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Tincon
11-25-2013, 8:37 PM
From a federal court filing this morning from Baker, currently pending before the 9th Circuit COA:

Defendants further suggest that intermediate scrutiny is the appropriate level of scrutiny to be applied to Mr. Baker’s claims. Mr. Baker does not dispute this.

Well thank you very much ALAN BECK, AKA "wolfwood" on this forum, for arguing in FAVOR of a reduced standard of scrutiny for 2A cases. WHILE ARGUING ON THE SIDE OF THE SECOND AMENDMENT. Or did you forget which side you on? You sir are the perfect example of why unqualified attorneys should stay the hell away from 2A cases. You are a POX upon all law abiding gun owners.

I don't even know if you understand the significance of the point you have conceded, apparently you do not, but you have stabbed all of us in the back, and given an unfathomable pot of gold to anti-gun advocates. Congratulations. I can't even believe you did this, and I've seen the other garbage you filed. This is truly a new low. Shame. Quite frankly I think there is something wrong with our legal system that you could even get a bar card, let along have such an enormously negative impact on such an important right, at such a critical time. I need a drink.

Spyder
11-25-2013, 8:51 PM
Bumping this.

Superduper2013
11-25-2013, 9:39 PM
Did you discus this with him before blasting him or at least sent him a link so we may hear his response?

deebix
11-25-2013, 10:16 PM
Who cares if he corresponded with him. He needs to be made an example of. Damage is done. Damn

Superduper2013
11-25-2013, 10:58 PM
Who cares if he corresponded with him. He needs to be made an example of. Damage is done. Damn

I'm not an attorney and don't know too much about the levels of scrutiny so I was curious as why he did it. Maybe there is a valid reason, maybe there isn't. Worth hearing his side if it.

I'll send him the link just in case

curtisfong
11-25-2013, 11:10 PM
Question: why should the court apply the level of scrutiny suggested by a mere lawyer? Shouldn't they apply the level of scrutiny they feel is appropriate?

LoneYote
11-25-2013, 11:15 PM
Question: why should the court apply the level of scrutiny suggested by a mere lawyer? Shouldn't they apply the level of scrutiny they feel is appropriate?

I think we both know that is 0 scrutiny....

Ritchie8719
11-25-2013, 11:17 PM
nt60Uf2sfZY

curtisfong
11-25-2013, 11:26 PM
I think we both know that is 0 scrutiny....

In which case a lowly lawyer's opinion is even more worthless.

If two completely incompetent lawyers enter a courtroom, why is it even relevant what they claim?

If the court knows better, it will find accordingly, regardless.

If it doesn't, we're screwed regardless.

wolfwood
11-26-2013, 1:10 AM
Hey Matt every Court in the Country has applied intermediate scrutiny to carry cases other than the 7th which dealt with a complete ban on carry. It did not adopt a level of scrutiny. We win applying intermediate scrutiny. Sorry that does not work out for you but that is the way the Courts have gone. All I did was to remind the Court that opposing Counsel was incorrect in stating the lower Court accepted our argument that the right extends outside the home. In fact the Court stated the right does not extend outside the home. Applying any level of heightened scrutiny Hawaii's laws fail. That's all my client needs.

Tincon
11-26-2013, 2:12 AM
Hey Matt every Court in the Country has applied intermediate scrutiny to carry cases other than the 7th which dealt with a complete ban on carry.

Really Beck? So in the two cases the Supreme Court took up, where did it apply intermediate scrutiny? Or is that Court in another Country?

All I did was to remind the Court that opposing Counsel was incorrect in stating the lower Court accepted our argument that the right extends outside the home.

Nope, you went out of your way to volunteer the concession that intermediate scrutiny should apply to 2A cases. But hey since you are here, why don't you display your brilliant legal mind, and explain to us why you could not simply say that strict scrutiny should apply, but that the statute in question cannot survive even under intermediate scrutiny.

I get that this is all an ego trip for you, and that you are convinced you will win because you are right, even in front of a hostile court with shoddy lawyering. But back here in the real world, you are seriously screwing things up for the rest of us. Stop trying to get attention for yourself, and go back to whatever practice you had before you started messing with our rights.

OleCuss
11-26-2013, 4:31 AM
Hey Matt every Court in the Country has applied intermediate scrutiny to carry cases other than the 7th which dealt with a complete ban on carry. It did not adopt a level of scrutiny. We win applying intermediate scrutiny. Sorry that does not work out for you but that is the way the Courts have gone. All I did was to remind the Court that opposing Counsel was incorrect in stating the lower Court accepted our argument that the right extends outside the home. In fact the Court stated the right does not extend outside the home. Applying any level of heightened scrutiny Hawaii's laws fail. That's all my client needs.

Thank you for being polite even when under attack. That is a class act.

No comment on your legal acumen. I've not bothered to study the case to the level where I could reasonably do so - and I've no legal training, either.

anthonyca
11-26-2013, 5:31 AM
Hey Matt every Court in the Country has applied intermediate scrutiny to carry cases other than the 7th which dealt with a complete ban on carry. It did not adopt a level of scrutiny. We win applying intermediate scrutiny. Sorry that does not work out for you but that is the way the Courts have gone. All I did was to remind the Court that opposing Counsel was incorrect in stating the lower Court accepted our argument that the right extends outside the home. In fact the Court stated the right does not extend outside the home. Applying any level of heightened scrutiny Hawaii's laws fail. That's all my client needs.

I didn't yet study the case. Is this another criminal trying to get off using the second amendment?

Superduper2013
11-26-2013, 5:49 AM
Really Beck? So in the two cases the Supreme Court took up, where did it apply intermediate scrutiny? Or is that Court in another Country?



Nope, you went out of your way to volunteer the concession that intermediate scrutiny should apply to 2A cases. But hey since you are here, why don't you display your brilliant legal mind, and explain to us why you could not simply say that strict scrutiny should apply, but that the statute in question cannot survive even under intermediate scrutiny.

I get that this is all an ego trip for you, and that you are convinced you will win because you are right, even in front of a hostile court with shoddy lawyering. But back here in the real world, you are seriously screwing things up for the rest of us. Stop trying to get attention for yourself, and go back to whatever practice you had before you started messing with our rights.

So in the other two cases you speak of they applied strict scrutiny?

Not sure which cases you speak of but in heller and McDonald a quick google search showed they applied intermediate.

Spyder
11-26-2013, 8:16 AM
I know next to nothing about this case, but...

That's all my client needs.

is scary, when the outcome could affect the entire rest of the country, and all of our rights.

dave_cg
11-26-2013, 8:32 AM
I know next to nothing about this case, but...



is scary, when the outcome could affect the entire rest of the country, and all of our rights.

And you have contributed how many dollars to this case?

If I recall correctly from Wolfwood's past posts, the case is being litigated as it is in part because requests for help have gone unfulfilled. If you don't like the current procedural posture, perhaps you should have volunteered the funds to pay for a Civ Pro expert to assist Wolfwood.

There are cases filed by wing-nuts that rebuff advice from experience 2A litigators and cause damage. Save your ammo for them. If you go back and read the historical posts, I think you'll find Wolfwood is in the category of 2A litigators that would like some help but are doing without and doing the best they can.

curtisfong
11-26-2013, 9:36 AM
The question is: would asking for strict scrutiny to be applied (instead of conceding that intermediate is adequate) harm his client's case?

On one hand, I can see that concessions made at this stage can often help a lawyer tip the scales in his client's favor.

On the other hand, it is distressing that this is a strategy that actually *works*.

Why should it matter what scrutiny a lawyer says is sufficient? Shouldn't a judge be able to determine that independent of what a lawyer says he is happy with? Why should a judge determine that the *minimum* scrutiny requested by some random lawyer become the basis (set in stone) for all future cases?

chainsaw
11-26-2013, 9:39 AM
How many carry cases has the supreme court decided in the last decade, since Heller?

In how many gun rights cases have appeals and higher courts required the use of strict scrutiny?

In my life, I spent a lot of time at Irvine (just a few weeks ago, I got to hold court at the Goat Hill Tavern), and it is a bit insular. No wonder, if one's attention is completely focused on the girls of OCC and CalState Fullerton. But I didn't know that its law school seems to be completely disconnected from reality, at least judging by one particular student.

meyerlemony
11-26-2013, 11:20 AM
It should have been strict scrutiny. As a matter of good litigation strategy, you always go for the standard of review that is the best for your case, then rebut if the other side says different. Strict scrutiny is always an easier test to use to strike down a law or regulation.

If it is true that the Supreme Court feels, as it stated in Heller, that the 2nd Amendment is just as valid as the 1st, then you can make a colorable argument for strict scrutiny.

Judges apply the law as you set it out for them, interpretations and all, for the most part. If both sides agree, as here, that intermediate scrutiny is the way to go, the judge isn't going to go digging and adding more work to his plate to change your mind. Depending on the judge, of course, and the issue. (If both sides agree rational basis should apply to a 1st Am case, the judge wouldn't go for it ... but where the area of law is as unsettled as 2nd Am case law...)

The Supreme Court has only told us what the test CAN'T be - it can't be rational basis review or that strange "interest balancing" approach Breyer is so fond of so there IS no clear standard or level of scrutiny on 2nd Am. cases set out by the Supreme Court, so it is SO important that any case brought up on those merits start from the strongest point possible - strict scrutiny. The Supreme Court has only told us what the test CAN'T be - it can't be rational basis review or that strange "interest balancing" approach Breyer is so fond of.

This is frustrating. We shouldn't working against ourselves.

Tincon
11-26-2013, 11:22 AM
So in the other two cases you speak of they applied strict scrutiny?

Not sure which cases you speak of but in heller and McDonald a quick google search showed they applied intermediate.

Incorrect.

meyerlemony
11-26-2013, 11:35 AM
Tincon is correct - they didn't articulate ANY standard of scrutiny to follow. Therein lies the problem. Here is the cite from a somewhat recent CA case: "In holding the District of Columbia handgun ban unconstitutional, Heller declined to specify the standard of constitutional scrutiny applicable when a defendant challenges legislation on the ground it violates the Second Amendment right to bear arms, holding the D.C. ban would fail “[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights.” (Heller, supra, 128 S.Ct. at pp. 2817–2818, fn. omitted.)" People v. Delacy, (2011) 192 Cal. App. 4th 1481, 1488, review denied (June 8, 2011), cert. denied, 132 S. Ct. 1092, (U.S. 2012).

Wolfwood - I'm not the most seasoned litigator on the block, I've only been at it for 7 years, but I've had some big wins in CA Appellate court and some small ones at the local court level. I'm out of the game now...in-house (thank goodness, but that's a discussion for another day), but maybe coming on here to discuss strategy wouldn't be a bad idea for the next round. When you're that close to a case and a sole practitioner, it can be really tough. Heck, maybe a "2A Litigation Strategy Discussion" forum is in order. Many of the non-lawyers on here have great strategic ideas for these, and there are lots of lawyers on here that have more experience than I!

All of this is assuming I have you pegged as the right Attorney Beck. If I'm wrong and you're an expert out of BigLaw, I apologize!

SC_SD
11-26-2013, 1:13 PM
How many carry cases has the supreme court decided in the last decade, since Heller?

In how many gun rights cases have appeals and higher courts required the use of strict scrutiny?

In my life, I spent a lot of time at Irvine (just a few weeks ago, I got to hold court at the Goat Hill Tavern), and it is a bit insular. No wonder, if one's attention is completely focused on the girls of OCC and CalState Fullerton. But I didn't know that its law school seems to be completely disconnected from reality, at least judging by one particular student.

^wow. Usually you proffer better arguments than that crap

RipVanWinkle
11-26-2013, 3:16 PM
No. 12-16258
CASE NO. CV 11-00528
RESPONSE TO DEFENDANT’S NOTICE OF SUPPLEMENTAL AUTHORITY
__________________________________
Case: 12-16258 11/25/2013 ID: 8876913 DktEntry: 55 Page: 1 of 4
Response to Defendant’s Notice of Supplemental Authority
COMES NOW THE PLAINTIFF-APPELLANT, Christopher Baker, and submits this Response to Defendants’ Notice of Supplemental Authority. Defendants submitted as supplemental authority the Ninth Circuit’s recent decision in United States v. Chovan, No. 11-50107. Defendants correctly note that the Court adopted a two-step framework for Second Amendment claims. Defendants further suggest that intermediate scrutiny is the appropriate level of scrutiny to be applied to Mr. Baker’s claims. Mr. Baker does not dispute this. However, Mr. Baker does dispute Defendants’ contention that the lower court applied intermediate scrutiny in deciding Mr. Baker’s claims. In fact the lower court explicitly declined to apply a level of scrutiny in deciding Mr. Baker’s claims and merely suggested in dicta that intermediate scrutiny might be an appropriate level of scrutiny.

Additionally, the Court concludes that even if the Hawaii Revised Statutes at issue in this litigation were found to implicate protected Second Amendment activity, and therefore were subject to that the challenged statute fails to be “substantially related to an important government objective.” Baker v. Kealoha, Civ. No. 11-00528 ACK-KSC (D. Haw. Jun. 19, 2012).at 54. The lower Court found no need to adopt a level of scrutiny because it declined to accept Mr. Baker’s argument that the Second Amendment confers a right outside the home. Case: 12-16258 11/25/2013 ID: 8876913 DktEntry: 55 Page: 2 of 4 The Court acknowledges Plaintiff’s argument, however in light of the uncertainty surrounding Heller, the Court joins other courts in awaiting direction from the Supreme Court with respect to the outer bounds of the Second Amendment. See Masciandaro, 638 F.3d at 475. Id at 45.


251648_Baker v. Kealoha_Response to Defendant_s Notice of Supplemental Authority re US v. Chova.pdf

On re-reading this I’m not sure that this reply concedes very much at all. It’s ambiguously worded at the very least. In the part that I’ve bolded, I read it now to say that Mr. Baker doesn’t dispute that the court adopted a two-step framework. He also doesn't dispute that the defendants suggest that intermediate scrutiny is the appropriate level of scrutiny. But that’s not equivalent to saying that Mr. Baker himself agrees that intermediate scrutiny is the appropriate standard. That’s an important distinction.

The reply then goes on to argue that whatever the court did (the two-step framework), it wasn’t intermediate scrutiny as far as Mr. Baker is concerned, and apparently not as far as the court itself was concerned either.

It could be argued that wolfwood does make the concession that intermediate scrutiny is the appropriate standard in his post in this thread:

Hey Matt every Court in the Country has applied intermediate scrutiny to carry cases other than the 7th which dealt with a complete ban on carry. It did not adopt a level of scrutiny. We win applying intermediate scrutiny. Sorry that does not work out for you but that is the way the Courts have gone. All I did was to remind the Court that opposing Counsel was incorrect in stating the lower Court accepted our argument that the right extends outside the home. In fact the Court stated the right does not extend outside the home. Applying any level of heightened scrutiny Hawaii's laws fail. That's all my client needs.

I don’t think that conclusion is warranted however. He may think that he can prevail under an intermediate scrutiny standard, but that doesn’t preclude him from arguing for strict scrutiny or any other standard in the courts. He doesn't claim in the reply to the defendants that intermediate scrutiny is the appropriate standard. In summary, the reply to the defendants is somewhat “ungraceful”, and may in fact be legal suicide (IANAL), but on the face of it doesn’t appear to concede much. Maybe a “feature” rather than a “bug”.

POLICESTATE
11-26-2013, 3:22 PM
Our justice system is so ****ed.

Tincon
11-26-2013, 4:19 PM
Maybe a “feature” rather than a “bug”.

I would have to disagree. And he does concede intermediate scrutiny in the 28j, intentional or not. And he admits as much here, and in fact tries to justify it. Sickening.

RipVanWinkle
11-26-2013, 6:36 PM
I would have to disagree. And he does concede intermediate scrutiny in the 28j, intentional or not. And he admits as much here, and in fact tries to justify it. Sickening.

I assume the 28j is the document you linked to in the original post and from which I quoted. To put it a little differently, I think you're saying that Mr. Baker doesn't dispute the subordinate clause portion of the antecedent sentence that says "that intermediate scrutiny is the appropriate level of scrutiny to be applied to Mr. Baker’s claims." But if the whole sentence is the antecedent then he's not necessarily endorsing intermediate scrutiny as the appropriate level, he's just not disputing the fact that the defense has suggested that it ought to be.

So when "Mr. Baker does not dispute this."; is he not disputing the entire antecedent sentence, or is he also not disputing the subordinate clause?
He can do the former without doing the latter.

As for admitting as much here, he does claim that he can win under an intermediate scrutiny standard; but he also says, "Applying any level of heightened scrutiny Hawaii's laws fail." I don't think he's locked himself in to only considering intermediate scrutiny. On the other hand, he seems to think that's all he's likely to get. He'll be really lucky to get that!

taperxz
11-26-2013, 7:43 PM
The bottom line in Baker, is that Baker was denied a right and his lawyer was hired to get him that right.

The NRA in this case did not want to get involved so Bakers lawyer is doing what he can to achieve a win for his client.

Hawaiian law is much more oppressive than here in CA. Thus, Bakers lawyer is doing what it takes to get his client the right he was seeking. Bakers lawyer is not out to create precedents in the world of the 2A, Baker simply wanted to own a handgun. His lawyer is trying to make that happen for him.

EDIT after a little further reflection. I will say this, if the NRA had discouraged this plaintiff from doing this i would be very displeased with Baker. (i have no knowledge of this communication) Just throwing this in as to not being perceived as being biased either way in the case due to lack of knowledge.

nicki
11-26-2013, 8:50 PM
Due to the overcapacity at that 3 case hearing, I got to sit in a room with close up videos of both the attorneys and judges on split screens.

Paul Clement knocked it out of the park, Alan Gura was very respectable, Baker's attorney was not as good, but he didn't make from what I remember huge mistakes.

All three attorneys for the other side OTOH were contradicting themselves, making arguments that the "Empirical Evidence", yada, yada, yada. In other words all three were full of ****.

The one case where we did have a temporary win was the "Woolard" case and the judge in that case used "intermediate scrutiny".

Both San Diego and Yolo counties attornies were arguing that Californian's could "bear arms" in most parts of California, just not "loaded".

The Federal 2nd circuit decided that "intermediate scrutiny" was the correct standard and of course what they did was say it was "intermediate" while using a "rational basis" review in the New York case.

Unfortunately the courts are going to do what they please, if they like a "right", they are going to expand it regardless of how unqualified the lawyer filing the case is.

On the flip side, if judges are hostile to a right, you can expect them to exercise creative writing skills to gut the "right" regardless if you have a "Legal Superstar".

I don't know how to read the 9th, hopefully we will find out soon.

Nicki

Superduper2013
11-26-2013, 9:26 PM
Incorrect.

Wrong answer try again.

taperxz
11-26-2013, 9:28 PM
Wrong answer try again.

HUH? You might need to re read things.

Tincon
11-27-2013, 8:31 AM
EDIT after a little further reflection. I will say this, if the NRA had discouraged this plaintiff from doing this i would be very displeased with Baker. (i have no knowledge of this communication) Just throwing this in as to not being perceived as being biased either way in the case due to lack of knowledge.

That's absolutely the case. The HI group, led by Beck, contacted NRA's litigation team (and I believe Gura/SAF, too) asking for advice/help. They were informed that the issue being litigated, i.e. whether the 2A confers a right to carry a firearm for self-defense, was already being litigated in the 9th Circuit. Having Baker before the 9th was redundant at best, even if ably litigated. Unfortunately, we have seen Beck's litigation skills, both with Baker and the hot mess that is Young. The NRA's litigators (and again, I believe Gura as well) asked them to please not to move forward with their case, and that NRA's guys would be happy to help file follow up litigation at the appropriate time. Once we establish the right, the issues in Baker can be resolved at the District Court level.

NRA's guys also recommended other issues that they should go ahead and move forward with in the interim, and offered to help them with those issues. No one told him to sit on the sidelines.

If anyone doesn't realize how bad his 28j letter is, they should read his filings in Young to get a taste of how pitiful his briefs are. But in any case, he flat out conceded the SOR to the opposition, when he 100% did not need to, in a case where half the point is establishing the SOR. If you don't understand how terrible this is, my blood pressure is jealous of yours.

If I was a criminal defense lawyer, and a client came to me with a novel toxic tort case that could impact litigation in this field for years to come, under no circumstances would I file it. I would refer the client to the best toxic tort litigator I knew. And if they told my client to hold off on filing that case right now, or to litigate certain issues now and hold off on certain issues, I would TAKE THEIR ADVICE. Good god. What I would never do is decide I know better … and the LITIGATE THE CASE MYSELF!

Real professionals in a field realize how little they know. Guys that don’t know squat think they know more than they do. Its like this in most walks of life, not just the law.

I have routinely seen case after garbage case filed by lawyers with no firearms experience, no civil rights litigation experience, no constitutional law experience, and no support staffs. And anyone can review the docket see the disastrous briefs that are filed. We are talking about a guy who literally, in a brief, said to the court, THAT THE COURT WAIVED ANY PROCEDURAL DEFECTS IN HIS BRIEF BECAUSE IT AUTOMATICALLY ACCEPTED HIS ELECTRONIC FILING. Incredible. And there are people here thinking that he is doing a good thing by litigating cases that could decide the SOR for the 2A for all of us. That he should be litigating these issues. That he should be filing cases that the SAF and NRA and lawyers like Clement, Gura, and Michel specifically asked him not to file. I must be hallucinating.

If it sounds like I'm furious, it's because I am.

taperxz
11-27-2013, 8:36 AM
That's absolutely the case. The HI group, led by Beck, contacted NRA's litigation team (and I believe Gura/SAF, too) asking for advice/help. They were informed that the issue being litigated, i.e. whether the 2A confers a right to carry a firearm for self-defense, was already being litigated in the 9th Circuit. Having Baker before the 9th was redundant at best, even if ably litigated. Unfortunately, we have seen Beck's litigation skills, both with Baker and the hot mess that is Young. The NRA's litigators (and again, I believe Gura as well) asked them to please not to move forward with their case, and that NRA's guys would be happy to help file follow up litigation at the appropriate time. Once we establish the right, the issues in Baker can be resolved at the District Court level.

NRA's guys also recommended other issues that they should go ahead and move forward with in the interim, and offered to help them with those issues. No one told him to sit on the sidelines.

If anyone doesn't realize how bad his 28j letter is, they should read his filings in Young to get a taste of how pitiful his briefs are. But in any case, he flat out conceded the SOR to the opposition, when he 100% did not need to, in a case where half the point is establishing the SOR. If you don't understand how terrible this is, my blood pressure is jealous of yours.

If I was a criminal defense lawyer, and a client came to me with a novel toxic tort case that could impact litigation in this field for years to come, under no circumstances would I file it. I would refer the client to the best toxic tort litigator I knew. And if they told my client to hold off on filing that case right now, or to litigate certain issues now and hold off on certain issues, I would TAKE THEIR ADVICE. Good god. What I would never do is decide I know better … and the LITIGATE THE CASE MYSELF!

Real professionals in a field realize how little they know. Guys that don’t know **** think they know more than they do. Its like this in most walks of life, not just the law.

I have routinely seen case after garbage case filed by lawyers with no firearms experience, no civil rights litigation experience, no constitutional law experience, and no support staffs. And anyone can review the docket see the disastrous briefs that are filed. We are talking about a guy who literally, in a brief, said to the court, THAT THE COURT WAIVED ANY PROCEDURAL DEFECTS IN HIS BRIEF BECAUSE IT AUTOMATICALLY ACCEPTED HIS ELECTRONIC FILING. Incredible. And there are people here thinking that he is doing a good thing by litigating cases that could decide the SOR for the 2A for all of us. That he should be litigating these issues. That he should be filing cases that the SAF and NRA and lawyers like Clement, Gura, and Michel specifically asked him not to file. I must be hallucinating.

If it sounds like I'm furious, it's because I am.

You don't need to convince me. :) LOL If you only knew.

12voltguy
11-27-2013, 8:39 AM
Thank you for being polite even when under attack. That is a class act.

No comment on your legal acumen. I've not bothered to study the case to the level where I could reasonably do so - and I've no legal training, either.
because
""being polite""
is all that matters:rolleyes:

Mulay El Raisuli
11-27-2013, 8:55 AM
Really Beck? So in the two cases the Supreme Court took up, where did it apply intermediate scrutiny? Or is that Court in another Country?



Nope, you went out of your way to volunteer the concession that intermediate scrutiny should apply to 2A cases. But hey since you are here, why don't you display your brilliant legal mind, and explain to us why you could not simply say that strict scrutiny should apply, but that the statute in question cannot survive even under intermediate scrutiny.

I get that this is all an ego trip for you, and that you are convinced you will win because you are right, even in front of a hostile court with shoddy lawyering. But back here in the real world, you are seriously screwing things up for the rest of us. Stop trying to get attention for yourself, and go back to whatever practice you had before you started messing with our rights.


That strikes me as a real good question.


It should have been strict scrutiny. As a matter of good litigation strategy, you always go for the standard of review that is the best for your case, then rebut if the other side says different. Strict scrutiny is always an easier test to use to strike down a law or regulation.

If it is true that the Supreme Court feels, as it stated in Heller, that the 2nd Amendment is just as valid as the 1st, then you can make a colorable argument for strict scrutiny.

Judges apply the law as you set it out for them, interpretations and all, for the most part. If both sides agree, as here, that intermediate scrutiny is the way to go, the judge isn't going to go digging and adding more work to his plate to change your mind. Depending on the judge, of course, and the issue. (If both sides agree rational basis should apply to a 1st Am case, the judge wouldn't go for it ... but where the area of law is as unsettled as 2nd Am case law...)

The Supreme Court has only told us what the test CAN'T be - it can't be rational basis review or that strange "interest balancing" approach Breyer is so fond of so there IS no clear standard or level of scrutiny on 2nd Am. cases set out by the Supreme Court, so it is SO important that any case brought up on those merits start from the strongest point possible - strict scrutiny. The Supreme Court has only told us what the test CAN'T be - it can't be rational basis review or that strange "interest balancing" approach Breyer is so fond of.

This is frustrating. We shouldn't working against ourselves.


And the part in bold is why it's a good question.


The Raisuli

Whiskey_Sauer
11-27-2013, 9:27 AM
Nope, you went out of your way to volunteer the concession that intermediate scrutiny should apply to 2A cases. But hey since you are here, why don't you display your brilliant legal mind, and explain to us why you could not simply say that strict scrutiny should apply, but that the statute in question cannot survive even under intermediate scrutiny.

Because he is an advocate for his client. And if advocating for your client means you need to concede that a recently-filed opinion states what it states, and that you have no quarrel with that, and you believe that it will preserve your credibility with the court with regard to other matters, that's what you need to do sometimes.

His duty is to his client. Not to you. Not to "us." To his client, period.

Tincon
11-27-2013, 9:37 AM
Because he is an advocate for his client. And if advocating for your client means you need to concede that a recently-filed opinion states what it states, and that you have no quarrel with that, and you believe that it will preserve your credibility with the court with regard to other matters, that's what you need to do sometimes.

His duty is to his client. Not to you. Not to "us." To his client, period.

I don't think his conceding an intermediate SOR helps anyone, including his client. I also think you are oversimplifying the role of a public interest attorney, which is the role Beck has unfortunately placed himself in. As far as Beck and his credibility, did you see this:

We are talking about a guy who literally, in a brief, said to the court, THAT THE COURT WAIVED ANY PROCEDURAL DEFECTS IN HIS BRIEF BECAUSE IT AUTOMATICALLY ACCEPTED HIS ELECTRONIC FILING.

How do you think that impacts his credibility? Do you really think that after that he has ANY credibility to "preserve?"

curtisfong
11-27-2013, 9:38 AM
Again, do concessions ever help a client's case?

It's a simple question.

Tincon
11-27-2013, 9:42 AM
Again, do concessions ever help a client's case?

It's a simple question.

Actually, it isn't. Does wearing a nicer suit help a client's case? Maybe, some people certainly think so, but it's hard to quantify. On the other hand, I have no problem stating that conceding a critical point in a case is unhelpful.

Whiskey_Sauer
11-27-2013, 9:51 AM
I don't think his conceding an intermediate SOR helps anyone, including his client. I also think you are oversimplifying the role of a public interest attorney, which is the role Beck has unfortunately placed himself in.

There have been many instances in which I have had to concede a point of law, particularly with regard to recently-published authority. By doing so, you are preserving the most important asset that you bring as an advocate to the court, your reputation and your credibility. Whether he is a "public interest attorney" or not, he is representing a client.

How do you think that impacts his credibility? Do you really think that after that he has ANY credibility to "preserve?"

I offer no opinion as to this particular attorney's credibility. All I saw was a concession (or really, a point of non-dispute) that Chovan held what it held. That is perfectly acceptable, and in fact, advisable within the bounds of advocacy.

I know we would all like to be on the same team here, but attorneys' duties are to their clients, not to a cause.

Whiskey_Sauer
11-27-2013, 9:53 AM
Again, do concessions ever help a client's case?

It's a simple question.

Yes.

curtisfong
11-27-2013, 9:54 AM
Actually, it isn't. Does wearing a nicer suit help a client's case? Maybe, some people certainly think so, but it's hard to quantify. On the other hand, I have no problem stating that conceding a critical point in a case is unhelpful.

Agreed. It was a rhetorical question. But while I'm devils advocating, how about this:

Suppose a lawyer is 100% confident that intermediate scrutiny is sufficient grounds to invalidate a law. In the long run, wouldn't it be a good thing if a court ends up using intermediate scrutiny (rather than strict scrutiny) in invalidating that law? Thus setting the precedent that all similar laws are invalid under intermediate (rather than strict) scrutiny?

Again, I agree that this is not likely to apply to this case; it is more of a hypothetical.

Tincon
11-27-2013, 9:55 AM
There have been many instances in which I have had to concede a point of law, particularly with regard to recently-published authority. By doing so, you are preserving the most important asset that you bring as an advocate to the court, your reputation and your credibility. Whether he is a "public interest attorney" or not, he is representing a client.

I offer no opinion as to this particular attorney's credibility. All I saw was a concession (or really, a point of non-dispute) that Chovan held what it held. That is perfectly acceptable, and in fact, advisable within the bounds of advocacy.

I know we would all like to be on the same team here, but attorneys' duties are to their clients, not to a cause.

I don't disagree with that reasoning (although I think he did a lot more than concede what Chovan held). But it seems grotesque to apply that line of reasoning to an attorney that concedes such a critical point in his client's case, never mind the damage it does to the rest of us.

Tincon
11-27-2013, 10:00 AM
Agreed. It was a rhetorical question. But while I'm devils advocating, how about this:

Suppose a lawyer is 100% confident that intermediate scrutiny is sufficient grounds to invalidate a law. In the long run, wouldn't it be a good thing if a court ends up using intermediate scrutiny (rather than strict scrutiny) in invalidating that law? Thus setting the precedent that all similar laws are invalid under intermediate (rather than strict) scrutiny?

Again, I agree that this is not likely to apply to this case; it is more of a hypothetical.

I don't see much point in addressing that hypo here. I think it's sufficient to say that it is flat out insane to believe with such certainty at this point that any wide category of gun laws will be struck down by the 9th based on intermediate scrutiny.

Whiskey_Sauer
11-27-2013, 10:07 AM
I don't disagree with that reasoning (although I think he did a lot more than concede what Chovan held). But it seems grotesque to apply that line of reasoning to an attorney that concedes such a critical point in his client's case, never mind the damage it does to the rest of us.

Okay, I don't know anything about the facts of the Baker case. I'm assuming that after the briefing was done, the defendants provided notice to the court of the holding of the Chovan case, and cited some argument to support the defendants' position.

So just for fun, let's see your draft of what the plaintiff's hypothetical response to the defendant's citation to Chovan should have been. Let's see the argument you believe the plaintiff should have made with regard to the application of Chovan to his/her case.

curtisfong
11-27-2013, 10:13 AM
I don't see much point in addressing that hypo here. I think it's sufficient to say that it is flat out insane to believe with such certainty at this point that any wide category of gun laws will be struck down by the 9th based on intermediate scrutiny.

Keep in mind that I am of the opinion that the same applies to strict scrutiny, when it comes to the 9th.

