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View Full Version : How Bonidy SHOULD be fought


Mulay El Raisuli
11-02-2013, 7:01 AM
We have a win that we can run with. It's Bonidy vs USPS.


http://www.mountainstateslegal.org/news-updates/case-documents/2013/07/09/bonidy-v.-usps-order#.Ud6eq6wUKVo


Both sides are appealing & so on to the 10th Circuit we go.

As far as I'm concerned, this case is full of WIN for us. Senior District Judge Richard P. Matsch, having read (and being bound by) the recent Peterson decision, Ruled flat-out that Open Carry is the Protected Right. Further, he Ruled that a parking lot isn't a "sensitive place" just because it's attached to building that is a sensitive place.

So, what should we do? We should NOT toss in ANYTHING about Mr Bonidy's CCW. Nor should we make ANY mention if CCW in general. What we SHOULD do is agree with Judge Matsch completely. Agree that it really is LOC that is the Protected Right. We SHOULD use those quotes from Heller that the grabberz (and the Circuits) keep throwing in our faces. Which is to say that we should quote the 10th' Ruling in Peterson. Especially the dicta where we were told that a challenge to LOC might have worked.

The reasons for this are:

We've wasted the last five years on a fool's errand. CCW isn't the Protected Right & it isn't going to be. Time (past time) to put our efforts into a case we can actually win.

We can short-cut Charles Nichols. Unless we're willing to assassinate Mr Nichols, the only way to stop him is to get a case to SCOTUS before he can. His logic (and his reading if Heller) is sound. But, there's a lot of talk to the effect that his abilities as a litigator mean that he's going to screw things up. His case is in front of a District Court here in the PRK. However it goes there, the next step is the 9th Circus. A Court not friendly to the Right. Also a Court that isn't intimidated by time.

But Bonidy now sits on the doorstep of the 10th Circuit. A court that moves a lot faster than the 9th. If we push, we can present a "pure" LOC case to them & get a Ruling in mere months. If we push a little harder, we might even be able to get the matter in front of SCOTUS this season, & so a Ruling from them by June 2014. Yes, that's more than a little optimistic.

But, if we keep it clean, if we keep it simple, if we take the damn hint, we can win & win fast.


The Raisuli

sholling
11-02-2013, 7:37 AM
As far as I'm concerned, this case is full of WIN for us.
It has that potential.

So, what should we do? We should NOT toss in ANYTHING about Mr Bonidy's CCW. Nor should we make ANY mention if CCW in general. What we SHOULD do is agree with Judge Matsch completely. Agree that it really is LOC that is the Protected Right.
I'm convinced that the "Right People" would rather lose than pass up another chance to push shall-issue licensed concealed carry, or take the chance of getting a ruling in support of open carry as the right.

We can short-cut Charles Nichols.
They would rather snipe at him and undermine him.

Unless we're willing to assassinate Mr Nichols
Don't give them any ideas. ;)

But, if we keep it clean, if we keep it simple, if we take the damn hint, we can win & win fast.
I agree with you but it is not going to happen. The "Right People" aren't going to pass up any chance to push the courts toward shall-issue licensed concealed carry, and will do their best to undermine any effort to go after a ruling affirming that there is a constitutional right to openly carry a firearm without having to ask permission first.

Neo Sharkey
11-02-2013, 7:41 AM
It has that potential.


I'm convinced that the "Right People" would rather lose than pass up another chance to push shall-issue licensed concealed carry, or take the chance of

Don't give them any ideas. ;)getting a ruling in support of open carry as the right.


They would rather snipe at him and undermine him.



I agree with you but it is not going to happen. The "Right People" aren't going to pass up any chance to push the courts toward shall-issue licensed concealed carry, and will do their best to undermine any effort to go after a ruling affirming that their is a constitutional right to openly carry a firearm without having to ask permission first.

That surprises me a bit.

Knowing how the antis want to keep guns in the "oooo, scary gun!" category for the non-shooter, would they really let LOC go through? I would expect that if it came down to it, they would actually change the law to have must issue CCW so that the sheeple don't see guns carried by normal folk, everyday peacefully, and start seeing that as normal.

VegasND
11-02-2013, 7:42 AM
Good news - thanks for sharing. And I, too, hope it leads to more good news.
We have a win that we can run with. It's Bonidy vs USPS.

taperxz
11-02-2013, 7:58 AM
What good is open carry if you don't get the GFSZ repealed?

If you lived in a large city like San Francisco, you could never open carry. Even the most conservative of justices have mentioned that sensitive places are lawful.

Librarian
11-02-2013, 11:52 AM
Is there really anything new to say about open carry vs concealed carry?

