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View Full Version : NJ Drake v Filko et al: Gura Loses, but gets us one step closer to Supreme Court


flyonwall
07-31-2013, 11:23 AM
http://www2.ca3.uscourts.gov/opinarch/121150p.pdf

CCWFacts
07-31-2013, 11:48 AM
It's normal when posting about this kind of thing to put something in the subject that indicates, "Gura case for CCW applicants in NJ denied by such-and-such court". In the body of the post, instead of merely having a link to a PDF, including a summary which has the name of the case, the court that denied it, and maybe a sentence or two about why they denied it.

There are many cases going on on many different subjects, including CCW, ammo restrictions, AW restrictions, waiting periods, non-resident rights, etc, and they are happening in dozens of different jurisdictions, so it's helpful to include some basic information when you post.

flyonwall
07-31-2013, 11:56 AM
This is a case challenged the requirement to show "need" to be able to exercise the right to bear arms outside the home. The court found that "need" is a reasonable regulation (stupid). This loss discusses Moore and creates a decent Circuit split. While it remains likely that Woollard Cert will be denied, this is a possible cert grant. though most likely the SC will continue to deny cert until the 9th clears out its' CCW cases and then take up a global discussion of "need" in the context of the RTKBA.
Once again raising the concern of some that it will be Gura who argues the case, and pointing out how nordyke set us back so far on a National level.

curtisfong
07-31-2013, 12:00 PM
I don't see any evidence that somebody other than Gura would have fared better against this ridiculously biased court. Just reading the dissent is enough to show your assertion is misleading and insulting.

OleCuss
07-31-2013, 12:11 PM
Not sure you properly understand the concern about Gura.

It's not that I/we think Gura is incompetent or even the wrong person to argue the cases. But it may be that SCOTUS is not willing/interested in hearing another of his cases.

Since we really don't know why SCOTUS has been denying cert we're stuck with wondering why.

I actually do consider it possible that some SCOTUS Justice(s) was/were sufficiently irritated by Gura's P or I argument that they just don't want to hear another case from him and are waiting for another appropriate case argued by someone else.

But who knows? They may be eagerly anticipating a Gura case. We just don't know.

CCWFacts
07-31-2013, 12:15 PM
This is a case challenged the requirement to show "need" to be able to exercise the right to bear arms outside the home. The court found that "need" is a reasonable regulation (stupid). This loss discusses Moore and creates a decent Circuit split. While it remains likely that Woollard Cert will be denied, this is a possible cert grant. though most likely the SC will continue to deny cert until the 9th clears out its' CCW cases and then take up a global discussion of "need" in the context of the RTKBA.
Once again raising the concern of some that it will be Gura who argues the case, and pointing out how nordyke set us back so far on a National level.

Thank you! If you would be so kind, could you also edit your post subject with a bit of the info, indicating at least it's a Gura challenge to NJ's may-issue law?

This is a very relevant case for us here in CA because we're in a similar may-issue situation.

I generally agree, I think there's a strong chance SCOTUS will never grant cert and the right to bear arms will be rendered a nullity. (Unlike the rights to affirmative action, gay marriage and abortion for some reason.)

El Toro
07-31-2013, 12:16 PM
Well beyond "justifiable need" they pile on the usual subjective test of "good character"

shall issue the permit to the applicant if, but only if, it is satisfied that the applicant is a person of good character who is not subject to any of the disabilities set forth in section 2C:58-3c.

Aren't all of us of "good character" if we have no priors? Since when did my heavy drinking and womanizing have any bearing on my ability to carry a firearm? Isn't that the point of prohibiting felons and the mentally ill? If I have no felonies and no 5150s, I should have no further need to prove myself worthy of exercising a right to self-defense.

Rossi357
07-31-2013, 12:34 PM
Reads like another "rational basis" decision.

CCWFacts
07-31-2013, 12:51 PM
Well beyond "justifiable need" they pile on the usual subjective test of "good character"

Aren't all of us of "good character" if we have no priors? Since when did my heavy drinking and womanizing have any bearing on my ability to carry a firearm? Isn't that the point of prohibiting felons and the mentally ill? If I have no felonies and no 5150s, I should have no further need to prove myself worthy of exercising a right to self-defense.

Good moral character comes up all the time and I keep on responding - it is already defined in a way that is not nearly as arbitrary as good cause.

GMC is a requirement for most civil service jobs and therefore has been fought over repeatedly in courts. It it not something an employer can use to arbitrarily deny a job: "You got a parking ticket five years ago. You can't be a librarian!" That doesn't work.

Can you find any cases where someone was denied a CCW for non-substantial good character problems? The only case I can think of is one of the Gorski cases where someone was denied and the sheriff said it's because he was kicked out of the FBI for mental issues. That's not a non-substantial problem.

fizux
07-31-2013, 1:05 PM
Not sure you properly understand the concern about Gura.

It's not that I/we think Gura is incompetent or even the wrong person to argue the cases. But it may be that SCOTUS is not willing/interested in hearing another of his cases.

Since we really don't know why SCOTUS has been denying cert we're stuck with wondering why.

I actually do consider it possible that some SCOTUS Justice(s) was/were sufficiently irritated by Gura's P or I argument that they just don't want to hear another case from him and are waiting for another appropriate case argued by someone else.

But who knows? They may be eagerly anticipating a Gura case. We just don't know.
... but a constant theme throughout your posting history seems to be critiquing Mr. Gura.

I respect an academic debate whether Mr. Gura has somehow poisoned his well at SCOTUS; however, given his W-L record before SCOTUS, I don't think there is much evidence of that; in fact, his cert/deny stat is persuasively against your hypothesis.

Just because cert is denied on a couple of cases does not indicate that SCOTUS has something against Mr. Gura, or the 2A in general. From the October 2011 term, SCOTUS granted certiorari in 63 cases and "disposed of" 7655 -- that is less than 1% of all petitions. If you want to subtract out IFP petitions, that stat rises to just over 3%; at least half of the parties walked away unhappy after the decision.
(I am drawing numbers from here: http://www.supremecourt.gov/orders/journal/jnl11.pdf)

Mr. Gura scored 2 major wins at SCOTUS. Statistically speaking, his cert grant/deny stat is phenomenal; when he gets denied cert a statistically significant amount more than 67-133 cases before his next cert grant, then perhaps you could point to that and call it evidence that he might have pissed off SCOTUS. Until then, he is batting well above average.

stix213
07-31-2013, 1:06 PM
So they just say it is presumptively lawful and that's that... hmmm...

Librarian
07-31-2013, 1:08 PM
Indeed, a bit more info in the post is 'traditional'. I added case info to the title.

wildhawker
07-31-2013, 1:09 PM
The Court took and decided -- favorably -- two Gura Second Amendment cases in a row.

What other 2A cases has SCOTUS taken since Heller?

They'll have a chance to grant cert (or not) in the Clement/NRA case on the Federal under-21 handgun purchase ban. That, as discussed in the cert petition, is closer to a de facto categorical "outright" ban on age rather than the "reasonable-ness" of regulations imposed on all ages for e.g. carry.

I suspect that what we're actually seeing is that SCOTUS wants a carry case but that they want the circuits to come in first. We're now waiting on CA9 and Richards/Peruta.

-Brandon

wildhawker
07-31-2013, 1:11 PM
Good moral character comes up all the time and I keep on responding - it is already defined in a way that is not nearly as arbitrary as good cause.

Please cite that definition.

GMC is a requirement for most civil service jobs and therefore has been fought over repeatedly in courts. It it not something an employer can use to arbitrarily deny a job: "You got a parking ticket five years ago. You can't be a librarian!" That doesn't work.

And yet it has and does with respect to carry licensing.

Can you find any cases where someone was denied a CCW for non-substantial good character problems?

I've seen many, actually.

-Brandon

flyonwall
07-31-2013, 1:18 PM
Some suggest that the NRA amicus had more to do with wins in heller and McDonald than gura did...

OleCuss
07-31-2013, 1:25 PM
... but a constant theme throughout your posting history seems to be critiquing Mr. Gura.

I respect an academic debate whether Mr. Gura has somehow poisoned his well at SCOTUS; however, given his W-L record before SCOTUS, I don't think there is much evidence of that; in fact, his cert/deny stat is persuasively against your hypothesis.

Just because cert is denied on a couple of cases does not indicate that SCOTUS has something against Mr. Gura, or the 2A in general. From the October 2011 term, SCOTUS granted certiorari in 63 cases and "disposed of" 7655 -- that is less than 1% of all petitions. If you want to subtract out IFP petitions, that stat rises to just over 3%; at least half of the parties walked away unhappy after the decision.
(I am drawing numbers from here: http://www.supremecourt.gov/orders/journal/jnl11.pdf)

Mr. Gura scored 2 major wins at SCOTUS. Statistically speaking, his cert grant/deny stat is phenomenal; when he gets denied cert a statistically significant amount more than 67-133 cases before his next cert grant, then perhaps you could point to that and call it evidence that he might have pissed off SCOTUS. Until then, he is batting well above average.

I kind of think you are over-reading what I wrote. Did you even notice my last sentence?

I actually do think that it is possible that the SCOTUS doesn't want to hear another Gura case. Do note that "possible" does not mean that there is a high probability - it means that the probability is not zero.

Since there have been some cases which have been pretty good which made it up there for cert and were denied it leaves us really wondering just why they are denying cert. The fact is that none of us knows the answer.

And I am certainly not a Gura hater. I really enjoy reading what he writes (well, as much as a non-lawyer can) and think he is really bright. But so far as I can tell, he actually did not do all that well in orals before the SCOTUS. Of course, since the orals seem to seldom really have much to do with the ultimate holding in a case (note that Clarence Thomas doesn't even participate in orals?) I don't consider his non-superb SCOTUS orals to really be all that big a deal.

But who knows what SCOTUS is thinking?

OleCuss
07-31-2013, 1:28 PM
.
.
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I suspect that what we're actually seeing is that SCOTUS wants a carry case but that they want the circuits to come in first. We're now waiting on CA9 and Richards/Peruta.

-Brandon

That, in particular seems like quite reasonable speculation.

Not at all sure I like the idea of their waiting that long. . .

fizux
07-31-2013, 1:54 PM
That, in particular seems like quite reasonable speculation.

Not at all sure I like the idea of their waiting that long. . .
I agree as well. Unfortunately, it took quite a while to get past Plessy, even after Brown was decided.

Part of my earlier comment was for the benefit of the more serious Gura-bashers, but I directed it at you to avoid the inevitable immature thread degeneration that results from a direct attack on Kool-Aid logic.

Maestro Pistolero
07-31-2013, 2:11 PM
I find the notion spurious that the Supreme Court would deny cert on a fundamental civil rights because they didn't like the attorney. That, to me, is extremely thin speculation. If that were true the court is a complete farce.

Kharn
07-31-2013, 2:22 PM
Good moral character comes up all the time and I keep on responding - it is already defined in a way that is not nearly as arbitrary as good cause.

GMC is a requirement for most civil service jobs and therefore has been fought over repeatedly in courts. It it not something an employer can use to arbitrarily deny a job: "You got a parking ticket five years ago. You can't be a librarian!" That doesn't work.

Can you find any cases where someone was denied a CCW for non-substantial good character problems? The only case I can think of is one of the Gorski cases where someone was denied and the sheriff said it's because he was kicked out of the FBI for mental issues. That's not a non-substantial problem.
Not in federal action, but Philadelphia is notorious for "parking ticket => no CCW for you", but they fold as soon as you have a lawyer show up at the review hearing. I've heard of several lawyers in Philly who make easy money working solely on CCW denials.

flyonwall
07-31-2013, 2:24 PM
It is all just speculation and the eternal fight over who the right people are and how to get our rights back. I am just glad the fight is being fought and I hope the 9th restores our rights. If not, we are then guaranteed cert. cert isn't a case specific issue and circuit court judgments are final. The SC is just waiting for them all to speak and it will then resolve the split- hopefully in our favor. I just wish nordyke hadn't set us back so many years.

OleCuss
07-31-2013, 2:26 PM
I find the notion spurious that the Supreme Court would deny cert on a fundamental civil rights because they didn't like the attorney. That, to me, is extremely thin speculation. If that we're true the court is a complete farce.

I like the way you are thinking.

But considering that Ginsburg has suggested others avoid using the US Constitution in developing their own? Seems kind of farcical that we could have a Justice on the SCOTUS who so thoroughly disrespects the US Constitution.

It's also a little bizarre that the 2A was for a very long time considered not to confer the RKBA on the individual.

