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knowyourrights
09-20-2013, 3:25 PM
National Rifle Association Attacks Open Carry Lawsuit

For Immediate Release
California Right To Carry
Redondo Beach, California
Contact: Press@CaliforniaRightToCarry.org
9/18/2013


The National Rifle Association (NRA), through its state organization the California Rifle and Pistol Association (CRPA), filed a motion in the 9th Circuit Court of Appeals asking that a lawsuit appealing the denial of a preliminary injunction against California's bans on openly carrying loaded and unloaded firearms in public be stayed until a decision in their two cases seeking concealed carry permits in San Diego and Orange County is decided. The Open Carry lawsuit was filed by Charles Nichols, President of California Right To Carry. The case is named Nichols v. Brown.

This should not come as any surprise. The NRA/CRPA in its appeal of a concealed carry lawsuit, Peruta v. San Diego, argued extensively to uphold California's 1967 ban on openly carrying loaded firearms in public, a ban which the NRA supported in 1967 and still supports today. In its appeal, the NRA/CRPA “warned” the court of appeals that if they don't get “shall-issue” concealed carry permits then the end result would be overturning both the ban on openly carrying loaded firearms in public as well as overturning the California Gun Free School Zone Act of 1995.

The NRA/CRPA said that would be “drastic.”

It is unlikely that their membership would agree. The NRA/CRPA put on a dog and pony show claiming to oppose the two recently enacted bans on openly carrying unloaded firearms in public, going so far as to claim that they would challenge the unloaded handgun open carry ban in court.

The NRA/CRPA solicited donations to fight these bans but never filed a lawsuit to overturn them. Instead the NRA/CRPA cited in their concealed carry appeals the unloaded handgun open carry ban as yet another reason why they should prevail in their concealed carry lawsuits.

Having so badly mangled their concealed carry lawsuit out of San Diego, the NRA/CRPA turned its sights on Orange County California and sued the Sheriff of that County demanding that she issue concealed carry permits to anyone who says he or she wants to carry a concealed handgun and gives “self-defense” as the reason for wanting a permit. The NRA/CRPA filed a motion for a preliminary injunction against the Sheriff and lost. The denial of the preliminary injunction in McKay v. Hutchens is now on appeal and is the second of the two lawsuits the NRA/CRPA wants to be decided before the 9th Circuit takes on Mr. Nichols' Open Carry appeal.

The fundamental problem with the NRA/CRPA concealed carry lawsuits, shared by every other concealed carry lawsuit which has lost in every Federal Court of Appeals, is that all nine justices of the US Supreme Court in the 2008 landmark decision on the Second Amendment concluded that concealed carry can be banned.

This fact hasn't escaped the attention of every Federal Court of Appeals which have upheld prohibitions on concealed carry. Even the 7th Circuit Court of Appeals which struck down the State of Illinois ban on carrying openly or concealed firearms in public said that Illinois could enact legislation prohibiting the carrying of concealed firearms in public and gave the state six months to enact new legislation.

Another of the many problems with the NRA/CRPA concealed carry lawsuits is that if they are successful, it would enable permit holders in San Diego and Orange County to carry loaded concealed weapons in many state and local government buildings, places which the US Supreme Court said are “sensitive places” where weapons can be prohibited.

Ironically, should the NRA/CRPA succeed, permit holders would be allowed to carry loaded, concealed handguns in gun free school zones. Gun free school zones which the NRA/CRPA supports.

Mr. Nichols, in his reply to the NRA/CRPA motion to stay his case pointed out to the 9th Circuit Court of Appeals that the laws Mr. Nichols is challenging apply only to those parts of the State of California where licensed hunters are exempt from the bans. If successful, neither Mr. Nichols nor anyone else would be able to openly carry a loaded or unloaded firearm in any government building or in any gun free school zone except where allowed to by law.

Mr. Nichols closed his response to the NRA/CRPA motion to stay his case by observing that if Mr. Nichols is unable to prevail in his lawsuit which has a far more limited scope then the NRA/CRPA certainly cannot win and perhaps it should be their concealed carry appeals which are stayed pending the decision in Mr. Nichols appeal.

Mr. Nichols Open Carry lawsuit is now fully briefed. It will now be assigned to a panel of three judges, randomly picked, who will decide whether or not to hold oral arguments or take the case under submission for a decision.

If the NRA/CRPA motion to stay Nichols v. Brown is denied, the NRA/CRPA has asked the 9th Circuit Court of Appeals to participate in oral arguments.

Mr. Nichols has objected saying that the NRA/CRPA had not given a single example of how California Attorney General Harris has incompetently argued her case in opposition to Mr. Nichols Open Carry lawsuit.

If the NRA/CRPA is allowed to participate in oral arguments then Mr. Nichols will be standing alone against Attorney General Harris and the NRA/CRPA as the sole defender of your Second Amendment right to openly carry firearms in public for the purpose of self-defense.

Mitch
09-20-2013, 3:35 PM
:popcorn:

knowyourrights
09-20-2013, 3:36 PM
Im waiting also to see what can of worms I opened up from the Nichols haters...LOL...

Tincon
09-20-2013, 5:02 PM
I don't hate Nichols at all. I'm sure his heart is in the right place. But Nichols' lawsuit is ill-conceived and not in the best interests of CA gun owners. Quite frankly he does not know what he is doing and he is getting underfoot of the people who do. So I support any effort to have the Nichols case disposed of on procedural grounds before it can do any further harm.

flyonwall
09-20-2013, 5:15 PM
I don't agree with Nichols, but his suit is solid, and I am embarrassed by any action by the NRA/crpa that would stall justice. Their own cases are faulty and risky (decided prior to open carry ban and subject to remand) so seeking to slow down any attack is atrocious on their part. Nichols case does no harm and follows the same stupid ploy of going the pi route they did in Hutchens. Richards, Peruta, Hutchens and Nichols are all based on incomplete records and incomplete law. Reminds me of the saying about glass houses.

Sakiri
09-20-2013, 5:33 PM
I have a feeling that that's the same moron who blocked comments on his facebook page after craptalking Calguns Foundation and getting told by his followers that they support CGF, even if he doesn't.

He ended up posting something incredibly immature and locked PMs and comments out.

Acted like a baby. It was amusing, and I find it incredibly difficult to take anyone that acts like that seriously.

sholling
09-20-2013, 6:59 PM
I will be contacting the NRA and raising h*** with them for this betrayal of its membership and I urge every other NRA member to do the same. Overturning both the ban on openly carrying loaded firearms in public and overturning the California Gun Free School Zone Act of 1995 are not drastic - they should be the goal of any gun rights organization. The problem is that the statists within the "gun rights" movement want tight government control and licensing of our rights, and a right that requires a license to exercise is by definition a privilege that can and will eventually be regulated away again. The NRA will get no more of my money until they fire those involved in this surrender.

Gray Peterson
09-22-2013, 12:49 AM
I will be contacting the NRA and raising h*** with them for this betrayal of its membership and I urge every other NRA member to do the same. Overturning both the ban on openly carrying loaded firearms in public and overturning the California Gun Free School Zone Act of 1995 are not drastic - they should be the goal of any gun rights organization. The problem is that the statists within the "gun rights" movement want tight government control and licensing of our rights, and a right that requires a license to exercise is by definition a privilege that can and will eventually be regulated away again. The NRA will get no more of my money until they fire those involved in this surrender.

http://www.opencarry.org/wp-content/uploads/2012/09/opencarrymap-Aug1-2013.png

Only 12 or 13 states are fully "free" in the open carry field, and only 4 states are "free" in the concealed carry field.

Under your logic, Marion Hammer was a statist for pushing for shall-issue concealed carry licensing in 1987 in Florida, replacing the may-issue system of licensing and putting in a state preemption provision. Before, there were only a few hundred carriers, and OC was rarely practiced.

Now there is over a million carriers in Florida alone. (http://www.freshfromflorida.com/content/download/7502/118869/cw_active.pdf)

sholling
09-22-2013, 11:20 AM
Only 12 or 13 states are fully "free" in the open carry field, and only 4 states are "free" in the concealed carry field.
It's a nice start, but not near enough and we need to keep working to free more. Fortunately we're slowly winning that battle despite the best efforts of the rights must be licensed and tightly regulated activists within the 2nd Amendment rights movement. It's that kneejerk Progressive drive to regulate anything and everything because in their minds nobody can be trusted to do anything right without minutely detailed oversight and a permission slip. I'll try to explain this one more time - any right that requires a permission slip is by definition a privilege that can be regulated out of existence or nearly nearly out of existence at some future date.

Under your logic, Marion Hammer was a statist for pushing for shall-issue concealed carry licensing in 1987 in Florida, replacing the may-issue system of licensing and putting in a state preemption provision. Before, there were only a few hundred carriers, and OC was rarely practiced.
Apples and oranges nonsense! My problem is with the ego driven Quislings within the movement that actively work to sabotage open carry court cases. I prefer to CC but it is beyond stupid and borders on traitorous to try to sabotage the legal challenges of OC activists. It would be like a gay rights group filing an amicus brief in opposition to gay marriage cases because a few leaders and their lawyer personally prefer living in civil unions.

How many court cases have successfully resulted in a US court of appeals ordering a state to go shall-issue CCW? Don't say Moore because that was "just some form of carry" and the court left open the possibility of anything from may-issue to constitutional carry and left it up to the legislature to decide which they preferred. If they had a string of shall-issue wins at the CA level then the 'shall-issue licensed concealed carry or bust' crowd might have a 'my way or the highway' argument but they don't. They are consistently losing their challenges to may-issue licensing schemes yet they still actively sabotage the cases of others because they choose to try a different approach, or because they aren't part of the right rights club.

jeremiah12
09-22-2013, 12:21 PM
Personally, I believe we need to focus on CC and not OC for lots of reasons. The open carry crowd scared many of people who were neutral or the casual gun owners who buy the line from the anti's that we need reasonable gun control measures. I know many people in these categories and they were completely happy with the banning of OC.

Logically, I believe it is easier to make a case for CC over OC. Unfortunately, politics does not run on logic. The threat of OC becoming legal by court mandate might get our state politicians to reconsider shall issue CC, though I doubt it.

In any case, the NRA should not be arguing against this case. If they do not like it, stay out of it. I realize it does not fit with their strategy but this is America and every citizen has a right to file a suit against a law they feel is unjust.

Southwest Chuck
09-22-2013, 3:20 PM
Personally, I believe we need to focus on CC and not OC for lots of reasons. The open carry crowd scared many of people who were neutral or the casual gun owners who buy the line from the anti's that we need reasonable gun control measures. I know many people in these categories and they were completely happy with the banning of OC.

Logically, I believe it is easier to make a case for CC over OC.
..........


It doesn't matter what you believe or what might be easier to justify. It's what SCOTUS ultimately defines the Right to be. If SCOTUS takes the same look at originalism, as in Heller, and what the founders understood the right to be at the time, then OC is a slam dunk IMO. Personally, I believe Open Carry to be the right. I would prefer to have the freedom to both OC & CC too, depending on the circumstances. Again though, it doesn't matter what I believe or prefer either. Until that issue is settled, it's all speculation on our part. All I can say is that it better get settled with the current make-up of the court if we're going to have any chance at a favorable definition.

Originally Posted by sholling
I will be contacting the NRA and raising h*** with them for this betrayal of its membership and I urge every other NRA member to do the same. Overturning both the ban on openly carrying loaded firearms in public and overturning the California Gun Free School Zone Act of 1995 are not drastic - they should be the goal of any gun rights organization.


It might to wise to raise the point that they (NRA) was opposed to bringing Heller also, and actively tried to scuttle that case too. Where we we be today without Heller and McDonald?

Edited to Add:

Remember if OC is declared to be the right, then we will get CC to satisfy the politicians and the soccer moms. Remember what happened in Ohio?

wolfwood
09-22-2013, 4:20 PM
this is Nichols Opening Brief

http://www.scribd.com/doc/170116352/NIchols-Opening-Brief

this is the Answering Brief


http://www.scribd.com/doc/170116603/Nichols-Answering-Brief

http://www.scribd.com/doc/170117898/Mr-Michel-Amicus-Nichols

sholling
09-22-2013, 4:44 PM
I will be on the phone to the CPRA Monday raising h*** with them as well.

Kestryll
09-22-2013, 4:58 PM
Meanwhile I'll be calling them telling them I appreciate their efforts to get real litigation through before Nichols screws it up for everyone.
I'll probably even send them some money.

mrlonewolf
09-22-2013, 5:38 PM
^^^^ This.

knowyourrights
09-22-2013, 6:14 PM
Meanwhile I'll be calling them telling them I appreciate their efforts to get real litigation through before Nichols screws it up for everyone.
I'll probably even send them some money.

The problem is that they keep trying to get permission slips to carry and always fail and Nichols has the balls to take them on alone to bring back the only Constitutionally way to carry and that is open carry. The supremes have said it many times that states can restrict concealed carry.... so i pray Nichols prevails big time and brings shame to those who go against him. This is for all of us, not just him.......

sholling
09-22-2013, 8:41 PM
Meanwhile I'll be calling them telling them I appreciate their efforts to get real litigation through before Nichols screws it up for everyone.
I'll probably even send them some money.
That's up to you, but the only legitimate reason for CRPA and the NRA to try beat Nichols OC case to the court of appeals is with their own OC cases. If they aren't going to back a second (OC) path to right to bear then they need to stop playing shot blocker. As the old saying goes they need to "lead, follow, or get out of the way".

Gray Peterson
09-23-2013, 11:19 AM
Chuck Michel made the right call trying to get the case stayed. Shocking, because there's no love lost between Chuck and myself, but he's on point, correct, and accurate in his assessment of Mr. Nichols Dunning-Krueger problems.

Untamed1972
09-23-2013, 12:09 PM
Another of the many problems with the NRA/CRPA concealed carry lawsuits is that if they are successful, it would enable permit holders in San Diego and Orange County to carry loaded concealed weapons in many state and local government buildings, places which the US Supreme Court said are “sensitive places” where weapons can be prohibited.

Ironically, should the NRA/CRPA succeed, permit holders would be allowed to carry loaded, concealed handguns in gun free school zones. Gun free school zones which the NRA/CRPA supports.

Mr. Nichols, in his reply to the NRA/CRPA motion to stay his case pointed out to the 9th Circuit Court of Appeals that the laws Mr. Nichols is challenging apply only to those parts of the State of California where licensed hunters are exempt from the bans. If successful, neither Mr. Nichols nor anyone else would be able to openly carry a loaded or unloaded firearm in any government building or in any gun free school zone except where allowed to by law.

I guess I'm missing something. Of what value is a lawsuit to gain the "right" of open carry, but only for areas where it's basically legal already (rural areas where hunting and shooting are already legal) and does NOTHING to provide a viable means for self defense in public of the vast majority of this states population which live in urban areas?

stix213
09-23-2013, 1:13 PM
This should not come as any surprise. The NRA/CRPA in its appeal of a concealed carry lawsuit, Peruta v. San Diego, argued extensively to uphold California's 1967 ban on openly carrying loaded firearms in public, a ban which the NRA supported in 1967 and still supports today. In its appeal, the NRA/CRPA “warned” the court of appeals that if they don't get “shall-issue” concealed carry permits then the end result would be overturning both the ban on openly carrying loaded firearms in public as well as overturning the California Gun Free School Zone Act of 1995.


This is a flat out lie. The NRA never took any position in support of the recent open carry ban.


Having so badly mangled their concealed carry lawsuit out of San Diego, the NRA/CRPA turned its sights on Orange County California and sued the Sheriff of that County demanding that she issue concealed carry permits to anyone who says he or she wants to carry a concealed handgun and gives “self-defense” as the reason for wanting a permit. The NRA/CRPA filed a motion for a preliminary injunction against the Sheriff and lost. The denial of the preliminary injunction in McKay v. Hutchens is now on appeal and is the second of the two lawsuits the NRA/CRPA wants to be decided before the 9th Circuit takes on Mr. Nichols' Open Carry appeal.


More lies. The NRA didn't file the San Diego lawsuit. They took if over when the original filers turned it into a disaster so they could do at least some damage control.

stix213
09-23-2013, 1:23 PM
The problem is that they keep trying to get permission slips to carry and always fail and Nichols has the balls to take them on alone to bring back the only Constitutionally way to carry and that is open carry. The supremes have said it many times that states can restrict concealed carry.... so i pray Nichols prevails big time and brings shame to those who go against him. This is for all of us, not just him.......

The current system is "permission slips." You're not asking permission if they are forced to issue to the non-criminal and non-crazy.

The SCOTUS has not made any post-heller statements on the legality of concealed carry when open carry is also banned, which you seem to be ignoring.

If you get your wish and open carry is the only constitutional way, you'll see "no guns" signs pop up in most businesses, you'll see a law passed making it a crime to carry a gun into a business with a "no guns" sign, and you'll still have to avoid gun free zones. Basically you'll witness the end of the carry debate with a symbolic win yet a nearly complete practical failure. We should let the CCW cases play out before attempting to overturn the OC ban.

Mulay El Raisuli
09-23-2013, 1:45 PM
I guess I'm missing something. Of what value is a lawsuit to gain the "right" of open carry, but only for areas where it's basically legal already (rural areas where hunting and shooting are already legal) and does NOTHING to provide a viable means for self defense in public of the vast majority of this states population which live in urban areas?


I must be missing something as well. OTOH, our AG summarizes Nichols' efforts as, "Nichols is waging a legal war to establish a broad constitutional right for people to carry firearms openly in almost all public places in California..." INAL though, so maybe his efforts will result in this at the end of the day?


Meanwhile I'll be calling them telling them I appreciate their efforts to get real litigation through before Nichols screws it up for everyone.
I'll probably even send them some money.


My biggest worry with any case litigated by Mr Nichols is that he'll screw it up somehow. That said, I think it very wrong for the NRA/CRPA to attack this case. For at base, Nichols is completely correct, concealed carry is not the Constitutionally protected method of "and bear," nor is any court (state or Federal) ever going to say that it is. If the NRA/CRPA want to make sure things aren't screwed up, the ONLY proper approach, after (if) their Motion to join in is granted is to offer up a "carefully crafted" argument in parallel. I.E., an argument that affirms that Open Carry is the Protected Right. Anything else would be a betrayal of the cause.


It's a nice start, but not near enough and we need to keep working to free more. Fortunately we're slowly winning that battle despite the best efforts of the rights must be licensed and tightly regulated activists within the 2nd Amendment rights movement. It's that kneejerk Progressive drive to regulate anything and everything because in their minds nobody can be trusted to do anything right without minutely detailed oversight and a permission slip. I'll try to explain this one more time - any right that requires a permission slip is by definition a privilege that can be regulated out of existence or nearly nearly out of existence at some future date.


Apples and oranges nonsense! My problem is with the ego driven Quislings within the movement that actively work to sabotage open carry court cases. I prefer to CC but it is beyond stupid and borders on traitorous to try to sabotage the legal challenges of OC activists. It would be like a gay rights group filing an amicus brief in opposition to gay marriage cases because a few leaders and their lawyer personally prefer living in civil unions.

How many court cases have successfully resulted in a US court of appeals ordering a state to go shall-issue CCW? Don't say Moore because that was "just some form of carry" and the court left open the possibility of anything from may-issue to constitutional carry and left it up to the legislature to decide which they preferred. If they had a string of shall-issue wins at the CA level then the 'shall-issue licensed concealed carry or bust' crowd might have a 'my way or the highway' argument but they don't. They are consistently losing their challenges to may-issue licensing schemes yet they still actively sabotage the cases of others because they choose to try a different approach, or because they aren't part of the right rights club.


Phrased beautifully.


Personally, I believe we need to focus on CC and not OC for lots of reasons. The open carry crowd scared many of people who were neutral or the casual gun owners who buy the line from the anti's that we need reasonable gun control measures. I know many people in these categories and they were completely happy with the banning of OC.

Logically, I believe it is easier to make a case for CC over OC. Unfortunately, politics does not run on logic. The threat of OC becoming legal by court mandate might get our state politicians to reconsider shall issue CC, though I doubt it.

In any case, the NRA should not be arguing against this case. If they do not like it, stay out of it. I realize it does not fit with their strategy but this is America and every citizen has a right to file a suit against a law they feel is unjust.


The reason we should focus on OC is because that's the only way we'll any kind of Constitutionally protected carry outside the home. CC just isn't going to do that. That's also why no kind of case (logical or not) can be made for CC over OC.


The Raisuli

Mulay El Raisuli
09-23-2013, 1:57 PM
The current system is "permission slips." You're not asking permission if they are forced to issue to the non-criminal and non-crazy.

The SCOTUS has not made any post-heller statements on the legality of concealed carry when open carry is also banned, which you seem to be ignoring.

If you get your wish and open carry is the only constitutional way, you'll see "no guns" signs pop up in most businesses, you'll see a law passed making it a crime to carry a gun into a business with a "no guns" sign, and you'll still have to avoid gun free zones. Basically you'll witness the end of the carry debate with a symbolic win yet a nearly complete practical failure. We should let the CCW cases play out before attempting to overturn the OC ban.


No, it's still a a permission slip. When I can carry w/o notifying The State at all, THAT is when I have freedom.

SCOTUS hasn't made an "post-heller" statements such as you'd like simply because everyone (except Nichols) has tried the sure-to-fail strategy of trying to make CCW the Protected Right.

But, why should SCOTUS say anything at all? The Circuits have followed the Heller Ruling no problem. That's why all our efforts have failed.

I do not share your thinking that a victory for LOC will doom the Right. Have you forgotten what happened in Ohio?


The Raisuli

Untamed1972
09-23-2013, 2:27 PM
No, it's still a a permission slip. When I can carry w/o notifying The State at all, THAT is when I have freedom.

SCOTUS hasn't made an "post-heller" statements such as you'd like simply because everyone (except Nichols) has tried the sure-to-fail strategy of trying to make CCW the Protected Right.

But, why should SCOTUS say anything at all? The Circuits have followed the Heller Ruling no problem. That's why all our efforts have failed.

I do not share your thinking that a victory for LOC will doom the Right. Have you forgotten what happened in Ohio?


The Raisuli

But it also doesn't change the fact that it's also unconstitutional for anylevel of Gov't to create and then issue any license or permit in an arbitrary and caprisious manner. If they want to issue permits for a CCW it must be done so by clearly objective criteria with little to no discretion allowed on the part of the issuing authority.

Kestryll
09-23-2013, 2:33 PM
That's up to you, but the only legitimate reason for CRPA and the NRA to try beat Nichols OC case to the court of appeals is with their own OC cases. If they aren't going to back a second (OC) path to right to bear then they need to stop playing shot blocker. As the old saying goes they need to "lead, follow, or get out of the way".

Wrong.

One solid reason wpuld be that Nichols case is so fundamentally flawed that if it is lost as badly as expected prior to other cases being decided it sets precedence that either destroys other cases or nullifies the them.
The legitimate reason is because Nichols case is not sound and stands to damage all of us.


But what the hell, he's 'doing something' right, who cares if it's burning the house down it's 'something'.

Gray Peterson
09-23-2013, 4:35 PM
For at base, Nichols is completely correct, concealed carry is not the Constitutionally protected method of "and bear," nor is any court (state or Federal) ever going to say that it is.

.....

The reason we should focus on OC is because that's the only way we'll any kind of Constitutionally protected carry outside the home.

"In the clothing or in the pocket" is not open carry. There was no concealment bans in existence in 1791 in the states, and more importantly, in the Ohio territory. 1813 is not Founding era.

Gray Peterson
09-23-2013, 4:43 PM
Don't say Moore because that was "just some form of carry" .

The citation of James Bishop's "Hidden or on the Hip" (http://www.lawschool.cornell.edu/research/cornell-law-review/upload/Bishop-final.pdf) puts that to an untruth in Moore. A right cannot be discretionary on the whims of a third party (government or appointed by the government), any more than a pre-viability abortion could be taken out of the hands of the choice of the pregnant woman.

Every circuit has done a variant of this:

There simply is no need in this litigation to break ground that our superiors have not tread. To the degree that we push the right beyond what the Supreme Court in Heller declared to be its origin, we circumscribe the scope of popular governance, move the action into court, and encourage litigation in contexts we cannot foresee. This is serious business. We do not wish to be even minutely responsible for some unspeakably tragic act of mayhem because in the peace of our judicial chambers we miscalculated as to Second Amendment rights. It is not far-fetched to think the 476*476 Heller Court wished to leave open the possibility that such a danger would rise exponentially as one moved the right from the home to the public square. US v. Masciandaro, 4th Circuit Judge J. Harvie Wilkinson.

The avoidance and cowardice of the various US Court of Appeals with the exception of the 7th Circuit (9th is an unknown quantity) is well documented on the issue of 2A. Both the 4th Circuit and the 3rd Circuit ruled on discretionary licensing statutes that were may-issue OC/CC licensing (MD and NJ). The rest are engaging in avoidance doctrines because they can't generally stand the idea of filthy joe citizen carrying.

flyonwall
09-23-2013, 8:36 PM
Since kestryll and gray are so convinced Nichols is wrong, Nichols should sleep well tonight knowing he has it in the bag!!!!
Thank you Charles for fighting a great fight, moving the ball forward and working on behalf us all.

Tincon
09-23-2013, 9:26 PM
Since kestryll and gray are so convinced Nichols is wrong.

Add me to that list. Kinda funny that we all agree Nichol's case is a loser (when we don't all agree on much else), but you think it's a winner...

LoneYote
09-23-2013, 10:50 PM
Funny... just 10 minutes of browsing these forums and it seems "we" are filing a lot of suits that are complete losers and destined to fail and harm all of us. It makes me wonder if there is any hope at all.....

Mulay El Raisuli
09-24-2013, 9:56 AM
But it also doesn't change the fact that it's also unconstitutional for anylevel of Gov't to create and then issue any license or permit in an arbitrary and caprisious manner. If they want to issue permits for a CCW it must be done so by clearly objective criteria with little to no discretion allowed on the part of the issuing authority.


Completely true. But, what makes you think that non-arbitrary & non-capricious are going to equal good for the Right? Especially when the license sought is for something that is NOT Constitutionally protected? Which, BTW, CCW is not.

More on this below.


Wrong.

One solid reason wpuld be that Nichols case is so fundamentally flawed that if it is lost as badly as expected prior to other cases being decided it sets precedence that either destroys other cases or nullifies the them.
The legitimate reason is because Nichols case is not sound and stands to damage all of us.


But what the hell, he's 'doing something' right, who cares if it's burning the house down it's 'something'.