Discussion of Bonidy is fine.

jdoane9724
11-02-2013, 1:09 PM
So, how about this: we find a case where a defendent has not been able to get CCW, and cannot LOC due to CA legislation passed. By the way, if terminology fails, sorry. Not as up on it as the rest of you.

Now, since he can't CCW due to actions of Sherriff, and can't LOC due to law, can it THEN be said "2A restriction" because we can't do anything at all?

Not trying to deflect comments, just curious. Mods, move if appropriate, and apologies for the work.

John

kcbrown
11-02-2013, 2:08 PM
So, how about this: we find a case where a defendent has not been able to get CCW, and cannot LOC due to CA legislation passed. By the way, if terminology fails, sorry. Not as up on it as the rest of you.

Now, since he can't CCW due to actions of Sherriff, and can't LOC due to law, can it THEN be said "2A restriction" because we can't do anything at all?

Not trying to deflect comments, just curious. Mods, move if appropriate, and apologies for the work.

John

Woollard was that case. It failed (actually, it initially succeeded, which should give you some idea of the strength of the case, but it failed upon the inevitable appeal by the other side, thus illustrating that the strength of the case is of no consequence in the face of a court that insists upon ruling against you no matter what).


EDIT: I should note for the record that normally the above would be a logical fallacy, because it's still possible that the district court ruled in our favor strictly because it wanted to. However, it's also possible that it did so because the Constitutional traditions dictated that it must. In any case, the fact of the matter is that this case was brought in an anti-rights jurisdiction and yet, despite that, we got a win at the district level. I think it unlikely in the extreme that a weak case could have prevailed under those circumstances, so I must regard the fact that we got a win at the district level under those conditions as evidence of the strength of the case. Despite that, the 4th Circuit was true to form and ruled against us despite the plain meaning of the 2nd Amendment, the historical tradition that goes with it, and the clear directive in Heller that it is self defense that is the core of the protected right. The 4th Circuit insisted upon using "intermediate scrutiny" despite the fact that the law in question and/or its implementation infringes upon the very strongest of protections, and performed the very balancing act explicitly forbidden in Heller, by insisting that self defense is balanced against "public safety".

And the Supreme Court chose to ignore all of that and, instead, address trivialities. With luck, Bonidy will prevail where other cases have not, but in the real world, luck is more often bad than good.

Mulay El Raisuli
11-03-2013, 5:28 AM
What good is open carry if you don't get the GFSZ repealed?

If you lived in a large city like San Francisco, you could never open carry. Even the most conservative of justices have mentioned that sensitive places are lawful.


It's not like we'll get a good Ruling & then time stops. Things progress. THIS is the case that will (if things go well) get things moving again when it comes to the "and bear" portion of the Right.

If this goes to SCOTUS & they Rules our way, then how can the GFSZ possibly survive? Think about it. If a parking lot actually attached to a building that really is a "sensitive place" can't be rated as sensitive, then how can a 1,000ft circle be rated as such?

Answer? It won't.

IF we take the damn hint.


So, how about this: we find a case where a defendent has not been able to get CCW, and cannot LOC due to CA legislation passed. By the way, if terminology fails, sorry. Not as up on it as the rest of you.

Now, since he can't CCW due to actions of Sherriff, and can't LOC due to law, can it THEN be said "2A restriction" because we can't do anything at all?

Not trying to deflect comments, just curious. Mods, move if appropriate, and apologies for the work.

John


See above. A win in Bonidy would give us the ability to have PRK legislation against LOC struck down in the Federal courts.


The Raisuli

P.S. Thank you, Sholling.

taperxz
11-03-2013, 6:51 AM
It's not like we'll get a good Ruling & then time stops. Things progress. THIS is the case that will (if things go well) get things moving again when it comes to the "and bear" portion of the Right.

If this goes to SCOTUS & they Rules our way, then how can the GFSZ possibly survive? Think about it. If a parking lot actually attached to a building that really is a "sensitive place" can't be rated as sensitive, then how can a 1,000ft circle be rated as such?

Answer? It won't.

IF we take the damn hint.







.

I don't think the GFSZ will ever change. School zones already exist.(i could see the law reduced to the school zone only) The post office law was implemented after a shooting. What i see is that the judge basically says that the law was overzealous on prohibiting firearms in the vehicles of patrons in the parking lots of a post office.