:D

Mulay El Raisuli
11-28-2013, 7:23 AM
Agreed. It was a rhetorical question. But while I'm devils advocating, how about this:

Suppose a lawyer is 100% confident that intermediate scrutiny is sufficient grounds to invalidate a law. In the long run, wouldn't it be a good thing if a court ends up using intermediate scrutiny (rather than strict scrutiny) in invalidating that law? Thus setting the precedent that all similar laws are invalid under intermediate (rather than strict) scrutiny?

Again, I agree that this is not likely to apply to this case; it is more of a hypothetical.


Oooooooh. Interesting idea!


The Raisuli

curtisfong
11-28-2013, 10:04 AM
Also, there is it's partner (for statists who hate that courts can invalidate laws):

If a legislative body (or state, or government) is 100% confident their law can withstand strict scrutiny, perhaps THEY would prefer a similar precedent: they might demand strict scrutiny be applied, and when they win, there is now precedent that all similar laws can withstand even strict scrutiny!

Mulay El Raisuli
11-29-2013, 6:32 AM
Also, there is it's partner (for statists who hate that courts can invalidate laws):

If a legislative body (or state, or government) is 100% confident their law can withstand strict scrutiny, perhaps THEY would prefer a similar precedent: they might demand strict scrutiny be applied, and when they win, there is now precedent that all similar laws can withstand even strict scrutiny!


That would be the danger, wouldn't it?

OTOH, who can be 100% certain of anything?


The Raisuli

curtisfong
11-29-2013, 1:04 PM
OTOH, who can be 100% certain of anything?


No, of course not, but there does seem to be some risk taking on the part of activist litigants as part of a longer term, "greater good" strategy... granted, more often on the side of the plaintiff...

JoshuaS
11-29-2013, 5:15 PM
You know why Heller had no level of scrutiny defined? Scalia wrote it.

And Scalia thinks differing levels of scrutiny is hogwash

" I am not a fan of different levels of scrutiny. Strict scrutiny, intermediate scrutiny, blah blah blah blah. That’s just a thumb on the scales."

When I talked to him (met him in person a few times) he though such a distinction was only useful in letting slide laws that tickled your fancy, while allowing you to block laws you disagreed with...in other words, a way of applying different standards to try and get what you want, rather than what is correct.

ElvenSoul
11-29-2013, 5:40 PM
So OP!

Please attempt consulting directly next time.

You have done as much DAMAGE as you suppose the other parth has done by posting publicly here.

Every Anti Gunner in the probably seen this little drama!

kcbrown
11-29-2013, 5:51 PM
Hey Matt every Court in the Country has applied intermediate scrutiny to carry cases other than the 7th which dealt with a complete ban on carry. It did not adopt a level of scrutiny. We win applying intermediate scrutiny.


I don't see how that you can possibly win with an intermediate scrutiny application here.

As applied to arms (and keeping and bearing thereof), intermediate scrutiny presumes that the government interest overcomes the right itself, and the only way the right survives is if the law in question does not have an effect that is substantially related to that interest.

Most laws governing speech would have some sort of trouble with intermediate scrutiny because the tools used for its exercise are not inherently dangerous. Thus, the "important government interest" hurdle is actually a hurdle in the arena of speech.

It's no hurdle at all in the arena of arms. Arms are inherently dangerous because they must be in order to serve their purpose. Hence, the "important government interest" is automatically satisfied. Further, any law which has public safety as its purpose will, in the eyes of the courts, have an effect substantially related to that purpose if it reduces or eliminates the presence of arms, because the courts will presume that such a reduction automatically translates to heightened public safety.


As such, I see no possible way for any law which uses the "public safety" rubric to fail intermediate scrutiny if it operates by way of impeding access to, possession of, or carry of arms.



Applying any level of heightened scrutiny Hawaii's laws fail. That's all my client needs.This is what is incorrect, and what is so dangerous here.

kcbrown
11-29-2013, 5:56 PM
I don't see much point in addressing that hypo here. I think it's sufficient to say that it is flat out insane to believe with such certainty at this point that any wide category of gun laws will be struck down by the 9th based on intermediate scrutiny.

The problem is that the 9th Circuit has already decided it will apply intermediate scrutiny to 2nd Amendment laws which do not substantially burden "in the home" (i.e., what they define as the "core"), but which they nonetheless regard as substantially burdening the right itself.

Counsel here could attempt to argue for a strict scrutiny interpretation (and I would argue that he actually has a duty to argue for a categorical approach, with strict scrutiny as an alternate, since that is what the Supreme Court has used thus far), but you know that such an argument will fall on deaf ears in the 9th Circuit. There is no way he's getting the win on the basis of such arguments.

I do agree he has a duty to put forth those arguments anyway, even knowing that they will do no good. But you are mistaken if you believe what he is doing here is going to do any damage. It will not. The damage has already been done by the court itself, in Chovan.

wolfwood
11-29-2013, 6:16 PM
The problem is that the 9th Circuit has already decided it will apply intermediate scrutiny to 2nd Amendment laws which do not substantially burden "in the home".

Counsel here could attempt to argue for a strict scrutiny interpretation (and I would argue that he actually has a duty to argue for a categorical approach, with strict scrutiny as an alternate, since that is what the Supreme Court has used thus far), but you know that such an argument will fall on deaf ears in the 9th Circuit. There is no way he's getting the win on the basis of such arguments.

I do agree he has a duty to put forth those arguments anyway, even knowing that they will do no good. But you are mistaken if you believe what he is doing here is going to do any damage. It will not. The damage has already been done by the court itself, in Chovan.

We did ask for strict scrutiny in our actual briefing. The 1st, 2nd, 3rd, 4th, and 5th have all applied intermediate scrutiny. The Ninth is going to follow them via Chovan's reasoning. Hawaii is a complete ban unlike every other "may issue" state. The law will be overturned. Hawaii will likely end up with a CCW law just like California.
The whole point of that response was to show we are entitled to a preliminary injunction.

The standard of review for a preliminary injunction appeal is a lower court abusing its discretion or applying a erroneous legal standard. The government stated that the lower court applied intermediate scrutiny in denying us a preliminary injunction. I rebutted with no in fact they said there is no right outside the home so no level of scrutiny need be applied. Accordingly the lower court used a erroneous legal standard in rendering its decision. That being there is no right outside the home. That means the Ninth Circuit must issue a ruling on the merits of the case.

I am actually not the lead attorney and despite Tincon making up that other stuff, this case was actually already happening before I was asked to help. I did not have any contact with Alan Gura prior to filing that case. That was another lawyer. Everything else Tincon said also is untrue as well. The lead attorney was the one that did oral arguments last December and actually lives in Hawaii. I live in San Diego.

kcbrown
11-29-2013, 6:38 PM
We did ask for strict scrutiny in our actual briefing. The 1st, 2nd, 3rd, 4th, and 5th have all applied intermediate scrutiny. The Ninth is going to follow them via Chovan's reasoning. Hawaii is a complete ban unlike every other "may issue" state. The law will be overturned. Hawaii will likely end up with a CCW law just like California.


No, it will not. Not under "intermediate scrutiny", at any rate.

That a law is a total ban on exercise of the right does not automatically cause it to fail a scrutiny test! And intermediate scrutiny does not have any tests within it that would differentiate between complete bans and mere regulation. It merely asks whether the law has effects that are "substantially related to" the "government interest".

Any law which the court perceives as having a "public safety" benefit will pass "intermediate scrutiny". That is a point I cannot overstate. It renders "intermediate scrutiny" worthless with respect to laws governing arms.

wolfwood
11-29-2013, 6:46 PM
Hey you may be right. Then everyone is screwed. I'm just playing with the cards the Courts have dealt us. Maybe I'll pick up a win on the river, maybe your right. We'll see in a couple months.

If you are then the last hope for a win is in D.C. with Palmer as the law is the same as Illinois was.

kcbrown
11-29-2013, 6:55 PM
Hey you may be right. Then everyone is screwed. I'm just playing with the cards the Courts have dealt us. Maybe I'll pick up a win on the river, maybe your right. We'll see in a couple months.


It may be more than a couple of months (it'll be interesting to see just how long it actually takes), but as you can tell, I am not hopeful at all on this. Or, rather, what hope I have is a fool's hope. I expect a loss here (as well as in Richards and Peruta for exactly the same reasons), and expect the Supreme Court to deny cert to all of these carry cases. They are done with us.



If you are then the last hope for a win is in D.C. with Palmer as the law is the same as Illinois was.Palmer will not be ruled upon within our lifetimes at the rate it is going. Most certainly, by the time it is ruled upon, we will no longer have even a possible pro-RKBA majority on the Supreme Court (I suspect that we no longer have a pro-RKBA majority now, as evidenced by the Court's behavior as regards granting cert).

Mulay El Raisuli
11-30-2013, 7:51 AM
No, of course not, but there does seem to be some risk taking on the part of activist litigants as part of a longer term, "greater good" strategy... granted, more often on the side of the plaintiff...


True.


The Raisuli

Tincon
11-30-2013, 10:08 AM
So OP!

Please attempt consulting directly next time.

You have done as much DAMAGE as you suppose the other parth has done by posting publicly here.

Every Anti Gunner in the probably seen this little drama!

Excuse me? Based on what? The 28j is and was complete crap, that never should have happened. The anti-gunners seeing this doesn't mean a damn thing, the 28j actually being filed as a matter of public record, conceding intermediate scrutiny, does matter. I've tried talking to Beck before, it didn't accomplish anything. Just like when the NRA and Gura talked to him.

Tincon
11-30-2013, 10:13 AM
No, it will not. Not under "intermediate scrutiny", at any rate.

That a law is a total ban on exercise of the right does not automatically cause it to fail a scrutiny test! And intermediate scrutiny does not have any tests within it that would differentiate between complete bans and mere regulation. It merely asks whether the law has effects that are "substantially related to" the "government interest".

Any law which the court perceives as having a "public safety" benefit will pass "intermediate scrutiny". That is a point I cannot overstate. It renders "intermediate scrutiny" worthless with respect to laws governing arms.

Yes, I think you actually understand this much better than Beck here. I agree that we will lose in the 9th. Our only hope is SCOTUS granting cert. If it does not, things are looking grim indeed. I remain hopeful that they will.

In the mean time, this crap lawyering from the likes of Beck is entirely counterproductive.

kcbrown
11-30-2013, 4:11 PM
Yes, I think you actually understand this much better than Beck here. I agree that we will lose in the 9th. Our only hope is SCOTUS granting cert. If it does not, things are looking grim indeed. I remain hopeful that they will.


As do I. But the realist in me is forced to call it a fool's hope. Doesn't prevent me from having it. :D



In the mean time, this crap lawyering from the likes of Beck is entirely counterproductive.Counterproductive because it requires that damage control take place through amicus briefs?

Obviously it can't be because it will result in a ruling against us, as that is essentially pre-ordained thanks to Chovan.


If the level of lawyering involved is, as you've argued elsewhere as regards Heller, mooted through amicus briefs, then what exactly is the basis of your complaint here, aside from the necessity of damage control through amicus briefs? You can't have it both ways. Either amicus briefs will save the day when the court in question is an honest one (no arguments are sufficient to prevail before a dishonest court, as you obviously concede here as regards the 9th Circuit) and counsel's arguments are insufficient/incorrect, or they won't. Which is it?

Tincon
11-30-2013, 4:18 PM
If the level of lawyering involved is, as you've argued elsewhere as regards Heller, mooted through amicus briefs, then what exactly is the basis of your complaint here? You can't have it both ways. Either amicus briefs will save the day when the court in question is an honest one (no arguments are sufficient to prevail before a dishonest court, as you obviously concede here as regards the 9th Circuit) and counsel's arguments are insufficient/incorrect, or they won't. Which is it?

Unfortunately your legal knowledge does not extend to amici, because you don't know dingus about what such briefs can and can't do, and under what circumstances. If you are going to bring up something I supposedly said before, why don't you quote it.

kcbrown
11-30-2013, 4:33 PM
Unfortunately your legal knowledge does not extend to amici, because you don't know dingus about what such briefs can and can't do, and under what circumstances. If you are going to bring up something I supposedly said before, why don't you quote it.

If you insist. :D

Here:

If you read all the briefs, and the opinion, the Supreme Court explicitly rejected his arguments. They used the arguments in the NRA amicus brief. Arguably, without such arguments, Gura would have lost (though personally I think Scalia would have decided on the same basis even if no one made them). His oral argument was also complete crap (though personally I don't think those matter much). In any case, just because he was counsel of record, does not mean he "won the case". That is a common lay misunderstanding.


In the above, quite clearly you are arguing that it was the amicus briefs that saved the day, that the lawyering in Heller was insufficient, and that the case would have been lost had the amicus briefs not undone the damage due to insufficient/incorrect arguments made before the Supreme Court.

In other words, you are (or at least appear to be) arguing in the above exactly what I claim you are. So again, either amicus briefs will save the case in front of an honest court in the face of insufficient/incorrect arguments, or they won't. Which is it?


I'm not trying to be a turd here, nor am I attempting to argue here that the skill of counsel is irrelevant. I am merely insisting upon a logically consistent position. And unfortunately, it looks to me like you've backed yourself into a logical contradiction.

Tincon
11-30-2013, 4:40 PM
In the above, quite clearly you are arguing that it was the amicus briefs that saved the day, that the lawyering in Heller was insufficient, and that the case would have been lost had the amicus briefs not undone the damage due to insufficient/incorrect arguments made before the Supreme Court.

Yes.


In other words, you are arguing in the above exactly what I claim you are. So again, either amicus briefs will save the case in front of an honest court in the face of insufficient/incorrect arguments, or they won't. Which is it?

No.

You like logic right? Do you understand the difference between necessary and sufficient?

There is a big difference between the better legal argument being made by amicus, and rescuing a case (GOOD); vs a concession by an actual party to legal argument being made by the opposition in a group of appeals (BAD). Especially when the concession being accepted by the court will likely lead to the destruction of our rights. The point isn't will this or will this not cause massive damage, the point is it was an extraordinarily foolish and unnecessary move which accomplished nothing and may cause massive damage. It's just another in a long line of examples of what happens when unqualified attorneys litigate 2A cases.

I'm not saying NRA's attorneys can't deal with this, I'm saying they should not have to.

Gray Peterson
11-30-2013, 4:50 PM
The common refrain that only two jurisdictions banned carry until 6 months ago (DC & IL) is false. There is actually a jurisdiction in the 9th circuit that has a total carry ban, in fact a total carry ban even on carrying your own home or even having a functional firearm in one's own home.

wolfwood
11-30-2013, 5:01 PM
The common refrain that only two jurisdictions banned carry until 6 months ago (DC & IL) is false. There is actually a jurisdiction in the 9th circuit that has a total carry ban, in fact a total carry ban even on carrying your own home or even having a functional firearm in one's own home.

I know Gray.
In the Northern Mariana Islands, civilians are not allowed to possess firearms other than .22 calibre rifles and .410 gauge shotguns
CNMI. 2003. ‘Prohibited Acts.’ Division 2 Contraband Offences: Chapter 2 Weapons Control: Article 1 Weapons Control Act; Section 2222. Saipan: Commonwealth of the Northern Mariana Islands. 5 December.
Relevant contents

Section 2222. Prohibited Acts

No person shall:
(a) Knowingly remove, obliterate or alter the importer's or manufacturer's serial number of any firearm.
(b) Knowingly deface, alter or destroy an identification card.
(e) Import, sell, transfer, give away, purchase, possess or use any handgun, automatic weapon or ammunition other than:
(i) All .22 caliber rimfire cartridges and all regular .22 caliber rimfire cartridges.
(ii) All .22 caliber centerfire cartridges and .22 caliber rifles.
(iii) All .223 caliber centerfire cartridges and .223 caliber centerfire rifles. These require a special weapons identification card.
(iv) All .410 gauge shotgun shells and .410 gauge shotguns.
(i) In any manner or to any degree alter or modify any firearm from its original state of manufacture, including but not limited to alteration or modification of firing pins or chamber, or alteration or modification that creates automatic or semiautomatic weapons from single fire weapons, or to acquire, possess or use such altered or modified firearm.

Last accessed at:
http://www.atf.gov/firearms/statelaws/25thedition/index.htm

kcbrown
11-30-2013, 5:04 PM
Yes.


I mentioned both insufficient and incorrect arguments.



No.
No?

Then somehow, counsel's argument under discussion here must be neither insufficient nor incorrect. What, then, is it?



You like logic right? Do you understand the difference between necessary and sufficient?
Of course.



There is a big difference between the better legal argument being made by amicus, and rescuing a case (GOOD); vs a concession by an actual party to legal argument being made by the opposition in a group of appeals (BAD).
So you're saying that an amicus brief is insufficient to rescue a case from a concession made by counsel? On what basis?

If the court can choose to heed the arguments made in the amicus briefs over those made by counsel, then how can an amicus brief possibly fail to save the case in front of an honest court, i.e. one that will consider the best argument made before it? Most certainly, an amicus brief can claim that the concession in question is incorrect, and put forth a better argument, no?



Especially when the concession being accepted by the court will likely lead to the destruction of our rights. The point isn't will this or will this not cause massive damage, the point is it was an extraordinarily foolish and unnecessary move which accomplished nothing and may cause massive damage. It's just another in a long line of examples of what happens when unqualified attorneys litigate 2A cases.But the above is precisely the problem. You're presuming that the court will accept the concession. But that does not differ in the slightest from the court using counsel's argument instead of amici's argument when deciding the case, when amici's argument is more powerful.

Indeed, in the passage of yours I quoted, you even went so far as to say that you believed that Scalia would have decided as he did even if the argument he used had not been made at all! That has logical implications that match the arguments I've already made, namely that if Scalia can issue a decision on a basis that has not been argued before the court, then most certainly so can anyone else who presides on a court, and that means that courts can decide an issue however they wish regardless of what arguments are made before them by anyone.

But presuming for the moment that the court in question is going to decide on the basis of arguments made before it, your argument as regards Heller is that the Court decided on the basis of the arguments made by someone other than counsel as a result of said arguments being superior and/or more complete, while now you're insisting that it will decide based on the arguments made by counsel that are insufficient and/or incorrect. And you can't have it both ways. Either the (honest) court uses the best arguments made by our side regardless of where they come from, or it doesn't. Which is it?

Tincon
11-30-2013, 5:09 PM
I'm saying it's necessary to provide the court with an argument they will accept. Amici can do this. But conceding to your opponent's argument isn't something can be fixed by Amici. Clear?

kcbrown
11-30-2013, 5:21 PM
I'm not saying NRA's attorneys can't deal with this, I'm saying they should not have to.

Sorry, I didn't see this in your reply initially.

Yes, I agree, they should not have to, but that amici can deal with the insufficiencies and errors made by counsel means that this is now a matter of convenience and not necessity. And that is my point, really.

I would prefer that counsel arguing the case be the most competent possible. But that is a question of convenience.


However, there are errors that amici cannot compensate for, and I will most certainly concede that. In particular, amici cannot compensate for procedural errors. That said, procedural errors before an honest court will be of no real consequence, because an honest court is interested in dealing with the issue before it in the most honest way possible, while procedural errors are merely an excuse the court can use to avoid doing that. That's because those who interact with the courts need to be automatons only if the court insists upon it, and an honest court has no incentive for such insistence. Errors of procedure in civil litigation are not errors of substance, they are strictly errors of form (because in civil litigation, at the end of the day, the only things that really matter as regards that which is presented by counsel are the facts and the arguments, and those stand or fall on their own regardless of presentation).

kcbrown
11-30-2013, 5:22 PM
I'm saying it's necessary to provide the court with an argument they will accept. Amici can do this. But conceding to your opponent's argument isn't something can be fixed by Amici. Clear?

Why can't such a thing be fixed by amici? Is not a concession merely another form of a poor argument (when not done wisely, at any rate)?

Does that not suggest, then, that if amici concedes the opponent's argument, that such would blow the case out of the water? After all, the court can choose to heed amici's argument in favor of counsel's, no?


At the end of the day, this is strictly about who the court will listen to, and why. So again, if the court is honest, then it will listen to the strongest argument put forth by each side, regardless of the source of that argument. That includes whether or not concessions are made. To argue otherwise, as you are here, is to argue that the court will not listen to the strongest argument being put forth, but the weakest. That is contradictory to your previous statements.

Tincon
11-30-2013, 5:38 PM
Why can't such a thing be fixed by amici? Is not a concession merely another form of a poor argument (when not done wisely, at any rate)?

It is really that hard to understand? If you and I are having an argument, and someone else intercedes with a stronger argument than mine (but supporting my position), you might accept that my position is correct. But if I concede that your position is correct, that damage can't be undone by someone else contradicting me.

kcbrown
11-30-2013, 5:40 PM
I'm saying it's necessary to provide the court with an argument they will accept. Amici can do this. But conceding to your opponent's argument isn't something can be fixed by Amici. Clear?

At the heart of the matter is that you seem to want to simultaneously claim that the court is an automaton (that it must do certain things as regards how it decides cases) and that it is not. But you can't have it both ways. Either the court decides things as it wishes, or it decides things according to a prescribed set of rules. And you've already argued in favor of the former yourself, via the statement that Scalia would have decided Heller as he did regardless of whether or not the basis of the decision had been presented by anyone.

My argument is that the courts decide things as they wish. They don't really operate under a set of rules as regards how they decide things. They simply choose when to pretend to adhere to the rules they have set forth for themselves and when not to. This is because they set their own rules, and as with any entity that sets its own rules, the courts can, and do, choose to disregard those rules whenever they become inconvenient, and hide behind those rules when doing so is advantageous.

The only rules that are binding are those that are externally enforced. The courts operate under no such rules whatsoever. They are free to do as they wish. And because they are free to do as they wish, that is precisely what they do: as they wish.

kcbrown
11-30-2013, 5:42 PM
It is really that hard to understand? If you and I are having an argument, and someone else intercedes with a stronger argument than mine (but supporting my position), you might accept that my position is correct. But if I concede that your position is correct, that damage can't be undone by someone else contradicting me.

Of course it can. That's easy: "he concedes his opponent's argument, but his opponent's argument is actually incorrect, and here's why".

Either the strongest argument prevails, or it doesn't. Which is it?

Tincon
11-30-2013, 5:44 PM
At the heart of the matter is that you seem to want to claim that the court is an automaton

I never claimed that, it's ludicrous. I do think you need to make good arguments within the framework of the legal system to win. Better arguments give you a better shot at winning. Conceding to your opponents strongest arguments reduces your chance of winning. I really can't believe I have to explain this. Isn't it obvious?

llgY3VBwTAo

Tincon
11-30-2013, 5:45 PM
Of course it can. That's easy: "he concedes his opponent's argument, but his opponent's argument is actually incorrect, and here's why".

Either the strongest argument prevails, or it doesn't. Which is it?

Apparently you know a great deal about logic, but absolutely nothing about rhetoric.

curtisfong
11-30-2013, 5:47 PM
Conceding to your opponents strongest arguments reduces your chance of winning.

And a 3rd party making an argument that doesn't make that concession is a stronger argument, which obviously should be given more weight than a poorer argument. Better yet if it adheres to this "legal framework" ideal that you claim provides an objective metric of what a "good" argument is.

Apparently you know a great deal about logic, but absolutely nothing about rhetoric.

He asked what seems to be a reasonable question, and you responded with an ad hominem attack.

Tincon
11-30-2013, 5:55 PM
Rhetoric does have an impact on the success of legal arguments. I never said otherwise. Do you not understand how an actual party conceding an argument to an opponent has more rhetorical value for that opponent than can be gained by the contradiction of the concession by another party?

My assertion that he knows nothing about rhetoric is based more on the "Of course it can," than the question.

kcbrown
11-30-2013, 6:29 PM
Apparently you know a great deal about logic, but absolutely nothing about rhetoric.

That may be. But inasmuch as logic, and not rhetoric, is what is based on the real world, it follows that it is logic, and not rhetoric, that prevails as regards predicting real world outcomes.

Most certainly, concession of an argument may have rhetorical value, but it is entirely up to the court to decide how much weight that actually has. And at the end of the day, that is precisely what we are talking about: the court's preferences.

An honest court will listen to the logic and discard the rhetoric, for the decision it is making is about how people are to behave in and interact with the real world, where logic, and not rhetoric, prevails. A dishonest court will listen to the rhetoric and discard the logic. There are, of course, shades in between. But regardless, it is entirely up to the court to choose what arguments to listen to and how much weight is given to each.

If concession by counsel is as potentially detrimental as you say, then so too must concession by amici, for the weight given to each argument by the court is entirely up to the court, and that makes said weight entirely arbitrary. Absolutely nothing prevents the court from giving greater weight to amici's arguments than counsel's, and in fact you argue that such is precisely what happened in Heller. If the court can give greater weight to amici's arguments, it can similarly give greater weight to amici's concessions.


Regardless, the bottom line is this: such a concession can be counteracted by amici. Whether such counteraction carries sufficient weight is strictly up to the court. But that is true not just of that, but of all arguments made before it.

The bottom line is that you are attempting to make a distinction here out of an arbitrary difference. That difference is arbitrary because the court's decisions are arbitrary, precisely because the court is not beholden to any rules whatsoever.

kcbrown
11-30-2013, 6:33 PM
My assertion that he knows nothing about rhetoric is based more on the "Of course it can," than the question.

You said the damage due to concession can't be undone. That is an absolute statement. It has no qualifications. I showed how your statement is false, by illustrating how someone else can counteract the concession.

It may be difficult to undo the damage (if the judging entity is reasonable, then it will be easy as long as the concession isn't a valid one), and in front of a sufficiently dishonest judging entity, it may prove impossible, but now we're talking about a case-by-case situation, and not a categorical one.

curtisfong
11-30-2013, 6:51 PM
Any system that deliberately ignores the better argument (or stronger evidence) just because it comes from amici, and/or because of a more flawed argument made by somebody else is inherently broken.

kcbrown
11-30-2013, 6:57 PM
I never claimed that, it's ludicrous. I do think you need to make good arguments within the framework of the legal system to win. Better arguments give you a better shot at winning. Conceding to your opponents strongest arguments reduces your chance of winning. I really can't believe I have to explain this. Isn't it obvious?


In the absence of more compelling arguments made on your behalf by amici, I most certainly agree. But in the presence of such arguments made in front of an honest court, then I must disagree. An honest court is not interested in how good an argument sounds, only in the argument's logical soundness and its consistency with what is known or for which there is indisputable proof.

If you're talking about a less than honest court, then all bets are off anyway, and it becomes strictly a matter of luck.

Maybe your comments are in the context of a less than honest court. I can't really argue in that context, because that context is an entirely arbitrary one that has the potential of having whatever characteristics you wish as regards this.


ETA: That said, I most certainly agree that it's preferable to not have any mistakes made by counsel, if only because such is more efficient. But that's not the real question, is it? The real question is how much of a real-world difference it makes. And that is entirely dependent upon context. As regards this particular case in front of this particular court, it almost certainly makes no difference whatsoever. The 9th Circuit will almost certainly apply intermediate scrutiny here whether or not counsel objects to it, and that's that.

Sakiri
11-30-2013, 7:21 PM
KC, I'm actually curious as to how we'd get a carry case that SCOTUS would take.

The current school of thought with some is that they'll take a case involving open loaded, rather than concealed carry.

I'd almost be willing to be the guinea pig for the case, but I can't afford to so much as apply for a LTC in CA much less a lawyer for a case. Not being able to afford the LTC effectively kills my RKBA in this miserable state.

Being guaranteed the right to keep and bear arms as per protections from the Second Amendment, and laws forbidding open loaded carry in the state of California, they're placing undue burden on my ability to exercise my rights outside the home.

Can't remember if it was Heller or the one in IL, one of the two stated that the 2nd does in fact apply to outside the home, and if I recall the statement was "possibly more so" than inside.

It could (theoretically) be worth looking at, but as I've mentioned, I can't afford a lawyer and we'll probably have the State of Jefferson before it gets through the court system(that's about my best guess).

kcbrown
11-30-2013, 7:58 PM
KC, I'm actually curious as to how we'd get a carry case that SCOTUS would take.

The current school of thought with some is that they'll take a case involving open loaded, rather than concealed carry.


SCOTUS has denied cert to all cases involving bear outside the home thus far, be they criminal or civil cases. They have run nearly the entire gamut, from cases involving strictly concealed carry, to cases that involve carry inside one's own automobile, to cases involving bear in general being governed by essentially arbitrarily-issued permits. The only two (that I'm aware of) categories that haven't come before them are cases involving utter prohibition of all carry for everyone, and cases that involve strictly open carry. The former was a possibility in Moore, but Madigan was, as I predicted, bright enough to not appeal that case to the Supreme Court. Sans the Marianas Islands, that leaves the latter.

In the 9th Circuit, we already have several carry cases, but they all involve permits and/or concealed carry. We have none involving purely open carry. The open carry prohibition will be upheld by the 9th Circuit, of course, but it becomes a question of whether or not SCOTUS would take the case. My suspicion is that they won't (they didn't take Woollard, after all), but we cannot know until the case is offered to them.

I've no idea whether California is the best jurisdiction in which to bring an open carry case. I'd think, actually, that Denver would be the best place to bring such a case, especially by a resident who already has a concealed carry license. After all, if open carry is the protected right, as some claim, then such a person should be able to prevail even though they can carry concealed, because carrying a concealed firearm is not exercise of the right under that view.

curtisfong
11-30-2013, 8:00 PM
ETA: That said, I most certainly agree that it's preferable to not have any mistakes made by counsel, if only because such is more efficient. But that's not the real question, is it? The real question is how much of a real-world difference it makes. And that is entirely dependent upon context. As regards this particular case in front of this particular court, it almost certainly makes no difference whatsoever. The 9th Circuit will almost certainly apply intermediate scrutiny here whether or not counsel objects to it, and that's that.

I guess the point is that under appeal, it is arguably easier to show that the 9th erred by applying strict scrutiny incorrectly than to show they applied the wrong kind of scrutiny entirely.

Still, all these sorts of idiotic games that have to be played just to coerce the system into being honest does not bode well.

Michael Ehline
11-30-2013, 8:06 PM
Hey Matt every Court in the Country has applied intermediate scrutiny to carry cases other than the 7th which dealt with a complete ban on carry. It did not adopt a level of scrutiny. We win applying intermediate scrutiny. Sorry that does not work out for you but that is the way the Courts have gone. All I did was to remind the Court that opposing Counsel was incorrect in stating the lower Court accepted our argument that the right extends outside the home. In fact the Court stated the right does not extend outside the home. Applying any level of heightened scrutiny Hawaii's laws fail. That's all my client needs.

I am still rooting for you brother. And of course you and I know these commie courts do what they want. lol.

Sakiri
11-30-2013, 8:21 PM
Woollard wasn't a strict open carry case. It was a permit case.

Their permit can be used for either, they just have a "carry" permit.

CA has no open carry outside extremely limited and mostly useless exceptions. If you're hunting or fishing you can carry concealed. You can carry concealed while at a campsite if I remember right. Most of the places and circumstances you'd want to carry in unincorporated areas are allowed concealed under certain circumstances anyways.

They don't like open carry here because people get nervous seeing guns. Too bad.

Exercising that right shouldn't be limited to the rich and/or connected.

kcbrown
11-30-2013, 8:29 PM
I guess the point is that under appeal, it is arguably easier to show that the 9th erred by applying strict scrutiny incorrectly than to show they applied the wrong kind of scrutiny entirely.


Actually, that should be easy. SCOTUS did not say that the core of the right is self-defense in the home. It said that it was self-defense, period:


We must also address the District's requirement (as applied to respondent's handgun) that firearms in the home be rendered and kept inoperable at all times. This makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional.


There are other parts of the majority discussion in Heller which suggest that defense (of self but also of others) is what the Court is most interested in. See, e.g., supra at 2793-2794. Regardless, for the 9th Circuit to insist that the "core" is limited to self-defense in the home is for it to limit Heller to its facts and/or holding and to ignore the basis of the decision. It's also quite clearly incorrect on more fundamental grounds, as one is just as dead whether one is killed inside the home or outside of it, and thus the imperative for self-defense does not change based merely on whether one is inside the home or outside of it.



Still, all these sorts of idiotic games that have to be played just to coerce the system into being honest does not bode well.One does not coerce the system into being honest. That's much of my point. The system does as it wishes. It operates under no constraints whatsoever. If it is honest at any point, it is only because those involved in it want it to be, not because it was coerced into it. To believe that one has the power to coerce this system into doing anything is to harbor delusions of grandeur.

kcbrown
11-30-2013, 8:36 PM
Woollard wasn't a strict open carry case. It was a permit case.