My worry with Nichols is that he'll screw up procedurally, or that he'll argue so incompetently that he'll lose. BUT, his case is not "fundamentally flawed" by any means. For that to be true, his base argument (that Open Carry is the method of Constitutionally protected carry & that Concealed Carry is not) would have to be flawed. It isn't.

This isn't speculation. Courts throughout the land have quoted the same section of Heller that I do & then shot us down. The 10th Circuit (in Peterson) even went so far as to tell us that we might have won if the case were about Open Carry.

Now, it's likely that his overweening hubris won't allow him to accept our help in the matter. But maybe (just maybe) if we can bring ourselves to accept the reality that he's right, we can talk him into changing his mind?


"In the clothing or in the pocket" is not open carry. There was no concealment bans in existence in 1791 in the states, and more importantly, in the Ohio territory. 1813 is not Founding era.


Quite so! But, by the time the 14A had come about, things had changed. The Heller court noted with approval this change. Whether they should have or not is beside the point. They did & now we have to live with that. There are two things to keep in mind then.

The first is that CCW isn't going to be the Right. LOC is going to be the Right (unless we screw that up). All we have to do is accept that & work to achieve this.

The second is to consider the future. We went from "in the clothing or in the pocket" to (in effect) 'hidden is sneaky & un-manly, but open is good' (but with NO PERMIT REQUIRED) in just a few decades. Now our effort is to make permits OK, as long as they're issued "non-arbitrarily" & with "reasonable" restrictions.

"Arbitrary" is simple enough. If you make EVERYBODY do it, then it isn't arbitrary. So, if The State make EVERYBODY take a 2-week class to get certified, we'd be OK with that. Right? And if we make EVERYBODY take a 1-week refresher course every year, we'd be OK with that. Right? And if The State makes EVERYBODY buy insurance, we'd be OK with that, too. Right?

But lets look at "reasonable." That's just a bit amorphous. The above could all be (and is!) regarded as reasonable by some people. Who's to say that in 150 years (when DiFi's great granddaughter is in the Senate) what "reasonable" will be defined as? Could it "reasonable" to require that future gunnies provide statements from their neighbors & their doctors to show that they're "reasonable" people? My crystal ball is a bit cloudy when it comes to how the future will define "reasonable" when it comes to the 2A. How's everybody else's?

My point is that we've lost too much ground already. "In the clothing or in the pocket" OR open on my hip SHOULD be the Minimum Constitutional Standard. It won't be. That's reality. "No permit required" is still on the table for Open Carry. We should NOT be assisting our enemies in taking it off the table. Because having at least one manner of carry that The State has no say in is a societal good. Both now, & for our progeny.


The citation of James Bishop's "Hidden or on the Hip" (http://www.lawschool.cornell.edu/research/cornell-law-review/upload/Bishop-final.pdf) puts that to an untruth in Moore. A right cannot be discretionary on the whims of a third party (government or appointed by the government), any more than a pre-viability abortion could be taken out of the hands of the choice of the pregnant woman.

Every circuit has done a variant of this:

There simply is no need in this litigation to break ground that our superiors have not tread. To the degree that we push the right beyond what the Supreme Court in Heller declared to be its origin, we circumscribe the scope of popular governance, move the action into court, and encourage litigation in contexts we cannot foresee. This is serious business. We do not wish to be even minutely responsible for some unspeakably tragic act of mayhem because in the peace of our judicial chambers we miscalculated as to Second Amendment rights. It is not far-fetched to think the 476*476 Heller Court wished to leave open the possibility that such a danger would rise exponentially as one moved the right from the home to the public square. US v. Masciandaro, 4th Circuit Judge J. Harvie Wilkinson.

The avoidance and cowardice of the various US Court of Appeals with the exception of the 7th Circuit (9th is an unknown quantity) is well documented on the issue of 2A. Both the 4th Circuit and the 3rd Circuit ruled on discretionary licensing statutes that were may-issue OC/CC licensing (MD and NJ). The rest are engaging in avoidance doctrines because they can't generally stand the idea of filthy joe citizen carrying.


And given this reality, why on earth should we give our enemies the gift of deciding what is "reasonable" when it comes to ANY part of the Right? Would not the Right be better advanced & protected if we could cement in "shall not be infringed" when it comes to at least SOME part of the Right?

And would it really be so bad if only LOC were the "shall not be infringed" part of "and bear"? Could 626.9 survive? Could 'no carry' in our cars survive? We don't seem to want to use the "magic wish granting" power of the Commerce Clause to attack the Safe Gun Act here in the PRK, but if my Right to carry a pink Glock "shall not be infringed," how would the PRK justify a prohibition on me buying one? Having 'outside the home' COMPLETELY locked in, with a manner that The State (much less this one) COULD NOT have a say in gives us leverage to go after all kinds of nonsense.

The only argument against it is that CCW would be unprotected. Well, and again, CCW isn't going to be protected. Just ain't gonna happen. But so what? Does that automatically mean insane rules will be the norm for CCW? I grant the possibility does exist. But the Ohio Experience tells us that this is unlikely. Because (IF we have a manner of carry that allows us to thumb our noses at Sacramento) we would have leverage there as well.

In short, we lose nothing (that we haven't already lost) & would gain a great deal if Nichols wins. If he won't allow us to work with him, we should work alongside him. We should NOT be working against him.

The Raisuli

flyonwall
09-24-2013, 10:29 AM
Add me to that list. Kinda funny that we all agree Nichol's case is a loser (when we don't all agree on much else), but you think it's a winner...

And with CGF on such a winning streak?

I actually don't agree with Nichols or Hutchens- I think they are bad attempts at a shortcut.

For that matter, I would say the same about Richards and Peruta. I think when trudging new ground it is important to be thorough and give the reviewing court something to work with.

These cases have no discovery and no expert declarations upon which the court could make new law. I think that is a mistake across the board, but except for Hutchens (which is about as bad as almost every CGF suit, so maybe Chuck is starting to lose it) I support all of these cases that seek to establish our rights.

It is kind of like what they say about our system- democracy is the worst form of government except all the others that have been tried.

Show me something better and I am with you, but Nichols has done a pretty fine job of presenting his case for an ostracized non-lawyer.

sholling
09-24-2013, 10:42 AM
My worry with Nichols is that he'll screw up procedurally, or that he'll argue so incompetently that he'll lose. BUT, his case is not "fundamentally flawed" by any means. For that to be true, his base argument (that Open Carry is the method of Constitutionally protected carry & that Concealed Carry is not) would have to be flawed. It isn't.

This isn't speculation. Courts throughout the land have quoted the same section of Heller that I do & then shot us down. The 10th Circuit (in Peterson) even went so far as to tell us that we might have won if the case were about Open Carry.

Now, it's likely that his overweening hubris won't allow him to accept our help in the matter. But maybe (just maybe) if we can bring ourselves to accept the reality that he's right, we can talk him into changing his mind?
I agree with you on this. If the "Right People" were worried about a "not the Right People" attorney screwing up an OC case then they should have either beaten him to the court house with their own unlicensed LOC case or offered to make it a team effort instead of just playing shot blocker. I truly wish it were the SAF and/or NRA leading this charge or at least partnering with Nichols to make sure his case is a winner but it's not the flavor of carry that the "Right People" want and it's just never going to happen.

And given this reality, why on earth should we give our enemies the gift of deciding what is "reasonable" when it comes to ANY part of the Right? Would not the Right be better advanced & protected if we could cement in "shall not be infringed" when it comes to at least SOME part of the Right?
You're bumping against the liberal/Progressive prejudice of our "Right People" that everything may and must be tightly regulated and licensed including rights, as long as those rights are readily available to most people after jumping through a few hoops. You're also asking them to short circuit 30-100 years of future 2nd Amendment litigation jump straight to Win and that's not going to happen.

flyonwall
09-24-2013, 10:55 AM
There are no 'right people' and if you read what Nichols has done, it is quite impressive. He is playing a very good game of chess. Chuck's attempt to intervene is misguided and the potentially harmful act. His Hutchens case could bring us very bad law even before we get a decision on peruta.
Peruta and Richards could bring us very bad law or a nordyke delay because those cases were based upon the ability to open carry.
He (chuck) should have stuck with Peruta and waited patiently instead of risking more bad decisions.
The 9th has a lot to work with now- more than 7 cases dealing with the right to carry in this state, and we need to let them work. Going by other panel time to decisions, it is a bout 11 months, so we should have something on Richards or Peruta by the end of the year.
if SCOTUS is waiting for the 9th to finish, or the 9th decided to kick the can and wait for one of the cases that has experts and discovery, we are still set back a year.

Mulay El Raisuli
09-25-2013, 7:38 AM
I agree with you on this. If the "Right People" were worried about a "not the Right People" attorney screwing up an OC case then they should have either beaten him to the court house with their own unlicensed LOC case or offered to make it a team effort instead of just playing shot blocker. I truly wish it were the SAF and/or NRA leading this charge or at least partnering with Nichols to make sure his case is a winner but it's not the flavor of carry that the "Right People" want and it's just never going to happen.


I've been told that my fears about this (that unlicensed LOC is not desired by "the right people") are in error. I am finding it harder & harder to believe that. It appears that not only is unlicensed LOC not desired, but that the NRA/CRPA is actually willing to work against the very idea of unlicensed LOC.


You're bumping against the liberal/Progressive prejudice of our "Right People" that everything may and must be tightly regulated and licensed including rights, as long as those rights are readily available to most people after jumping through a few hoops. You're also asking them to short circuit 30-100 years of future 2nd Amendment litigation jump straight to Win and that's not going to happen.


I'm not quite ready to sign on to that. But I'm not far from it either. The actions of the NRA/CRPA here will tell the tale.


The Raisuli

Tincon
09-25-2013, 11:14 AM
There are no 'right people' and if you read what Nichols has done, it is quite impressive.

Nonsense, this isn't "impressive" at all, it's garbage: http://michellawyers.com/nichols-v-brown/

Bruce
09-25-2013, 11:53 AM
Im waiting also to see what can of worms I opened up from the Nichols haters...LOL...

You get off doing that do you Mr. Nichols? :rolleyes:

ToldYouSo
09-26-2013, 11:30 PM
Both parties have filed an objection to the CRPA motion to become an amicus and to stay the appeal.

http://michellawyers.com/wp-content/uploads/2012/11/Nichols-v.-Brown_Response-of-Kamala-Harris-to-Motion-of-CRPA-Foundation-for-Leave-to-File-Amicus-Curiae-Brief-and-to-Participate-in-Oral-Argument.pdf

http://michellawyers.com/wp-content/uploads/2012/11/Nichols_Plaintiff-Appellant-Nichols-Reply-to-Motion-of-CRPA-Foundation-for-Leave-to-File-Amicus-Brief-and-to-Participate-In-Oral-Argument.pdf

Sakiri
09-27-2013, 1:05 AM
Both parties have filed an objection to the CRPA motion to become an amicus and to stay the appeal.

http://michellawyers.com/wp-content/uploads/2012/11/Nichols-v.-Brown_Response-of-Kamala-Harris-to-Motion-of-CRPA-Foundation-for-Leave-to-File-Amicus-Curiae-Brief-and-to-Participate-in-Oral-Argument.pdf

http://michellawyers.com/wp-content/uploads/2012/11/Nichols_Plaintiff-Appellant-Nichols-Reply-to-Motion-of-CRPA-Foundation-for-Leave-to-File-Amicus-Brief-and-to-Participate-In-Oral-Argument.pdf

Does this mean that the AG wants the case to go forward? Because if that's the case, it's because she just wants to see it shot down.

The only thing I can see is that it'll come back to bite us in the butt. While my hope would be that SCOTUS rules LOC is the protected right, and that shall issue concealed carry(because of the paranoid public freaking out seeing people carry guns, they'd want us to hide them if at all possible since they can't ban us from carrying them), I don't see it happening, mostly because of the Democratic party in general. They appear to hate firearms in all ways, except when they're pointing them at Joe Citizen.

That said, in my honest opinion, the "reasonable" restrictions should be "if you can't buy a gun legally, you can't carry one". Making it any less restrictive requires making gun acquisition legally less restrictive. I personally prefer if violent offenders and criminally insane folks don't get guns or carry them but that's just me.

ToldYouSo
09-27-2013, 1:37 AM
I just noticed that Chuck Michel has both Attorney General Harris' Answering Brief and the Reply Brief online as well. The Reply Brief was incorrectly entered by Chuck Michel as having been filed on September 4th even though it is dated as having been filed on September 17th.

Here is the link to the Answering Brief by the Attorney General:
http://michellawyers.com/wp-content/uploads/2012/11/Nichols-v.-Brown_Brief-of-Respondent-California-Attorney-General-Kamala-D.-Harris1.pdf

Here is the link to the Reply Brief:
http://michellawyers.com/wp-content/uploads/2012/11/Nichols-v.-Brown_Appellants-Reply-Brief.pdf

The Reply Brief states that Attorney General Harris did not respond to 5 of the 10 issues raised on appeal.

Here is the link to the opening brief which lists the 10 issues raised on appeal:
http://michellawyers.com/wp-content/uploads/2012/11/Nichols-Opening-Brief.pdf

Not surprisingly, Harris tries to minimize the Moore v. Madigan decision in her brief. A decision which the Illinois Supreme Court unanimously affirmed eight days after she filed her brief.

That's gotta hurt.

knowyourrights
09-28-2013, 10:10 PM
Second Amendment Open Carry Opponents Meet in Houston to Lick their Wounds

For Immediate Release Charles Nichols OP/ED California Right To Carry Redondo Beach, California Contact: Press@CaliforniaRightToCarry.org 9/28/2013

The oddly named “Gun Rights Policy Conference” holds its annual meeting in Houston this weekend and, as in years past, its host, Alan Gottlieb the founder of the Second Amendment Foundation, has chosen a location where the carrying of firearms is prohibited.

The list of speakers and participating organizations is a Who's Who list of opponents of the Second Amendment Right to openly carry firearms for the purpose of self-defense.

Ironically, several of the speakers at the event are personally responsible for bringing Federal and State lawsuits which have upheld restrictions on carrying concealed handguns.

Case in point, one of the speakers on this weekend's agenda is Gene Hoffman the Chairman of the Calguns Foundation and the most vocal opponent of Open Carry in the State of California. Mr. Hoffman has a concealed carry permit issued by the state of California. The County of San Mateo California has a local ordinance regulating the carrying of firearms in its parks and recreation areas.

So Mr. Hoffman, through his attorney Donald Kilmer (also a speaker at the conference), brought a lawsuit in State Court arguing that the local ordinance is preempted by state law. The judge in the case noted that Mr. Kilmer had already lost a similar lawsuit and cited that case, Nordyke v. King in upholding the San Mateo County municipal ordinance.

Keep in mind that San Mateo County, prior to the lawsuit, had never contended that their municipal ordinance applied to persons who held valid state issued concealed carry permits. As a result of Mr. Hoffman's lawsuit, now it does and there is now a published, binding precedent for every city and county in the state to prohibit the concealed carry of weapons on their property, even for those who hold a state license.

Alan Gura is also a speaker this weekend. He, like Mr. Gottlieb and Mr. Hoffman believes that, contrary to the US Supreme Court decision in District of Columbia v. Heller, states can ban the Open Carry of firearms, particularly handguns, and having done so must issue permits to carry handguns concealed. Mr. Gura's argument is that states can choose concealed carry over open carry and, oh by the way, the only persons allowed to carry a concealed weapon must have a government issued permission slip.

Mr. Gura should be the recipient of the prize for the one man who has lost the most concealed carry lawsuits since the 2008 Supreme Court decision in Heller.

Thanks to Mr. Gura and those who sign his paycheck (e.g., Mr. Gottlieb and Mr. Hoffman), there are now binding Federal precedents upholding prohibitions on concealed carry in half the Federal Appellate districts in this country. Namely, the 1 st , 2 nd , 3 rd , 4 th , 7 th and 10 th Circuit Courts of Appeal.

Even in the 7 th Circuit Court of Appeals, which the Second Amendment Foundation hailed as a “victory” the judge who wrote the opinion said that Illinois can prohibit concealed carry because the US Supreme Court decision in Heller said that Open Carry is the right guaranteed by the Constitution and that states can prohibit concealed carry.

The US Supreme Court turned down Mr. Gura's petition to hear his case out of the 2 nd Circuit. He now has another cert petition pending in his losing case out of the 4 th Circuit and says he will be filing a cert petition in his losing case out of the 3 rd Circuit Court of Appeals.

The US Supreme Court has turned down every cert petition which involves concealed carry since its 2008 Heller decision.

Mr. Gura is now appealing another concealed carry case, this time in the Federal Court of appeals for the 8 th Circuit.

There aren't very many Federal Appellate courts left in which the opponents of Open Carry haven't lost their Quixotic quest for concealed carry.

Meanwhile, Charles Nichols the President of California Right to Carry continues his fight to restore Loaded Open Carry to California. His is the only lawsuit which argues that the US Supreme Court meant exactly what it said about Open Carry being the right guaranteed by the Constitution.

Thanks to the failed legal efforts of those meeting this weekend in Houston, Mr. Nichols has a half dozen Federal Appellate court decisions from outside the 9 th Circuit which support his Open Carry lawsuit.

knowyourrights
09-28-2013, 10:12 PM
You get off doing that do you Mr. Nichols? :rolleyes:

Why do you assume i am Charles? :rolleyes:

Sakiri
09-28-2013, 10:51 PM
Why do you assume i am Charles? :rolleyes:

Because you're so far up the guy's arse that I can see your nose when he speaks.

Seriously. Quit making the gun community look bad.

And I still contend that closing comments and PMs for a Facebook page because his followers "dare" to endorse other groups has to be the most immature thing I've ever seen.

Needs to put on his big boy pants.

fizux
09-28-2013, 11:44 PM
As a result of Mr. Hoffman's lawsuit, now it does and there is now a published, binding precedent for every city and county in the state to prohibit the concealed carry of weapons on their property, even for those who hold a state license.

I wonder what this means ...
(cut & paste from the top of the opinion)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

Big boy pants, and important facts straight.

Can you articulate one single tangible accomplishment that you have actually achieved for the benefit of 2A or Right to Carry? All I see in this press release is excessive smoke being blown.

ToldYouSo
09-29-2013, 12:52 AM
I wonder what this means ...
(cut & paste from the top of the opinion)


Big boy pants, and important facts straight.

Can you articulate one single tangible accomplishment that you have actually achieved for the benefit of 2A or Right to Carry? All I see in this press release is excessive smoke being blown.

Calguns v. San Mateo was extensively covered in another thread here. As you can see by the court docket, the county of San Mateo and the Law Center to Prevent Gun Violence filed requests to publish the decision which were granted on 8/2/2013. Word to the wise, check your facts first.

http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=1&doc_id=2021275&doc_no=A136092

Nichols v. Brown has also been extensively covered in other threads here, the gist of which is everybody hates Nichols but nobody can point to any defects in his legal arguments. Virtually everyone here has read the Heller decision to mean that states can choose concealed carry over open carry or that the Heller decision says that there is a right to carry a concealed handgun. Given the judges that were assigned to Richards and Peruta, it is foolish to believe that those two cases are going to win.

The 9th Circuit Court of Appeals doesn't care about anybody's opinion posted here. They are going to look at the case before them and issue a decision based on that and nothing else.

If you have read the appellate briefs in Nichols v. Brown then you would know that attorney general Harris has banked everything on the bet that the 9th Circuit will decide that the Second Amendment is confined to the inside of your home and that California can ban the carrying of all firearms in public (carried openly or concealed, loaded or unloaded).

Alan Gura seems to be the resident saint here, so heed his words that a ban cannot survive.

We now return you to your favorite Calguns channel - "Let's bash Nichols"

ToldYouSo
09-29-2013, 12:57 AM
Because you're so far up the guy's arse that I can see your nose when he speaks.

Seriously. Quit making the gun community look bad.

And I still contend that closing comments and PMs for a Facebook page because his followers "dare" to endorse other groups has to be the most immature thing I've ever seen.

Needs to put on his big boy pants.

Are you claiming that Calguns has not banned people from posting? Is that the most immature thing you have ever seen or is it just banning people who agree with you that you find immature?

Tincon
09-29-2013, 1:04 AM
Are you claiming that Calguns has not banned people from posting? Is that the most immature thing you have ever seen or is it just banning people who agree with you that you find immature?

Assuming, arguendo, that what you suggest is true, are you/Nichols not just as "immature" when you do the same thing?

As it happens, I'm fairly critical of CGF, and at least once of CGSSA a well. Not banned yet.

ToldYouSo
09-29-2013, 1:14 AM
Assuming, arguendo, that what you suggest is true, are you/Nichols not just as "immature" when you do the same thing?

As it happens, I'm fairly critical of CGF, and at least once of CGSSA a well. Not banned yet.

I thought knowyourrights was Nichols? Or perhaps Mulay El Raisuli, sholling, flyonwall, or wolfwood is Nichols?

Tincon
09-29-2013, 1:46 AM
I thought knowyourrights was Nichols? Or perhaps Mulay El Raisuli, sholling, flyonwall, or wolfwood is Nichols?

Any similarities between "knowyourrights" and "toldyouso"? Hmmm... In any case, you didn't answer the question.

ToldYouSo
09-29-2013, 2:21 AM
My worry with Nichols is that he'll screw up procedurally, or that he'll argue so incompetently that he'll lose. BUT, his case is not "fundamentally flawed" by any means. For that to be true, his base argument (that Open Carry is the method of Constitutionally protected carry & that Concealed Carry is not) would have to be flawed. It isn't.

Now, it's likely that his overweening hubris won't allow him to accept our help in the matter. But maybe (just maybe) if we can bring ourselves to accept the reality that he's right, we can talk him into changing his mind?

The Raisuli

The NRA reached out with a sharp stick and it would be foolish to think that either the SAF or Calguns would offer any help even after Richards and Peruta are shot down. There are still a few circuit courts they haven't lost in and a few more cert petitions to be denied. Even assuming then that they get the message that they backed the wrong horse, by then it would be too late.

The appellate briefs are online at Chuck Michel's website. The brief filed by the attorney general is almost purely procedural in nature. Unfortunately for her and those who oppose Nichols v. Brown, her procedural caselaw does not apply to "deprivations of a Constitutional right." She only wins on procedural grounds if the 9th Circuit agrees with her position that there is no Second Amendment right outside of the home and therefore no deprivation of a fundamental right.

Given that both parties opposed the CRPA motion to stay the appeal and to participate in oral arguments, I suspect the motion will be denied and there will not be any oral arguments to screw up.

Just out of curiosity, when is the last time the 9th Circuit published an opinion in a civil rights case where the losing party wasn't an attorney?

http://michellawyers.com/nichols-v-brown/

fizux
09-29-2013, 6:44 AM
Word to the wise, check your facts first.
http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=1&doc_id=2021275&doc_no=A136092

Nichols v. Brown has also been extensively covered in other threads here, the gist of which is everybody hates Nichols but nobody can point to any defects in his legal arguments. .... We now return you to your favorite Calguns channel - "Let's bash Nichols"
In your snarky response to my equally snarky comment, you should probably note what has happened since 8/2/2013. The Cal.S.Ct., with cross-motions for pub/depub before it, has requested the record from the 1st Dist. (on 9/11/2013, which it received from the other side of the building on 9/13/2013).

http://appellatecases.courtinfo.ca.gov/search/case/dockets.cfm?dist=0&doc_id=2052154&doc_no=S212356

Most counties are going to wait until the Cal.S.Ct. resolves those motions before extensively relying upon an opinion approved for publication less than 60 days ago.

To shed some light on your apparent lack of understanding why "everyone" dislikes Nichols personally, it could be that Nichols' entire public persona appears to revolve around creating an artificial conflicts with Gura/SAF/CGF/NRA/CRPA. Every press release reads like "they're bad! Look at meee!" Absent this contrived conflict, Nichols really doesn't have an independent identity. From what I can see, the "Nichols bashers" don't have an issue with Nichols fighting for LOC -- they are keying off of his message that his way is the only way, and if you are pro-CCW you must be a Nazi war criminal on the grassy knoll that wants to repeal the 2A.

I respect that there are some different factions in this community that have different methods for going about pro-2A litigation. Most factions have some form of reliable fan base, but it always looks hokey when the fan base is 2 brand new members rabidly attacking anyone who doesn't worship their deity, using identical language, and with the occasional post that was obviously meant to be sent from the other account. This doesn't just pertain to Nichols, but has been a pattern that most recently included one of Birdt's lemmings.

Just take a step back and make an honest assessment of your choice of screen name, and then look in the mirror and tell yourself with a straight face that you had every intention of acting like a mature adult on this forum. Now tell me that the petulant child mentality that Nichols exhibits in his press releases isn't a 99.44% fingerprint match for the attitude in your posts. Well, okay, I concede that there are a lot of petulant children on here, so maybe it is only an 80% match with reasonable doubt.

If you are Nichols (or some close affiliate), just man up and admit it. We can have a discussion without the identity masquerade. Personally, I am in favor of both LOC and CCW, but in some cases (given an XOR choice) CCW is strategically a better option. If you want to have a rational discussion about my reasoning, I'd be happy to do that as soon as you put down the flamethrower.

fizux
09-29-2013, 6:55 AM
As it happens, I'm fairly critical of CGF, and at least once of CGSSA a well. Not banned yet.Obviously an oversight, I'm sure. If I were in charge of anything more than my own reloading bench, I would have dropped the ban hammer on you after the first 500 times you told me I was wrong.

knowyourrights
09-29-2013, 1:13 PM
I have several items for sale and have sold an item, ask him, if im Nichols...

wolfwood
09-29-2013, 1:22 PM
bbThe NRA reached out with a sharp stick and it would be foolish to think that either the SAF or Calguns would offer any help even after Richards and Peruta are shot down. There are still a few circuit courts they haven't lost in and a few more cert petitions to be denied. Even assuming then that they get the message that they backed the wrong horse, by then it would be too late.

The appellate briefs are online at Chuck Michel's website. The brief filed by the attorney general is almost purely procedural in nature. Unfortunately for her and those who oppose Nichols v. Brown, her procedural caselaw does not apply to "deprivations of a Constitutional right." She only wins on procedural grounds if the 9th Circuit agrees with her position that there is no Second Amendment right outside of the home and therefore no deprivation of a fundamental right.

Given that both parties opposed the CRPA motion to stay the appeal and to participate in oral arguments, I suspect the motion will be denied and there will not be any oral arguments to screw up.

