasis added)

Paladin
07-15-2013, 12:21 PM
LOL...74/75/76....quick reads...Can't wait for the district court to rule. Looks like it is still going to take some time for a reply or at least ISRA said IL should reply back by 7/16.Bump to make sure we watch for this.

Mulay El Raisuli
07-15-2013, 2:51 PM
The results of the Supreme Court’s long conference will be announced. We will most likely know whether Woollard will be reviewed at that time.


Thank you.


I'm sorry, I think I missed where Heller specified LOC as the "Protected Right" and where McDonald either reinforced that or at least did not modify it. And it would help if any such applicable verbiage from SCOTUS were not dicta. If you could help me out on this, I'd be much obliged.


It was where they discussed Nunn and all the other 19th Cent carry cases. Your wish that it not be dicta is not granted because Heller was about in the home & so everything aside from that had to be dicta. That doesn't mean it isn't telling. The Circuits certainly thought it was clear enough.


I didn't say I didn't think the Ohio precedent wouldn't work here in the PRK.


You said, "Trying to go initially to LOC in California would get us slapped around in court a lot. And even if you managed to get LOC in California, I do not see the path to eventually get CCW as well (might happen like in another state (Ohio?) but I'm not so sure it'd work the same in California)."


At the very least, this is you expressing doubt that the Ohio experience would work here in the PRK.


At best that is somewhat over-generalized (I admit to having made that error much more than once myself). But in any case, I am not sure that the statement is on point.

The problem with the courts is that a whole bunch of them have said that the RKBA is effectively limited to inside the home. They mostly don't even effectively reach the question of LOC vs. CCW since even here in the PRK you can do LOC inside the home.


The 2nd Circuit in Kachalsky & (most tellingly) the 10th Circuit in Peterson have made it clear that they took SCOTUS's words in Heller as 'CCW isn't protected, but Open carry is.' As quoted above, the 10th went even further, noting that a challenge to Denver's ban on open carry might have worked. You really think they added that as some sort of tease? You really think that wasn't guidance?


I'm sorry, but this one is just plain silly.

Could you please present your evidence that the SCOTUS has been denying cert ". . .because each & every case to be presented to them has tried to make Concealed Carry the Protected Right"?

I don't think I've yet run into anyone else who had that kind of back-channel communication with/from SCOTUS to where they could make such an assertion.

If you do, indeed, have that kind of communication with SCOTUS to where you:
1. Get the information on how and why cert is denied in various cases.
2. Are free to disclose that information in a public forum.

- I (and a whole bunch of lawyers and non-lawyers) have a whole lot of questions for you.


You can't tell that I'm expressing an opinion as to the motives of SCOTUS???

OTOH, I can see what they're being presented, why we lost in the Circuits, & I can read the actual words of Heller. I could indeed be wrong, its just doesn't look that way. As El Toro points out, inference is all we have. But to clarify, this is my best guess based on the facts.


And I don't think it is a proper characterization to say that, ". . .each & every case to be presented to them has tried to make Concealed Carry the Protected Right."

Those cases have generally been in the mode of, "LOC is prohibited and CCW is technically allowed but in practice they deny even CCW. Carry is a fundamental right and you have to allow carry in some form."

There is no attempt to "make CCW the Protected Right". It's a matter of doing what is actually possible. And as I pointed out earlier, in states such as Kalifornia, if you file a case suing for LOC you'll get no respect from the courts and will lose based on standing.

I suspect you won't agree with me, but that doesn't mean you're right.


And which statutes are we attacking on those cases? Could it be the CCW statutes? Your own words here prove me right. Because "in some form" is, when coupled with the statutes being attacked, proof that what is being attempted is to make CCW the Protected Right.

Which will not work.


I'm sorry, but do you really think that the 9th believes that LOC is a Protected Right? Seriously? It seems like that is what you are implying. . . Do remember that this is the court which, when presented with a 3-judge panel which incorporated the 2A was so horrified at the very idea that having/carrying a firearm was a right at all that the court took the case en banc (without a request for en banc IIRC) and thereby de-published the opinion.

The idea that the 9th Circuit accepts any form of carry, let alone LOC is quite unsupported. Now if the 9th hands down one of the cases they are sitting on, then your suggestion just might gain credence depending on exactly what they say. You have no idea how entertained/pleased/stunned I'd be if the 9th said something like, "your prayer for relief is denied because CCW is not a protected right, it is LOC which is a protected right and which must be respected by the State".


The 10th came about as close to those words as they could, given the rules under which they operate. So, yeah, I think an effort (by a competent lawyer) before the 9th for LOC might just carry the day. Throwing up our hands & saying "They suck!" won't get us anywhere though.


Oh, I wish.


There were a whole lot of politicians unhappy with Federal Court Rulings in that other fight for Civil Rights. Their unhappiness was irrelevant.


Absolutely correct on this statement.


And yet, you've spent a whole of time & effort to tell me different. :confused:


This is really quite interesting and sort of eludes a question I asked.

First, I didn't say you were pushing for UOC.

Second, I really don't understand why the UOC movement evaporated. These were folk who insisted UOC is a fundamental right and it must be exercised in order to preserve it. Then the Moonbeam signs the law outlawing it and the UOC movement (at least from my perspective) evaporated.

To me it seemed like the UOCers had an obvious 1st Amendment case in that their right to free expression had just been gutted. They'd effectively worked at getting standing since they had been having demonstrations (can we say "speech" here) and now their demonstrations were outlawed.

It just seems so obvious that they should have filed suit but instead it appears to me that they went meekly away instead of eviscerating the idiot legislation which took away their free speech rights.


First, you said, "And immediate tactics? When the state outlawed UOC, logic dictated a virtually automatic win in Peruta. If you managed to get UOC back it might actually damage our chances of getting true carry of any sort."

Who's the "you" there if not the person you're addressing? And if not me, who is working to bring back UOC???

(And, just support my claim in general, we still don't have that "automatic" win in Peruta, do we?)

Second, I don't know why a challenge wasn't filed. I liked the idea myself.


I do not doubt you believe you would have standing. The bald assertion does not make it so, however.

To go a little further? I actually think that you should have standing in such a case. I just don't believe that any court would agree with me - or you.

I think that the history of standing arguments in 2A cases does not give me any confidence at all that you would be considered by the courts to have standing.


My belief on this is based on the commentary of the 10th Circuit in Peterson. What's yours based on?


Again, I'm not asserting that CCW is the protected right. I actually don't know anyone who does.

Personally, I would be interested in seeing if you could get any lawyer to actually even try to file an LOC case on your behalf. If you managed to find the lawyer who would help you, I'd still bet that you very rapidly get dismissed.


Again all the effort spent attacking anti-CCW statutes (and your summary above) is proof that the effort is to make CCW the Right.

Which will not work.


Nope. Not going to share that one as I'd rather that DOJ and company not understand just how that would work.


Good idea.


From your other post:


If SCOTUS did that the problem would be very nicely solved and we'd have LOC. Then we could try what was done in Ohio to get a legislative cure for the lack of CCW (potential legal action as well although the legal path to go from LOC to CCW is not as clear to me as it is for going from CCW to LOC).


Also for clarification, there isn't (as far as I know) any legal path from LOC to CCW. We couldn't force decent CCW regs. CCW would stay as unprotected as it is now. My belief is that having LOC as the Protected Right would inspire (the word I'll use) Sacramento to pass sensible CCW regs. Just so we (well, most of us) will keep the filthy things hidden away.


Then the Moore decision stands in conflict with SCOTUS view, no? Would that not compell the court to take a related case to clear the record on the matter? And what of the possibility that enough of the Heller five aren't biting on any cert petitions because they don't have votes for a favorable result?


Yes it would, & so I hope!

That said, insufficient votes is as valid a reading of the tea leaves as mine is. I wish I knew.


Unless, of course, you're SCOTUS. In which case, why didn't you take Kachalsky and explicitly rule that open carry is the right? :D


Everything else is addressed in my reply to OleCuss. My guess (based on the words of the 10th in Peterson) is because Open Carry wasn't a part of the case, & that they can't (or just won't) rule on something not there.


SECOND AMENDMENT FOUNDATION, INC.,
Petitioners,
v.
DENIS GALLAGHER, et al.,
Respondents.
---------------------------------  ---------------------------------
On Petition For A Writ Of Certiorari
To The United States Court Of Appeals
For The Fourth Circuit
---------------------------------  ---------------------------------
PETITION FOR A WRIT OF CERTIORARI
---------------------------------  ---------------------------------
CARY HANSEL
JOSEPH, GREENWALD
AND LAAKE
6404 Ivy Lane, Suite 400
Greenbelt, Maryland 20770
301.220.2200
ALAN GURA*
GURA & POSSESSKY, PLLC
101 N. Columbus Street,
Suite 405
Alexandria, Virginia 22314
703.835.9085
alan@gurapossessky.com
*Counsel of Record
================================================== ==============
COCKLE LEGAL BRIEFS (800) 225-6964
WWW.COCKLELEGALBRIEFS.COM
i
QUESTION PRESENTED
This Court has held that the Second Amendment
“guarantee[s] the individual right to possess and
carry weapons in case of confrontation.” District of
Columbia v. Heller, 554 U.S. 570, 592 (2008). Maryland
generally prohibits the carrying of handguns for
self-defense absent a permit, issued only to individuals
who first prove a “good and substantial reason” for
doing so. Md. Code Ann., Pub. Safety § 3-506(a)(5)(ii).

The question presented is:
Whether state officials violate the Second
Amendment by requiring that individuals wishing to
exercise their right to carry a handgun for selfdefense
first prove a “good and substantial reason” for
doing so.

(Emphasis added)


This could be real good. Again, I think that Open Carry should be the schwerpunkt of the case. But, even if its just a part of the case, we could still come out ahead on this. As written, we could challenge the license requirement (for LOC) in its entirety. That's why I agree with press1280. THIS is the case we need.

Ooohhhh! I'm giddy.


The Raisuli

Al Norris
07-15-2013, 4:39 PM
Here's some more updates. Back on the 11th, the State responded to the plaintiffs motions in document #75 & #76.

2013-07-11 77 (http://www.archive.org/download/gov.uscourts.ilsd.52207/gov.uscourts.ilsd.52207.77.0.pdf) RESPONSE to Motion re 76 MOTION to Expedite Briefing on Plaintiffs' re 75 MOTION for Declaration of Unconstitutionality and Preliminary and/or Permanent Injunction filed by Tyler R Edmonds, Lisa M Madigan, Patrick J Quinn. (Corrigan, Terence) (Entered: 07/11/2013)

Then on 07-12-2013 - Sheriff Livesay files an MTD, #78, using the same reasoning as the State. Plaintiffs immediately respond, #79 (which basically says, "see our response to the State"). The Court issues an order, #80, to brief on 2 specific questions. All responses due by NOON on the 18th of July (that's this coming Thursday).

The referenced documents can be found at the docket on the Internet Archive (http://www.archive.org/download/gov.uscourts.ilsd.52207/gov.uscourts.ilsd.52207.docket.html).

Of note is what Judge Stiehl has ordered. After briefly stating what has happened in the last few days, the judge then writes:

Accordingly, the Court GRANTS the parties leave to file an additional brief addressing the following issues ONLY:

A. Whether the Court retains subject matter jurisdiction in light of the passage of the Firearm Concealed Carry Act? and/or,

B. Whether any challenges to the constitutionality of the 2013 Firearm Concealed Carry Act must be raised in a separate lawsuit?

Any party which desires to file a brief on this matter shall do so on or before Noon, July 18, 2013.

I'm just guessing here, but I think Judge Stiehl is taking this very seriously and won't be debating this issue any longer than he has to.

The answer to the first question is a resounding, "YES!".

Data Point #1: The Firearm Concealed Carry Act of 2013 does not remove the offending statutes. It merely makes having a CC permit an exception to UUW and AUUW.

The newly enacted law grants the Illinois State Police (ISP) 6 months to formulate the regulations and the paperwork that must be used. Then there is another 90 day period where the State can take, to issue or deny the application. That's at least 9 more months before the first CC permit is issued. Does anyone really believe the State Police won't take all the statutorily permitted time it can?

Data Point #2: The ISP is currently 3 to 6 months behind in issuing FOID cards, what happens when they get swamped with a couple of hundred-thousand CC applications?

Data Point #3: The ISP has already publicly announced that they will continue to enforce the UUW and AUUW statutes, regardless of the fact that permits are not available, and regardless that the two statutes have been ruled unconstitutional by the 7th circuit.

Therefore, the district court must issue a preliminary injunction at the very least, until such a time that permits are actually issued.

This is not at all like the situation in Ezell, where the entire law was sufficiently changed to have mooted the case.

kcbrown
07-15-2013, 4:45 PM
I predict (as I have before) that SCOTUS will deny cert to Woollard.


Everything else is addressed in my reply to OleCuss.


In other words, you inferred SCOTUS' position. That's fine, but it's different from SCOTUS actually saying something, and I just had to call you on it. :D



My guess (based on the words of the 10th in Peterson) is because Open Carry wasn't a part of the case, & that they can't (or just won't) rule on something not there.


That doesn't make sense. If SCOTUS wishes to make plain that open carry is the right and concealed carry is not, they could have taken Kachalsky, ruled against it, and explicitly stated that the reason they ruled against it is that concealed carry is not protected by the 2nd Amendment, because concealed carry was historically forbidden while open carry is what the 2nd Amendment historically protected based on original public understanding, citations to old cases, etc.

In other words, they could have done the very thing you claim here they couldn't have.

Instead, they simply chose to ignore Kachalsky utterly. That is not the action of a court which wishes to provide clarity. That is the action of a court that wants to avoid the question.


And so, I can come to no other conclusion than that SCOTUS will similarly deny cert to Woollard for the very same reasons.

Paladin
07-15-2013, 5:14 PM
Here's some more updates....
Thanks for the update, AN.