Their permit can be used for either, they just have a "carry" permit.


Understood, but the reason it's especially notable that it was denied cert is that it covered all carry, not just concealed.

But if SCOTUS is unwilling to deal with cases involving arbitrarily-issued permits, then winning a pure open carry case that does not involve permits will buy scant relief, for the government can (and thus will) then simply slap an arbitrary permit system on open carry and we'll be right back to the situation with Woollard, with exactly the same results as what we have in California currently.

That makes it a distinction without a difference.

Mulay El Raisuli
12-01-2013, 5:39 AM
Understood, but the reason it's especially notable that it was denied cert is that it covered all carry, not just concealed.

But if SCOTUS is unwilling to deal with cases involving arbitrarily-issued permits, then winning a pure open carry case that does not involve permits will buy scant relief, for the government can (and thus will) then simply slap an arbitrary permit system on open carry and we'll be right back to the situation with Woollard, with exactly the same results as what we have in California currently.

That makes it a distinction without a difference.


Permits are anathema to the Constitution, so your claim that they can impose a permit system is a bit iffy. A "pure" LOC case (which is to say, something that is nothing like Woollard) is what we need to save the day.


The Raisuli

kcbrown
12-01-2013, 5:04 PM
Permits are anathema to the Constitution, so your claim that they can impose a permit system is a bit iffy. A "pure" LOC case (which is to say, something that is nothing like Woollard) is what we need to save the day.


My claim is not that the government's action is Constitutional, only that in doing so, it will be creating exactly the situation that SCOTUS denied cert for. Which means that if the government slaps a permit system on LOC (where said permit system already covers concealed carry), why should we believe that SCOTUS would grant cert to the resulting case when the resulting case would be factually identical (or so close as to not matter) to Woollard, a case they denied cert to?

My statement is not about Constitutionality, but rather about the Supreme Court's behavior. My belief is that the Supreme Court is done with us, and that we will not get any carry case rulings until, at the very least, we lose one or more of the Heller 5 to more anti-rights members. Even after that happens, it's very much a roll of the dice as to whether or not we get a carry case in front of the resulting court, since the end result they'd generate by deciding against carry would be essentially identical to the situation as it stands already (and so, that raises the question of why they'd bother).

dave_cg
12-01-2013, 6:15 PM
... My statement is not about Constitutionality, but rather about the Supreme Court's behavior. My belief is that the Supreme Court is done with us, ...

... and you've said why. You've said that even if Wollard was not asking for relief they were willing to grant, they could have taken it and ruled as they like anyway.

But when Wollard was denied cert, I spent a long time thinking about why. I changed my mind about what the Court is looking for. I now believe that any case asking for a permission slip to exercise an enumerated right is a non-starter. Imagine how that propagates to other rights! The SC won't go there. We need to probe the court with a case that says self-defense outside the home is a protected right, and the right to bear is specifically enumerated, without that case also addressing manner. It's enough to get the court to say that *some* manner of carry *must* be legal to non-prohibited persons without a permission slip. The whole 'concealed' versus 'open' carry is a manner question that I think the SC will totally dodge, and defer to the states. We need to get them on record with simply 'carry'. The SC will let the states decide which is the constitutionally protected manner, and which additional manner(s) requires a permission slip.

So... while the court could have taken Wollard, junked the brief, and had a clerk whip up an opinion out of thin air, that's expecting a lot. I won't say the court is done with us until we have hit them between the eyes with a pure carry, manner-doesn't-figure-into-it, case. Wollard could have been briefed that way, and I like to think it would have gotten cert if it had.

kcbrown
12-01-2013, 6:36 PM
... and you've said why. You've said that even if Wollard was not asking for relief they were willing to grant, they could have taken it and ruled as they like anyway.

But when Wollard was denied cert, I spent a long time thinking about why. I changed my mind about what the Court is looking for. I now believe that any case asking for a permission slip to exercise an enumerated right is a non-starter.


Which means the logic I used above is entirely sound. The government can always convert a total ban into something involving permission slips but which is close enough to a total ban that it achieves their purpose of disarming the population.



Imagine how that propagates to other rights! The SC won't go there. We need to probe the court with a case that says self-defense outside the home is a protected right, and the right to bear is specifically enumerated, without that case also addressing manner. It's enough to get the court to say that *some* manner of carry *must* be legal to non-prohibited persons without a permission slip.
But if the Court is unwilling to deal with cases involving permission slips, then it is illogical to believe that the Court will insist that the right be exercisable without them. Rather, it is logical to believe that, when presented with a case involving no permission slips at all, the Court will simply say that the right outside the home exists. And at this point, even that's a stretch. It's more likely that the Court will simply deny cert there as well.



The whole 'concealed' versus 'open' carry is a manner question that I think the SC will totally dodge, and defer to the states. We need to get them on record with simply 'carry'. The SC will let the states decide which is the constitutionally protected manner, and which additional manner(s) requires a permission slip.

So... while the court could have taken Wollard, junked the brief, and had a clerk whip up an opinion out of thin air, that's expecting a lot. I won't say the court is done with us until we have hit them between the eyes with a pure carry, manner-doesn't-figure-into-it, case. Wollard could have been briefed that way, and I like to think it would have gotten cert if it had.Woollard was briefed that way. It is a mistake to believe that the case that was argued was one that touched upon manner of carry except to explicitly call out that it wasn't being addressed.

Worse, the district court decision in Woollard also did exactly the same thing: explicitly disclaimed that it was addressing manner.


So yes, my reasons for believing that the Court really is done with us are, from what I can tell, rock solid. With the sole possible exception of the issue of permission slips, Woollard was precisely the vehicle that we were looking for. But a vehicle that does not involve permission slips is one that will prove worthless, because if the Court is unwilling to deal with that issue, then it means that governments can and will do whatever they please through the vehicle of permission slips. The mere declaration by the Court that the right outside the home exists is in itself worthless unless it is followed up by a declaration that either the government must issue permission slips to (at a minimum) all non-prohibited persons, or that permission slips are disallowed entirely for at least some manners of the exercise of the right. But whether the former or the latter is what is said, the Court must deal with the issue of permission slips for the right to be treated as a right. There is no escaping that, and that is why Woollard was a suitable vehicle for securing carry.

Hence, to claim that the Court is uninterested in dealing with the issue of permission slips is to conclude that the Court has no problem with the right being infringed to the point of extinction, as long as it is done through the vehicle of permission slips. Is that really your claim? If so, then why would the Court bother to take a case for the purpose of declaring that the right exists outside the home at all?

curtisfong
12-01-2013, 8:58 PM
The great thing about the court system is that SCOTUS can decide that the "the sky is blue", and refuse to cert any appeals on decisions (past and future) where lower courts have said "the sky is not blue"

Indefinitely.

Apocalypsenerd
12-01-2013, 9:40 PM
At this point I am tending to agree with KC's position that for the time being SCOTUS is done with us.

My only caveat to that, is that it is possible that the SCOTUS waits until all Circuits have ruled before taking a case regarding the subject matter. That being said, I think it is criminal for our highest court to allow individuals to go to jail because they want to wait on a lower court.

My questions regarding this matter are as follows:

Had all circuits ruled on cases similar to Heller before SCOTUS took Heller?

Had all circuits ruled on cases regarding gay marriage before SCOTUS took the challenges to Prop 8 and other anti-gay laws?

How does this compare to other dialogues about different civil liberties?

kcbrown
12-01-2013, 10:05 PM
At this point I am tending to agree with KC's position that for the time being SCOTUS is done with us.

My only caveat to that, is that it is possible that the SCOTUS waits until all Circuits have ruled before taking a case regarding the subject matter. That being said, I think it is criminal for our highest court to allow individuals to go to jail because they want to wait on a lower court.

My questions regarding this matter are as follows:

Had all circuits ruled on cases similar to Heller before SCOTUS took Heller?


No. Per the respondent's brief (http://www.gurapossessky.com/news/parker/documents/07-0290bs.pdf), "No state, and only one other major city (Chicago), bans handguns outright. The other two provisions appear unique to Washington, D.C.".



Had all circuits ruled on cases regarding gay marriage before SCOTUS took the challenges to Prop 8 and other anti-gay laws?
Almost certainly not, as that would require laws regarding gay marriage to exist in all circuits. One cannot challenge a law that does not exist.



How does this compare to other dialogues about different civil liberties?It's very different. As I've shown before (http://www.calguns.net/calgunforum/showthread.php?p=12824324#post12824324), the Supreme Court was much more aggressive in defending the civil rights of blacks than they have been in defending the Second Amendment.



No, this Supreme Court appears to have no intention of actually backing its words with deeds.

Apocalypsenerd
12-01-2013, 10:48 PM
Well, if they are not following a pattern that is discernible, and they are ignoring further cases, then we have little choice but to conclude that they are done for the time being. Attempting to parse reasons or motivation is probably just a waste of time.

They could easily have picked ANY carry case and laid out the framework for what they judged was Constitutional.

kcbrown
12-01-2013, 11:29 PM
Well, if they are not following a pattern that is discernible, and they are ignoring further cases, then we have little choice but to conclude that they are done for the time being. Attempting to parse reasons or motivation is probably just a waste of time.

They could easily have picked ANY carry case and laid out the framework for what they judged was Constitutional.

Precisely.

I see no other logical conclusion to draw from the evidence at hand, particularly in light of the cases they are granting cert to, many of which involve trivia. E.g., Medtronic Inc. v Boston Scientific Corp. (http://www.americanbar.org/publications/preview_home/12-1128.html), involving the specific burdens of patent licensees, or BG Group, PLC v Republic of Argentina (http://www.americanbar.org/publications/preview_home/12-138.html), involving who decides whether or not arbitration preconditions have been satisfied, or US v Gary Woods (http://www.americanbar.org/publications/preview_home/12-562.html), which asks about the overstatement penalty in the Internal Revenue Code. And that's just three out of 49. I dare say that none of that 49 have the import and scope that Woollard had, but even if some did, it should be plain that there's plenty of room for cases like Woollard, and therefore the only reason the Supreme Court denied cert (given the nature of Woollard) is because it wanted to.

nicki
12-02-2013, 12:30 AM
Concealed carry is obviously the "preferred method" of carry for most, but the constitutional issue is "bear arms".

An open carry case in California has a problem, it is called the "Black Panthers", as such, touching "open carry" in California is perceived by many to be a "foolish move".

Rather than run away from the "Black Panther" problem, I say let's embrace the right and the reason why the "Black Panthers" took up arms in 1967 in the first place.

Before any of you "chime in", bear in mind that the "Black Panthers" only started carrying arms after they were attacked by the police for documenting and recording civil rights violations by the police. An activity that the US Supreme court recently ruled is a CONSTITUTIONALLY PROTECTED RIGHT.

If you oppose what the Black Panthers did, then you also have to view that the World War Two veterans who took up arms in Athens, Tennessee were WRONG to take up arms and engage in a gun battle with the local sheriff who was in the process of trying to steal an election.

The Black Panthers prior to 1967 were law abiding and as more documents from the 1960's hits the 50 year mark, we will probably find a lot of questionable behavior on the part of our government during those times.

A open carry case attacking the constitutionality of the "Mulford Act" is something we must do, but in doing so, it must be an all-out effort.

I realize than some here would be very uncomfortable with such a lawsuit because it easily could become an "anti-cop" lawsuit.

It is my feeling that "good cops" want to serve and protect people, not violate them and that "good cops" should want to "purge bad cops" from their ranks.

This would be a difficult case because it would be "hard" to read judges, those who we think should be on our side could flip while those we think are our opponents, could surprise us.

One thing for sure, the case would be present an interesting prospect to the courts. Do the people have the right to bear arms to protect themselves from agents of government operating outside of their oaths of office?

Nicki

Mulay El Raisuli
12-02-2013, 5:10 AM
My claim is not that the government's action is Constitutional, only that in doing so, it will be creating exactly the situation that SCOTUS denied cert for. Which means that if the government slaps a permit system on LOC (where said permit system already covers concealed carry), why should we believe that SCOTUS would grant cert to the resulting case when the resulting case would be factually identical (or so close as to not matter) to Woollard, a case they denied cert to?
<snip>



Then it is clear that what we need is a case that is only about LOC AND license free. Specifically, Bonidy (my comments about how to fight that are elsewhere).


The Raisuli

kcbrown
12-02-2013, 8:25 AM
Then it is clear that what we need is a case that is only about LOC AND license free. Specifically, Bonidy (my comments about how to fight that are elsewhere).


But let's say that the Court addresses only issues that are actually before it (remember, the lower courts have generally limited Heller to its facts and holding, so as regards governing the lower courts, this is of monumental importance).

Is the issue of permits before the Court when the case you're thinking of here gets to it? No.

Will the Court thus issue a decision in which the decision itself says anything about permits? Almost certainly not.


So tell me then: what in the world makes you think that the case you're thinking of will have any value whatsoever by itself, when all the governments in question will have to do is slap a "may-issue-but-really-almost-no-issue" permit system on exercise of the right?

The logical answer is completely obvious: the case you're thinking of is completely worthless without a companion case that deals with permits. But if the Court is unwilling to deal with the permit issue, as it quite clearly has indicated based on its inaction with respect to that very issue to date, then why should we believe that it will suddenly be willing to deal with the permit issue in a later case?


That said, we are where we are and there's nothing to be done about it. So the case you're thinking of must go up, because there's nothing else we can do. But to expect that to actually get us anything useful by itself is to live in a fantasy world.

Whiskey_Sauer
12-02-2013, 1:11 PM
LOL at the premise of the original post, which was to call out "unqualified" "non-2A attorneys" and to leave Second Amendment litigation to the so-called experts, and not mere-mortal amateurs, which then leads to 3+ pages of rank speculation by amateurs about how the Court is likely to consider further Second Amendment cases.

curtisfong
12-02-2013, 2:52 PM
A non-amateur (actual lawyer) would just go on and on about how wonderful the court system is, and how intelligent, consistent and intellectually honest judges as a whole are.

And that having an experienced lawyer who can make an intelligent, consistent, and logical argument is a SURE WIN STRATEGY!

Are you sure that is what you want to hear?

kcbrown
12-02-2013, 3:44 PM
LOL at the premise of the original post, which was to call out "unqualified" "non-2A attorneys" and to leave Second Amendment litigation to the so-called experts, and not mere-mortal amateurs, which then leads to 3+ pages of rank speculation by amateurs about how the Court is likely to consider further Second Amendment cases.

Rank speculation and logical deductions based on evidence are not at all the same thing. It is unwise to confuse one with the other, since confusing the former for the latter leads to belief in the impossible, whilst confusing the latter for the former leads to disbelief in that which has been proven correct.

meyerlemony
12-02-2013, 8:06 PM
Bakers lawyer is not out to create precedents in the world of the 2A, Baker simply wanted to own a handgun. His lawyer is trying to make that happen for him.

All (rational) litigators know that every time we file a document, each and every time we file a case, and every time we walk into a courtroom for oral arguments, we are making precedent. That is what we DO. Building on case law. Published or unpublished, what happens in every case goes into, at the very least, that judge's mental "bench book" and influences what happens after, and, in the other extreme, appears as the foundation for a Supreme Court case. The just in this matter will forever remember the "pro 2A lawyer" conceding on intermediate scrutiny.

That's why being a litigator is worth the work - you are, with every word, shifting the legal climate of your local courtroom, your jurisdiction, you state, or, if you're lucky, the country.

The magic phrase is, "your honor, opposing counsel argues the test should be intermediate scrutiny. While I respectfully disagree and reiterate, as I have shown in my previous pleadings, that the proper level of scrutiny should be strict scrutiny, for the purposes of this case, it is irrelevant because under ANY standard of heightened scrutiny, the law fails."

You follow the Supreme Court's lead in Heller - you know it isn't rational basis, and because it can't pass strict OR intermediate scrutiny, you drop the argument. But you don't concede. If your arguments are well reasoned and based in statute and case law, you NEVER concede - you respectfully disagree and either the judge goes with it or doesn't. Or you argue in the alternative.

curtisfong
12-02-2013, 8:26 PM
All (rational) litigators

You mean activist litigators.

Rational litigators only care about the clients they have right now.

Now, you could argue they know what kind of clients they might have in the future (and thus what kind of precedent they may need later), but a sufficiently skilled (and rational) litigator might bat for whatever client pays the most..

meyerlemony
12-02-2013, 8:26 PM
A non-amateur (actual lawyer) would just go on and on about how wonderful the court system is, and how intelligent, consistent and intellectually honest judges as a whole are.

And that having an experienced lawyer who can make an intelligent, consistent, and logical argument is a SURE WIN STRATEGY!

Are you sure that is what you want to hear?

Really? I'm an actual, non-amateur lawyer, and I would never say that. Nothing is EVER a sure win...nothing.

Our court system is pretty good, and I think gets it right more often than not - but it can go very, very badly. It is certainly better than (in my not so humble opinion) what other countries have.

meyerlemony
12-02-2013, 8:33 PM
You mean activist litigators.

Rational litigators only care about the clients they have right now.

Now, you could argue they know what kind of clients they might have in the future (and thus what kind of precedent they may need later), but a sufficiently skilled (and rational) litigator might bat for whatever client pays the most..

All litigators are activists - for their clients. Maybe they are batting for whatever client pays the most...but we all still know that every case is a piece of a bigger puzzle. How does it make you an activist if it is true? Even if you only care about the case you are arguing right that second, the fact that you are influencing case law doesn't change.

I just fundamentally disagree that anyone should accept that "well, it got a good result for my client, and to heck with the precedent" is an acceptable position.

Whiskey_Sauer
12-02-2013, 8:40 PM
Rank speculation and logical deductions based on evidence are not at all the same thing. It is unwise to confuse one with the other, since confusing the former for the latter leads to belief in the impossible, whilst confusing the latter for the former leads to disbelief in that which has been proven correct.

Oho, now you're going to condescend to lecture me about evidence? This thread keeps getting better and better.

meyerlemony
12-02-2013, 8:41 PM
We are talking about a guy who literally, in a brief, said to the court, THAT THE COURT WAIVED ANY PROCEDURAL DEFECTS IN HIS BRIEF BECAUSE IT AUTOMATICALLY ACCEPTED HIS ELECTRONIC FILING. Incredible. And there are people here thinking that he is doing a good thing by litigating cases that could decide the SOR for the 2A for all of us. That he should be litigating these issues. That he should be filing cases that the SAF and NRA and lawyers like Clement, Gura, and Michel specifically asked him not to file. I must be hallucinating.

If it sounds like I'm furious, it's because I am.

Oh dear. Really? I wouldn't mind reading that. If you have the cite handy, I'd appreciate it. Otherwise I can just pick through Westlaw tomorrow.

curtisfong
12-02-2013, 8:44 PM
Oho, now you're going to condescend to lecture me about evidence? This thread keeps getting better and better.

So we should delete posts from anybody who didn't pass the Bar?

kcbrown
12-02-2013, 8:47 PM
Oho, now you're going to condescend to lecture me about evidence? This thread keeps getting better and better.

About evidence? No. What need is there of that? You've not disputed the evidence. We know what the Supreme Court has done, and we know what the Supreme Court has not done. We also know what the lower courts have done, and what they have not done. We know what has been presented to all of them. Logical conclusions can be drawn from all of that.

It may be that you don't like the conclusions being drawn, but that you may not like them in no way casts doubt on their validity. They stand or fall on their own.


ETA: If you have a better hypothesis that fits the facts and makes predictions at least as good as the hypothesis I'm operating under, spill it. Otherwise, you really haven't much to stand on, do you?

Whiskey_Sauer
12-02-2013, 8:48 PM
All litigators are activists - for their clients. Maybe they are batting for whatever client pays the most...but we all still know that every case is a piece of a bigger puzzle. How does it make you an activist if it is true? Even if you only care about the case you are arguing right that second, the fact that you are influencing case law doesn't change.

I just fundamentally disagree that anyone should accept that "well, it got a good result for my client, and to heck with the precedent" is an acceptable position.

Wrong. Your client pays you - and you have a duty - to get the best possible outcome for him, period. If you are willing to compromise your client's position because you think there might be a better outcome for a community of similarly-situated parties, and possibly earn you glory on appeal, then you aren't doing your duty to your client.

I find it hard to believe that you litigate cases and actually think about precedent in 99% of the law & motion matters you handle, unless you are an appellate specialist.

Whiskey_Sauer
12-02-2013, 8:49 PM
So we should delete posts from anybody who didn't pass the Bar?

No, not at all. I am quite sincere when I say this thread has a high amusement factor. Prognosticate away.

I especially find amusement from newly-minted JDs who haven't even passed the bar or represented an actual client in court who start threads and condescend to lecture actual attorneys how not to represent their clients. No, it doesn't get any better than that.

chainsaw
12-02-2013, 8:52 PM
I just fundamentally disagree that anyone should accept that "well, it got a good result for my client, and to heck with the precedent" is an acceptable position.

So you say you are an actual lawyer. I presume that you mean the following: You are licensed to practice law by the state of California, and you are a member of the California bar.

Above, you are telling me that getting the best result for your client is not your highest priority, if getting that result would lead to bad precedent for future clients, or for the community at large. Do you agree that this is just a clearer exposition of what you stated in the quote above?

Is that compatible with the duty you (as a licensed attorney) have above all to your client? I think if I took your statement to a disciplinary hearing at the bar, bad things would happen to your license.

Now, in some cases your client is not interested in the outcome of the particular lawsuit, but in setting precedent (which is common in lawsuits by political advocacy organizations, such as CGF, NRA, SAF, and uncommon but not unheard of in lawsuits by individuals or corporations). In that case, your obligation is still to your client. But the focus on setting good precedent is ethical if and only if your client wishes that to be the focus.

kcbrown
12-02-2013, 9:03 PM
I find it hard to believe that you litigate cases and actually think about precedent in 99% of the law & motion matters you handle, unless you are an appellate specialist.

Question: how would being an appellate specialist change the calculus here?

Tincon
12-02-2013, 11:32 PM
If you are willing to compromise your client's position because you think there might be a better outcome for a community of similarly-situated parties, and possibly earn you glory on appeal, then you aren't doing your duty to your client.

No one here said that. What was said was, there is an artful (and entirely commonplace) way to achieve the same purported goal without conceding such a massively important point to opposing counsel.

Tincon
12-02-2013, 11:33 PM
.
I especially find amusement from newly-minted JDs who haven't even passed the bar or represented an actual client in court who start threads and condescend to lecture actual attorneys how not to represent their clients. No, it doesn't get any better than that.

I don't even have a JD. And yet, I'm not wrong.

arsilva32
12-03-2013, 2:37 AM
I don't even have a JD. And yet, I'm not wrong.



lol you sir will make a great attorney or the like,don't let anything or anyone change that conviction.

Mulay El Raisuli
12-03-2013, 7:08 AM
But let's say that the Court addresses only issues that are actually before it (remember, the lower courts have generally limited Heller to its facts and holding, so as regards governing the lower courts, this is of monumental importance).

Is the issue of permits before the Court when the case you're thinking of here gets to it? No.

Will the Court thus issue a decision in which the decision itself says anything about permits? Almost certainly not.


So tell me then: what in the world makes you think that the case you're thinking of will have any value whatsoever by itself, when all the governments in question will have to do is slap a "may-issue-but-really-almost-no-issue" permit system on exercise of the right?

The logical answer is completely obvious: the case you're thinking of is completely worthless without a companion case that deals with permits. But if the Court is unwilling to deal with the permit issue, as it quite clearly has indicated based on its inaction with respect to that very issue to date, then why should we believe that it will suddenly be willing to deal with the permit issue in a later case?


That said, we are where we are and there's nothing to be done about it. So the case you're thinking of must go up, because there's nothing else we can do. But to expect that to actually get us anything useful by itself is to live in a fantasy world.


What makes you think that the governments in question have the ability to just slap on a permit system? The District judge on Bonidy stated flat out that open carry is the Right. If we carry this WIN to the 10th (and to SCOTUS), we would then have permitless LOC as The Law of The Land. Because, as you say, permits are NOT part of the case, any & all effort in that direction is disallowed.

Now, the antis can try to pass a 'permit for LOC' law afterward, but the burden is on the antis to justify, in Federal court, whatever permit law they might want to pass. Which they can't do. Just as permits can't be imposed on any other Constitutional Right that is "fundamental" to the American scheme.


LOL at the premise of the original post, which was to call out "unqualified" "non-2A attorneys" and to leave Second Amendment litigation to the so-called experts, and not mere-mortal amateurs, which then leads to 3+ pages of rank speculation by amateurs about how the Court is likely to consider further Second Amendment cases.


Mostly true. However, before 2008, the ranks of "unqualified" "non-2A attorneys" included Gura.

Also, it isn't completely "rank speculation." I have been proven completely correct in my predictions of how the 'Shall Issue CCW is the Constitutional Right' effort would be treated in the Federal courts.


All (rational) litigators know that every time we file a document, each and every time we file a case, and every time we walk into a courtroom for oral arguments, we are making precedent. That is what we DO. Building on case law. Published or unpublished, what happens in every case goes into, at the very least, that judge's mental "bench book" and influences what happens after, and, in the other extreme, appears as the foundation for a Supreme Court case. The just in this matter will forever remember the "pro 2A lawyer" conceding on intermediate scrutiny.

That's why being a litigator is worth the work - you are, with every word, shifting the legal climate of your local courtroom, your jurisdiction, you state, or, if you're lucky, the country.

The magic phrase is, "your honor, opposing counsel argues the test should be intermediate scrutiny. While I respectfully disagree and reiterate, as I have shown in my previous pleadings, that the proper level of scrutiny should be strict scrutiny, for the purposes of this case, it is irrelevant because under ANY standard of heightened scrutiny, the law fails."

You follow the Supreme Court's lead in Heller - you know it isn't rational basis, and because it can't pass strict OR intermediate scrutiny, you drop the argument. But you don't concede. If your arguments are well reasoned and based in statute and case law, you NEVER concede - you respectfully disagree and either the judge goes with it or doesn't. Or you argue in the alternative.


Makes sense to me.


The Raisuli

Whiskey_Sauer
12-03-2013, 8:31 AM
No one here said that. What was said was, there is an artful (and entirely commonplace) way to achieve the same purported goal without conceding such a massively important point to opposing counsel.

I still would like to see the brief that you would have written in response to the defendants' Notice of Supplemental Authority. Since you speak for the Association of Qualified Second Amendment Attorneys ("AQSAA").

kcbrown
12-03-2013, 8:32 AM
What makes you think that the governments in question have the ability to just slap on a permit system? The District judge on Bonidy stated flat out that open carry is the Right. If we carry this WIN to the 10th (and to SCOTUS), we would then have permitless LOC as The Law of The Land. Because, as you say, permits are NOT part of the case, any & all effort in that direction is disallowed.


You might be misunderstanding my meaning here.

The court says what it says. What it says is presumably constrained by what is before it. If permits are not before the court, the court will say nothing whatsoever about them. While that is not always the case, of course, it's foolish to presume that the court will address that which is not before it, and even more foolish to believe that the lower courts will not simply ignore it unless it is part of the holding.

When the court has not opined about an issue, it means the government can, and thus (in this case) will do whatever it likes as regards that issue. We would then have to challenge their actions separately, later.



Now, the antis can try to pass a 'permit for LOC' law afterward, but the burden is on the antis to justify, in Federal court, whatever permit law they might want to pass. Which they can't do. Just as permits can't be imposed on any other Constitutional Right that is "fundamental" to the American scheme.
No, the burden would be on us to successfully challenge the law. Remember, the courts apply a "presumption of Constitutionality" to laws as well as operating under a "Constitutional avoidance" doctrine. This means the courts will do everything they can to avoid the Constitutional issue, and if they are unable to avoid it, they will presume Constitutionality on the part of the law. It will be up to us to show that the law in question is Unconstitutional.

But that's not the real problem. The real problem is that you know the lower courts (especially in anti-gun jurisdictions such as the 2nd Circuit) are going to rule against us. Why? Precisely because they limit the Supreme Court's decisions to their facts and holdings when everything else is inconvenient to them. So you can bank on the lower courts ruling against us in the resulting challenge.

That leaves us with the Supreme Court. But the Supreme Court has already shown its unwillingness to deal with permit issues, and a permit issue is precisely what it would be facing here. As such, why should we believe that the Court will suddenly grant cert to our case challenging permits against LOC when it has not granted cert to our case challenging permits against carry in general?


But it's even worse than that. Governments will probably just lump LOC into the permit scheme they already have set up for concealed carry, and just like that, the end result is identical to the situation in Woollard: the same permit system governed all forms of carry in public there, and now it will here. And since the Supreme Court refused to grant cert to that case, why in the world should we believe it will grant cert to another identical case later on?


No, at the end of the day, securing a declaration that LOC is a right is worthless by itself. It must be followed up by success in a case dealing with permits. But since that case has already come and gone with the Supreme Court refusing to hear it, I have no reason at all to believe that the Supreme Court will treat its reincarnation any differently than the original (i.e., Woollard).


I see no logical way out of this.


ETA: note that in Heller, the issue of permits was before the court. Plaintiffs didn't dispute the ability of governments to issue permits as long as such issuance is done on a "shall-issue" basis. That is why governments have not instituted "may issue" permit schemes governing ownership and bear in the home: because the holding in Heller disallows it:


In sum, we hold that the District's ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense. Assuming that Heller is not disqualified from the exercise of Second Amendment rights, the District must permit him to register his handgun and must issue him a license to carry it in the home.


(emphasis mine)

But because the case you're talking about will not involve permits, that issue will not be before the court, and therefore the holding almost certainly will say nothing about them.

meyerlemony
12-03-2013, 10:13 AM
Whisky Sauer: Yes, you have a duty to get the best possible outcome for the client; however, that goal is not mutually exclusive with doing your best to not muck up the case law on whatever facts you are presenting. Litigation 101 is “make your record in case you need to appeal.” Being a zealous advocate is about the client you have now, but it is also about being a good advocate for the law itself. In this instance, especially, not conceding on level of scrutiny would not have impacted the outcome at all.

Chainsaw: I’m not yet convinced you are intimately familiar with what happens at disciplinary hearings. I’ve served as an expert in one of my specialty areas more than once for the California State Bar. First, you’d have to actually have a client complain (never had that so far!). Next, the CA State Bar would have to show that the client’s outcome would have been different, but for my concern with precedent. Likely? No. Not if you’re doing it right.

Getting the best result for your client within the bounds of your ethical responsibilities is the highest priority. I think we, as officers of the court, have a duty to make the best argument possible by either following the statute / case law already published, or making a contrary argument using past precedent and public policy to change the interpretation of the law. That duty includes being very careful on constitutional law issues, especially where the precedent isn’t clear or established, to not muddy the waters. You keep asking how we would have briefed this particular case, and I’ve given it to you:

“I respectfully disagree with opposing counsel’s insistence that, at best, intermediate scrutiny should apply. Based on X, Y and Z, strict scrutiny should apply, but in this matter, based on these facts, such argument is irrelevant and unnecessary because the law fails under any heightened level of scrutiny.”

The duties to client and to the body of case law at large are not mutually exclusive. If I am defending (or prosecuting on behalf of) a client on a 2A issue, then logically that client’s case is going to be helped if the scrutiny level applied is strict rather than rational. Conceding the point on the level of scrutiny is never going to help my case, especially in an area of law that has, thus far, had very little Supreme Court guidance in the area of scrutiny application.

I would never take a case where I would be arguing something different than how I believe the law should be interpreted. I have fundamentally disagreed with the premise of cases that I was assigned to work on, when I was at a firm, but none of them were ground breaking constitutional law issues. When a firm I was working with stepped into that area and started making a mess of the precedent in order to make a quick dollar on its clients, I walked out. I'm sure there was an army of first years to replace me...

The client has no say as to whether or not precedent is set – like I keep saying – in every pleading, every argument, you are, at the very least, setting precedent in that courtroom. Why would any lawyer ignore that?

What Tincon is saying is exactly right. You can do both – there is a method of pleading and framing a case where you zealously advocate for your client, and get the best outcome for that client based upon those facts, while, at the same time, not creating any anomalies in the body of case law (intentionally).

It isn’t complicated. This is really basic stuff that we learned in law school. I’m not a certified appellate specialist, but I have taken cases to the appellate level and argued before the CA Appellate Court. I don't have enough "points" for the specialty, since I only handled a few cases and you need at least 5 years of appellate work. I've only been licensed for 7, and I only litigated in the CA Superior Courts for the first 2 years.