It was a farce that the 14th Amendment was gutted so thoroughly.

Kelo was, IMHO, a farce.

And the ObamaCare case? The majority opinion had only Roberts? Four dissenting and four concurring opinions? Those who won the case said Roberts was wrong. Those who concurred said Roberts was wrong. Those who lost the case said Roberts was wrong. Those who dissented said he was wrong. So everyone but Roberts said the majority opinion was wrong but it was still a 5-4 opinion? Seems pretty farcical to me. . .

And again, I'm not saying that the SCOTUS is trying to avoid Gura, but the probability is not zero. And as Brandon pointed out, there is a non-Gura case they have the option of taking.

And, of course, even if they take the non-Gura case it still won't really be a strong indicator that the SCOTUS has been avoiding Gura.

SilverTauron
07-31-2013, 2:31 PM
I find the notion spurious that the Supreme Court would deny cert on a fundamental civil rights because they didn't like the attorney. That, to me, is extremely thin speculation. If that we're true the court is a complete farce.

Agreed.

What's more likely is that the court dislikes the 2nd Amendment .As far as the judiciary is concerned,we proles have the right to keep and bear arms within the four walls of our homes.The end.Anything beyond keeping a single shot musket in the castle is subject to unlimited government regulation.

The long answer why therye taking that stance is easy to state.No matter which way the SCOTUS would rule,their verdict would be ignored by the other side.So why bother even taking a case?Just stand aside and let each government set things as they want.

press1280
07-31-2013, 2:39 PM
The Court took and decided -- favorably -- two Gura Second Amendment cases in a row.

What other 2A cases has SCOTUS taken since Heller?

They'll have a chance to grant cert (or not) in the Clement/NRA case on the Federal under-21 handgun purchase ban. That, as discussed in the cert petition, is closer to a de facto categorical "outright" ban on age rather than the "reasonable-ness" of regulations imposed on all ages for e.g. carry.

I suspect that what we're actually seeing is that SCOTUS wants a carry case but that they want the circuits to come in first. We're now waiting on CA9 and Richards/Peruta.

-Brandon

I agree on this point.

So far we've seen opinions all over the place, but a true split still eluding us. I hope CA9 comes through although I'm not sure it wouldn't get en banced just to try and keep in line with one of these other opinions.

Paladin
07-31-2013, 2:46 PM
I suspect that what we're actually seeing is that SCOTUS wants a carry case but that they want the circuits to come in first. We're now waiting on CA9 and Richards/Peruta.

I'm not sure if there are other fed AC Carry Cases, but let us assume Richards-Peruta in CA-9 is the last of the fed AC level Carry Cases. Let's further assume your belief (emphasized above), is correct.

Hypothetical: (1) Woollard is denied cert since SCOTUS is waiting for the last Carry Case (in CA-9) to come in. (2) This case (Drake?), also gets denied for that same unstated reason. (3) We WIN Richards-Peruta in CA-9, therefore our side does not get to ask for cert. CA loses, but does not ask for cert.

Q: What carry cases/s are there behind Richard-Peruta in fed AC/s where we've already lost to push ahead with the hope of losing again at that AC so that we can ask SCOTUS to grant cert after CA-9 and the others have spoken?

M. D. Van Norman
07-31-2013, 2:52 PM
Anything after a Woollard denial would be a Hail Mary play.

vector16
07-31-2013, 2:52 PM
Have you noticed that most of the laws in CA are unconstitutional. That is because there are a bunch of commi's running the state. Every law so far this year involving GC has been against federal law.

OleCuss
07-31-2013, 2:56 PM
Agreed.

What's more likely is that the court dislikes the 2nd Amendment .As far as the judiciary is concerned,we proles have the right to keep and bear arms within the four walls of our homes.The end.Anything beyond keeping a single shot musket in the castle is subject to unlimited government regulation.

The long answer why therye taking that stance is easy to state.No matter which way the SCOTUS would rule,their verdict would be ignored by the other side.So why bother even taking a case?Just stand aside and let each government set things as they want.

I'd find this idea all to probable, except I think I remember hearing that Scalia suggested that the SCOTUS was likely to take another RKBA case in the foreseeable future?

Scalia is a very sharp dude whom I've come to suspect is a pretty good prognosticator. Also, a fair number of 2A cases have been getting some significant scrutiny prior to having their cert denied. (And since this attention includes Gura cases it decreases the likelihood that a dislike for Gura is the reason for denial of cert. If it was simple dislike it seems more likely that they wouldn't even bother to request additional briefings/filings before denying cert.)

So I'm betting that the SCOTUS will be taking a case within my diminishing lifespan. Just what they are waiting for, I do not know.

Edit: One other speculative thought? Is it possible that SCOTUS really wants the RKBA case to be a 9th Circuit case? I think it is the most reversed circuit? It is also a circuit with some of the most egregious violations of the RKBA.

But I'll happily admit that this is speculation - although I keep wondering if they might really want to get Peruta. They might find it a chance to take verbal shots at the legislature as well as at the judiciary?

SilverTauron
07-31-2013, 3:18 PM
If there is an RKBA case in the future,it'll be to clarify the line between "government regulation" and "infringement of a civil right".Which would seem to be a benefit for us,except several cases have come and gone which would easily serve to establish carry ,open and concealed,as a civil right.That hasn't happened.

Which leads me to conclude that if the high Court takes a case,it will be to rule in favor of unrestricted government regulation of all firearm related activities outside of the home.Viewed from that lens,none of the current cases would satisfy establishing that precedent well.

curtisfong
07-31-2013, 3:50 PM
IMO some are missing the bigger picture.

Rossi has it right.

Reads like another "rational basis" decision.

What is the point to any of this if intermediate scrutiny is indistinguishable from rational basis?

No matter WHO argues what in front of SCOTUS (or any other circuit), if the courts are dead set that intermediate scrutiny is this impotent, it doesn't matter which argument is brought before the courts, and it doesn't matter which lawyer argues it.

press1280
07-31-2013, 3:55 PM
I'm not sure if there are other fed AC Carry Cases, but let us assume Richards-Peruta in CA-9 is the last of the fed AC level Carry Cases. Let's further assume your belief (emphasized above), is correct.

Hypothetical: (1) Woollard is denied cert since SCOTUS is waiting for the last Carry Case (in CA-9) to come in. (2) This case (Drake?), also gets denied for that same unstated reason. (3) We WIN Richards-Peruta in CA-9, therefore our side does not get to ask for cert. CA loses, but does not ask for cert.

Q: What carry cases/s are there behind Richard-Peruta in fed AC/s where we've already lost to push ahead with the hope of losing again at that AC so that we can ask SCOTUS to grant cert after CA-9 and the others have spoken?

There's the Nichols case but if Richards wins then I don't see Nichols able to win. There are a few state cases that I know of-the NJ Supreme Court will be hearing a similiar challenge(although it looks like they're really slow so it could be a year or more on that), and the Norman v. State(FL) challenge to the OC ban. You'd have to believe if the above scenario materializes then the first good case to reach SCOTUS gets taken.

sholling
07-31-2013, 3:58 PM
I suspect that what we're actually seeing is that SCOTUS wants a carry case but that they want the circuits to come in first. We're now waiting on CA9 and Richards/Peruta.
If the 9th Circus decides to sit on the case(s) then SCOTUS could be waiting a very long time.

Hypothetical: (1) Woollard is denied cert since SCOTUS is waiting for the last Carry Case (in CA-9) to come in. (2) This case (Drake?), also gets denied for that same unstated reason. (3) We WIN Richards-Peruta in CA-9, therefore our side does not get to ask for cert. CA loses, but does not ask for cert.
That's an interesting conjecture. Somehow I suspect that any victory in the 9th will come with many strings - if we win, which is doubtful. I think we'd already have gotten a ruling if the 9th intended to rule in our favor and now they're just running out the 2013-2014 cert clock so they can stall the restoration of our rights yet another year.

Anything after a Woollard denial would be a Hail Mary play.
Pretty much. I don't think the free thinkers on the court trust Roberts enough to take another RKBA case in our lifetimes.

There's the Nichols case but if Richards wins then I don't see Nichols able to win. There are a few state cases that I know of-the NJ Supreme Court will be hearing a similiar challenge(although it looks like they're really slow so it could be a year or more on that), and the Norman v. State(FL) challenge to the OC ban. You'd have to believe if the above scenario materializes then the first good case to reach SCOTUS gets taken.
I suspect that Nichols has a better chance than Richards just because it doesn't ask for shall issue concealed carry. All of the CCW cases have been going down in flames.

fizux
07-31-2013, 4:16 PM
Q: What carry cases/s are there behind Richard-Peruta in fed AC/s where we've already lost to push ahead with the hope of losing again at that AC so that we can ask SCOTUS to grant cert after CA-9 and the others have spoken?Baker up on a PI, so that will likely yo-yo down and up at least once more (for the MSJ). Jackson v. SF is headed up to 9CA for non-CCW reasons, but could help to establish a standard of review and/or the validity of the government's interest in deterring the exercise of a Constitutional right.

The premise of your question assumes that appellants Richards and Peruta both win and (Yolo & San Diego) PRK loses. Do you honestly thing that Kamala Harris won't appeal that decision? Even if they don't, that means every state west of NY would be shall-issue, with some likelihood of National Reciprocity coming up again in early 2017 (bolstered by multiple wins at 7CA and 9CA, along three years of statistics showing PRK is better off as shall-issue).

wildhawker
07-31-2013, 4:31 PM
Anything after a Woollard denial would be a Hail Mary play.

I disagree -- Woolard is a solid case but if they are waiting for everything to come in, Richards would then be the last before we start to wonder.

-Brandon

Paladin
07-31-2013, 4:47 PM
The premise of your question assumes that appellants Richards and Peruta both win and (Yolo & San Diego) PRK loses. Do you honestly thing that Kamala Harris won't appeal that decision? Even if they don't, that means every state west of NY would be shall-issue, with some likelihood of National Reciprocity coming up again in early 2017 (bolstered by multiple wins at 7CA and 9CA, along three years of statistics showing PRK is better off as shall-issue).
IL AG Madigan did NOT appeal IL's loss, so I wouldn't rule anything out.

The longer the antis avoid/delay good RKBA cases from getting to SCOTUS, the better the odds that one of the "Heller 5" will leave the Court and Obama or Hillary will tip the balance. Then, suddenly, fed ACs will zip cases thru and certs will be granted left and right.... :facepalm:

fizux
07-31-2013, 4:48 PM
If the 9th Circus decides to sit on the case(s) then SCOTUS could be waiting a very long time.Yes, but I think that would only happen if en banc was granted. Given the makeup of the current panel, I don't think this is going to stagnate in place. IMHO, I think they were waiting for Mehl, which had priority, before writing what I think will be a 2-1 opinion.
I suspect that Nichols has a better chance than Richards just because it doesn't ask for shall issue concealed carry. All of the CCW cases have been going down in flames.I don't think that Nichols has a better chance than Richards because California has banned UOC. Even the trial court in Peruta recognized RKBA outside the home, but denied CCW because of the (then) availability of UOC.

Even if UOC was reinstated, at this point it will be hard to reconcile that with a right to bear outside the home. In urban areas, unlicensed UOC is functionally useless since almost everywhere is within a GFSZ. If you don't believe me, check out this map (http://www.sf-planning.org/index.aspx?page=2337) from S.F. Planning Dept. that shows everyplace within 1000' of a school.

Since GFSZA prohibits unlicensed UOC, but exempts CCW holders, finding a right to bear in public places effectively requires shall-issue. Even if GFSZA were repealed, the wing-nuts in Sacto would rather "see no evil" and force people to get a CCW permit rather than have a bunch of unlicensed open carriers hanging out in front of Sen. Yee's office at 455GG.

Apocalypsenerd
07-31-2013, 5:02 PM
My observation of people suggests that the denizens of this forum are over-thinking the SCOTUS decision to deny cert. Although it is harder to read a group of people than an individual, actions speak pretty loud. The reasoning behind the actions of a group is usually simpler rather than detailed.

So far, SCOTUS has denied cert on a few carry cases. Usually, when a person doesn't do something, it's because they are not inclined to do it.

It is possible that some of the previously mentioned reasons are the cause for the denials, but I find some of them to be pretty preposterous.