Just out of curiosity, when is the last time the 9th Circuit published an opinion in a civil rights case where the losing party wasn't an attorney?

http://michellawyers.com/nichols-v-brown/

that is actually not true. There is a lot of case law that says you can't file a preliminary injunction after a long time say 3.5 years into your litigation. However Nichols has three things going for him. He didn't wait a extremely long time, he never has asked for a stay and as he is a pro se litigant he is not held to the standard as a attorney so he has a very cognizable argument that although his preliminary injunction is a a little late as pro se he is entitled to "wide discretion" and he simply filed one as soon as he realized he could.

wolfwood
09-29-2013, 1:31 PM
Pro se plaintiffs in a civil
rights action must be afforded the benefit
of any doubt. See
Karim-Panahi v. Los Angeles Police Dept.
, 839 F.2d 621, 623
(9th Cir. 1988). “A pro se litigant must be given leave to amend his or her
complaint unless it is ‘absolutely clear that
the deficiencies of the complaint could
not be cured by amendment.’” Id.
(quoting Noll v. Carlson
, 809 F.2d 1446, 1448
(9th Cir. 1987), superceded by statute
, Lopez v. Smith
, 203 F.3d 1122, 1126-30
(determining that a district court retains its discretion to dismiss a pro se prisoner’s
in forma pauperis complaint with or without leave to amend under the Prisoner’s Litigation Reform Act)). “[B]efore dismissing a pro se civil rights complaint for
failure to state a claim, the district court
must give the plaintiff a statement of the
complaint's deficiencies.” Id

wolfwood
09-29-2013, 1:32 PM
while I am unfamiliar with this doctrine being applied to a appeal the underlying policy consideration is certainly applicable.

Sakiri
09-29-2013, 4:32 PM
Are you claiming that Calguns has not banned people from posting? Is that the most immature thing you have ever seen or is it just banning people who agree with you that you find immature?

Not sure where you've gotten that idea.

And no, he didn't ban people. He flat out shut them off entirely. Everyone could still read his self posturing, but couldn't reply to it. Even if he flat out asked for responses.

Think you need to pull your head out of your rear.

Sakiri
09-29-2013, 4:34 PM
Any similarities between "knowyourrights" and "toldyouso"? Hmmm... In any case, you didn't answer the question.

You could always send a PM to one of the moderators and have the IP looked up.

They'll be able to tell you if the two accounts are coming from the same place.

ToldYouSo
09-29-2013, 7:26 PM
bb

that is actually not true. There is a lot of case law that says you can't file a preliminary injunction after a long time say 3.5 years into your litigation. However Nichols has three things going for him. He didn't wait a extremely long time, he never has asked for a stay and as he is a pro se litigant he is not held to the standard as a attorney so he has a very cognizable argument that although his preliminary injunction is a a little late as pro se he is entitled to "wide discretion" and he simply filed one as soon as he realized he could.

The case law involving a delay in filing a motion for a preliminary injunction does not apply to the deprivation of a constitutional right. The district court judge said that there was no deprivation of a constitutional right and since the ban on carrying loaded firearms in public has been on the books since 1967, the failure to file the motion back then was too long of a delay.

Similarly, the district court judge said that there was no deprivation of a constitutional right to carry unloaded firearms, which went into effect of January 1st of last year (handguns) and this year (long guns).

Preliminary injunctions have been issued in cases which do not involve fundamental rights as long as ten years after the fact.

The concealed carry law in which McKay v Hutchens "potentially" challenges the good cause requirement has been on the books twice as long, since 1923.

wolfwood
09-29-2013, 8:06 PM
I am sure you are right. What do I know. I just coach wrestling for a living.

wolfwood
09-29-2013, 8:38 PM
I'm on appeal for a formerly pro se litigant in a Second Amendment case that had his prayer for relief ignored by the federal judge to dismiss him on a 12b6. Icing on the cake the State of Hawaii was a named Defendant in the action. Rather than file a Answering Brief they opted to file a amicus brief 7 days after the deadline for the Answering Brief relying on FRAP 29. They were baffled when I filed a motion to strike. That is going to the merits panel as while i think they have pulled that stunt before no one has ever called them on it. That is Hawaii for you. I am bringing ordered liberty to that place if it kills me. The legislature is actually already crafting a new CCW law due to the anticipated win in Baker v. kealoha.

ToldYouSo
09-29-2013, 8:54 PM
I am sure you are right. What do I know. I just coach wrestling for a living.

I can only go by what the district court judge said in his order denying the preliminary injunction and his citations in support of his order -> http://michellawyers.com/wp-content/uploads/2012/11/Order-Denying-Plaintiffs-Motion-for-Preliminary-Injunction.pdf

Before people start cheering the district court judge decision, both McKay v Hutchens and Jackson v. San Francisco are preliminary injunction appeals with much longer delays.

Jackson v. San Francisco waited three and a half years after filing their complaint to file a motion for a preliminary injunction and their complaint was not filed until nearly two years after the municipal ordinances went into effect. That is a five and a half year delay.

McKay v. Hutchens is only "potentially" challenging part of a law which went into effect in 1923 and Sheriff Hutchens policy in the issuance of CCWs was in effect for four years prior to Chuck Michel filing his complaint. The complaint itself was not filed until nearly a year after the lead Plaintiff was denied a CCW.

I should also point out that the initial complaint filed in Nichols v. Brown was for both a preliminary and permanent injunction. The district court judge failed to hold a preliminary injunction hearing when the initial complaint was filed as well as for the most recent motion for a preliminary injunction.

wolfwood
09-29-2013, 8:58 PM
Jackson v. San Francisco waited three and a half years after filing their complaint to file a motion for a preliminary injunction .

To paraphrase the Piszczatoski Court you are running through open doors.

ToldYouSo
09-29-2013, 8:59 PM
“[B]efore dismissing a pro se civil rights complaint for failure to state a claim, the district court must give the plaintiff a statement of the complaint's deficiencies.” Id

Which never happened in Nichols v. Brown -> http://michellawyers.com/wp-content/uploads/2012/11/Nichols_Order-Accepting-Findings-Conclusions-and-Recommendations-of-United-States-Magistrate-Judge.pdf

aklon
09-30-2013, 1:53 PM
The open carry fools brought this on themselves. They made their point and got stepped on and now they're pissed? How - better yet, why - is acting like an idiot a problem for NRA?

knowyourrights
09-30-2013, 6:57 PM
The open carry fools brought this on themselves. They made their point and got stepped on and now they're pissed? How - better yet, why - is acting like an idiot a problem for NRA?

So exercising our Constitutional right is foolish, no wonder we can't get crap done in this state. We have a bunch of pansies waiting for permission slips meanwhile we are getting stepped on by the demorats who can care less about our rights in this state........:willy_nilly: everyone running around like my emo...

knowyourrights
10-04-2013, 10:49 AM
shepard v. madigan heard today and they need to stop arguing that we need permission slips to carry and argue the only way the Constitution allows us to carry, and that is open carry...

Mulay El Raisuli
10-07-2013, 5:21 PM
shepard v. madigan heard today and they need to stop arguing that we need permission slips to carry and argue the only way the Constitution allows us to carry, and that is open carry...


Unlicensed Open Carry.


The Raisuli

ToldYouSo
10-07-2013, 7:08 PM
Unlicensed Open Carry.


The Raisuli

And Nichols v. Brown is the only case arguing for Unlicensed Open Carry.

http://michellawyers.com/nichols-v-brown/

Given that the same district court judge acknowledged that one is in violation of the ban by merely stepping outside one's home and has held that there is no right under Heller to openly carry a firearm outside the home (Nichols v. Brown) or carry a concealed firearm outside the home (Thomson v. Torrance) then all that is needed by the 9th is to find that the Second Amendment applies to one's residential property to nuke the AG's procedural opposition.

Nichols v. Brown is also the only case which argues on appeal that the Second Amendment extends to one's residential property.

knowyourrights
10-15-2013, 5:38 PM
The SAF cert petition to the US Supreme Court in Woollard v. Gallagher was denied. The SAF and its attorney, Alan Gura, did not challenge the requirement that one have a permit and the permit would have enabled one to carry a handgun concealed.

Drake v. Filko, is pretty much the same case in a different state and Federal Appellate Circuit. Gura has said he will be filing a cert petition in that case as well.

There is only one case which does not seek to carry concealed and also argues that it is unconstitutional to require a permit to exercise a fundamental, enumerated right. That case is mine, Nichols v. Brown ->

Tincon
10-15-2013, 6:07 PM
That case is mine, Nichols v. Brown

Not referring to yourself in the third person anymore?

ToldYouSo
10-15-2013, 6:23 PM
According to the California Right to Carry website, the Nichols v. Brown appeal has been stayed pending a decision in Richards, Peruta and Baker -> http://blog.californiarighttocarry.org/?page_id=739

Tincon
10-15-2013, 6:25 PM
According to the California Right to Carry website, the Nichols v. Brown appeal has been stayed pending a decision in Richards, Peruta and Baker -> http://blog.californiarighttocarry.org/?page_id=739

Good call by the court.

Kestryll
10-15-2013, 6:36 PM
That case is mine, Nichols v. Brown

Not referring to yourself in the third person anymore?

As sneaky as they think they are people always give themselves up eventually.
All we have to do is be patient and ego make them need to be known.

taperxz
10-15-2013, 6:41 PM
As sneaky as they think they are people always give themselves up eventually.
All we have to do is be patient and ego make them need to be known.

UHHH Ray Charles could have.....LOL

Kestryll
10-15-2013, 6:46 PM
UHHH Ray Charles could have.....LOL

True, but there is a difference between know and proving.

There are several current members that I know are banned members but until I can definitively prove it I won't act.

Most either provide proof eventually or give cause to be banned again so it doesn't matter. A few go on to be productive members who follow the rules trying to stay off the radar.
It's cool but funny, had they done that from the gate there wouldn't have been a problem.

knowyourrights
10-15-2013, 6:48 PM
According to the California Right to Carry website, the Nichols v. Brown appeal has been stayed pending a decision in Richards, Peruta and Baker -> http://blog.californiarighttocarry.org/?page_id=739

Latest Update by Charles Nichols, President of California Right To Carry – October 15, 2013 - The appeal of the denial of my preliminary injunction against California’s Open Carry bans was stayed pending a decision in Richards/Peruta/Baker. My district court case continues. I am working on my district court motion for summary judgment which is due in less than a month. After it is filed, I will file a motion to lift the stay of my appeal.

I just report and I am not Mr. Nichols.. Your welcome to come and have a cold one anytime you like.....

taperxz
10-15-2013, 6:59 PM
True, but there is a difference between know and proving.

There are several current members that I know are banned members but until I can definitively prove it I won't act.

Most either provide proof eventually or give cause to be banned again so it doesn't matter. A few go on to be productive members who follow the rules trying to stay off the radar.
It's cool but funny, had they done that from the gate there wouldn't have been a problem.

LOL i know. You are quite fair in the way you described your judicial way of handling the forum.

Hey! If Nichols wins his case we all win. Though i am skeptical.

Gray Peterson
10-15-2013, 10:30 PM
Update by Charles Nichols, President of California Right To Carry – October 2, 2013 - I had to refile my Reply Brief along with a motion today. Apparently, some moron at the Clerk’s office didn’t notice that I filed my Opening Brief using the 9th Circuit “form brief” which relieved me from having to comply with a myriad of 9th Circuit rules pertaining to how one is supposed to write a brief, right down to page margins and use of fonts. Therefore the Clerk rejected my Reply Brief saying it was limited to 20 pages and I would have to file a motion along with my brief for it to be oversized. I trimmed my brief to 27 pages, which is less that the briefs filed in Peruta, Richards and McKay and filed it along with the motion to file an oversize brief. It took the Clerk’s office two weeks to file the notice that my brief was too long after receiving my original Reply Brief. I don’t expect that they will process my latest Reply Brief any faster. Nor would it surprise me for them to make up some new reason to reject my brief.


A pointer to Nichols, complaining directly about the people handling your paperwork in your particular case isn't exactly a good idea to do, especially publicly where the clerks, the motions panel, and eventually the merits panel will review the case.

Chuck Michel successfully got the case stayed. Despite my issues/problems with him personally and some of his past legal efforts, I will give him major props for nullifying the Gorski carry cases and keeping Nichols case on ice.

ToldYouSo
10-16-2013, 10:47 PM
Hey! If Nichols wins his case we all win. Though i am skeptical.

All that is required for a win in Nichols v. Brown is for the 9th CCA to conclude that the Second Amendment right extends even one step outside of one's door on his own private, residential property.

If it does then the procedural objections made by the AG to the appeal crumble because there was "plain error" by the district court. The right to bear arms on one's own private, residential property is one of the issues raised in the appeal and the AG did not challenge that issue in her reply brief.

One of the judges in McKay v Hutchens said pretty much the same thing during oral arguments.

On a related note, the 9th Circuit Clerk of the Court had the power to dismiss the appeal on her own as being without merit, she didn't. The Clerk stayed the case pending a decision in Richards, Peruta and Baker over the opposition of both parties, including the opposition by the Attorney General.

Other than Nichols v. Brown and Young v. Hawaii, all of the pending 9th Circuit cases are pure concealed carry cases. The concealed carry cases will all rise or fall with the decisions in Richards, Peruta and Baker.

Which will leave Nichols v. Brown and Young v. Hawaii as the only two cases left standing. Nichols v. Brown is the simpler case given that the Attorney General has already conceded in her reply brief that the challenged laws are bans. Young v. Hawaii is almost as simple given that the pleadings in that case indicate that although Hawaii provides for permits to carry handguns and long guns in public, they haven't issued any (which is a de facto ban).

knowyourrights
10-19-2013, 1:02 PM
From The Blaze

It should not come as a surprise to anybody that the Supreme Court turned down an appeal in which the Second Amendment Foundation (SAF) sought an end-run around three Supreme Court decisions which held that concealed carry is not a right.

The Supreme Court held that citizens had a right to carry arms openly: "This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations."

The case was Woollard v. Gallagher and arose out of a challenge to a Maryland law in the Federal Fourth Circuit Court of Appeals. The Maryland law requires a "good and substantial reason" for a permit to carry a handgun in public. Maryland does not prohibit rifles or shotguns from being openly carried in public.
Permit Requirement Not Challenged

The Second Amendment Foundation did not challenge the permit requirement, which was also likely a fatal flaw in its case. The SAF explicitly disavowed a challenge to the permit requirement and argued that states can ban Open Carry if they want to. The SAF said this despite the Supreme Court also saying in its landmark 2008 decision in District of Columbia v. Heller that "Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues." The Supreme Court then cited two 19th Century court cases which held that Open Carry is the right guaranteed by the Constitution.
Cases That Cannot Be Won

Needless to say, the Second Amendment Foundation did not seek to openly carry a handgun and this wasn't the first time the Supreme Court turned down a concealed carry appeal. The Supreme Court has turned down every concealed carry appeal.

Every Federal Court of Appeals which has had a concealed carry case come before it has said that the Supreme Court meant what it said about concealed carry. Even the 7th Circuit which struck down two laws which banned firearms from being carried in public and which applied to both open and concealed carry said that Illinois can prohibit concealed carry if it wants to as per the Heller decision.

There is one more case, identical to Woollard, which has filed a cert petition with the US Supreme Court to hear its appeal - Drake v. Filko. Drake also challenges the good cause requirement for a permit to carry a handgun which, like Woollard, would entitle one to carry a concealed handgun in public. The Second Amendment Foundation does not challenge the permit requirement nor do they seek to carry a handgun openly. The deadline for filing the petition is in late November. It too will be denied.
Last Circuit Remaining

That leaves the 9th Circuit Court of Appeals as the last circuit to decide whether or not the Supreme Court really meant what it said about concealed carry. Three cases have already been argued and submitted for a decision (four if you count a last minute Ave Maria case by the NRA).

These cases, one of which was brought by the Second Amendment Foundation in conjunction with the Calguns Foundation, all make the same argument that states can ban Open Carry and having done so, must now issue permits to carry concealed handguns.

Editor's Note:
Only one case argues that the Supreme Court meant exactly what it said about Open Carry being the right guaranteed by the Constitution and also challenges the requirement to have a permit to openly carry a handgun (licenses to openly carry a handgun are theoretically available in counties with a population of fewer than 200,000 people and are available only to residents of those counties and are valid only in those counties). That case is Nichols v. Brown which was brought by Charles Nichols, the writer of this story, President of California Right To Carry.

The National Rifle Association through its state organization the California Rifle and Pistol Association, asked the 9th Circuit to stay the appeal of the denial of the preliminary injunction against California's Open Carry bans until three concealed carry cases which have already been argued and submitted have been decided. The Clerk for the 9th Circuit Court of Appeals took it upon herself to issue the stay despite the opposition by both parties in Nichols v. Brown to the NRA motion to stay the Open Carry appeal.

Editor's Note:
Mr. Nichols has said he will file a motion to lift the stay after he files his motion for summary judgment in the district court which is due on November 13th.

Last Case Standing

It would be foolish to expect that the 9th Circuit Court of Appeals is going to issue a decision which holds that there is a right to a concealed carry permit when every other Federal Court of Appeals has held that there is no such right.

It has been over ten months since the three concealed carry cases were argued and taken under submission for a decision. When their appeal is denied, that will leave the Nichols v. Brown Open Carry case as the last one standing.

wolfwood
10-19-2013, 1:11 PM
All that is required for a win in Nichols v. Brown is for the 9th CCA to conclude that the Second Amendment right extends even one step outside of one's door on his own private, residential property.

If it does then the procedural objections made by the AG to the appeal crumble because there was "plain error" by the district court. The right to bear arms on one's own private, residential property is one of the issues raised in the appeal and the AG did not challenge that issue in her reply brief.

One of the judges in McKay v Hutchens said pretty much the same thing during oral arguments.

On a related note, the 9th Circuit Clerk of the Court had the power to dismiss the appeal on her own as being without merit, she didn't. The Clerk stayed the case pending a decision in Richards, Peruta and Baker over the opposition of both parties, including the opposition by the Attorney General.

Other than Nichols v. Brown and Young v. Hawaii, all of the pending 9th Circuit cases are pure concealed carry cases. The concealed carry cases will all rise or fall with the decisions in Richards, Peruta and Baker.

Which will leave Nichols v. Brown and Young v. Hawaii as the only two cases left standing. Nichols v. Brown is the simpler case given that the Attorney General has already conceded in her reply brief that the challenged laws are bans. Young v. Hawaii is almost as simple given that the pleadings in that case indicate that although Hawaii provides for permits to carry handguns and long guns in public, they haven't issued any (which is a de facto ban).

Being that Baker and Young are my cases could you go with this, we asked for some means to carry a hand gun in our complaint in Baker. We did not specifically ask for concealed carry and the statute at issue governs both open and concealed carry. There actually is a bill being pushed through the Hawaii legislature right now because of Baker which will allow open carry of handguns. As the government essentially conceded in Young that a rifle and shotgun are two separate things and that is must allow some means to carry them soon you will be able to open carry to your hearts content in Hawaii. This is the bill for open handgun carry. And the HRS does not have any mechanism in it for the carry of rifles or shotguns for self defense.

http://www.capitol.hawaii.gov/measure_indiv.aspx?billtype=SB&billnumber=262

flyonwall
10-19-2013, 1:17 PM
You are almost correct, but are missing one case and a fundamental point of basic constitutional jurisprudence. First, Hutchens was recently taken under submission and at oral argument it was made clear by at least one justice that the reason California is unique is because it bans open carry. California is the only jurisdiction where that issue has been briefed and presented. I raise this because it makes us unique and brings us to basic consitutional law. When you look at the evolution of constitutional analysis (most issues have 100+ years of history, not 5), the court always looks to alternatives, i.e. has there been a compelte ban on the right, or are there alternatives. It is never black and white. a complete ban presents a different level of scrutiny and as argued in hutchens, we have a complete ban. many of the failures like peterson, peruta and richards were because there was an alternative means of carry available.
I think most people would prefer concealed carry, but at the end of the day, you are never going to get both and a state will always be free to choose, so long as one is allowed because either fulfills the right. you can eliminate one so long as there is an ability to "bear arms" concealed or open, but you will never see a ruling that mandates both.

Librarian
10-19-2013, 1:40 PM
From The Blaze


The Supreme Court held that citizens had a right to carry arms openly: "This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations."


That is NOT the holding in Heller. That is a citation to State v. Chandler, 5 La. Ann. 489, 52 Am. Dec. 599 (1850), in the section on militia service and the Second Amendment The 19th-century cases that interpreted the Second Amendment universally support an individual right un- connected to militia service.DC v Heller, at 37Many early 19th-century state cases indicated that the Second Amendment right to bear arms was an individual right unconnected to militia service, though subject to certain restrictions. DC v Heller, at 38

kentactic
10-19-2013, 1:55 PM
Tagged

ToldYouSo
10-20-2013, 1:12 AM
Being that Baker and Young are my cases could you go with this, we asked for some means to carry a hand gun in our complaint in Baker. We did not specifically ask for concealed carry and the statute at issue governs both open and concealed carry. There actually is a bill being pushed through the Hawaii legislature right now because of Baker which will allow open carry of handguns. As the government essentially conceded in Young that a rifle and shotgun are two separate things and that is must allow some means to carry them soon you will be able to open carry to your hearts content in Hawaii. This is the bill for open handgun carry. And the HRS does not have any mechanism in it for the carry of rifles or shotguns for self defense.

http://www.capitol.hawaii.gov/measure_indiv.aspx?billtype=SB&billnumber=262

Seeking to carry openly in your complaint makes your case distinguishable from Peterson v. Martinez and forces the court to look at Open Carry in your case.

Ironically, it was that handguns could be concealed which was the concern of the 19th Century court cases. Most folks seem to be unaware that the law overturned in Nunn v. State did not ban the carrying of all handguns. The law banned the carrying of concealable handguns and the court narrowed the construction of the law to apply only to handguns which were actually carried concealed.

I clicked on the link to the bill and noticed that there has been no activity since last January.

ToldYouSo
10-20-2013, 1:34 AM
I think most people would prefer concealed carry, but at the end of the day, you are never going to get both and a state will always be free to choose, so long as one is allowed because either fulfills the right. you can eliminate one so long as there is an ability to "bear arms" concealed or open, but you will never see a ruling that mandates both.

Gura has made the argument that states are free to chose between concealed and Open Carry and Gura has lost that argument in every case.

Like it or not, the Supreme Court in Heller was clear on this point. Also, the "alternative" means argument you made fails because the courts have never, in any context, held that the right can be denied so long as there were was an alternative. That is like saying the government can ban every religion except one and there is no 1st Amendment violation.

There is only one straw available for concealed carry and that is a relatively recent California appellate court decision which applied intermediate scrutiny to the carrying of a concealed knife because California does not ban the Open Carry of knives. The implication being that strict scrutiny would have been required if California had banned the carrying of knives openly and concealed.

Has that case been cited in any of the concealed carry cases now on appeal?

Even that case is a bit of a stretch given that requiring strict scrutiny in a criminal case (which is by definition as-applied) does not require a court to apply strict scrutiny to civil cases seeking a concealed carry permit.

In any event, we should know in the next ten months or so what the 9th Circuit decides.

Nobody should be surprised if Richards, Baker and Peruta are remanded or kicked for a variety of reasons.

Everyone should be surprised if any of the three cases win their present appeal.

Tincon
10-20-2013, 6:32 AM
Gura has made the argument that states are free to chose between concealed and Open Carry

Well Gura is absolutely right about that. Why would you have a right to expose your weapon any more than you would have the right to conceal it? The right is to bear, or carry. The manner of carry is something that the states can regulate. This is pretty clear even in Heller.

ToldYouSo
10-20-2013, 6:55 AM
Well Gura is absolutely right about that. Why would you have a right to expose your weapon any more than you would have the right to conceal it? The right is to bear, or carry. The manner of carry is something that the states can regulate. This is pretty clear even in Heller.

Putting aside the fact that Heller is clear that Open Carry is the right guaranteed by the Constitution and "[T]he majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues" none of those 19th Century courts held that states could choose concealed carry over Open Carry. Those 19th Century cases which did decide what types of firearms could be carried and when, did so in the context of a Militia.

The problem seems to be that few people, including the attorneys bringing these failed concealed carry cases, have read the Heller decision past the part where it defines ""bear arms" at 2793.

Of course these are the same people who think that Nunn v. State and State v. Chandler, which Heller says perfectly captures the meaning of "bear arms" at 2809 was written in disappearing ink.

Well, here we are more than five years later and courts across the country, both state and Federal, have had no trouble reading Heller to mean that concealed carry can be banned.

And why should they? Even the dissent in Heller at 2581 and 2869 read the majority decision to say that concealed carry can be banned.

Nine justices of the US Supreme Court unanimously read the decision to say that concealed carry can be banned.

You don't have to agree with the decision but to argue that the Heller decision said exactly the opposite of what it said is a losing argument.

A losing argument the Federal and state courts have so often pointed out.

knowyourrights
10-20-2013, 12:02 PM
http://usnews.nbcnews.com/_news/2013/10/19/21038963-texas-gun-owners-stage-rally-at-the-alamo

Tincon
10-20-2013, 6:59 PM
Putting aside the fact that Heller is clear that Open Carry is the right guaranteed by the Constitution and "[T]he majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues" none of those 19th Century courts held that states could choose concealed carry over Open Carry. Those 19th Century cases which did decide what types of firearms could be carried and when, did so in the context of a Militia.

Well, here we are more than five years later and courts across the country, both state and Federal, have had no trouble reading Heller to mean that concealed carry can be banned.

You have a reading comprehension problem. I did not say that concealed carry cannot be banned. I realize Heller says it can. But Heller does not say open carry cannot be banned either. They just can't ban BOTH.

Ask yourself, why can CCW be banned? Why should OC be any more protected? There is no greater right to open carry. That doesn't make any sense. Remember, the fundamental core right is self-defense. That is why Heller says we have a RKBA, and Heller is correct.

Open carry (as opposed to CCW) does not give you any greater or lesser ability to defend yourself. Therefore, the state is free to proscribe either (but not both). They can make this decision on any rational basis.

Personally though, I'd rather have CCW, since I don't have any desire to advertise to criminals that I am armed, thus making myself the first guy they shoot if something goes down. But I'm ok with either. Here in CA, it seems like the state has chosen CCW over OC, because guns scare the less free.

But your argument is that we have to argue for OC, because what, that is the only possible protected expression of the right outside the home? That's retarded.