As you can imagine, a LOT of us have an interest in the final outcome in the IL case/s.

I look forward to Thursday.

Apocalypsenerd
07-15-2013, 5:26 PM
I hope KC is wrong, but actions speak louder than words and the SCOTUS actions to date support KC's position. That will probably mean CA is pretty much done. I would love for him to be wrong, though.

curtisfong
07-15-2013, 5:37 PM
Personally, I see absolutely no reason for SCOTUS to do anything but avoid all carry cases from here on out, like kc pointed out. Heller is all we are going to get; SCOTUS expects all the lower courts to start ruling the same way (keep in home, nowhere else unless the state legislature says otherwise). And when they don't, and there is a split, I am fairly certain SCOTUS will ignore it, and leave the specifics up to the states.

And LOC in CA does us no good. If that happens, there will be posted signs on EVERY private business and every public property (they will all be deemed sensitive areas) that says "no guns". If you are LOC, you won't be permitted anywhere.

kcbrown
07-15-2013, 5:58 PM
And LOC in CA does us no good. If that happens, there will be posted signs on EVERY private business and every public property (they will all be deemed sensitive areas) that says "no guns". If you are LOC, you won't be permitted anywhere.

Except that this doesn't mean concealed carry will fare any better if it is deemed a right.

If it is deemed a right, the legislature will simply pass a law making it a misdemeanor (if not a felony!) to carry a concealed firearm on property where the owner has posted a "no guns" sign, thereby giving such a sign force of law. This will kill concealed carry as a right dead in its tracks in urban areas.

In other words, in the end, it doesn't matter whether it's concealed carry we get or open carry. The end result in anti-liberty urban areas will be the same.

curtisfong
07-15-2013, 6:04 PM
If it is deemed a right, the legislature will simply pass a law making it a misdemeanor (if not a felony!) to carry a concealed firearm on property where the owner has posted a "no guns" sign, thereby giving such a sign force of law.

I am pessimistic, but not quite that pessimistic. All of the "right to refuse business" laws pretty much only amount to the cases where you resist being removed from the property... which shouldn't be an issue if you conceal properly.

And even if you are discovered to be carrying, you can always leave.

LOC just means you'll ALWAYS be asked to leave.

El Toro
07-15-2013, 6:17 PM
Well K.C. we could be done especially if SCOTUS is avoiding the problem. So are they cowards? Do they all pretty much feel 2A BEAR is an anachronism in the 21st century and the Robertson court doesn't want to go down in history as the most "living document" court in American History? Seriously, if they have no ballz, (tip my hat to Soda, Kagey and Ginnny) then we are done for a generation. If they DO take Woolard, I'll be surprised and sit rooting for a victory, but K.C., you've laid out a path where we wither and that's it, we are done for 2A advances in our lifetime.

If so, it wont take long before the majority of states follows CA's model and then only the minority of states will have any type of bear. Forget 50 states with CCW, it has and always will be a pipe-dream. CCW will be a very tightly controlled preferential exercise. The rest of us will be able to sit in our homes and fondle our guns.

LOC is the right, the question is, how do we get SCOTUS to acknowledge it? Where's our strategy? :facepalm:

kcbrown
07-15-2013, 7:09 PM
I am pessimistic, but not quite that pessimistic. All of the "right to refuse business" laws pretty much only amount to the cases where you resist being removed from the property... which shouldn't be an issue if you conceal properly.

And even if you are discovered to be carrying, you can always leave.

LOC just means you'll ALWAYS be asked to leave.

The difference is that if there's force of law behind it, it'll act as a major disincentive for us law abiding citizens. The only people who will carry anyway will be criminals who don't care about the law anyway, and those who pick and choose which laws to follow, the latter of which who could easily be carrying already.

And this is California we're talking about. Do you seriously believe the legislature won't take such steps to crush the usefulness of the right?

kcbrown
07-15-2013, 7:16 PM
If so, it wont take long before the majority of states follows CA's model and then only the minority of states will have any type of bear.


That's actually not true at all.

The reason is that while SCOTUS' silence on 2A in public will remove any protection of the right in public on the part of the 2nd Amendment itself, it does nothing to change the jurisprudence that has built up around state RKBA provisions.

Those states which already strongly protect the right to keep and bear arms will continue to do so precisely because of the state jurisprudence that has developed there.

But those of us in states like California will be well and truly screwed. We literally will have no place to go. And as I've said elsewhere, an attempt to fix the situation through a Constitutional Convention will be co-opted by the states in a power grab that will enshrine the current state of affairs as they take complete control over the RKBA sphere. State legislatures are no less interested in the exercise of power than the federal government, and only a moron would believe otherwise.



LOC is the right, the question is, how do we get SCOTUS to acknowledge it? Where's our strategy? :facepalm:Strategy is of absolutely no use whatsoever in the face of a court system that is intent on denying the right. You're presuming that the courts actually listen to what we have to say and issue rulings as a result of careful consideration. That's not how it works. Courts make up their minds ahead of time and cherry pick the arguments made to them which support the decision they've already made, and the only time this isn't true is either when you have an exceptional judge or when the issue in question is one the judges simply don't care about.

That's because, after all, the courts are no less interested in exercising their power over the citizenry (government actors are another matter, else the judiciary would not give government so much more deference than citizens) than are state legislatures or the federal government, and if you don't believe me, then you need only look at the outrage judges express when an individual has the gall to disobey them.

Mulay El Raisuli
07-16-2013, 9:09 AM
In other words, you inferred SCOTUS' position. That's fine, but it's different from SCOTUS actually saying something, and I just had to call you on it. :D


I never said that they "stated" anything. But (again), all courts looking at this have come to the same conclusion that I have.

Is it a fair conclusion on my part? Neither you (or anyone else) has anything at all to support all the time & effort spent trying to make CCW the Protected Right. Nothing at all to support the claim that 'states get to choose the manner of carry.' But, I do have something in Heller to point to that backs up my claim that SCOTUS has concluded that Open Carry is the Protected Right (those references to the 19th Cent. carry cases).

So, I guess what it boils down to is; Am I right in making the claim? Three years of effort & rulings from the District & Circuit Courts & what do we have? Nothing but the courts turning down all of our efforts, zero grants of Cert., & that big 'ole hint from the 10th Circuit in Peterson. Unless something comes along to show me to be wrong, I'm going to keep thinking I'm right.

More next.


That doesn't make sense. If SCOTUS wishes to make plain that open carry is the right and concealed carry is not, they could have taken Kachalsky, ruled against it, and explicitly stated that the reason they ruled against it is that concealed carry is not protected by the 2nd Amendment, because concealed carry was historically forbidden while open carry is what the 2nd Amendment historically protected based on original public understanding, citations to old cases, etc.

In other words, they could have done the very thing you claim here they couldn't have.

Instead, they simply chose to ignore Kachalsky utterly. That is not the action of a court which wishes to provide clarity. That is the action of a court that wants to avoid the question.


Who says that SCOTUS wants to make anything clear right now? We all agree that SCOTUS likes to rule narrowly & sit back while the details are hashed out in the lower courts. Just because we're ready for clarification doesn't mean that SCOTUS is. For all you know, they're happy that the lower courts have taken the hint that CCW isn't the Protected Right & have ruled accordingly. For all you know they're still wondering why we still haven't seen what the lower courts have seen & filed a case that matches that view.


And so, I can come to no other conclusion than that SCOTUS will similarly deny cert to Woollard for the very same reasons.


I'm not that pessimistic. All we've tried so far are mere variations of the one thing. I won't come around to your way of thinking until after we try something different.


And LOC in CA does us no good. If that happens, there will be posted signs on EVERY private business and every public property (they will all be deemed sensitive areas) that says "no guns". If you are LOC, you won't be permitted anywhere.


"Everywhere" is inappropriate. Yes, the Right be inhibited in some places, but not in ALL places. Public places won't be able to post those signs. Just because they're public places. I don't see 626.9CPC surviving a Federal suit either. Not once we have "outside the home" established as a Protected Right. And of course, not all counties are LA or San Francisco Counties. MOST of the state will be improved right off the bat. Remember, the pendulum is swinging toward justice. I can wait for it to complete the swing.


The Raisuli

Mulay El Raisuli
07-16-2013, 9:11 AM
Well K.C. we could be done especially if SCOTUS is avoiding the problem. So are they cowards? Do they all pretty much feel 2A BEAR is an anachronism in the 21st century and the Robertson court doesn't want to go down in history as the most "living document" court in American History? Seriously, if they have no ballz, (tip my hat to Soda, Kagey and Ginnny) then we are done for a generation. If they DO take Woolard, I'll be surprised and sit rooting for a victory, but K.C., you've laid out a path where we wither and that's it, we are done for 2A advances in our lifetime.

If so, it wont take long before the majority of states follows CA's model and then only the minority of states will have any type of bear. Forget 50 states with CCW, it has and always will be a pipe-dream. CCW will be a very tightly controlled preferential exercise. The rest of us will be able to sit in our homes and fondle our guns.

LOC is the right, the question is, how do we get SCOTUS to acknowledge it? Where's our strategy? :facepalm:


My suggestion would be to try something different. Like take the hint SCOTUS (and now the 10th Circuit) have given us.


The Raisuli

Mulay El Raisuli
07-16-2013, 10:19 AM
I'm sorry, but do you really think that the 9th believes that LOC is a Protected Right? Seriously? It seems like that is what you are implying. . . Do remember that this is the court which, when presented with a 3-judge panel which incorporated the 2A was so horrified at the very idea that having/carrying a firearm was a right at all that the court took the case en banc (without a request for en banc IIRC) and thereby de-published the opinion.

The idea that the 9th Circuit accepts any form of carry, let alone LOC is quite unsupported. Now if the 9th hands down one of the cases they are sitting on, then your suggestion just might gain credence depending on exactly what they say. You have no idea how entertained/pleased/stunned I'd be if the 9th said something like, "your prayer for relief is denied because CCW is not a protected right, it is LOC which is a protected right and which must be respected by the State".


Lets say you're right about the 9th. Circuit (the odds certainly favor that). What about the 10th Circuit? In Peterson, the court DID (basically) say the first part. But, after noting that the challenge to the LOC ban by Denver was dropped by Mr Peterson, the court went on to say that it was that part of the suit that might have prevailed. Do you think that the comment was a just a joke that they were playing on us? Or do you think that (just maybe) we should take the damn hint?


The Raisuli

kcbrown
07-16-2013, 2:09 PM
I never said that they "stated" anything.


Your exact words were that they "concluded" that open carry is the protected right. But you cannot state that SCOTUS (or any other entity, for that matter) actually concludes anything unless they explicitly state that conclusion. If SCOTUS isn't stating the conclusion, then the conclusion is yours, not theirs.



But (again), all courts looking at this have come to the same conclusion that I have.
No, they haven't. Most courts looking at this have come to the conclusion that the 2nd Amendment doesn't protect the right outside the home at all.



Is it a fair conclusion on my part? Neither you (or anyone else) has anything at all to support all the time & effort spent trying to make CCW the Protected Right.
This overstates things. The effort that has been put forth so far has been under the presumption that the state is allowed to choose a preferred form of carry, because such a presumption is legally more tenable, in that if it's incorrect, the cases in question can still yield a positive outcome were SCOTUS to actually take them.

In other words, when the questions presented are the ones we've been presenting, SCOTUS can give us something positive from them even if it says that concealed carry itself is not protected by the 2nd Amendment.



Nothing at all to support the claim that 'states get to choose the manner of carry.' But, I do have something in Heller to point to that backs up my claim that SCOTUS has concluded that Open Carry is the Protected Right (those references to the 19th Cent. carry cases).
Well, the "states get to choose" approach had been taken precisely because of the uncertainty surrounding this very issue. It is a form of deference towards the legislature, something the courts generally like. The problem here is that you're presuming that we have to correctly read the mind of SCOTUS on that issue before we can bring a successful case. While it is possible that such is necessary, the burden of proof is on you to show that this is actually the reason for their reticence. I can think of no other area of jurisprudence where the Supreme Court has demanded such of those who petition it.



So, I guess what it boils down to is; Am I right in making the claim? Three years of effort & rulings from the District & Circuit Courts & what do we have? Nothing but the courts turning down all of our efforts, zero grants of Cert., & that big 'ole hint from the 10th Circuit in Peterson. Unless something comes along to show me to be wrong, I'm going to keep thinking I'm right.
Hey, I have no problem with that. Because you might well be. And I fully agree that a pure open carry case needs to be put into the pipeline, and that we're idiots for not doing so.



Who says that SCOTUS wants to make anything clear right now? We all agree that SCOTUS likes to rule narrowly & sit back while the details are hashed out in the lower courts. Just because we're ready for clarification doesn't mean that SCOTUS is. For all you know, they're happy that the lower courts have taken the hint that CCW isn't the Protected Right & have ruled accordingly. For all you know they're still wondering why we still haven't seen what the lower courts have seen & filed a case that matches that view.
But the view the lower courts have generally provided is that the Second Amendment provides no meaningful protection for bear outside the home at all!! What case do you suggest we file in the face of that?



I'm not that pessimistic. All we've tried so far are mere variations of the one thing. I won't come around to your way of thinking until after we try something different.
So is it your belief, then, that SCOTUS will grant cert to a pure open carry case after the lower courts have dismissed it for lack of standing? Because that is what we're going up against.



"Everywhere" is inappropriate. Yes, the Right be inhibited in some places, but not in ALL places.
It will be inhibited in all the places that matter, in such a manner as to make carry itself almost entirely impractical. When one cannot even carry in one's own car because to be doing so in the parking lot of private property with a sign is a misdemeanor or felony, people will simply not bother to carry. Because the fact of the matter is that most people merely transit public venues and have private locations as their destinations.



Remember, the pendulum is swinging toward justice. I can wait for it to complete the swing.
Not in California or the other anti-gun states, it's not. It's quite the opposite in those locations.