The base line here is...the ruling has been issued. The foundation has been set. Amici can't go back in time and fix that. The issue is that the body of 2A law is very unsettled, and each and every case that adds to that body of law should be drafted as tightly as possible, because you really never know which case might go up on appeal. If you can get the court to review de novo, great (difficult), but, if not, it is going to be an abuse of discretion test to determine whether the lower court should be overturned. The could remand on the issue of scrutiny, but would they? I don't know. But it makes the road a lot bumpier when there are "offshoots" like this. It just does.

I'm sure the pleadings I drafted in the first 2 years of practice weren't pretty - but I was working on basic thinks like breach of contract, construction defect, and intellectual property right violations. All very well settled area of law. I didn't get into the "weird" stuff until I had been doing it for a bit longer. But this economy...it is forcing attorneys to go out on their own. There just aren't a whole lot of jobs for those 200,000+ lawyers already in the state, and there really aren't for the almost 5000 they just added this month. Attorneys are hanging out their shingle earlier and earlier... which maybe isn't the best thing for the client or the case law. I think we are going to continue to see these kinds of things from all areas of the law.

curtisfong
12-03-2013, 10:57 AM
The base line here is...the ruling has been issued. The foundation has been set. Amici can't go back in time and fix that.

Which is ridiculous. There is absolutely no good reason why the courts should feel handcuffed by bad precedent.

Cruikshank, for example.

Why are the courts so insistent that it is lawyers that have to corner them (in chess like, check mate fashion) to make honest judgements, such that they have no alternative but to act ethically?

Tincon
12-03-2013, 11:19 AM
Which is ridiculous. There is absolutely no good reason why the courts should feel handcuffed by bad precedent.


Without agreeing or disagreeing with your conclusion, there is a good reason. Consistency. There is at least some value in having settled law, and a predictable outcome in civil and criminal disputes. The reasons for that being, hopefully, obvious.

Tincon
12-03-2013, 11:21 AM
I still would like to see the brief that you would have written in response to the defendants' Notice of Supplemental Authority. Since you speak for the Association of Qualified Second Amendment Attorneys ("AQSAA").

I gave an indication very early in this thread of what I thought the approach should be, and I can't phrase it any better than meyerlemony: “I respectfully disagree with opposing counsel’s insistence that, at best, intermediate scrutiny should apply. Based on X, Y and Z, strict scrutiny should apply, but in this matter, based on these facts, such argument is irrelevant and unnecessary because the law fails under any heightened level of scrutiny.”

Like he said, this is basic law school level stuff.

kcbrown
12-03-2013, 11:23 AM
Without agreeing or disagreeing with your conclusion, there is a good reason. Consistency. There is at least some value in having settled law, and a predictable outcome in civil and criminal disputes. The reasons for that being, hopefully, obvious.

Consistency can be achieved in two ways.

The first is by allowing incorrect precedent to persist.

The second is by eliminating incorrect precedent as early as possible, by being willing to reverse incorrect conclusions whenever they're found.

The courts have settled on the first method, which only makes things worse because when they finally get around to fixing their errors, the resulting changes are large.

Tincon
12-03-2013, 11:30 AM
Consistency can be achieved in two ways.

The first is by allowing incorrect precedent to persist.

The second is by eliminating incorrect precedent as early as possible, by being willing to reverse incorrect conclusions whenever they're found.

The courts have settled on the first method, which only makes things worse because when they finally get around to fixing their errors, the resulting changes are large.

I'd have to disagree that constantly changing the law whenever existing law is "incorrect" according to the to current panel is in any way demonstrative of "consistency."

curtisfong
12-03-2013, 11:42 AM
I understand your big picture point about consistency, and wishing to prevent the court from overstepping well established rules to provide stability to the system.

But the idea that an amici can't fix a defective brief is not one of those things that provides consistency or stability. If anything, it allows bad lawyering to destabilize the system and introduce (cumulative) errors that can never be fixed faster than they are made.

kcbrown
12-03-2013, 11:43 AM
I'd have to disagree that constantly changing the law whenever existing law is "incorrect" according to the to current panel is in any way demonstrative of "consistency."

That presumes that the panel in question is operating with an arbitrarily shifting foundation. But it is not. It is operating with a Constitutional foundation, i.e. one in which the foundation is built upon both the U.S. Constitution and the state constitution(s).

Those are essentially unchanging (Constitutional amendments are rare) and, as a result, they are a stable foundation.

If this were merely a question of arbitrary opinion, I would be inclined to agree with you, but it's not. Words and phrases have meaning that are imparted at the time they are written, something which can be determined through investigation if nothing else, and as regards civil litigation, the courts exist to decide whether or not what is written is consistent with the Constitutional foundation. And that is not something that changes arbitrarily.

As such, the fear you express is lacking logical foundation. More precisely, if your fear is legitimate, it is only when the courts are not doing their jobs properly.

curtisfong
12-03-2013, 11:47 AM
As such, the fear you express is lacking logical foundation. More precisely, if your fear is legitimate, it is only when the courts are not doing their jobs properly.

That is to say, abdicating the role of drawing entirely logical conclusions, and letting (sometimes) incompetent and (always) biased lawyers (and legislators) do it for them.

Tincon
12-03-2013, 11:48 AM
More precisely, if your fear is legitimate, it is only when the courts are not doing their jobs properly.

Fundamentally, our system relies on human beings to interpret the law. If you ask 10 different people --even 10 different judges-- what the words in a document mean,you will likely get ten different replies. Maybe the result is that legal can't even function "properly". Nonetheless, it's the system we have. I'd be interested to hear if you had an idea for an better one, and a way to implement it.

Tincon
12-03-2013, 11:49 AM
Oh dear. Really? I wouldn't mind reading that. If you have the cite handy, I'd appreciate it. Otherwise I can just pick through Westlaw tomorrow.

This Court waived all defects as to the motion for affirmative relief. Mr.
Young was informed via ECF correspondence immediately after he filed for
affirmative relief that no action was needed. The motion to strike should be
presumed denied.

http://michellawyers.com/wp-content/uploads/2010/12/Young-v.-Hawaii_Reply-to-Jackson-v.-City-and-County-of-San-Francisco-No.-12-17803-Response-to-Mr.-Youngs-Motion-to-Reply-or-Bind.pdf

Enjoy.

curtisfong
12-03-2013, 11:53 AM
Fundamentally, our system relies on human beings to interpret the law. If you ask 10 different people --even 10 different judges-- what the words in a document mean,you will likely get ten different replies. Maybe the result is that legal can't even function "properly". Nonetheless, it's the system we have. I'd be interested to hear if you had an idea for an better one, and a way to implement it.

A language of law that doesn't pretend to be English would be a start.

You need a lawyer to interpret legalese anyway. Why not go the extra mile and standardize on a language that has a complete, unambiguous grammar?

Also, see my anger that an amici cannot mitigate a bad brief.

Tincon
12-03-2013, 12:01 PM
A language of law that doesn't pretend to be English would be a start.

You need a lawyer to interpret legalese anyway. Why not go the extra mile and standardize on a language that has a complete, unambiguous grammar?

Also, see my anger that an amici cannot mitigate a bad brief.

Well, I'm pretty angry about it too, and it's the reason why this crap never should have been filed. I can't imagine why Beck thought it was a good idea to litigate an appeal of case that challenged every single dangerous weapons statute of an entire state in one lawsuit. How much good work do you think the real 2A lawyers on our side could be doing if they didn't have to babysit cases like his? The Young brief was FULL of errors and procedural mistakes, and his argument that because the court automatically accepted his electronic filing defects were waived is so absurd I laughed out loud when I read it. Meyerlemony gets it. How everyone else isn't as upset about this as I am, I have no idea.

curtisfong
12-03-2013, 12:08 PM
Meyerlemony gets it. How everyone else isn't as upset about this as I am, I have no idea.

I'm upset about this too. But you simply can't prevent bad lawyering. You CAN do a better job preventing bad lawyering from resulting in bad precedent imperviously set in stone by fixing the damn court system and not pretending it simply can't be improved on.

A fundamental property of a properly functioning system is that it mitigate the harm done by bad or incompetent actors. It MUST presume the presence and activity of those bad actors, and can't pretend they do not exist.

Tincon
12-03-2013, 12:11 PM
I'm upset about this too. But you simply can't prevent bad lawyering. You CAN do a better job preventing bad lawyering from resulting in bad precedent imperviously set in stone by fixing the damn court system and not pretending it simply can't be improved on.

Well, I would have thought convincing these lawyers to stop screwing around with 2A cases would be easier than fixing the entire court system, but maybe I was wrong!

curtisfong
12-03-2013, 12:19 PM
Well, I would have thought convincing these lawyers to stop screwing around with 2A cases would be easier than fixing the entire court system, but maybe I was wrong!

No. You cannot prevent bad actors from acting. You can only make the system more resilient to bad actors.

Hell, this is exactly what the court system is for in the first place.

kcbrown
12-03-2013, 12:47 PM
Fundamentally, our system relies on human beings to interpret the law. If you ask 10 different people --even 10 different judges-- what the words in a document mean,you will likely get ten different replies.


But that is because you're asking the wrong question. The question you should be asking is: what meaning were the words that were written intended to have by those who wrote them, presuming that the authors were capable of saying what they meant? That is a much more precise question and has a much more precise answer. Further, there are formal methods of discerning that, because it is something that linguistic historians have built an entire profession around.

There is absolutely nothing at all that prevents the courts from formalizing the methods used to discern the meaning of the Constitutional foundation they are working with. Moreover, the words in the Constitutional foundation are not measured in volumes, they are measured in pages. Figuring out what is meant therein is not only something that should be relatively easily done, it is something the court system should have done at the outset, while the ink was fresh on the page, the proper interpretations of the words in question well-known, the context well-understood, and the original authors available to ask for clarification.

That leaves the question of what the laws which the courts are judging mean. But the courts aren't really asking what the sole interpretation of that is, but which interpretations are consistent with the Constitutional foundation. Those interpretations which are inconsistent cannot stand. Only those interpretations which are consistent may remain standing.



Maybe the result is that legal can't even function "properly". Nonetheless, it's the system we have. I'd be interested to hear if you had an idea for an better one, and a way to implement it.I'll have to give some serious thought to this, but I can tell you at the outset that one of the major problems with the court system is that there is no effective check against the judiciary as regards preservation of rights. That is an easy one to deal with: for any given decision handed down by a court, if the decision upholds a law, the population may reverse it through a popular vote with a 10% threshold. Which is to say, if more than 10% of those who vote decide to overturn the court's decision and strike the law, then the law gets struck. This will have the effect of allowing minorities to protect themselves from tyranny of the majority in the event the judiciary shirks its duty.

Funtimes
12-03-2013, 2:00 PM
Well, I'm pretty angry about it too, and it's the reason why this crap never should have been filed. I can't imagine why Beck thought it was a good idea to litigate an appeal of case that challenged every single dangerous weapons statute of an entire state in one lawsuit. How much good work do you think the real 2A lawyers on our side could be doing if they didn't have to babysit cases like his? The Young brief was FULL of errors and procedural mistakes, and his argument that because the court automatically accepted his electronic filing defects were waived is so absurd I laughed out loud when I read it. Meyerlemony gets it. How everyone else isn't as upset about this as I am, I have no idea.

You can be mad and glad in the same pants my friend. You do seem to talk an extraordinary amount of crap on forums about people.

Aside from this, do you really think the court cares what we have to say? I'm wagering, probably not.

meyerlemony
12-03-2013, 3:01 PM
http://michellawyers.com/wp-content/uploads/2010/12/Young-v.-Hawaii_Reply-to-Jackson-v.-City-and-County-of-San-Francisco-No.-12-17803-Response-to-Mr.-Youngs-Motion-to-Reply-or-Bind.pdf

Enjoy.

I read the first two lines, gouged my eyes out, and then had to have our paralegal read the rest to me. :facepalm:

I'm kidding (I didn't gouge my eyes out), but I had to just skip down to the ECF part. Don't get me wrong, I'm a HUGE fan of ECF...not having to have a courier serve at the last minute because my supervising partner was procrastinating? FANTASTIC! But ... well ... as the great Indigo Montoya said ... "You keep using that word. I do not think it means what you think it means."

But really, where do I volunteer to sit on some litigation steering committee?

Curtisfong: Amici CAN fix a bad brief. It can, and it has. What it can't do is go back in time and reopen a case that has already been decided. And to your statement, "There is absolutely no good reason why the courts should feel handcuffed by bad precedent," well, there is. We call it stare decisis. Our justice system (except maybe in Louisiana) is based upon it, since our system comes from common law rather than civil law.

From my handy dandy Black's Law Dictionary, it means "to stand by things decided." This is the doctrine followed under common law, and the doctrine of precedent, which dictates that it is necessary for a court to follow earlier judicial decisions when the same points arise again in litigation.

From a reasonably recent case:
"Doctrine of stare decisis is based on the assumption that certainty, predictability, and stability in the law are the major objectives of the legal system, so that parties will be able to regulate their conduct and enter into relationships with reasonable assurance of the governing rules of law." Sierra Club v. San Joaquin Local Agency Formation Com., (1999) 21 Cal. 4th 489.

The case also explains that the "fundamental jurisprudential policy of “stare decisis” provides that prior applicable precedent usually must be followed, even though the case, if considered anew, might be decided differently by the current justices." Id.

Does this mean the court won't reverse itself? No. But what it does mean is that once a decision is made, it will probably only be reversed (or remanded for reconsideration) by a higher court.

...and this concludes my master class on US law...

kcbrown
12-03-2013, 3:32 PM
From my handy dandy Black's Law Dictionary, it means "to stand by things decided." This is the doctrine followed under common law, and the doctrine of precedent, which dictates that it is necessary for a court to follow earlier judicial decisions when the same points arise again in litigation.

From a reasonably recent case:
"Doctrine of stare decisis is based on the assumption that certainty, predictability, and stability in the law are the major objectives of the legal system, so that parties will be able to regulate their conduct and enter into relationships with reasonable assurance of the governing rules of law." Sierra Club v. San Joaquin Local Agency Formation Com., (1999) 21 Cal. 4th 489.

The case also explains that the "fundamental jurisprudential policy of “stare decisis” provides that prior applicable precedent usually must be followed, even though the case, if considered anew, might be decided differently by the current justices." Id.

Does this mean the court won't reverse itself? No. But what it does mean is that once a decision is made, it will probably only be reversed (or remanded for reconsideration) by a higher court.


The problem with all of this is that it is both unnecessary and, in reality, counterproductive. It enshrines incorrectness.

Which is to say, with the above, correctness takes a back seat to stability. That is not only fundamentally flawed, it enshrines into the judicial system that which is directly opposite of the mandate of the court system, which is to correct the legislature by striking down laws which conflict with foundational law.


The stability of a system's output is determined by the stability of the operations it performs on its inputs. The judicial system is supposed to be one which is stable, deterministic, and (perhaps most importantly) self-correcting. Stare decisis ensures that the latter attribute is not a characteristic of the system and, worse, it actually reduces determinism. But most importantly, the judicial system simply cannot perform its mandate if its output is incorrect. Stare decisis ensures that incorrect output is maintained.

But since the foundational laws upon which the judicial system is based are stable, and thus the rules that it uses to determine the acceptability of laws are also likewise stable, it follows that stare decisis is wholly unnecessary, for the only purpose of stare decisis is to achieve stability, but that stability already exists in a system with a stable foundation as long as those acting within the system are acting properly (no system is stable when its components are malfunctioning in unpredictable ways).

In fact, stare decisis has precisely the opposite of its claimed intended effect. It introduces instability into the system by way of adding a feedback loop into the system where one did not exist previously. Rather than being a correcting mechanism (i.e., a negative feedback mechanism), stare decisis acts as a destabilizing force by acting as a positive feedback mechanism, by enshrining incorrectness and thus causing the system to ever further deviate from its correct output.

meyerlemony
12-03-2013, 4:45 PM
Then I guess you have to ask - which body do you trust more: the courts or the legislature? Because civil law is the alternative:

"Civil Law, in contrast, is codified. Countries with civil law systems have comprehensive, continuously updated legal codes that specify all matters capable of being brought before a court, the applicable procedure, and the appropriate punishment for each offense. Such codes distinguish between different categories of law: substantive law establishes which acts are subject to criminal or civil prosecution, procedural law establishes how to determine whether a particular action constitutes a criminal act, and penal law establishes the appropriate penalty. In a civil law system, the judge’s role is to establish the facts of the case and to apply the provisions of the applicable code. Though the judge often brings the formal charges, investigates the matter, and decides on the case, he or she works within a framework established by a comprehensive, codified set of laws. The judge’s decision is consequently less crucial in shaping civil law than the decisions of legislators and legal scholars who draft and interpret the codes." (From the Boalt Hall explanation.) (http://www.law.berkeley.edu/library/robbins/CommonLawCivilLawTraditions.html)

Actually, the US is a little bit of a blend between Civil and Common Law - we have a well established body of statutes, most of which have a statement of legislative intent included, and which the court (supposedly) gives deference to...but then we also follow the rule of case precedent.

I don't disagree with you that the system can stick us with bad precedent, but I think the alternative is a legislature with ultimate power. It needs balance, which, in theory, the US system has.

I know there is a push to make practising law more accessible, to encourage the pro per, and to encourage more lawyers, but really maybe THAT was the underlying mistake. These "attorneys" (and I use that word loosely) will take anything with a checkbook as a client, whether the attorney has the appropriate training or not. I'm as guilty as overreaching as a young lawyer as the next person...but I was smart enough to know when I was overreaching and either hire an expert or team up with a mentor with more experience. It isn't just present in the 2A area. But I do think getting a handle on our present and future litigators is key...and as long as law schools keep pumping out more lawyers, and California feels the need to admit 5000 more every 6 months, I don't see things getting better anytime soon. Unless the CA State Bar gets serious about this "residency for lawyers" thing they keep talking about.

JoshuaS
12-03-2013, 5:25 PM
It has been a long standing idea (you can see it in medieval scholars and in some ancient Romans) that even a bad law/precedent should stand most of the time because simply changing the law does harm. The rule of law is strengthened by consistency and customary force (including, by being long established, become part of social norms).

We already have crazy legislatures that ignore this principle, and pass countless laws, which, even if they were clearly written, by sheer volume in lack of stability, become unknowable to the general population, burdensome, and invite contempt for the rule of law.


Now of course laws that are directly injurious and evil (such as Jim Crow) are another matter, and it comes a time where the bad effect of changing law and weakening customary force is outweighed by the good accomplished by changing the law. But it remains, that the methodology and presumptions of the courts is well-founded here.

If you have not read Tocqueville' s Democracy in America, read it. Especially where he talks about the courts.

Frankly, I wish more people focused on legislative reform. Laws should not be passed so frequently.

kcbrown
12-03-2013, 5:44 PM
Then I guess you have to ask - which body do you trust more: the courts or the legislature?


Neither, of course, based on historical observation. Both are political entities, and both enjoy their particular exercise of power.



Because civil law is the alternative:
Wholesale replacement of the system isn't exactly what I have in mind. All I'm saying is that the role that the judiciary is supposed to play in a Constitutional republic is one that is ill-served by stare decisis.

Stare decisis is a tool that arose in an environment in which there was no foundational set of documents to use as the fundamental basis for decisions. In that environment, it was an improvement.

But you do not blindly import a solution for a problem from one environment for the purpose of solving the same problem in a different environment. You solve the problem in the most optimal way possible based on the environment the problem exists within. Importation of a tool carries with it the assumptions made during the development of that tool, which includes the characteristics of the environment it was developed in. Change those characteristics, and you change the suitability of the tool.

And so it is with stare decisis. It is not only ill-suited to solving the problem of consistency within the judiciary of a Constitutional republic, it is counterproductive -- it makes the problem worse.

But perhaps as bad is attempting to solve a problem that doesn't really exist when the system in question is functioning properly. Such is the case here. The very fact that there is a stable foundation for the judiciary to refer to when making decisions automatically results in the stability being sought, which means that stare decisis is a solution in search of a problem. Application of a solution to a problem that doesn't exist usually yields worse results than does leaving things alone.



Actually, the US is a little bit of a blend between Civil and Common Law - we have a well established body of statutes, most of which have a statement of legislative intent included, and which the court (supposedly) gives deference to...but then we also follow the rule of case precedent.

I don't disagree with you that the system can stick us with bad precedent, but I think the alternative is a legislature with ultimate power. It needs balance, which, in theory, the US system has.
The US system may have had balance at one time. And it would still if the judiciary had stuck to its mission, which is to act as a Constitutional check against the legislature. But it no longer really does that any more. It's now more a rubber-stamping machine than anything else.

Don't believe me? Then explain the district court's decision in Osterweil v Bartlett. There, we had a case that was about as much in-the-home as it gets and despite two Supreme Court cases that explicitly held that RKBA is protected to the greatest degree in the home, the district court still ruled against the plaintiff. It doesn't really get more rubber-stampish than that.

Further evidence includes the fact that the judiciary now uses the doctrines of "presumption of Constitutionality" and of "Constitutional avoidance". If the most important purpose of the judiciary under the Constitution (which is, after all, where it derives its power) is to ensure that the laws which are passed by the legislature pass Constitutional muster, then the Constitutionality of the law should be the first question asked, not the last, and no presumption of its Constitutionality should be made one way or the other at all.



I know there is a push to make practising law more accessible, to encourage the pro per, and to encourage more lawyers, but really maybe THAT was the underlying mistake. These "attorneys" (and I use that word loosely) will take anything with a checkbook as a client, whether the attorney has the appropriate training or not. I'm as guilty as overreaching as a young lawyer as the next person...but I was smart enough to know when I was overreaching and either hire an expert or team up with a mentor with more experience. It isn't just present in the 2A area. But I do think getting a handle on our present and future litigators is key...and as long as law schools keep pumping out more lawyers, and California feels the need to admit 5000 more every 6 months, I don't see things getting better anytime soon. Unless the CA State Bar gets serious about this "residency for lawyers" thing they keep talking about.Litigators should exist to present the issues to the courts. Courts should exist to properly decide the issues regardless of how well presented they are. If those who sit on the courts cannot generate correct decisions as regards Constitutionality when presented with nothing more than the law in question and the situation of the plaintiff, then they are simply not qualified to do their job.

kcbrown
12-03-2013, 5:57 PM
It has been a long standing idea (you can see it in medieval scholars and in some ancient Romans) that even a bad law/precedent should stand most of the time because simply changing the law does harm. The rule of law is strengthened by consistency and customary force (including, by being long established, become part of social norms).


But this isn't a question of whether or not bad law/precedent should be allowed to stand. It's a question of whether or not Unconstitutional law should be allowed to stand, and whether or not the precedent set by allowing it to stand is itself beneficial or detrimental.

To argue that any law which is Unconstitutional should nonetheless be allowed to stand at any time, even if precedent says it should, is to argue that the Constitution should be rendered null and void. To do that is to favor the destruction of the fabric of a Constitutional republic, to favor seeing it turn it into a patchwork of arbitrary laws that stand or fall based on some combination of precedent and the whims of those judging them.


ETA: There is also the matter of proper interpretation of the Constitution itself. Since the Constitution is the foundational document of the republic, its interpretation must be correct, and that means that incorrect interpretations of it must be corrected with the greatest of urgency, for failure to do so will result in the emergence of and preservation of Unconstitutional laws. The bottom line is that here, too, stare decisis results in greater damage, not less.



Frankly, I wish more people focused on legislative reform. Laws should not be passed so frequently.This is most certainly true, especially when one considers that a law is almost always a restriction on someone's liberty.

Mulay El Raisuli
12-04-2013, 8:20 AM
You might be misunderstanding my meaning here.

The court says what it says. What it says is presumably constrained by what is before it. If permits are not before the court, the court will say nothing whatsoever about them. While that is not always the case, of course, it's foolish to presume that the court will address that which is not before it, and even more foolish to believe that the lower courts will not simply ignore it unless it is part of the holding.

When the court has not opined about an issue, it means the government can, and thus (in this case) will do whatever it likes as regards that issue. We would then have to challenge their actions separately, later.


No, you have misunderstood me. That the courts will say nothing about permits in Bonidy (the case I'm actually talking about) is my point. The opportunity exists to have a Circuit Court declare that LOC is the Constitutional Right. Permits being unmentioned equals permits being not allowed. That's why Bonidy is so very important to us.

That the 10th will so declare is something I'm confident they'll do (based on the dicta in Peterson).


No, the burden would be on us to successfully challenge the law. Remember, the courts apply a "presumption of Constitutionality" to laws as well as operating under a "Constitutional avoidance" doctrine. This means the courts will do everything they can to avoid the Constitutional issue, and if they are unable to avoid it, they will presume Constitutionality on the part of the law. It will be up to us to show that the law in question is Unconstitutional.

But that's not the real problem. The real problem is that you know the lower courts (especially in anti-gun jurisdictions such as the 2nd Circuit) are going to rule against us. Why? Precisely because they limit the Supreme Court's decisions to their facts and holdings when everything else is inconvenient to them. So you can bank on the lower courts ruling against us in the resulting challenge.

That leaves us with the Supreme Court. But the Supreme Court has already shown its unwillingness to deal with permit issues, and a permit issue is precisely what it would be facing here. As such, why should we believe that the Court will suddenly grant cert to our case challenging permits against LOC when it has not granted cert to our case challenging permits against carry in general?


But it's even worse than that. Governments will probably just lump LOC into the permit scheme they already have set up for concealed carry, and just like that, the end result is identical to the situation in Woollard: the same permit system governed all forms of carry in public there, and now it will here. And since the Supreme Court refused to grant cert to that case, why in the world should we believe it will grant cert to another identical case later on?


No, at the end of the day, securing a declaration that LOC is a right is worthless by itself. It must be followed up by success in a case dealing with permits. But since that case has already come and gone with the Supreme Court refusing to hear it, I have no reason at all to believe that the Supreme Court will treat its reincarnation any differently than the original (i.e., Woollard).


I see no logical way out of this.


That's because you're combining two separate cases (one real, one hypothetical) into one & thereby confusing yourself.

In Bonidy (the case I'm talking about), permits are not & can not be an issue for the reason you state: they aren't part of the District Court Ruling. That leaves what is there: A simple declarative statement that LOC is the Right, and that the parking lot of a sensitive place ain't necessarily a sensitive place itself.

Of the two parts, LOC is the one that matters most. If we take the damn hint and make the argument that the 10th & SCOTUS have hinted they have been waiting for, our five YEAR wait to have "outside the home" decided would be over. This would be a game changer. The Circuits that have been playing games have only been able to because SCOTUS hasn't spoken "more clearly" on the matter. A win in Bonidy would be that "more clearly." Which is important to your hypothetical 'permits for LOC' case.

Someone (Denver is a good guess) will surely pass a law making permits a requirement for LOC. Which we will challenge. But, while the burden of challenging the law falls on us, the the burden of justifying the law falls on Denver. This won't be easy to do in a landscape where LOC is decided to be a Right equal to the rest of the BoR. Up until now, we've had no support. No "more clearly" spoken guidance from SCOTUS. Bonidy would be the 'lever' that allows us to attack the crap that the the PRK, the 2nd Circuit & the rest have been shoveling at us. Permits aren't allowable in re any other fundamental Right. I see no reason they should be allowed in re THIS fundamental Right.

As for in Woollard, the Circuit Court could have done a lot of things that we did not ask for, but the point is that we didn't ask. As for SCOTUS denying cert, this is not definitive.


ETA: note that in Heller, the issue of permits was before the court. Plaintiffs didn't dispute the ability of governments to issue permits as long as such issuance is done on a "shall-issue" basis. That is why governments have not instituted "may issue" permit schemes governing ownership and bear in the home: because the holding in Heller disallows it:



(emphasis mine)

But because the case you're talking about will not involve permits, that issue will not be before the court, and therefore the holding almost certainly will say nothing about them.


Not disputing permits was the biggest mistake Gura made in Heller. Hopefully this can be corrected in future litigation.


The Raisuli

Mulay El Raisuli
12-04-2013, 8:20 AM
Whisky Sauer: Yes, you have a duty to get the best possible outcome for the client; however, that goal is not mutually exclusive with doing your best to not muck up the case law on whatever facts you are presenting. Litigation 101 is “make your record in case you need to appeal.” Being a zealous advocate is about the client you have now, but it is also about being a good advocate for the law itself. In this instance, especially, not conceding on level of scrutiny would not have impacted the outcome at all.

Chainsaw: I’m not yet convinced you are intimately familiar with what happens at disciplinary hearings. I’ve served as an expert in one of my specialty areas more than once for the California State Bar. First, you’d have to actually have a client complain (never had that so far!). Next, the CA State Bar would have to show that the client’s outcome would have been different, but for my concern with precedent. Likely? No. Not if you’re doing it right.

Getting the best result for your client within the bounds of your ethical responsibilities is the highest priority. I think we, as officers of the court, have a duty to make the best argument possible by either following the statute / case law already published, or making a contrary argument using past precedent and public policy to change the interpretation of the law. That duty includes being very careful on constitutional law issues, especially where the precedent isn’t clear or established, to not muddy the waters. You keep asking how we would have briefed this particular case, and I’ve given it to you:

“I respectfully disagree with opposing counsel’s insistence that, at best, intermediate scrutiny should apply. Based on X, Y and Z, strict scrutiny should apply, but in this matter, based on these facts, such argument is irrelevant and unnecessary because the law fails under any heightened level of scrutiny.”

The duties to client and to the body of case law at large are not mutually exclusive. If I am defending (or prosecuting on behalf of) a client on a 2A issue, then logically that client’s case is going to be helped if the scrutiny level applied is strict rather than rational. Conceding the point on the level of scrutiny is never going to help my case, especially in an area of law that has, thus far, had very little Supreme Court guidance in the area of scrutiny application.

I would never take a case where I would be arguing something different than how I believe the law should be interpreted. I have fundamentally disagreed with the premise of cases that I was assigned to work on, when I was at a firm, but none of them were ground breaking constitutional law issues. When a firm I was working with stepped into that area and started making a mess of the precedent in order to make a quick dollar on its clients, I walked out. I'm sure there was an army of first years to replace me...

The client has no say as to whether or not precedent is set – like I keep saying – in every pleading, every argument, you are, at the very least, setting precedent in that courtroom. Why would any lawyer ignore that?

What Tincon is saying is exactly right. You can do both – there is a method of pleading and framing a case where you zealously advocate for your client, and get the best outcome for that client based upon those facts, while, at the same time, not creating any anomalies in the body of case law (intentionally).

It isn’t complicated. This is really basic stuff that we learned in law school. I’m not a certified appellate specialist, but I have taken cases to the appellate level and argued before the CA Appellate Court. I don't have enough "points" for the specialty, since I only handled a few cases and you need at least 5 years of appellate work. I've only been licensed for 7, and I only litigated in the CA Superior Courts for the first 2 years.

The base line here is...the ruling has been issued. The foundation has been set. Amici can't go back in time and fix that. The issue is that the body of 2A law is very unsettled, and each and every case that adds to that body of law should be drafted as tightly as possible, because you really never know which case might go up on appeal. If you can get the court to review de novo, great (difficult), but, if not, it is going to be an abuse of discretion test to determine whether the lower court should be overturned. The could remand on the issue of scrutiny, but would they? I don't know. But it makes the road a lot bumpier when there are "offshoots" like this. It just does.

I'm sure the pleadings I drafted in the first 2 years of practice weren't pretty - but I was working on basic thinks like breach of contract, construction defect, and intellectual property right violations. All very well settled area of law. I didn't get into the "weird" stuff until I had been doing it for a bit longer. But this economy...it is forcing attorneys to go out on their own. There just aren't a whole lot of jobs for those 200,000+ lawyers already in the state, and there really aren't for the almost 5000 they just added this month. Attorneys are hanging out their shingle earlier and earlier... which maybe isn't the best thing for the client or the case law. I think we are going to continue to see these kinds of things from all areas of the law.


All sensible. All logical. All good.


The Raisuli

kcbrown
12-04-2013, 8:53 AM
No, you have misunderstood me. That the courts will say nothing about permits in Bonidy (the case I'm actually talking about) is my point. The opportunity exists to have a Circuit Court declare that LOC is the Constitutional Right. Permits being unmentioned equals permits being not allowed. That's why Bonidy is so very important to us.