I think thats all he wanted to say and thats how he ruled.

press1280
11-03-2013, 7:15 AM
Although part of the reason Bonidy lost on the inside portion of the post office was in fact due to open carry possibly "alarming" other patrons. As I see it, I don't think we need to scrap any mention of CCW. I see no reason why you can't challenge sensitive places on both CCW and open carry. In this immediate case, though, the 10th Circuit has boxed itself in on open carry, so that's the horse we ride for this round. At least the CCW argument could be preserved for SCOTUS, if it gets there. I've said before I'm having trouble believing SCOTUS will force open carry on the holdout states. CCW as an option may keep a Heller 5 justice from going weak kneed and ruling against us.

flyonwall
11-03-2013, 10:59 AM
Jdoane: Birdt, Thomson and Raulinaitis do that already. Birdt also has gfsz as an undisputed prohibition.
Those three are fully briefed in 9th and will be heard once Richards and Peruta are remanded unless hutchens saves us first.

taperxz
11-03-2013, 11:22 AM
Jdoane: Birdt, Thomson and Raulinaitis do that already. Birdt also has gfsz as an undisputed prohibition.
Those three are fully briefed in 9th and will be heard once Richards and Peruta are remanded unless hutchens saves us first.

Don't you mean "acceptable prohibition"? Supreme court has acknowledged sensitive places as being legal. For instance, in a court of law, not just anyone can stand up and speak their 1A rights without being admonished by a judge and even to have charges filed against that person.

flyonwall
11-03-2013, 11:29 AM
No. The cities and county stipulated that the gfsz prohibited most open carry separate from the open carry ban so that the combination of gfsz, open carry ban and sheriif stupidity make it a complete ban. Further the state has chosen concealed carry, which would be okay if it existed. The cases are 1983 cased against the sheriff but the court can rule that the system violates 2a so something had to change. That kicks it back to the legislators, but if they choose oc only they have to abolish ltc which then makes gfsz a 2a violation

taperxz
11-03-2013, 11:44 AM
No. The cities and county stipulated that the gfsz prohibited most open carry separate from the open carry ban so that the combination of gfsz, open carry ban and sheriif stupidity make it a complete ban. Further the state has chosen concealed carry, which would be okay if it existed. The cases are 1983 cased against the sheriff but the court can rule that the system violates 2a so something had to change. That kicks it back to the legislators, but if they choose oc only they have to abolish ltc which then makes gfsz a 2a violation

I understand what your saying there. However, the GFSZ law still isn't going anywhere anytime soon. If you talking about bootstrapping the legislature, yes i agree. No court present day is going to overturn the Federal GFSZ though.

Thats what i referred to as acceptable.

flyonwall
11-03-2013, 12:00 PM
Which is why we will go shall issue and oc will never work so long as there is shall issue.

Gray Peterson
11-03-2013, 9:49 PM
Bonidy/NAGR Docketing Statement by James Manley (MSLF):

II. LIST ALL RELATED OR PRIOR RELATED APPEALS IN THIS COURT
WITH APPROPRIATE CITATION(S). If none, please so state.

On September 6, 2013, Defendants filed a notice of appeal in this case. That
appeal has been docketed as No. 13-1374.




III. GIVE A BRIEF DESCRIPTION OF THE NATURE OF THE PRESENT
ACTION AND RESULT BELOW.

Plaintiffs alleged that the United States Postal Service’s (“USPS”) total prohibition
on firearms violates the Second Amendment’s explicit guarantee of the right to carry
firearms for self-defense. Plaintiffs raised two distinct claims: (1) By prohibiting Mr.
Bonidy from possessing a functional firearm for self-defense in a private vehicle parked
in the public Avon Post Office parking lot, Defendants violate the Second Amendment;
and (2) By prohibiting Mr. Bonidy from carrying a functional firearm for self-defense
inside the Avon Post Office, Defendants violate the Second Amendment.

The District Court held correctly that the parking lot ban violated the Second
Amendment. The District Court erred in holding that the Second Amendment does not
forbid the USPS ban on both open and concealed carry inside the Avon Post Office.




IV. ISSUES RAISED IN THIS APPEAL.

Whether the Second Amendment
forbids the USPS ban on both open and
concealed carry inside the Avon Post Office

USPS/DOJ Docketing Statement:

II. LIST ALL RELATED OR PRIOR RELATED APPEALS IN THIS COURT
WITH APPROPRIATE CITATION(S). If none, please so state.
There are no prior related appeals. On September 18, 2013, plaintiffs
filed a notice of appeal in this case. That appeal has been docketed as
number 13-1391.



III. GIVE A BRIEF DESCRIPTION OF THE NATURE OF THE PRESENT
ACTION AND RESULT BELOW.

Plaintiffs challenge, on Second Amendment grounds, a Postal Service regulation prohibiting weapons and explosives on postal property. The district court upheld the regulation as applied to the Post Office building, but ordered the government to allow plaintiff Tab Bonidy to use the public parking lot adjacent to the Post Office building with a firearm secured in his car in a reasonably prescribed manner.