Mulay El Raisuli
07-17-2013, 5:23 AM
Your exact words were that they "concluded" that open carry is the protected right. But you cannot state that SCOTUS (or any other entity, for that matter) actually concludes anything unless they explicitly state that conclusion. If SCOTUS isn't stating the conclusion, then the conclusion is yours, not theirs.


Thank you. Yes, those were my exact words. But I certainly can state that what their conclusion is. To conclude anything else is to think SCOTUS mentioned the 19th Cent. carry cases just for fun. They didn't. They mentioned them to express their thinking. Which is the approach they had to take since "and bear" wasn't a part of Heller. But, being bright people after all, they knew it would be an issue coming their way soon enough. And so they gave us (and the lower courts) guidance.

Which we've been ignoring.


No, they haven't. Most courts looking at this have come to the conclusion that the 2nd Amendment doesn't protect the right outside the home at all.


Earlier, yes. But even the 2nd Circuit (in Kachalsky) acknowledged that the Right extends beyond the home. But the Court also followed the process I described earlier: Point out that Heller makes it clear that CCW is not the Right, & then stop their analysis..


This overstates things. The effort that has been put forth so far has been under the presumption that the state is allowed to choose a preferred form of carry, because such a presumption is legally more tenable, in that if it's incorrect, the cases in question can still yield a positive outcome were SCOTUS to actually take them.

In other words, when the questions presented are the ones we've been presenting, SCOTUS can give us something positive from them even if it says that concealed carry itself is not protected by the 2nd Amendment.


The first flaw being that the presumption is NOT correct. The second being that SCOTUS is NOT granting Cert. to any case that has CCW as its focus. Because, IMHO, they're waiting for a case that takes the hint.


Well, the "states get to choose" approach had been taken precisely because of the uncertainty surrounding this very issue. It is a form of deference towards the legislature, something the courts generally like. The problem here is that you're presuming that we have to correctly read the mind of SCOTUS on that issue before we can bring a successful case. While it is possible that such is necessary, the burden of proof is on you to show that this is actually the reason for their reticence. I can think of no other area of jurisprudence where the Supreme Court has demanded such of those who petition it.


The flaw being that there isn't any uncertainty. Again, they didn't mention the 19th Cary cases for fun. They couldn't "say it more clearly" in a case that didn't have carry (in whatever form) at its core.

I have met the burden of showing the reason for the reticence. There's not a single word about "the states get to choose," while there is the repeated references to the 19th Cent. carry cases.


Hey, I have no problem with that. Because you might well be. And I fully agree that a pure open carry case needs to be put into the pipeline, and that we're idiots for not doing so.(method of emphasis changed by me)


Thank you for this.


So is it your belief, then, that SCOTUS will grant cert to a pure open carry case after the lower courts have dismissed it for lack of standing? Because that is what we're going up against.


What makes you think we wouldn't be granted standing? After reading what's actually in Peterson, I'm pretty sure that we would have standing. More, I'm thinking that the 10th. would actually welcome a pure LOC case.


It will be inhibited in all the places that matter, in such a manner as to make carry itself almost entirely impractical. When one cannot even carry in one's own car because to be doing so in the parking lot of private property with a sign is a misdemeanor or felony, people will simply not bother to carry. Because the fact of the matter is that most people merely transit public venues and have private locations as their destinations.


That refers to LA County, San Francisco & the like. I don't live in those places. What "matters" to me is where I do live. What also "matters" to me is the parts of the PRK that can be changed into not being the PRK.


Not in California or the other anti-gun states, it's not. It's quite the opposite in those locations.


For now. This will change.


The Raisuli

kcbrown
07-17-2013, 5:51 AM
What makes you think we wouldn't be granted standing? After reading what's actually in Peterson, I'm pretty sure that we would have standing. More, I'm thinking that the 10th. would actually welcome a pure LOC case.


The 10th Circuit might, but it's the only circuit in which we could bring such a case.

The reason we wouldn't be granted standing in any other venue is that all other venues either treat concealed carry as the right, or they will dismiss for lack of standing unless the plaintiff attempted to obtain a concealed carry permit. But because the goal here is to make this a pure open carry case, the attempt to obtain a concealed carry permit cannot be made, as doing so will simply complicate the case and eliminate its purity.

And so, what I say here stands. The lower courts will dismiss for lack of standing. Therefore, your argument boils down to an assertion that SCOTUS will take up a case that has been so dismissed.


Oh, and another thing: getting open carry as a right does the vast majority of us no good in the face of the gun-free school zones. I do agree that it's possible that it can be used to bootstrap concealed carry into being treated as a right, but in the face of the law I mentioned, that won't really help us at all in the end.



That refers to LA County, San Francisco & the like. I don't live in those places. What "matters" to me is where I do live. What also "matters" to me is the parts of the PRK that can be changed into not being the PRK.
Rural California already treats carry as a right in the general case (though there is some variability there). But in any case, what good is a this so-called "right" when it can't be exercised in the places where you're likely to need it the most, i.e. urban areas?

No, like it or not, the legislature will pass a law along the lines I mentioned, and that will render carry in public null and void in those places where it's needed the most. That you happen to not care about those places is irrelevant. A right isn't actually a right unless it applies essentially everywhere.



For now. This will change.
I won't believe that until I see it with my own two eyes.

El Toro
07-17-2013, 6:52 AM
Rural California already treats carry as a right in the general case (though there is some variability there). But in any case, what good is a this so-called "right" when it can't be exercised in the places where you're likely to need it the most, i.e. urban areas?

No, like it or not, the legislature will pass a law along the lines I mentioned, and that will render carry in public null and void in those places where it's needed the most. That you happen to not care about those places is irrelevant. A right isn't actually a right unless it applies essentially everywhere.

So, where in rural CA can I go about with my Colt strapped on? :oji:

You're making the same argument as IL Libs are making with regards to parceled out LOC areas. If SCOTUS rules CA must provide LOC as a right, then they can try making all the exceptions they want but they'll just end up with an injunction and back in court to lose AGAIN.

curtisfong
07-17-2013, 8:08 AM
That refers to LA County, San Francisco & the like. I don't live in those places. What "matters" to me is where I do live. What also "matters" to me is the parts of the PRK that can be changed into not being the PRK.


Not only does this smack of "i got mine" short sightedness, it also ignores the fact that LA County and SF and the like will absolutely affect what happens in the areas where you live, like it nor not.

It is even more short sighted than the "I don't live in CA, so what happens there doesn't affect me" attitude.

Harry Schell
07-17-2013, 8:08 AM
So, where in rural CA can I go about with my Colt strapped on?

Nowhere.

What is clear from the data is that counties in rural CA, and now Riverside and Orange, issue CCW's practically on a shall issue basis. Liberal bastions such as Lost Angles, San Diego and a few others are functionally no-issue, absent financial or political "pull".

The disparity of issue in liberal areas of CA is racist and classist in outcome, and, given the history, by intent.

Public open carry anywhere in CA is extremely limited.

fizux
07-17-2013, 8:36 AM
Not only does this smack of "i got mine" short sightedness, it also ignores the fact that LA County and SF and the like will absolutely affect what happens in the areas where you live, like it nor not.

It is even more short sighted than the "I don't live in CA, so what happens there doesn't affect me" attitude.

I live in SF. Once IGM, I won't care about y'all.

There is nothing short-sighted about that, because by then y'all will have had yours for a while.

curtisfong
07-17-2013, 8:40 AM
I live in SF. Once IGM, I won't care about y'all.

There is nothing short-sighted about that, because by then y'all will have had yours for a while.

HAH. Truth.

Hogstir
07-17-2013, 9:26 AM
Nowhere.

What is clear from the data is that counties in rural CA, and now Riverside and Orange, issue CCW's practically on a shall issue basis. Liberal bastions such as Lost Angles, San Diego and a few others are functionally no-issue, absent financial or political "pull".

The disparity of issue in liberal areas of CA is racist and classist in outcome, and, given the history, by intent.

Public open carry anywhere in CA is extremely limited.


Orange Co is a may issue and it is almost impossible to obtain a permit here.

chainsaw
07-17-2013, 9:37 AM
So, where in rural CA can I go about with my Colt strapped on? :oji:
Anywhere outside of an incorporated city, outside of GSFZ and similar sterile areas, and where discharge of a firearm is not prohibited by local (county) law. Which leaves a large fraction of the state (by area), including large portions of many counties that we usually consider "urban". For example, it includes parts of Contra Costa, Marin, Santa Clara and Santa Cruz counties, which are generally considered anti-gun and anti-CCW. I don't know about Alameda and San Mateo counties. This shows that you can legally open carry within 20 minutes of Silicon Valley. I think the situation down south is similar, but I'm not sure.

Reminder: In order to loaded open carry in unincorporated areas, you need to be aware of the location of schools (for GFSZ), state parks, and of local no shoot zones, which often include county parks and county property.

EDITed: See below, public roads are probably also no-shoot zones.

El Toro
07-17-2013, 10:00 AM
Thanks - my point was rhetorical.

In this state, we have no "bear" except as narrowly allowed, under certain conditions on Federal Land or private property (limited). Even out on unincorporated areas, County Sheriffs can and will stop you if you've got your Colt strapped on or slinging your AR. The obvious problem is the inhabited areas. Some rural areas where homes are an acre or more apart you probably won't draw attention, but NO CARRY IS ALLOWED BY LAW.

I am not optimistic about getting either the courts or legislature to return us our LOC rights, but I will agree with KCBrown that it will be very difficult to return us to pre-1967 Mulford Act. (http://articles.latimes.com/2007/may/03/local/me-cap3)

chainsaw
07-17-2013, 10:34 AM
In this state, we have no "bear" except as narrowly allowed, under certain conditions on Federal Land or private property (limited). ...
but NO CARRY IS ALLOWED BY LAW.
As far as I understand the law, you can loaded open carry, both on public and private property (excluding GFSZ, parks, no-shoot zones and such), including on public roads, in any place where discharge is allowed. Which is a large fraction of the unincorporated area of many counties. Am I missing something?

EDITed: See below, public roads are probably also no-shoot zones.

El Toro
07-17-2013, 11:32 AM
If you are carrying in an inhabited area you will certainly be detained and perhaps cited depending on the location. If you are actively engaged in hunting you are allowed to LOC but again depending on where you are, you will draw attention and LEO will respond. Maybe we are both saying the same thing, but in incorporated areas or discharge prohibited areas in unincorporated lands it is illegal to have a loaded firearm. (PC12031).

Here in O.C. there is a fair amount of unincorporated land. If you LOC, you will be detained and charged. Other more rural counties may not care if you're in a discharge allowed area. Regardless, we have a patchwork of laws making it effectively NO CARRY unless you are in one of the limited locations.

kf6tac
07-17-2013, 12:14 PM
As far as I understand the law, you can loaded open carry, both on public and private property (excluding GFSZ, parks, no-shoot zones and such), including on public roads, in any place where discharge is allowed. Which is a large fraction of the unincorporated area of many counties. Am I missing something?

I think that's right. I think what El Toro was trying go get at is that the problem is that carrying isn't something most people do for its own sake. It's not like saying, "Oh, I have nowhere to hike" and being told, "You can go hike here, here, or here." If I have to go out to unincorporated land in order to carry, then that defeats the purpose (for me) of carrying entirely, because the reason that I want to carry is for self-defense on a day-to-day basis, and 100% of my days are spent in incorporated areas. I suspect this is true for a large part of the state's population, since so much of the population is concentrated in incorporated areas.

El Toro
07-17-2013, 12:20 PM
:clap:

M. D. Van Norman
07-17-2013, 12:25 PM
The odds of being arrested for legally open carrying far exceed those of being arrested for “illegal” concealed carry. If I won’t risk unlicensed concealed carry, I will certainly never risk legal open carry outside an area where its propriety is absolutely guaranteed (e.g., a controlled shooting range).

chainsaw
07-17-2013, 12:58 PM
Interesting viewpoints. I understand them. On the other hand, I have legally open carried in a so-called "urban" county (one of the bay area progressive counties where CCW's are impossible to get), and I had a LEO contact. They didn't blink, they didn't even ask. They saw the H&K USP on my belt and the magazines on the other side, talked about the other issue they were dealing with, and we all went our merry way.

It is disturbing to hear that in certain area, you will be arrested and/or cited for LOC, in an area where it is legal. Clearly, you will not be charged, and if you are charged, you will not be convicted. But an arrest or citation is plenty of hassle to make it worth avoiding. Again, this has not been my experience (but then, I have very limited experience, a single LEO contact while carrying).

Regardless, we have a patchwork of laws making it effectively NO CARRY unless you are in one of the limited locations.

I agree that given your experience and the mindset of LEOs, that is a sensible interpretation. I would interpret the same facts differently: We have legal open carry in a limited set of locations that covers (by area, and by outdoor recreation opportunities) the vast majority of our state, and no carry in other areas (primarily urban areas, and some others). This statement is exactly the same as what you said, just placing the emphasis differently.

fizux
07-17-2013, 1:06 PM
As far as I understand the law, you can loaded open carry, both on public and private property (excluding GFSZ, parks, no-shoot zones and such), including on public roads, in any place where discharge is allowed. Which is a large fraction of the unincorporated area of many counties. Am I missing something?
You can't discharge on public roads (CPC§374(c)), so you probably can't carry a loaded firearm there either.

The right to arms for self-defense includes the ability to
wear, bear, or carry . . . upon the person or in the clothing
or in a pocket, for the purpose . . . of being armed and
ready for offensive or defensive action in a case of conflict
with another person.
I still haven't figured out why I should have to plan a trip miles out into the woods just so I can "exercise" my "rights," only to get schwacked walking from my front door to my car because I don't have that right on the sidewalk in front of my house.

fizux
07-17-2013, 1:16 PM
On the other hand, I have legally open carried in a so-called "urban" county (one of the bay area progressive counties where CCW's are impossible to get), and I had a LEO contact. They didn't blink, they didn't even ask. They saw the H&K USP on my belt and the magazines on the other side, talked about the other issue they were dealing with, and we all went our merry way.
I had the same experience when I used to qualify at the SFPD range (for BSIS gun card), and the range at Daly City PD (with my reserve unit).