ToldYouSo
10-20-2013, 8:09 PM
You have a reading comprehension problem. I did not say that concealed carry cannot be banned. I realize Heller says it can. But Heller does not say open carry cannot be banned either. They just can't ban BOTH.

Heller repeatedly says that Open Carry is the right guaranteed by the Constitution and that concealed carry can be banned. You are the one with the reading comprehension problem who obviously does not know how to read a decision. I recommend Justice Scalia's latest book "Reading Law: The Interpretation of Legal Texts."



Ask yourself, why can CCW be banned? Why should OC be any more protected? There is no greater right to open carry. That doesn't make any sense. Remember, the fundamental core right is self-defense. That is why Heller says we have a RKBA, and Heller is correct.


Heller, McDonald and Moore were quite clear as to why concealed carry can be banned but not Open Carry. The Second Amendment was applied to the states via the 14th Amendment. The 14th Amendment was adopted in 1868. Incorporation of the 2A right via the 14th Amendment incorporated the prohibitions on concealed carry that existed in 1868. Moore struck down the Illinois concealed carry component of the Illinois laws because there were no prohibitions on the carrying of concealed weapons when the Second Amendment was adopted in 1791 and qualified its decision by saying that Illinois could require the Open Carry of firearms as per the Heller decision.

You simply do not understand the ramifications of 14th Amendment incorporation.


Open carry (as opposed to CCW) does not give you any greater or lesser ability to defend yourself. Therefore, the state is free to proscribe either (but not both). They can make this decision on any rational basis.


The longstanding prohibitions on concealed carry are twofold. Criminals and other immoral people carry concealed for "secret advantages and unmanly assassinations" Heller at 2809 and:

"The policy underlying the prohibition against concealed weapons is based on the protection of those persons who may come into contact with a weapon bearer. If a weapon is not concealed, one may take notice of the weapon and its owner and govern oneself accordingly, but no such opportunity for cautious behavior or self-preservation exists for one encountering the bearer of a concealed weapon. In light of this policy, the question whether a particular weapon was concealed should be considered from the point of view of one approaching the location of the weapon, and the intent of the defendant as to concealment should not be considered, since a defendant's innocent intent does not make a concealed weapon any more visible." People v. Mitchell, 209 Cal. App. 4th 1364, 1371

As the 10th Circuit pointed out "[A] a statute regulating concealed carry may be unconstitutional if it fails the rational basis test regardless of the scope of the Second Amendment. Peterson v. Martinez, 707 F. 3d 1197 - Court of Appeals, 10th Circuit (2013) fn. 26.

Concealed carry bans can be overturned if they fail the rational basis test but not via the Second Amendment.

Given that California's concealed carry law of 1923 was enacted explicitly to disarm minorities and it is disproportionately enforced against minorities by a factor of 3 to 1 there is a solid "suspect classification" case to be made against the law which requires strict scrutiny independent of the Second Amendment. The "right people" however have refused to make this argument. They want to preserve the requirement of having a government issued permission slip.


Personally though, I'd rather have CCW, since I don't have any desire to advertise to criminals that I am armed, thus making myself the first guy they shoot if something goes down. But I'm ok with either. Here in CA, it seems like the state has chosen CCW over OC, because guns scare the less free.


The state courts have chosen Open Carry over concealed carry since the first Legislative Acts of 1853. Curiously, there had never before been a civil challenge to PC12031(a)(1)/PC25850(a) prior to Nichols v. Brown. Every challenge had been in the context of a criminal appeal regarding its application to concealed carry and/or the discharge of a firearm in public during a criminal act. Last year, the California Supreme Court gutted the laws applicability to concealed carry, citing a statute enacted in 1872.


But your argument is that we have to argue for OC, because what, that is the only possible protected expression of the right outside the home? That's retarded.

The 19th Century prohibitions on concealed carry were not blanket prohibitions. These prohibitions exempted travelers while on a journey and exempted women. In addition to travelers while on a journey, California common law exempted persons out after dark and persons carrying large sums of money.

Unfortunately, the "right people" have brought us Richards and Peruta which will result in binding Federal precedents giving the government the absolute discretion in the issuance of permits to carry concealed weapons.

That's retarded.

Tincon
10-20-2013, 9:14 PM
Heller repeatedly says that Open Carry is the right guaranteed by the Constitution



Heller, McDonald ... were quite clear as to why concealed carry can be banned but not Open Carry


Where, exactly?

You repeatedly point out that CCW can be banned on rational basis where there is open carry (which I agree with you on), but you give no cite to support your argument that states are not free to chose CCW over open carry.

ToldYouSo
10-20-2013, 10:47 PM
Where, exactly?

You repeatedly point out that CCW can be banned on rational basis where there is open carry (which I agree with you on), but you give no cite to support your argument that states are not free to chose CCW over open carry.

That is not my argument. My argument is that Open Carry is the fundamental, enumerated right as defined by Heller and McDonald and that concealed carry, with few exceptions, is not a fundamental right.

Heller at 2809.
Heller at 2812.
Heller at 2816-2817.
Heller at 2822.
Heller at 2848.
Heller at 2851.
Heller at 2864.
Heller at 2869.

There is absolutely no precedent to support the proposition that a state can substitute a fundamental, enumerated right (Open Carry in this case) with an unprotected right (concealed carry in this case).

More to the point, where in Heller or McDonald does it even remotely suggest that states can choose concealed carry over Open Carry?

As has been frequently pointed out by me and a couple of others here, your argument that states can choose the manner of carry has been the central argument made by the "right people" in the concealed carry lawsuits. They have lost that argument in every case (including Moore).

What will it take to convince you? Will you still be arguing that states can choose concealed carry over Open Carry when Drake, Richards, Peruta and Baker are all denied cert?

Probably.

Tincon
10-20-2013, 10:58 PM
Heller at [etc]


Why don't you provide a quote (or 8), because I don't see anything on those pages which says what you think it says.

That is not my argument. My argument is that Open Carry is the fundamental, enumerated right as defined by Heller and McDonald and that concealed carry, with few exceptions, is not a fundamental right.

So how does that not equate to states have to give OC and "are not free to chose CCW over open carry?"

There is absolutely no precedent to support the proposition that a state can substitute a fundamental, enumerated right (Open Carry in this case) with an unprotected right (concealed carry in this case).

Again this requires the that OC outside the home was declared to be "a fundamental, enumerated right." That would be great news, but you have yet to provide a proper cite.


More to the point, where in Heller or McDonald does it even remotely suggest that states can choose concealed carry over Open Carry?

The part where it says the basis of the right is the right to self defense, implying that as long as you are able to carry for self defense that right has not been infringed upon. More to the point, where in Heller or McDonald does it even remotely suggest that states CAN'T choose concealed carry over Open Carry? All I see is that they are free to ban that method of carry (concealed).


As has been frequently pointed out by me and a couple of others here, your argument that states can choose the manner of carry has been the central argument made by the "right people" in the concealed carry lawsuits. They have lost that argument in every case (including Moore).

Ah, so of course I assume you are able to provide a cite to where your argument has won? If not, then what is your point exactly?

What will it take to convince you? Will you still be arguing that states can choose concealed carry over Open Carry when Drake, Richards, Peruta and Baker are all denied cert?

What will it take to convince you that lawsuits which effect everyone's right should be left to capable attorneys? When you have screwed us all over?

Probably.

kcbrown
10-20-2013, 11:48 PM
All of the foregoing discussion is interesting and all, but the plain fact is this: the Supreme Court has, by omission, upheld arbitrary restrictions on all carry, concealed and open.

Woollard was not about concealed carry. It was not about open carry. It was not about whether or not permits may be used to govern carry. It was about one thing and one thing only: whether or not carry independent of form may be arbitrarily restricted by the government.

That is a much softer question than the questions you guys are arguing over, and it was presented in a pure context.

And the Supreme Court decided that even that wasn't worth their attention. They are, by their very inaction, perfectly content to let governments arbitrarily restrict any form of carry, period. We know this because the cases they have granted cert to in lieu of Woollard are for the purpose of addressing trivialities, so the excuse that they have too much on their plate does not hold.


So the plain fact of the matter is that the concealed carry cases will almost certainly fail and the open carry cases will almost certainly fail, and I have no reason to believe that the probability of failure is any different between the two. And it doesn't even matter if the court in question claims that the 2nd Amendment extends outside the home. All they have to do is use the "intermediate scrutiny two step" to uphold any and every restriction on the "right". And the Supreme Court will simply refuse to hear the inevitable appeal, because they are done with carry, period.


You guys have picked some side or another in the belief that your approach is "superior". I've got news for you: none of your approaches is "superior", because they will all fail for the same reasons. The most shrill of you are flush with hubris. The courts will show you just how worthless that hubris is. They will show you just how ingenious they can be at squashing liberty, and how little a solid argument really matters in the face of a judiciary that is insistent on ruling as it pleases.

Welcome to the real world. Enjoy your stay.

Tincon
10-21-2013, 12:25 AM
So the plain fact of the matter is that the concealed carry cases will fail and the open carry cases will fail.

That's not a "fact," that is (necessarily) supposition. As is the rest of your diatribe.

Tincon
10-21-2013, 12:33 AM
You guys have picked some side or another in the belief that your approach is "superior". I've got news for you: none of your approaches is "superior", because they will all fail for the same reasons.

Maybe so, maybe not, but nonetheless:


All of these things must be tried. They should be tried in the most logical order possible and in the venues where they're most likely to succeed.

;)

kcbrown
10-21-2013, 12:38 AM
That's not a "fact," that is (necessarily) supposition. As is the rest of your diatribe.

It is the inevitable outcome of applying logic to the evidence at hand. That's as close to a fact as you're ever going to find in the real world, short of direct observation.

To argue otherwise is to argue against the cause and effect nature of the world. Good luck with that.

kcbrown
10-21-2013, 12:41 AM
Maybe so, maybe not, but nonetheless:



All of these things must be tried. They should be tried in the most logical order possible and in the venues where they're most likely to succeed.


;)

Yes, indeed.

But that does not change the fact that you guys have hubris that is unwarranted, are arguing about things that overwhelming evidence and logic say will prove irrelevant. You are, like the Supreme Court, addressing trivialities while the republic burns.

Tincon
10-21-2013, 12:46 AM
Yes, indeed.

But that does not change the fact that you guys have hubris that is unwarranted, are arguing about things that overwhelming evidence and logic say will prove irrelevant. You are, like the Supreme Court, addressing trivialities while the republic burns.

The republic isn't burning (unless we are talking about a lot more than guns laws here). Most states have few if any gun laws more restrictive than federal law. And considering that a SCOTUS opinion is the one thing that is likely to stop the state gun laws that are restrictive, I'd say the discussion of how to obtain such an opinion is more than a triviality. Regardless of how unlikely you personally think obtaining that opinion is.

kcbrown
10-21-2013, 12:55 AM
The republic isn't burning (unless we are talking about a lot more than guns laws here). Most states have few if any gun laws more restrictive than federal law.


Federal law does not restrict carry at all. Most states do. I'd say that qualifies as more than "few if any gun laws".



And considering that a SCOTUS opinion is the one thing that is likely to stop the state gun laws that are restrictive, I'd say the discussion of how to obtain such an opinion is more than a triviality. Regardless of how unlikely you personally think obtaining that opinion is.Your discussion isn't about how to obtain such an opinion, it's about how the other person's case can't work. That's very different.

If you guys really want to succeed, then help each other's cases out. Make all the cases better, rather than attempt to squash the other guy's case.

But I'm betting that the hubris you guys have will prevent you from doing that. I dare you to prove me wrong.

kcbrown
10-21-2013, 1:12 AM
That's not a "fact," that is (necessarily) supposition. As is the rest of your diatribe.

For what little it's worth, I've corrected that bit you quoted. :D

Tincon
10-21-2013, 1:16 AM
Your discussion isn't about how to obtain such an opinion, it's about how the other person's case can't work. That's very different.

If you guys really want to succeed, then help each other's cases out. Make all the cases better, rather than attempt to squash the other guy's case.

Well first off, I don't have a case. A prominent reason being that, like Nichols, I'm not a lawyer. But I know enough to understand that lawyers litigate better than non-lawyers. And, exceptionally good lawyers litigate better than average (or below average) lawyers. Furthermore, badly litigated cases can create precedents which make future cases more difficult, or even impossible, to win.

So this isn't about hubris, I don't have any part of my ego riding on any particular person winning or losing. But my rights are riding on someone winning. And Nichols is not our best chance at winning, to put it mildly.

Tincon
10-21-2013, 1:20 AM
Federal law does not restrict carry at all. Most states do. I'd say that qualifies as more than "few if any gun laws".


43 states have shall issue or allow carry without a permit. All 50 states have some sort of permit issue, with the remaining 7 varying from "almost" shall issue (see more permissive counties in CA, which comprise the vast majority) to "may issue" (see NY), to "almost" no issue (see SF/LA).

For what little it's worth, I've corrected that bit you quoted. :D

Better. :)

kcbrown
10-21-2013, 1:30 AM
The republic isn't burning (unless we are talking about a lot more than guns laws here).


Even if we limit that question to gun laws, the areas that are burning represent 25% of the country's population. If 1/4 of your house were burning, I'd say your house was burning.

kcbrown
10-21-2013, 1:32 AM
43 states have shall issue or allow carry without a permit. All 50 states have some sort of permit issue, with the remaining 7 varying from "almost" shall issue (see more permissive counties in CA, which comprise the vast majority) to "may issue" (see NY), to "almost" no issue (see SF/LA).


Those are still more restrictive than federal law, which has no restrictions on carry whatsoever. And even locales that are "shall-issue" are generally restrictive as to the manner of carry.

My statement stands.

Tincon
10-21-2013, 1:33 AM
Even if we limit that question to gun laws, the areas that are burning represent 25% of the country's population. If 1/4 of your house were burning, I'd say your house was burning.

The majority of that 25% wants such laws. So they have enacted them. The supreme court has yet to review the constitutionality of such laws. There is no indication that the states will disregard what the supreme court orders. Sounds to me like a republic that is functioning normally.

kcbrown
10-21-2013, 1:41 AM
Well first off, I don't have a case. A prominent reason being that, like Nichols, I'm not a lawyer.


Not yet. But not being a lawyer doesn't mean you lack understanding of the legal arena.


But I know enough to understand that lawyers litigate better than non-lawyers.


That is actually somewhat debatable. I expect that there are some non-lawyers, such as yourself, who would litigate better than, say, Gorski, who is a lawyer.



And, exceptionally good lawyers litigate better than average (or below average) lawyers.


That sort of follows from the adjectives. :D



Furthermore, badly litigated cases can create precedents which make future cases more difficult, or even impossible, to win.


Which is why, when combined with the bit about lawyers versus non-lawyers, the actual way the cases are being litigated has to be examined before they can be properly characterized.



So this isn't about hubris, I don't have any part of my ego riding on any particular person winning or losing.


That is not what one would conclude from reading your messages, but I'll nonetheless give you the benefit of the doubt here.


But my rights are riding on someone winning. And Nichols is not our best chance at winning, to put it mildly.

Then help make his case better. I see nothing in his challenge that conflicts with the cases brought by CGF/SAF and NRA. If I'm right, that means the problem is limited to execution. Help him succeed.


Of course, it's entirely possible that his hubris will prevent you from being able to do that. But at that point, at least you'll have tried.

kcbrown
10-21-2013, 1:44 AM
The majority of that 25% wants such laws. So they have enacted them.


That the majority of the residents of the house have set fire to it does not invalidate the observation that the house is on fire, nor does it reduce the resulting impact to the residents who didn't.


The supreme court has yet to review the constitutionality of such laws. There is no indication that the states will disregard what the supreme court orders. Sounds to me like a republic that is functioning normally.Except that it's not that the Supreme Court "has yet to" review the Constitutionality of such laws, it has (with the exception of California, for which your statement holds true for now) refused to review them. That is a very different thing.

So yes, those parts of the republic are burning, precisely because the Supreme Court refuses to put out those particular fires. That makes any intention of those states to comply with the Supreme Court irrelevant.

Tincon
10-21-2013, 1:49 AM
Then help make his case better. I see nothing in his challenge that conflicts with the cases brought by CGF/SAF and NRA. If I'm right, that means the problem is limited to execution. Help him succeed.


Of course, it's entirely possible that his hubris will prevent you from being able to do that. But at that point, at least you'll have tried.

Ironically, if he was an attorney I would offer to do just that (as I have done for other attorneys, even those whose I think would be better off leaving 2A matters alone). But as he is not an attorney, state law prevents me from giving him any legal advice pertaining to his pending action (or anything else).

I agree though, that the problem is execution, if it were not for that his OC case would be a strategically helpful compliment to the NRA case. In any event, I think the execution problem extends beyond anyone's help.

Tincon
10-21-2013, 1:51 AM
Except that it's not that the Supreme Court "has yet to" review the Constitutionality of such laws, it has (with the exception of California, for which your statement holds true for now) refused to review them. That is a very different thing.

So yes, those parts of the republic are burning, precisely because the Supreme Court refuses to put out those particular fires. That makes any intention of those states to comply with the Supreme Court irrelevant.

Well, it seems the answer will depend on whether or not SCOTUS takes up a carry case in the next few years. If it doesn't then you may be correct. But I'll just choose to live in a part of the republic that isn't on fire.

kcbrown
10-21-2013, 1:57 AM
Ironically, if he was an attorney I would offer to do just that (as I have done for other attorneys, even those whose I think would be better off leaving 2A matters alone). But as he is not an attorney, state law prevents me from giving him any legal advice pertaining to his pending action (or anything else).


One would think there would be all sorts of First Amendment issues with that restriction.



I agree though, that the problem is execution, if it were not for that his OC case would be a strategically helpful compliment to the NRA case. In any event, I think the execution problem extends beyond anyone's help.

Can't know unless help is at least offered.

Tincon
10-21-2013, 2:07 AM
One would think there would be all sorts of First Amendment issues with that restriction.


The California requirement of licensure to practice law is a valid exercise of the state’s police power and serves the legitimate state interest of assuring the competency of those performing this service. (J.W. v. Superior Court (1993) 17 Cal.App.4th 958.). The licensure requirement does not violate First Amendment free speech rights (Howard v. Superior Court (1975) 52 Cal.App.3d 722), and has survived Equal Protection challenge (People v. Sipper (1943) 61 Cal.App.2d Supp. 844).

kcbrown
10-21-2013, 2:54 AM
The California requirement of licensure to practice law is a valid exercise of the state’s police power and serves the legitimate state interest of assuring the competency of those performing this service. (J.W. v. Superior Court (1993) 17 Cal.App.4th 958.). The licensure requirement does not violate First Amendment free speech rights (Howard v. Superior Court (1975) 52 Cal.App.3d 722), and has survived Equal Protection challenge (People v. Sipper (1943) 61 Cal.App.2d Supp. 844).

And on what basis is "assuring the competency of those performing this service" a legitimate state interest, much less a compelling governmental interest?

Let me guess: the basis is that court cases which are decided based on the arguments presented to the court affect not only those arguing the case, but cases that come after it due to precedence, right?

Which is to say, this "compelling interest" is, essentially, that the state needs to protect the people from their own potential lack of competence because the court system is insistent upon deferring to its own errant conclusions because it can't be bothered to derive its conclusions from first principles every time it is tasked with a decision, right?

So, in essence, this is yet more evidence that the court system should be burned to the ground and rebuilt from first principles.

Tincon
10-21-2013, 3:01 AM
Nonetheless, that is the law of the land, and unless I want a visit from the armed apparatus of the state, I must abide by it.

kcbrown
10-21-2013, 3:38 AM
Nonetheless, that is the law of the land, and unless I want a visit from the armed apparatus of the state, I must abide by it.

I'm forced to agree. I've no argument against that. :mad:

Southwest Chuck
10-21-2013, 10:17 AM
Those are still more restrictive than federal law, which has no restrictions on carry whatsoever.


:rolleyes:

The Federal GFZ (gun free school zone) is not a restriction on carry? :confused:
Just a friendly reminder here:
Everyone familiar with the subject knows what you're saying here KC, but let's not go overboard. It doesn't help the debate and others, new to the issue, could discount your other valid points due to off hand statements like this.

Carry on ... :D

kcbrown
10-21-2013, 1:52 PM
:rolleyes:

The Federal GFZ (gun free school zone) is not a restriction on carry? :confused:


True. I'd actually forgotten about that for some reason, probably because when I think "GFSZ", I think of the California one...



Everyone familiar with the subject knows what you're saying here KC, but let's not go overboard. It doesn't help the debate and others, new to the issue, could discount your other valid points due to off hand statements like this.

Carry on ... :D

Excellent point. I'll do my best.

Mulay El Raisuli
10-21-2013, 3:02 PM
The part where it says the basis of the right is the right to self defense, implying that as long as you are able to carry for self defense that right has not been infringed upon. More to the point, where in Heller or McDonald does it even remotely suggest that states CAN'T choose concealed carry over Open Carry? All I see is that they are free to ban that method of carry (concealed).


You've answered your own question. There are only two methods of "and bear" possible: Concealed or Open. If one of those can be banned, then that only leaves one other method. In addition, of all the cases SCOTUS could have cited, they chose to cite the ones that specifically DID say that Open Carry could not be banned.

Put them together, & the answer is completely clear. As the Circuits have been telling us ever since Heller came out


Ah, so of course I assume you are able to provide a cite to where your argument has won? If not, then what is your point exactly?


Not a fair question. Until Nichols v Brown, no one had brought such a case.


What will it take to convince you that lawsuits which effect everyone's right should be left to capable attorneys? When you have screwed us all over?

Probably.


How "capable" are they when they keep bringing sure-to-lose cases?


The Raisuli

knowyourrights
10-21-2013, 4:08 PM
The only one that is going to prevail is Charles Nichols because he is actually arguing Constitutional issues and not permission slips. So my money is on him for now.......

kcbrown
10-21-2013, 4:22 PM
The only one that is going to prevail is Charles Nichols because he is actually arguing Constitutional issues and not permission slips. So my money is on him for now.......

Nope. Mark my words: he won't prevail either. Nobody will.

ToldYouSo
10-21-2013, 6:44 PM
"Significantly, two of the examples the Heller majority cites as permissible examples are general prohibitions on concealed carry comparable to § 941.23. See id. at 2816 (citing State v. Chandler, 5 La. Ann. 489, 489-90 (La. 1850), and Nunn v. State, 1 Ga. 243, 251 (Ga. 1846)).

¶ 11 Little might argue that I have read too much into the majority's comment. But a further exchange between the Heller majority and dissenting Justice Breyer demonstrates that this was a carefully considered comment. In dissent, Justice Breyer wrote:

[T]he majority's list, in Part III of its opinion, of provisions that in its view would survive Second Amendment scrutiny [consists of] (1) "prohibitions on carrying concealed weapons"; (2) "prohibitions on the possession of firearms by felons".... What is particularly telling is the majority's response to Justice Breyer. The majority did not take issue with Justice Breyer's characterization, but instead embraced it:

Justice BREYER chides us ... for not providing extensive historical justification for those regulations of the right that we describe as permissible.... [But] there will be time enough to expound upon the historical justifications for the exceptions we have mentioned if and when those exceptions come before us.
Heller, 128 S. Ct. at 2821 (emphasis added). Accordingly, I conclude there is little doubt that the Heller majority, and dissenters for that matter, consider general prohibitions on the carrying of concealed weapons permissible." State v. Little, Wis: Court of Appeals, 4th Dist. 2012

wolfwood
10-27-2013, 11:30 PM
While I realize that this is diverging from the current topic I have a question for everyone that is critical of Nichols case. I've been thinking about how second amendment litigation is being built in large part by "strategic litigation" and how that plays in with the traditional role of our Article III court system.

Nichols is a U.S. citizen that deeply believes that he has a right to carry a "firearm" openly. I assume that means a handgun in urban settings. He was unable to retain a lawyer and pursued this matter on his own. I am not suggesting that anyone owes him representation but if the various people that are paid to litigate this stuff wanted this matter advocated for in the manner they wanted they could have represented him. According pursuing this matter on his own was his only recourse. Is his right to be heard in a court of law and to have a fair and impartial ruling made on whether he has a constitutional right to openly carry a handgun less important than the right of the various lobbying firms to pursue their long term litigation strategy?

Tincon
10-27-2013, 11:37 PM
While I realize that this is diverging from the current topic I have a question for everyone that is critical of Nichols case. I've been thinking about how second amendment litigation is being built in large part by "strategic litigation" and how that plays in with the traditional role of our Article III court system.

Nichols is a U.S. citizen that deeply believes that he has a right to carry a "firearm" openly. I assume that means a handgun in urban settings. He was unable to retain a lawyer and pursued this matter on his own. Is his right to be heard in a court of law and to have a fair and impartial ruling made on whether he has a constitutional right to openly carry a handgun less important than the right of the various lobbying firms to pursue their long term litigation strategy?

His fantasy of being a lawyer is less important then actual litigation victories. Interesting that you would ask though, since the garbage you file is almost as bad as his (in some ways worse). You, Nichols, Gorski, Birdt, etc. are worse than Brady and LPC put together. I wish you would catch onto this before you do further damage.

Yes he has a right to file, and you have a right to do whatever you do, but that doesn't change the fact that it is extremely unhelpful.

wolfwood
10-27-2013, 11:41 PM
That's actually exactly why I was wondering. Please note that you are the only one that takes that position and have never been able to give a reason as to why I am going to lose either Baker or Young. One of the things I was thinking about was comparing the way my client was immediately on a 12b6 by ignoring his prayer for relief which I appealed and how Nichols has been properly treated by the Court system. Again please note I asked for help and was not given any. Please note it appears the only statute in the country that will be overturned will be Hawaii's.

Nichols does not have any aspirations of being a lawyer. He has aspirations of openly carrying a handgun in redondo beach. So you are stating that his right to advocate for that position is trumped by our (the pardon the pun) collective Second Amendment rights (this is under the premise whether true or not that the right people will bring litigation victories)

Tincon
10-28-2013, 12:00 AM
That's actually exactly why I was wondering. Please note that you are the only one that takes that position and have never been able to give a reason as to why I am going to lose either Baker or Young.