IV. ISSUES RAISED ON APPEAL.

Whether the district court erred in concluding that the Postal Service regulation may not lawfully be applied to possession of a firearm in a Postal Service parking lot.

sarabellum
11-04-2013, 12:09 PM
The District Court (the lowest Court with any precedential authority on other lower courts) offered the following analyses that leave us right where we started:

The Court recognized that there is a collective interest in public safety that trumps individual liberty in given circumstances. Just as the liberty protected by the First and Fourth Amendments may be limited by restrictions necessary to preserve a well-ordered society, the freedom to keep and bear arms may be restrained by majoritarian governmental action. When and how those restraints may be applied has been and will be the subject of extensive litigation. In Peterson, 707 F.3d at 1201, the Tenth Circuit held that the scope of the Second Amendment’s protection does not include a right to carry a concealed firearm outside the home. That ruling is binding on this Court and defeats the Plaintiffs’ contention that Mr. Bonidy should be free to carry his concealed handgun on his person in the Avon Post Office and parking lot.

Accordingly, the Court concludes that the Second Amendment protects the right to openly carry firearms outside the home for a lawful purpose, subject to such restrictions as may be reasonably related to public safety. In Heller, the Court recognized that there are many circumstances in which restrictions on the freedom to carry firearms are presumptively valid—including the exclusion of firearms from government buildings. See 554 U.S. at 626, 627 n.26. Those challenging such restrictions must present sufficient evidence to rebut that presumption.

When it comes to the building itself, a blanket firearms restriction applied to a law-abiding individual like Mr. Bonidy is sufficiently tailored, because the building is sensitive, and the presence of an individual openly carrying a firearm may excite passions, or excited passions may lead to the use of the firearm. Someone could also attempt to take the firearm from its lawful carrier and use it for criminal purposes.

(emphasis added)

While the Bonidy Court makes some passing reference to the doctrines (i.e. methods for analyzing) regarding restrictions and limitations on the 1st and 4th Amendments (the presumption is one of free speech and privacy protection with extremely narrow exceptions), it failed to apply any of those analyses here. The doctrines from the 1st, 4th, 5th, 6th, 7th, 8th, and 14th Amendments approach those rights as so fundamental such that the right to an abortion, to wear a shirt that says "f___ the draft," the right to not be searched without a warrant, interrogated without a lawyer present, and right to use one's property without government interference, that no government restriction or invasion will survive court scrutiny.

The Bonidy Court did not address any of those doctrines by analogy, instead creating a presumption favoring governmental regulations restricting the carrying of firearms by law abiding persons. Those are my tiny observations.

wolfwood
11-04-2013, 8:16 PM
I'm excited to read the appellate briefs. My father lives in a small Colorado town (Dillon) with a very similar post office. This is a very real world problem as people living in and around small towns like this do not have access to home mail delivery. Accordingly they have to go to the post office. I really see the Court upholding the lower Court on that issue.

Mulay El Raisuli
11-05-2013, 7:31 AM
I don't think the GFSZ will ever change. School zones already exist.(i could see the law reduced to the school zone only) The post office law was implemented after a shooting. What i see is that the judge basically says that the law was overzealous on prohibiting firearms in the vehicles of patrons in the parking lots of a post office.

I think thats all he wanted to say and thats how he ruled.


The part in bold is what I was getting at.

The underlined part is true as far as it goes. But, if we do things right, we can take things so much further.


Although part of the reason Bonidy lost on the inside portion of the post office was in fact due to open carry possibly "alarming" other patrons. As I see it, I don't think we need to scrap any mention of CCW. I see no reason why you can't challenge sensitive places on both CCW and open carry. In this immediate case, though, the 10th Circuit has boxed itself in on open carry, so that's the horse we ride for this round. At least the CCW argument could be preserved for SCOTUS, if it gets there. I've said before I'm having trouble believing SCOTUS will force open carry on the holdout states. CCW as an option may keep a Heller 5 justice from going weak kneed and ruling against us.


Yes! Yes! Yes! (OMG! I'm channeling Meg Ryan again!)


<snip>

IV. ISSUES RAISED IN THIS APPEAL.

Whether the Second Amendment
forbids the USPS ban on both open and
concealed carry inside the Avon Post Office
<snip>




Given the clarity of the denial in Peterson, I think this risky. I think we should agree completely with the 10th, the 2nd & all the other courts that quote the sections of Heller that I quote & ride that horse all the way. There are more than enough cases out that can argue (and lose) that Shall Issue is the Right. Let them take the issue to SCOTUS. This case should be as pure as possible.


The Raisuli

stix213
11-05-2013, 11:25 AM
The way I read the decision, the judge appeared fine with banning open carry in the parking lot. Just that a firearm locked up in a vehicle in the parking lot was outside of what the government can touch. I'm also a bit disturbed by some of the language justifying victim disarmament within the building.

wolfwood
11-20-2013, 1:52 PM
when are the two opening briefs due (its a cross appeal so there are two)?