I would like to emphasize the article "a" in your post from this phrase:
I had a LEO contact
It almost sounds like you've only had ONE open carry experience with positive LEO contact. I really would hate to draw too many inferences on the propriety and/or constitutionality of the State's licensing scheme because of that one experience.

Paladin
07-18-2013, 6:28 AM
Here's some more updates....

The Court issues an order, #80, to brief on 2 specific questions. All responses due by NOON on the 18th of July (that's this coming Thursday)....

I'm just guessing here, but I think Judge Stiehl is taking this very seriously and won't be debating this issue any longer than he has to....

Therefore, the district court must issue a preliminary injunction at the very least, until such a time that permits are actually issued.

This is not at all like the situation in Ezell, where the entire law was sufficiently changed to have mooted the case.Al, any idea on the timeframe we're talking about here?

All others: please skip the lame "2 Weeks" jokes (or variations thereof). That's only a joke when told by us to the antis. (It means they'll ultimately not get what they want.) So don't say it to each other.

Mulay El Raisuli
07-18-2013, 6:28 AM
The 10th Circuit might, but it's the only circuit in which we could bring such a case.

The reason we wouldn't be granted standing in any other venue is that all other venues either treat concealed carry as the right, or they will dismiss for lack of standing unless the plaintiff attempted to obtain a concealed carry permit. But because the goal here is to make this a pure open carry case, the attempt to obtain a concealed carry permit cannot be made, as doing so will simply complicate the case and eliminate its purity.

And so, what I say here stands. The lower courts will dismiss for lack of standing. Therefore, your argument boils down to an assertion that SCOTUS will take up a case that has been so dismissed.


A: One Circuit may be all that we need.

B: If done right, Woolard could do the job in the 4th Circuit.

C: The flaw in your reasoning is that only the 7th Circuit (seems) to treat CCW as the Right & so will deny standing. The 10th, the 2nd & the 4th Circuits were clear that CCW is NOT the Right & so laid the groundwork for the claim that we do have standing.


Oh, and another thing: getting open carry as a right does the vast majority of us no good in the face of the gun-free school zones. I do agree that it's possible that it can be used to bootstrap concealed carry into being treated as a right, but in the face of the law I mentioned, that won't really help us at all in the end.


The flaw here is that I never said that LOC will result in CCW being turned into a Right. In fact, I specifically said that CCW will remain notaright. I also said that re-establishing LOC as the Right is likely to get us decent CCW regs (The "Ohio Effect").

What the re-establishment of LOC as the Right will also do is give us the tools to attack 626.9 & all the other stupid harassments that Sacramento is planning.

And of course, all of this really does help us in the end. Really.


Rural California already treats carry as a right in the general case (though there is some variability there). But in any case, what good is a this so-called "right" when it can't be exercised in the places where you're likely to need it the most, i.e. urban areas?

No, like it or not, the legislature will pass a law along the lines I mentioned, and that will render carry in public null and void in those places where it's needed the most. That you happen to not care about those places is irrelevant. A right isn't actually a right unless it applies essentially everywhere.


The Right would apply in ALL public places & so would indeed be a Right. Albeit one that private businesses can bust our chops over. But, you (and curtisfong) missed that I was also addressing the future. The "for now" of my post wasn't limited (in my mind) to just the swinging of the pendulum. Neither was the "can be changed" bit. Please allow me to emphasize that now.

I'm not callous about the fates of people in 'Frisco, LA & the like. Yes, there will be businesses that will bust our chops there. For now. But that's JUST for now. Most of the state will embrace the re-establishment of the 2A right away. We're practically there now. Further, not ALL businesses in LA & 'Frisco will disallow the 2A (Starbucks comes to mind). So, most of the state will be safer right off the bat. As for the rest, they can be changed once they see that the re-establishment of the 2A really does make everybody safer.

Add to this the re-start of the outreach campaign (formerly known as the UOC campaign). There will be people armed with guns AND brochures out & about spreading the word in all sorts of places. I myself am planning a stroll down Rodeo Drive after the re-establishment of the Right. Just to give that pendulum a little push.

Providing of course, that we take the hint & actually achieve the re-establishment of the "and bear" part of the 2A.


I won't believe that until I see it with my own two eyes.


Then you should prepare to believe.

IF we take the damn hint.


The Raisuli

El Toro
07-18-2013, 6:40 AM
...IF we take the damn hint.

THIS^ :King:

Al Norris
07-18-2013, 6:52 AM
Al, any idea on the timeframe we're talking about here?

Actually, I really hate to speculate, other than to say it won't be months down the road.

I will be leaving for work at about 9:50 am, MDT. I won't get off for lunch until after the deadline has passed, so I won't get to the filings, reading them and understanding them, until after I get off work (7:30 MDT).

After that, I may or may not be able to speculate further.

So if anyone else wants to hit PACER after NOON (10:00 am PDT), go for it. I've hit the upload limit here, so I won't be able to do much except link back to the Internet Archive.

non sequitur
07-18-2013, 10:35 AM
http://ia600609.us.archive.org/34/items/gov.uscourts.ilsd.52207/gov.uscourts.ilsd.52207.docket.html

OleCuss
07-18-2013, 1:56 PM
^^^^^
Much appreciated.

That last linked document: http://ia700609.us.archive.org/34/items/gov.uscourts.ilsd.52207/gov.uscourts.ilsd.52207.87.0.pdf was a good read.

Kinda gives the idea that the pro-RKBA folks were very, very crafty about how they let the Democrats mess with their legislation.

Net effect is that they should get both an OK law and some nice precedent from either the circuit or from SCOTUS. We'll see how it goes. . .

Paladin
07-18-2013, 10:19 PM
http://ia600609.us.archive.org/34/items/gov.uscourts.ilsd.52207/gov.uscourts.ilsd.52207.docket.html
Primarily, both sides filed briefings: state saying this case is mooted by the new law, if they want injunctive relief, they need to file new case.

Our side is saying UNconstitutional laws are still in place despite new law, therefore case not mooted -- give us an injunction or deny it by July 25 latest so we can seek an appeal.

So, marking my calendar for following up on the morning on the 26th.

Who knows, the court could make the decision in just a few days rather than take the whole week.

kcbrown
07-19-2013, 6:59 AM
A: One Circuit may be all that we need.


This depends on whether or not SCOTUS is looking for circuit splits.



B: If done right, Woolard could do the job in the 4th Circuit.
Woollard is already being petitioned for cert at the Supreme Court. That ship has sailed because the arguments have already been made.

It'll be quite interesting to see what SCOTUS does with it if they grant cert (something I'm incredibly skeptical of at this point).



C: The flaw in your reasoning is that only the 7th Circuit (seems) to treat CCW as the Right & so will deny standing. The 10th, the 2nd & the 4th Circuits were clear that CCW is NOT the Right & so laid the groundwork for the claim that we do have standing.
What specifically makes you believe that the 7th Circuit is treating CCW specifically as the right instead of carry in general?


The 10th Circuit explicitly said that concealed carry is not protected by the 2nd Amendment. However, I believe it is the only circuit to have done so. The other circuits do not seem to have been talking specifically about concealed carry as distinguished from open carry. Rather, the "logic" they use to rule against us appears to be applicable to all carry.



The flaw here is that I never said that LOC will result in CCW being turned into a Right. In fact, I specifically said that CCW will remain notaright. I also said that re-establishing LOC as the Right is likely to get us decent CCW regs (The "Ohio Effect").
Then let's talk strictly about open carry.

With open carry, you have the problem of the federal and state gun-free school zones that have the effect of rendering open carry null and void in urban areas. And while open carry as a right should overcome that, those laws are about as much "for the children!" as it gets. As such, the hurdle to overcome in the judiciary is much higher for those than for anything else, most especially after Sandy Hook.

Getting a declaration from the judiciary that open carry is a right protected by the 2nd Amendment does not guarantee that we'll be able to get the GFSZ laws struck. Far from it.



What the re-establishment of LOC as the Right will also do is give us the tools to attack 626.9 & all the other stupid harassments that Sacramento is planning.
Having a tool that you can use to strike down a law does not itself guarantee success in doing so, even if you somehow manage to get your case in front of the Supreme Court.



And of course, all of this really does help us in the end. Really.
That remains to be seen.




The Right would apply in ALL public places & so would indeed be a Right. Albeit one that private businesses can bust our chops over. But, you (and curtisfong) missed that I was also addressing the future. The "for now" of my post wasn't limited (in my mind) to just the swinging of the pendulum. Neither was the "can be changed" bit. Please allow me to emphasize that now.
You are failing to account for the dynamics here.

Support for carry depends entirely on its usefulness. Its usefulness is governed by the effort required to engage in it versus the perceived benefit of doing so. If most businesses, particularly when backed by law, demand that you disarm before you can even enter their parking lots, then the only time one will be able to carry at all is when one is in public areas. That kind of effort (when possible at all!) to carry in public goes well beyond what most people will be willing to put up with. As staunch an advocate of RKBA as you know me to be, I wouldn't put up with that kind of burden. It would make carry entirely impractical for me.

So it comes down to pressure on businesses to not put up such signs. But that pressure comes from people who wish to carry to begin with. And the only way you can build sufficient support in that regard is to make carry something they have experienced for themselves. But with the burden being that high, nobody in their right mind will bother to begin with.

This makes the entire thing a bootstrapping problem. You can't build a sufficient base to pressure businesses to refrain from putting up signs without carry being useful to enough people that they engage in it, and they will not engage in it if there are too many such signs. So everything depends on who gets there first.

It should be obvious that, in urban California, businesses will put up signs well before a sufficiently large number of people begin carrying.


This is not something you can address through time. Where's this magic influence you're implying going to come from?



I'm not callous about the fates of people in 'Frisco, LA & the like. Yes, there will be businesses that will bust our chops there. For now. But that's JUST for now.
No, it's not just for now. The above is a permanent state of affairs, because once the signs go up en masse, you can't get there from here.



Most of the state will embrace the re-establishment of the 2A right away. We're practically there now.
That's "most of the state" by land area, not "most of the state" by population. But in this case, it is by population that matters.



Further, not ALL businesses in LA & 'Frisco will disallow the 2A (Starbucks comes to mind). So, most of the state will be safer right off the bat. As for the rest, they can be changed once they see that the re-establishment of the 2A really does make everybody safer.
They can't see that reestablishment of the right makes everybody safer until enough people carry, but you won't get enough people carrying unless it is reasonable to exercise the right, and that can't happen with all the signs that'll be put up!

It's a chicken and egg problem that I've seen nobody propose a solution to. I see no way to break the deadlock. Once the signs go up, it's game over.

M. D. Van Norman
07-19-2013, 7:11 AM
The free market is the solution to the signage problem, just as it would have been the solution to the segregation problem after Brown sans the Civil Rights Act.

naeco81
07-19-2013, 7:46 AM
If I had to guess? Some form of carry must be allowed to non-prohibited persons, left up to state legislatures to decide for themselves. I can't see them pushing open carry as the default because "living document" types heads would explode. Best to leave it up to the states and just say "you must do SOMEthing, what you do is up to you"

I agree with this and more or less this is the kind of open ended decision we got in Heller. Affirm the basic right must be protected by the States but simultaneously affirm the State rights to regulate the process. It's a big game of hot potato that eventually must offer some relief IMO. It is awesome that the ISRA time limits are getting traction.

Meaty you had some great stuff in this thread man. I'm a little less pessimistic but I agree social change is the important focus. Regardless of SCOTUS ruling we are going to face a battle in the court of public opinion very soon in California.I believe that SCOTUS will essentially force states to deal with the RKBA issue without necessarily providing the guidance we might hope a favorable decision offers. This just means both parties are forced to the negotiating table. It is the public opinion that will shape whether our legislature enacts laws to the narrowest end of the spectrum. For this reason I firmly believe one of the best things we can do is improving how we communicate with non-owners.

How you say things is often more important than what you say. Getting someone to agree with your interpretation of a constitutional right is usually a Pyrrhic victory - even if they relent they won't really support it, they will just academically concede. Getting someones support by demonstrating how some laws can conflict with their own perspective on effective legislature can be far more meaningful. It's the difference between "hey please care about this because 2A is important" and "do you care about real public safety, or guilt induced half-measures that are just for show?" While I agree that 2A is important I think the latter statement has more depth for the average citizen.

In short, I think we face a real marketing problem that must be corrected before any pending SCOTUS decision.

curtisfong
07-19-2013, 8:20 AM
The free market is the solution to the signage problem, just as it would have been the solution to the segregation problem after Brown sans the Civil Rights Act.

The free market is not a solution, since it depends on populist support of gun rights, which will NEVER happen due to human nature.

If we could depend on populism to uphold rights, we wouldn't need a judiciary branch.

Paladin
07-19-2013, 9:00 AM
Primarily, both sides filed briefings: state saying this case is mooted by the new law, if they want injunctive relief, they need to file new case.

Our side is saying UNconstitutional laws are still in place despite new law, therefore case not mooted -- give us an injunction or deny it by July 25 latest so we can seek an appeal.

So, marking my calendar for following up on the morning on the 26th.

Who knows, the court could make the decision in just a few days rather than take the whole week.
The thing I should have pointed out is that Monday, the 22nd, is still the deadline for the state to ask SCOTUS for cert. in Shepard-Moore.

Chatterbox
07-19-2013, 9:55 AM
The free market is the solution to the signage problem, just as it would have been the solution to the segregation problem after Brown sans the Civil Rights Act.

Not in California - the 5% of CCWs who will be affected will be outweighed by 15-20% of die-hard liberals writing letters like "I will not go into your store unless you prohibit baby killing murder rape guns from your premises".

ccmc
07-19-2013, 10:06 AM
The free market is the solution to the signage problem, just as it would have been the solution to the segregation problem after Brown sans the Civil Rights Act.