I can think of only 3 legitimate reasons that 9 people would reach a similar conclusion:

1 - They have taken the right as far as they are willing, and there will be no further movement.
2 - They have had an extremely busy last couple of sessions handing down some VERY large legal rulings. It is possible they don't want to burden the lower courts with too many changes. This is probably an unlikely reason.
3 - They are waiting for a specific question that they want to answer. I have seen the idea, that they favor open carry, being bandied about as a type of case they are waiting for. It seems that they could take any carry case and rule definitively, however. That they have not suggests this is an unlikely reason as well.

To suggest that they would allow 330 million people be deprived of their rights, or allow even a single individual go to jail over a law they consider unconstitutional, because of a dislike for Gura is pretty outlandish. Smaller people have held high office, but if they are really allowing us to be deprived of our rights over something so petty, well I would suggest that the SCOTUS has been corrupted.

Of course, stranger things have happened.

fizux
07-31-2013, 5:03 PM
IL AG Madigan did NOT appeal IL's loss, so I wouldn't rule anything out.That is because Daddy was a main proponent of the shall-issue bill, successfully extricating her governorship campaign from the rat's nest of possibly losing at SCOTUS, while simultaneously enhancing her appeal to the swing vote (AKA everyone outside of Chi-town).

When asked about the content of the CCW discussion with his daughter, Daddy simultaneously created and claimed the "family discussion" privilege. (source: http://blogs.suntimes.com/politics/2013/05/house_passes_madigan-backed_concealed-carry_bill_to_senate.html)

Our AG isn't running to unseat Gov. Moonbeam in 2014, and he is termed out after that.

sholling
07-31-2013, 5:17 PM
Yes, but I think that would only happen if en banc was granted. Given the makeup of the current panel, I don't think this is going to stagnate in place. IMHO, I think they were waiting for Mehl, which had priority, before writing what I think will be a 2-1 opinion.
I hope that you are right, but even if we win the antis on the court can still use en banc to keep us from getting cert before October 2014 - assuming that we get cert at all.

I don't think that Nichols has a better chance than Richards because California has banned UOC. Even the trial court in Peruta recognized RKBA outside the home, but denied CCW because of the (then) availability of UOC.
Correct me if I'm wrong but I thought Nichols was seeking LOC? If so then it breaks the pattern of SCOTUS rejection of shall-issue CCW cases and gives them a shot at declaring unlicensed open carry as the right, that solves a whole host of problems including interstate carry, FOID requirements, and license to buy or keep in the home. As for GFSZs that's very low hanging fruit once the right to bear arms in public (sans license) is reaffirmed. The state and feds might be able to make a case for declaring a school a sensitive area but not large tracts of cities and for sure not any unmarked areas. Of course the federal GFSZ law is already on shaky legal ground because they lack jurisdiction.

Tyrone
07-31-2013, 5:36 PM
Given the language in Heller and McDonald as well as other fundamental rights cases, and despite the ruling in this case, the standard "should" be "strict scrutiny." I think the dissent gets it mostly right and the majority here simply do not like the Heller/McDonald cases and therefore interpret them as narrowly as possible. A "fair" or "objective" reading of either Heller or McDonald leads one to the conclusion that the RTKBA is fundamental (and therefore deserving of strict scrutiny) and that the RTKBA is not "limited" to the house although that was strictly speaking the issue in Heller. It really is sad that attorneys and judges who likely hold themselves out logical thinkers, champions of individual liberty and rights, and the rule of law / Constitution, give so cursory and intellectually dishonest recitation of the facts/law/history behind the 2nd Amdt.

Lulfas
07-31-2013, 5:44 PM
Please cite that definition.


-Brandon

One of the most common ones that gets used is the one from USCIS.

http://fsnews.findlaw.com/firmsite/attachments/LE6_c_checklist_WhatIsGoodMoralCharacter.pdf

HokeySon
07-31-2013, 6:04 PM
Some suggest that the NRA amicus had more to do with wins in heller and McDonald than gura did...

BWAHHH, Haaaaa, Haaaaa. That's a funny one!! Anyone outside the NRA make that suggestion?

fizux
07-31-2013, 6:41 PM
I hope that you are right, but even if we win the antis on the court can still use en banc to keep us from getting cert before October 2014 - assuming that we get cert at all.Yeah, me too. I am really hoping we don't end up getting Nordyked with another win, followed by a grant of en banc, depublication of the win, and finally a stay until one of the Heller 5 retires.
Correct me if I'm wrong but I thought Nichols was seeking LOC?AFAIK, you are correct. I brought up UOC because of the trial court's opinion in Peruta; however, I don't expect the leap from UOC to LOC to be huge given the "functional firearm" portion of Heller.
If so then it breaks the pattern of SCOTUS rejection of shall-issue CCW casesWhat pattern? I made some comments about the math above. When SCOTUS denies cert for another 100 non-criminal CCW petitions, I'll be more receptive to reading those tea leaves. Kachalsky was essentially a case of first impression. I suspect SCOTUS wanted to see a field of scholarship grow with several more circuits weighing in; the clerks up there knew that they would have plenty of possible chances with Moore, Peterson, Woollard, Drake, Richards, Peruta, and Baker all up at their respective CA's.
gives them a shot at declaring unlicensed open carry as the right, that solves a whole host of problems including interstate carry, FOID requirements, and license to buy or keep in the home.They could have done away with registration and FOID if they really wanted to in Heller, and again in McDonald. I don't think Nichols can get there from LOC in its current form.
the federal GFSZ law is already on shaky legal ground because they lack jurisdiction.Except that almost all firearms travel in interstate commerce, which is the excuse jurisdictional basis for regulation. Even weed grown exclusively for your own personal use in your basement triggers the commerce clause (see Gonzales v. Raich).

OleCuss
07-31-2013, 6:51 PM
BWAHHH, Haaaaa, Haaaaa. That's a funny one!! Anyone outside the NRA make that suggestion?

I don't think it is an entirely silly thing to say that the NRA's "Due Process" argument carried the day. I think it is wrong, but not entirely silly.

The fact is that the majority opinion did rely on the Due Process argument which the NRA made in orals. So if you think that orals are really the important part of arguments then you could argue that the NRA swayed the court to the majority opinion.

The problem, of course, is that Gura made the same Due Process argument in his briefings and the NRA had been given the time specifically to make that particular argument in the orals so Gura was effectively cut out of the Due Process oral arguments.

But what people forget is that the vote was 4 for the majority opinion, one concurrence, and 4 dissents.

That concurrence was Clarence Thomas. Clarence Thomas went more or less with Gura's P or I argument.

Net effect is that if Gura had not done the P or I argument we don't know that we'd have gotten a win in McDonald. But we pretty much know that if the NRA had not made the Due Process argument that we would still have gotten the 4 majority opinion votes because Gura briefed Due Process as well.

One can argue that Gura's P or I argument was a piece of genius and that Thomas' concurrence was some of the most worthwhile stuff out of SCOTUS that I've ever read. (I must admit that I don't read all that much out of SCOTUS, but this was just remarkable.)

So I don't laugh at people who argue that the NRA won the case - but I certainly disagree with them.

Davidwhitewolf
07-31-2013, 8:15 PM
One can argue that Gura's P or I argument was a piece of genius and that Thomas' concurrence was some of the most worthwhile stuff out of SCOTUS that I've ever read.

I'll agree with that.

I will freely admit, though, that Clement is just astonishingly good at orals. Hearing him in person at the most recent 9th Circus was pretty damned awesome. Gura was very good that day, too, but wow.

sholling
07-31-2013, 9:36 PM
They could have done away with registration and FOID if they really wanted to in Heller, and again in McDonald. I don't think Nichols can get there from LOC in its current form.
As Scalia pointed out in the majority opinion Gura conceded licensing in Heller, and I don't believe that there was any challenge to licensing in McDonald. The "Right People" seem to hold the opinion that it's okay to require permission slips to exercise any and all rights as long as the permission slips aren't too hard to get.

Except that almost all firearms travel in interstate commerce, which is the excuse jurisdictional basis for regulation. Even weed grown exclusively for your own personal use in your basement triggers the commerce clause (see Gonzales v. Raich).
Again correct me if I'm wrong but I thought that SCOTUS tossed out federal GFSZ once for lack of federal jurisdiction and that they just haven't been challenged again since congress resurrected it with new wording.

http://en.wikipedia.org/wiki/Talk:Gun-Free_School_Zones_Act_of_1990

Paladin
07-31-2013, 10:14 PM
That is because Daddy was a main proponent of the shall-issue bill, successfully extricating her governorship campaign from the rat's nest of possibly losing at SCOTUS, while simultaneously enhancing her appeal to the swing vote (AKA everyone outside of Chi-town).

When asked about the content of the CCW discussion with his daughter, Daddy simultaneously created and claimed the "family discussion" privilege. (source: http://blogs.suntimes.com/politics/2013/05/house_passes_madigan-backed_concealed-carry_bill_to_senate.html)

Our AG isn't running to unseat Gov. Moonbeam in 2014, and he is termed out after that.Yes, and there's all sorts of backroom politics that could come into play in CA if we won at the 9th.

For example: Say some powerful anti at the federal level, let's say Feinstein, doesn't want a win by us in Richards-Peruta to get to SCOTUS so that the "harm" (in her view) is restricted to the 9th until Hillary wins in '16. If DiFi and the Dem leadership tell Kammie not to ask for cert, unless KH has NO desire for higher political office, she'll stand down.

I think we would be amazed at all of the different political calculi that get made after a 9th win, many of which would be counter-intuitive.

fizux
07-31-2013, 10:23 PM
As Scalia pointed out in the majority opinion Gura conceded licensing in Heller, and I don't believe that there was any challenge to licensing in McDonald. The "Right People" seem to hold the opinion that it's okay to require permission slips to exercise any and all rights as long as the permission slips aren't too hard to get.That doesn't mean that SCOTUS could not have bounced the registration requirement altogether if they wanted to do so, or explain why you think that Nichols has a better shot than Richards or Peruta, but this is getting farther off topic.
Again correct me if I'm wrong but I thought that SCOTUS tossed out federal GFSZ once for lack of federal jurisdiction and that they just haven't been challenged again since congress resurrected it with new wording.
http://en.wikipedia.org/wiki/Talk:Gun-Free_School_Zones_Act_of_1990
You're right, it hasn't been challenged since Lopez in 1995... well, except for the fact that it was upheld in:
United States v Danks (Eighth Circuit 1999)
United States v Tait (Eleventh Circuit 2000)
United States v Haywood (Third Circuit 2002)
United States v Smith (Sixth Circuit 2005)
United States v Dorsey (Ninth Circuit 2005)
United States v Nieves-Castaño (First Circuit 2007)
United States v Weekes (Third Circuit 2007)
United States v Benally (Tenth Circuit 2007)
United States v Cruz-Rodriguez (First Circuit 2008)
(plagiarized from Wikipedia)

That "new wording" to which you refer requires the prosecutor to prove that the gun moved in or affected interstate or foreign commerce. Since that specifically addresses the "jurisdiction" issue that caused the 1990 GFSZA to be struck in Lopez, the new wording is not merely changing happy to glad.

Note that all of these cases except Cruz-Rodriguez came before Heller. A new challenge to the 1995 GFSZA would most likely rely much more on a 2A analysis, and far less upon interstate commerce (or "jurisdiction"). Despite the thread detours, we are back to RKBA in public requires California to issue permits or suffer a conflict between the 2A and GFSZA. Would it be an unfunded mandate? Maybe, but we won't care because that will be a fight between Sacramento and D.C.

fizux
07-31-2013, 10:28 PM
Yes, and there's all sorts of backroom politics that could come into play in CA if we won at the 9th.
For example: Say some powerful anti at the federal level, let's say Feinstein, doesn't want a win by us in Richards-Peruta to get to SCOTUS so that the "harm" (in her view) is restricted to the 9th until Hillary wins in '16. If DiFi and the Dem leadership tell Kammie not to ask for cert, unless KH has NO desire for higher political office, she'll stand down.
I think we would be amazed at all of the different political calculi that get made after a 9th win, many of which would be counter-intuitive.
I would love to have this problem.

Mitch
08-01-2013, 7:40 AM
But considering that Ginsburg has suggested others avoid using the US Constitution in developing their own? Seems kind of farcical that we could have a Justice on the SCOTUS who so thoroughly disrespects the US Constitution.


You should read a book or two about the Constitutional Convention. I don't think any of the Founders were very happy with it. It was a masterpiece of compromise.

The great strength of the US Constitution, however, is precisely what most of the folks around here don't like about it: that it is a living document rooted in English Common Law. I disagree with Ginsburg, however, about using it as a model for other constitutions. The very brevity and fluidity of our Constitution are what make it so superior to the wordy and brittle efforts of recent years (cf: the 485-page abortive EU Constitution (http://news.bbc.co.uk/2/shared/bsp/hi/pdfs/09_01_05_constitution.pdf)).