Wrong. Were this the case, then the very first case about free speech that didn't mention permits would have secured all speech against all permits. But that didn't happen at all.

A simple declaration that something is a right doesn't suddenly make that something immune to permits. I wish it did, but it simply doesn't, and it's on you to show otherwise. What other right has been secured in this fashion? None, to my knowledge. Why would you believe this time to somehow magically be different?



Someone (Denver is a good guess) will surely pass a law making permits a requirement for LOC. Which we will challenge. But, while the burden of challenging the law falls on us, the the burden of justifying the law falls on Denver.
Wait, you're now saying that a government will do exactly what you claim previously it would not.

But let's go with this: Denver slaps permits on LOC. We challenge.

How does the resulting case differ in the slightest from Woollard? The answer is that it doesn't. And because it doesn't, and because SCOTUS denied cert to Woollard, why would you suddenly believe that SCOTUS would grant cert to this case?



This won't be easy to do in a landscape where LOC is decided to be a Right equal to the rest of the BoR.
Of course it will. "The right exists outside the home, but what is being infringed is not the core, and therefore we use intermediate scrutiny". And just like that, the court rules against us.

Or, if the permit scheme is "shall issue", then "the right exists outside the home and what is being infringed is the core, but the permit scheme in question serves the compelling government interest of preventing prohibited persons from carrying in public, is narrowly tailored, and is the least restrictive means of serving the compelling government interest". And again, just like that, the court rules against us.

Regardless, we're left with the question of why in the world SCOTUS would take this case when it's factually identical to Woollard, a case they denied cert to.



As for in Woollard, the Circuit Court could have done a lot of things that we did not ask for, but the point is that we didn't ask. As for SCOTUS denying cert, this is not definitive.
Not definitive, of course, but suggestive enough that it leaves the notion of SCOTUS granting cert to the case we're talking about here as nothing more than a fool's hope.

Yes, it could go down the way you claim here, but I go by the probabilities, not by what I wish for.



Not disputing permits was the biggest mistake Gura made in Heller.
Really? Do you really believe Kennedy would have gotten on board if we had argued that permits were not allowable in that case?

taperxz
12-04-2013, 9:12 AM
This thread sure changed from the original OP.

All this is now is an "i know more than you" thread.

At least pick a case and stick with it. LOL

curtisfong
12-04-2013, 10:16 AM
This thread sure changed from the original OP.

All this is now is an "i know more than you" thread.


It wasn't originally a "I know more than you" thread?

Tincon
12-04-2013, 12:11 PM
I'll have to give some serious thought to this, but I can tell you at the outset that one of the major problems with the court system is that there is no effective check against the judiciary as regards preservation of rights. That is an easy one to deal with: for any given decision handed down by a court, if the decision upholds a law, the population may reverse it through a popular vote with a 10% threshold. Which is to say, if more than 10% of those who vote decide to overturn the court's decision and strike the law, then the law gets struck. This will have the effect of allowing minorities to protect themselves from tyranny of the majority in the event the judiciary shirks its duty.

So if at least 10% of the population decides it's good idea to put (insert X race/creed/religion here) into labor/death camps, that's ok as long as that 10% votes to strike down any law prohibiting it? That seems like sort of a nasty place to live.

curtisfong
12-04-2013, 12:13 PM
So if at least 10% of the population decides it's good idea to put (insert X race/creed/religion here) into labor/death camps, that's ok as long as that 10% votes to strike down any law prohibiting it? That seems like sort of a nasty place to live.


Prohibiting a law that limits freedom is not the same as a law that limits freedom.

Now, obviously, you can go down the rabbit hole and propose all sorts of hypothetical laws that illustrate that the meaning of the word "freedom" is subjective, not objective, but hey, that is the fault of shoddy semantic rigor, not anything else.

Perhaps one ought to rigorously define "freedom" before opening a debate over whether a law limits freedom, or limits restrictions on freedom.

Tincon
12-04-2013, 12:17 PM
Prohibiting a law that limits freedom is not the same as a law that limits freedom.

Now, obviously, you can go down the rabbit hole and propose all sorts of hypothetical laws that illustrate that the meaning of the word "freedom" is subjective, not objective, but hey, that is the fault of shoddy semantic rigor, not anything else.

Perhaps one ought to rigorously define "freedom" before opening a debate over whether a law limits freedom, or limits restrictions on freedom.

well that's exactly right.

curtisfong
12-04-2013, 12:26 PM
well that's exactly right.

Incidentally, this is why having an unambiguous language/grammar is so important.

Every single logician can agree on the language and grammar that describes, say, the law of induction. And no logician on the planet will dispute that usage, or that description of the law of induction.

Similarly, every single CPU should treat the same sequence of assembler commands the same way, and every single programmer will agree on whether or not a CPU is executing the sequence properly or not.

Why? Because the language/grammar is unambiguous, and more importantly, *designed* that way from the start.

In law, just about every position, or logical argument, or semantic definition is up for grabs.

Tincon
12-04-2013, 12:29 PM
That's more or less true, but I'll admit I haven't really thought about why, or what the solution would be.

ETA: Actually, the reason why is probably that in those other fields very smart people work towards having a common understanding. In law you have an adversarial process, where very smart people work very hard towards having (at least) two very different understandings. Well, except in cases like the in the OP where one side decides to help out the other....

curtisfong
12-04-2013, 12:59 PM
That's more or less true, but I'll admit I haven't really thought about why, or what the solution would be.

Well then, as a (budding?) lawyer you can agree that one way to evaluate a law's "goodness" is by looking at it's wording.

If it is unambiguous, sticks to non-controversial wording and accepted legal axioms and definitions, it is probably a good law, or at least one whose efficacy, consistency of application, and constitutionality can be measured effectively.

Now, if there was a "meta" way to judge (rigorously) this sort of "goodness" of a law, wouldn't that be a good place for the court system to start when it is examining challenges to the law?

And at that point, wouldn't it make sense to restrict the sorts of words and grammar that a law is allowed to be composed out of?

And make sure that ONLY words that have 100% agreed upon meanings, and ONLY grammars that have 100% agreed upon correctness (and therefore unambiguity) should be used in writing such laws?

And have a rigorous (meta) method for determining whether such a law is written properly.

Note that even a statement that is grammatically correct might be invalid, for example, "this statement is false". Almost all grammars have this flaw; it is very difficult to design an unambiguous grammar that cannot be used to form an invalid, but grammatically correct, sentence.

So you'd need another rigorous method to detect invalid (but grammatically correct) laws.

BTW all of what I'm saying here is not new. It has been discussed to death by logicians, mathematicians, and even linguists.

The point is, all of it is possible to do, but I know of no lawyers (or legal scholars) who have even attempted something like it.

ETA:


ETA: Actually, the reason why is probably that in those other fields very smart people work towards having a common understanding. In law you have an adversarial process, where very smart people work very hard towards having (at least) two very different understandings. Well, except in cases like the in the OP where one side decides to help out the other....

Yes. This is a very prescient insight. I agree with it.

kcbrown
12-04-2013, 2:16 PM
So if at least 10% of the population decides it's good idea to put (insert X race/creed/religion here) into labor/death camps, that's ok as long as that 10% votes to strike down any law prohibiting it? That seems like sort of a nasty place to live.

Except for them to be able to do that, they'd also have to strike the various laws that would otherwise prevent them from lawfully taking the actions that would be necessary to implement such, e.g., laws against kidnapping and such.

There may be laws that actually uphold and protect liberty that more than 10% of the population would be opposed to, but I'd far rather there be too few laws than too many, because in a free society, individuals can take care of themselves whilst in a non-free one, individuals are disallowed from that. And the laws forbidding carry of firearms in public are perfect examples of the latter.


When you start chasing after utopia, you inevitably wind up with a dystopia. Your first instinct might be to have the government intervene in every possible conflict between individuals, but you should know better than to cave to that instinct, precisely because of where it leads.

Mulay El Raisuli
12-05-2013, 6:37 AM
Wrong. Were this the case, then the very first case about free speech that didn't mention permits would have secured all speech against all permits. But that didn't happen at all.

A simple declaration that something is a right doesn't suddenly make that something immune to permits. I wish it did, but it simply doesn't, and it's on you to show otherwise. What other right has been secured in this fashion? None, to my knowledge. Why would you believe this time to somehow magically be different?


I need a permit to worship in the manner I choose? I need a permit to say "The king is a fink"? I need a permit to found a newspaper? I need a permit to anonymously blog? I need a permit to vote?

Really?


Wait, you're now saying that a government will do exactly what you claim previously it would not.

But let's go with this: Denver slaps permits on LOC. We challenge.

How does the resulting case differ in the slightest from Woollard? The answer is that it doesn't. And because it doesn't, and because SCOTUS denied cert to Woollard, why would you suddenly believe that SCOTUS would grant cert to this case?


I don't recall saying that the govt wouldn't try.

You can't see the difference??? Right now, five YEARS after Heller, we still don't have "and bear" recognized as the Right. In Woollard, the Circuit was able to defeat us precisely because "and bear" isn't recognized as the Right. If Bonidy is argued correctly (I.E., if we take the damn hint), "and bear" would (finally!) be so recognized. And that would be the difference. In Woollard, we were asking for a Right to be recognized. In your hypothetical post-Bonidy case, we would be defending something that is recognized as a Right.


Of course it will. "The right exists outside the home, but what is being infringed is not the core, and therefore we use intermediate scrutiny". And just like that, the court rules against us.

Or, if the permit scheme is "shall issue", then "the right exists outside the home and what is being infringed is the core, but the permit scheme in question serves the compelling government interest of preventing prohibited persons from carrying in public, is narrowly tailored, and is the least restrictive means of serving the compelling government interest". And again, just like that, the court rules against us.

Regardless, we're left with the question of why in the world SCOTUS would take this case when it's factually identical to Woollard, a case they denied cert to.


The first scenario is real unrealistic (presuming we take the damn hint).

The second is unlikely, for the reasons given above.

Why a post-Bonidy case is nothing like Woollard is detailed above.


Not definitive, of course, but suggestive enough that it leaves the notion of SCOTUS granting cert to the case we're talking about here as nothing more than a fool's hope.

Yes, it could go down the way you claim here, but I go by the probabilities, not by what I wish for.


There's nothing "probable" about a court not granting relief not asked for. Which is another reason a post-Bonidy case would be nothing like Woollard.


Really? Do you really believe Kennedy would have gotten on board if we had argued that permits were not allowable in that case?


We'll never know.

But, granting (for the sake of argument) that it was a good strategic decision, there's still hope. As Heller noted, this was a first step in a new field. Maybe we can get it tossed in the future.


The Raisuli

kcbrown
12-05-2013, 9:42 AM
I need a permit to worship in the manner I choose? I need a permit to say "The king is a fink"? I need a permit to found a newspaper? I need a permit to anonymously blog? I need a permit to vote?

Really?


Yes, you need a permit (of sorts) to vote. That's what voter registration is, essentially.

And yes, you need a permit to say "the king is a fink" under certain circumstances, namely in a public demonstration in certain jurisdictions.


Do permits govern the entirety of the exercise of some of the rights in question? No. But that is not the same as saying that permits govern none of it.



I don't recall saying that the govt wouldn't try.

You can't see the difference??? Right now, five YEARS after Heller, we still don't have "and bear" recognized as the Right. In Woollard, the Circuit was able to defeat us precisely because "and bear" isn't recognized as the Right.
C'mon, man! You've read the Woollard decision for yourself. Why do you keep claiming things about it that are not true?

From the 4th Circuit decision in Woollard:


We hew to a judicious course today, refraining from any assessment of whether Maryland's good-and-substantial-reason requirement for obtaining a handgun permit implicates Second Amendment protections. That is, we merely assume that the Heller right exists outside the home and that such right of Appellee Woollard has been infringed. We are free to make that assumption because the good-and-substantial-reason requirement passes constitutional muster under what we have deemed to be the applicable standard — intermediate scrutiny.


Looks like they recognize that the right exists outside the home to me, at least for the purpose of deciding the case. They even assume that the right has been infringed! However, what they didn't do is actually declare that the right exists outside the home, only state that if it does, the law in question nevertheless stands.

That supports the argument I've been making here, that these courts are going to rule against us even if the right outside the home is recognized. After all, some courts, such as the Woollard one, are assuming that very thing!



If Bonidy is argued correctly (I.E., if we take the damn hint), "and bear" would (finally!) be so recognized. And that would be the difference. In Woollard, we were asking for a Right to be recognized. In your hypothetical post-Bonidy case, we would be defending something that is recognized as a Right.
Given the above, I see no difference at all here.



The first scenario is real unrealistic (presuming we take the damn hint).
Unrealistic? It's exactly what the courts have done!

How can it be unrealistic when there are existence proofs for it?



The second is unlikely, for the reasons given above.

Why a post-Bonidy case is nothing like Woollard is detailed above.
Let me make it plain.

In a post-Bonidy case, the situation is that both concealed carry and open carry have a permit system governing them. In fact, the chances are very good that it will be the very same permit system.

In Woollard, the situation was that both concealed carry and open carry had a permit system governing them, and it was the very same permit system.

Not only would a post-Bonidy case be like Woollard, the chances are good it will be identical as to the facts. There is but one difference: in the post-Bonidy case, we presume that the Supreme Court has said that the right to carry arms outside the home exists. But that is precisely what the 4th Circuit court in Woollard presumed to be true. That makes it a distinction without a difference.



There's nothing "probable" about a court not granting relief not asked for. Which is another reason a post-Bonidy case would be nothing like Woollard.
I'm talking about whether or not SCOTUS grants cert to the post-Bonidy case. Since they denied cert to Woollard, I have no reason to believe they will grant cert to a case that is factually identical (or nearly so) to it.



We'll never know.

But, granting (for the sake of argument) that it was a good strategic decision, there's still hope. As Heller noted, this was a first step in a new field. Maybe we can get it tossed in the future.
It's certainly a possibility, and one I have hope for. But my hopes and my expectations are, as with most other things in the real world, very different from each other here.

Mulay El Raisuli
12-06-2013, 8:50 AM
Yes, you need a permit (of sorts) to vote. That's what voter registration is, essentially.

Not even a little bit. Voter registration is me proving who I am & that I am a citizen. No kind of permit, or test, or fee can imposed once that's proven.


And yes, you need a permit to say "the king is a fink" under certain circumstances, namely in a public demonstration in certain jurisdictions.


Not at all. I may need a permit to block the streets, congest a public park & things like that. But a need a permit to say the king is a fink? Nope. Not anywhere here.

The same is true when to comes to prayer (no permits can be imposed). Or establishing a church (no permits can be imposed). Or running a newspaper (no permits can be imposed). Permits just aren't allowed on any Right that is recognized as "fundamental" to the American scheme of things.


Do permits govern the entirety of the exercise of some of the rights in question? No. But that is not the same as saying that permits govern none of it.


Permits can't govern any part of the exercise of a fundamental Right. See, above.


C'mon, man! You've read the Woollard decision for yourself. Why do you keep claiming things about it that are not true?

From the 4th Circuit decision in Woollard:



Looks like they recognize that the right exists outside the home to me, at least for the purpose of deciding the case. They even assume that the right has been infringed! However, what they didn't do is actually declare that the right exists outside the home, only state that if it does, the law in question nevertheless stands.

That supports the argument I've been making here, that these courts are going to rule against us even if the right outside the home is recognized. After all, some courts, such as the Woollard one, are assuming that very thing!


Then allow me to clarify: We don't have "and bear" properly recognized yet. "Properly" being defined as it being defined as being just as much a Right as the first half of the sentence ("keep") is (where intermediate scrutiny is not allowed). Bonidy, (properly fought) would finally give us that recognition.


Given the above, I see no difference at all here.


Maybe now you will.


Unrealistic? It's exactly what the courts have done!

How can it be unrealistic when there are existence proofs for it?


For the reasons above.


Let me make it plain.

In a post-Bonidy case, the situation is that both concealed carry and open carry have a permit system governing them. In fact, the chances are very good that it will be the very same permit system.


Permits are not (and therefore will not) be a part of Bonidy. You said this yourself. And I agree. Therefore, in the immediate post-Bonidy world, it won't be the same permit for both because there won't be a permit required for LOC.

Will Denver try to impose a permit system for LOC, post-Bonidy? Almost certainly. Can we defeat such an attempt? Sure. If we've taken the damn hint & gotten LOC locked in as the Right, if we've gotten it locked in as just as strong a Right as "keep" is, (I.E., recognized as being just as "fundamental" as "keep" is) then, yes, we can. Because then we'll have strict scrutiny (or even better, historical basis) as the standard.


In Woollard, the situation was that both concealed carry and open carry had a permit system governing them, and it was the very same permit system.


Which is (again) why Woollard was NOT an LOC case. Not in any way, shape, or form.


Not only would a post-Bonidy case be like Woollard, the chances are good it will be identical as to the facts. There is but one difference: in the post-Bonidy case, we presume that the Supreme Court has said that the right to carry arms outside the home exists. But that is precisely what the 4th Circuit court in Woollard presumed to be true. That makes it a distinction without a difference.


Reread the above. The facts are not the same (not even close). And, if we've taken the damn hint, intermediate scrutiny won't be acceptable. Just as it isn't in re any other Right that is "Fundamental" to the American scheme of things.


I'm talking about whether or not SCOTUS grants cert to the post-Bonidy case. Since they denied cert to Woollard, I have no reason to believe they will grant cert to a case that is factually identical (or nearly so) to it.


Because the facts aren't the same. Bonidy is a permitless case. One where the District Court said flat-out that LOC is the Right. Woollard bore no relation at all to that.


It's certainly a possibility, and one I have hope for. But my hopes and my expectations are, as with most other things in the real world, very different from each other here.


That's your massive pessimism at work.


The Raisuli

kcbrown
12-06-2013, 9:24 AM
Not even a little bit. Voter registration is me proving who I am & that I am a citizen. No kind of permit, or test, or fee can imposed once that's proven.


In its purest form, a permit is simply prior permission from the government to do something.

Voter registration is a permit of sorts because it is permission from the government to vote. More precisely, you cannot vote unless you get the government's assent through registration.

So that makes it a distinction without a difference, because the end result is that you cannot legally exercise your right without first getting the government's buy-in. In the case of voting, that buy-in happens almost automatically, but you have to get it nonetheless.




Not at all. I may need a permit to block the streets, congest a public park & things like that. But a need a permit to say the king is a fink? Nope. Not anywhere here.
No. If you were to attempt to block the streets, congest a public park, etc., for purposes other than speech, you would find it difficult if not impossible to get permission. Speech and the use of public resources are joined at the hip here.



The same is true when to comes to prayer (no permits can be imposed). Or establishing a church (no permits can be imposed). Or running a newspaper (no permits can be imposed). Permits just aren't allowed on any Right that is recognized as "fundamental" to the American scheme of things.
Well, you actually might be right about that, but that hasn't prevented governments from trying, even today. See, e.g., this (http://www.nationalreview.com/article/355635/permits-political-speech-katrina-trinko).

Furthermore, there is a fundamental characteristic difference between the right to keep and bear arms and the other rights: the tools used for the exercise of the other rights are not regarded as fundamentally dangerous (and, thus, a "public safety" concern), whilst the tools used for the exercise of RKBA are. How are you going to overcome that fundamental distinction?



Permits can't govern any part of the exercise of a fundamental Right. See, above.
Okay, I get your argument now, and there is some potential there. That is, you're arguing that Bonidy will get us a declaration out of the Supreme Court that open carry in public is as fundamental a right as keep and bear in the home is.

But the problem with that is this: the Supreme Court did not strike down permits for keep and bear in the home. Even if you get a declaration from the Supreme Court that open carry in public is a fundamental right, how are you going to dispense with the permit issue?

Are you arguing that permit schemes for keep and bear in the home can be successfully challenged? If that's so, then why hasn't it happened yet? How would you even argue such a case, when permit schemes governing ownership in the home are almost certain to pass strict scrutiny ("strict scrutiny" isn't as strict as you think)?



That's your massive pessimism at work.
My "massive pessimism" has been very much correct to date. Maybe it's not quite as "pessimistic" as you think. Bleak, yes, but "pessimism" implies predictions that are worse than things turn out. A bleak prediction is not a pessimistic prediction if that prediction turns out to be correct (or if things turn out even worse than predicted).

LoneYote
12-06-2013, 11:59 AM
No. If you were to attempt to block the streets, congest a public park, etc., for purposes other than speech, you would find it difficult if not impossible to get permission. Speech and the use of public resources are joined at the hip here.

Just because the actions requires the speech does not mean the speech requires the action.

kcbrown
12-06-2013, 1:54 PM
Just because the actions requires the speech does not mean the speech requires the action.

Right. I am not saying that all speech requires permits (that is clearly not true), only that in this particular context, the permit itself is specifically in the context of speech. The government wouldn't even issues the permit were it not speech we're talking about here, and that is only because speech is recognized as a fundamental right. But it proves that something being a fundamental right does not by itself guarantee that the right cannot be controlled through permits. Instead, the right to speech cannot be controlled through permits only when the particular exercise of speech does not intersect with some "compelling government interest".

And the problem with firearms and their possession is that government regards control of them as, by itself, a "compelling government interest", and courts almost universally agree with that proposition.


This means that if you are to succeed in eliminating government control over firearms through permits, you will have to make an argument that somehow overcomes the above. That has never been done to my knowledge for one simple reason: no other right directly and universally intersects a "compelling government interest" the way the right to keep and bear arms does.

Fail to understand the above, and you will fail in your quest to free the right to keep and bear arms from permits.

Mulay El Raisuli
12-07-2013, 6:56 AM
In its purest form, a permit is simply prior permission from the government to do something.

Voter registration is a permit of sorts because it is permission from the government to vote. More precisely, you cannot vote unless you get the government's assent through registration.

So that makes it a distinction without a difference, because the end result is that you cannot legally exercise your right without first getting the government's buy-in. In the case of voting, that buy-in happens almost automatically, but you have to get it nonetheless.


I dispute the "of sorts" claim. A permit is what I have to get after I prove who I am. Proving I'm a citizen doesn't rate as permission to "and bear" (at least not yet). :)


No. If you were to attempt to block the streets, congest a public park, etc., for purposes other than speech, you would find it difficult if not impossible to get permission. Speech and the use of public resources are joined at the hip here.


But that's the point. The State cannot prevent me from congesting the streets because it's a 1A issue. Further, they cannot have any veto over what I'm going to say. Which is to say that the permit cannot be an issue in the first place unless I'm congesting the streets.


Well, you actually might be right about that, but that hasn't prevented governments from trying, even today. See, e.g., this (http://www.nationalreview.com/article/355635/permits-political-speech-katrina-trinko).


Trying is not succeeding. Which is why town of Manlius has a legal bill to pay in their future.


Furthermore, there is a fundamental characteristic difference between the right to keep and bear arms and the other rights: the tools used for the exercise of the other rights are not regarded as fundamentally dangerous (and, thus, a "public safety" concern), whilst the tools used for the exercise of RKBA are. How are you going to overcome that fundamental distinction?


BY quoting from McDonald:


Municipal respondents maintain that the Second Amendment differs from all of the other provisions of the Bill of Rights because it concerns the right to possess a deadly implement and thus has implications for public safety. Brief for Municipal Respondents 11. And they note that there is intense disagreement on the question whether the private possession of guns in the home increases or decreases gun deaths and injuries. Id ., at 11, 13–17.

The right to keep and bear arms, however, is not the only constitutional right that has controversial public safety implications. All of the constitutional provisions that impose restrictions on law enforcement and on the prosecution of crimes fall into the same category. See, e.g ., Hudson v. Michigan , 547 U. S. 586, 591 (2006) (“The exclusionary rule generates ‘substantial social costs,’ United States v. Leon , 468 U. S. 897, 907 (1984) , which sometimes include setting the guilty free and the dangerous at large”); Barker v. Wingo , 407 U. S. 514, 522 (1972) (reflecting on the serious consequences of dismissal for a speedy trial violation, which means “a defendant who may be guilty of a serious crime will go free”); Miranda v. Arizona , 384 U. S. 436, 517 (1966) (Harlan, J., dissenting); id. , at 542 (White, J., dissenting) (objecting that the Court’s rule “n some unknown number of cases … will return a killer, a rapist or other criminal to the streets … to repeat his crime”); Mapp , 367 U. S., at 659. Municipal respondents cite no case in which we have refrained from holding that a provision of the Bill of Rights is binding on the States on the ground that the right at issue has disputed public safety implications.


Okay, I get your argument now, and there is some potential there. That is, you're arguing that [I]Bonidy will get us a declaration out of the Supreme Court that open carry in public is as fundamental a right as keep and bear in the home is.


IF we finally take the damn hint, yes.


But the problem with that is this: the Supreme Court did not strike down permits for keep and bear in the home. Even if you get a declaration from the Supreme Court that open carry in public is a fundamental right, how are you going to dispense with the permit issue?


Here, I'm taking a bit of a leap. From Heller:



Because Heller conceded at oral argument that the D. C. licensing law is permissible if it is not enforced arbitrarily and capriciously, the Court assumes that a license will satisfy his prayer for relief and does not address the licensing requirement.
(emphasis mine)


That's not exactly a clear-cut imposition of a permitting requirement. That's the Court limiting itself to the issue directly before it. Does that mean for sure that a challenge to permits in the home (and for LOC) will succeed? I think so. I don't think that Scalia was entirely happy about writing that.

But, I'm not going to say for sure that this is the case.


Are you arguing that permit schemes for keep and bear in the home can be successfully challenged? If that's so, then why hasn't it happened yet? How would you even argue such a case, when permit schemes governing ownership in the home are almost certain to pass strict scrutiny ("strict scrutiny" isn't as strict as you think)?


We haven't even tried. Why? Because we've wasting our time & effort on trying to make 'Shall issue for CCW is the Right.' Aside from being an obvious waste of time (if it wasn't obvious five years ago, it surely is now), it holds the additional danger of enshrining permits for the future.

Which is an additional reason to take the damn hint & go all in for LOC as the Right.


My "massive pessimism" has been very much correct to date. Maybe it's not quite as "pessimistic" as you think. Bleak, yes, but "pessimism" implies predictions that are worse than things turn out. A bleak prediction is not a pessimistic prediction if that prediction turns out to be correct (or if things turn out even worse than predicted).


Being right doesn't mean you weren't (or aren't) pessimistic. It simply means you have a gloomy outlook. That may be justified by future events, but that doesn't alter the definition.


The Raisuli

kcbrown
12-07-2013, 10:08 AM
I dispute the "of sorts" claim. A permit is what I have to get after I prove who I am. Proving I'm a citizen doesn't rate as permission to "and bear" (at least not yet). :)


But how do you distinguish between proving who you are and proving you're a citizen? You can't, and thus don't.

In order to register to vote, you have to provide the information that proves who you are.

The fundamentals of acquisition of a permit in a "shall issue" arrangement are no different: you have to prove who you are, so that the government can determine that you're not a prohibited person.

Now, it may be that additional requirements for getting the permit would be disallowed by the courts, but that's not the same thing as what you're talking about here, which is arguing that permits in their entirety are disallowed to governments.



But that's the point. The State cannot prevent me from congesting the streets because it's a 1A issue. Further, they cannot have any veto over what I'm going to say. Which is to say that the permit cannot be an issue in the first place unless I'm congesting the streets.


Yes, but you're attempting to argue here that permits are not something the government has the legitimate power to use to control open carry in public at all. Which is to say, you're attempting to argue that there is no situation in which a permit scheme may legitimately be used to control carry in public. That's like saying that there are no situations in which the government can legitimately use permits to control speech. But public speech in public areas is an existence proof that there are such situations.

How are you going to successfully argue that there are no such situations for permits governing carry of firearms in public?



Trying is not succeeding. Which is why town of Manlius has a legal bill to pay in their future.


One would hope. But they succeed for as long as no injunction is issued against the ordinance in question, at least.



BY quoting from McDonald:


Yes, but you're ignoring the specific context of the bit you quoted. Further, did you see this in the bit you quoted:


Municipal respondents cite no case in which we have refrained from holding that a provision of the Bill of Rights is binding on the States on the ground that the right at issue has disputed public safety implications.


The emphasized is the important bit. It establishes the context in which the bit you quoted was used. What you're attempting to argue is fundamentally different than what was being argued in McDonald. In particular, just because other enumerated rights have public safety implications does not automatically mean RKBA cannot be controlled through permits. The problem here is that it is the very fact that the right in question has public safety implications that makes it trivial for the government to justify controlling it through the use of permits.



We haven't even tried. Why? Because we've wasting our time & effort on trying to make 'Shall issue for CCW is the Right.' Aside from being an obvious waste of time (if it wasn't obvious five years ago, it surely is now), it holds the additional danger of enshrining permits for the future.


Are you sure it hasn't been tried anywhere? Remember, I'm talking about challenges to permit requirements for keep and bear of firearms in the home.



Which is an additional reason to take the damn hint & go all in for LOC as the Right.


Well, whether or not there's a hint we should be taking, I fully agree that we need a LOC case, and I submit that we also need a case challenging permit requirements for keep and bear in the home, if such a case has not already been brought.



Being right doesn't mean you weren't (or aren't) pessimistic. It simply means you have a gloomy outlook. That may be justified by future events, but that doesn't alter the definition.


I looked up the definition, and you're right! But that raises the question: if being pessimistic is also being correct, i.e. being realistic, then what is the difference between a pessimist and a realist? Nothing, I guess.

So yes, by the definition of the word, I'm a pessimist. But I'm also a realist. And that means that the fact that my prognostications are pessimistic is of absolutely no consequence whatsoever as regards whether or not you should take those prognostications seriously.

MickFromNapa
12-07-2013, 11:52 AM
Attorneys who desire to litigate in high impact cases need to look for a sympathetic set of facts to take up on appeal. The left is very good at presenting a factual case where the proper legal analysis will adversely impact a sympathetic client. Judge's don't want to see the bad result so they often chip away at existing law in an effort to avoid injustice in a particular case. The 2A side has not always done such a good job in client selection.

As an example of how 2A rights advocates can use this principle, if California's democratically controlled legislature someday gets a law passed to require that so called "assault weapons" be turned in, a widow, who's only asset is her deceased husband's collection of legally owned "assault weapons" that would have to be turned in, would be an excellent plaintiff to challenge the law. More care in picking the appropriate cases for high impact litigation will greatly improve gun owner's chances of success on appeal.

I don't know anything about Mr. Beck or his client, but to the extent this thread results in bad cases not being brought up on appeal, and more efforts at locating sympathetic clients for test cases, that result would be a great benefit.

Mick

LoneYote
12-07-2013, 12:36 PM
I looked up the definition, and you're right! But that raises the question: if being pessimistic is also being correct in this instance, i.e. being realistic, then what is the difference between a pessimist and a realist? Nothing, I guess.

FIFY... Just because one apple is red does not mean all apples are red.

Mulay El Raisuli
12-07-2013, 5:03 PM
But how do you distinguish between proving who you are and proving you're a citizen? You can't, and thus don't.

In order to register to vote, you have to provide the information that proves who you are.

The fundamentals of acquisition of a permit in a "shall issue" arrangement are no different: you have to prove who you are, so that the government can determine that you're not a prohibited person.

Now, it may be that additional requirements for getting the permit would be disallowed by the courts, but that's not the same thing as what you're talking about here, which is arguing that permits in their entirety are disallowed to governments.


Permits governing the exercise of fundamental Rights ARE (as shown by the examples given) disallowed in their entirety.


Yes, but you're attempting to argue here that permits are not something the government has the legitimate power to use to control open carry in public at all. Which is to say, you're attempting to argue that there is no situation in which a permit scheme may legitimately be used to control carry in public. That's like saying that there are no situations in which the government can legitimately use permits to control speech. But public speech in public areas is an existence proof that there are such situations.

How are you going to successfully argue that there are no such situations for permits governing carry of firearms in public?


The govt can't use permits to control speech. They can use them to control streets & parks.


One would hope. But they succeed for as long as no injunction is issued against the ordinance in question, at least.


Bank robbers get away with it too. Until someone puts them down. Which tends to discourage other bank robbers. Which is what I hope for here.


Yes, but you're ignoring the specific context of the bit you quoted. Further, did you see this in the bit you quoted:



The emphasized is the important bit. It establishes the context in which the bit you quoted was used. What you're attempting to argue is fundamentally different than what was being argued in McDonald. In particular, just because other enumerated rights have public safety implications does not automatically mean RKBA cannot be controlled through permits. The problem here is that it is the very fact that the right in question has public safety implications that makes it trivial for the government to justify controlling it through the use of permits.