Just spent two weeks in Oklahoma where OC is legal for those with LTC from any state. Some businesses (primarily in the OKC and Tulsa metro areas) have posted signs prohibiting open carry, but not prohibiting concealed carry of firearms.

stag1500
07-19-2013, 4:17 PM
Not in California - the 5% of CCWs who will be affected will be outweighed by 15-20% of die-hard liberals writing letters like "I will not go into your store unless you prohibit baby killing murder rape guns from your premises".

If your gun is concealed, then nobody will know about. Right?

I don't see stores going out of their way to put up 'No Firearms on Premises" signs. Why would they want to alienate potential customers and help their competitors?

Mulay El Raisuli
07-19-2013, 4:20 PM
This depends on whether or not SCOTUS is looking for circuit splits.


Or, just for us to take the damn hint.


Woollard is already being petitioned for cert at the Supreme Court. That ship has sailed because the arguments have already been made.


It isn't a specific CCW effort. The fight for LOC has not been excluded by our arguments. I.E., We can still take the damn hint.


It'll be quite interesting to see what SCOTUS does with it if they grant cert (something I'm incredibly skeptical of at this point).


Yes, it will. IF we've taken the damn hint.


What specifically makes you believe that the 7th Circuit is treating CCW specifically as the right instead of carry in general?


They ruled that CCW meets the Constitutional requirement for "and bear"?


The 10th Circuit explicitly said that concealed carry is not protected by the 2nd Amendment. However, I believe it is the only circuit to have done so. The other circuits do not seem to have been talking specifically about concealed carry as distinguished from open carry. Rather, the "logic" they use to rule against us appears to be applicable to all carry.


The flaw here is that all the other cases attacked the prohibition on CCW. That makes the issue CCW. That means the Rulings addressed CCW.


Then let's talk strictly about open carry.

With open carry, you have the problem of the federal and state gun-free school zones that have the effect of rendering open carry null and void in urban areas. And while open carry as a right should overcome that, those laws are about as much "for the children!" as it gets. As such, the hurdle to overcome in the judiciary is much higher for those than for anything else, most especially after Sandy Hook.

Getting a declaration from the judiciary that open carry is a right protected by the 2nd Amendment does not guarantee that we'll be able to get the GFSZ laws struck. Far from it.


Life has no guarantees & I never made any.


Having a tool that you can use to strike down a law does not itself guarantee success in doing so, even if you somehow manage to get your case in front of the Supreme Court.


Yes, there is a hill to climb. But at least we'll be able to start the climb. Which is better than we can do now, because now all we have is intelligence (which matters a lot less than it should).


That remains to be seen.


Then prepare to see.


You are failing to account for the dynamics here.

Support for carry depends entirely on its usefulness. Its usefulness is governed by the effort required to engage in it versus the perceived benefit of doing so. If most businesses, particularly when backed by law, demand that you disarm before you can even enter their parking lots, then the only time one will be able to carry at all is when one is in public areas. That kind of effort (when possible at all!) to carry in public goes well beyond what most people will be willing to put up with. As staunch an advocate of RKBA as you know me to be, I wouldn't put up with that kind of burden. It would make carry entirely impractical for me.

So it comes down to pressure on businesses to not put up such signs. But that pressure comes from people who wish to carry to begin with. And the only way you can build sufficient support in that regard is to make carry something they have experienced for themselves. But with the burden being that high, nobody in their right mind will bother to begin with.

This makes the entire thing a bootstrapping problem. You can't build a sufficient base to pressure businesses to refrain from putting up signs without carry being useful to enough people that they engage in it, and they will not engage in it if there are too many such signs. So everything depends on who gets there first.

It should be obvious that, in urban California, businesses will put up signs well before a sufficiently large number of people begin carrying.


You forget the effects of the Ohio Effect. Decent CCW regs will lead to people carrying who can ignore those signs (albeit at some risk).

And of course, making things better in the rural area (blood not flowing in the streets, etc) will have an influence in the urban areas.


This is not something you can address through time. Where's this magic influence you're implying going to come from?


The rural areas of the state & the rest of the country.


No, it's not just for now. The above is a permanent state of affairs, because once the signs go up en masse, you can't get there from here.


Unless there's a force field around the signs, what goes up can come down.


That's "most of the state" by land area, not "most of the state" by population. But in this case, it is by population that matters.


Not when "example" is the standard.


They can't see that reestablishment of the right makes everybody safer until enough people carry, but you won't get enough people carrying unless it is reasonable to exercise the right, and that can't happen with all the signs that'll be put up!

It's a chicken and egg problem that I've seen nobody propose a solution to. I see no way to break the deadlock. Once the signs go up, it's game over.


For the reasons above, you are wrong.

But even it runs out you're right, we still wind up with decent CCW regs, a large part of the state made safer and "and bear" protected from future "wise Latinas" & their ilk. I.E., the effort is very much worth making. With no good argument against doing so.


The Raisuli

chainsaw
07-19-2013, 10:35 PM
You can't discharge on public roads (CPC§374(c)), so you probably can't carry a loaded firearm there either.

An interesting observation. I'm not sure that the prohibition against shooting from public roads (which is in the part of the code that deals with littering on public roads) was what the legislature intended when it made loaded open carry legal on areas where discharge was allowed. But I don't want to be the test case, so let's stipulate among the two of us that public roads are also de-facto no-shoot-zones, and therefore you can't loaded open carry on them either.

I still haven't figured out why I should have to plan a trip miles out into the woods just so I can "exercise" my "rights," only to get schwacked walking from my front door to my car because I don't have that right on the sidewalk in front of my house.

Well, I have the right to LOC on the sidewalk in front of my house. But I immediately admit that this doesn't help you any. If I remember right, you live in SF, which is an incorporated city, so no LOC for you near your house.

But here is a huge underlying difference. I don't plan a trip miles out into the wood, just to exercise my rights. Matter-of-fact, I consider it a complete waste of time to exercise my right for the sole purpose of exercising it.

I carry a gun when I feel the need to carry one, because it might become useful. I leave it in the gun safe when I don't need to carry one. Theoretically, there might be the situation where I would like to carry a gun, but I'm legally prohibited from doing so; but I have yet to find myself in that predicament. However, I would never carry a gun solely to exercise my right to do so. To me, a gun is a tool, useful for certain things (including amusement when target shooting, including protection in certain situations). I use them for their purpose. There isn't any time left in my schedule to waste on exercising rights in isolation, unless doing so achieves a useful purpose.

wildhawker
07-19-2013, 11:54 PM
Well, I have the right to LOC on the sidewalk in front of my house.

As a general matter, in California, it is not lawful to LOC on a public sidewalk in front of your house unless you are specifically exempted from the Penal Codes prohibiting such acts.

-Brandon

El Toro
07-20-2013, 7:42 AM
..... However, I would never carry a gun solely to exercise my right to do so. To me, a gun is a tool, useful for certain things (including amusement when target shooting, including protection in certain situations). I use them for their purpose. There isn't any time left in my schedule to waste on exercising rights in isolation, unless doing so achieves a useful purpose.

If you're extrapolating from this conversation that LOC should result in everyone strapping on their gun belt everyday just to "exercise a right" then you're missing the point. If we are going to get "bear" clarified as the right, then my and The Raisulis position is LOC is the only way SCOTUS will likely allow. It would be wise for us Californians to develop a path both legally and in practice for the return to LOC lest we leave it to a leftie to mess it up.

chainsaw
07-20-2013, 7:57 AM
As a general matter, in California, it is not lawful to LOC on a public sidewalk in front of your house unless you are specifically exempted from the Penal Codes prohibiting such acts.

-Brandon

As a "general matter", meaning for many people, you may very well be correct. I repeat that it is legal for me to open carry loaded up and down on the sidewalk in front of my house, and on my driveway, and on the road leading to my house. And no, I am NOT law enforcement, I do not have a CCW permit, nor am I in any of the other special allowed categories.

Life is not as simple as you describe it.

Reminder: This is not legal advice. I am not qualified to give legal advice. Anyone who tries to do this in their place is doing so at their own risk, and will likely be in trouble with the law.

Peaceful John
07-20-2013, 9:20 AM
If we are going to get "bear" clarified as the right, then my and The Raisulis position is LOC is the only way SCOTUS will likely allow. It would be wise for us Californians to develop a path both legally and in practice for the return to LOC lest we leave it to a leftie to mess it up.

From the Woollard cert petition:

Woollard . . . questions only whether he must prove to the police that he has a "good and substantial" reason to exercise a fundamental right

Finally, because Maryland's law operates without distinction between the concealed and open carrying of handguns, confusing questions as to the manner in which Woollard might exercise his rights are avoided. Petitioners would assert that the Legislature may determine the manner in which handguns are carried, but that issue is absent here (emphasis mine)

This approach is agnostic regarding concealed or open carry and encourages the Court to decide regardless of the (yet to be determined) manner of protected carry.

The single question Woollard asks is whether or not the state has constitutional authority to gateway fundamental rights.

dustoff31
07-20-2013, 10:47 AM
From the Woollard cert petition:

Woollard . . . questions only whether he must prove to the police that he has a "good and substantial" reason to exercise a fundamental right

Finally, because Maryland's law operates without distinction between the concealed and open carrying of handguns, confusing questions as to the manner in which Woollard might exercise his rights are avoided. Petitioners would assert that the Legislature may determine the manner in which handguns are carried, but that issue is absent here (emphasis mine)

This approach is agnostic regarding concealed or open carry and encourages the Court to decide regardless of the (yet to be determined) manner of protected carry.

The single question Woollard asks is whether or not the state has constitutional authority to gateway fundamental rights.

Therefore, as we know SCOTUS likes to keep things simple and only rule on the question before them, that is very likely the only question they will answer. If they take the case at all.

Peaceful John
07-20-2013, 11:06 AM
Therefore, as we know SCOTUS likes to keep things simple and only rule on the question before them, that is very likely the only question they will answer. If they take the case at all.

One hopes. It would mean universal "shall issue" licenses to carry that are (possibly) valid nationwide. No harm to the Free States, great benefit to California, Maryland, New Jersey, and others.

dustoff31
07-20-2013, 11:21 AM
One hopes. It would mean universal "shall issue" licenses to carry that are (possibly) valid nationwide. No harm to the Free States, great benefit to California, Maryland, New Jersey, and others.

Well perhaps, assuming they rule as we would prefer. But that is why I'm skeptical that they even take the case.

I can't help but believe that the remark that the Chief Justice made in the Obamacare decision, to the effect that it is not the job of the court to protect people from political choices is a philosophy more than just an off hand remark.

meaty-btz
07-20-2013, 11:55 AM
Well perhaps, assuming they rule as we would prefer. But that is why I'm skeptical that they even take the case.

I can't help but believe that the remark that the Chief Justice made in the Obamacare decision, to the effect that it is not the job of the court to protect people from political choices is a philosophy more than just an off hand remark.

The most scary thing from that remark is they are saying they have no job or duty to protect you from unconstitutional things if you are foolish politically.

AKA: we are not the counterbalance to runaway government.

Which is what they are supposed to be. Complete dereliction of the nature of their position.

speedrrracer
07-20-2013, 12:51 PM
The most scary thing from that remark is they are saying they have no job or duty to protect you from unconstitutional things if you are foolish politically.

AKA: we are not the counterbalance to runaway government.

Which is what they are supposed to be. Complete dereliction of the nature of their position.

Why should SCOTUS be different than any other branch of the government?

El Toro
07-20-2013, 3:22 PM
Roberts remarks reflected that Obamacare was a "tax" - that there was no disputing that the Federal government has an established right to tax us eventhough it was a stupud tax and we voted for it. Reminds me of stupid Californians voting to tax themselves.

Mulay El Raisuli
07-21-2013, 4:45 AM
If you're extrapolating from this conversation that LOC should result in everyone strapping on their gun belt everyday just to "exercise a right" then you're missing the point. If we are going to get "bear" clarified as the right, then my and The Raisulis position is LOC is the only way SCOTUS will likely allow. It would be wise for us Californians to develop a path both legally and in practice for the return to LOC lest we leave it to a leftie to mess it up.



Absolutely!


From the Woollard cert petition:

Woollard . . . questions only whether he must prove to the police that he has a "good and substantial" reason to exercise a fundamental right

Finally, because Maryland's law operates without distinction between the concealed and open carrying of handguns, confusing questions as to the manner in which Woollard might exercise his rights are avoided. Petitioners would assert that the Legislature may determine the manner in which handguns are carried, but that issue is absent here (emphasis mine)

This approach is agnostic regarding concealed or open carry and encourages the Court to decide regardless of the (yet to be determined) manner of protected carry.

The single question Woollard asks is whether or not the state has constitutional authority to gateway fundamental rights.


The Fail is the part you underlined. No, the Legislature may NOT so determine. And therefore the approach is not agnostic.

Still, IF the matter is taken up, we can use the same cases that the 10th & 2nd Circuits quoted from Heller (when they shot us down) to argue that this is the perfect vehicle to establish LOC as the Constitutionally protected manner of "and bear."


The most scary thing from that remark is they are saying they have no job or duty to protect you from unconstitutional things if you are foolish politically.

AKA: we are not the counterbalance to runaway government.

Which is what they are supposed to be. Complete dereliction of the nature of their position.


NO, the Decision make it clear that it is not the job of SCOTUS to protect us from stupid political choices UNLESS that choice violates the Constitution.


The Raisuli

fizux
07-21-2013, 8:46 AM
The Fail is the part you underlined. No, the Legislature may NOT so determine.
It is your position that a shall-issue state that follows the traditional Texas model (concealed means concealed) is unconstitutional?

I have to say, I do not believe that the 2A proscribes the manner of bearing, especially after considering the language in Heller.