If Ginsburg or some other great legal mind could simply sit down and dictate a new constitution, I'm sure the result would be more elegant (if not more enduring) than what we have today. But that's not how constitutions are made, for better or worse.

wildhawker
08-01-2013, 7:53 AM
One of the most common ones that gets used is the one from USCIS.

http://fsnews.findlaw.com/firmsite/attachments/LE6_c_checklist_WhatIsGoodMoralCharacter.pdf

I've never seen that standard applied to PC 26150 (formerly PC 12050) (nor would it be Constitutional anyway) - can you cite an example where it was?

For California carry licenses, GC and GMC (as they sit today) are both entirely discretionary and vary from licensing authority to licensing authority.

-Brandon

naeco81
08-01-2013, 8:42 AM
Heller’s language “warns readers not to treat Heller as containing broader holdings than the Court set out to establish: that the Second Amendment created individual rights, one of which is keeping operable handguns at home for self-defense.” Id. (emphasis added).

Appellants contend also that “[t]ext, history, tradition and precedent all confirm that enjoy a right to [I]publicly carry arms for their defense.” Appellants’ Brief 12 (emphasis added). At this time, we are not inclined to address this contention by engaging in a round of full-blown historical analysis, given other courts’ extensive consideration of the history and tradition of the Second Amendment.

So the court seeks to opine the limitations of Heller citing context but refuses to entertain extensions of Heller citing context? Interesting.

For these reasons, we decline to definitively declare that the individual right to bear arms for the purpose of self-defense extends beyond the home, the “core” of the right as identified by Heller. We do, however, recognize that the Second Amendment’s individual right to bear arms may have some application beyond the home. Ultimately, as our Court did in Marzzarella, we refrain from answering this question definitively because it is not necessary to our conclusion.

Seems as though the circuit courts just want this off their table.

sholling
08-01-2013, 8:58 AM
That doesn't mean that SCOTUS could not have bounced the registration requirement altogether if they wanted to do so
I'm not a lawyer so please correct me if my impression that the US Supreme Court rarely answers unasked question is wrong. No need to look up citations, I'll take your word for it.

or explain why you think that Nichols has a better shot than Richards or Peruta, but this is getting farther off topic.
Simply because SCOTUS has rejected for cert every case that seeks an order to issue CCW licenses. Either they aren't yet ready to rule or they are seeking a non-CCW carry case, or they are they are seeking to knock out license requirements in a non-CCW carry case. Of course they may just have lost interest 2nd Amendment litigation or think that their current make up makes 2nd Amendment cases too risky. It's all speculation, but we keep throwing nearly identical pieces of spaghetti at the wall in the hope that at least one will stick - so far without success. At least Nichols is completely different from the cases that the court has already rejected and addresses the licensing of enumerated rights so it's worth a shot. Especially since the possibility of the court rejecting a license requirement for open carry solves so many problems in one single case. Rejection of a license requirement for open carry not only solves in-state carry, it also solves carry while traveling interstate and it sets the stage for wiping out the years long license to possess games being played out in Chicago, NYC, and DC and for those reasons alone it's worth a shot.

You're right, it hasn't been challenged since Lopez in 1995... well, except for the fact that it was upheld in:
Thank you, I learned something new today.

Maestro Pistolero
08-01-2013, 9:11 AM
I have sometimes wondered (with perhaps naive hope) if the court is really waiting to be ask about unlicensed carry (whether open or concealed) for unprohibited people. Maybe they don't like the idea of licensing a fundamental right at all.

Ok, I'm back on earth now.

Maestro Pistolero
08-01-2013, 9:20 AM
Some suggest that the NRA amicus had more to do with wins in heller and McDonald than gura did...

And in other news, roosters across the country this morning successfully caused the sun to rise.

El Toro
08-01-2013, 9:35 AM
I have sometimes wondered (with perhaps naive hope) if the court is really waiting to be ask about unlicensed carry (whether open or concealed) for unprohibited people. Maybe they don't like the idea of licensing a fundamental right at all....


THIS^

Sometimes it's really about seeing the simple things.

CitaDeL
08-01-2013, 9:44 AM
Can you find any cases where someone was denied a CCW for non-substantial good character problems?

I've seen many, actually.

eh, he he ahem...:rolleyes:

Uxi
08-01-2013, 10:19 AM
I find the notion spurious that the Supreme Court would deny cert on a fundamental civil rights because they didn't like the attorney. That, to me, is extremely thin speculation. If that were true the court is a complete farce.

There is definitely some arbitrary politicking going on, particularly with the "rule of four." Perhaps there are a one or two hold outs on the Heller 5 on taking the other cases. The other 4 certainly aren't interested in overturning anything else WRT to carry/bear.

I would like to see a new judicial act requiring review as a matter of right, though scaling issues would certainly need to be considered.

The district courts are about as annoying as SCOTUS is getting to be because you can almost always predict the results based on the politics of who nominated them.

SilverTauron
08-01-2013, 11:04 AM
I think we have to view the SCOTUS' actions from an anti-2A perspective to understand their motivations.

If we consider that their goal is to clarify FURTHER restrictions on the RKBA,then none of the current cases would ideally accomplish that. Thus it makes sense to deny such cases.

Kharn
08-01-2013, 2:12 PM
I think a lot of posters here are missing that the SC prefers to let issues percolate through several Circuits before they tackle it, giving them a much larger body of material to work with rather than shooting from the hip at every cause celebre that catches a 60 Minutes special.

Nopal
08-01-2013, 2:14 PM
Can you find any cases where someone was denied a CCW for non-substantial good character problems? The only case I can think of is one of the Gorski cases where someone was denied and the sheriff said it's because he was kicked out of the FBI for mental issues. That's not a non-substantial problem.

If you mean "case" in the general sense (as opposed to a court case) then you need to get out more. A lot more. There are plenty of CCWs denied on very trivial GMC grounds, even in self-described "gun friendly" counties.

The may-issue nature of CCW in California is two-pronged, and it blows me away that the GMC problem is so easily dismissed while GC is emphasized so much. I am not a lawyer, but it seems to me that the burden of proving a citizen is not of good moral character rests with the issuing agency, while the burden of proof for having good cause is placed on the citizen. Wouldn't that make a challenge to may-issue on GMC grounds, with the right case, more desirable than the challenges on GC grounds that are currently on the courts?

OleCuss
08-01-2013, 2:23 PM
I think a lot of posters here are missing that the SC prefers to let issues percolate through several Circuits before they tackle it, giving them a much larger body of material to work with rather than shooting from the hip at every cause celebre that catches a 60 Minutes special.

I appreciate that reminder.

flyonwall
08-01-2013, 3:26 PM
Nopal: Have any of these GMC denials ever approached an attorney to discuss? I have never heard of anyone challenging a denial based upon GMC, much less heard of anyone being denied for that reason. (other than Gorski, but we ar enot even sure that was the actual reason for the denial, but it was an issue).

Gunlawyer
08-01-2013, 10:24 PM
This is the first case IMHO whereby it was argued (although lost at the appellate level) substantially similar to how I suspect SCOTUS will ultimately rule on how to analyze the 2a. Therefore, I think this is an excellent case for SCOTUS to grant cert. The arguments although not analyzed by the appellate court and simply disregarded without any logic are throughout the opinion. The outcome is not how I think SCOTUS would decide this case and it wouldnt get past step 1.

IMHO SCOTUS should ultimately find that the 2a should be evaluated as follows(this is supported in Heller and McDonald).

Step 1. Look at history and tradition of the enacted law/regulation to see if there was a ban/restriction similar when the 2a was ratified (Simiar to how a right to trial by jury in the 6a is looked at and analyzed by the court. I.e. Is this a cause of action/suit at law or at equity. So they analyze did this restriction exist at ratification of 2a prominently). If so then move to step 2. If not then unconstitutional because there is not a history and tradition of the ban/restriction.

Because 2a is a fundamental right State bears burden of proof at all steps.

Step 2: Is this ban/restriction a prior restraint of the 2a such that it obliterates the core right of self defense. Import 1a cases and analysis. If so unconstitutional. If not then move to step 3.

Step 3: Apply means end scrutiny to right. If ban/restriction goes to core right of self defense then strict scrutiny. If not then intermediate scrutiny. Both have State with burden of proof.

Just my to cents but IMHO this would give us a strong 2a and be in line with Heller, McDonald, and the US Constitution.

Gray Peterson
08-02-2013, 12:08 AM
I have sometimes wondered (with perhaps naive hope) if the court is really waiting to be ask about unlicensed carry (whether open or concealed) for unprohibited people. Maybe they don't like the idea of licensing a fundamental right at all.

That's opposite of how SCOTUS tends to do exploratories on rights. If you want to see how it works, take a look at the federal cases after Mapp v. Ohio came down.

You don't attack licensing immediately. You attack may-issue or bans first, then go after high fees.

nicki
08-02-2013, 3:01 AM
In the Heller/MacDonald cases, the Supreme court specifically ruled out "interest balancing tests" for reviewing second amendment cases.

Yet, the interest balancing standard which was advocated by Justice Breyer is what most of the lower courts have been doing across the country.

What this means to me is that there are 3 Supreme court judges(Alioto, Scalia and Thomas) who are probably really pissed at the defiance of the lower courts and who may be waiting for an ideal case to come to set notice to the lower courts as to who the "TOP DOGS" are.

I think that the SCOTUS may have denied the Kachalsky case to bait Ill. AG Madigan on the "Moore case" to seek cert, they even granted her an extension.

That won't happen though since Illinois came to their senses.

Right now the Supreme court is probably waiting to see what the circuit splits are.


Nicki

safewaysecurity
08-02-2013, 3:21 AM
Keep the ball rolling. I'm really just waiting for an opinion from the ninth on any of the carry cases.

Nopal
08-02-2013, 7:05 AM
Nopal: Have any of these GMC denials ever approached an attorney to discuss? I have never heard of anyone challenging a denial based upon GMC, much less heard of anyone being denied for that reason. (other than Gorski, but we ar enot even sure that was the actual reason for the denial, but it was an issue).

I was denied over very trivial stuff, and I'm not the only one. I am currently considering a lawyer, but I can't go fully into details. Departments tend to mask the real reason behind their denials even though by law they have to be clear. For example, the San Bernadino Sheriff's department officially lists bad moral character denials as "failed background check" denials because after all, any denial reason other than good cause, no matter how trivial, is based on the applicant's background. That's all I should say about that now.

NoJoke
08-02-2013, 7:30 AM
Can you find any cases where someone was denied a CCW for non-substantial good character problems?

What are substantial good character problems? If you can own a gun shouldn't you be able to carry it?

flyonwall
08-02-2013, 11:33 AM
SBSO is being sued currently for a denial that provided no reason at all. You can get a lawyer and sue them tomorrow.

wildhawker
08-02-2013, 11:38 AM
SBSO is being sued currently for a denial that provided no reason at all. You can get a lawyer and sue them tomorrow.

Can you point to any wins in court?

-Brandon

fizux
08-02-2013, 11:43 AM
SBSO is being sued currently for a denial that provided no reason at all. You can get a lawyer and sue them tomorrow.
... or wait and see what happens with Richards v. Prieto. Talking about suing is cheap, but when it gets underway, it is expensive and exhausting.

Why advocate suing the SO here, while elsewhere continuously criticizing CGF & SAF for doing exactly that?

flyonwall
08-02-2013, 12:06 PM
It is not an all or nothing. I love CGF, SAF and NRA. I love most anyone willing to fight. The only cases I have criticized are Peterson, scocca, NSA and nordyke. Of those I am only really critical of nordyke, but 20/20 hindsight is easy. You must remember though that Kilmer was a family law lawyer out of his league when that started. And no I am not aware of any wins in CA yet (included the false claim of a win in Sacramento). Richards is a great case, the sunshine initiative rocks as do the countless legal challenges CGF is pursuing.
The problem here is the black and white kool aid knee jerk of "you are with us or against us" whereas I think we are all on the same ship seeking the same destination, I just think some took the short bus to the ship. There are a lot of people here with a great deal of knowledge and experience. Just because they don't see things the same way does make them wrong.
Why sue every SO if it is a good case? Because the Court will then have jurisdiction to immediately implement any 9th circuit or SC win.

wildhawker
08-02-2013, 12:33 PM
To clarify, at this point I don't oppose people exercising their judicial options on issues where solid cases are already up at Circuit or cert pending.