Not at all. SCOTUS pointed out that Incorporation has never been withheld because of public safety implications. That means they didn't then. They (likely) won't in the future either.


Are you sure it hasn't been tried anywhere? Remember, I'm talking about challenges to permit requirements for keep and bear of firearms in the home.


You're the one who brought the issue up. That makes it your argument to support.


Well, whether or not there's a hint we should be taking, I fully agree that we need a LOC case, and I submit that we also need a case challenging permit requirements for keep and bear in the home, if such a case has not already been brought.


I'll go along with that. Starting with DC.


I looked up the definition, and you're right! But that raises the question: if being pessimistic is also being correct, i.e. being realistic, then what is the difference between a pessimist and a realist? Nothing, I guess.

So yes, by the definition of the word, I'm a pessimist. But I'm also a realist. And that means that the fact that my prognostications are pessimistic is of absolutely no consequence whatsoever as regards whether or not you should take those prognostications seriously.


I think LoneYote called this one.


Attorneys who desire to litigate in high impact cases need to look for a sympathetic set of facts to take up on appeal. The left is very good at presenting a factual case where the proper legal analysis will adversely impact a sympathetic client. Judge's don't want to see the bad result so they often chip away at existing law in an effort to avoid injustice in a particular case. The 2A side has not always done such a good job in client selection.

As an example of how 2A rights advocates can use this principle, if California's democratically controlled legislature someday gets a law passed to require that so called "assault weapons" be turned in, a widow, who's only asset is her deceased husband's collection of legally owned "assault weapons" that would have to be turned in, would be an excellent plaintiff to challenge the law. More care in picking the appropriate cases for high impact litigation will greatly improve gun owner's chances of success on appeal.

I don't know anything about Mr. Beck or his client, but to the extent this thread results in bad cases not being brought up on appeal, and more efforts at locating sympathetic clients for test cases, that result would be a great benefit.

Mick


There's just gotta be a sympathetic client out there for a LOC case. I'm not seeing any problems with Mr Bonidy, for instance. The problem here is that we don't have an infinite amount of time. Further, we've wasted the last five YEARS.

Also, Ernesto Miranda was the MOST unsympathetic client I can imagine. Yet, he's the face of the 5th Amendment. Sympathy matters, but a good argument matters more.


The Raisuli

kcbrown
12-07-2013, 10:41 PM
Permits governing the exercise of fundamental Rights ARE (as shown by the examples given) disallowed in their entirety.


Well, it only takes one example of permits governing one of the rights in question in order to show that they're not disallowed in their entirety, but it's on me to provide such an example.



The govt can't use permits to control speech. They can use them to control streets & parks.
If they were using them to control streets and parks, then they would issue them independent of purpose. But that's not the case: they issue them specifically for speech.

Look, you can try to argue against that, but it's going to backfire on you, because all the government then has to do is claim that by using permits in conjunction with carry of firearms under certain circumstances, it is not controlling firearms, it is controlling the circumstances.

Moreover, why do you suppose permits are required for speech under those circumstances? It is precisely because control over when/where the speech occurs under those relatively narrow circumstances is necessary to achieve a "compelling government interest", and that interest is ... wait for it ... public safety!

Finally, no matter how you slice it, if you want to exercise your right to free speech in certain public areas, you have to first acquire a permit to do so. It is disingenuous to attempt to argue that the permit is not on the speech in question, because what is being impeded is your ability to exercise that right. That it is being impeded under a specific circumstance for a specific reason in no way dispenses with the fact that it is your right that is being impeded. The bottom line is that there are some circumstances and some purposes for which the courts agree that speech can be controlled through permits, and that renders false your claim that enumerated rights cannot be controlled through permits.



Not at all. SCOTUS pointed out that Incorporation has never been withheld because of public safety implications. That means they didn't then. They (likely) won't in the future either.
What are you talking about here? Don't you realize that there is a huge difference between the question of wholesale incorporation of the right and the question of the use of permits? Failure to incorporate the 2nd Amendment against the states would mean that 2nd Amendment protection is null and void in its entirety against state action. Arguing, as the Supreme Court does, that their precedence of incorporating other rights against the states despite the public safety implications is not the same thing as arguing that those same public safety implications are insufficient justification for permits!


By the way, note that I do not believe for a second that permits do not represent an infringement on the right, or that their use is truly justifiable in any of the scenarios that have been covered to date (even the speech in public example is one I believe is unjustifiable because it is not strictly necessary). But for the case you're advocating for to prevail, it must overcome the arguments I've been presenting, in front of a Supreme Court in which the calculus was such that we expected to not even get recognition of the right to keep and bear in the home unless we carefully avoided the issue of permits. So good luck with that, because we're all going to need it badly.

Mulay El Raisuli
12-08-2013, 6:31 AM
Well, it only takes one example of permits governing one of the rights in question in order to show that they're not disallowed in their entirety, but it's on me to provide such an example.


I'm surely looking forward to seeing that.


If they were using them to control streets and parks, then they would issue them independent of purpose. But that's not the case: they issue them specifically for speech.

Look, you can try to argue against that, but it's going to backfire on you, because all the government then has to do is claim that by using permits in conjunction with carry of firearms under certain circumstances, it is not controlling firearms, it is controlling the circumstances.

Moreover, why do you suppose permits are required for speech under those circumstances? It is precisely because control over when/where the speech occurs under those relatively narrow circumstances is necessary to achieve a "compelling government interest", and that interest is ... wait for it ... public safety!


Controlling streets and parks is what cities do all the time. That's what the traffic lights, red curbs & "Keep off the grass signs" are all about. It's something within their "police power." So, no, permits are NOT "specifically" issued because of speech. So, the permits aren't (and can't be) because of speech, but because keeping streets undisrupted is something they're supposed to do.

More below.


Finally, no matter how you slice it, if you want to exercise your right to free speech in certain public areas, you have to first acquire a permit to do so. It is disingenuous to attempt to argue that the permit is not on the speech in question, because what is being impeded is your ability to exercise that right. That it is being impeded under a specific circumstance for a specific reason in no way dispenses with the fact that it is your right that is being impeded. The bottom line is that there are some circumstances and some purposes for which the courts agree that speech can be controlled through permits, and that renders false your claim that enumerated rights cannot be controlled through permits.


No, exercise of my freedom of speech cannot be subject to a permit. If I'm standing on a soap box proclaiming "The King Is A Fink," The State can do NOTHING about that. If I have 1,000 people alongside me proclaiming the same thing, THEN The State can regulate the disruption those 1,000 people are going to cause to the streets (parks, etc). But the Right itself is sacrosanct.

The point being that once (if) we take the damn hint & have "and bear" recognized as "core" to the Right, the ability of The State to regulate withers away. Not completely. "Sensitive areas" & all that, but strolling down the street (whistling "Do not forsake me, oh my darling"), or in my car, etc? No.


What are you talking about here? Don't you realize that there is a huge difference between the question of wholesale incorporation of the right and the question of the use of permits? Failure to incorporate the 2nd Amendment against the states would mean that 2nd Amendment protection is null and void in its entirety against state action. Arguing, as the Supreme Court does, that their precedence of incorporating other rights against the states despite the public safety implications is not the same thing as arguing that those same public safety implications are insufficient justification for permits!


I didn't see SCOTUS (or any other court) say that. Have you?


By the way, note that I do not believe for a second that permits do not represent an infringement on the right, or that their use is truly justifiable in any of the scenarios that have been covered to date (even the speech in public example is one I believe is unjustifiable because it is not strictly necessary). But for the case you're advocating for to prevail, it must overcome the arguments I've been presenting, in front of a Supreme Court in which the calculus was such that we expected to not even get recognition of the right to keep and bear in the home unless we carefully avoided the issue of permits. So good luck with that, because we're all going to need it badly.


Having countered your arguments, I'll add that it is my opinion that SCOTUS isn't married to the idea of permits even in the home. Just because Heller did say they'd be leaving that issue for another time. I.E., our "expectations" may not have reflected reality then, & may not reflect reality now.


The Raisuli

kcbrown
12-08-2013, 4:36 PM
I'm surely looking forward to seeing that.


Admittedly, they do seem to be quite rare...



Controlling streets and parks is what cities do all the time. That's what the traffic lights, red curbs & "Keep off the grass signs" are all about. It's something within their "police power." So, no, permits are NOT "specifically" issued because of speech. So, the permits aren't (and can't be) because of speech, but because keeping streets undisrupted is something they're supposed to do.
You realize where the argument you're making here leads, right?

What you're saying, essentially, is that the reason the government can block public demonstrations that have not obtained permits for same is because of their "police power". But states also have it within their "police power" to "protect the public safety", which is why we have permits for things like driving on public roads.

But if it is within the states' police powers to "protect the public safety" and to regulate anything that implicates public safety, then it follows that they would presumably have that power over firearms as well, since their misuse also implicates public safety, no?


In other words, you're trying to weasel out of the argument here, to simultaneously hold contradictory positions. It won't work, you know. :D


The problem here is that no other fundamental right of necessity revolves around the possession, carry, and potential use of dangerous items. The only thing that even comes close is the use of automobiles, which is associated with the right of travel. But there are other modes of travel that do not involve the kind of danger to life and limb that the use of automobiles does, and those modes are not regulated to the same degree. Despite the relatively strict regulation of the use of automobiles, they are the most widely used means of travel available today. Quite clearly, the citizenry is wiling to be controlled by the government to a very great degree with respect to their most common exercise of a fundamental right (even if said right is not enumerated in the Constitution) precisely because they buy into the notion that public safety gives the government legitimate grounds for such.

What this means is that the right to keep and bear arms forces the courts to squarely address a difficult question: to what degree does the Constitutional protection of a right legitimately enable one to potentially endanger others directly? Related to that is the degree of trust the government has in the citizenry and that the people have in each other. The less such trust there is, the greater the amount of "preventive" control the government will attempt to take, while not being disputed with respect to that by the citizenry. Since the current state of affairs has the government babysitting the citizenry in nearly every respect, it seems almost outlandish to believe that the courts will strike down permits when they believe the public safety is at risk.



No, exercise of my freedom of speech cannot be subject to a permit. If I'm standing on a soap box proclaiming "The King Is A Fink," The State can do NOTHING about that. If I have 1,000 people alongside me proclaiming the same thing, THEN The State can regulate the disruption those 1,000 people are going to cause to the streets (parks, etc). But the Right itself is sacrosanct.
So, by your own argument, if exercise of the right can cause a disruption to the public in an arena that is acknowledged to be within the state's "police power", then the state can regulate its intersection with that arena through permits, right?



I didn't see SCOTUS (or any other court) say that. Have you?
My apologies, I said that incredibly badly.

What I meant to say is that the Supreme Court argued that the their precedence as regards incorporating rights against the states despite the public safety implications is the basis for incorporating the 2nd Amendment against the states. But the problem for you is that their argument is not the same as saying that the incorporation precedent suddenly renders the incorporated rights immune from regulation through permits. Those are two different arguments, and the latter is much weaker because the incorporation precedent has nothing to do with the issue of permits, but with whether or not the Constitutional protections have any effect at all against the states.

Put another way, the incorporation argument addresses whether the Constitutional protection applies to the states, but does not address the extent of the protection. By attempting to use the incorporation precedent to argue that permits are off-limits to governments when it comes to the 2nd Amendment, you are attempting to apply the precedent to something that it is not precedential about.



Having countered your arguments, I'll add that it is my opinion that SCOTUS isn't married to the idea of permits even in the home. Just because Heller did say they'd be leaving that issue for another time. I.E., our "expectations" may not have reflected reality then, & may not reflect reality now.
Okay, then how are you going to convince Kennedy that the government shouldn't be allowed to deny access to carry in public on the part of convicted felons and the like? How are you going to convince John "the Court is not here to protect the people from their poor political choices" Roberts that this political choice is one that the Court should intervene against?

Like I said, I personally think permits are an impermissible burden on the rights in question, but given the way courts love to uphold government control over so many less potentially dangerous activities, I hardly see how they are going to side with us on this particular issue, most especially given their hatred of the right and their distrust of the public in general.

Mulay El Raisuli
12-09-2013, 3:59 PM
Admittedly, they do seem to be quite rare...


Which is why (partly) I'm letting you do the legwork.


You realize where the argument you're making here leads, right?

What you're saying, essentially, is that the reason the government can block public demonstrations that have not obtained permits for same is because of their "police power". But states also have it within their "police power" to "protect the public safety", which is why we have permits for things like driving on public roads.

But if it is within the states' police powers to "protect the public safety" and to regulate anything that implicates public safety, then it follows that they would presumably have that power over firearms as well, since their misuse also implicates public safety, no?


In other words, you're trying to weasel out of the argument here, to simultaneously hold contradictory positions. It won't work, you know. :D


No, my argument doesn't "lead" anywhere near there. My (actual) argument is that a state's police power lets it regulate (among other things) streets & parks. I can't walk down the street. I can't congest a park. The police powers do NOT extend to regulation of my "fundamental" Right to pack heat. Or that will be the case once (if) we take the damn hint & get LOC recognized as the Right. Just as those police powers don't allow states to regulate my "fundamental" Right to free speech. They CAN prevent me from walking down the street, & they CAN prevent me from congesting a park. but that's where their police powers end.


The problem here is that no other fundamental right of necessity revolves around the possession, carry, and potential use of dangerous items. The only thing that even comes close is the use of automobiles, which is associated with the right of travel. But there are other modes of travel that do not involve the kind of danger to life and limb that the use of automobiles does, and those modes are not regulated to the same degree. Despite the relatively strict regulation of the use of automobiles, they are the most widely used means of travel available today. Quite clearly, the citizenry is wiling to be controlled by the government to a very great degree with respect to their most common exercise of a fundamental right (even if said right is not enumerated in the Constitution) precisely because they buy into the notion that public safety gives the government legitimate grounds for such.

What this means is that the right to keep and bear arms forces the courts to squarely address a difficult question: to what degree does the Constitutional protection of a right legitimately enable one to potentially endanger others directly? Related to that is the degree of trust the government has in the citizenry and that the people have in each other. The less such trust there is, the greater the amount of "preventive" control the government will attempt to take, while not being disputed with respect to that by the citizenry. Since the current state of affairs has the government babysitting the citizenry in nearly every respect, it seems almost outlandish to believe that the courts will strike down permits when they believe the public safety is at risk.


So, by your own argument, if exercise of the right can cause a disruption to the public in an arena that is acknowledged to be within the state's "police power", then the state can regulate its intersection with that arena through permits, right?


Given that you mis-read my argument, no.


My apologies, I said that incredibly badly.

What I meant to say is that the Supreme Court argued that the their precedence as regards incorporating rights against the states despite the public safety implications is the basis for incorporating the 2nd Amendment against the states. But the problem for you is that their argument is not the same as saying that the incorporation precedent suddenly renders the incorporated rights immune from regulation through permits. Those are two different arguments, and the latter is much weaker because the incorporation precedent has nothing to do with the issue of permits, but with whether or not the Constitutional protections have any effect at all against the states.

Put another way, the incorporation argument addresses whether the Constitutional protection applies to the states, but does not address the extent of the protection. By attempting to use the incorporation precedent to argue that permits are off-limits to governments when it comes to the 2nd Amendment, you are attempting to apply the precedent to something that it is not precedential about.


True. The key part is in bold. Fortunately, other precedents cover that.


Okay, then how are you going to convince Kennedy that the government shouldn't be allowed to deny access to carry in public on the part of convicted felons and the like? How are you going to convince John "the Court is not here to protect the people from their poor political choices" Roberts that this political choice is one that the Court should intervene against?


Well, first, this is a choice that already "off the table" (according to Heller). I.E., it's been made.

Second, Heller didn't say that the Right doesn't extend to felons & the like. What it did say is:


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.


Which, like everything else that didn't relate to the issue at hand, was dicta. Will felons ever be able to keep & bear? No one can know until the issue is brought before SCOTUS.


Like I said, I personally think permits are an impermissible burden on the rights in question, but given the way courts love to uphold government control over so many less potentially dangerous activities, I hardly see how they are going to side with us on this particular issue, most especially given their hatred of the right and their distrust of the public in general.


Well, you've mis-read a lot of my argument. Especially the bit about how "dangerousness" wasn't a valid reason to prevent Incorporation.


The Raisuli

kcbrown
12-09-2013, 8:47 PM
Which is why (partly) I'm letting you do the legwork.


Smart. :D



No, my argument doesn't "lead" anywhere near there. My (actual) argument is that a state's police power lets it regulate (among other things) streets & parks.
Yes. "Among other things". What other things does the state's police power let it regulate, and on what basis is it allowed to do so?

What makes streets and parks (parks, especially) so special that the state can regulate them as to who may access them and when, but somehow other public areas are off limits to that same police power?



I can't walk down the street. I can't congest a park. The police powers do NOT extend to regulation of my "fundamental" Right to pack heat.
You're trying to avoid the problem by addressing it only at the symptomatic level. You need to go deeper than that.

You're stating that the state's power extends to certain things without accounting for why it does so.



Or that will be the case once (if) we take the damn hint & get LOC recognized as the Right. Just as those police powers don't allow states to regulate my "fundamental" Right to free speech. They CAN prevent me from walking down the street, & they CAN prevent me from congesting a park. but that's where their police powers end.
Well, then why do they have to grant you a permit at all, if their power truly extends to preventing you from walking down the street or congesting a park?



True. The key part is in bold. Fortunately, other precedents cover that.
What other precedents? Be specific. It matters.



Well, first, this is a choice that already "off the table" (according to Heller). I.E., it's been made.
That's what I would think as well, and that's certainly an argument we should make. Whether or not Roberts finds it convincing is another matter altogether.



Second, Heller didn't say that the Right doesn't extend to felons & the like. What it did say is:
Yes, it said that the decision should not be taken as to cast doubt on those things. But that is not much different in the end.



Which, like everything else that didn't relate to the issue at hand, was dicta.
Uh oh. You should know better than to go there. Much of what you depend on for your argument is also "dicta".

To treat dicta as immaterial is unwise, to say the least. The court does not write things just for fun. If it writes something, it is for a purpose. While "dicta" may not be precedential, it most certainly is an indicator of how the Supreme Court will regard the issues discussed therein, and one would be wise to not disregard it out of hand as you are here.



Will felons ever be able to keep & bear? No one can know until the issue is brought before SCOTUS.
Of course. But they have telegraphed their intentions plainly. If the Court upholds bans on keep and bear for felons, it should come as no surprise whatsoever.



Well, you've mis-read a lot of my argument. Especially the bit about how "dangerousness" wasn't a valid reason to prevent Incorporation.
I'm not sure how I misread it, but ultimately you're the arbiter of what you meant. I can only draw logical conclusions from what I believe you said. :D

LoneYote
12-09-2013, 9:09 PM
Well, then why do they have to grant you a permit at all, if their power truly extends to preventing you from walking down the street or congesting a park?

I'm confused... why do they have to grant you a permit? If it interferes with something they can deny permits I believe.
You're stating that the state's power extends to certain things without accounting for why it does so.
I believe this is because it regards the private use of the commons. They are not regulating a right simply your ability to unilaterally use public space for personal gain.

Mulay El Raisuli
12-10-2013, 8:07 AM
Smart. :D


Thank you. :)


Yes. "Among other things". What other things does the state's police power let it regulate, and on what basis is it allowed to do so?

What makes streets and parks (parks, especially) so special that the state can regulate them as to who may access them and when, but somehow other public areas are off limits to that same police power?


I never said that other public areas were off-limits. Hence the "among other things" part of the comment.

What you're (seemingly) trying for is to show that "safety" is the reason & justification. While true, it's only true as far as it goes. Walking down the middle of the street is dangerous. Clearly & obviously. Preventing it is indeed a matter of safety. Rational Basis applies.

But, me packing heat isn't clearly & obviously a danger. In addition, packing heat is (when/if we take the damn hint) a "fundamental" Right. Which shifts the burden to The State. "Danger" has to be proven, not just proclaimed.

And here is where Moore v Madigan comes in. Ill lost because they merely proclaimed that any sort of carry was dangerous. The Court pointed out that there was no showing as to what made Ill so very different from the other 49 states. Even under intermediate scrutiny, a total ban could not stand. In the post-Bonidy world I foresee (where we have taken the damn hint), The State would have to show what makes their particular state so very different from the states that do allow unlicensed LOC. With strict scrutiny (or better yet, historical basis) as the guide, they will fail.


You're trying to avoid the problem by addressing it only at the symptomatic level. You need to go deeper than that.


Not really. Nor have I avoided anything. Police power extends to to certain areas & certain things. It does not include certain other things: Like the regulation of "fundamental" Rights. Just like I did say.


You're stating that the state's power extends to certain things without accounting for why it does so.


No, my argument was to point out where it does not extend why it does not so extend.


Well, then why do they have to grant you a permit at all, if their power truly extends to preventing you from walking down the street or congesting a park?


Because when it comes to "fundamental" Rights, police power must yield, at least temporarily, so that Right can be exercised.

This does not extend (or, won't when/if we take the damn hint) to unlicensed LOC because there's no correlation between me walking down the street with heat on my hip & me walking down the street with 999 other people saying "The King is a fink!" In the one instance, I'm blocking traffic & in the other I am not. See, above.


What other precedents? Be specific. It matters.


Permits can't be imposed on preachers, or publishing, or blogging, can they?


That's what I would think as well, and that's certainly an argument we should make. Whether or not Roberts finds it convincing is another matter altogether.


Won't know until we try. But, he signed on to this the first (and second) time, didn't he?


Yes, it said that the decision should not be taken as to cast doubt on those things. But that is not much different in the end.


Won't know until we try.

And it's not just us. There's a lot of effort to have the voting restriction for felons removed. So, oddly, the ACLU may make the case for us.


Uh oh. You should know better than to go there. Much of what you depend on for your argument is also "dicta".

To treat dicta as immaterial is unwise, to say the least. The court does not write things just for fun. If it writes something, it is for a purpose. While "dicta" may not be precedential, it most certainly is an indicator of how the Supreme Court will regard the issues discussed therein, and one would be wise to not disregard it out of hand as you are here.


I don't disregard it. The base of your argument was that SCOTUS had already ruled on the matter. All I did was point out that they haven't YET. Therefore your argument has no validity YET.


Of course. But they have telegraphed their intentions plainly. If the Court upholds bans on keep and bear for felons, it should come as no surprise whatsoever.


And it won't surprise me.


I'm not sure how I misread it, but ultimately you're the arbiter of what you meant. I can only draw logical conclusions from what I believe you said. :D


Which is why I keep pointing out the misreading.


The Raisuli

Mulay El Raisuli
12-10-2013, 8:12 AM
I'm confused... why do they have to grant you a permit? If it interferes with something they can deny permits I believe.


If I want to host parade so that I can make a political statement (say, to proclaim "the king is a fink"), it becomes a 1A issue & The State must issue the permit so that I can make this political statement.


I believe this is because it regards the private use of the commons. They are not regulating a right simply your ability to unilaterally use public space for personal gain.


Among other things.


The Raisuli

LoneYote
12-10-2013, 11:44 PM
If I want to host parade so that I can make a political statement (say, to proclaim "the king is a fink"), it becomes a 1A issue & The State must issue the permit so that I can make this political statement.

So parade permits can never be denied?!

Mulay El Raisuli
12-11-2013, 8:33 AM
So parade permits can never be denied?!


Not if the parade is a 1A issue.

Example: Neo-NAZIs wanted to hold a parade in Skokie, Ill. Skokie was chosen because a lot of Holocaust survivors live there & the Neo-NAZIs wanted to be as offensive as possible.

Well, offensive it may be, but that was also a Freedom to Assemble (First Amendment) issue. It took a lot of time in court, but SCOTUS ordered Skokie to issue the permit in the end.

In the end, the parade never happened. But, the issue is now settled. Fundamental Rights trump local laws.

We can get the same if we take the damn hint in re LOC.


The Raisuli

kcbrown
12-11-2013, 6:10 PM
What you're (seemingly) trying for is to show that "safety" is the reason & justification. While true, it's only true as far as it goes. Walking down the middle of the street is dangerous. Clearly & obviously. Preventing it is indeed a matter of safety. Rational Basis applies.

But, me packing heat isn't clearly & obviously a danger.


Well, see, that's the problem. The courts have been treating it as if it is clearly and obviously a danger. Otherwise, they would not have bought the states' insistence that "public safety" justifies the laws in question.



In addition, packing heat is (when/if we take the damn hint) a "fundamental" Right. Which shifts the burden to The State. "Danger" has to be proven, not just proclaimed.
But the Woollard court proceeded under the assumption that carry was a right being infringed. Or so they claimed. :)


Let me ask you this: what's the least restrictive means of preventing prohibited people from carrying in public? Ignore for the moment that doing so is actually impossible, since people who are insistent upon breaking the law will always do so. The courts have never, to my knowledge, operated under the assumption that a law against something is without effect, even when presented with evidence of such.



And here is where Moore v Madigan comes in. Ill lost because they merely proclaimed that any sort of carry was dangerous. The Court pointed out that there was no showing as to what made Ill so very different from the other 49 states.
Yes, but that's with respect to establishing whether or not carry can be prohibited entirely. Now they have a permit scheme in Illinois. Is it your claim that it is not consistent with Moore? You realize that the 7th Circuit directed the legislature to pass a law that is consistent with their decision, right?



Even under intermediate scrutiny, a total ban could not stand. In the post-Bonidy world I foresee (where we have taken the damn hint), The State would have to show what makes their particular state so very different from the states that do allow unlicensed LOC. With strict scrutiny (or better yet, historical basis) as the guide, they will fail.
The states will argue that it is their choice as to whether or not to attempt to prevent prohibited people from carrying, and that the difference between states which allow unlicensed LOC and those that don't is that those that do aren't trying to prevent prohibited people from carrying.



Not really. Nor have I avoided anything. Police power extends to to certain areas & certain things. It does not include certain other things: Like the regulation of "fundamental" Rights. Just like I did say.
Is travel a "fundamental" right?

If not, why not? Merely because it is not explicitly enumerated in the Constitution?



This does not extend (or, won't when/if we take the damn hint) to unlicensed LOC because there's no correlation between me walking down the street with heat on my hip & me walking down the street with 999 other people saying "The King is a fink!" In the one instance, I'm blocking traffic & in the other I am not. See, above.
But the difference here is that you're not placing anyone in danger by saying "the King is a fink", while the states will argue, and the courts will buy, that by carrying in public, you are. Otherwise, their claims of the carry laws being necessary for "public safety" would be rejected outright by the courts, something that has most certainly not happened.

I keep saying this, but it's not getting through: the right to keep and bear arms is the only enumerated right which is regarded by the government and the courts as inherently dangerous. If you do not account for that fact, you will lose.



Permits can't be imposed on preachers, or publishing, or blogging, can they?
But they aren't supposedly endangering the public by doing any of those things, are they?



Won't know until we try. But, he signed on to this the first (and second) time, didn't he?
Yes, but that was all before Sandy Hook.



And it's not just us. There's a lot of effort to have the voting restriction for felons removed. So, oddly, the ACLU may make the case for us.
Interesting. If they can do that, then there's some hope, but I expect the burden as regards RKBA will be much higher because of the perception that it's a "public safety" issue.



I don't disregard it. The base of your argument was that SCOTUS had already ruled on the matter. All I did was point out that they haven't YET. Therefore your argument has no validity YET.
Well, that's true as far as it goes, but I think it's safe to say that SCOTUS has telegraphed its intentions. We can attempt to bring the case anyway, but it will almost certainly fail in light of that.

Mulay El Raisuli
12-13-2013, 8:06 AM
Well, see, that's the problem. The courts have been treating it as if it is clearly and obviously a danger. Otherwise, they would not have bought the states' insistence that "public safety" justifies the laws in question.


That's now. We're talking about a hypothetical case brought post-Bonidy. In that world (presuming we've taken the damn hint), that won't fly.


But the Woollard court proceeded under the assumption that carry was a right being infringed. Or so they claimed. :)


No, they didn't. They presumed it was NOT part of the "core" 2A Right. That would not fly in the post-Bonidy world (where we've taken the damn hint).


Let me ask you this: what's the least restrictive means of preventing prohibited people from carrying in public? Ignore for the moment that doing so is actually impossible, since people who are insistent upon breaking the law will always do so. The courts have never, to my knowledge, operated under the assumption that a law against something is without effect, even when presented with evidence of such.


Wait until they've broken the law & then throw them in jail.


Yes, but that's with respect to establishing whether or not carry can be prohibited entirely. Now they have a permit scheme in Illinois. Is it your claim that it is not consistent with Moore? You realize that the 7th Circuit directed the legislature to pass a law that is consistent with their decision, right?


You've confused me. What are you getting at?


The states will argue that it is their choice as to whether or not to attempt to prevent prohibited people from carrying, and that the difference between states which allow unlicensed LOC and those that don't is that those that do aren't trying to prevent prohibited people from carrying.


That would not fly in the post-Bonidy world (where we've taken the damn hint).


Is travel a "fundamental" right?

If not, why not? Merely because it is not explicitly enumerated in the Constitution?


Travel is a fundamental Right. I have said so before.


But the difference here is that you're not placing anyone in danger by saying "the King is a fink", while the states will argue, and the courts will buy, that by carrying in public, you are. Otherwise, their claims of the carry laws being necessary for "public safety" would be rejected outright by the courts, something that has most certainly not happened.


Not YET. Because Bonidy hasn't been decided by the 10th, much less SCOTUS. Yet.

And of course, I am placing people in physical danger by marching down the middle of the street (presuming no permit).


I keep saying this, but it's not getting through: the right to keep and bear arms is the only enumerated right which is regarded by the government and the courts as inherently dangerous. If you do not account for that fact, you will lose.


You place far too much emphasis on "inherent." Danger comes in many forms, but still doesn't automatically place liberty in jeopardy. Hence me quoting part of McDonald in post #164.


But they aren't supposedly endangering the public by doing any of those things, are they?


King George III thought different in re Thomas Payne. And was right! Reverend Jones was a danger to those who drank the kool-aid, wasn't he? And yet, permits still can't be imposed on EITHER.


Yes, but that was all before Sandy Hook.


Speculation. You may be right. But the, you may be wrong.


Interesting. If they can do that, then there's some hope, but I expect the burden as regards RKBA will be much higher because of the perception that it's a "public safety" issue.


I disagree.


Well, that's true as far as it goes, but I think it's safe to say that SCOTUS has telegraphed its intentions. We can attempt to bring the case anyway, but it will almost certainly fail in light of that.


If we win with Bonidy, we'll win on permits as well.


The Raisuli

kcbrown
12-13-2013, 12:59 PM
That's now. We're talking about a hypothetical case brought post-Bonidy. In that world (presuming we've taken the damn hint), that won't fly.


Why not?

See below.



No, they didn't. They presumed it was NOT part of the "core" 2A Right. That would not fly in the post-Bonidy world (where we've taken the damn hint).
That may be true about the "core" of the right. They didn't explicitly state what their assumption was about that, but the discussion certainly implies that they're not treating the right they presumed was infringed as the "core", so I expect you're right about this.



Wait until they've broken the law & then throw them in jail.
Agreed, actually. And yet, the courts don't even treat strict scrutiny of the core of rights (the right to free speech, in this case) in such a way as to insist on the truly least restrictive means of achieving the "compelling government interest". Going back to permits for political speech in streets and parks for a moment, permits there are not truly the least restrictive means of achieving the "government interest". Prior notification is. And yet, it is permits that have been implemented.

If the courts are not going to insist upon the least restrictive means in the 1st Amendment arena, I have no reason at all to believe they'll do so in the 2nd Amendment arena.



You've confused me. What are you getting at?
Your claim is that Moore dispenses with the "dangerousness" argument, right? Well, that case also instructed the legislature to pass a law that was consistent with the Moore decision. But if Moore really had dispensed with the "dangerousness" argument, then the permit scheme that was passed by the Illinois legislature cannot be consistent with Moore, precisely because the only justification for insisting upon control of the right through permits is the "dangerousness" of carry. So by your own argument here, their law should be challengeable on the basis that it is not consistent with Moore. Right?




Travel is a fundamental Right. I have said so before.
And yet, the most common exercise of that "fundamental" right is controlled through permits. And on what basis? "Public safety".