Peaceful John
07-21-2013, 8:55 AM
Peaceful John: Finally, because Maryland's law operates without distinction between the concealed and open carrying of handguns, confusing questions as to the manner in which Woollard might exercise his rights are avoided. Petitioners would assert that the Legislature may determine the manner in which handguns are carried, but that issue is absent here (emphasis mine)

Mulay El Rasuli: The Fail is the part you underlined. No, the Legislature may NOT so determine. And therefore the approach is not agnostic.

Certainly you'd be right if the Court so decided, but the underlined part is not the bit submitted for cert. The stipulation is included, it seems to me, to remove legislative action from the Court's consideration in the present cert request only. That legislative fight will surely be waged, but on another day.

Mulay El Raisuli
07-22-2013, 4:54 AM
It is your position that a shall-issue state that follows the traditional Texas model (concealed means concealed) is unconstitutional?


If memory serves, Texas, while Shall Issue, forbids Open Carry. It is my contention that this is unconstitutional, yes.


I have to say, I do not believe that the 2A proscribes the manner of bearing, especially after considering the language in Heller.


The 2A doesn't proscribe any manner of "and bear." I never said that it did. What I did say is that the manner of "and bear" protected by the Constitution is Open Carry (LOC).

Heller was about "keeping" a handgun in the home. BUT, since Heller was also a Case of First Impression, the Court felt the need to blab on a bit. Since "and bear" wasn't a part of that, anything said relating to anything else was, necessarily, dicta.

That doesn't mean that what they had to say can be ignored. When they talked about those 19th Century "and bear" cases, they weren't just a whistin' Dixie. They were sending a message (giving a hint, IOW). The lower courts heard that message, & have beat us over the head with it ever since. We have kept submitting variations on the theme (that CCW can be the protected Right) & we keep getting shot down.

Just like I predicted.


Peaceful John: Finally, because Maryland's law operates without distinction between the concealed and open carrying of handguns, confusing questions as to the manner in which Woollard might exercise his rights are avoided. Petitioners would assert that the Legislature may determine the manner in which handguns are carried, but that issue is absent here (emphasis mine)

Mulay El Rasuli: The Fail is the part you underlined. No, the Legislature may NOT so determine. And therefore the approach is not agnostic.

Certainly you'd be right if the Court so decided, but the underlined part is not the bit submitted for cert. The stipulation is included, it seems to me, to remove legislative action from the Court's consideration in the present cert request only. That legislative fight will surely be waged, but on another day.


Are you saying that we can still make the argument that LOC is the Protected Right?

If so, I hope so!


The Raisuli

Drivedabizness
07-22-2013, 7:16 AM
SCOTUS has already upheld State laws banning concealed carry (as was noted in Heller)

They can regulate the manner of carry but they cannot ban carry.

M. D. Van Norman
07-22-2013, 7:20 AM
They can do whatever they want. What they may legally do under the Constitution is the question at issue.

fizux
07-22-2013, 8:04 AM
If memory serves, Texas, while Shall Issue, forbids Open Carry. It is my contention that this is unconstitutional, yes.
The 2A doesn't proscribe any manner of "and bear." I never said that it did. What I did say is that the manner of "and bear" protected by the Constitution is Open Carry (LOC).
So, wouldn't the most direct approach be to sue Texas? Why snipe at CA, MD, HI, and NY cases where the state require a permit to CCW and also bans LOC without the permit?


Heller was about "keeping" a handgun in the home. BUT, since Heller was also a Case of First Impression, the Court felt the need to blab on a bit. Since "and bear" wasn't a part of that, anything said relating to anything else was, necessarily, dicta.
I disagree. D.C.'s opposition was that "and bear" was an exclusively military concept, implying that "keep" and "arms" applied only in the context of militia service. They had to rule on "bear" as part of the holding.

That doesn't mean that what they had to say can be ignored. When they talked about those 19th Century "and bear" cases, they weren't just a whistin' Dixie. They were sending a message (giving a hint, IOW). The lower courts heard that message, & have beat us over the head with it ever since. We have kept submitting variations on the theme (that CCW can be the protected Right) & we keep getting shot down.
What I read in the dicta was that regulating CCW was okay in places where LOC was available. Some of the hustorical cases struck down statutes that banned both manners of bearing, so it looks like they can ban one or the other but not both.

While we are on dicta, I still find the "clothing/pocket" language instructive.

El Toro
07-22-2013, 9:04 AM
So Californias "may issue" must either change to "shall issue" or we must be allowed LOC.

Fine, so what's the proper way to construct this case? Note, we've made very little progress with CCW.

El Toro
07-22-2013, 9:04 AM
So Californias "may issue" must either change to "shall issue" or we must be allowed LOC.

Fine, so what's the proper way to construct this case? Note, we've made very little progress with CCW.

Al Norris
07-22-2013, 10:30 AM
What I did say is that the manner of "and bear" protected by the Constitution is Open Carry (LOC).

Heller was about "keeping" a handgun in the home. BUT, since Heller was also a Case of First Impression, the Court felt the need to blab on a bit. Since "and bear" wasn't a part of that, anything said relating to anything else was, necessarily, dicta.

No. In Heller, part of the claim was that D.C. required a permit to "carry" the firearm from one location, inside the home, to another. A permit the city refused to issue to anyone. The Court held that the permit must be issued, if the permit was to be a valid exercise of the police power of D.C. D.C. repealed that law, after the decision came out.

That doesn't mean that what they had to say can be ignored. When they talked about those 19th Century "and bear" cases, they weren't just a whistin' Dixie. They were sending a message (giving a hint, IOW). The lower courts heard that message, & have beat us over the head with it ever since. We have kept submitting variations on the theme (that CCW can be the protected Right) & we keep getting shot down.

Just like I predicted.

That's not exactly how I've read the pleadings, nor what the lower courts are saying.

In his dicta, Justice Scalia writes with approval the earlier cases which upheld bans on concealed carry, precisely because open carry was unfettered. That gives rise to the idea that the States may indeed decide the manner of carry, as long as carry itself was preserved. Reading anything else into the that dicta is simply disingenuous.

The cases that have been brought forth, deal with this very subject. However....

The defendants have all but ignored the open carry bit and have opined that CC is not a right. The courts, are in outright rebellion against the Heller position. They generally say that the right does not extend further than the door-step (for those that even acknowlege such a right), and/or the right is so far removed from the "core" right of self-defense in the home (a deliberate misreading of the Heller case) that they can dismiss the the concept out of hand.

Woollard is different, in that the State of MD requires a permit in order to carry in any manner whatsoever (albeit, with some exceptions that do not apply to self-defense). The question that remains, is the Woollard case enough of a difference to be granted cert?

Being cautiously optimistic, I'd wager that the odds are currently 50-50 for a grant. That, only because the IL issue appears to be (mostly) resolved. Like many, I think the Court would have much preferred the Moore/Sheppard cases. It is a much narrower issue. Woollard expands the issue somewhat, but because the permit is required to carry in any meaningful self-defense manner, it may be just narrow enough.

naeco81
07-22-2013, 11:08 AM
I understand it as Al Norris does. 2A doesn't require any specific manner of and bear to be protected, simply that some manner of it must be. This is par for the course with our concise constitution. States are left to decide what manner works best for them, but at least one option must be viable to satisfy our civil right.

Maestro Pistolero
07-22-2013, 11:35 AM
Agreed. It is no better to look at Ginsburg's 'in the clothing or a pocket' language in a vacuum, than it is to look at the cases in which a CCW ban was upheld, while ignoring the fact that LOC was available in each of those cases.

It may seem like it's a clearer path with an OC-only case, but only if you believe the court has a higher likelihood of forcing existing shall-issue states to to allow licensed (or unlicensed) LOC.

I find it highly unlikely the court would be so wantonly disruptive to states that already accommodate the right via CCW licensing. For many states an openly carried weapon is a cause of fear and panic. I see no possible way the court forces that on the states.

There is no OC in Texas (nor FLA, IIRC) whatsoever for non-LE. Few would argue that Texas or Florida, of all states, don't respect the second amendment.

Peaceful John
07-22-2013, 2:15 PM
No. In Heller, part of the claim was that D.C. required a permit to "carry" the firearm from one location, inside the home, to another.

Woollard is different, in that the State of MD requires a permit in order to carry in any manner whatsoever.

I did not see this particular relationship between Heller and Woollard, and I'm grateful Al pointed out. It's becoming unclear to me how the Court could find for Heller but not for Woollard.

Paladin
07-22-2013, 2:52 PM
The thing I should have pointed out is that Monday, the 22nd, is still the deadline for the state to ask SCOTUS for cert. in Shepard-Moore.Did Madigan ask for cert. today? Today was, IIRC, her deadline.

If she had asked for it, would it have been posted at:
http://ia600609.us.archive.org/34/items/gov.uscourts.ilsd.52207/gov.uscourts.ilsd.52207.docket.html

or somewhere else?

Al Norris
07-22-2013, 5:23 PM
Did Madigan ask for cert. today? Today was, IIRC, her deadline.

If she had asked for it, would it have been posted at:
http://ia600609.us.archive.org/34/items/gov.uscourts.ilsd.52207/gov.uscourts.ilsd.52207.docket.html

or somewhere else?

If you have gone to PACER to see the docket, you must remember that they have until midnight (IL time) to file the petition. Then too, PACER sometimes lags by as much as a couple of days.

But to answer the question, yes you would see an entry on the docket. Thereafter you would need to search the docket at SCOTUS for the entry.

RECAP recently has enabled circuit court dockets to be recapped (although not all circuits seem to react. Therefore its not quite stable in that respect). Take a look at the docket for Woollard at the CA4: http://www.archive.org/download/gov.uscourts.ca4.12-1437/gov.uscourts.ca4.12-1437.docket.html In this case, we can see that docket entry #126 (which is down-loadable) is from the SCOTUS. This entry tells the circuit when the petition was filed, when it was docketed at SCOTUS and the case number.

Calplinker
07-22-2013, 8:18 PM
IMHO, it is very unlikely IL. will file for cert. Possible, but very unlikely.

There are some risks to letting midnight go by, but far more risks in asking for SCOTUS review.

Maestro Pistolero
07-22-2013, 9:13 PM
IMHO, it is very unlikely IL. will file for cert. Possible, but very unlikely.

There are some risks to letting midnight go by, but far more risks in asking for SCOTUS review.

You're probably right. With the passing the new (not yet implemented) CCW law, I think Madigan has more than enough cover to avoid the SCOTUS showdown.

M. D. Van Norman
07-23-2013, 7:28 AM
Not in California - the 5% of CCWs who will be affected will be outweighed by …

That five percent would represent two million potential customers. Someone will always be willing to tap that market. ;)

Mulay El Raisuli
07-23-2013, 8:02 AM
So, wouldn't the most direct approach be to sue Texas? Why snipe at CA, MD, HI, and NY cases where the state require a permit to CCW and also bans LOC without the permit?


It would have been. But, we didn't take the damn hint & made the decision to try & make CCW the Protected Right.


I disagree. D.C.'s opposition was that "and bear" was an exclusively military concept, implying that "keep" and "arms" applied only in the context of militia service. They had to rule on "bear" as part of the holding.


True. But, the discussion at that point was to debunk the notion that "and bear" was JUST a military concept. That doesn't equal support for the notion that "clothing/pocket" equals a Constitutionally Protected manner of "and bear."


What I read in the dicta was that regulating CCW was okay in places where LOC was available. Some of the hustorical cases struck down statutes that banned both manners of bearing, so it looks like they can ban one or the other but not both.


You misread the historical cases. Those courts didn't strike down the laws in toto. The only struck down the parts that banned LOC (Open Carry). They affirmed the parts that outlawed CCW(Concealed Carry). They also went on to say that this was because LOC was the Protected Right, but that CCW was NOT.

Could you copy/paste what part of the dicta that you think says CCW can be regulated where LOC is available?


While we are on dicta, I still find the "clothing/pocket" language instructive.


There's a difference between bearing & a Constitutionally Protected manner of bearing.


No. In Heller, part of the claim was that D.C. required a permit to "carry" the firearm from one location, inside the home, to another. A permit the city refused to issue to anyone. The Court held that the permit must be issued, if the permit was to be a valid exercise of the police power of D.C. D.C. repealed that law, after the decision came out.


The Court also expressed unhappiness with our pleading on this point. Coupled with the other things said, I come to the conclusion that we erred.


That's not exactly how I've read the pleadings, nor what the lower courts are saying.

In his dicta, Justice Scalia writes with approval the earlier cases which upheld bans on concealed carry, precisely because open carry was unfettered. That gives rise to the idea that the States may indeed decide the manner of carry, as long as carry itself was preserved. Reading anything else into the that dicta is simply disingenuous.

The cases that have been brought forth, deal with this very subject. However....


Your reading of the lower courts isn't wrong, just outdated. The idea that Heller is limited to JUST 'in the home' doesn't enjoy any real support anymore. Even the 2nd Circuit acknowledged that.

As for your reading of Scalia's dicta, you read wrongly. The key fact in the earlier cases wasn't that LOC was unfettered. It was that LOC could not be fettered. Because that was the Protected Right. Again, laws were passed that fettered both manners of "and bear." The sections that fettered LOC were struck down while the parts that fettered CCW were affirmed.

By referring (with approval) to these cases, Scalia was sending a big damn hint. Which we are ignoring.


The defendants have all but ignored the open carry bit and have opined that CC is not a right. The courts, are in outright rebellion against the Heller position. They generally say that the right does not extend further than the door-step (for those that even acknowlege such a right), and/or the right is so far removed from the "core" right of self-defense in the home (a deliberate misreading of the Heller case) that they can dismiss the the concept out of hand.


Again, this is outdated. Which means the lower courts are not in open rebellion. They're simply taking the hint.


Woollard is different, in that the State of MD requires a permit in order to carry in any manner whatsoever (albeit, with some exceptions that do not apply to self-defense). The question that remains, is the Woollard case enough of a difference to be granted cert?