Nichols does not have any aspirations of being a lawyer. He has aspirations of openly carrying a handgun in redondo beach. So you are stating that his right to advocate for that position is trumped by our (the pardon the pun) collective Second Amendment rights (this is under the premise whether true or not that the right people will bring litigation victories)

Both of you have filed less-than-half-baked cases, when we already have experienced, qualified counsel bringing the important issues before the 9th Circuit (and hopefully SCOTUS). Your supposed justification is that your peripheral (and much less appealing) issues of open carry and extendable batons need to be brought at the same time. Maybe your hearts are in the right place, but you are doing damage. I'm sorry no one helped you. But no one made you file those appeals either. This isn't about anyone's right to have a day in court. This is about WINNING. And you guys are underfoot of the actual professionals.

kcbrown
10-28-2013, 12:27 AM
Both of you have filed less-than-half-baked cases, when we already have experienced, qualified counsel bringing the important issues before the 9th Circuit (and hopefully SCOTUS). Your supposed justification is that your peripheral (and much less appealing) issues of open carry and extendable batons need to be brought at the same time. Maybe your hearts are in the right place, but you are doing damage. I'm sorry no one helped you. But no one made you file those appeals either. This isn't about anyone's right to have a day in court. This is about WINNING. And you guys are underfoot of the actual professionals.

Can you cite the damage being done, or is that theoretical at this stage?

I've not seen the actual damage (i.e., compelling evidence that the courts have ruled differently in the cases you favor on the basis of the damage you claim is being done) cited by you, thus my question.

Tincon
10-28-2013, 1:07 AM
Can you cite the damage being done, or is that theoretical at this stage?

I've not seen the actual damage (i.e., compelling evidence that the courts have ruled differently in the cases you favor on the basis of the damage you claim is being done) cited by you, thus my question.

Do you remember a case called Silvera v Lockyear?

ToldYouSo
10-28-2013, 1:14 AM
Nichols does not have any aspirations of being a lawyer. He has aspirations of openly carrying a handgun in redondo beach. So you are stating that his right to advocate for that position is trumped by our (the pardon the pun) collective Second Amendment rights (this is under the premise whether true or not that the right people will bring litigation victories)

Nichols v. Brown was not limited to the City of Redondo Beach. Redondo Beach has a municipal ordinance which bans all weapons possession in all public places. The complaint challenged both the city ordinance and the California Open Carry bans.

With the voluntary dismissal of the Redondo Beach defendants, what remains is the challenge to California's Open Carry bans.

Voluntarily dismissing the Redondo Beach defendants has no effect on the challenge to the state laws, they were separate counts of the Complaint.

It was also settled early in the case that the declarations were not limited to Open Carry in Redondo Beach and the "where" he intended to openly carry a firearm was irrelevant as the district court judge noted in his denial of the motion to dismiss made by the Attorney General "All Nichols' has to do is to step outside his home to be in violation of the law."

kcbrown
10-28-2013, 1:32 AM
Do you remember a case called Silvera v Lockyear?

That case was pre-Heller. I'm not sure it really qualifies as regards the statement "you are doing damage". It was, essentially, in a different legal era.

But it does raise some interesting questions, e.g.: how would you have argued that case differently given the legal environment of the time? No, you don't get to say that you wouldn't have brought the challenge at all, for if the only challenges that were ever brought were the ones that were consistent with existing precedent, then we'd not have Heller.

ToldYouSo
10-28-2013, 1:35 AM
Both of you have filed less-than-half-baked cases, when we already have experienced, qualified counsel bringing the important issues before the 9th Circuit (and hopefully SCOTUS). Your supposed justification is that your peripheral (and much less appealing) issues of open carry and extendable batons need to be brought at the same time. Maybe your hearts are in the right place, but you are doing damage. I'm sorry no one helped you. But no one made you file those appeals either. This isn't about anyone's right to have a day in court. This is about WINNING. And you guys are underfoot of the actual professionals.

Someone obviously needs to take a pill and calm down.

The inescapable fact is that concealed carry is not a protected right under the Heller decision and the only cases which have the proverbial snowballs chance of winning are Open Carry cases.

Both Young v. Hawaii and Nichols v. Brown seek to Open Carry.

Hawaii does not provide for concealed carry permits and although it does provide for Open Carry permits it does not issue them which is a de facto ban.

In Nichols v. Brown the Attorney General has already admitted that the three state laws being challenged are bans. California does not provide for permits to openly carry handguns in the venue where Nichols v. Brown was filed and California does not provide for permits to openly carry long guns.

The only ones doing any damage are your so called "professionals" aka the "right people."

Instead of continually ranting, perhaps you can point out an actual flaw in either of the cases? Both have district court judges who held that the Second Amendment is limited to the interior of one's home, unlike Richards and Peruta where the district court judges properly concluded that Heller does not confer a right to a concealed carry permit and did not say that the Second Amendment is limited to the interior of one's home.

"Bans" of anything are subject to strict scrutiny, which means that Young v. Hawaii and Nichols v. Brown ultimately win.

Regulations of concealed carry permits is subject to intermediate scrutiny, which means Richards and Peruta ultimately lose.

ToldYouSo
10-28-2013, 1:45 AM
That case was pre-Heller. ...if the only challenges that were ever brought were the ones that were consistent with existing precedent, then we'd not have Heller.

The Federal courts of appeal were split on whether or not the Second Amendment was an individual right or a collective right which is one of the reasons why we have Heller.

There is no split, absolutely none, that there is a right under Heller to carry concealed. When Richards and Peruta lose, there will still not be a split.

There is a 7th Circuit decision, Moore v. Madigan, which struck down laws identical to those being challenged in Nichols v. Brown (California copied the Illinois law enacted in 1962) so if Nichols v. Brown and Young v. Hawaii lose then there is a split between the circuits.

The chances of the US Supreme Court hearing any case is slim. Absent a split between the Circuit Courts the chances become virtually nonexistent of cert being granted.

wolfwood
10-28-2013, 2:25 AM
Both of you have filed less-than-half-baked cases, when we already have experienced, qualified counsel bringing the important issues before the 9th Circuit (and hopefully SCOTUS). Your supposed justification is that your peripheral (and much less appealing) issues of open carry and extendable batons need to be brought at the same time. Maybe your hearts are in the right place, but you are doing damage. I'm sorry no one helped you. But no one made you file those appeals either. This isn't about anyone's right to have a day in court. This is about WINNING. And you guys are underfoot of the actual professionals.

I can assure you that the main issue in Baker is not batons or open carry. My client could care less whether he carries openly or concealed. It was standing up for the state of Hawaii when the "professionals" were not willing to come. Every holding in the nation suggests that we win in Baker and (and I am not saying this is right) the two California cases lose. Why because Hawaii is effectively a complete ban and there are no guidelines set forth to issue as they have never issued. The only way we lose is if the Ninth Circuit explicitly states there is no right outside the home unlike every other Court. That means Circuit split and everyone goes up. Look you have never reviewed the pleadings in Baker so I'll throw this out. My partner Rick fixes my admittedly dubious grammar such as in this MSJ that was filed a couple days ago.

http://www.scribd.com/doc/178611872/filed-facebook-MSJ-pdf

For this one Rick was burned out from Baker and said do the appeal on your own and we will figure out the rest later. So I did it myself and actually yes it is about getting a man his day in court because there is something much more fundamental to the fabric than the propriety of handgun carry. That is ordered liberty. If you can't know you can pay your freight and get your shot then that is when you need a firearm.

wolfwood
10-28-2013, 2:29 AM
seriously this is the deal you did not know I was counsel in Baker when you first bashed young so you've decided to stick with this narrative extending to Baker when you know that Baker is the strongest of the cases heard last December due to the restriction effectively being a complete ban.

Librarian
10-28-2013, 12:54 PM
The inescapable fact is that concealed carry is not a protected right under the Heller decision ...



There is no split, absolutely none, that there is a right under Heller to carry concealed. When Richards and Peruta lose, there will still not be a split.
...
Seems like there is a typo in here somewhere.

kcbrown
10-28-2013, 3:30 PM
Seems like there is a typo in here somewhere.

In his defense, I don't think there is.

His thesis is that concealed carry is specifically not protected by the 2nd Amendment and that Heller supports this. That, of course, is consistent with the first statement of his that you quoted.

The second one is about circuit splits as regards concealed carry being protected as a right by the 2nd Amendment. His assertion is that there currently exist no circuit splits on that issue, because no court has to date held concealed carry to be a protected right. Further, he says that Richards and Peruta will fail for this reason, thus maintaining that particular lack of circuit splits.


The two statements are fully consistent with each other.


The more interesting question is whether or not his second statement is actually correct. The 7th Circuit struck down a complete ban on carry and instructed the legislature to pass legislation that is consistent with their decision. Most interestingly, the legislature passed a concealed carry law, one that I would argue amounts to a may-issue law but which some might regard as shall-issue. Regardless, if his thesis is correct, then that law must not be consistent with the 7th Circuit's decision, and as such it can be challenged on that basis.

Mulay El Raisuli
10-28-2013, 3:36 PM
While I realize that this is diverging from the current topic I have a question for everyone that is critical of Nichols case. I've been thinking about how second amendment litigation is being built in large part by "strategic litigation" and how that plays in with the traditional role of our Article III court system.

Nichols is a U.S. citizen that deeply believes that he has a right to carry a "firearm" openly. I assume that means a handgun in urban settings. He was unable to retain a lawyer and pursued this matter on his own. I am not suggesting that anyone owes him representation but if the various people that are paid to litigate this stuff wanted this matter advocated for in the manner they wanted they could have represented him. According pursuing this matter on his own was his only recourse. Is his right to be heard in a court of law and to have a fair and impartial ruling made on whether he has a constitutional right to openly carry a handgun less important than the right of the various lobbying firms to pursue their long term litigation strategy?


Given the fact that "long term litigation strategy" is going to lose (because CCW is not & never will be the Protected Right), I think the BEST approach is for the pros to step & help Nichols out.


The Raisuli

ToldYouSo
10-28-2013, 4:26 PM
...The only way we lose is if the Ninth Circuit explicitly states there is no right outside the home unlike every other Court. That means Circuit split and everyone goes up...

The 9th CCA has already affirmatively stated that the scope of the Second Amendment is not limited to in home carry so it is highly unlikely that the Richards, Peruta, Baker panel is going to contradict prior panel holdings.

What the panel will undoubtedly do is to find as every other court has, that concealed carry is not a protected right as per Heller and then apply intermediate scrutiny and rule against them.

Pertua is even more problematic as that case explicitly did not challenge the constitutionality of any law, including the concealed carry law which grants the may-issue authority to the San Diego Sheriff.

Gura made the same mistake in Richards that he made in Schrader v. Holder, he forgot to make an as-applied challenge. A facial challenge to California's CCW law, even if properly made, is highly unlikely to succeed even if Heller said that concealed carry is a protected right, which it did not.

flyonwall
10-28-2013, 4:37 PM
Tincon: I see your silvera and raise you a Peterson. Oh then there was that calguns park case, and what happened to Lu?
Even without Lu the only damage meter is gorski 1 and calguns 2. Does that mean calguns is twice as bad as gorski?
Now if you want to talk about good- what the nra has done with hutchens is magnificent, but a success? That is unknown, just like young or nichols.

ToldYouSo
10-28-2013, 4:44 PM
Given the fact that "long term litigation strategy" is going to lose (because CCW is not & never will be the Protected Right), I think the BEST approach is for the pros to step & help Nichols out.


The Raisuli

The only "pros" pursuing Open Carry is the Mountain States Legal Foundation in Bonidy v. US Postal Service.

James M. Manley
Mountain States Legal Foundation
2596 South Lewis Way
Lakewood, CO 80227
303-292-2021
Fax: 303-292-1980
Email: jmanley@mountainstateslegal.com

The NRA/CRPA reached out with a sharp stick. Chuck Michel's wife was the City of Redondo Beach prosecutor in the case of The People v. Charles Nichols.

Alan Gottleib of the SAF and related groups is the original purveyor of the "Concealed carry or no carry" brand of Kool-Aid of which so many have partaken.

GOA/GOC doesn't bring lawsuits. They hold raffles and talk a lot but did nothing else other than to file an Amicus Brief in support of Peruta v San Diego which argued to uphold California's 1967 ban on Loaded Open Carry.

Tincon
10-28-2013, 4:48 PM
Tincon: I see your silvera and raise you a Peterson. Oh then there was that calguns park case, and what happened to Lu?
Even without Lu the only damage meter is gorski 1 and calguns 2. Does that mean calguns is twice as bad as gorski?


No comment...


Now if you want to talk about good- what the nra has done with hutchens is magnificent, but a success? That is unknown, just like young or nichols.

True enough, there is something to be said for having the decades of firearms litigation experience, necessary funding, relationships, and firearm experts that the NRA/CRPA legal team has. Persons having NONE of those things are necessarily at a disadvantage. That disadvantage will be exploited by both opposing counsel and unfriendly judiciary.

Tincon
10-28-2013, 4:50 PM
The only "pros" pursuing Open Carry is the Mountain States Legal Foundation in Bonidy v. US Postal Service.


You are missing your true calling: stand-up comedy.

ToldYouSo
10-28-2013, 5:05 PM
...there is something to be said for having the decades of firearms litigation experience, necessary funding, relationships, and firearm experts that the NRA/CRPA legal team has. Persons having NONE of those things are necessarily at a disadvantage. That disadvantage will be exploited by both opposing counsel and unfriendly judiciary.

Given the unending stream of losses by the "right people" including the NRA/CRPA there is nothing to be said for them.

There are only two cases where the 9th CCA will have to directly answer the question of whether or not the Second Amendment right to carry a firearm extends outside of the home and both were brought by pro se litigants who are not attorneys: Nichols v. Brown and Young v. Hawaii.

The NRA/CRPA/SAF/Calguns cases lose because the 9th CCA can simply say that the Heller court meant what it said about concealed carry not being a protected right.

Don't construe this as an invitation to once again rant against Nichols/Young. Both of these cases have brought the right question before the 9th CCA without the support of the "right people." :D

flyonwall
10-28-2013, 5:07 PM
Just because they did a good job with hutchens, that doesn't make up for screwing up peruta or messing with richards. And what about their great lasd case? Sorry, but they lack any wins and hutchens they got lucky on. Michel is a hack. We do not have any great gun lawyer anywhere. Gura is a great lawyer with a sugar daddy who pushed him into guns. Otherwise we have a lot of different cooks working very hard on a lot of different recipes. Gorski and calguns cant boil water. Michel can make top ramen and is now getting help from some great lawyers but there is no standard and no right people.

Tincon
10-28-2013, 5:28 PM
Lots of butthurt in this thread.

ToldYouSo
10-28-2013, 5:29 PM
Just because they did a good job with hutchens, that doesn't make up for screwing up peruta or messing with richards. And what about their great lasd case? Sorry, but they lack any wins and hutchens they got lucky on. Michel is a hack. We do not have any great gun lawyer anywhere. Gura is a great lawyer with a sugar daddy who pushed him into guns. Otherwise we have a lot of different cooks working very hard on a lot of different recipes. Gorski and calguns cant boil water. Michel can make top ramen and is now getting help from some great lawyers but there is no standard and no right people.

Chuck Michel is a hack and I will respectfully disagree that Hutchens was a good job.

Hutchens' only challenge to the state law was in the alternative and Michel did not file a notice challenging the constitutionality of the law, he filed a "potential" notice of unconstitutionality.

The only stated (and alternative) challenge is to the "good cause" subsection of the law and that is a facial challenge. Michel alludes to an as-applied challenge but failed to make one. Gura made the same mistake in Richards. One cannot simply say that he is making an as-applied challenge, one has to argue why the law is unconstitutional as-applied to his clients.

As I said before, not only did Chuck Michel make the same mistakes he made in Peruta, he made brand new mistakes as well. :facepalm:

flyonwall
10-28-2013, 5:35 PM
The 9th and every other circuit have already said the right exists, the question is the scope of that right and there are 9 cases in the 9th that explore that issue from different angles.
Crap- forgot all about nordyke- that makes cgf 3x as bad as gorski!

Gray Peterson
10-28-2013, 6:25 PM
The 9th and every other circuit have already said the right exists, the question is the scope of that right and there are 9 cases in the 9th that explore that issue from different angles.
Crap- forgot all about nordyke- that makes cgf 3x as bad as gorski!

Nordyke was not a CGF case.

Tincon
10-28-2013, 6:34 PM
Nordyke was not a CGF case.

Neither was Peterson, right?

flyonwall
10-28-2013, 6:41 PM
Talk about butthurt...
Gray, I admire your courage!

IPSICK
10-28-2013, 6:54 PM
Meanwhile I'll be calling them telling them I appreciate their efforts to get real litigation through before Nichols screws it up for everyone.
I'll probably even send them some money.

Yup!

taperxz
10-28-2013, 6:54 PM
Baker will prevail based on the fact that Hawaii is so azz backwards on their gun laws that something needs to change there. Even the ninth will see this.

Their laws are so out of whack with Heller that something will need to be settled.

In the mean time CA will need to wait for a SCOTUS ruling.

Hawaii at least will end up with CA type laws worst case.

Gray Peterson
10-28-2013, 7:06 PM
Neither was Peterson, right?

Nordyke's organizational plaintiff was the Madison Society Foundation, not CGF. CGF did not exist in 1999 when the litigation was originally filed.

Peterson had partial CGF financial support at the beginning, my own self funding, partial financial support from SAF as well. A CGF paypal link was put in for specific fundraising for my case. To my knowledge, the links were removed once it was generally decided that appeal to SCOTUS was not viable.

A case could be refiled with a different set of plaintiffs, lawyers, and organizations against Denver's OC ban. I suggested this to NRA-CRDF since they were the ones who filed an OC only brief with the 10th Circuit (http://www.hoffmang.com/firearms/peterson/Peterson-NRA-Amicus-Curiae-2011-06-10.pdf) in the first place.

Bonidy seems to be the 10th circuit OC case for the moment. However, it seems a preliminary injunction filing may be a good idea in district court to have the pure OC issue in front rather than it being effected by "post office property" thing.

Talk about butthurt...
Gray, I admire your courage!

http://farm6.staticflickr.com/5044/5269558397_64406aeb94_z.jpg

flyonwall
10-28-2013, 7:14 PM
Gray-I am not serious and am surprised you have to ask. You have done more direct harm to us than CGF and Gorski combined. You live in a free state yet felt the need to screw things up in California, and promote it with money from California. Worse, you think you are in a position to criticize others for their litigation efforts and have done so quite vociferously. You should be quietly eating humble pie in your own state and not commenting on efforts undertaken by those in this state seeking to vindicate our rights, which like it or not is a very short list, becoming ever more short.
Tincon talks about the great team of lawyers, but they dont exist, we only have Michel, and the NRA had to bring in a babysitter for him before he could file another case. I dont mind criticizing those who do it bad and have a proven record of failure like Gorski, , Peterson and CGF, but none of the other players (Michel, Nichols, Birdt & Baker) have brought us stunning defeats (yet).

ToldYouSo
10-28-2013, 7:14 PM
Quote:
Originally Posted by Kestryll
Meanwhile I'll be calling them telling them I appreciate their efforts to get real litigation through before Nichols screws it up for everyone.
I'll probably even send them some money.

Yup!

A fool and his money are soon parted.

Tincon
10-28-2013, 7:31 PM
tCWjo1ymhGs

taperxz
10-28-2013, 8:14 PM
Gray-I am not serious and am surprised you have to ask. You have done more direct harm to us than CGF and Gorski combined. You live in a free state yet felt the need to screw things up in California, and promote it with money from California. Worse, you think you are in a position to criticize others for their litigation efforts and have done so quite vociferously. You should be quietly eating humble pie in your own state and not commenting on efforts undertaken by those in this state seeking to vindicate our rights, which like it or not is a very short list, becoming ever more short.
Tincon talks about the great team of lawyers, but they dont exist, we only have Michel, and the NRA had to bring in a babysitter for him before he could file another case. I dont mind criticizing those who do it bad and have a proven record of failure like Gorski, , Peterson and CGF, but none of the other players (Michel, Nichols, Birdt & Baker) have brought us stunning defeats (yet).

Oh my! LOL

kcbrown
10-28-2013, 9:10 PM
I dont mind criticizing those who do it bad and have a proven record of failure like Gorski, , Peterson and CGF, but none of the other players (Michel, Nichols, Birdt & Baker) have brought us stunning defeats (yet).

That will change soon enough.

All of you will soon learn that when it comes to 2A litigation, it is not the counsel that makes the arguments, nor the amici who file briefs, nor the urgency of the issue, nor the strength of the arguments that makes the difference as to what the end result is. It is the predisposition of the court, and nothing else, that makes the difference for matters such as this.

The issue of bearing arms in public makes the issue (as measured by the courts in the 1950s) of blacks mingling with whites as equals look mundane in comparison. The amount that the courts (in general -- there are always outliers such as the 7th and, maybe, 10th circuits) hate and fear this particular right is orders of magnitude greater. You will learn this for yourself soon enough.

wolfwood
10-28-2013, 9:23 PM
tCWjo1ymhGs


I have to give you this one Mat
funny post

taperxz
10-28-2013, 9:26 PM
That will change soon enough.

All of you will soon learn that when it comes to 2A litigation, it is not the counsel that makes the arguments, nor the amici who file briefs, nor the urgency of the issue, nor the strength of the arguments that makes the difference as to what the end result is. It is the predisposition of the court, and nothing else, that makes the difference for matters such as this.

The issue of bearing arms in public makes the issue (as measured by the courts in the 1950s) of blacks mingling with whites as equals look mundane in comparison. The amount that the courts (in general -- there are always outliers such as the 7th and, maybe, 10th circuits) hate and fear this particular right is orders of magnitude greater. You will learn this for yourself soon enough.

You are certainly true to form tonight. I partially agree with you when it comes to some courts.

However, at some point in time the courts must rule that the 2A is in fact a right and not a monitored privilege. Even if it means status quo for certain states and bringing up the rear in CA, NY, Hawaii, New Jersey ect.

kcbrown
10-28-2013, 9:31 PM
You are certainly true to form tonight. I partially agree with you when it comes to some courts.

However, at some point in time the courts must rule that the 2A is in fact a right and not a monitored privilege. Even if it means status quo for certain states and bringing up the rear in CA, NY, Hawaii, New Jersey ect.

You don't get it.

There is no must for the courts. They operate under no real-world constraints as regards their decisions whatsoever. Until that changes, they can and will rule however they please, no matter what.

To claim, as you are here, that the courts must rule in favor of the right is to subscribe to a fantasy. This isn't a fairy tale we live in, this is the real world. In the real world, actions are governed by incentives and constraints. The courts (with a couple of exceptions) have all the incentive to rule against us and no constraints against doing so. I think you can figure out for yourself what the inevitable result must be.

ToldYouSo
10-28-2013, 11:26 PM
There is no must for the courts. They operate under no real-world constraints as regards their decisions whatsoever. Until that changes, they can and will rule however they please, no matter what.

To claim, as you are here, that the courts must rule in favor of the right is to subscribe to a fantasy. This isn't a fairy tale we live in, this is the real world. In the real world, actions are governed by incentives and constraints. The courts (with a couple of exceptions) have all the incentive to rule against us and no constraints against doing so. I think you can figure out for yourself what the inevitable result must be.

Quite true but judges do have to write decisions, so why make it easy for them to rule against you?

A recap:

1st Circuit Court of Appeals - Hightower v. Boston. Gura tried to pull a fast one on the court of appeals. The court noted that Hightower had not applied for a license to openly carry a handgun, Gura made no claim that handgun Open Carry licenses are not issued giving the court an easy out to conclude that Hightower wanted to carry her revolver concealed. Since Heller said that concealed carry can be prohibited, it was an open an shut case.

2nd Circuit Court of Appeals - Kachalsky v. Cacase - Instead of challenging New York's 1963 ban on openly carrying handguns, Gura seeks to make concealed carry permits shall-issue by making that same old tired argument that Heller didn't mean what it said about Open Carry being the right guaranteed by the Constitution and that concealed carry can be prohibited. Since Heller said that concealed carry can be prohibited, it was another open an shut case.

3rd Circuit Court of Appeals - Drake v. Filko - In 1965 New Jersey enacted a law which required a permit to carry a handgun. Prior to that, a permit was only required to carry concealed. Instead of attacking the permit requirement to openly carry a handgun, Gura argues extensively for concealed carry and for shall-issue permits that, as in Hightower v. Boston, would have enabled folks to carry concealed. New Jersey, unlike New York, bans the Open Carry of Loaded long guns. The only form of Open Carry allowed is with unloaded long guns so long as one does not have ammunition in his immediate possession. Gura does not argue for the Open Carry of long guns. The 3rd CCA court of appeals notes that Chandler and Reid, cited in Heller, both conflict with Gura's position "that a state may choose to ban open carrying so long as concealed carrying is permitted." Chalk up another loss for Gura and friends.

4th Circuit Court of Appeals - Woollard v. Galagher - This was another attempt by Gura to get shall-issue concealed carry permits. The permit requirement to openly carry a handgun was not challenged. Here, the 4th CCA didn't even consider the applicability of the Second Amendment outside of the home. It disagreed with the district court's conclusion that the good-and-substantial-reason requirement for carrying a handgun cannot pass constitutional muster and reversed.

7th Circuit Court of Appeals - Moore/Sheppard v. Madigan - the laws struck down applied to both handguns and long guns carried openly or concealed, loaded and unloaded so these were simply "carry cases." What the SAF hailed as a "great victory" for concealed carry wasn't. Illinois is free to prohibit concealed carry if it wants to as Posner pointed out in his decision and given the en banc split, the case could easily have been decided the other way.

10th Circuit Court of Appeals - Peterson v. Martinez - I would like to blame Gura entirely for this one but to the extent he is to blame, it was as an Amicus. This was an attempt by Gray Peterson to get a concealed carry permit because Denver bans Open Carry. The 10th CCA correctly concluded that Heller meant what it said. Concealed carry loses again.

Looking ahead:

9th Circuit Court of Appeals - Pending in the 9th CCA is Richards which is ultimately a facial challenge to the "good cause" and "good moral character" subsections of a law which, if struck down, results in shall-issue concealed carry and Peruta which isn't challenging anything other than the policy of San Diego Sheriff Gore in the issuance of concealed carry permits and McKay v Hutchens which likewise does the same for Orange County Sheriff Hutchens. All three are pure concealed carry cases. All three including the various other concealed carry cases fail because concealed carry is not a protected right under Heller.

Baker v. Kealoha is an odd case which seems to challenge everything. Dig deeply enough and you'll find that Baker seeks a license to carry a firearm "concealed or openly displayed." Young v. Hawaii also seeks concealed or open carry.

Nichols v. Brown is the only pure Open Carry case.

kcbrown
10-28-2013, 11:46 PM
Quite true but judges do have to write decisions, so why make it easy for them to rule against you?