-Brandon

hardlyworking
08-02-2013, 3:01 PM
Why sue every SO if it is a good case? Because the Court will then have jurisdiction to immediately implement any 9th circuit or SC win.Honest question: wouldn't it just be easier, cheaper, and less damaging (bad case law from a sub-optimal plaintif or poorly argued case), if the offending SO could just be "sunshined" into submission in the case of a 9th/SC win?

flyonwall
08-02-2013, 3:38 PM
Honest question: wouldn't it just be easier, cheaper, and less damaging (bad case law from a sub-optimal plaintif or poorly argued case), if the offending SO could just be "sunshined" into submission in the case of a 9th/SC win?

Easier & cheaper yes, but incredibly slow and with no teeth.
Less damaging? You mean worse than all of the rulings to date in California which have all been serious losses? No, because as Brandon points out, five of these cases are already fully briefed and two have been submitted post oral argument so the only downside is the 400 filing fee and $60 to have the Defendant served. Then you have them in Court, you have their policies and you have the forum for an immediate enforcement order should the 9th agree with us, else they face even more in attorney fee exposure and/or injunction.

I also think the more pressure the better. LAPD has issued 4 permits in 20 years and has a total of 20. How many times have they been sued in those 20 years for a 2a violation? 1 time. Nobody is willing to step up and apply and then sue, so why should they care? Well, later this year the 9th may order them to care.

CA is different because, unlike Moore, nobody is challenging the statute so there will be no change at the state level if an individual wins. Richards and Peruta don't even directly attack the discretionary aspect of good cause, they just challenge the denial and the trial courts finding that they could open carry instead.

The other three cases only deal with the question of whether the departments abused their discretion in the way they define GC. So again, a win only provides immediate relief to that Plaintiff. If you wait, every other county will start from scratch and then say they are drafting a new policy, so that will take a year.

Wouldn't you rather already have your department sitting in front of a judge having to explain why it is not complying with the 9th's order?

wildhawker
08-02-2013, 4:03 PM
I think, also, it might show the courts how serious and pervasive the problem is.

-Brandon

Chatterbox
08-02-2013, 4:21 PM
I think, also, it might show the courts how serious and pervasive the problem is.

-Brandon

Brandon, would you say that it would be desirable for many people who applied for CCW and were rejected, to sue the denying agency? If so, would CGF be willing to coordinate an effort like that?

VAReact
08-02-2013, 4:39 PM
^ Or apply now and, if denied, initiate litigation?

ccmc
08-02-2013, 4:44 PM
CA is different because, unlike Moore, nobody is challenging the statute so there will be no change at the state level if an individual wins.

Good point.

Gray Peterson
08-02-2013, 8:29 PM
CA is different because, unlike Moore, nobody is challenging the statute so there will be no change at the state level if an individual wins. Richards and Peruta don't even directly attack the discretionary aspect of good cause, they just challenge the denial and the trial courts finding that they could open carry instead.

This is not true insofar as Richards.

Richards Reply Brief in CA9 (http://www.hoffmang.com/firearms/richards-v-prieto/Richards-Reply-2011-10-25.pdf)

Directly attack means "facial challenge". Richards did the facial challenge, Peruta did not.

flyonwall
08-02-2013, 8:47 PM
That is a afterthought- it isn't the complaint or the underlying ruling. You can't launch a facial attack in a reply brief, especially where that State has not been noticed. This case is an attack on the sheriff, that's all.
Now if they use it to invalidate the statute and that after thought works, hooray, but that isn't what the case is about, nor does it change the need to flood every department with applications and every district with suits.

fizux
08-02-2013, 10:16 PM
the only downside is the 400 filing fee and $60 to have the Defendant served.That filing fee is so 2011. Besides, you forgot to mention the $15-$60k+ in costs, not to mention attorney's fees.
immediate enforcement order should the 9th agree with us, else they face even more in attorney fee exposure and/or injunction.(emphasis added) Too bad the 9th hasn't yet agreed with us.
CA is different because, unlike Moore, nobody is challenging the statuteIncorrect. Richards is both a facial challenge of the statue's grant of discretion, as well as an as-applied challenge to Yolo's policy of implementing a constitutionally impermissible policy of unfettered discretion. Peruta doesn't explicitly cover both bases upfront, but reinforced in oral argument that the county of San Diego "can zig or it can zag, but ultimately it has to zag" or else the policy violates the constitution. Both Yolo and San Diego made CAAG aware of the action, and Mr. Gura served California/CAAG at the outset, so the State of California has notice. Since each county sheriff is acting in the capacity of exercising discretion on behalf of the State of California, the State of California has appeared in both actions by virtue of each sheriff's appearance. Listen to the December 2012 oral args - they are very informative, and that particular point was addressed (and conceded) by appellee's counsel.
so there will be no change at the state level if an individual wins. Richards and Peruta don't even directly attack the discretionary aspect of good cause, they just challenge the denial and the trial courts finding that they could open carry instead.Again, incorrect. Peruta did challenge the trial court's UOC finding insofar as UOC was subsequently banned; however, both cases attacked the unbridled discretion vested in a municipal official to grant or deny a permit to exercise an enumerated constitutional right. Each appellant's counsel left it to the State's choice of either OC or CCW. Where you got the idea that both cases only challenged the OC ban is beyond me, but you should hash it out with the followers of the Holy Gospel according to Saints Nichols and Rasuili, because they assert the exact opposite -- that Richards and Peruta are doomed because they did NOT challenge OC.

If 9CA finds a right to bear and limits restrictions of GC/MC at self defense + not prohibited, then the entire 9CA would be impacted. As of right now, that would change PRK and Hawai'i, since all other states in 9CA are shall-issue.
The other three cases only deal with the question of whether the departments abused their discretion in the way they define GC. So again, a win only provides immediate relief to that Plaintiff. If you wait, every other county will start from scratch and then say they are drafting a new policy, so that will take a year.
Wouldn't you rather already have your department sitting in front of a judge having to explain why it is not complying with the 9th's order?As noted above, the State of California is already before 9CA in both Richards and Prieto. Hawai'i is before 9CA in Baker. What more do you want ... a body attachment order for Moonbeam and 58 California county sheriffs?
That is a afterthought- it isn't the complaint or the underlying ruling. You can't launch a facial attack in a reply brief, especially where that State has not been noticed. This case is an attack on the sheriff, that's all. Now if they use it to invalidate the statute and that after thought works, hooray, but that isn't what the case is about, nor does it change the need to flood every department with applications and every district with suits.Again, the State of California is on notice. Read Mr. Gura's responsive filing just before oral args -- notice to the State of California was rehashed in gory detail. The State of California elected to let the county counsels deal with it.

The statutory challenge was raised at the original complaint stage, long before reply briefs on appeal. Challenging the county policies of arbitrary discretion, or in the alternative the California Statute granting such discretion, are the exact challenges brought in these cases; if you want to claim otherwise, please feel free to school me by quoting the alleged causes of action brought in Richards.

Gray Peterson
08-03-2013, 12:56 AM
That is a afterthought- it isn't the complaint or the underlying ruling. You can't launch a facial attack in a reply brief, especially where that State has not been noticed. This case is an attack on the sheriff, that's all.
Now if they use it to invalidate the statute and that after thought works, hooray, but that isn't what the case is about, nor does it change the need to flood every department with applications and every district with suits.

From the Amended Complaint:

2. Declaratory relief that the “good moral character” and “good cause” provisions of California Penal Code § 12050 are unconstitutional either on their face and/or as applied to bar applicants who are otherwise legally qualified to possess firearms and who assert self-defense as their “good cause” for seeking a handgun carry permit;

From the Memorandum of Points and Authorities in the motion for summary judgement repeatedly asserts Staub v. City of Baxley, as well as the 9th Circuit case Berger v. City of Seattle (en banc), which dealt repeatedly with facial invalidity.

In the Reply (http://ia600408.us.archive.org/4/items/gov.uscourts.caed.191626/gov.uscourts.caed.191626.65.0.pdf), "facial" was mentioned 4 times.

There was also a notice of unconstitutionality (http://ia600408.us.archive.org/4/items/gov.uscourts.caed.191626/gov.uscourts.caed.191626.3.0.pdf) sent directly from the plaintiffs to the state when Jerry Brown was AG (yes, this was confirmed with certified mail RRR to the person in charge of receiving them on behalf of the state, the DOJ employee is named Anthony Haikl). You'll notice it talks about facial invalidity.

There was no abandonment of a facial challenge claim ever at any stage of the Richards proceedings. To state so shows the stunning lack of knowledge of the history of the Richards case, or an intentional misrepresentation on behalf of an agenda that's in opposition to Mr. Gura's 2A litigation strategy.

Apocalypsenerd
08-03-2013, 7:11 AM
Can real estate agents make a good moral character claim in CA as well?

flyonwall
08-03-2013, 8:19 AM
I don't need to school anyone, the 10th Circuit did that already, but to show some of your FUD, the Central District of California filing fee is $400. Service, as stated, is $60 and 2a cases are taken on a contingency fee.
Now, as to the legal effect of these actions, there is zero chance the Court will strike them down as facially invalid, and that is one reason there is such a brawl between Richards and Peruta- is it there- yes- is it a waste of time- yes.
If we win, it will be with 9th circuit precedent related to discretion in the sheriff, and as such the ruling will only apply to those Sheriffs or departments who have been shown to abuse their discretion.
I am shocked and pleased that Brandon and I are on the same page on what needs to happen next. Your "legal analysis" citing random statements in a reply brief does not capture the nature of the action, the history of the ruling, 9th Circuit precedence or any experience with the realities of constitutional litigation, your numbers are wrong and your track record speaks for itself.
The point here is that every reader that has not applied needs to now, and every reader that gets denied needs to sue, now!

Gray Peterson
08-03-2013, 2:02 PM
I don't need to school anyone, the 10th Circuit did that already,

Are you telling me that you hold responsible David Mehl, Andrea Rothery, Sigitas and his wife, Adam Richards and Brett Stewart, Dorothy McKay for the losses they experienced in one level or another in the courts?

No, you don't.

but to show some of your FUD, the Central District of California filing fee is $400. Service, as stated, is $60 and 2a cases are taken on a contingency fee.

I didn't say anything about the $400 filing fee. That was fizux.

Now, as to the legal effect of these actions, there is zero chance the Court will strike them down as facially invalid, and that is one reason there is such a brawl between Richards and Peruta- is it there- yes- is it a waste of time- yes.

That's not the real reason there was a "brawl".

If we win, it will be with 9th circuit precedent related to discretion in the sheriff, and as such the ruling will only apply to those Sheriffs or departments who have been shown to abuse their discretion.
I am shocked and pleased that Brandon and I are on the same page on what needs to happen next.

Except (this is where we get into legal disagreements and the pitfalls of future predictive analysis) it's more a matter of 1988 fee avoidance on the sheriffs part. If the 9th Circuit says "Sheriffs must accept self defense as GC" and "must accept GMC as not a prohibited possessor under CA and federal law", rather than just facially striking down and therefor excising GC/GMC provisions from the statute, the end result is really the same for the applicant in reality.

Could a sheriff try to do a George Wallace in the face of such a specific ruling? It's certainly possible. There's only two in the state in my estimation who would even think of doing so: San Francisco and Los Angeles, and of the two, it's more likely to be the former than the latter.

Your "legal analysis" citing random statements in a reply brief does not capture the nature of the action, the history of the ruling, 9th Circuit precedence or any experience with the realities of constitutional litigation, your numbers are wrong and your track record speaks for itself.


I don't seem to remember the words pro se in my litigation. Perhaps you should email Mr. Monroe and Mr. Gura (being amicus counsel) and tell them that their understanding of how to do litigation is wrong.

I didn't write the brief, I am not a lawyer, but like Brandon I have some knowledge of the subject matter in question.

You directly claimed this:

That is a afterthought- it isn't the complaint or the underlying ruling. You can't launch a facial attack in a reply brief, especially where that State has not been noticed. This case is an attack on the sheriff, that's all.


The underlying ruling dealt with facial challenge.

MSJ Ruling in Richards at District Court (http://ia700408.us.archive.org/4/items/gov.uscourts.caed.191626/gov.uscourts.caed.191626.72.0.pdf)

Lawyers argue, it's what they do. Sometimes they make outstanding arguments on both sides, and the nature of adversarial cases means only one side is going to win.

For example, Paul Clement is a professional, excellent, and outstanding lawyer by any measure. On another issue that's near and dear to me, he made arguments that is in opposition to my legal desire. He lost and my "side" won that argument. Does that mean he's a bad lawyer? Of course not.