Being cautiously optimistic, I'd wager that the odds are currently 50-50 for a grant. That, only because the IL issue appears to be (mostly) resolved. Like many, I think the Court would have much preferred the Moore/Sheppard cases. It is a much narrower issue. Woollard expands the issue somewhat, but because the permit is required to carry in any meaningful self-defense manner, it may be just narrow enough.


Our odds would have been better if we had made the issue 'LOC is the Protected Right & therefore can not be infringed.' I'm hopeful that (if we luck out & get Cert) the argument can be made in the pleadings and/or orals.


Agreed. It is no better to look at Ginsburg's 'in the clothing or a pocket' language in a vacuum, than it is to look at the cases in which a CCW ban was upheld, while ignoring the fact that LOC was available in each of those cases.


Again, the key fact isn't that LOC was available. The key fact is that LOC could not be made unavailable.


It may seem like it's a clearer path with an OC-only case, but only if you believe the court has a higher likelihood of forcing existing shall-issue states to to allow licensed (or unlicensed) LOC.


There's no likelihood of SCOTUS making CCW the Protected Right, & since it is repugnant to the Constitution to require licenses to exercise a basic Constitutional Right, I do believe that this is the proper approach.


I find it highly unlikely the court would be so wantonly disruptive to states that already accommodate the right via CCW licensing. For many states an openly carried weapon is a cause of fear and panic. I see no possible way the court forces that on the states.


I don't see SCOTUS allowing a basic Constitutional Right to be dependent on the good will of the various state legislatures. Yes, we have Shall Issue now in many places. But they can all be taken away.


There is no OC in Texas (nor FLA, IIRC) whatsoever for non-LE. Few would argue that Texas or Florida, of all states, don't respect the second amendment.


I would be that few, I guess. Both states (you're right about Fla) require me to get the permission of The State to exercise an Enumerated Constitutional Right. That this permission slip isn't tough to get doesn't change the fact that its still a permission slip. If they required one for me to go to church, even if it were easy & cheap to get, they would STILL be infringing on a Enumerated Constitutional Right.

Which would be an additional problem with the current approach. We're telling the various states that we don't mind having the Right infringed, just as long as the process is fair.

I disagree.


The Raisuli

M. D. Van Norman
07-23-2013, 8:16 AM
The Supreme Court can take Woollard and rule accordingly. What’s left to discuss?

Maestro Pistolero
07-23-2013, 8:36 AM
The Supreme Court can take Woollard and rule accordingly. What’s left to discuss?

True. If the criteria for addressing a question of constitutional law is whether a state statute has been struck, we still have Moore for that. While Moore can't be appealed now, the issues could still be addressed by the court through Woollard. However, I can't imagine the court taking that approach without fully considering the results of the 9th circuit cases (once decided).

Chatterbox
07-23-2013, 9:44 AM
By the way, why does it have to be CCW or LOC? Why can't the courts rule that UOC or LUCC would satisfy the "bear" requirement?

dustoff31
07-23-2013, 9:51 AM
By the way, why does it have to be CCW or LOC? Why can't the courts rule that UOC or LUCC would satisfy the "bear" requirement?

UOC and LUCC are pretty much CA concepts. Those things generally don't exist anywhere else.

In other states if you said I'm going to carry around this unloaded pistol for self defense people would look at you like you had two heads.

curtisfong
07-23-2013, 10:21 AM
Why can't the courts rule that UOC or LUCC would satisfy the "bear" requirement?

UOC'd and LUCC'd firearms are not functional.

Maestro Pistolero
07-23-2013, 10:56 AM
UOC'd and LUCC'd firearms are not functional.

I believe the right read in Heller was something like '. . . to a functional firearm for immediate use for self-defense" when they invalidated DC's trigger-lock and disassembly requirement.

Mulay El Raisuli
07-25-2013, 6:31 AM
The Supreme Court can take Woollard and rule accordingly. What’s left to discuss?


Hopefully, nothing.


The Raisuli

Paladin
07-25-2013, 9:38 PM
Primarily, both sides filed briefings: state saying this case is mooted by the new law, if they want injunctive relief, they need to file new case.

Our side is saying UNconstitutional laws are still in place despite new law, therefore case not mooted -- give us an injunction or deny it by July 25 latest so we can seek an appeal.

So, marking my calendar for following up on the morning on the 26th.

Who knows, the court could make the decision in just a few days rather than take the whole week.Well, another deadline has fallen. Any ideas on how long a decision re. the injunction should take? (skip "2 weeks" plz)

Al Norris
07-26-2013, 10:49 AM
The MTD was granted in Sheppard, this morning:

07/26/2013 89 (http://www.archive.org/download/gov.uscourts.ilsd.52207/gov.uscourts.ilsd.52207.89.0.pdf) ORDER DISMISSING CASE for lack of subject matter jurisdiction. MOTION for Declaration of Unconstitutionality and Preliminary and/or Permanent Injunction 75 filed by Mary Shepard, Illinois State Rifle Association is DISMISSED; MOTION to Expedite Briefing 76 filed by Mary Shepard, Illinois State Rifle Association is DENIED as moot; MOTION to Dismiss 78 filed by David Livesay, AND MOTION to Dismiss for Lack of Jurisdiction 73 filed by Tyler R Edmonds, Patrick J Quinn, Lisa M Madigan are GRANTED. ACTION DUE by 8/9/2013--parties to brief issue of award of costs and fees. Signed by Judge William D. Stiehl on 7/26/2013. (jaf ) (Entered: 07/26/2013)

Nothing yet in the Moore case, but I fully expect the same.

fizux
07-26-2013, 4:02 PM
The MTD was granted in Sheppard, this morning:
Nothing yet in the Moore case, but I fully expect the same.
Thanks for watching the docket.

Notice of appeal?

Paladin
07-27-2013, 8:05 AM
The MTD was granted in Sheppard, this morning:



Nothing yet in the Moore case, but I fully expect the same.Can this/these be appealed to CA-7? and then, if necessary, to SCOTUS?

Al Norris
07-27-2013, 4:45 PM
Can it be appealed? Sure it can... How long do we think this will take to be briefed and a decision rendered (assuming no orals)?

Go to SCOTUS? Nope. Not nearly enough time.

Paladin
07-27-2013, 10:03 PM
In the alternative, would it take too long to immediately file the new case per the judge's order and ask for a PI and if declined, appeal that to CA-7?

Al Norris
07-28-2013, 6:15 AM
In the alternative, would it take too long to immediately file the new case per the judge's order and ask for a PI and if declined, appeal that to CA-7?

Here's the thing:

(1) Should they appeal, there is the off-chance that things will go swiftly. A very slim chance.

It most likely will take so much time that the ISP could set their regs and forms and begin issuing... That moots the case. Irrevocably. An argument could be made that the plaintiffs, in attempting to keep a mooted case alive, were not entitled to further attorney fees.

(2) A new case (to force a PI) would face the same things.

Time is the enemy here.

Can a new case be filed, claiming certain sections are too restrictive? Certainly. But you then face the Kachalsky opinion. If Woollard is not granted cert, then that adds to the weight that would have to be lifted.

In all of this, we have to remember that we won. The State of Illinois has been forced to legislate a Shall Issue law, as onerous as it may seem.

The more I think on this, Sigale and Jensen (Moore) are probably correct: "Take the money and run...."

press1280
07-28-2013, 7:53 AM
Here's the thing:

(1) Should they appeal, there is the off-chance that things will go swiftly. A very slim chance.

It most likely will take so much time that the ISP could set their regs and forms and begin issuing... That moots the case. Irrevocably. An argument could be made that the plaintiffs, in attempting to keep a mooted case alive, were not entitled to further attorney fees.

(2) A new case (to force a PI) would face the same things.

Time is the enemy here.

Can a new case be filed, claiming certain sections are too restrictive? Certainly. But you then face the Kachalsky opinion. If Woollard is not granted cert, then that adds to the weight that would have to be lifted.

In all of this, we have to remember that we won. The State of Illinois has been forced to legislate a Shall Issue law, as onerous as it may seem.

The more I think on this, Sigale and Jensen (Moore) are probably correct: "Take the money and run...."

One thing a new lawsuit may do however is at least hold ISP's feet to the fire as far as obeying their own timelines. There are many folks who are waiting months for an FOID card that is only supposed to take 30 days. Many believe the ISP may try to cry that they need more time,exc.

Paladin
07-28-2013, 8:20 AM
Here's the thing....

Time is the enemy here.

Can a new case be filed, claiming certain sections are too restrictive? Certainly. But you then face the Kachalsky opinion. If Woollard is not granted cert, then that adds to the weight that would have to be lifted.

In all of this, we have to remember that we won. The State of Illinois has been forced to legislate a Shall Issue law, as onerous as it may seem.

The more I think on this, Sigale and Jensen (Moore) are probably correct: "Take the money and run...."Yeah, just trying to avoid leaving any stones unturned in getting IL'ers issued LTCs/CCWs.

I can't wait to add some examples of IL LTCs saving lives to my list linked in my sig line.

BTW Thx for the excellent list you've made and linked in your sig line! :thumbsup:

Paladin
07-30-2013, 8:11 AM
Here's the thing:

(1) Should they appeal, there is the off-chance that things will go swiftly. A very slim chance.

It most likely will take so much time that the ISP could set their regs and forms and begin issuing... That moots the case. Irrevocably. An argument could be made that the plaintiffs, in attempting to keep a mooted case alive, were not entitled to further attorney fees.

(2) A new case (to force a PI) would face the same things.

Time is the enemy here.

Can a new case be filed, claiming certain sections are too restrictive? Certainly. But you then face the Kachalsky opinion. If Woollard is not granted cert, then that adds to the weight that would have to be lifted.

In all of this, we have to remember that we won. The State of Illinois has been forced to legislate a Shall Issue law, as onerous as it may seem.

The more I think on this, Sigale and Jensen (Moore) are probably correct: "Take the money and run...."
Looks like Mary Shepard and the ISRA filed an appeal with CA-7:
http://abcnews.go.com/US/wireStory/judge-tosses-bid-hastened-ill-concealed-carry-19807092

Paladin
07-30-2013, 4:30 PM
Looks like Mary Shepard and the ISRA filed an appeal with CA-7:
http://abcnews.go.com/US/wireStory/judge-tosses-bid-hastened-ill-concealed-carry-19807092Forgot to ask: who at CA-7 would decide this appeal: any random judge? one of the 3 on the Shepard-Moore panel? Posner himself? the Shepard-Moore panel?

fizux
07-30-2013, 7:45 PM
Forgot to ask: who at CA-7 would decide this appeal: any random judge? one of the 3 on the Shepard-Moore panel? Posner himself? the Shepard-Moore panel?

From http://www.ca7.uscourts.gov/rules/handbook.pdf:

The judges are then randomly assigned by computer to sit in various panels.... An exception to this procedure occurs when a previously argued case is on the docket for a subsequent hearing. In this situation the original panel may be reconstituted to hear the second appeal.

(emphasis added)

Paladin
07-30-2013, 9:17 PM
From http://www.ca7.uscourts.gov/rules/handbook.pdf:

(emphasis added)
Sweet! This could get interesting. :43:

Gray Peterson
07-30-2013, 11:41 PM
Attached below.

non sequitur
07-31-2013, 7:21 AM
This is getting good...

"The court below ruled that Illinois may continue to enforce the statutes that this Court has declared unconstitutional until Illinois feels ready to implement its FCCA—which, under the FCCA’s terms, will take as long as an additional nine months. The district court refused to comply with this Court’s mandate to declare the Illinois statutes unconstitutional and to permanently enjoin their enforcement. That defiance of this Court’s judgment perpetuates —rather than moots — the irreparable violation of Plaintiffs’ fundamental rights. Plaintiffs’ therefore move for an injunction against the enforcement of laws this Court has already held unconstitutional pending resolution of this appeal."

(emphasis added)

Paladin
07-31-2013, 7:21 AM
Attached below.

Mikey likes it! :D

In particular, Plaintiffs seek an injunction prohibiting Defendants-Appellees (“Defendants” or “the State”) from enforcing Illinois’s ban on carrying firearms in public—codified at 720 ILCS 5/24-1(a)(4)&(10) and 720 ILCS 5/24-1.6(a)(3)(A)-(B)—against Ms. Shepard and members of the Illinois State Rifle Association for carrying firearms in a manner consistent with the limitations imposed by §65 of the Firearm Concealed Carry Act.

In the alternative, to allow for prompt adjudication of this appeal and to reduce the risk of it becoming moot before being decided, Plaintiffs request that this Court treat Plaintiffs’ motion as their opening brief and expedite the briefing of this appeal such that Defendants’ response would be due August 5 and Plaintiffs’ reply due August 8. (emphasis added)

ziegenbock
07-31-2013, 10:47 PM
Attached below.

That was a good read!!

Gray, did you see you got mentioned in the 3rd circuit opinion? :facepalm:

Baja Daze
08-01-2013, 2:38 AM
Attached below.

Thanks for posting that Gray and I fail to see how the court could deny the emergency injunction request, the argument really is irrefutable.

fizux
08-01-2013, 5:23 AM
Thanks for posting that Gray and I fail to see how the court could deny the emergency injunction request, the argument really is irrefutable.
Unfortunately, lawyers are (almost) all weasels, so "irrefutable" doesn't exist.

Maestro Pistolero
08-01-2013, 9:15 AM
Unfortunately, lawyers are (almost) all weasels, so "irrefutable" doesn't exist.

Attempted refutiation is guaranteed.

naeco81
08-01-2013, 10:48 AM
I hope this is setting stage as a preview of what to expect when we finally get in front of SCOTUS. Nothing quite like lower courts getting big leagued as they scramble to circumvent the spirit of the law.

non sequitur
08-01-2013, 12:25 PM
Stay tuned...