Fully agree. If you luck out and get a judge that can actually be swayed by a powerful argument, then you're best off making the most powerful argument you can.

None of what I've been saying should be construed to mean that I think we should be doing anything less than our level best here. My purpose in what I say is to set expectations, which so far have been wildly optimistic from several, such as yourself.


By the way, if Nichols v Brown is such a superior case with such a massively superior argument, precedence, etc., then why didn't it prevail in district court?

That's not to say that some other case could have done better, mind you. My hypothesis, that has thus far proven to be highly accurate, is that the probability of a case prevailing in the judicial environment that exists in circuits that cover large anti-gun areas, and generally the other areas as well, is minuscule because courts rule as they please and most judges are much more interested in upholding government power, especially when a "dangerous" and, to them, loathsome, right such as keeping and bearing arms is involved, than they are in restraining it. Courts no longer protect liberty. They restrain it. And if you doubt me, you need only examine the doctrines they now adhere to. Constitutional avoidance? Presumption of Constitutionality? These are not the doctrines of a judiciary that is intent on upholding the Constitutional foundations of the republic. They are the doctrines of a judiciary that is intent on undermining it!

sholling
10-29-2013, 1:26 AM
Fully agree. If you luck out and get a judge that can actually be swayed by a powerful argument, then you're best off making the most powerful argument you can.
ToldYouSo illustrated the continuous string of failures brought to us by a singleminded 'licensed shall-issue concealed carry or bust - better no carry than open carry' strategy. He may or may not be right about open carry being the protected right but it's the last hope before we throw in the towel. It's a point that had to get made to counter the lemming like 'stay the shall-issue concealed carry or bust course' crowd.

None of what I've been saying should be construed to mean that I think we should be doing anything less than our level best here. My purpose in what I say is to set expectations, which so far have been wildly optimistic from several, such as yourself.
You've provided a valuable service in the face of the wildly optimistic noise that used to come from Gene and the "Right People", but keep in mind that by this point our members have all but given up any hope. We've reached the point that all of us need to buck up the troops and put massive pressure on the "Right People" (and the NRA) to provide financial backing and legal expertise to fight for unlicensed open carry. Without such pressure they'll fight tooth and nail for decades to come to stay the 'licensed shall-issue concealed carry or bust' course until the rest of us are completely disarmed. We have to pull together to put the pressure on to change or we may as well except defeat and save the money that we would have donated to the cause.

By the way, if Nichols v Brown is such a superior case with such a massively superior argument, precedence, etc., then why didn't it prevail in district court?
How many gun cases prevail at the district court level? District court judges want to become appeals court judges and play it safe.

curtisfong
10-29-2013, 1:39 AM
We've reached the point that all of us need to buck up the troops and put massive pressure on the "Right People" (and the NRA) to provide financial backing and legal expertise to fight for unlicensed open carry.

There is no endgame there that we can win. OC is equivalent to no carry in CA, since there will be no OC on private property, and CCW will be relegated to a privilege regulated into nothingness.

kcbrown
10-29-2013, 1:50 AM
How many gun cases prevail at the district court level? District court judges want to become appeals court judges and play it safe.

No.

District court judges rule as they do because they want to. Their appointments are lifetime appointments, just as they are for circuit court judges and supreme court justices. There is no real difference to be found there.

I've already been through this with Gene long ago, but it bears repeating here. Federal court appointments are made for political reasons only. They are, after all, appointed by Congress. As such, "playing it safe" is of no use. Indeed, that is counterproductive, because it causes one to not be noticed.

No, a court judge at any level other than Supreme Court level is going to, if he cares at all, issue rulings that will make him stand out in a positive way to those who, among the two major parties, align with him politically. Court judges know that the fortunes of the political parties wax and wane, so it's really just a matter of luck as to which party will prevail in terms of selecting court judges. Furthermore, members of Congress are much more interested in having their legislation supported by the judiciary than in having it overturned. It therefore follows that judges which uphold laws no matter how Unconstitutional they may be will be regarded with greater favor, on average, than those who do not. It is not an accident that the judiciary is essentially a giant rubber-stamping machine for laws today, that the doctrines it follows are oriented around minimizing the chance of a successful challenge to the law.


In any case, most of that goes out the window once you start talking about an issue that scares the pants off of so many people, most especially those in government, the way that of keeping and bearing arms in public does. In that case, judges will rule according to their own personal beliefs because they can and because they will feel strongly enough about the issue that they will believe that they must.


Gene's error, and the one that you're making here, is the belief that the calculus will be the same for 2nd Amendment cases as it is for garden-variety cases. The incentive for a federal judge is already weak enough as it is. The very nature of the RKBA issue is enough to easily overwhelm that weak incentive when it would conflict with how the judge wants to rule. As such, the resulting calculus is almost certainly not the same as for the garden variety case. That error is what caused Gene to conclude that we'd have carry available for everyone in California within 36 months of McDonald. That error would result in someone concluding that Diarmuid O'Scannlain would support the right to keep and bear arms when, in fact, he headed up the panel on Nordyke that would have turned strict scrutiny into rational basis for 2nd Amendment cases at the stroke of a pen had that case not been taken en banc a second time.

No, RKBA cases are special in a way that greatly eclipses even the civil rights cases of the 1950s. Failure to recognize that will cause you to err in your predictions just like Gene did, to be vastly overly-optimistic. Gene presumed that the calculus for 2A cases was the same as normal cases. He was wrong. You are now presuming the same thing. You are likewise incorrect.


The "service" I provide, such as it is, is to bring reality into the discussion in a way that few seem to be able to. For very nearly everything, I am driven purely by evidence and logic. I apply, to the degree I can, the scientific method to the real world. These are things that few seem to do, particularly with respect to issues of great import to them.

I am bringing the very same reality to you and the other open carry advocates here that I brought to Gene and others. Ignore it at your peril.


Some might wonder why I would do such a thing when reality is so discouraging. The answer to that is simple: the people we need fighting beside us need to have the same fortitude that the founders of the country had. They need to be willing to fight even if they believe that, in the end, they will be defeated. The fight for liberty demands nothing less than that level of commitment. That shouldn't be terribly hard to do, when you get right down to it, because all it really takes is the unwillingness to surrender to serfdom. But we cannot afford to be fighting alongside people who will surrender when the going gets too tough for them, for such a thing is most likely to happen when the situation is the most dire. Those who have the fighting spirit we need will not be dissuaded from fighting as a result of being told the straight-up hard truth. But they must not come at this with the arrogance that some here have exhibited. For there is little the real world is better at than teaching humility to those who dare ignore it.

Tincon
10-29-2013, 3:12 AM
There is no endgame there that we can win. OC is equivalent to no carry in CA, since there will be no OC on private property, and CCW will be relegated to a privilege regulated into nothingness.

What do you gain by posting this? No discretion. :(

Mulay El Raisuli
10-29-2013, 7:06 AM
There is no endgame there that we can win. OC is equivalent to no carry in CA, since there will be no OC on private property, and CCW will be relegated to a privilege regulated into nothingness.


That's not the way it worked in Ohio. And yes, I know that the PRK is not Ohio. Still, given the choice between seeing guns everywhere & coming up with a decent CCW scheme, the PRK will come up with a decent CCW scheme.


ToldYouSo illustrated the continuous string of failures brought to us by a singleminded 'licensed shall-issue concealed carry or bust - better no carry than open carry' strategy. He may or may not be right about open carry being the protected right but it's the last hope before we throw in the towel. It's a point that had to get made to counter the lemming like 'stay the shall-issue concealed carry or bust course' crowd.


Yup.


You've provided a valuable service in the face of the wildly optimistic noise that used to come from Gene and the "Right People", but keep in mind that by this point our members have all but given up any hope. We've reached the point that all of us need to buck up the troops and put massive pressure on the "Right People" (and the NRA) to provide financial backing and legal expertise to fight for unlicensed open carry. Without such pressure they'll fight tooth and nail for decades to come to stay the 'licensed shall-issue concealed carry or bust' course until the rest of us are completely disarmed. We have to pull together to put the pressure on to change or we may as well except defeat and save the money that we would have donated to the cause.


Yup.


How many gun cases prevail at the district court level? District court judges want to become appeals court judges and play it safe.


Only one that I know of.


The Raisuli

taperxz
10-29-2013, 8:05 AM
You don't get it.

There is no must for the courts. They operate under no real-world constraints as regards their decisions whatsoever. Until that changes, they can and will rule however they please, no matter what.

To claim, as you are here, that the courts must rule in favor of the right is to subscribe to a fantasy. This isn't a fairy tale we live in, this is the real world. In the real world, actions are governed by incentives and constraints. The courts (with a couple of exceptions) have all the incentive to rule against us and no constraints against doing so. I think you can figure out for yourself what the inevitable result must be.

You seem to be a little Californiacated though. Many courts in the land have ruled in favor of the 2A. The fact is its only in a few states that this has been a problem. Look at Illinois.

SCOTUS will let this happen until they can make a narrow ruling once all the states finally get it. The ones that don't get it, will slip in line with the rest of America by force.

FABIO GETS GOOSED!!!
10-29-2013, 9:57 AM
The "service" I provide, such as it is, is to bring reality into the discussion in a way that few seem to be able to.

Ever went to law school? Ever clerked for a judge in any court anywhere? Ever participated in the research and drafting of a brief filed in any court anywhere? Ever litigated a case in any court anywhere? Ever even met a real judge? Thank you for all the "reality" you bring to the table. :laugh:

kcbrown
10-29-2013, 11:08 AM
Ever went to law school? Ever clerked for a judge in any court anywhere? Ever participated in the research and drafting of a brief filed in any court anywhere? Ever litigated a case in any court anywhere? Ever even met a real judge? Thank you for all the "reality" you bring to the table. :laugh:

What has any of that to do with anything? I base my prognostications on actual results, not the touchy-feely things you're talking about here.

Laugh all you want at what I have to say. Case after case is being lost by the very people who have done the very things you talk about above. They predicted they would win. I predicted they would lose. I was right. They were wrong. So much for the "value" of the things you claim above have value.

So who's laughing now?

kcbrown
10-29-2013, 11:14 AM
You seem to be a little Californiacated though.


A most amusing statement, seeing how I'm originally from Texas. :D


Many courts in the land have ruled in favor of the 2A. The fact is its only in a few states that this has been a problem. Look at Illinois.
"Many"? So far, there have been only four: the district court in Maryland, the 7th Circuit, the Illinois supreme court, and the district court in Denver (Bonidy v USPS).



SCOTUS will let this happen until they can make a narrow ruling once all the states finally get it. The ones that don't get it, will slip in line with the rest of America by force.By then, we'll have lost at least one of the Heller 5, and it'll all be over.

taperxz
10-29-2013, 11:28 AM
A most amusing statement, seeing how I'm originally from Texas. :D


"Many"? So far, there have been only four: the district court in Maryland, the 7th Circuit, the Illinois supreme court, and the district court in Denver (Bonidy v USPS).


By then, we'll have lost at least one of the Heller 5, and it'll all be over.

KC, there have been many 2A cases/bills/laws in state courts and legislative branches in most states. Legislative action creates a new law.

You only talk about court actions that will be beneficial to this state. What will help you to "get positive" is that most states back the RKBA.

Constitutional carry is up, concealed carry permits are up, even in this state!

Its the people who will eventually dictate how this right is viewed and valued. As an example, why do you think that the current president "formerly known as Barry" has had such a hard time enacting any kind of anti gun legislation?

Hint: its the peoples will.

Personally i think SCOTUS is simply looking for a perfect case to hear so that even Elena Kagan will vote for a pro 2A case. Right now the courts have a problem with partisan decisions and Roberts seems to be on a mission to take care of that perception. Remember too that most people in this country don't even think of the 2A as being limited because their state doesn't have limitations like they do here in CA.

Thus, you have been Californicated.:p

Kestryll
10-29-2013, 11:30 AM
Quote:
Originally Posted by Kestryll
Meanwhile I'll be calling them telling them I appreciate their efforts to get real litigation through before Nichols screws it up for everyone.
I'll probably even send them some money.



A fool and his money are soon parted.
Hit too close to home Charles?

FABIO GETS GOOSED!!!
10-29-2013, 11:39 AM
What has any of that to do with anything?

Oh, I don't know, maybe because when you say stuff like "No, a court judge at any level other than Supreme Court level is going to, if he cares at all, issue rulings that will make him stand out in a positive way to those who, among the two major parties, align with him politically" or "more evidence that the entire system should be burned to the ground" or whatever it is you are saying, you have exactly zero hands-on, practical experience or insight into how cases are actually decided, not just 2A but any cases. But despite that, you are the only one bringing any "reality" to the table with your superior logic and "scientific method." :laugh:

kcbrown
10-29-2013, 12:03 PM
Oh, I don't know, maybe because when you say stuff like "No, a court judge at any level other than Supreme Court level is going to, if he cares at all, issue rulings that will make him stand out in a positive way to those who, among the two major parties, align with him politically" or "more evidence that the entire system should be burned to the ground" or whatever it is you are saying, you have exactly zero hands-on, practical experience or insight into how cases are actually decided, not just 2A but any cases. But despite that, you are the only one bringing any "reality" to the table with your superior logic and "scientific method." :laugh:

Then explain how my predictions have been correct whilst the predictions of those who have the experience you claim is so important have been wrong.

taperxz
10-29-2013, 12:07 PM
Then explain how my predictions have been correct whilst the predictions of those who have the experience you claim is so important have been wrong.

If you are talking about CGF litigation, well...

If you are talking appellate or higher decisions, those would to me be more complicated than "most" of us could understand.

kcbrown
10-29-2013, 12:07 PM
KC, there have been many 2A cases/bills/laws in state courts and legislative branches in most states. Legislative action creates a new law.


It's only the courts that I'm concerned about here. I agree that many state legislatures have shown increased deference towards the right to keep and bear arms, and that is encouraging.



You only talk about court actions that will be beneficial to this state. What will help you to "get positive" is that most states back the RKBA.


Most state legislatures do. But I've seen no evidence that most courts, most especially federal ones, do.



Personally i think SCOTUS is simply looking for a perfect case to hear so that even Elena Kagan will vote for a pro 2A case. Right now the courts have a problem with partisan decisions and Roberts seems to be on a mission to take care of that perception. Remember too that most people in this country don't even think of the 2A as being limited because their state doesn't have limitations like they do here in CA.

Thus, you have been Californicated.:p

Fair enough! :D

However, if the perfect case is what SCOTUS is looking for, then they'll never get it, and we'll never secure RKBA in hostile territory.

kcbrown
10-29-2013, 12:09 PM
If you are talking about CGF litigation, well...

If you are talking appellate or higher decisions, those would to me be more complicated than "most" of us could understand.

I'm talking about district court decisions, appellate decisions, and SCOTUS refusal to hear the appeals to those decisions.

taperxz
10-29-2013, 12:10 PM
It's only the courts that I'm concerned about here. I agree that many state legislatures have shown increased deference towards the right to keep and bear arms, and that is encouraging.




Most state legislatures do. But I've seen no evidence that most courts, most especially federal ones, do.




Fair enough! :D

However, if the perfect case is what SCOTUS is looking for, then they'll never get it, and we'll never secure RKBA in hostile territory.

I think your feeling on this^^^ has more to do with bad cases constantly being filed for all the wrong reasons not to mention that, "perhaps" the "right people" were really not the right people.

taperxz
10-29-2013, 12:14 PM
I'm talking about district court decisions, appellate decisions, and SCOTUS refusal to hear the appeals to those decisions.

Show me district and appellate decisions that were strong cases to begin with.

It seems to me that almost every case that goes to court seems to have a caveat to them that makes their argument the point of contention. Always some thorn. Stuff like this:

http://www.fbi.gov/sanfrancisco/press-releases/2013/fbi-seeks-publics-help-regarding-an-investigation-into-a-man-impersonating-a-federal-agent

:D

kcbrown
10-29-2013, 12:14 PM
I think your feeling on this^^^ has more to do with bad cases constantly being filed for all the wrong reasons not to mention that, "perhaps" the "right people" were really not the right people.

That's possible. However, I suspect that the "perfect case" for SCOTUS is one involving all carry outside the home being foreclosed. I suspect that Moore was that case, and that went up in smoke as regards a SCOTUS decision.

You are, after all, talking about a case that even Kagan can get behind. Why should she get behind an open carry case? Why should she want to see people openly carrying firearms in public?

taperxz
10-29-2013, 12:18 PM
That's possible. However, I suspect that the "perfect case" for SCOTUS is one involving all carry outside the home being foreclosed. I suspect that Moore was that case, and that went up in smoke as regards a SCOTUS decision.

You are, after all, talking about a case that even Kagan can get behind. Why should she get behind an open carry case? Why should she want to see people openly carrying firearms in public?

As i noted before, you need to think "Roberts" and his court perception issues.

The court has no reason to rush. RKBA is a small problem nation wide.

kcbrown
10-29-2013, 12:25 PM
As i noted before, you need to think "Roberts" and his court perception issues.

The court has no reason to rush. RKBA is a small problem nation wide.

Small, eh?

Have you examined the size of the population affected by this "small" problem?


And in any case, I might agree with you were it not for the nature of the cases that SCOTUS is granting cert to instead. They're addressing trivialities.

FABIO GETS GOOSED!!!
10-29-2013, 12:27 PM
Then explain how my predictions have been correct whilst the predictions of those who have the experience you claim is so important have been wrong.

Who? You're not talking about CGF are you? They don't appear to have any particular aptitude to pick or predict cases lol.

In any event you're entirely missing my point, which is the comedy of you making pronouncements about how judges decide cases (e.g., the one I quoted in my last post) without having any real-world experience whatsoever in that area.

taperxz
10-29-2013, 12:34 PM
Small, eh?

Have you examined the size of the population affected by this "small" problem?


And in any case, I might agree with you were it not for the nature of the cases that SCOTUS is granting cert to instead. They're addressing trivialities.

NY, Mass, New Jersey and parts of CA. Then you have Hawaii.

The most anti laws are in the cities. Case and point, Most counties in CA issue for a CCW. In the grand scheme of things, your opinion of a perfect case my not be perfect. Unfortunately even a perfect SCOTUS case may not be a one size fits all solution anyway. It really all depends on how the justices view it from a stand point that neither you or i are "in the the know" to understand their reasons.

I certainly don't think SCOTUS is trying to dismiss the issue or even skirt the issue. The people on that court are very eccentric to say the least.

kcbrown
10-29-2013, 7:42 PM
Who? You're not talking about CGF are you? They don't appear to have any particular aptitude to pick or predict cases lol.


Is it your claim, then, that none of them have the experience you claim is beneficial for this?

But in answer to your question, how about Chuck Michel (http://articles.latimes.com/2012/feb/20/local/la-me-right-to-carry-20120220)? Or Wolfwood?

Oh, you don't think that the predictions of counsel who is arguing such a case counts?



In any event you're entirely missing my point, which is the comedy of you making pronouncements about how judges decide cases (e.g., the one I quoted in my last post) without having any real-world experience whatsoever in that area.So it's your belief that one cannot draw correct conclusions about how something works by observing it in action over a period of time and applying logic to the observations, is that it? Or is it your contention that the legal system is somehow magically exempt from that?


Regardless, answer me this: why does the court system claim to adhere to stare decisis?

I'll tell you why: because without it, courts would fail to even pretend to consistently arrive at a given conclusion when presented with a given set of facts because judges rule according to their preferences instead of consistently according to the rules of logic. The rules of logic would consistently lead to the same conclusions with a given set of facts irrespective of who was applying it, so stare decisis would be rendered redundant if the courts actually applied them rigorously. Since the courts don't apply logic rigorously (see the conversation between Tincon and myself about that), they required a substitute, and stare decisis is that substitute.

But despite stare decisis, courts can't find it within themselves to issue decisions that are consistent amongst themselves, even when the set of facts is identical. This is regularly evidenced when the decision of a lower court is overturned by a higher court. Quite clearly, the facts are identical, and yet the decisions are not.

But even that isn't the end of the evidence, though it is sufficient unto itself. If it were the extent of the evidence, there would be agreement between all of the circuit courts on such basic things such as, e.g., whether or not the 2nd Amendment applies outside the home. After all, the rules for how to properly interpret Supreme Court decisions are well-known and the Supreme Court is not known for saying what it doesn't mean. But at least one of the circuit courts (the 2nd Circuit, as I recall, but I could be misremembering) doesn't even acknowledge the 2nd Amendment's applicability outside the home.

But my case is even more compelling than that. If courts were truly consistent about ruling on cases on the basis of something other than their preferences then the Supreme Court would not reverse itself. But it has, and it does.

No, I'm sorry, there is but one explanation that (as far as I know) is consistent with all of the evidence, and that is that judges rule as they please, not consistently according to any set of well-defined rules.

I would be more inclined to believe something else if judges were actually constrained in some way as regards the decisions they issue, but they're not. They suffer no real consequences for doing as they please. It is only via a "gentlemen's agreement" (which by its nature is non-binding) that there has been any adherence to precedence at all.


I'm sorry if you get all butthurt from having the system you operate within called out for being the arbitrary and capricious thing it is, but 200 years of evidence doesn't lie, and neither does logic. When the latter is applied to the former, the conclusion is inevitably exactly what I state here.

Sgt Raven
10-30-2013, 12:38 AM
A most amusing statement, seeing how I'm originally from Texas. :D


"Many"? So far, there have been only four: the district court in Maryland, the 7th Circuit, the Illinois supreme court, and the district court in Denver (Bonidy v USPS).


By then, we'll have lost at least one of the Heller 5, and it'll all be over.

I think you're forgetting some others....

What about United States v. Emerson?

kcbrown
10-30-2013, 1:38 AM
I think you're forgetting some others....

What about United States v. Emerson?

That's a good point, although keep in mind that the very same circuit court ruled against the 2nd Amendment in NRA v BATFE. So I can't exactly count that court as a supporter of the 2nd Amendment. Note, too, that while the court ruled that the 2nd Amendment protects an individual right, it nonetheless upheld the challenged law.


It does no good to claim that an Amendment protects an individual right, only to then go on to uphold any infringement upon it. That's the same thing the 4th Circuit did in Woollard.

Mulay El Raisuli
10-30-2013, 7:32 AM
But even that isn't the end of the evidence, though it is sufficient unto itself. If it were the extent of the evidence, there would be agreement between all of the circuit courts on such basic things such as, e.g., whether or not the 2nd Amendment applies outside the home. After all, the rules for how to properly interpret Supreme Court decisions are well-known and the Supreme Court is not known for saying what it doesn't mean. But at least one of the circuit courts (the 2nd Circuit, as I recall, but I could be misremembering) doesn't even acknowledge the 2nd Amendment's applicability outside the home.


So, our disagreement stems from my belief that this applies to dicta & you don't?


The Raisuli

kcbrown
10-30-2013, 9:20 AM
So, our disagreement stems from my belief that this applies to dicta & you don't?


No. Our disagreement, such as it is, is twofold:



Firstly, on the difference between an interpretation being a plausible one versus being the sole valid one.
Secondly, on the implications of a citation.


Your argument is that Heller's meaning as regards carry in public is that the 2nd Amendment only protects open carry because the Court cited cases such as Nunn v State. Your argument appears to be founded upon the notion that when the Supreme Court cites a case, it is incorporating the entirety of the cited decision into the citing decision as if the Supreme Court uttered the words of the case it is citing. I can think of no other reason why you continuously claim that the Supreme Court said that the 2nd Amendment protects only open carry.

That, of course, is incorrect. The purpose of a citation is to provide supporting evidence for an argument. What the Court is directly saying is the argument it is actually making. Anything beyond that is inference. And in the case of Heller the argument the Court is actually making is this:


Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.


The Court did not state that the 2nd Amendment protects only open carry. It stated that, simply, the 2nd Amendment's protection of carry is not all-inclusive.

Inference is valid, of course, but that one can infer a specific thing from the statements made by the Court does not necessarily mean that said inference is the only valid inference from those statements. And so it is with the carry issue. Your inference is a valid one, but not the only valid one. Another valid inference is the "states may choose" one, because the latter is not contradicted by the citations.

But that there exist valid inferences does not mean that there are no invalid inferences. There most certainly are. And the inference that the 2nd Amendment does not apply outside the home is one such. For the Supreme Court does not talk about how the 2nd Amendment's protection does not apply to specific outside the home contexts if the Court means for the protection of the 2nd Amendment to not exist at all outside the home. If the Court meant that, it would not have bothered with stating outside-the-home exemptions, for the existence of an exemption implies the existence of that which is being exempted from. Hence, that the 2nd Amendment applies outside the home is a valid inference, whilst its opposite is not.

When one inference is valid, its opposite must be invalid. One cannot infer both A and !A simultaneously, as that would be a contradiction. Such is the case with the applicability of the 2nd Amendment outside the home. But the open carry versus states ability to choose debate is not that kind of conflict, because the two interpretations are not diametric opposites of each other.

Finally, if there exists a sole valid inference, as the outside-the-home inference is, then that inference carries the same logical weight as the actual decision from which the inference is drawn. Logic does not allow for anything else. It may be that this isn't regarded as true in the legal world, but that would only serve to buttress my previously-made case.

knowyourrights
10-30-2013, 12:47 PM
From Mr. Nichols site and not my words like some of you like to believe...CCW will never work as it is not Constitutionally protected, only open carry is....

For over three years now I have been pointing out that a problem with a government issued permission slip is that the government can take the permission slip away whenever it wants to leaving you out in the cold.

Thanks to a lawsuit brought by the Chairman of CalGuns.nuts, Gene Hoffman, California cities and counties are now free to pass laws invalidating concealed carry permits issued from other jurisdictions as well as their own. The case is CalGuns Foundation v. San Mateo County.

Let us not forget that the concealed carry lawsuits brought by the SAF/Calguns/NRA/CRPA do not challenge the part of the law which gives the Sheriff or police chief the absolute discretion to say what handgun you can carry, as well as when and where you can carry.

The "when and where" is now only within the jurisdiction of the Sheriff or police chief who issued the permit thanks to CalGuns.nuts.

FABIO GETS GOOSED!!!
10-30-2013, 1:07 PM
Oh, you don't think that the predictions of counsel who is arguing such a case counts?

You're kidding, right? :laugh:

So it's your belief that one cannot draw correct conclusions about how something works by observing it in action over a period of time and applying logic to the observations, is that it?

In your case, no. You are drawing sweeping "conclusions" about how judges supposedly decide cases that you have not validated. It's just what you think and you have ZERO actual experience in the area.