Dude, your arguments here are inconsistent. On the one hand, you're claiming that the declaration of open carry in public as a fundamental right is enough to overcome, in the courts, any argument about controlling it through permits that relies on "public safety" as its justification, and on the other hand you call something which has the vast majority of its exercise controlled through permits a "fundamental right".

Well, either something being a "fundamental right" dispenses with the legitimate justification for controlling it through permits due to "public safety", or it doesn't. Which is it?



And of course, I am placing people in physical danger by marching down the middle of the street (presuming no permit).
But previously, you're arguing that the "public safety" argument is nullified by something being a fundamental right. Here, you're arguing that the government can justifiably control exercise of the right through permits when "public safety" is at risk. Those are mutually contradictory positions, so which is it?



You place far too much emphasis on "inherent." Danger comes in many forms, but still doesn't automatically place liberty in jeopardy. Hence me quoting part of McDonald in post #164.
What? In what way does danger to life and limb (the very thing that "public safety" is predicated upon) not place life and limb in jeopardy? In what way is danger to life and limb not a danger to liberty? (Note that I'm just channeling the opposition here. I personally recognize that liberty is dangerous, and that you can't have liberty without danger, but the courts don't seem to buy that, and that is largely why we're where we are now.)



King George III thought different in re Thomas Payne. And was right! Reverend Jones was a danger to those who drank the kool-aid, wasn't he? And yet, permits still can't be imposed on EITHER.
No, but some of the speech can be restricted outright. See laws which forbid speech which incites riots for an example.

Honestly, the courts are not fully consistent about this.



If we win with Bonidy, we'll win on permits as well.
Maybe, but I doubt it. If you can't even be consistent about your argument about public safety and permits as regards fundamental rights, how are you going to avoid the opposition blowing huge holes in the arguments you're proposing we make in front of the court?

The opposition will simply show that fundamental rights are controlled in many ways through permit schemes for "public safety" reasons, and that, therefore, exercise of the right to keep and bear arms is absolutely no exception to that.

On what basis do you believe that the courts will somehow not buy that argument when they do for those other fundamental rights (speech and travel)?


Finally, you claim that somehow the declaration of open carry as a fundamental right will suddenly nullify arguments that open carry in public endangers public safety. But that is a non-sequitur. The status of open carry as a right is independent of whether or not it endangers public safety. They are two completely separate things. And because the courts have, so far, been buying the argument that carry in public endangers public safety, I have no reason at all to believe that they'll suddenly change their mind about that just because they'd declared open carry as a fundamental right. Why would they, when those two things are independent of each other?

Mulay El Raisuli
12-14-2013, 6:41 AM
Why not?

See below.


The presumption that 'justifies' the rulings you speak of won't be in force anymore.


That may be true about the "core" of the right. They didn't explicitly state what their assumption was about that, but the discussion certainly implies that they're not treating the right they presumed was infringed as the "core", so I expect you're right about this.


Which influences my argument quite a bit.


Agreed, actually. And yet, the courts don't even treat strict scrutiny of the core of rights (the right to free speech, in this case) in such a way as to insist on the truly least restrictive means of achieving the "compelling government interest". Going back to permits for political speech in streets and parks for a moment, permits there are not truly the least restrictive means of achieving the "government interest". Prior notification is. And yet, it is permits that have been implemented.

If the courts are not going to insist upon the least restrictive means in the 1st Amendment arena, I have no reason at all to believe they'll do so in the 2nd Amendment arena.


I'm not seeing the inconsistency between prior notice & a permit.

And of course, permits can only be imposed on the 'walking in the street' aspect of things No permit can be imposed on the content (the "core" of the Right) AT ALL. Which meets the least restrictive test.


Your claim is that Moore dispenses with the "dangerousness" argument, right? Well, that case also instructed the legislature to pass a law that was consistent with the Moore decision. But if Moore really had dispensed with the "dangerousness" argument, then the permit scheme that was passed by the Illinois legislature cannot be consistent with Moore, precisely because the only justification for insisting upon control of the right through permits is the "dangerousness" of carry. So by your own argument here, their law should be challengeable on the basis that it is not consistent with Moore. Right?


Misreading & then misstating my argument is not the way to attack my argument. For instance, I said it was McDonald that dispensed with the dangerousness argument.

And, again, "and bear" is not recognized as being "core" to the Right. My presumption is that the basis for permits will fall once we win Bonidy (presuming that we take the damn hint).


And yet, the most common exercise of that "fundamental" right is controlled through permits. And on what basis? "Public safety".

Dude, your arguments here are inconsistent. On the one hand, you're claiming that the declaration of open carry in public as a fundamental right is enough to overcome, in the courts, any argument about controlling it through permits that relies on "public safety" as its justification, and on the other hand you call something which has the vast majority of its exercise controlled through permits a "fundamental right".

Well, either something being a "fundamental right" dispenses with the legitimate justification for controlling it through permits due to "public safety", or it doesn't. Which is it?


FAIL again. Permits aren't required for "travel." Not no where. Not no how. Permits are required for driving, but driving is NOT a fundamental Right. I don't care how "common" driving is. It just ain't a Right. So, you're comparing a Right (and the restrictions that maybe allowed upon it) to something that is NOT a Right (and the restrictions that are allowed upon it.

Which is to say that the "inconsistency" is on your end.


But previously, you're arguing that the "public safety" argument is nullified by something being a fundamental right. Here, you're arguing that the government can justifiably control exercise of the right through permits when "public safety" is at risk. Those are mutually contradictory positions, so which is it?


Actually, my argument is that courts can't just declare "it's dangerous, we can do what we like." "Dangerousness" would have to be proven. Under strict scrutiny or historical basis. This is a burden they cant meet.

Preventing people from strolling down the street only has to meet "rational basis" & this is an easy burden to meet because people & cars are a bad mix that no one really disputes.


What? In what way does danger to life and limb (the very thing that "public safety" is predicated upon) not place life and limb in jeopardy? In what way is danger to life and limb not a danger to liberty? (Note that I'm just channeling the opposition here. I personally recognize that liberty is dangerous, and that you can't have liberty without danger, but the courts don't seem to buy that, and that is largely why we're where we are now.)


Bad phrasing on my part. The claim that "it's inherently dangerous!" doesn't automatically justify an infringement on liberty.


No, but some of the speech can be restricted outright. See laws which forbid speech which incites riots for an example.

Honestly, the courts are not fully consistent about this.


No, punishment can be imposed on certain types of speech. Prior restraint (which is what a permit is) cannot be.


Maybe, but I doubt it. If you can't even be consistent about your argument about public safety and permits as regards fundamental rights, how are you going to avoid the opposition blowing huge holes in the arguments you're proposing we make in front of the court?

The opposition will simply show that fundamental rights are controlled in many ways through permit schemes for "public safety" reasons, and that, therefore, exercise of the right to keep and bear arms is absolutely no exception to that.

On what basis do you believe that the courts will somehow not buy that argument when they do for those other fundamental rights (speech and travel)?


By showing that the courts do NOT buy into those arguments for speech & travel.


Finally, you claim that somehow the declaration of open carry as a fundamental right will suddenly nullify arguments that open carry in public endangers public safety. But that is a non-sequitur. The status of open carry as a right is independent of whether or not it endangers public safety. They are two completely separate things. And because the courts have, so far, been buying the argument that carry in public endangers public safety, I have no reason at all to believe that they'll suddenly change their mind about that just because they'd declared open carry as a fundamental right. Why would they, when those two things are independent of each other?


You make no sense here. So, I'll summarize instead.

There are no arguments that carry is dangerous. There's lots & lots of proclamations that it is, but no real arguments. Which is all the courts need when "and bear" isn't recognized as "core" to the 2A. They buy into crap because they can. Their hostility to the Right is WHY I keep urging that we should take the damn hint & get "and bear" so recognized. If we do, then the legal landscape changes dramatically. The courts won't be able do so anymore. "Inherent dangerousness" would have to be PROVEN (which can't be done). The "Second Amendment two step" won't be allowed anymore. It'll be strict scrutiny or historical basis. All of your arguments about what the courts have accepted up until now won't matter.

Some will claim that we have been trying to have "and bear" recognized as the Right. This is false. What we've been doing to spinning our wheels trying to have Shall Issue CCW recognized as the Right. I predicted 5 years ago that this effort would fail. I was right. All efforts in this direction have failed. All efforts in this direction will fail.

Time now to seize the opportunity that Mr Bonidy has given us. We have a clear cut Decision that Open Carry is the Right. Next stop is a Circuit Court that has given us a BIG hint that Open Carry is the Right. After that, SCOTUS (which started with the hint that Open Carry is the Right). Time is something we don't have unlimited amounts of. We should stop wasting it.


The Raisuli

hvengel
12-14-2013, 10:59 AM
...
FAIL again. Permits aren't required for "travel." Not no where. Not no how. Permits are required for driving, but driving is NOT a fundamental Right. I don't care how "common" driving is. It just ain't a Right. So, you're comparing a Right (and the restrictions that maybe allowed upon it) to something that is NOT a Right (and the restrictions that are allowed upon it. ...


The Raisuli

In addition, driving is only restricted in public places. You can buy a car and have it transported to your private property and drive it all you want on your private property without registering it, insuring it or having a drivers license. All of those things are for operating the car in places other than your private property.

kcbrown
12-14-2013, 2:15 PM
I'm not seeing the inconsistency between prior notice & a permit.


What? Really?

Prior notice means, simply, that you merely tell the government what you're going to do prior to doing it.

A permit means that you ask the government for permission to do what you intend to do.

You don't see the difference between those two things, and how the latter is more restrictive than the former?



Misreading & then misstating my argument is not the way to attack my argument. For instance, I said it was McDonald that dispensed with the dangerousness argument.
But this is what you said of Moore:


But, me packing heat isn't clearly & obviously a danger. In addition, packing heat is (when/if we take the damn hint) a "fundamental" Right. Which shifts the burden to The State. "Danger" has to be proven, not just proclaimed.

And here is where Moore v Madigan comes in. Ill lost because they merely proclaimed that any sort of carry was dangerous. The Court pointed out that there was no showing as to what made Ill so very different from the other 49 states.


I took that to mean that Moore also dispensed with the "dangerousness" argument, that the 7th Circuit didn't buy it.

Well, either the 7th Circuit buys the "dangerousness" argument in Moore, or it doesn't. Which is it?



And, again, "and bear" is not recognized as being "core" to the Right. My presumption is that the basis for permits will fall once we win Bonidy (presuming that we take the damn hint).
It'll be interesting to see if that particular legal theory works out. I see no reason to believe that it will, but, of course, that position has to be argued nonetheless.



FAIL again. Permits aren't required for "travel." Not no where. Not no how. Permits are required for driving, but driving is NOT a fundamental Right. I don't care how "common" driving is. It just ain't a Right. So, you're comparing a Right (and the restrictions that maybe allowed upon it) to something that is NOT a Right (and the restrictions that are allowed upon it.
Wow. This is so full of fail that I can hardly believe I'm hearing you say this.

Okay, let me explain this very clearly, by way of a very simple question.

You get in your car and drive from point A to point B. Did you travel or not?



Actually, my argument is that courts can't just declare "it's dangerous, we can do what we like." "Dangerousness" would have to be proven. Under strict scrutiny or historical basis. This is a burden they cant meet.
Really?

No, that's a burden that they'll meet trivially. Here's why.

It is not carry directly that is being targeted, it is carry of dangerous items. The state's argument will be that firearms are dangerous items, and therefore it is a public safety issue as to whether or not people can carry them in public.

How are you going to argue that firearms are not dangerous items when we have all sorts of procedures in our training that instruct us to treat them as if they are? More to the point, how are you going to convince a court that firearms are not dangerous items?



Bad phrasing on my part. The claim that "it's inherently dangerous!" doesn't automatically justify an infringement on liberty.
Not by itself, no. I agree that the government will have to show that carry involves dangerous items, but that is a trivial showing on their part.




No, punishment can be imposed on certain types of speech. Prior restraint (which is what a permit is) cannot be.
Interesting. I like that argument, actually. That's good -- it's much more in keeping with preservation of liberty.

But there is one fatal flaw in it, and it is this: punishment through law in that way is the same thing as infringement upon that which one is being punished for. Which is to say, that which one is being punished for here is one's particular exercise of free speech. That makes the law that punishes such an infringement upon free speech. And yet, despite the fact that said law infringes upon free speech, it has been allowed to stand.

So, prior restraint or not, what we have here is a law which infringes upon free speech and which the judiciary has let stand. This illustrates that which I intended to illustrate, which is that the declaration of something as a fundamental right does not automatically nullify "public safety" arguments as regards laws which infringe upon that right.



By showing that the courts do NOT buy into those arguments for speech & travel.
Okay, feel free to show how they don't buy into it, in light of the fact that laws which require permits for those very things have been upheld by the courts.



You make no sense here. So, I'll summarize instead.
I don't? In what way?

All I'm saying is that whether or not something is a fundamental right is independent of whether or not that which the right protects is dangerous. In what way does that not make sense?



There are no arguments that carry is dangerous. There's lots & lots of proclamations that it is, but no real arguments.
That's because you're trying to focus on carry itself, when the focus is on what is carried.

To illustrate my point, answer this: is it acceptable to restrict people from carrying around bombs?



Which is all the courts need when "and bear" isn't recognized as "core" to the 2A. They buy into crap because they can.
This is all you really need. Because "dangerousness" of something is independent of whether or not it is a fundamental right, the courts can and will buy into the "dangerousness" argument even after carry of firearms in public is recognized by the Supreme Court as a fundamental Constitutional right. Why? Because they can.



Their hostility to the Right is WHY I keep urging that we should take the damn hint & get "and bear" so recognized. If we do, then the legal landscape changes dramatically. The courts won't be able do so anymore. "Inherent dangerousness" would have to be PROVEN (which can't be done). The "Second Amendment two step" won't be allowed anymore. It'll be strict scrutiny or historical basis. All of your arguments about what the courts have accepted up until now won't matter.
Given how the courts have been treating Heller, do you truly believe Bonidy will change the landscape as dramatically as you say here? Or is that merely your hope?

I, too, hope that it changes the landscape in that way, that the courts stop treating this right as if it doesn't exist. But given how they've treated Heller (see Osterweil v Bartlett), why should I believe that they won't simply ignore everything the Supreme Court says except its direct holding, and limit Bonidy to its facts and thus say something ridiculous, like that carry of firearms in a USPS parking lot is a fundamental right but it is not a fundamental right anywhere else?



Some will claim that we have been trying to have "and bear" recognized as the Right. This is false. What we've been doing to spinning our wheels trying to have Shall Issue CCW recognized as the Right. I predicted 5 years ago that this effort would fail. I was right. All efforts in this direction have failed. All efforts in this direction will fail.

Time now to seize the opportunity that Mr Bonidy has given us. We have a clear cut Decision that Open Carry is the Right. Next stop is a Circuit Court that has given us a BIG hint that Open Carry is the Right. After that, SCOTUS (which started with the hint that Open Carry is the Right). Time is something we don't have unlimited amounts of. We should stop wasting it.
And this is something I completely agree with.

Regardless of what I expect the eventual outcome to be, this approach must be taken. What has been tried so far simply has not been getting it done.

I think you're way too optimistic as regards the Supreme Court taking up Bonidy , but we'll see.

sarabellum
12-14-2013, 3:32 PM
In addition, driving is only restricted in public places. You can buy a car and have it transported to your private property and drive it all you want on your private property without registering it, insuring it or having a drivers license. All of those things are for operating the car in places other than your private property.

Just to get the auto off the hands of the seller, one must get a permit, i.e. transfer of title and payment of a levy/tax, and thereafter purchase a permit every year to keep the vehicle, i.e. pay registration or planned non-operation fees. Every two years another permit must be obtained, a smog test.

KC Brown is right. Beneath the thin veneer of democracy there is an entire authoritarian State. With regard to free speech addressed here, yes the Supreme Court has crafted a time, place, and manner permit doctrine for speech in public spaces. Ward v. Rock Against Racism, 491 U.S. 781 (1989). Our speech takes on its most meaningful significance when directed at the dominant class and its tool, the state. That occurs in public where it can be seen and received, "to petition...instruct..." 1st Amendment, US Constit. However, the State can control the time, place, and manner of our speech. We would be hard pressed to prove that the denial of the permit was content based.

kcbrown
12-14-2013, 6:15 PM
KC Brown is right. Beneath the thin veneer of democracy there is an entire authoritarian State. With regard to free speech addressed here, yes the Supreme Court has crafted a time, place, and manner permit doctrine for speech in public spaces. Ward v. Rock Against Racism, 491 U.S. 781 (1989). Our speech takes on its most meaningful significance when directed at the dominant class and its tool, the state. That occurs in public where it can be seen and received, "to petition...instruct..." 1st Amendment, US Constit. However, the State can control the time, place, and manner of our speech. We would be hard pressed to prove that the denial of the permit was content based.

Precisely. This is why I actually agree with Mulay as regards permits: they are an affront to fundamental rights. Where he and I disagree is not with respect to that, but with respect to whether the courts will uphold the use of permits to govern carry of firearms in public once open carry has been declared a fundamental Constitutional right by the Supreme Court.

Since the Supreme Court has upheld such use as regards speech in public, something which has much less perceived public safety impact, I have every reason to believe that it will likewise uphold the use of permits to govern carry of firearms in public, most especially because speech doesn't even have a "prohibited person" class while firearms do (something which the Supreme Court has all but stated outright that it will uphold).


Declaration by the Supreme Court that open carry in public is a fundamental Constitutional right might suddenly make the rest of the judiciary see the light and change its mind about this whole right to keep and bear arms business, but to actually believe that is to believe that we live in some sort of fairy tale or something. I live in the real world. The real world is a dark, nasty, and evil place, and it is only through monumental effort on our part that it is not any worse than it is.

sarabellum
12-14-2013, 11:01 PM
Declaration by the Supreme Court that open carry in public is a fundamental Constitutional right might suddenly make the rest of the judiciary see the light and change its mind about this whole right to keep and bear arms business, but to actually believe that is to believe that we live in some sort of fairy tale or something. I live in the real world. The real world is a dark, nasty, and evil place, and it is only through monumental effort on our part that it is not any worse than it is.

Our democratic rights are imaginary. That condition is the result of the indifference wrought by a diet of roast beef and apple pie.

Mulay El Raisuli
12-17-2013, 8:53 AM
What? Really?

Prior notice means, simply, that you merely tell the government what you're going to do prior to doing it.

A permit means that you ask the government for permission to do what you intend to do.

You don't see the difference between those two things, and how the latter is more restrictive than the former?


When the permit MUST be issued, the permit is an acknowledgement that The State has gotten my notification. And, it must be emphasized, permits aren't allowable in re Constitutional issues.


But this is what you said of Moore:



I took that to mean that Moore also dispensed with the "dangerousness" argument, that the 7th Circuit didn't buy it.

Well, either the 7th Circuit buys the "dangerousness" argument in Moore, or it doesn't. Which is it?


It is the 7th obeying the orders of SCOTUS. Important to my argument that once SCOTUS changes the legal landscape, the Circuits will go along.


It'll be interesting to see if that particular legal theory works out. I see no reason to believe that it will, but, of course, that position has to be argued nonetheless.


It does in re every other Constitutional Issue decided by SCOTUS, so I'm thinking it will here as well.


Wow. This is so full of fail that I can hardly believe I'm hearing you say this.

Okay, let me explain this very clearly, by way of a very simple question.

You get in your car and drive from point A to point B. Did you travel or not?


Let me answer very clearly. When you get in your car, are you exercising a Constitutional Right? The answer is: No, you are not. Driving a car is NOT a right (Constitutional or otherwise). A comparison between the two is false.

I'll add that to argue otherwise is both dangerous & stupid. Gunnies know that doing so only opens the door to us having yearly registration, insurance & licensing restrictions (infringements) imposed on us. Something that gunnies (but not you, it seems) don't want.


Really?

No, that's a burden that they'll meet trivially. Here's why.

It is not carry directly that is being targeted, it is carry of dangerous items. The state's argument will be that firearms are dangerous items, and therefore it is a public safety issue as to whether or not people can carry them in public.

How are you going to argue that firearms are not dangerous items when we have all sorts of procedures in our training that instruct us to treat them as if they are? More to the point, how are you going to convince a court that firearms are not dangerous items?


Well, guns are dangerous in the home as well. DC proclaimed "BUT THEY'RE DANGEROUS!" in Heller. How did that work out for them?


Not by itself, no. I agree that the government will have to show that carry involves dangerous items, but that is a trivial showing on their part.


For the reason given above, no it ain't.


Interesting. I like that argument, actually. That's good -- it's much more in keeping with preservation of liberty.

But there is one fatal flaw in it, and it is this: punishment through law in that way is the same thing as infringement upon that which one is being punished for. Which is to say, that which one is being punished for here is one's particular exercise of free speech. That makes the law that punishes such an infringement upon free speech. And yet, despite the fact that said law infringes upon free speech, it has been allowed to stand.

So, prior restraint or not, what we have here is a law which infringes upon free speech and which the judiciary has let stand. This illustrates that which I intended to illustrate, which is that the declaration of something as a fundamental right does not automatically nullify "public safety" arguments as regards laws which infringe upon that right.


What law are you talking about?


Okay, feel free to show how they don't buy into it, in light of the fact that laws which require permits for those very things have been upheld by the courts.


I don't know of any laws that do as you claim.


I don't? In what way?

All I'm saying is that whether or not something is a fundamental right is independent of whether or not that which the right protects is dangerous. In what way does that not make sense?


Give an example.


That's because you're trying to focus on carry itself, when the focus is on what is carried.

To illustrate my point, answer this: is it acceptable to restrict people from carrying around bombs?


What did SCOTUS say about that?


This is all you really need. Because "dangerousness" of something is independent of whether or not it is a fundamental right, the courts can and will buy into the "dangerousness" argument even after carry of firearms in public is recognized by the Supreme Court as a fundamental Constitutional right. Why? Because they can.


This doesn't make any sense either.


Given how the courts have been treating Heller, do you truly believe Bonidy will change the landscape as dramatically as you say here? Or is that merely your hope?

I, too, hope that it changes the landscape in that way, that the courts stop treating this right as if it doesn't exist. But given how they've treated Heller (see Osterweil v Bartlett), why should I believe that they won't simply ignore everything the Supreme Court says except its direct holding, and limit Bonidy to its facts and thus say something ridiculous, like that carry of firearms in a USPS parking lot is a fundamental right but it is not a fundamental right anywhere else?


FAIL! You're using a case that (also FAIL) is about permits to illustrate disrespect for Heller in the Circuits? As you point out, the Circuits ARE respecting Heller. In spite of the proclamations of "They're dangerous!" by the grabberz, guns in the home are mostly safe (not forgetting about what's going on in NY right now, but that game has only started). But, you keep forgetting that CCW (which includes permits for same) is NOT the Constitutional Right. The Circuits are applying Hellerto CCW in exactly the way they're supposed to. The Circuits aren't applying the Constitution to "and bear" simply & only because we haven't taken the damn hint & given them a case that has a Constitutionally protected manner of "and bear" as its focus.

Double fail in that you're forgetting this thread has been hijacked (I'll admit it) into a discussion about a hypothetical post-Bonidy world where LOC has been recognized as THE Constitutional method of "and bear."


And this is something I completely agree with.

Regardless of what I expect the eventual outcome to be, this approach must be taken. What has been tried so far simply has not been getting it done.

I think you're way too optimistic as regards the Supreme Court taking up Bonidy , but we'll see.


Your examples are of the Circuits doing just what they're supposed to do. You're ignoring what SCOTUS has said in re things that really are fundamental Rights. Your also confusing the 'now' with the hypothetical 'soon to be.'

I'm not. Which is why I'm optimistic.


In addition, driving is only restricted in public places. You can buy a car and have it transported to your private property and drive it all you want on your private property without registering it, insuring it or having a drivers license. All of those things are for operating the car in places other than your private property.


Correct, in spite of sarabellum says. Not paying the registrations fees & such isn't easy, but it can be done.


The Raisuli

kcbrown
12-17-2013, 12:37 PM
When the permit MUST be issued, the permit is an acknowledgement that The State has gotten my notification. And, it must be emphasized, permits aren't allowable in re Constitutional issues.


How, then, does this differ in any way from a "shall-issue" permit system governing open carry?

And in any case, that the permit must be issued does not necessarily mean that it must be issued on the applicant's terms.

Finally, if you really think that all such permits are issued, then explain this: http://articles.chicagotribune.com/2012-03-19/news/ct-met-nato-protest-permit-20120320_1_g-8and-nato-nato-summit-parade-route (official denial letter here: http://www.chicagotribune.com/news/politics/clout/chi-120319occupy-permit-denied-html,0,6885113.htmlpage)



It is the 7th obeying the orders of SCOTUS. Important to my argument that once SCOTUS changes the legal landscape, the Circuits will go along.
This is avoiding the question. The question is whether or not the 7th Circuit bought the "dangerousness" argument in Moore. Did they or did they not?



Let me answer very clearly. When you get in your car, are you exercising a Constitutional Right? The answer is: No, you are not. Driving a car is NOT a right (Constitutional or otherwise). A comparison between the two is false.
Actually, the answer is yes, you are exercising a right (though one not explicitly listed in the Constitution). That right is the right of travel.

To argue otherwise, as you are here, leads to the absurd conclusion that a right is not implicated except when directly controlled in the law, which leads to the conclusion that as long as the law controls firearms and/or any actions involving them, but doesn't directly control carry or ownership of them, then the law is safe from a legal challenge, since the right is to keep and bear arms, but not anything else.

No, any form of exercise of a right is still exercise of the right, and that goes for travel as much as anything else. Furthermore, any law which so much as affects the right is one that is vulnerable to being challenged on that basis. Otherwise, you're going to be left with the conclusion that the government can regulate every means of travel (walking, driving, flying, bicycling, etc.) without touching the right of travel itself.

And that is a path you do not want to go down. It is an incredibly myopic view of rights.



I'll add that to argue otherwise is both dangerous & stupid. Gunnies know that doing so only opens the door to us having yearly registration, insurance & licensing restrictions (infringements) imposed on us. Something that gunnies (but not you, it seems) don't want.
Oh, believe me, I don't want that at all. But the arguments I'm putting forth here are guaranteed to be put forth by the opposition, because the opposition is not stupid. Hence, we have to have strong and solid counterarguments to them in order to prevail.

I haven't seen such arguments yet as regards this, and that's a huge problem.



Well, guns are dangerous in the home as well. DC proclaimed "BUT THEY'RE DANGEROUS!" in Heller. How did that work out for them?
Heller found that such a proclamation wasn't sufficient to allow the government to arbitrarily control who could and could not own them or carry them in the home, but that did not reach as far as knocking down the permit requirement altogether. And while plaintiffs did not directly challenge the permit requirement in that case, that did not prevent the Supreme Court from being able to declare permits to be Unconstitutional in that case -- the Court could have struck the permit provision outright if it had chosen to. That the Supreme Court left permits alone when the issue was in front of them is, itself, telling in that regard. That's especially true because they didn't even say anything against them in dicta!



What law are you talking about?
The law forbidding speech which is "incitement to riot". See, e.g., CA PC 404.6.



Give an example.
Certainly. You have the right to defend yourself or others with a firearm, right? That actually happens to be a dangerous thing, because whenever you discharge a firearm in defense of self or others, you might miss and hit innocent bystanders (indeed, you might actually hit your target and still hit innocent bystanders if the bullet does not stop in the target). Police do this all the time (they try not to, of course, but that doesn't prevent it), so you can't claim that it doesn't happen, and you can't claim that the act of such defense isn't, itself, a danger.

Hence, here you have something that is dangerous but which is nonetheless a right. The two things (dangerousness and being a right) are independent of each other.



What did SCOTUS say about that?
Not a thing, that I recall.



This doesn't make any sense either.
In what way? What specifically about it is illogical or not understandable?



FAIL! You're using a case that (also FAIL) is about permits to illustrate disrespect for Heller in the Circuits? As you point out, the Circuits ARE respecting Heller.
No, the district and circuit courts are limiting Heller to its facts. Per Supreme Court jurisprudence, that is disallowed, but the lower courts are doing it anyway.



In spite of the proclamations of "They're dangerous!" by the grabberz, guns in the home are mostly safe (not forgetting about what's going on in NY right now, but that game has only started).
Then explain Osterweil v Bartlett.



But, you keep forgetting that CCW (which includes permits for same) is NOT the Constitutional Right. The Circuits are applying Hellerto CCW in exactly the way they're supposed to. The Circuits aren't applying the Constitution to "and bear" simply & only because we haven't taken the damn hint & given them a case that has a Constitutionally protected manner of "and bear" as its focus.
In what way was Woollard about CCW? You keep ignoring that particular case, and that just won't do.



Double fail in that you're forgetting this thread has been hijacked (I'll admit it) into a discussion about a hypothetical post-Bonidy world where LOC has been recognized as THE Constitutional method of "and bear."
Well, guilty as charged, of course, but then, it seems I have an accomplice. :D

And in any case, it is fun. :D



Your examples are of the Circuits doing just what they're supposed to do. You're ignoring what SCOTUS has said in re things that really are fundamental Rights. Your also confusing the 'now' with the hypothetical 'soon to be.'
My examples are of the circuits limiting a fundamental case to its facts, something that they are not allowed to do per Supreme Court jurisprudence. They're doing it anyway. The only circuit court that has not done so thus far is the 7th Circuit (though I suppose one could argue that the 10th hasn't, either).

sarabellum
12-17-2013, 9:32 PM
Let me answer very clearly. When you get in your car, are you exercising a Constitutional Right? The answer is: No, you are not. Driving a car is NOT a right (Constitutional or otherwise). A comparison between the two is false.


That the exercise of a fundamental right can be conditioned upon issuance of a permit is law, .e.g. time, place, and manner regulation of the exercise of free speech. Supreme Court authority on the subject is dispositive. see Ward v. Rock Against Racism, 491 U.S. 781 (1989).

We have the fundamental right to move about to travel and move things upon all highways. "The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." Corfield v. Coryell, 6 Fed. Cas. 546 (1823). Freedom of movement as a fundamental Constitutional right. In Paul v. Virginia, 75 U.S. 168 (1869), the Court defined freedom of movement as "right of free ingress into other States, and egress from them."

We also have a 14th Amendment due process right to move freely in public.

curtisfong
12-17-2013, 9:39 PM
No. Driving on public roads with a car is not connected with the fundamental right to travel.

Mulay El Raisuli
12-18-2013, 4:37 AM
How, then, does this differ in any way from a "shall-issue" permit system governing open carry?

And in any case, that the permit must be issued does not necessarily mean that it must be issued on the applicant's terms.

Finally, if you really think that all such permits are issued, then explain this: http://articles.chicagotribune.com/2012-03-19/news/ct-met-nato-protest-permit-20120320_1_g-8and-nato-nato-summit-parade-route (official denial letter here: http://www.chicagotribune.com/news/politics/clout/chi-120319occupy-permit-denied-html,0,6885113.htmlpage)


That an issuing authority needs to be slapped into place (especially in Chicago) does not surprise.


This is avoiding the question. The question is whether or not the 7th Circuit bought the "dangerousness" argument in Moore. Did they or did they not?


The 7th obeyed & applied the law on the matter.


Actually, the answer is yes, you are exercising a right (though one not explicitly listed in the Constitution). That right is the right of travel.

To argue otherwise, as you are here, leads to the absurd conclusion that a right is not implicated except when directly controlled in the law, which leads to the conclusion that as long as the law controls firearms and/or any actions involving them, but doesn't directly control carry or ownership of them, then the law is safe from a legal challenge, since the right is to keep and bear arms, but not anything else.

No, any form of exercise of a right is still exercise of the right, and that goes for travel as much as anything else. Furthermore, any law which so much as affects the right is one that is vulnerable to being challenged on that basis. Otherwise, you're going to be left with the conclusion that the government can regulate every means of travel (walking, driving, flying, bicycling, etc.) without touching the right of travel itself.

And that is a path you do not want to go down. It is an incredibly myopic view of rights.


The State can prevent me from driving, but they cannot prevent me from traveling. Not driving may mean that I have to work harder at the exercise. I may even have to exercise (get it?). But myopic or not, it IS the law.


Oh, believe me, I don't want that at all. But the arguments I'm putting forth here are guaranteed to be put forth by the opposition, because the opposition is not stupid. Hence, we have to have strong and solid counterarguments to them in order to prevail.