Facts, however, are not dependent on legal argument. You made five factual assertions.


The Complaint did not mention a facial attack (proved that false)

The state was not noticed during the attack on the facial unconstitutionality of a state law (Proved that false). In the end it didn't matter, because San Diego conceded during oral argument that the state is there represented by the sheriff and at no point did AG Harris file a briefing stating otherwise.

The MSJ did not make a facial challenge (proven that false)

The ruling did not discuss facial challenge (proven that false)

The Initial Appellant Brief did not mention facial challenge (proven that false)


Rather than admitting your lack of knowledge of the case, not only did you ignore it or make dismissive comments saying that it doesn't matter, but then you personally attacked me saying that my "track record speaks for itself", as if I personally litigated a case pro-se. Your five false factual assertions is why I question your credibility.

Also:

Some suggest that the NRA amicus had more to do with wins in heller and McDonald than gura did...

That's is why I believe my second statement was true, that you have some sort of agenda in opposition to Mr. Gura's litigation strategy and that you'll say or do anything to misrepresent his filings. Your postings are dripping with animus towards Gura and the partners who assist him.

flyonwall
08-03-2013, 2:21 PM
Gray,
You haven't proved anything. There is a worthless facial challenge and a question about whether the state was properly noticed. Likewise I have no animus towards Gura, he is doing a great job as are many others.
I have a great deal of animus towards you and your fud agenda but I am just trying to have a future academic discussion and you keep chiming in about the past.
Your analysis on gc and discretion is spot on and that is why we need to apply that pressure at the district level now. That is my only agenda here. I simply want everyone to do something. You live in a state where you enjoy your right, we don't. We have not made any law at a circuit level yet except nordyke which is an embarrassment we all share, you personally have made bad law at a circuit level which I would think would humble you from attacking those advocating for change in a state you don't even live in if I recall correctly.
Now, I welcome any discussion about the future but infighting and reminiscing about the good old days needs to stop.

kcbrown
08-03-2013, 4:06 PM
Step 1. Look at history and tradition of the enacted law/regulation to see if there was a ban/restriction similar when the 2a was ratified (Simiar to how a right to trial by jury in the 6a is looked at and analyzed by the court. I.e. Is this a cause of action/suit at law or at equity. So they analyze did this restriction exist at ratification of 2a prominently). If so then move to step 2. If not then unconstitutional because there is not a history and tradition of the ban/restriction.


This is actually the wrong approach.

The people of the United States had just successfully thrown off what had been, up until that time, the ruling government. The very laws you speak of had been passed under that government. You generally don't throw off your oppressors for the purpose of restricting yourself in the same ways they did. It is, therefore, folly to think that the laws in place at the time were necessarily regarded as Constitutional had they been federal laws.

Furthermore, this approach fails to account for the differences between the restrictions the people would, as a whole, enact, versus the restrictions the revolutionaries would enact. Remember that the people as a whole included a large number of people who were rooting for the British.

Put simply, you simply cannot use the existence of a law at the time of 2nd Amendment ratification as evidence of its Constitutionality, and to try to do so is to go down what is almost certainly the wrong path.

Uxi
08-03-2013, 8:54 PM
I also think the more pressure the better. LAPD has issued 4 permits in 20 years and has a total of 20. How many times have they been sued in those 20 years for a 2a violation? 1 time. Nobody is willing to step up and apply and then sue, so why should they care? Well, later this year the 9th may order them to care.


Damn. Know how many challenges to LA County? Especially since Heller and McDonald. Most/all of the previous laws were upheld noting a lack of an individual RKBA...

flyonwall
08-04-2013, 6:25 AM
Lasd has about 230 civilian permits issued and 3 district court challenges to their good cause policy all briefed on appeal. I think we should have more suits than they have permits issued!
The time is now to apply and apply the pressure.

sholling
08-04-2013, 6:44 AM
This is actually the wrong approach.

The people of the United States had just successfully thrown off what had been, up until that time, the ruling government. The very laws you speak of had been passed under that government. You generally don't throw off your oppressors for the purpose of restricting yourself in the same ways they did. It is, therefore, folly to think that the laws in place at the time were necessarily regarded as Constitutional had they been federal laws.

Furthermore, this approach fails to account for the differences between the restrictions the people would, as a whole, enact, versus the restrictions the revolutionaries would enact. Remember that the people as a whole included a large number of people who were rooting for the British.

Put simply, you simply cannot use the existence of a law at the time of 2nd Amendment ratification as evidence of its Constitutionality, and to try to do so is to go down what is almost certainly the wrong path.
You are exactly right. Unfortunately those into historical analysis tend to be looking for any excuse to empower government by showing that this right or that right was regulated by Royalists and their ilk in the years prior to the revolution. We fought a war so that we could reject the pre 1776 status quo of an overly empowered government and since then statists and the power hungry have worked tirelessly to restore an all powerful government. The only acceptable constitutional analysis is enforcing the plain public meaning of the actual words of the US Constitution at the time of ratification. Those were the words and meanings that were ratified into the supreme law of the land.

flyonwall
08-04-2013, 7:11 AM
Not sure why we continue to beat the historic dead horse, the Supreme Court has already agreed with us, the battle is now bringing the states in line, and with 3 constitutional carry states, 40 shall issue states and 2-3 arguable near shall issue, I would say we are doing pretty well, but by no means winning in CA until we have stripped every sheriff of discretion to decide if we get to exercise our right:
"“In Heller, the Supreme Court held the Second Amendment protects an individual right ‘to possess and carry weapons in case of confrontation,’ unconnected with service in a militia…. the court held the Second Amendment right recognized in Heller is ‘fully applicable to the States.’…A plurality of the McDonald court concluded the Second Amendment right applies to the states because it is “fundamental” to the American “scheme of ordered liberty” People v. Delacy (2011) 192 Cal.App.4th 1481."

SilverTauron
08-04-2013, 7:23 AM
.......but by no means winning in CA until we have stripped every sheriff of discretion to decide if we get to exercise our right:
"“In Heller, the Supreme Court held the Second Amendment protects an individual right ‘to possess and carry weapons in case of confrontation,’ unconnected with service in a militia…. the court held the Second Amendment right recognized in Heller is ‘fully applicable to the States.’…A plurality of the McDonald court concluded the Second Amendment right applies to the states because it is “fundamental” to the American “scheme of ordered liberty” People v. Delacy (2011) 192 Cal.App.4th 1481."

The only way pro-2A judicial policy will be enforced in CA is if the Feds darn near literally stick a gun to the Sacramento's head.

The best analogy is the 1960s Civil Rights Movement. We nearly had Civil War II because the southern states blatantly defied judicial rulings on racial segregation and were dodging Federal guidance. Coincidentally, those states were under Democrat administrations too........

flyonwall
08-04-2013, 7:56 AM
You could have said that about Illinois 6 months ago.

Maestro Pistolero
08-04-2013, 8:54 AM
You could have said that about Illinois 6 months ago.

True. But the shenanigans are far from over in Illinois, Until and unless a large stick is wielded against them, hopefully starting in about a week. I expect Illinois is going to need flogging the entire way. Oh, I expect victory in the end, as the law is squarely on our side, and I expect they will look more and more ridiculous at every recalcitrant turn. But they aren't going to make it easy, ever.

flyonwall
08-04-2013, 10:30 AM
You had me at "true".
All the more reason to have them facing six figure fee bills and contempt citations the day after a 9th ruling for every chief and sheriff in the state who does that. Any chief or sheriff would have a year to muck around if you had to sue from scratch. Any chief or sheriff already sued would have a 30 day Osc re compliance with the ruling.
It should be very simple.
GMC = no prohibiting violation under existing CA law.
GC = self defense.
Training = more the better frankly up to what statute calls for. Lapd & lasd actually are pretty lax and only require some evidence of competency or letter from a certified trainer of competence.

fizux
08-04-2013, 9:28 PM
but to show some of your FUD, the Central District of California filing fee is $400. Service, as stated, is $60 and 2a cases are taken on a contingency fee.
...
The point here is that every reader that has not applied needs to now, and every reader that gets denied needs to sue, now!State court passed $400 about 2 years ago. I already covered Federal Court in another thread a few weeks ago, but if you want to bring your toothbrush, be my guest.

What's the filing fee for a MSJ, notice of appeal, etc.? Incidentally, most attorneys are unlikely to take a pro-CCW case in this environment on contingency without having any costs covered beyond the initial ($350 + $50) fees. There are also some costs related to discovery, time off work, and the always enjoyable rotor rooter experience.

Hey, if it works, I'm all for it. Just make sure on the next thread that you let people know it will end up costing a whole lot more than $460 to sue.

Gunlawyer
08-04-2013, 9:51 PM
This is actually the wrong approach.

The people of the United States had just successfully thrown off what had been, up until that time, the ruling government. The very laws you speak of had been passed under that government. You generally don't throw off your oppressors for the purpose of restricting yourself in the same ways they did. It is, therefore, folly to think that the laws in place at the time were necessarily regarded as Constitutional had they been federal laws.

Furthermore, this approach fails to account for the differences between the restrictions the people would, as a whole, enact, versus the restrictions the revolutionaries would enact. Remember that the people as a whole included a large number of people who were rooting for the British.

Put simply, you simply cannot use the existence of a law at the time of 2nd Amendment ratification as evidence of its Constitutionality, and to try to do so is to go down what is almost certainly the wrong path.

I see your point but at the ratification of the 2a you will see that there were no or very very few restrictions. I am or talking about before this and the British old laws but the laws at the time of the founding and particularlythe 2a ratification and shortly thereafter. There were none. If this approach was taken then it would create a nearly bulletproof 2a.

Gunlawyer
08-04-2013, 9:53 PM
This is actually the wrong approach.

The people of the United States had just successfully thrown off what had been, up until that time, the ruling government. The very laws you speak of had been passed under that government. You generally don't throw off your oppressors for the purpose of restricting yourself in the same ways they did. It is, therefore, folly to think that the laws in place at the time were necessarily regarded as Constitutional had they been federal laws.

Furthermore, this approach fails to account for the differences between the restrictions the people would, as a whole, enact, versus the restrictions the revolutionaries would enact. Remember that the people as a whole included a large number of people who were rooting for the British.

Put simply, you simply cannot use the existence of a law at the time of 2nd Amendment ratification as evidence of its Constitutionality, and to try to do so is to go down what is almost certainly the wrong path.


Also how would this approach weaken 2a? I see zero downside to this approach and see comments in Heller and McDonald supporting it. Add the other steps too of course.

Gunlawyer
08-04-2013, 9:56 PM
You are exactly right. Unfortunately those into historical analysis tend to be looking for any excuse to empower government by showing that this right or that right was regulated by Royalists and their ilk in the years prior to the revolution. We fought a war so that we could reject the pre 1776 status quo of an overly empowered government and since then statists and the power hungry have worked tirelessly to restore an all powerful government. The only acceptable constitutional analysis is enforcing the plain public meaning of the actual words of the US Constitution at the time of ratification. Those were the words and meanings that were ratified into the supreme law of the land.

Lol. Im about as far Libertarian non government as they come. I guess its hard to analyze "legaleze" with people who havent got a bar card and unserstand the nuances of what Im trying to get across.

sholling
08-04-2013, 10:35 PM
Lol. Im about as far Libertarian non government as they come. I guess its hard to analyze "legaleze" with people who havent got a bar card and unserstand the nuances of what Im trying to get across.

Actually I wasn't critiquing your statements, although it might have sounded that way, I was simply musing about the historical analysis nonsense coming from the courts - including nonsense spouted by some of the SC justices. I understand that as a lawyer you have to use the limited tools that are available to you rather than tilting at the windmills of a faulty justice system. Sorry for any misunderstanding.

flyonwall
08-05-2013, 6:00 AM
State court passed $400 about 2 years ago. I already covered Federal Court in another thread a few weeks ago, but if you want to bring your toothbrush, be my guest.

What's the filing fee for a MSJ, notice of appeal, etc.? Incidentally, most attorneys are unlikely to take a pro-CCW case in this environment on contingency without having any costs covered beyond the initial ($350 + $50) fees. There are also some costs related to discovery, time off work, and the always enjoyable rotor rooter experience.

Hey, if it works, I'm all for it. Just make sure on the next thread that you let people know it will end up costing a whole lot more than $460 to sue.