But despite stare decisis, courts can't find it within themselves to issue decisions that are consistent amongst themselves, even when the set of facts is identical.

Well obviously there can only be one possible explanation for that lol. Your total lack of real-world experience prevents you from considering let alone ruling out other explanations why cases with similar facts may be decided differently. So much for your "scientific method." :laugh:

I'm sorry if you get all butthurt...

Trust me, I'm not butthurt at all about your bloviating. :laugh:

taperxz
10-30-2013, 1:11 PM
From Mr. Nichols site and not my words like some of you like to believe...CCW will never work as it is not Constitutionally protected, only open carry is....

For over three years now I have been pointing out that a problem with a government issued permission slip is that the government can take the permission slip away whenever it wants to leaving you out in the cold.

Thanks to a lawsuit brought by the Chairman of CalGuns.nuts, Gene Hoffman, California cities and counties are now free to pass laws invalidating concealed carry permits issued from other jurisdictions as well as their own. The case is CalGuns Foundation v. San Mateo County.

Let us not forget that the concealed carry lawsuits brought by the SAF/Calguns/NRA/CRPA do not challenge the part of the law which gives the Sheriff or police chief the absolute discretion to say what handgun you can carry, as well as when and where you can carry.

The "when and where" is now only within the jurisdiction of the Sheriff or police chief who issued the permit thanks to CalGuns.nuts.

IBTB

knowyourrights
10-30-2013, 1:40 PM
IBTB

IRISH BLOOD TRANSFUSION BOARD/IBTB?

taperxz
10-30-2013, 1:45 PM
In before the ban

kcbrown
10-30-2013, 2:35 PM
You're kidding, right? :laugh:


Why should I be? That counsel is arguing a case doesn't mean he's incapable of properly assessing his chances of success. What, exactly, is his incentive to lie about those? It's not like being truthful about his chances will affect his actual chances of winning, right?



In your case, no. You are drawing sweeping "conclusions" about how judges supposedly decide cases that you have not validated. It's just what you think and you have ZERO actual experience in the area.
And what makes me so special that I am uniquely disqualified from being able to draw valid logical conclusions from a set of evidence gathered through observation from the outside?

Once again, you claim that internal knowledge of something is necessary to draw valid conclusions about the behavior of that something. Is it your contention that such is true in general, or is the legal system a "special" case here?


I am drawing the conclusions I am drawing because nobody has offered a better explanation that fits all of the facts. I am not married to the explanation I offer for this. I am willing and, indeed, happy to replace it with something that fits the facts better. Finding the best explanation for the evidence at hand is my mission. As such, you should feel free to offer one, if you're capable of doing so.

My bet is that you're not capable of doing that, that your abilities here are limited to criticism of others. But if you've got a better explanation, then spill it. Otherwise, you've got even less of a leg to stand on than I.



Well obviously there can only be one possible explanation for that lol. Your total lack of real-world experience prevents you from considering let alone ruling out other explanations why cases with similar facts may be decided differently. So much for your "scientific method." :laugh:
What other explanations? Again, offer them if they exist. But remember that they are invalid if they fail to explain the other things in question (unless, that is, you offer alternate explanations for those other things as well). Remember: your explanations have to explain the data better and have to also provide predictive power. An "explanation" that is incapable of yielding testable predictions is worthless and is to be discarded out of hand.

And in the specific case you're responding to here, I'm not talking about cases with similar facts, I'm talking about cases with absolutely identical facts (which, in this case, also include identical laws and identical precedence). Go ahead and offer up an explanation of why two courts would issue differing decisions when presented the exact same set of facts, laws, and precedence. This should be amusing.

Hell, I can give you an even slower softball to try to hit. Explain why the same court would issue differing decisions when presented the exact same set of facts, laws, and precedence. Explain why a court would overturn itself as a result of an en banc appeal, i.e. when the only difference is who is issuing the decision.


Same facts. Same laws. Same precedence. Different results.

Same inputs. Different outputs. There is a term for a system which behaves that way: nondeterministic. There is another term that applies equally: unpredictable. And that is exactly the trait that you do not want in a system that decides what people should and should not be doing, because it makes that system arbitrary and capricious.

When the only variable is who is issuing the decision, then it follows that either the reason for different results is nondeterminism baked directly into the system, or the reason is them. What of consequence differs between them that they would issue different decisions under those conditions? Their beliefs.


Either the system is inherently arbitrary and capricious internally, or these decisions are being made on the basis of the beliefs of those making them. No other choices are left on the table. Logic forces you to choose between those two. So which is it?




Trust me, I'm not butthurt at all about your bloviating. :laugh:No, I'm sure you're not. People who ignore the real world tend to be blissful in that way.

Tincon
10-30-2013, 2:56 PM
Thanks to a lawsuit brought by the Chairman of CalGuns.nuts, Gene Hoffman, California cities and counties are now free to pass laws invalidating concealed carry permits issued from other jurisdictions as well as their own. The case is CalGuns Foundation v. San Mateo County.

Charles, are you confused about the difference between the website, Calguns.net, and the separate Calguns Foundation? Maybe someone can explain it to you. I would, but I'm not particularly good with children.

Sgt Raven
10-30-2013, 3:35 PM
Charles, are you confused about the difference between the website, Calguns.net, and the separate Calguns Foundation? Maybe someone can explain it to you. I would, but I'm not particularly good with children.


Bazinga..................

Mulay El Raisuli
10-31-2013, 7:34 AM
No. Our disagreement, such as it is, is twofold:



Firstly, on the difference between an interpretation being a plausible one versus being the sole valid one.
Secondly, on the implications of a citation.


Your argument is that Heller's meaning as regards carry in public is that the 2nd Amendment only protects open carry because the Court cited cases such as Nunn v State. Your argument appears to be founded upon the notion that when the Supreme Court cites a case, it is incorporating the entirety of the cited decision into the citing decision as if the Supreme Court uttered the words of the case it is citing. I can think of no other reason why you continuously claim that the Supreme Court said that the 2nd Amendment protects only open carry.

That, of course, is incorrect. The purpose of a citation is to provide supporting evidence for an argument. What the Court is directly saying is the argument it is actually making. Anything beyond that is inference. And in the case of Heller the argument the Court is actually making is this:



The Court did not state that the 2nd Amendment protects only open carry. It stated that, simply, the 2nd Amendment's protection of carry is not all-inclusive.

Inference is valid, of course, but that one can infer a specific thing from the statements made by the Court does not necessarily mean that said inference is the only valid inference from those statements. And so it is with the carry issue. Your inference is a valid one, but not the only valid one. Another valid inference is the "states may choose" one, because the latter is not contradicted by the citations.

But that there exist valid inferences does not mean that there are no invalid inferences. There most certainly are. And the inference that the 2nd Amendment does not apply outside the home is one such. For the Supreme Court does not talk about how the 2nd Amendment's protection does not apply to specific outside the home contexts if the Court means for the protection of the 2nd Amendment to not exist at all outside the home. If the Court meant that, it would not have bothered with stating outside-the-home exemptions, for the existence of an exemption implies the existence of that which is being exempted from. Hence, that the 2nd Amendment applies outside the home is a valid inference, whilst its opposite is not.

When one inference is valid, its opposite must be invalid. One cannot infer both A and !A simultaneously, as that would be a contradiction. Such is the case with the applicability of the 2nd Amendment outside the home. But the open carry versus states ability to choose debate is not that kind of conflict, because the two interpretations are not diametric opposites of each other.

Finally, if there exists a sole valid inference, as the outside-the-home inference is, then that inference carries the same logical weight as the actual decision from which the inference is drawn. Logic does not allow for anything else. It may be that this isn't regarded as true in the legal world, but that would only serve to buttress my previously-made case.


I agree. But I have never claimed that the Court citation of Nunn was an incorporation of the entirety of the Decision. My claim is that what matters is what parts of Nunn the Court chose to quote, & the actual words of the court itself.

For example, the first citation of Nunn was:


"In Nunn v. State, 1Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second Amendment as protecting the “natural right of self-defence” and therefore struck down a ban on carrying pistols openly. Its opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right:

“The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I. and his two wicked sons and successors, re-established by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our own Magna Charta!”

Note the Court saying that Nunn "perfectly captures" the operative clause right after noting that Nunn Court struck down a ban on carrying openly? I did.

I also saw the words used by the Court in the rest of the paragraph you just quoted:

"...For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment , nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.26"

So, opening part of the paragraph you quote from talks about no right to keep any weapon in any manner (examined). While the middle of the paragraph talks about how prohibitions on concealed carry were lawful (examined). Then follows discussion about how prohibitions on felons & nutjobs, places to carry & how weapons are to be regulated for sale aren't going to be examined (deferred for now).

So, the actual words of the Court are quotes (as opposed to references to the case in its entirety) from Nunn, coupled with a comment that Nunn perfectly captures the Right. I conclude this is not just an inference, but a fairly strong one at that. My conclusion being based on the actual words used by the Court, which you say should be done. If you're going to claim that the issue of "any weapon, any time" is settled based on the paragraph you quote, then the issue of "prohibitions on concealed carry is equally settled.


The Raisuli

kcbrown
10-31-2013, 10:48 AM
I agree. But I have never claimed that the Court citation of Nunn was an incorporation of the entirety of the Decision. My claim is that what matters is what parts of Nunn the Court chose to quote, & the actual words of the court itself.

...

So, the actual words of the Court are quotes (as opposed to references to the case in its entirety) from Nunn, coupled with a comment that Nunn perfectly captures the Right. I conclude this is not just an inference, but a fairly strong one at that. My conclusion being based on the actual words used by the Court, which you say should be done. If you're going to claim that the issue of "any weapon, any time" is settled based on the paragraph you quote, then the issue of "prohibitions on concealed carry is equally settled.


But the Court didn't say that Nunn perfectly captures the right, it said it perfectly captures the way the operative clause furthers the stated purpose in the prefatory clause. Which is to say, it perfectly captures how the right to keep and bear arms furthers the security of a free state.

Why something is cited, even if it is directly quoted, is of monumental importance, and you appear to be ignoring that here.

Most certainly, when one cites something else for the purpose of his own argument, that is not ipso facto agreement with what is cited, it is merely evidence in support of his argument.

For instance, if I cite, with quotes, the opposition's statement in order to show that the 2nd Amendment applies outside the home, that does not automatically mean I agree with the opposition's statement in full! No, it means only that the opposition's statement bolsters the argument that the 2nd Amendment applies outside the home.


So once again, you're drawing inferences. And again, there's absolutely nothing wrong with that, and nothing wrong with insisting on the correctness of that inference, provided that the inference you're drawing is the sole inference that can be drawn. But in this case, it's not. The notion that the state can choose a preferred mode of carry, but cannot foreclose the right, is also consistent with the cases in question. But I will admit that as regards inferences, yours might be the stronger one as regards that which was cited (though, in light of the above, I would argue that the difference in strength is relatively small). That makes the other inference no less valid.

So the bottom line is this: both inferences are valid, but the "states may choose" inference, while not quite as strong in certain respects, is the more deferential and therefore the most logical one to go with initially, as we had. But inasmuch as those efforts have failed utterly thus far, it's time to try something different. Time to try the inference that is stronger (even if only slightly) as regards the text of the decision in Heller (Tincon's argument is a solid one, but the courts are no less capable of ignoring it than they are anything else). After all, what in the world have we to lose by it at this point? The "states may choose" rounds have already been fired, and only a couple of them are still flying towards their target. The rest have been swatted away like flies.

Mulay El Raisuli
11-01-2013, 6:42 AM
But the Court didn't say that Nunn perfectly captures the right, it said it perfectly captures the way the operative clause furthers the stated purpose in the prefatory clause. Which is to say, it perfectly captures how the right to keep and bear arms furthers the security of a free state.

Why something is cited, even if it is directly quoted, is of monumental importance, and you appear to be ignoring that here.

Most certainly, when one cites something else for the purpose of his own argument, that is not ipso facto agreement with what is cited, it is merely evidence in support of his argument.

For instance, if I cite, with quotes, the opposition's statement in order to show that the 2nd Amendment applies outside the home, that does not automatically mean I agree with the opposition's statement in full! No, it means only that the opposition's statement bolsters the argument that the 2nd Amendment applies outside the home.


So once again, you're drawing inferences. And again, there's absolutely nothing wrong with that, and nothing wrong with insisting on the correctness of that inference, provided that the inference you're drawing is the sole inference that can be drawn. But in this case, it's not. The notion that the state can choose a preferred mode of carry, but cannot foreclose the right, is also consistent with the cases in question. But I will admit that as regards inferences, yours might be the stronger one as regards that which was cited (though, in light of the above, I would argue that the difference in strength is relatively small). That makes the other inference no less valid.

So the bottom line is this: both inferences are valid, but the "states may choose" inference, while not quite as strong in certain respects, is the more deferential and therefore the most logical one to go with initially, as we had. But inasmuch as those efforts have failed utterly thus far, it's time to try something different. Time to try the inference that is stronger (even if only slightly) as regards the text of the decision in Heller (Tincon's argument is a solid one, but the courts are no less capable of ignoring it than they are anything else). After all, what in the world have we to lose by it at this point? The "states may choose" rounds have already been fired, and only a couple of them are still flying towards their target. The rest have been swatted away like flies.


Nah, I think it's stronger than that. And, "deferential" is a good reason to NOT go with the 'states may choose' option.

But as you say, THE strongest reason to to bring an LOC only case is that the other approach hasn't done Jack Squat.


The Raisuli

highbrass
11-01-2013, 8:25 AM
The "service" I provide, such as it is, is to bring reality into the discussion in a way that few seem to be able to.

You're very good at this, and they should really listen to you. You're arguably the most accurate poster on this site, or should I say left on the site.

In lurking here, it seems that so many people who speak the truth get banned or run off. Even saying that is scary. It's worrisome to be afraid of fellow gun owners.

Toldyouso and knowyourrights all make very excellent points, but one of them is gone, and the other seems to be on the ropes.

Fabio, you can play coy all you want, but KC is right, and you're wrong. You may not want to admit you work in a dirty business, but KC knows exactly what the outcomes of court cases are going to be. There is no magical case, plaintiff, language or argument that will win over a hostile court.

Mitch
11-01-2013, 11:13 AM
Fabio, you can play coy all you want, but KC is right, and you're wrong. You may not want to admit you work in a dirty business, but KC knows exactly what the outcomes of court cases are going to be. There is no magical case, plaintiff, language or argument that will win over a hostile court.

Wat? Fabio is the only member of Calguns with a consistent record of not only predicting the outcome of cases, but even predicting the specific wording of the decisions.

highbrass
11-01-2013, 11:19 AM
Wat? Fabio is the only member of Calguns with a consistent record of not only predicting the outcome of cases, but even predicting the specific wording of the decisions.

That's not terribly difficult, once you understand the game and the direction the court wants to go. KC and others now gone from here are also quite good at that.

If he's good enough to anticipate phrasing and colloquial speech, you have to wonder if he might be clerking for the court or working for the opposition writing proposed orders, findings of fact and conclusions of law.

BTW, if FGG predicts court rulings, he proves KC's point.

kcbrown
11-01-2013, 11:44 AM
You're very good at this, and they should really listen to you. You're arguably the most accurate poster on this site, or should I say left on the site.

...

Fabio, you can play coy all you want, but KC is right, and you're wrong. You may not want to admit you work in a dirty business, but KC knows exactly what the outcomes of court cases are going to be. There is no magical case, plaintiff, language or argument that will win over a hostile court.

Thanks very much for the high praise! However, the highlighted is overstating it a bit. I don't know what the outcome of these court cases will be anymore than anyone else does. As I said, the system is nondeterministic, and that makes it inherently unpredictable, at least to the point of certainty (i.e., knowledge). So there is always a degree of uncertainty in my predictions about court cases unless the outcome itself is logically determinable to the point of certainty, a very rare thing.

Fear is a very, very powerful motivator which often causes people to do things they might not otherwise do. Judges are no exception to that, and this particular issue is by its nature one that strikes fear into the hearts of overcontrolling Democrats (who fear it because they believe that the people are inherently untrustworthy and an armed population is one that is much more difficult to control through force) and "law and order" Republicans (who fear it because an armed population cannot be "brought to justice" as easily as an unarmed one) alike. Republicans appear to be more likely to support the right than Democrats, but both are supportive of significantly restricting the right (how many of either would support treating machine guns the same way that all other rifles are treated?). Once one takes off one's own rose colored glasses, predicting that most of these carry challenges will fail is not hard, and predicting that the anti-gun strongholds will steadfastly refuse to uphold the right is likewise not hard.

There have been some surprises for me, both pleasant and unpleasant. I was pleasantly surprised by the 7th Circuit, and similarly by the Maryland district court. Unfortunately, they are shining beacons in a sea of sharks. I was unpleasantly surprised by the 5th Circuit in its decision in NRA v BATFE. Not terribly surprised, mind you, but it was a bit of one, for if there's any circuit that should support the right to keep and bear arms, it is the one covering the most pro-gun section of the nation. That the 5th Circuit, of all circuits, would refuse to uphold the right is immensely ominous, and should not be treated lightly.


In any case, the bottom line is this: this fight is going to be harder than most of us think. It will test many of us in ways that few things can. The kind of spirit we all need to have is that of the founders of the country, or of the Greatest Generation, both of whom would never give up even if they thought that winning was impossible, because for them, what mattered is not that they could win, but what they were fighting for. We need that same spirit, that same grim determination.

So do not take what I say as reason to give up! Take what I say as reason to steel your resolve, to toughen your stance, and to press onward.

kcbrown
11-01-2013, 11:49 AM
BTW, if FGG predicts court rulings, he proves KC's point.

Well, no, that doesn't, actually. FGG didn't say that court rulings were unpredictable, only that my predictions and conclusions were bunk. :D

He can disagree with my characterization of the judicial system all he likes, but the end results of its operation speak for themselves, and the doctrines it has adopted speak volumes.

kcbrown
11-01-2013, 11:50 AM
Wat? Fabio is the only member of Calguns with a consistent record of not only predicting the outcome of cases, but even predicting the specific wording of the decisions.

That's true, but note that his predictions have been limited to specific cases (CGF supported ones, in particular, because it seems he likes to pick on CGF). He has not opined on the majority of them, at least that I've seen.

kcbrown
11-01-2013, 8:13 PM
Nah, I think it's stronger than that. And, "deferential" is a good reason to NOT go with the 'states may choose' option.


Well, hindsight is 20/20 here. The "deferential" interpretation was thought to be better because it was thought that it would have a higher chance of winning the courts over.

It appears that our side didn't count on the courts being so insistent upon ruling against us. If there is additional strategy on our side that presumes consistent losses in the courts coupled with the Supreme Court "fiddling while Rome burns", as it were, I am unaware of it.

Time to try something else.



But as you say, THE strongest reason to to bring an LOC only case is that the other approach hasn't done Jack Squat.
Pretty much. And if there are additional angles from which carry can be attacked, then we should attack in that manner as well. I'd strongly prefer that it be done in an optimal order and all that, but I'm becoming ever more convinced that we simply haven't sufficient time for it. If we don't win carry in the next 3 years or so, I expect we're not going to win it at all, ever.

curtisfong
11-01-2013, 8:39 PM
FGG's talent is to point out the flaws that the courts will use to hang their hats on to throw out 2A cases.

FGG claims that if you don't have any flaws, they won't throw out 2A cases.

KC claims that if you don't have any flaws, they will find other reasons to throw out 2A cases.

My claim is that a flawless case is impossible, such that there will always be at least flaw they will exploit to throw out 2A cases.

Arguing in the alternative (that a flawless case is possible), I would agree with KC.

knowyourrights
11-01-2013, 8:41 PM
Why Concealed Carry will be at Most a Hollow Victory in California Charles Nichols/OP ED California Right To Carry Redondo Beach, California Contact: Press@CaliforniaRightToCarry.org 11/1/2013

We have been waiting nearly 11 months for the 9 th Circuit Court of Appeals to publish its decisions in two Federal lawsuits seeking to require the County Sheriffs of San Diego and Yolo Counties to issue permits to carry concealed handguns. It took only six days for the Court of Appeals to issue its latest decision which once again held that convicted felons do not have a right to keep and bear arms.

For the sake of argument let us assume that the 9 th Circuit Court of Appeals does what no other Circuit Court of Appeals has done and that is to conclude that states can ban firearms from being openly carried (Open Carry) and must allow for the carrying of concealed handguns in public. Never mind that the US Supreme Court said just the opposite, that Open Carry is the right guaranteed by the Constitution and concealed carry is not.

So having assumed that the plaintiffs in these cases win, it won't be much of a victory. Even if they prevail in the Court of Appeals and win everything they asked for in the district courts, the Sheriffs will still be allowed to say when people with their permits can carry a concealed handgun, where it can be carried, what kind of handgun can be carried as well as any other restrictions on the permit the Sheriffs choose to make.

You see the lawyers that brought the lawsuits forgot to challenge that part of the law which provides for the issuance of concealed carry permits with restrictions. If the Sheriffs want to limit persons to carrying unloaded, single-shot flintlock pistols and limit their permits to their front yards every other blue moon then they can do so.

But let us assume that they go back to Federal Court and in another five years somehow obtain a decision which requires the Sheriffs to issue unrestricted concealed carry permits.

It still won't matter.

Thanks to a recent decision by the California Court of Appeals, cities and counties are free to enact local laws which nullify carry permits.

How did that happen you may well ask? Well, the Chairman of the Calguns Foundation (Gene Hoffman) filed a lawsuit in state court challenging a local ordinance by San Mateo County regulating the carrying of firearms in their parks and recreation areas. The laws were pretty straightforward, unless you were at one of the shooting ranges in a park or recreation area then you had to carry your firearms unloaded either openly or in a locked container when going to or from the shooting range or on a trail.

Gene Hoffman has a concealed carry permit and he wanted to wander around San Mateo County parks and recreation areas while carrying a loaded concealed handgun. So he sued the county claiming that the county ordinances are preempted by state law. Which means that, absent any restrictions listed on the permit by the county sheriff or police chief that issued the license, his permit was valid throughout the state.

Both the trial court and the court of appeals disagreed. The courts reasoned that since county sheriffs and police chiefs can place restrictions on a permit then so can local governments.

Anyone who has a permit to carry a firearm, loaded or unloaded, openly or concealed, must now check the local laws of every city and county he finds himself or risk arrest, prosecution fine, imprisonment and potentially his right to even possess a firearm let alone to carry one in public.

The Calguns Foundation in conjunction with the Second Amendment Foundation (SAF) jointly filed one of the two lawsuits seeking concealed carry permits in Yolo County. The lawsuit seeking concealed carry permits in San Diego County was brought by the California Rifle and Pistol Association (CRPA) which is the official state organization of the National Rifle Association (NRA).

So, even if they “win” in the court of appeals it will be a hollow victory.

Charles Nichols, President of California Right To Carry has a Federal lawsuit which argues that no permit can be required for an individual to exercise his fundamental, enumerated right to openly carry a firearm for the purpose of self-defense and is challenging California's bans on openly carrying loaded and unloaded firearms in public.

Mr. Nichols lawsuit, unlike the ones brought by the NRA/CRPA/SAF/CalGuns, argues that the government can neither require a permit to openly carry a firearm in non-sensitive public places nor can it place conditions on openly carrying a firearm that county sheriffs and police chiefs will still be free to place on concealed carry permits if the so called gun-rights groups prevail.

A hearing on Mr. Nichols motion for partial summary judgment is scheduled for December in the Federal Courthouse on Spring Street in Los Angeles.

kcbrown
11-01-2013, 10:41 PM
FGG's talent is to point out the flaws that the courts will use to hang their hats on to throw out 2A cases.

FGG claims that if you don't have any flaws, they won't throw out 2A cases.

KC claims that if you don't have any flaws, they will find other reasons to throw out 2A cases.

My claim is that a flawless case is impossible, such that there will always be at least flaw they will exploit to throw out 2A cases.

Arguing in the alternative (that a flawless case is possible), I would agree with KC.

But in reality, what is a "flaw" in a case, anyway?

Flawed logic? We've already seen that courts will ignore logic if doing so will allow them to reach the conclusion they wish to reach. Fabio has done the same thing as regards whether or not scrutiny is a means by which a court can decide on a case by case basis whether the right in question is really worth insisting upon, by engaging in Doublespeak (http://www.calguns.net/calgunforum/showpost.php?p=12288215&postcount=92). But it is still possible for the arguments made by counsel to have logical flaws, and courts are correct to disregard arguments that are actually logically flawed.

Flawed use of precedent? But we know that there is all manner of precedent to choose from, so that is largely arbitrary. One can use whatever precedent one wishes to arrive at whatever conclusion one wants. That is the consequence of having a couple of hundred years of jurisprudence to choose from, plus another several hundred years of "common law" jurisprudence to choose from, plus a judicial system which does not employ rigorous logic (thus resulting in conflicting precedent and, thus, the availability of precedent that will support whatever argument one wishes to make).

Flawed interpretation of the law? If the law is written ambiguously, as is often the case, then this is not a flaw in the case, but rather yet another way the court can achieve whatever ends it wishes. An honest court will use additional materials to determine the intended meaning of the law, but that, too, can be ambiguous. A dishonest court can, I expect, dive into those materials when the law as written is unambiguous for the purpose of justifying an interpretation that matches the end the court wishes to reach. It is, of course, a flaw in the case if the interpretation used is counter to the plain meaning of the law.


My point here is that what can be regarded as a "flaw" in the case by the court is, unless the flaw really is in the logic itself or counsel is stupid enough to insist on an interpretation of the law that conflicts with the plain meaning therein, not really a flaw at all, but rather an ambiguity that the court can use to achieve the outcome it desires. If the court were truly interested in resolving the ambiguity in question, it could certify a question to the Supreme Court. If the court is the Supreme Court then, of course, the court would have to resolve the ambiguity on its own, and doing so properly would require the very best scholarship and understanding of the material on its part and would, of course, require absolute honesty on the part of the Supreme Court (something you'll never get, because only the most extraordinary people with that kind of power will refrain from abusing it). For the courts to do anything else, as they usually do, is for the courts to abandon their mandate, to inject their own biases into the stream of precedence, thus resulting in the mess we now have.

As I said before, if the courts invoked rigorous logic and were rigorous about applying the meaning of words (which is to say, reading words by their plain meaning as it was at the time the words were written, since the purpose of the use of words is to convey meaning, and that cannot be conveyed properly if one is using a vernacular that differs from that of the authors of the words in question), then the use of precedence would be unnecessary (or, more precisely, reduced to an extended dictionary). Ambiguities might need to be resolved, but they'd need to be resolved only once per ambiguity.