"IT IS ORDERED that the emergency motion for an injunction pending appeal is DENIED.

IT IS FURTHER ORDERED that the motion to expedite is GRANTED to the extent that the motion for an injunction pending appeal will be treated as appellants' opening brief and briefing will proceed as follows:

1.The appellees' response brief is due by August 9, 2013.

2.The appellants' reply, if any, is due by August 14, 2013.

The court will announce the date for oral argument in a separate order."

Tripper
08-01-2013, 12:39 PM
So, does that mean the lower court gets to ignore the higher courts ruling, and state gets to trample on rights anyway

Tripper
08-01-2013, 12:40 PM
Seems the higher court would order immediate compliance from the lower court, or fire them or something
Someone needs to get seriously sued

Judges are typically immune
Is there a way to get around that when it comes to making orders that violate civil rights, Especially as held by their own higher court
Get some judges sued for knowingly violating rights and making these kind of judgements maybe it will stop

kf6tac
08-01-2013, 2:14 PM
So, does that mean the lower court gets to ignore the higher courts ruling, and state gets to trample on rights anyway

Yep, at least for another :twoweeks:, most likely more depending on when the oral argument gets set.

fizux
08-02-2013, 9:00 AM
Yep, at least for another :twoweeks:, most likely more depending on when the oral argument gets set.
The 7CA ruling does fall in line with the law, and the denial of the injunction does not mean it won't rule the right way later this month. The denial preserves the status quo (very hard to overcome), while allowing opponents the opportunity to file an opposition before issuing a ruling. Had it granted the injunction, there would be a mess between ISP/Chiraq with creative interpretations of the order versus the Kokesh types. Granting the injunction would allow Antis to argue abuse of discretion.

In many cases, courts will deny a preliminary injunction, order expedited briefing, and then absolutely destroy the other side in the final order (including a fairly famous SCOTUS case on school desegregation). Prop 8 trial judge (Chief Judge Vaughn Walker) denied plaintiffs' prelim injunction and MSJ, then had a trial and made a finding of fact on the merits. That was much harder to overturn in the end, even though the initial rulings ticked off the LGBT community who felt betrayed by one of their own before the trial.

squee116
08-02-2013, 9:54 AM
If time is the enemy, as Al Norris said, wouldn't stall tactics on the part of Illinois be appreciated? Or am I reading this wrong? I'm not quite sure how to interpret :

"IT IS ORDERED that the emergency motion for an injunction pending appeal is DENIED.

IT IS FURTHER ORDERED that the motion to expedite is GRANTED to the extent that the motion for an injunction pending appeal will be treated as appellants' opening brief and briefing will proceed as follows:

1.The appellees' response brief is due by August 9, 2013.

2.The appellants' reply, if any, is due by August 14, 2013.

The court will announce the date for oral argument in a separate order."

ddestruel
08-02-2013, 10:17 AM
This just got interesting again

hardlyworking
08-02-2013, 11:59 AM
Is there a way to get around that when it comes to making orders that violate civil rights[?]
There is, look up USC 1983.

Apparently the burden of proof is pretty rough, and for 2A concerns I think your lawyer would need to do a truckload of work because 2A jurisprudence protecting/enumerating an individual right is so (relatively) new and shallow.

Also in order to actually have standing, Ms. Sheppard would probably need to carry, and get busted by LEO, and if she looses the case she's probably convicted of felony possession, and loses her rights for good.

Very risky!

Tripper
08-02-2013, 2:27 PM
I think judges are immune to being sued

Al Norris
08-02-2013, 8:31 PM
For those interested, you might want to review the actual docket at the 7th Circuit:

CA7 Docket for 13-2661, Sheppard (http://www.archive.org/download/gov.uscourts.ca7.13-2661/gov.uscourts.ca7.13-2661.docket.html)

(Yes, the FireFox plugin RECAP now works at the circuit level)

Baja Daze
08-03-2013, 1:35 AM
The 7CA ruling does fall in line with the law, and the denial of the injunction does not mean it won't rule the right way later this month. The denial preserves the status quo (very hard to overcome), while allowing opponents the opportunity to file an opposition before issuing a ruling. Had it granted the injunction, there would be a mess between ISP/Chiraq with creative interpretations of the order versus the Kokesh types. Granting the injunction would allow Antis to argue abuse of discretion.

In many cases, courts will deny a preliminary injunction, order expedited briefing, and then absolutely destroy the other side in the final order (including a fairly famous SCOTUS case on school desegregation). Prop 8 trial judge (Chief Judge Vaughn Walker) denied plaintiffs' prelim injunction and MSJ, then had a trial and made a finding of fact on the merits. That was much harder to overturn in the end, even though the initial rulings ticked off the LGBT community who felt betrayed by one of their own before the trial.

This is exactly what I am expecting, however justice delayed = justice denied! :mad:

Tripper
08-03-2013, 10:26 PM
well, hopefully they slap them real hard for their ,,,umm (not sure what word to use here)

Gunlawyer
08-04-2013, 10:11 PM
For those interested, you might want to review the actual docket at the 7th Circuit:

CA7 Docket for 13-2661, Sheppard (http://www.archive.org/download/gov.uscourts.ca7.13-2661/gov.uscourts.ca7.13-2661.docket.html)

(Yes, the FireFox plugin RECAP now works at the circuit level)

Thanks.

Mulay El Raisuli
08-05-2013, 1:49 PM
There is, look up USC 1983.

Apparently the burden of proof is pretty rough, and for 2A concerns I think your lawyer would need to do a truckload of work because 2A jurisprudence protecting/enumerating an individual right is so (relatively) new and shallow.

Also in order to actually have standing, Ms. Sheppard would probably need to carry, and get busted by LEO, and if she looses the case she's probably convicted of felony possession, and loses her rights for good.

Very risky!


On the other hand, she's how old?


The Raisuli

fizux
08-05-2013, 7:09 PM
On the other hand, she's how old?
The Raisuli
When I get to her age, I'll be able to CCW in a nudist colony using only flab. Yet another useful tidbit in the LOC vs. CCW debate.

Paladin
08-09-2013, 7:39 AM
For those interested, you might want to review the actual docket at the 7th Circuit:

CA7 Docket for 13-2661, Sheppard (http://www.archive.org/download/gov.uscourts.ca7.13-2661/gov.uscourts.ca7.13-2661.docket.html)

(Yes, the FireFox plugin RECAP now works at the circuit level)On 8/7/13:

Argument set for Thursday, October 3, 2013, at 9:30 a.m. in the Main Courtroom, Room 2721. Each side limited to 20 minutes.

Al Norris
08-09-2013, 10:36 AM
Thanks Paladin.

hardlyworking
08-09-2013, 11:12 AM
Stay tuned...

"IT IS ORDERED that the emergency motion for an injunction pending appeal is DENIED.

IT IS FURTHER ORDERED that the motion to expedite is GRANTED to the extent that the motion for an injunction pending appeal will be treated as appellants' opening brief and briefing will proceed as follows:

1.The appellees' response brief is due by August 9, 2013.


TICK-TOCK! Lets go Chicago, what'chu got?

CCWFacts
08-09-2013, 12:12 PM
On 8/7/13:

Argument set for Thursday, October 3, 2013, at 9:30 a.m. in the Main Courtroom, Room 2721. Each side limited to 20 minutes.

COOL! Go Illinois!

Al Norris
08-09-2013, 4:54 PM
The response by IL: http://www.archive.org/download/gov.uscourts.ca7.13-2661/gov.uscourts.ca7.13-2661.20.0.pdf

fizux
08-09-2013, 7:46 PM
The response by IL: http://www.archive.org/download/gov.uscourts.ca7.13-2661/gov.uscourts.ca7.13-2661.20.0.pdf
Thanks for the link.

This language is classic:
"The Act’s sponsor explained that the Act requires each applicant to complete 16 hours of training, including range training, because most Illinois residents lack prior experience with carrying ready-to-use firearms in public." (emphasis added; paper: p.25; PDF: p.32)
Translation: "We've been raping them so long, it's going to take time for them to adjust to not being raped anymore, so we should keep raping them for a while longer during the adjustment period, because it is simply more humane that way. How could you be against the humane treatment of rape victims?"

hardlyworking
08-09-2013, 8:38 PM
The response by IL: http://www.archive.org/download/gov.uscourts.ca7.13-2661/gov.uscourts.ca7.13-2661.20.0.pdf
Thank you Mr. Norris!

Paladin
08-15-2013, 9:30 AM
"IT IS ORDERED that the emergency motion for an injunction pending appeal is DENIED.

IT IS FURTHER ORDERED that the motion to expedite is GRANTED to the extent that the motion for an injunction pending appeal will be treated as appellants' opening brief and briefing will proceed as follows:

1.The appellees' response brief is due by August 9, 2013.

2.The appellants' reply, if any, is due by August 14, 2013.

The court will announce the date for oral argument in a separate order."Time marches on....

fizux
08-15-2013, 9:33 AM
Time marches on....
Reply brief is on archive.org:
http://ia800901.us.archive.org/26/items/gov.uscourts.ca7.13-2661/gov.uscourts.ca7.13-2661.26.0.pdf

naeco81
08-15-2013, 9:52 AM
Reply brief is on archive.org:
http://ia800901.us.archive.org/26/items/gov.uscourts.ca7.13-2661/gov.uscourts.ca7.13-2661.26.0.pdf

Good read

mshill
08-15-2013, 2:56 PM
It is a good read and pretty compelling, but what is asked for in the conclusion is

For the foregoing reasons, the decision below should be reversed and this case should be remanded with instructions that the district court forthwith enter a declaration of unconstitutionality and an injunction prohibiting Defendants from enforcing Illinois’s ban on carrying firearms in public

So what would this get the plaintiffs? Unlicensed carry until FCCA gets implemented? Or is it just one step closer to defining the scope of B in RKBA? Am I missing the big picture?

hardlyworking
08-15-2013, 3:03 PM
Reply brief is on archive.org:
http://ia800901.us.archive.org/26/items/gov.uscourts.ca7.13-2661/gov.uscourts.ca7.13-2661.26.0.pdf

Such a great reply. I love them throwing the State's own casework against them.

How do you read that last page? Are Sheppard's attorney's two separate firms, 4 lawyers, and they contribute case review and other talking points and one lawyer writes it up?

hardlyworking
08-15-2013, 3:13 PM
It is a good read and pretty compelling, but what is asked for in the conclusion is



So what would this get the plaintiffs? Unlicensed carry until FCCA gets implemented? Or is it just one step closer to defining the scope of B in RKBA? Am I missing the big picture?

In the initial brief Appelants asked for FOID carry, not totally unrestricted carry, since IL still requires FOID to posses unless I'm mistaken

mrdd
08-16-2013, 3:27 AM
I was doing some research on the FOID card issuance, and noticed that Illinois considers 18-20 year olds as minors for this purpose. Furthermore, it requires an affidavit from a parent or guardian, giving assent to the issuance of the FOID, and the understanding that the parent or guardian is liable for any damages resulting from the "minor applicant's use of firearms or firearm ammunition". That seems very screwed up. How can they hold a parent liable for damages due to actions of an adult?

What a screwed up state!

Here is the application:

http://www.isp.state.il.us/docs/6-181.pdf

Mulay El Raisuli
08-16-2013, 5:54 AM
Reply brief is on archive.org:
http://ia800901.us.archive.org/26/items/gov.uscourts.ca7.13-2661/gov.uscourts.ca7.13-2661.26.0.pdf


Reasonable. Logical. Rational. Well written.

Lets hope that's enough.


The Raisuli

Al Norris
10-14-2013, 5:24 AM
In the ongoing battle between IL and the NRA (Sheppard v. Madigan), you'll recall that the district Judge ruled that the case was now moot. The NRA disagreed and appealed to the 7th Circuit. At orals, Judge Posner was particularly harsh with Plaintiffs-Appellants (David Thompson arguing for Sheppard). Read the CA7 Docket for 13-2661, Sheppard (http://www.archive.org/download/gov.uscourts.ca7.13-2661/gov.uscourts.ca7.13-2661.docket.html). Orals are here (http://media.ca7.uscourts.gov/sound/external/sp.13-2661.13-2661_10_03_2013.mp3).

Meanwhile, over at the SAF case (Moore v. Madigan), Judge Myerscough has had a sea-change and on Oct. 9th, has denied the MTD by the State and ruled that the case is not moot, as none of the requested relief has been applied. That opinion is here (http://www.archive.org/download/gov.uscourts.ilcd.52015/gov.uscourts.ilcd.52015.57.0.pdf). The District Court docket is here (http://www.archive.org/download/gov.uscourts.ilcd.52015/gov.uscourts.ilcd.52015.docket.html).

If I was to go with the demeanor of Judge Posner at orals in Sheppard,, I would have to say that he would rule the case as being mooted by the change in law (affirming the lower courts opinion). This would directly conflict with the opinion by Judge Myerscough who has just contradicted the line of questioning posed at the Circuit Court orals. These things do not happen in a vacuum, I would have to say that based upon a reading of her opinion, she does not agree with the line of questioning by Posner at orals. Her opinion is very well written and addresses the major points made by Judge Posner.

I would, at the least expect a 28J letter from the NRA, advising the court of Judge Myerscoughs decision in Moore.

The Moore case is not before the circuit panel. I'm not sure how that panel will address the conflict that is now apparent. I don't think this panel can overturn a Judges decision that is not before them. Of course, not being an appellate attorney (or any kind of attorney, for that matter), I could be wrong.

Paladin
10-14-2013, 7:08 AM
The Moore case is not before the circuit panel. I'm not sure how that panel will address the conflict that is now apparent. I don't think this panel can overturn a Judges decision that is not before them. Of course, not being an appellate attorney (or any kind of attorney, for that matter), I could be wrong.
But, I assume, the state would appeal a loss of their MTD in Moore to the CA. Not sure if it would go before the same panel, but I assume it would.

Thanks for the update, both this in particular and your work in general