You clearly are intent on spreading FUD so let me source it. Central District filing fee is $400, there are no other filing fees for motions, see 6a.:
http://court.cacd.uscourts.gov/CACD/forms.nsf/0/66cc90529a00dc1688256dcf005f4ac3/$FILE/G-72.pdf
Every State Court is different by Couny, LA is $435 and then $500 for an MSJ but you wouldnt file this in State Court.
There are plenty of attorney who would take this case, and you only pay the filing fee and service fee, but if you are looking for excuses to wallow, you have plenty, so please continue.

kcbrown
08-05-2013, 12:58 PM
Also how would this approach weaken 2a? I see zero downside to this approach and see comments in Heller and McDonald supporting it. Add the other steps too of course.

It would weaken the 2nd Amendment by making "exceptions" to it possible.

No, when a people throw off their oppressors, they don't generally want a continuation of the status quo, they want something better. The 2nd Amendment is a direct expression of how the revolutionaries wanted things to be better.

Hence, the only reliance we should have on the historical record as regards what restrictions are allowable under the 2nd Amendment is (aside from what I discuss below) with respect to how the revolutionaries at the time of the 2nd Amendment's ratification interpreted its words. If they interpreted the words as meaning no restrictions on keeping and bearing arms, then that means no restrictions.


It will not do to look at the laws that were in place at the time, because those are restrictions that predated the Revolution and are therefore fodder for it. Rather, it's important to look at the "restrictions" that the revolutionaries themselves adhered to during the Revolution, for the prefatory clause of the 2nd Amendment demands that the people be able to keep liberty secure through force of arms, which is precisely what the revolutionaries were doing.

If the revolutionaries didn't adhere to any restrictions on keeping and bearing arms while fighting the Revolution, then the historical context of the prefatory clause makes it plain that no restrictions on keeping and bearing of arms are allowable, for the reason the 2nd Amendment was put in place was to make it possible for the people of the country to do precisely what the revolutionaries had done.

naeco81
08-05-2013, 2:06 PM
Can you recommend some competent attorneys that will take such a case on contingency? I hardly think the filing fees are an issue; to me the gating factor is the legal fees. I'm not asking to prove a point or take sides in the argument, I'm asking because I'm genuinely interested.

Chatterbox
08-05-2013, 2:29 PM
Can you recommend some competent attorneys that will take such a case on contingency? I hardly think the filing fees are an issue; to me the gating factor is the legal fees. I'm not asking to prove a point or take sides in the argument, I'm asking because I'm genuinely interested.

Likewise.

VAReact
08-05-2013, 3:51 PM
^+1...

fizux
08-05-2013, 6:41 PM
You clearly are intent on spreading FUD so let me source it. Central District filing fee is $400, there are no other filing fees for motions, see 6a.:
http://court.cacd.uscourts.gov/CACD/forms.nsf/0/66cc90529a00dc1688256dcf005f4ac3/$FILE/G-72.pdf
Nope, just calling you out on your BS. You missed:
- Notice of Appeal ($455)
- Petition for Review/Mandamus($450)
- 7 copies of briefs and 4 sets of excerpts, professionally prepared at about $1/page per copy.
- Depositions, plus associated transcripts costing hundreds to thousands of dollars per depo or hearing.
- Document subpoena services
- Other discovery costs
- Cost of taking dozens of days off work to each Plaintiff
I was happy to let you go on your merry way a few threads ago after the first time I called you out on your FUD, until you started giving dangerous advice. It isn't just that you ignore the reality of litigation and claim it will only cost $460 per case to sue a county over CCW denial; it is your advocacy of flooding the federal court system with thousands of uncoordinated lawsuits that you know darn well will get consolidated and dismissed en masse, likely leading to the disbarment of the plaintiffs' attorney(s). You think the State Bar won't put them through the ringer? Look what they did to Frankovich (http://archive.calbar.ca.gov/%5CArchive.aspx?articleId=94653&categoryId=94594&month=1&year=2009). The only reason Frankovich got it spun around on appeal is that he does ADA litigation, which is way more politically correct in California than pro-2A advocacy.
Every State Court is different by CounyAnother swing and a miss. With the exception of the three counties that assess a small Court building rehab fee with the initial pleading, all 58 counties are required to follow the statewide fee schedule (http://www.courts.ca.gov/documents/StatewideCivilFeeSchedule-062713.pdf).
I just assumed that even inexperienced civil litigation attorneys in California knew that.
There are plenty of attorney who would take this case, and you only pay the filing fee and service feeNo, there aren't. That philosophy works in personal injury case where the firm is operating a mill and 70%-80% settle before being filed (except minor's comp confirmations). It won't work here because the county isn't like an insurance company sitting by trying to avoid litigation with a checkbook in hand.
If you say otherwise, why don't you sign up 1,000 plaintiffs in the Northern District and see how long you last. Remember, you are covering the costs of litigation, so make sure you have a couple million bucks standing by to front these folks for the next few years until you maybe get a recovery, but 90%+ probably not. Let me know how it feels to explain a defendants' memorandum of costs to a high percentage of your faithful plaintiffs.
No competent attorney is going to front costs on an uncoordinated pile of cases such as you propose, with little chance of recovery of costs or attorney fees. It just doesn't happen.
if you are looking for excuses to wallow, you have plenty, so please continue.No wallowing here; I just disagree with your idea of mass federal litigation. I am all in favor of planning and coordinating litigation rather than tossing a pot of spaghetti at the wall... but you're free to give it a shot as long as you are the one volunteering your contingency services.

flyonwall
08-06-2013, 6:43 AM
There is a line between mass litigation and applying pressure.
Birdt has offered to do this for anyone in Southern California on contingency. Jason Davis might also take some of these cases. The more we file the more we learn about who issues and what policies they have.
I don't know if Kilmer will take these cases in Northern California.
These are cookie cutter cases and the work has already been done.
If we actually had the problem of a 1,000 people lining up to do this that would be a glorious day, but instead, CGF does things like this:
http://www.metnews.com/sos.cgi?0813//A136092
that just get us more bad case law.
Why don't we focus on actually getting the right to carry, before worrying about whether we can have a picnic in the park?
Why don't we organize a statewide network of attorneys- get the CGF sunshine crew involved, like I said, it is an easy thing to do, cant be any worse, and applies pressure to the departments and the courts to let them know we aren't going away. I cant imagine a better or more effective peaceful protest.

curtisfong
08-06-2013, 8:24 AM
I like that people are thinking out of the box, and I would be the first to join in if there is at least some consensus that it would be effective

ColdDeadHands1
08-06-2013, 8:34 AM
I like that people are thinking out of the box, and I would be the first to join in if there is at least some consensus that it would be effective

As would I. I already have an established history of CCW application runaround with Santa Clara County!

flyonwall
08-06-2013, 8:35 AM
No worries Curtis, we will have a consensus in two weeks, until then just stand by. (Or do something now, whatever).

Gray Peterson
08-06-2013, 10:31 AM
Nope, just calling you out on your BS. You missed:
- Notice of Appeal ($455)
- Petition for Review/Mandamus($450)
- 7 copies of briefs and 4 sets of excerpts, professionally prepared at about $1/page per copy.
- Depositions, plus associated transcripts costing hundreds to thousands of dollars per depo or hearing.
- Document subpoena services
- Other discovery costs
- Cost of taking dozens of days off work to each Plaintiff
I was happy to let you go on your merry way a few threads ago after the first time I called you out on your FUD, until you started giving dangerous advice. It isn't just that you ignore the reality of litigation and claim it will only cost $460 per case to sue a county over CCW denial; it is your advocacy of flooding the federal court system with thousands of uncoordinated lawsuits that you know darn well will get consolidated and dismissed en masse, likely leading to the disbarment of the plaintiffs' attorney(s). You think the State Bar won't put them through the ringer? Look what they did to Frankovich (http://archive.calbar.ca.gov/%5CArchive.aspx?articleId=94653&categoryId=94594&month=1&year=2009). The only reason Frankovich got it spun around on appeal is that he does ADA litigation, which is way more politically correct in California than pro-2A advocacy.
Another swing and a miss. With the exception of the three counties that assess a small Court building rehab fee with the initial pleading, all 58 counties are required to follow the statewide fee schedule (http://www.courts.ca.gov/documents/StatewideCivilFeeSchedule-062713.pdf).
I just assumed that even inexperienced civil litigation attorneys in California knew that.
No, there aren't. That philosophy works in personal injury case where the firm is operating a mill and 70%-80% settle before being filed (except minor's comp confirmations). It won't work here because the county isn't like an insurance company sitting by trying to avoid litigation with a checkbook in hand.
If you say otherwise, why don't you sign up 1,000 plaintiffs in the Northern District and see how long you last. Remember, you are covering the costs of litigation, so make sure you have a couple million bucks standing by to front these folks for the next few years until you maybe get a recovery, but 90%+ probably not. Let me know how it feels to explain a defendants' memorandum of costs to a high percentage of your faithful plaintiffs.
No competent attorney is going to front costs on an uncoordinated pile of cases such as you propose, with little chance of recovery of costs or attorney fees. It just doesn't happen.
No wallowing here; I just disagree with your idea of mass federal litigation. I am all in favor of planning and coordinating litigation rather than tossing a pot of spaghetti at the wall... but you're free to give it a shot as long as you are the one volunteering your contingency services.

The above pretty much explains why flyonwall has a terrible credibility issue on the subject matter. Filing mass federal lawsuits does not in fact work for the reasons above.

He also personally attacks people when confronted with facts which countermand his statement about "There's no facial challenge here", saying it's worthless and making issue over the 10th Circuit litigation (there will be further efforts to annihilate the Denver OC ban, that I can assure you). It wouldn't surprise me if flyonwall is Mr. Birdt or one of his plaintiffs. Birdt himself is banned from the forum, and it is in his nature to eventually lose all control when pushed and confronted on his issues and to eventually directly insult and throw out some vile profanity over PM or here directly. If Flyonwall is Birdt, he will eventually slip up and tip his hand.

If he isn't Jon Birdt, he should produce his bar card #. He's the one pushing for litigation and asking for plaintiffs, we should know who he really is.

flyonwall
08-06-2013, 10:40 AM
Gray,
You are right, we should all give up, it is hopeless, after all you set the Circuit Court precedent for that.
Why bother looking for options and moving things forward, lets just wallow. You don't live here and you have a ccw, so what is your dog in this fight?
What are your credentials? All I see is you asking for bus fare and making bad law. So if you don't have something positive to say about moving forward, what is your point?
Are you saying applying more pressure is a bad idea? If so why? Are you saying we should all just wait for gura to solve our problems or are you just continuing to smear Birdt because he proved you wrong and did a great job with discovery, experts and briefing in the 9th and continues to fight great battles?
Honestly, you keep coming back to attack but offer nothing new.
I am just trying to advocate for our rights, something I thought you were passionate about.

HokeySon
08-06-2013, 3:40 PM
... Birdt because ... [he] did a great job with discovery, experts and briefing in the 9th and continues to fight great battles?

Bwaaah haaaa haaaaa! Birdt filed a one (1 !!!!!) page brief in the ninth circuit that cited two cases. not to be taken seriously....

flyonwall
08-06-2013, 3:44 PM
http://www.jonbirdt.com/images/Birdt_Opening_Brief.pdf

One page and two cases?

flyonwall
08-06-2013, 3:48 PM
Maybe you could post some of the depos CGF has taken or perhaps a declaration from an expert they hired? Oh yeah, they just want to picnic in the park and lose on motions to dismiss in spectacular fashion.

HokeySon
08-06-2013, 4:12 PM
Maybe you could post some of the depos CGF has taken or perhaps a declaration from an expert they hired? Oh yeah, they just want to picnic in the park and lose on motions to dismiss in spectacular fashion.

Instead, I will quote from the brief that you posted and offer a wager:

Mr. Birdt wrote:
"The trial Court, without analysis, simply flipped a coin and chose the theory that criminals might apply for CCW permits and commit crimes, so Appelleeswere justified in abrogating the civil rights of all law abiding citizens in the county."

I will bet you $100 that these words will be quoted in the decision and it will throw them back in his face. The Ninth is going to find that an insult to the district court and going to roast you (ummm..... Mr. Birdt) on a stick.

I have read a quite a few of your posts now and am convinced that you are Jon Birdt on here trolling for clients to hire you to sue after they are denied a CCW permit. why not just be honest about it.


PS: the brief you posted is from a different case.... Birdt's own case .... than the one that I posted. I am not impressed with it, but it doesn't justify the utter failure in filing on one page brief in another matter.

flyonwall
08-06-2013, 4:18 PM
Nope. Just someone who hates your FUD and wants to see some change instead of stupid suits against the NSA.
What is your problem with that?