The bottom line is this: whether or not a "flawless" case is possible is actually immaterial. There is plenty from which the court can manufacture a "flaw" if it does not actually find one in the case itself, and most of that which the courts can select from is of the judicial system's own making.

Gray Peterson
11-02-2013, 4:01 AM
Both the trial court and the court of appeals disagreed. The courts reasoned that since county sheriffs and police chiefs can place restrictions on a permit then so can local governments.

.

We disagree, for several reasons. First of all, the statute mainly relied on by the NRA, section 26150, specifically states that the county sheriff "may" issue a license to an applicant. Further, section 26200 makes very clear that an issued license "may include any reasonable restrictions or conditions" regarding when and where a licensee may carry his weapon. Under these sections, the sheriff clearly has "`extremely broad discretion' . . . concerning the issuance of concealed weapons licenses . . . ." (Gifford v. City of Los Angeles (2001) 88 Cal.App.4th 801, 805.) That being the case, it logically follows that the employer and supervisor of the sheriff, i.e., the County Board of Supervisors, also has the authority to provide, via its legislative process, for exceptions and conditions to when and where an issued "Carry License" may be validly used.

Sheriffs are not employed by or supervised by the County Board of Supervisors.

Paladin
11-02-2013, 5:32 AM
We disagree, for several reasons. First of all, the statute mainly relied on by the NRA, section 26150, specifically states that the county sheriff "may" issue a license to an applicant. Further, section 26200 makes very clear that an issued license "may include any reasonable restrictions or conditions" regarding when and where a licensee may carry his weapon. Under these sections, the sheriff clearly has "`extremely broad discretion' . . . concerning the issuance of concealed weapons licenses . . . ." (Gifford v. City of Los Angeles (2001) 88 Cal.App.4th 801, 805.) That being the case, it logically follows that the employer and supervisor of the sheriff, i.e., the County Board of Supervisors, also has the authority to provide, via its legislative process, for exceptions and conditions to when and where an issued "Carry License" may be validly used.

Sheriffs are not employed by or supervised by the County Board of Supervisors.So is this case being appealed to the CA SC?

Mulay El Raisuli
11-02-2013, 6:13 AM
Well, hindsight is 20/20 here. The "deferential" interpretation was thought to be better because it was thought that it would have a higher chance of winning the courts over.

It appears that our side didn't count on the courts being so insistent upon ruling against us. If there is additional strategy on our side that presumes consistent losses in the courts coupled with the Supreme Court "fiddling while Rome burns", as it were, I am unaware of it.

Time to try something else.


Pretty much. And if there are additional angles from which carry can be attacked, then we should attack in that manner as well. I'd strongly prefer that it be done in an optimal order and all that, but I'm becoming ever more convinced that we simply haven't sufficient time for it. If we don't win carry in the next 3 years or so, I expect we're not going to win it at all, ever.


My fear as well. That's why I was so opposed to the 'CCW first' effort. Now we've wasted five whole years on a fool's errand & the Heller-5 ain't getting any younger.


The Raisuli

kcbrown
11-02-2013, 1:56 PM
We disagree, for several reasons. First of all, the statute mainly relied on by the NRA, section 26150, specifically states that the county sheriff "may" issue a license to an applicant. Further, section 26200 makes very clear that an issued license "may include any reasonable restrictions or conditions" regarding when and where a licensee may carry his weapon. Under these sections, the sheriff clearly has "`extremely broad discretion' . . . concerning the issuance of concealed weapons licenses . . . ." (Gifford v. City of Los Angeles (2001) 88 Cal.App.4th 801, 805.) That being the case, it logically follows that the employer and supervisor of the sheriff, i.e., the County Board of Supervisors, also has the authority to provide, via its legislative process, for exceptions and conditions to when and where an issued "Carry License" may be validly used.

Sheriffs are not employed by or supervised by the County Board of Supervisors.

No, but police chiefs are, and so while the wording of the decision is in error, the conclusion is not.

Or, rather, the conclusion wouldn't be if the logical inference weren't itself in error. There is no logical connection between the chief of police and his employer as regards authority granted by the statute. Power granted to an individual does not automatically translate to power granted to his employer. If the court's statement were true, then the statutory police power granted to a police officer (and, especially to the chief of police) would also be granted to the supervisor(s) of the police department, i.e. the board of supervisors, etc. Such is most emphatically not the case.

As such, thanks to this logical error, this case actually sets a rather nasty precedent, for one can recursively apply the "logic" used here to conclude that every supervisory entity in the chain all the way to the very top has granted to it the statutory power explicitly granted to the specific people called out by the legislation as having that power. The same would, obviously, apply to statutory exemptions.

Gray Peterson
11-02-2013, 2:25 PM
So is this case being appealed to the CA SC?

Yes the case has been petitioned for both review and depublishing.

1859sharps
11-02-2013, 9:35 PM
But what the hell, he's 'doing something' right, who cares if it's burning the house down it's 'something'.

I seem to remember the open carry crowd was "doing something" too, and that worked out so well for us.

OleCuss
11-03-2013, 7:39 AM
I'm really pleased at the folk who think Nichols is doing a bang-up job!

In a similar vein, rather than paying a trained hair stylist/barber/whatever, here is a link to where you can buy a Flowbee: http://www.flowbee.com/order_page.htm

And if you are having tummy pain, no need for imaging to figure out what is wrong and maybe having to pay for an expensive surgeon - you can buy scalpels here: http://www.amazon.com/Disposable-Scalpels-10-Miltex-Box/dp/B0008F6HFY/ref=sr_1_1?ie=UTF8&qid=1383492616&sr=8-1&keywords=scalpel After all, if you can hold a scalpel it means you are as competent as that surgeon who's been to years of training and likely has additional years of experience and operates where he is monitored by his/her peers.

And when you need a CPA, just grab any old 5th grader. . . They know how add and subtract too!


There is a reason why lawyers get an undergraduate degree and then go on to spend additional years getting their JD. Oh, and even then they aren't considered legally competent unless they've passed the bar.

But Nichols is obviously more legally competent in the area of strategic RKBA litigation than are Michel and his group. Nichols, the hero that he is, doesn't need that legal training and all those years of championing the RKBA in various courts. . .

taperxz
11-03-2013, 8:33 AM
No, but police chiefs are, and so while the wording of the decision is in error, the conclusion is not.

Or, rather, the conclusion wouldn't be if the logical inference weren't itself in error. There is no logical connection between the chief of police and his employer as regards authority granted by the statute. Power granted to an individual does not automatically translate to power granted to his employer. If the court's statement were true, then the statutory police power granted to a police officer (and, especially to the chief of police) would also be granted to the supervisor(s) of the police department, i.e. the board of supervisors, etc. Such is most emphatically not the case.

As such, thanks to this logical error, this case actually sets a rather nasty precedent, for one can recursively apply the "logic" used here to conclude that every supervisory entity in the chain all the way to the very top has granted to it the statutory power explicitly granted to the specific people called out by the legislation as having that power. The same would, obviously, apply to statutory exemptions.

A Chief of Police only has the say on actually issuing a CCW. He doesn't have the final say. That would fall on the Sheriff.

If a COP decides to not issue, the applicant can then go over their head and apply with the Sheriff who can issue whether the COP likes it or not.

Mitch
11-03-2013, 10:38 AM
That's not terribly difficult, once you understand the game and the direction the court wants to go. KC and others now gone from here are also quite good at that.

Then how come he's the only one who has managed to do it, again and again? Are you suggesting everyone else around here is a posturing idiot? That's not very nice.

kcbrown
11-03-2013, 2:49 PM
A Chief of Police only has the say on actually issuing a CCW. He doesn't have the final say. That would fall on the Sheriff.


Can you be more specific? I don't recall seeing anything in the law that would prevent a chief of police from issuing a license, nor one that would prevent him from placing restrictions on it.

Obviously, the sheriff can issue a license when the chief of police refuses to, but similarly, if the sheriff refuses, the chief of police can.

In short, I recall no difference between the chief of police and the sheriff as regards this statutory power, nor do I recall anything that suggests that the sheriff's decision overrides that of the chief of police.

But if I'm misremembering, then please cite the section of the statute that contradicts me here.


If a COP decides to not issue, the applicant can then go over their head and apply with the Sheriff who can issue whether the COP likes it or not.And similarly, if the Sheriff refuses to issue, the applicant can go to the chief of police and, if he chooses to issue, there's nothing the Sheriff can do about it.

That just means that both have identical power, not that one has overruling authority over the other.

flyonwall
11-03-2013, 3:07 PM
Gray: who is "we"?
Please tell me you aren't part of the process.

Gray Peterson
11-03-2013, 3:27 PM
Gray: who is "we"?
Please tell me you aren't part of the process.

If your referring to "We disagree", it was a quote from the appellate court decision. The italics should have been a clue.....

taperxz
11-03-2013, 3:55 PM
Can you be more specific? I don't recall seeing anything in the law that would prevent a chief of police from issuing a license, nor one that would prevent him from placing restrictions on it.

Obviously, the sheriff can issue a license when the chief of police refuses to, but similarly, if the sheriff refuses, the chief of police can.

In short, I recall no difference between the chief of police and the sheriff as regards this statutory power, nor do I recall anything that suggests that the sheriff's decision overrides that of the chief of police.

But if I'm misremembering, then please cite the section of the statute that contradicts me here.

And similarly, if the Sheriff refuses to issue, the applicant can go to the chief of police and, if he chooses to issue, there's nothing the Sheriff can do about it.

That just means that both have identical power, not that one has overruling authority over the other.

All true but by statute, A sheriff HAS to address the situation by law. A COP can opt to address or not address the CCW laws in the state. (per G)

flyonwall
11-03-2013, 4:57 PM
Sorry Gray if my sarcasm again eludes you.
Just wondering why you are here posting and what you have to do with anything related to this topic or how it assists us.
It would seem your presence and history of attacking people for who they are would keep you away from here. But I guess you also fail to appreciate irony. . California forum when you Don't live here and are the poster child for wrong person, wrong case, wrong time and wrong place.
This is a discussion about the merits of Nichols action and why the NRA felt the need to interfere.q

kcbrown
11-03-2013, 6:10 PM
All true but by statute, A sheriff HAS to address the situation by law. A COP can opt to address or not address the CCW laws in the state. (per G)

Well, that may be (though I don't recall anything in the law distinguishing on that basis, either), but there is no difference between a COP not "addressing the situation" and him not issuing at all.

Similarly, the Sheriff can also opt to not issue at all. Don't believe me? The Santa Clara sheriff is doing precisely that and is getting away with it.


Regardless, since the sheriff has arbitrary authority over issuance of permits, as does the COP, either one can "accept" applications only to never actually issue a permit. Which is to say, both can deny all applicants on whatever basis they wish.


So at the end of the day, there is no real difference between the two. The statute grants identical authority to each.

And as a result, the decision in question would be correct if its "logic" were correct, but it's clearly not, as applying that "logic" equally to other statutes yields results that the very same court is unlikely to agree with.

OleCuss
11-03-2013, 6:15 PM
Sorry Gray if my sarcasm again eludes you.
Just wondering why you are here posting and what you have to do with anything related to this topic or how it assists us.
It would seem your presence and history of attacking people for who they are would keep you away from here. But I guess you also fail to appreciate irony. . California forum when you Don't live here and are the poster child for wrong person, wrong case, wrong time and wrong place.
This is a discussion about the merits of Nichols action and why the NRA felt the need to interfere.q

Gray has been very active in supporting the RKBA here in California. This may not be his primary state of residence, but he has been here many times and in many ways to support our freedom.

This is not a case of someone taking potshots at people from several states away, this is someone who is fighting for our freedom.

You needn't agree with him or even respect his positions, but his devotion to our freedom should earn him a certain respect and a lack of concern about his place of primary residence.

chainsaw
11-03-2013, 8:51 PM
Gray has been very active in supporting the RKBA here in California. This may not be his primary state of residence, but he has been here many times and in many ways to support our freedom.

This is not a case of someone taking potshots at people from several states away, this is someone who is fighting for our freedom.

You needn't agree with him or even respect his positions, but his devotion to our freedom should earn him a certain respect and a lack of concern about his place of primary residence.

Quoted for amusement value.

Where is the Greek choir, singing the praises of the San Mateo carry case? According to the script, they should be coming up next.

This whole thing is like a classical Greek comedy, except by mistake it was written by Euripides.

OleCuss
11-03-2013, 9:05 PM
I think you are misunderstanding what I said.

I did not address the merits of any positions he may take or any cases he may or may not be involved - or anything of the sort for Gray. I'll leave that to others who know more than do I about the merits of various cases and such.

My point was/is that Gray may not have his primary residence in this state, but he is/has been very involved in the fight for our rights in this state. Going after him based on his primary residence really doesn't make sense to me.

I'll give Nichols, Birdt, etc. props for being ardently interested in fighting for our rights. I have huge problems with some of what Nichols has done and I'd rather that neither were involved in strategic litigation, but that doesn't mean we can't respect their desire for freedom. Gray should be respected as well even if you disagree with him vociferously on virtually every point.

When dealing with allies we should attack the idea and/or action, not the person.

For that matter, when dealing with oppressors it is usually more productive to attack the idea and/or action rather than the person. But honestly, some of the oppressors are just plain evil - and it can be difficult to avoid addressing that at times.

chainsaw
11-03-2013, 9:17 PM
OleCuss: Now that you have rephrased it, I agree with you.

Gray, Gene, Nichols, Brandt, Guillory, and so many others have done serious damage to gun rights in California. It would have been preferable if they stayed at home, and took up a different hobby (like competitive board games). But you are correct: they mean well, and they work hard.

curtisfong
11-03-2013, 9:26 PM
I thought you wanted fewer gun rights, chainsaw. You should be accordingly grateful.

Gray Peterson
11-03-2013, 9:30 PM
Quoted for amusement value.

Where is the Greek choir, singing the praises of the San Mateo carry case? According to the script, they should be coming up next.

This whole thing is like a classical Greek comedy, except by mistake it was written by Euripides.

I seemed to have missed where

A) I was a plaintiff in the San Mateo carry case (I'm not even eligible for a license in California because of non-residency, so I wouldn't have been anyway).

B) I was a lawyer involved (not a lawyer). I merely culled the data from the appellate court decision, plus I have the same public access to the CGF v. San Mateo Supreme Court docket as everyone else has.

I pointed out what I believed to be a major factual error in the appellate court decision in the middle of a germane discussion about the extent the courts are willing to go hand 2A & pro-gun side losses, including flat out lying and making stuff up, as KCBrown keeps saying that they do.

taperxz
11-04-2013, 8:39 AM
Well, that may be (though I don't recall anything in the law distinguishing on that basis, either), but there is no difference between a COP not "addressing the situation" and him not issuing at all.

Similarly, the Sheriff can also opt to not issue at all. Don't believe me? The Santa Clara sheriff is doing precisely that and is getting away with it.


Regardless, since the sheriff has arbitrary authority over issuance of permits, as does the COP, either one can "accept" applications only to never actually issue a permit. Which is to say, both can deny all applicants on whatever basis they wish.


So at the end of the day, there is no real difference between the two. The statute grants identical authority to each.

And as a result, the decision in question would be correct if its "logic" were correct, but it's clearly not, as applying that "logic" equally to other statutes yields results that the very same court is unlikely to agree with.

Someone has not been paying attention here.

The sheriff of a county in CA MUST have a CCW policy in place per CA law.

Santa Clara is not issuing illegally because of the lawsuit filed by CGF. That puts the Sheriff in a holding pattern. (its total BS on her part though)

There is a huge difference between the two. A COP can summarily decide to not have a CCW policy or decide to actually have one. A Sheriff can't summarily decide to NOT have a policy.

Case and point, try to sue a COP for not having a policy for CCW's and see where that gets you.

curtisfong
11-04-2013, 9:57 AM
Case and point

Digression:

For all intensive purposes, its "case in point", irregardless.

kcbrown
11-04-2013, 11:25 AM
Someone has not been paying attention here.

The sheriff of a county in CA MUST have a CCW policy in place per CA law.


Okay. And this makes a practical difference how, exactly? More to the point, how does that make any difference whatsoever as regards the decision we're discussing? The law gives both the COP and the sheriff statutory power. The only difference is that the COP doesn't have to describe how or if he will exercise that power.

Sounds like a distinction without a difference to me, and certainly not one that would affect the decision.



Santa Clara is not issuing illegally because of the lawsuit filed by CGF. That puts the Sheriff in a holding pattern. (its total BS on her part though)
Even if Santa Clara were accepting applications, they could still be "zero-issue".

The "policy" can be anything the Sheriff wants it to be, and that means that the "policy" can easily result in zero issuance.



There is a huge difference between the two. A COP can summarily decide to not have a CCW policy or decide to actually have one. A Sheriff can't summarily decide to NOT have a policy.
Big freaking deal. How is that a "huge difference" in practice?

taperxz
11-04-2013, 1:54 PM
KC i was only making the distinction because it was brought up on how legislators or other officials can have a say in the process.

I was probably clarifying to much the difference and it does matter Since there are how many COP's compared to how many Sheriffs?

BTW, Santa Clara did issue to some (not many) prior to the CGF lawsuit.

The lawsuit itself is what stopped the Sheriff otherwise we may have had another way around this problem in that county.

Sorry for the confusion. You seem to be a little more uptight than normal these days.

kcbrown
11-04-2013, 4:01 PM
KC i was only making the distinction because it was brought up on how legislators or other officials can have a say in the process.


Right, well, that's the court's claim, and it's fundamentally flawed as I illustrated.



I was probably clarifying to much the difference and it does matter Since there are how many COP's compared to how many Sheriffs?
I actually suspect there's more of the former (COPs) than the latter. Be interesting to really know.



BTW, Santa Clara did issue to some (not many) prior to the CGF lawsuit.
Right. But I don't remember if they had a published policy.

In any case, it doesn't really matter. Santa Clara issued to whomever it wished, and it can still do so. It chooses to not accept applications at all (or, more precisely, not to publicly accept them. It would be naive to presume that nothing is happening under the table), but there's really nothing that is forcing them into that position. They just don't want their flank exposed more than it is.



The lawsuit itself is what stopped the Sheriff otherwise we may have had another way around this problem in that county.

Sorry for the confusion. You seem to be a little more uptight than normal these days.Heh. Constantly losing and seeing no path to victory will do that to you, I guess. Sorry. :(

I'm determined to fight no matter what, but I'm still only human... :o


There might have been some other way around the problem in Santa Clara had the sheriff not stopped taking applications entirely (and, frankly, I wouldn't be surprised if "special" people have a "back channel" they can use to get their permits if they so desire. Sheriff Smith is absolutely, utterly corrupt). But in any case, whether an entity is taking applications or not, it can still, by statutory authority, deny permits on whatever basis it chooses. Said basis doesn't even have to make sense. The sheriff could, for instance, say that their policy is to only issue to people who have actually been in space, on the basis that only someone who has done so has the proper firsthand perspective of our place in the universe, or some dumb thing like that. Such is the inevitable end result of granting arbitrary authority to an individual in that way.

J.D.Allen
11-05-2013, 11:13 AM
Wait, am I understanding this correctly? Cities and counties can now create their own laws and policies invalidating CCW's from other counties?

FABIO GETS GOOSED!!!
11-05-2013, 12:45 PM
Wait, am I understanding this correctly? Cities and counties can now create their own laws and policies invalidating CCW's from other counties?

You're not understanding it correctly. The challenged law does not invalidate CCW's from other counties, that's why CGF lost.

taperxz
11-05-2013, 6:54 PM
You're not understanding it correctly. The challenged law does not invalidate CCW's from other counties, that's why CGF lost.

Really? Can you expand? I'm assuming you are referring to CGF v San Mateo parks?

If you are, does this mean that San Mateo parks can not prevent out of county CCWers from carrying in those parks?

FABIO GETS GOOSED!!!
11-06-2013, 10:54 AM
Here (http://www.www.calguns.net/calgunforum/showpost.php?p=7363501&postcount=50) and here (http://www.courts.ca.gov/opinions/documents/A136092.PDF) (search term "plaintiffs reliance"). ETA: might as well throw this (http://www.www.calguns.net/calgunforum/showpost.php?p=8859546&postcount=68) in as well lol.

wolfwood
11-06-2013, 11:50 AM
Here (http://www.www.calguns.net/calgunforum/showpost.php?p=7363501&postcount=50) and here (http://www.courts.ca.gov/opinions/documents/A136092.PDF) (search term "plaintiffs reliance"). ETA: might as well throw this (http://www.www.calguns.net/calgunforum/showpost.php?p=8859546&postcount=68) in as well lol.

Someday I am going to get my family of Vietnamese software engineers to figure out who the man is behind Fabio. You know to much to just be a attorney with a passing interest in this litigation.

FABIO GETS GOOSED!!!
11-06-2013, 12:01 PM
You know to much to just be a attorney with a passing interest in this litigation.

Believe it or not that description is %100 accurate lol.

highbrass
11-06-2013, 2:46 PM
I'm really pleased at the folk who think Nichols is doing a bang-up job!

In a similar vein, rather than paying a trained hair stylist/barber/whatever, here is a link to where you can buy a Flowbee: http://www.flowbee.com/order_page.htm

And if you are having tummy pain, no need for imaging to figure out what is wrong and maybe having to pay for an expensive surgeon - you can buy scalpels here: http://www.amazon.com/Disposable-Scalpels-10-Miltex-Box/dp/B0008F6HFY/ref=sr_1_1?ie=UTF8&qid=1383492616&sr=8-1&keywords=scalpel After all, if you can hold a scalpel it means you are as competent as that surgeon who's been to years of training and likely has additional years of experience and operates where he is monitored by his/her peers.

And when you need a CPA, just grab any old 5th grader. . . They know how add and subtract too!


There is a reason why lawyers get an undergraduate degree and then go on to spend additional years getting their JD. Oh, and even then they aren't considered legally competent unless they've passed the bar.

But Nichols is obviously more legally competent in the area of strategic RKBA litigation than are Michel and his group. Nichols, the hero that he is, doesn't need that legal training and all those years of championing the RKBA in various courts. . .

I note that you didn't elucidate any specific flaw in his argument.

taperxz
11-08-2013, 8:12 PM
You will never get anyone here to post a flaw in his argument. Personal attacks are all they are capable of.

Welcome back Charles:)

OleCuss
11-09-2013, 9:31 AM
I note that you didn't elucidate any specific flaw in his argument.

Of course not. I do not pretend to be a lawyer.

I've had a lot of schooling/training in order to be qualified to do what I do. From time to time I end up having to be a witness in a deposition or court (never as a defendant). Even when I'm not a litigant I have representation by a lawyer.

I'm not stupid enough to believe that I can analyze a case, litigate it properly in court, and have a reasonably expert opinion that I will not harm that which I wish to help.

Even if I were a lawyer, if I went to court as the defendant or plaintiff - I'd be hiring representation because if you are the actual defendant or plaintiff it is going to be far too easy to get the wrong perspective and mess things up royally in court.

And along that line? I would think it a mistake to file strategic litigation on a RKBA case unless you had a team of lawyers. My perception is that the legal aspects at this time are just too complex for a single individual (however superb he/she may be) to ensure proper perspective/representation of the RKBA case without that skilled team.

In that vein? IIRC, it was the AB962 case which was litigated by M&A? Is there anyone who does not think that at least 3 of their lawyers went over that case in order to make sure it was argued in the best possible manner?

And going a little further? While I've never even visited a law school, I have spent a little quality time with a few and did a little work on the periphery of one or two. In at least one case I was able to substantially improve the case because I had a different perspective on situation which led to the filing of the case - and about how the relevant data should be presented (I was nearly horrified at how the lawyer was planning to present the data, a simple modification made the data friendly to his client rather than rather damning - but it was an area in which I have some expertise).

So no, of course I'm not commenting on the merits of the case as if I were a lawyer. I'm not qualified - and neither is Mr. Nichols.

If you voluntarily appear in a court of law as a plaintiff or a defendant in a complex case with courts who are not guaranteed to be friendly to your case and you are not represented by an attorney, then your judgment, sanity, and/or wisdom should be questioned.

J.D.Allen
11-12-2013, 2:10 PM
I would love to know FGG's take on the theory (advanced by a few here) that open carry is the issue that we could prevail on...

knowyourrights
11-12-2013, 10:20 PM
9 th Circuit Stays NRA Concealed Carry Case

Charles Nichols/OP ED California Right To Carry Redondo Beach, California Contact: Press@CaliforniaRightToCarry.org

Talk about Karma. After the NRA successfully persuaded an assistant clerk at the 9 th Circuit Court of Appeals to stay an Open Carry case brought by Charles Nichols, President of California Right To Carry (Nichols v. Brown), a three judge panel of the 9 th Circuit Court of Appeals stayed the NRA concealed carry appeal out of Orange County, California –McKay v. Hutchens.

Both Mr. Nichols and the Attorney General for the State of California, Kamala Harris, had objected to the stay requested by the NRA. The Chief Clerk for the Court of Appeals had originally referred the NRA's motion for a stay to the three judge panel that would hear the case but shortly thereafter, and without explanation, an assistant clerk stayed Mr. Nichols appeal until three concealed carry cases which have already been taken under submission for a decision are decided.

Unfortunately for the NRA, the three judge panel of the court of appeals added a fourth case to the stay of the NRA's appeal in McKay. Not only does the NRA have to wait for the three concealed carry cases to be decided it must also wait for a fourth Federal case involving possession of a firearm by a person convicted of a misdemeanor case of domestic violence to be decided. That case has been waiting nearly two years for a decision.

Mr. Nichols Open Carry case continues in a Los Angeles Federal District Court where his Motion for Partial Summary Judgment was filed last Friday.

However, the NRA's district court concealed carry case in Orange County is stayed pending a decision in its appeal of the denial of its preliminary injunction.

Mr. Nichols will be filing a motion to lift the stay imposed by the assistant clerk in the appeal of his denial for a preliminary injunction because his appeal raises issues completely unrelated to the Second Amendment.

Mr. Nichols challenges California's 1967 ban on openly carrying loaded firearms in public as well as the two recently enacted bans on openly carrying unloaded firearms in public. Preliminary injunction appeals are given priority. If Mr. Nichols motion is granted then his Open Carry appeal goes to the head of the line.

The NRA urged the 9 th Circuit Court of Appeals to uphold California's Open Carry bans which no doubt would come as a surprise to its members. But the NRA isn't telling its members and the mainstream media is being quiet.