HokeySon
08-06-2013, 5:05 PM
...
Birdt has offered to do this for anyone in Southern California on contingency.

How... exactly ... is this supposed contingency agreement going to work? There is no pot of money if you win. Private attorney general statutes aren't going to provide for fees in an individual case (like you are suggesting). Ridiculous.

flyonwall
08-06-2013, 5:15 PM
Weird, I thought you knew everything. It isnt a private ag action, it is a 1983 action which includes attorney fees under 1988 if successful, but nobody has gotten rich off them yet. So what is the problem now? Just do something. If you have read all my posts, that is my one message. I don't care who you hire, but apply. A few here tried that and got a permit much to their surprise. If denied, sue, apply pressure and keep applying it until they understand this is a fundamental right no less sacred than any other!

curtisfong
08-06-2013, 5:18 PM
No worries Curtis, we will have a consensus in two weeks, until then just stand by. (Or do something now, whatever).

Tell you what. PM FGG with your ideas and ask him for your support.

If FGG publicly says its a good idea, i'll join your side without hesitation, and advocate for it as much as I can.

HokeySon
08-06-2013, 5:29 PM
Weird, I thought you knew everything. It isnt a private ag action, it is a 1983 action which includes attorney fees under 1988 if successful, but nobody has gotten rich off them yet. So what is the problem now? Just do something. If you have read all my posts, that is my one message. I don't care who you hire, but apply. A few here tried that and got a permit much to their surprise. If denied, sue, apply pressure and keep applying it until they understand this is a fundamental right no less sacred than any other!

So you are gonna run right into Fed court rather than filing a writ of mandate in state court? OK. GLWT.

flyonwall
08-06-2013, 5:32 PM
umm, yes, that is what happens- see Richards, Peruta and all the other cases that followed.
not sure why you would even waste a second in state court or how you could ever get a writ of mandate for a discretionary matter, but IANARL. :D

HokeySon
08-06-2013, 6:29 PM
umm, yes, that is what happens- see Richards, Peruta and all the other cases that followed.
not sure why you would even waste a second in state court or how you could ever get a writ of mandate for a discretionary matter, but IANARL. :D

Man, you really do not know what you are talking about. I sure hope that everyone reading your posts realizes how dangerous your ignorance could be to them if they follow your advice.

flyonwall
08-06-2013, 6:36 PM
So all the cases pending in the 9th started with a writ of mandate? One of us is riding the short bus, so here is my promise, post the writ for any of the five pending 1983 cases and I will never post again in this forum- if not- you change your name to short bus- deal?

flyonwall
08-06-2013, 7:09 PM
Come on, it would be so easy for you to prove i am wrong, ignorant and dangerous. with a simple link i am gone forever in an instant. Think of it, you never have to hear from me again.
or could it be you are full of FUD? You must Gene or Gray in disguise with that high level of top secret FUD. Post it and I wont even reply, i will just close my account and hang my head in shame...I am waiting.

ziegenbock
08-06-2013, 7:11 PM
So all the cases pending in the 9th started with a writ of mandate? One of us is riding the short bus, so here is my promise, post the writ for any of the five pending 1983 cases and I will never post again in this forum- if not- you change your name to short bus- deal?

Not sure why people get all hurt and such...but this is good stuff :D

HokeySon
08-06-2013, 7:16 PM
You are just further showing your ignorance when you equate those cases, which attack the constitutionality of the statutory scheme (facially and as applied), with individual cases arguing that a CCW should have been issued under the statutory scheme -- do you really think a federal court has the power to order the sheriff to issue a ccw to Joe Plaintiff, personally, or do you accept that all it can do is invalidate the statutory scheme (or parts of it)?

I guess, if all you are suggesting is that everyone pile on and make the same constitutional arguments to invalidate the scheme, then the natural question is why. Additional ("me too") cases add nothing legally; they will simply be won or lost on the strength of the opinions in the lead cases. They just cost the client money (and expose the client to paying the governments costs if the leading cases come out the wrong way. Oh, and this also pretty much rules out your 1988 argument if the leading cases come out the right way -- I doubt a district court is going to exercise its discretion to award fees where the leading case established the right and the "me too" lawsuit just followed along, but I guess it could happen.

flyonwall
08-06-2013, 7:26 PM
Roflmao- you don't have a link because it doesn't exist! The only thing we are discussing is ccw denial suits. Not sure what you are talking about or why but thanks for the levity!

Gray Peterson
08-06-2013, 7:28 PM
Nope. Just someone who hates your FUD and wants to see some change instead of stupid suits against the NSA.
What is your problem with that?

Under your most recent standards, that means you're OK with the NSA spying on Americans and vacuuming up phone and internet data.

OK then, Robert. Go die on that hill.

flyonwall
08-06-2013, 7:35 PM
Gray,
I would like us to focus on filing good cases that help recognize our right to carry.
When I have that I will worry about whether you can talk on a phone during your picnic. That is my only point. For years the mantra has been stay the course and now I think even Brandon has agreed it is time to apply for and file 1983 actions for denials. That is where I think every single CGF resource should be devoted until that goal is achieved. That is what this forum should be devoted to. That is my only point. I think your 10th circuit case was a waste of time that made bad law just like the San Mateo case. I would love to see CGF organize a group of lawyers to assist all with applications, create a form complaint and discovery and then go after every denial until every county is shall issue. When that is done, feel free to sue the NSA.

curtisfong
08-06-2013, 8:03 PM
Like I said, if FGG approves, I'm in.

Gray Peterson
08-06-2013, 8:08 PM
Gray,
I would like us to focus on filing good cases that help recognize our right to carry.
When I have that I will worry about whether you can talk on a phone during your picnic. That is my only point. For years the mantra has been stay the course and now I think even Brandon has agreed it is time to apply for and file 1983 actions for denials. That is where I think every single CGF resource should be devoted until that goal is achieved. That is what this forum should be devoted to. That is my only point. I think your 10th circuit case was a waste of time that made bad law just like the San Mateo case. I would love to see CGF organize a group of lawyers to assist all with applications, create a form complaint and discovery and then go after every denial until every county is shall issue. When that is done, feel free to sue the NSA.

You also are missing a big thing here, and that's the bill of cost from losses in Mehl v. Blanas:

Mehl v. Blanas Bill of Costs from Sacramento County in District Court (http://ia600507.us.archive.org/19/items/gov.uscourts.caed.70550/gov.uscourts.caed.70550.171.0.pdf)

Cost: $5873.22

Attached to the post is the Bill of Costs during the Mehl appellate stage.

Cost: $1269.68

Is Birdt or really any lawyer willing to soldier the cost potential of $7K, multipled by whatever lawsuits are filed as a "mass lawsuit pressure tactic"? I seriously doubt he's independently wealthy enough to do this. A lawyer taking a case on contingency doesn't mean the plaintiff gets to skate on the fees taxed against them if the lawyer can't financially afford the 7K. If they don't pay it, it's as bad if not worse than a student loan.

You want 200 lawsuits filed? That's 1.4 million dollars of liability.

flyonwall
08-06-2013, 8:14 PM
You are right, we should all give up and go home, it is just too hard, they win, again a point you have proved remarkably well.
Seriously, if it would apply pressure and it isn't your money, what is the problem?
If my aunt had a beard she would be my uncle and I can guarantee it is money better spent than challenging a picnic ban or suing the NSA!

curtisfong
08-06-2013, 8:17 PM
If it such a great idea, i'd think FGG would agree with you.

flyonwall
08-06-2013, 8:21 PM
Brandon agreed with me. I don't know fgg's track record. I know Birdt hasn't lost yet. I know Gorski, Peterson, Kilmer and CGF have- and all in spectacular fashion.

curtisfong
08-06-2013, 8:22 PM
I don't know fgg's track record.

FGG has a perfect track record on predictions. Why isn't he predicting your strategy will succeed?

flyonwall
08-06-2013, 8:27 PM
I think that simply suggests how much smarter he is because he knows no set strategy will work, but you have to try. The real question is (I assume you think CGF is the only way) after so many failures and now placing all apples in the Richards basket, shouldn't we have a lot more Richards out there? What is the downside to that? Not 2,000 suits, just one against each department that refuses to respect our fundamental rights?
I know, crazy talk, it's just too hard, I give up.

curtisfong
08-06-2013, 8:40 PM
I assume you think CGF is the only way

Bad assumption. I want the same thing you do: a winning strategy. I have no particular faith at this point that CGF knows better than everybody else. I do know that despite my dislike of FGG's manner and his non-constructive, unilaterally critical attitude, he has been right about just about everything.

Enlist him as an ally to the point he will start giving constructive advice, and you'd definitely convince me you are on the right track.

Gray Peterson
08-06-2013, 8:44 PM
You are right, we should all give up and go home, it is just too hard

Most carriers, especially in a high tax state like California, don't have 4 figures sitting around in a bank account to write out a check to the US Government.

This is why organizations either organizationally co-plaintiff cases or sponsor cases (such as Mountain States Legal Foundation doing the Morris v. US Army Corp of Engineers case in Idaho), to guarantor against situations such as this in strategic civil rights litigation cases. The NAACP's LDF did the same in the school desegregation cases with it's plaintiffs in the 1930's to 1960's. ACLU, SAF, and the NRA-ILA also does the same today.

The people who need carry the most, are the ones who can least afford a $7K bill. Your ill-advised "pile on litigation method" will bankrupt a significant percentage of the plaintiffs if something goes sideways. It's like a hamster on a spinning wheel. What is the actual point? The LA Sheriffs Department isn't going to give two craps about a dozen lawsuits. They got hundreds every year from their jail conditions.

CGF, SAF, and the NRA-ILA/CRPAF already have cases in the 9th Circuit to address right to carry (Richards, Peruta, and McKay).

You already have Alan Gura (Heller & McDonald) and Paul Clement (NRA v. Chicago) arguing on all of our behalf.

What is the point of you pushing people towards pile-on litigation?

fizux
08-06-2013, 9:48 PM
Bwaaah haaaa haaaaa! Birdt filed a one (1 !!!!!) page brief in the ninth circuit that cited two cases. not to be taken seriously....Not only that, but check out the grammar error in the first line:
"While Second Amendment Jurisprudence [singular] is [singular] still in its’ [plural] nascency stage..."
While I screw up spelling and grammar repeatedly while sitting on the can with a beer in one hand and tapping out a CGN post on my iPhone with the other (complicated by that ridiculous autocorrect), I really do try to proofread at least the first sentence of a filing, especially on appeal.
You are right, we should all give up, it is hopelessBut I want my oompa loompa NOW!
If Flyonwall is Birdt...No way, Gray, I gotta disagree with you here. No one who once passed the bar would be so retarded as to flagrantly violate RPC 1-400(D) while attempting to mislead the entire CGN community ... or would he?
Brandon agreed with me.About whether a bear $#!+s in the woods, or your mass suicide pact? I think Brandon can speak for himself; he certainly is not shy about it.

Advocate for your ideas -- fine.
Advocate for dumb ideas -- eh, BTDT, I throw no stones.
Refine your ideas and/or provide constructive feedback -- great.
Call people nasty names -- not cool.
Deliberately mislead people -- major problem.

Funtimes
08-06-2013, 11:33 PM
Not only that, but check out the grammar error in the first line:
"While Second Amendment Jurisprudence [singular] is [singular] still in its’ [plural] nascency stage..."


Although the writer's grammar could certainly use some work, I'm not sure I agree with your break down.

When do you think you would ever state that "While Second Amendment Jurisprudences are"? That just doesn't make sense. Jurisprudence covers both - it's a collective noun; and it is entirely proper to use "is" and "its" in that sentence. Jurisprudence in his sentence is 'acting together.' He is saying that it is ALL (one unit), and that this one unit is in it's nascency ( a word that I believe is improperly used, since the 2nd Amendment is not just now being born or originated, but developing and refining, and therefore infancy would have been a better fit; not only that, who the hell uses such a word?).

Aside from that, you state that "its'" is plural? I find that to be a rather difficult statement to grasp for a word that doesn't exist!

fizux
08-07-2013, 5:05 AM
Although the writer's grammar could certainly use some work, I'm not sure I agree with your break down.
Aside from that, you state that "its'" is plural? I find that to be a rather difficult statement to grasp for a word that doesn't exist!
Hmmm, maybe its' supposed to be a contraction instead of plural possessive? Oh well, I guess from my screen name, one can tell that I was not an English major.