I haven't seen such arguments yet as regards this, and that's a huge problem.


The reason the opposition hasn't put forth this argument is because they already know the Constitutional difference between "travel" & "driving." This also addresses sarabellum's comment (my thanks also to curtisfong).


Heller found that such a proclamation wasn't sufficient to allow the government to arbitrarily control who could and could not own them or carry them in the home, but that did not reach as far as knocking down the permit requirement altogether. And while plaintiffs did not directly challenge the permit requirement in that case, that did not prevent the Supreme Court from being able to declare permits to be Unconstitutional in that case -- the Court could have struck the permit provision outright if it had chosen to. That the Supreme Court left permits alone when the issue was in front of them is, itself, telling in that regard. That's especially true because they didn't even say anything against them in dicta!


Not quite. First, we didn't ask for permits to be struck down. No court will grant relief that isn't asked for (this comes up again, below). SCOTUS didn't give a ringing endorsement to permits either. Which is to say that this is something ELSE we have to work on.


The law forbidding speech which is "incitement to riot". See, e.g., CA PC 404.6.


You're kidding, right? You aren't really comparing the prohibition of criminal behavior to prior restraint, are you?


Certainly. You have the right to defend yourself or others with a firearm, right? That actually happens to be a dangerous thing, because whenever you discharge a firearm in defense of self or others, you might miss and hit innocent bystanders (indeed, you might actually hit your target and still hit innocent bystanders if the bullet does not stop in the target). Police do this all the time (they try not to, of course, but that doesn't prevent it), so you can't claim that it doesn't happen, and you can't claim that the act of such defense isn't, itself, a danger.

Hence, here you have something that is dangerous but which is nonetheless a right. The two things (dangerousness and being a right) are independent of each other.


Not even close. My car going down the road at 120mph (presuming it was capable of that) is dangerous. My car, sitting in the driveway, is merely capable of being dangerous.

My .38, being waved about wildly with my finger on the trigger, is dangerous. My .38, sitting in a holster on my hip, is merely capable of being dangerous.

Being dangerous is illegal. Having the capability to be dangerous (in some ways) is protected by the Constitution.


Not a thing, that I recall.


Well, in Heller, comment was made about "dangerous or unusual" weapons. Where does that lead you?


In what way? What specifically about it is illogical or not understandable?


I think this is the same argument I countered with the car/.38 example.


No, the district and circuit courts are limiting Heller to its facts. Per Supreme Court jurisprudence, that is disallowed, but the lower courts are doing it anyway.


HUH?


Then explain Osterweil v Bartlett.


Its another example of why we need to take the damn hint.


In what way was Woollard about CCW? You keep ignoring that particular case, and that just won't do.


Wollard wasn't about LOC because we didn't make it about LOC. We asked for a permit. That included CCW. Yes, that same permit allowed LOC, but that doesn't matter at all because (again) we didn't ask for a permit to LOC & (again) courts don't grant relief not asked for.


Well, guilty as charged, of course, but then, it seems I have an accomplice. :D

And in any case, it is fun. :D


Yeah. Although in my (our) defense, the thread is about "qualified" & that would necessarily include what approach to use.


My examples are of the circuits limiting a fundamental case to its facts, something that they are not allowed to do per Supreme Court jurisprudence. They're doing it anyway. The only circuit court that has not done so thus far is the 7th Circuit (though I suppose one could argue that the 10th hasn't, either).


Your examples show the need to take the damn hint.

I don't know that Circuits are not allowed to stick to the facts.


The Raisuli

kcbrown
12-18-2013, 4:14 PM
No. Driving on public roads with a car is not connected with the fundamental right to travel.

What? Seriously?

In what way is it not connected?

In what way is it not travel?

So if you drive a car from point A to point B on a public road, did you travel or not?


Now, you may be correct that the judiciary doesn't make that connection, but that's really part of my point: the judiciary is not consistent in their treatment of fundamental rights, and generally tend to allow restrictions on fundamental rights, and bust out all sorts of nonsense excuses for it. Such as the one you're offering here.

But to simply excuse the judiciary from culpability as a result of them defining a particular way of moving from point A to point B as "not travel" simply will not do. You should know better than that.

For shame!

sarabellum
12-18-2013, 4:18 PM
No. Driving on public roads with a car is not connected with the fundamental right to travel.

Cite your authority.

The right to use the highways in an automobile is a fundamental right. In its most basic definition, “interstate travel” refers to “travel from one State to another, and necessarily to use [of] the highways and other instrumentalities of interstate commerce in doing so.” United States v. Guest, 383 U.S. 745, 757 (1966). The Supreme Court's decision is dispositive.

The right to move about the highways is a fundamental right subject to strict scrutiny review. Shapiro v. Thompson, 394 U.S. 618, 629 (1969) (“This Court long ago recognized that the nature of our Federal Union and our constitutional concepts of personal
liberty unite to require that all citizens be free to travel throughout the length and breadth of our land uninhibited by statutes, rules or regulations which unreasonably burden or restrict this movement.”)

On the other hand, the right to intrastate travel may be regulated heavily for which the US Supreme Court has permitted heavy regulation. Although the right to interstate travel has long been an accepted part of American constitutional jurisprudence, courts
have not been transparent about its constitutional source. In Oregon v. Mitchell, 51 Justice Harlan lamented the majority’s failure to “anchor the right of interstate travel to any specific constitutional provision,” terming the right a “nebulous judicial construct.” 400 U.S. 112, 215-16 (1970)(Harlan, J., concurring in part and dissenting in part).

For those who interpret the constitution to include the right to intrastate travel is inseparable from the right to interstate travel, the sources of the rights likely overlap. State v. Burnett, 755 N.E.2d 857, 865 (Ohio 2001) (“[T]he right to travel within a state is no less fundamental than the right to travel between the states.”). However, other jurisdictions, while viewing driving to be a right, relegate that right to one subject to rational basis review. Since we can find no fundamental constitutional right to intrastate travel infringed by this ordinance, the City was not required to justify the ordinance under the compelling interest standard which must be met upon interference with a right to travel interstate.” Ector v. City of Torrance, 514 P.2d 433, 436 (Cal. 1973). The court thus applied a rational basis standard of review, which the ordinance easily satisfied.

The Supreme Court with regard to firearms will likely permit the heavy regulation of arms by the states, which have historically been regarded as possessing inherent police power under Art. 1, section 8 of the US Constitution.

curtisfong
12-18-2013, 4:25 PM
First off, there is no fundamental "right to travel".

Secondly:

http://www.law.cornell.edu/supremecourt/text/242/160

JoshuaS
12-18-2013, 4:52 PM
It is certain that driving on the interstate is connected with the right to travel (and there is a right to travel). What is not the case, at least in the courts, is that it is integral to the exercise of that right, there being other means by which travel may be accomplished. I suppose you could dispute that in many cases.

It would be analogous to saying there is a right to carry a firearm, but whether openly or concealed is a bit different. They are connected, but one can still carry a firearm openly if the law only restricts concealed or vice versa.

At least that is my take.

kcbrown
12-18-2013, 5:43 PM
That an issuing authority needs to be slapped into place (especially in Chicago) does not surprise.


That may be the case, but it illustrates my point quite clearly: the issuing authorities can and do deny permits for speech. Therein lies the danger of permits. We both know that, we both acknowledge it, and we both know that it's why permits are an affront to rights. The very act of having to ask the government for permission to exercise a right, even if it is but one form of such exercise, is an affront to that right.



The 7th obeyed & applied the law on the matter.
At this point, I'm going to have to assume that you're being deliberately obtuse, that you don't want to answer the question, because I've asked it directly a couple of times and you refuse to answer it directly.

That question being whether or not the 7th Circuit bought the "dangerousness" argument put forth by the opposition.



The State can prevent me from driving, but they cannot prevent me from traveling. Not driving may mean that I have to work harder at the exercise. I may even have to exercise (get it?). But myopic or not, it IS the law.
Okay, now apply that same "logic" to the right to keep and bear arms. It means that as long as your ability to possess a firearm is not impeded, the state can prevent you from acquiring all but the firearms it decides you should be allowed to have. Congratulations, you have just upheld the roster.



The reason the opposition hasn't put forth this argument is because they already know the Constitutional difference between "travel" & "driving." This also addresses sarabellum's comment (my thanks also to curtisfong).
Really? What's the Constitutional difference between travel and driving? In what way is driving not travel?

Let me make it very, very plain: driving is a subset of travel, a means of travel. It is not the only means of travel, of course, but it is one of a number of means of travel.

The argument you're putting forth here amounts to one that says that the government can foreclose or completely control all but one means of travel, and that doing so is Constitutional and, worse, not even an infringement upon the right!

What you are arguing here is that government action is not infringement upon a right until it forecloses (or, at least, controls through permits) the right entirely. The implications of this are staggering. It would mean that the government could impose permits on all forms of communication except for verbal speech, and that would be "Constitutional" and "not an infringement".


Poppycock! An infringement on exercise of a right means impeding exercise of that right no matter what type of exercise that might be and no matter whether or not there are other types of exercise available. Since driving is a means of travel, impeding that is an infringement upon the right of travel.

You can't have it both ways. You can't treat one right differently than you treat another. When something is a right, that has certain specific implications that you can't dismiss with the wave of your hand, no matter how inconvenient it may make your other arguments about other rights.


Either be consistent in your arguments, or be prepared to have the arguments you use to dismiss one right thrown right back in your face in the context of a right you hold dear.



Not quite. First, we didn't ask for permits to be struck down. No court will grant relief that isn't asked for (this comes up again, below). SCOTUS didn't give a ringing endorsement to permits either. Which is to say that this is something ELSE we have to work on.
Yes, it is, but my point here is that SCOTUS had the opportunity to at least say something about permits, to indicate that they are an affront to the right. SCOTUS did no such thing. They remained completely silent, even though they were certainly not silent about a great many other things that were also not asked for/about in the prayer for relief.



You're kidding, right? You aren't really comparing the prohibition of criminal behavior to prior restraint, are you?
Be careful here. What exactly do you mean by "criminal behavior" here? Do you mean, simply, actions that are against the law? I assume not, because I assume you know better than to define it that way.

I presume, then, that you mean behavior that causes harm to others.

In what way is saying the things covered by the "incitement to riot" laws a "criminal behavior" here? In what way does it cause harm to others? Are people not responsible for their own actions? Are they not, therefore, responsible for what they do upon hearing the speech of another? Is it not, therefore, the act of rioting that is criminal, and not the speech which precedes it?



Not even close. My car going down the road at 120mph (presuming it was capable of that) is dangerous. My car, sitting in the driveway, is merely capable of being dangerous.

My .38, being waved about wildly with my finger on the trigger, is dangerous. My .38, sitting in a holster on my hip, is merely capable of being dangerous.
Your .38 being discharged is dangerous. That is the point of my example: the very act of defending yourself with a firearm by discharging it does place the public at risk. It is dangerous. But because it is a right, it is a danger that a rights-observing society must accept.



Being dangerous is illegal. Having the capability to be dangerous (in some ways) is protected by the Constitution.
Then it follows that the act of defending yourself with a firearm (rather than merely possessing the tools for such) is illegal, because it is dangerous. Right?



HUH?
Lower courts are not allowed to limit a case to its facts, for doing so is not consistent with stare decisis. Precedence is more than just the holding, it includes all of the reasoning which was required to arrive at the holding. See, e.g., Seminole Tribe of Fla. v Florida:


When an opinion issues for the Court, it is not only the result but also those portions of the opinion necessary to that result by which we are bound.




Its another example of why we need to take the damn hint.
Most certainly we do. Where I disagree with you is not on what we must do, but on what the results are likely to be.



Wollard wasn't about LOC because we didn't make it about LOC. We asked for a permit. That included CCW. Yes, that same permit allowed LOC, but that doesn't matter at all because (again) we didn't ask for a permit to LOC & (again) courts don't grant relief not asked for.
But the permit would have included LOC, so in a way, we were asking for a permit for LOC. The Court could at least have granted that, could it not?

You're claiming, in essence, that if the plaintiff doesn't ask for exactly the right relief, that if the plaintiff asks for too much or too little, then the Court will ignore such a request and wait for a case that requests exactly the right amount of relief? That the Court is a sort of legal Goldilocks?


For what other fundamental Constitutional right has the Supreme Court ever behaved in that manner??

kcbrown
12-18-2013, 5:51 PM
First off, there is no fundamental "right to travel".


Oh, well, then that pretty much takes care of that. The government has the power to forbid you from leaving your home, and that is not something that can be challenged on the basis of a violation of rights.

Right?


:facepalm:


Read the 9th Amendment.




Secondly:

http://www.law.cornell.edu/supremecourt/text/242/160

The jurisprudence cited by sarabellum is more recent than that and, therefore, overrides to whatever degree it conflicts.

kcbrown
12-18-2013, 6:04 PM
First off, there is no fundamental "right to travel".


Seeing how you seem to be in agreement with respect to the application of logic to the law, I'm going to ask you a simple question that should reveal the falsehood of the above:

What's the difference between a fundamental right and a garden variety liberty?

curtisfong
12-18-2013, 7:24 PM
Ugh. This is going very far off-topic. But hey, as long as Librarian puts up with it..

Seeing how you seem to be in agreement with respect to the application of logic to the law, I'm going to ask you a simple question that should reveal the falsehood of the above:

What's the difference between a fundamental right and a garden variety liberty?

KC, we are normally in agreement, I am fairly certain we agree here too; there is simply a semantic misunderstanding.

When I say there is no "fundamental right to travel", I mean that SCOTUS has not recognized the right to travel as a "fundamental right" with respect to incorporation of "fundamental rights" against the states. Federal, state and local governments can apparently restrict it however they see fit (flying, driving, even walking on public roads, property, parks, and easements) without running into any constitutional issues with respect to the "right to travel".

Should they run into such issues? Of course. Have they? No. Will they ever? No.

SCOTUS will never lift a finger on this issue. Ever.

kcbrown
12-18-2013, 8:34 PM
Ugh. This is going very far off-topic. But hey, as long as Librarian puts up with it..



KC, we are normally in agreement, I am fairly certain we agree here too; there is simply a semantic misunderstanding.

When I say there is no "fundamental right to travel", I mean that SCOTUS has not recognized the right to travel as a "fundamental right" with respect to incorporation of "fundamental rights" against the states. Federal, state and local governments can apparently restrict it however they see fit (flying, driving, even walking on public roads, property, parks, and easements) without running into any constitutional issues with respect to the "right to travel".

Should they run into such issues? Of course. Have they? No. Will they ever? No.

SCOTUS will never lift a finger on this issue. Ever.

Ah, okay. My misunderstanding.

Yes, I agree, SCOTUS will never recognize the right to travel in a consistent way. I find it most amusing that they treat interstate travel as a right but intrastate travel as a privilege. But I am altogether unsurprised that they have done so, since the judiciary refuses to consistently apply logic to the law.

But regardless, this bolsters my point: the right to travel exists, and it is recognized as a right at some level, and yet permits which govern it are not considered by the judiciary as infringements upon the right.

And if the judiciary will not recognize permits themselves as infringements upon other rights, then why should I believe that they will magically recognize the right to keep and bear arms as so sacrosanct that it is somehow above all other rights in that regard? To believe that the judiciary will treat the right to keep and bear arms in that way, most especially in light of how that same judiciary has thus far treated it even as regards in-the-home, is to believe that we live in a fairy tale, where everyone will live happily ever after, when the real situation is that we live in a dystopian society where doublespeak is routinely employed by those tasked with guarding our most fundamental rights, and far more resources are expended by our government on watching the citizenry with a baleful eye and interfering with it on a day to day basis than on protecting the liberties of it.

No, the real world is a dark, nasty, and evil place. I can't help that people refuse to see the real world for what it is, that they insist on believing that they live in a fairy tale. I often wish I didn't see the real world as it is, that I, too, believed in the fairy tale. But I am wired to be evidence-driven. And the evidence before me is that the judiciary is going to smash the right to keep and bear arms into tiny bits before our eyes, that what we got from Heller is, with few exceptions, all we're going to get, and that it will be all downhill from there.

It must be nice to not be as jaded as I am...

curtisfong
12-18-2013, 8:39 PM
The sad reality is that the court system has to be checkmated into doing their job. And at any time, they can simply say "you only think that is a checkmate. In reality, it isn't, and you lose", because the metric of "checkmate" is fungible.

sarabellum
12-18-2013, 9:44 PM
First off, there is no fundamental "right to travel".

Secondly:

http://www.law.cornell.edu/supremecourt/text/242/160

Just saying, "first off there is no fundamental right to travel" is not authority. Simply ignoring Supreme Court precedent acknowledging a fundamental right to interstate travel does not help your contentions.

Your reference to Kane v. New Jersey is consistent with Supreme Court authority which I cited above with regard to intrastate travel. Had you taken the time to read the opinion it rules, "The power of a state to regulate the use of motor vehicles on its highways has been recently considered by this court and broadly sustained." (emphasis added). Therefore, states have the power to regulate the right to intrastate travel.

Kane v. New Jersey supports the argument made in this thread that the Supreme Court when approaching a fundamental right will turn to analogous doctrines applied to the Privileges and Immunities Clauses of Article IV and the 14th Amendment and regulation of free speech under the 1st Amendment.

The right to intra and interstate travel over the highways is not subject to dispute: http://www.bu.edu/law/central/jd/organizations/journals/bulr/documents/WILHELM.pdf

Interstate travel is a fundamental right subject to strict scrutiny review. Intrastate travel is a right controlled by and recognized in all states; however, the level of scrutiny applied to infringement of intrastate travel as I have amply shown varies from state to state. California applies rational basis review.

The US Supreme Court will most like punt, allowing the regulation of firearms possession/use by the states. At best at some time in the next century a Supreme Court might take up an issue as to whether a state regulation of the right to bear arms is so complete as to render the right entirely meaningless or leads to absurd results.

wildhawker
12-18-2013, 9:48 PM
We already have effectively meaningless rights, tepid enforcement of Constitutional guarantees, and absurd results. If today's conditions don't warrant broad judicial activism and legislative reimagining, then we don't have our Republic.

curtisfong
12-18-2013, 10:25 PM
California applies rational basis review.


Which, as I said, means that travel is not a fundamental right in CA.

Mulay El Raisuli
12-19-2013, 8:46 AM
I told you a while back that my support for making LOC the Protected Right is not based on my beliefs, but on what SCOTUS held to be the law in Heller & in McDonald. Simple, declarative statements having zero effect on you, I'll explain that. In the (now faint) hope that you'll pay attention.

IMHO, the references to Nunn, etc in Heller are error. SCOTUS did correctly point out that "Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad." The 2A was adopted in 1791, when permits to carry were unheard of. THAT should have been the date of "enshrinement" as far as I'm concerned. Those who go around saying, "The Constitution is my carry permit" are correct. Or would be if SCOTUS had really followed the Constitution. But, we live in an impure world & SCOTUS used the 14A as the date of "enshrinement." So, that's what we have to live with.

The importance of this is that I'm not arguing what I think should be the case as far as travel, "and bear," or anything else goes. I'm arguing based on what the courts have said is the legal reality we have to deal with. So, if you want to make (what you think) is a great "logical" argument to undercut what I say, you're wasting your time (and mine, for that matter) unless you can provide a ruling that backs it up.

While you're doing that (IF you do that), try to not make wild claims about what I say. Stating that a claim of mine means this, or that it means that is just a lack of thinking on your part. Or it means you 'think' too much. In either event, you wind up being wrong.


That may be the case, but it illustrates my point quite clearly: the issuing authorities can and do deny permits for speech. Therein lies the danger of permits. We both know that, we both acknowledge it, and we both know that it's why permits are an affront to rights. The very act of having to ask the government for permission to exercise a right, even if it is but one form of such exercise, is an affront to that right.


Will there be times when issuing authorities will ignore the law? Of course. That has nothing to do with my arguments.

That has nothing to do with why asking for a permit is an affront to a Right. A Right is something you don't have to ask for permission to do. I don't have to ask for permission to live, as just one example.

But, that doesn't include every form of that right. I have a "Right of locomotion" (Kolender vs Lawson, 1983). That doesn't mean I have the right to run the Polar Express up the I-5. Nor does it include driving a car up the I-5.


At this point, I'm going to have to assume that you're being deliberately obtuse, that you don't want to answer the question, because I've asked it directly a couple of times and you refuse to answer it directly.

That question being whether or not the 7th Circuit bought the "dangerousness" argument put forth by the opposition.


I see you have no idea how the courts work. When SCOTUS issues a Ruling, instructing how & why various factors are to be judged, lower courts have to obey. They have to apply those standards to the cases before them. So, when SCOTUS rejected the idea of "IT'S DANGEROUS & SHOULD BE BANNED JUST BECAUSE OF THAT!" the 7th Circuit obeyed & applied the law on the matter. Which is to say, I HAVE answered your question directly. Why you refuse to accept that answer is because you have "seen" meaning in my statements that simply isn't there & you're hoping (in vain) for more.


Okay, now apply that same "logic" to the right to keep and bear arms. It means that as long as your ability to possess a firearm is not impeded, the state can prevent you from acquiring all but the firearms it decides you should be allowed to have. Congratulations, you have just upheld the roster.


WOW! There is so much FAIL in this that my mind reels. To the point that I question your ability to grasp the concepts laid before you. Try re-reading the top of this post again.

Then re-read Heller & see why your claim (again, NOT mine) fails.


Really? What's the Constitutional difference between travel and driving? In what way is driving not travel?


Wrong question. Again. The proper question is: in what way is driving Constitutionally protected?


Let me make it very, very plain: driving is a subset of travel, a means of travel. It is not the only means of travel, of course, but it is one of a number of means of travel.

The argument you're putting forth here amounts to one that says that the government can foreclose or completely control all but one means of travel, and that doing so is Constitutional and, worse, not even an infringement upon the right!

What you are arguing here is that government action is not infringement upon a right until it forecloses (or, at least, controls through permits) the right entirely. The implications of this are staggering. It would mean that the government could impose permits on all forms of communication except for verbal speech, and that would be "Constitutional" and "not an infringement".


"Amounts to" are figments in your mind. Re-read the top of the post.


Poppycock! An infringement on exercise of a right means impeding exercise of that right no matter what type of exercise that might be and no matter whether or not there are other types of exercise available. Since driving is a means of travel, impeding that is an infringement upon the right of travel.

You can't have it both ways. You can't treat one right differently than you treat another. When something is a right, that has certain specific implications that you can't dismiss with the wave of your hand, no matter how inconvenient it may make your other arguments about other rights.


Either be consistent in your arguments, or be prepared to have the arguments you use to dismiss one right thrown right back in your face in the context of a right you hold dear.


Again, you don't know my arguments since you "see" things not there.


Yes, it is, but my point here is that SCOTUS had the opportunity to at least say something about permits, to indicate that they are an affront to the right. SCOTUS did no such thing. They remained completely silent, even though they were certainly not silent about a great many other things that were also not asked for/about in the prayer for relief.


The point being that those "other things" were necessary to reach a conclusion in Heller & deciding the issue of permits was not. Why? Because we didn't make it an issue!


Be careful here. What exactly do you mean by "criminal behavior" here? Do you mean, simply, actions that are against the law? I assume not, because I assume you know better than to define it that way.

I presume, then, that you mean behavior that causes harm to others.

In what way is saying the things covered by the "incitement to riot" laws a "criminal behavior" here? In what way does it cause harm to others? Are people not responsible for their own actions? Are they not, therefore, responsible for what they do upon hearing the speech of another? Is it not, therefore, the act of rioting that is criminal, and not the speech which precedes it?


According to the Penal Code, incitement is also a criminal act. Where do you "see" anything at all about how this relieves rioters from their own criminal responsibility? I don't, but then I'm limited to seeing things actually present.


Your .38 being discharged is dangerous. That is the point of my example: the very act of defending yourself with a firearm by discharging it does place the public at risk. It is dangerous. But because it is a right, it is a danger that a rights-observing society must accept.


WOW!


Then it follows that the act of defending yourself with a firearm (rather than merely possessing the tools for such) is illegal, because it is dangerous. Right?


WOW! I don't know to address something so disconnected from reality.


Lower courts are not allowed to limit a case to its facts, for doing so is not consistent with stare decisis. Precedence is more than just the holding, it includes all of the reasoning which was required to arrive at the holding. See, e.g., Seminole Tribe of Fla. v Florida:


VERY good! But, did you see the part about "portions of the opinion necessary to that result" being there? Did you see how "and bear" wasn't "necessary" to the result in Heller? So, can you now see how the Circuits have been able infringe upon "and bear" for all this time? Can you now see why we have to take the damn hint & present the Courts with a case that will make "and bear" core to the 2A?

I can.

And this is why I keep urging that we take the damn hint. Which us back to the OP. If we think someone's effort to make LOC the Protected Right is flawed, then we should offer him help. If he wont accept our help, then should request for time at orals to present the case,. If we can't get that, we should file an amicus brief that helps the litigant make his case. It doesn't matter WHO makes the case for unlicensed LOC. What matters is that it gets made.

And just like that, the thread is unhijacked, in that it addresses the "quality" of the effort (IMHO).

TA DA!


Most certainly we do. Where I disagree with you is not on what we must do, but on what the results are likely to be.


If you would stop "seeing" things not there & thereby going off into wild & goofy conclusions, we might be closer in our expectations.


But the permit would have included LOC, so in a way, we were asking for a permit for LOC. The Court could at least have granted that, could it not?


Yes, the court have. The court could have done a lot of things. That the court didn't is not the fault of the court. The fault is OURS because we didn't bother to ask.


You're claiming, in essence, that if the plaintiff doesn't ask for exactly the right relief, that if the plaintiff asks for too much or too little, then the Court will ignore such a request and wait for a case that requests exactly the right amount of relief? That the Court is a sort of legal Goldilocks?


It isn't Goldilockian. This wasn't hair-splitting. Or technical. This was simple & basic pleading: There's only means of "and bear" possible. LOC is, according to Heller, the Protected Right. Please agree. This is what we should have done.


For what other fundamental Constitutional right has the Supreme Court ever behaved in that manner??


You mean, has SCOTUS ever granted relief that was not asked for? I'm not aware of them ever doing so. Maybe you can provide an example of them doing so? To justify our tactics in Woollard.


The Raisuli

Mulay El Raisuli
12-19-2013, 8:47 AM
<SNIP>

The US Supreme Court will most like punt, allowing the regulation of firearms possession/use by the states. At best at some time in the next century a Supreme Court might take up an issue as to whether a state regulation of the right to bear arms is so complete as to render the right entirely meaningless or leads to absurd results.


The whole point of McDonald was to impose the protection of the US Constitution so that the states cannot go overboard.


Ugh. This is going very far off-topic. But hey, as long as Librarian puts up with it..



KC, we are normally in agreement, I am fairly certain we agree here too; there is simply a semantic misunderstanding.

When I say there is no "fundamental right to travel", I mean that SCOTUS has not recognized the right to travel as a "fundamental right" with respect to incorporation of "fundamental rights" against the states. Federal, state and local governments can apparently restrict it however they see fit (flying, driving, even walking on public roads, property, parks, and easements) without running into any constitutional issues with respect to the "right to travel".

Should they run into such issues? Of course. Have they? No. Will they ever? No.

SCOTUS will never lift a finger on this issue. Ever.


I believe that Lawson vs Kolender covers the basics. I could be wrong. I am relying on my memory of the case & the Wikipedia entry for now as I don't have time to research the thing completely.


The Raisuli

curtisfong
12-19-2013, 9:24 AM
IMO he's not outlining reasons why we shouldn't ask SCOTUS for constitutional LOC.

He's outlining a prediction that SCOTUS will decline and their likely reasoning for doing so.

kcbrown
12-19-2013, 2:50 PM
I'm arguing based on what the courts have said is the legal reality we have to deal with. So, if you want to make (what you think) is a great "logical" argument to undercut what I say, you're wasting your time (and mine, for that matter) unless you can provide a ruling that backs it up.


Okay, so far so good, then.



While you're doing that (IF you do that), try to not make wild claims about what I say. Stating that a claim of mine means this, or that it means that is just a lack of thinking on your part. Or it means you 'think' too much. In either event, you wind up being wrong.
Maybe I think too much. I cannot say. But the problem here is that the things you say have logical implications, and I'm pointing them out. I'm also pointing out other areas of law in which the right in question was not treated in the way you appear to be expecting the courts to treat the right to keep and bear arms, and as such, my predictions on how the courts will treat the right to keep and bear arms are guided by that.



Will there be times when issuing authorities will ignore the law? Of course. That has nothing to do with my arguments.

That has nothing to do with why asking for a permit is an affront to a Right. A Right is something you don't have to ask for permission to do. I don't have to ask for permission to live, as just one example.
Agreed.



But, that doesn't include every form of that right. I have a "Right of locomotion" (Kolender vs Lawson, 1983). That doesn't mean I have the right to run the Polar Express up the I-5. Nor does it include driving a car up the I-5.
Then the next logical question follows: what forms of the right are protected and what forms are not?

And if other rights have forms that are not protected, what forms of the right to keep and bear arms are likewise not protected?



So, when SCOTUS rejected the idea of "IT'S DANGEROUS & SHOULD BE BANNED JUST BECAUSE OF THAT!" the 7th Circuit obeyed & applied the law on the matter. Which is to say, I HAVE answered your question directly. Why you refuse to accept that answer is because you have "seen" meaning in my statements that simply isn't there & you're hoping (in vain) for more.
Okay, then I'll presume here that your answer to my question is "yes, the 7th Circuit rejected the 'dangerousness' argument". Then my next question logically follows: how is the law that was passed by the Illinois legislature consistent with Moore in light of the fact that it is predicated on the very dangerousness argument that the 7th Circuit rejected in Moore by following in SCOTUS' footsteps?



WOW! There is so much FAIL in this that my mind reels. To the point that I question your ability to grasp the concepts laid before you. Try re-reading the top of this post again.

Then re-read Heller & see why your claim (again, NOT mine) fails.
Heller said what arms are not protected by the 2nd Amendment: those arms that are not typically possessed by law-abiding citizens for lawful purposes.

It did not say what arms are protected. So if you limit Heller to its facts, then the only arm which we know to be protected is the handgun Dick Heller tried to get a permit for.

Given that, how is Heller useful in attacking the roster, if the right is not being infringed as long as some means of exercise of the right is available?



Wrong question. Again. The proper question is: in what way is driving Constitutionally protected?
Well, if you're going to go down that route, then you should be asking in what way travel is Constitutionally protected. It's not an enumerated right, so the Constitution is silent on the matter, save for inferences that can be drawn from the 9th Amendment.

If travel is a fundamental right, and driving is a form of travel, then it logically follows that driving is an exercise of a fundamental right. So either an exercise of a fundamental right is protected by the fact that it's a fundamental right, or it's not. You're arguing that this particular form of the exercise of the right is not protected. I agree that the courts have treated it that way.

But that leads to a troubling conclusion: the mere statement by the judiciary that something is a fundamental right is not sufficient of itself to ensure that any given exercise of it is protected! You seem to have argued earlier that mere declaration of LOC as a Constitutionally protected right will be sufficient to insulate it against attempts to control it through permits. But since mere statement that something is a fundamental right is not sufficient to fully protect all exercise of that right, why should we believe that it'll be sufficient to protect some forms of it (bear, not keep) in some locations (public, not in the home) from control through permits?



"Amounts to" are figments in your mind. Re-read the top of the post.
No, "amounts to" is a logical conclusion drawn from the presumptions. So either the logic itself is incorrect, or the presumptions are. Which bit of what I stated is incorrect, and why?



The point being that those "other things" were necessary to reach a conclusion in Heller & deciding the issue of permits was not. Why? Because we didn't make it an issue!
Oh, really?

So was it necessary for SCOTUS to reach the conclusion they did by stating that their decision does not cast doubt on laws which impose upon the right in "sensitive places"? No, clearly it was not. The issue of "sensitive places" was not before them at all, not even indirectly. And yet they stated that anyway.

There are quite a few things that SCOTUS stated in Heller which were not strictly necessary for arriving at the conclusion they did, and yet, they expounded upon those things anyway.

So, therefore, your claim that Heller stated only what was necessary to reach the conclusion is false, and, therefore, my argument that their failure to discuss the issue of permits is troubling in light of that does carry some weight. But I guess we'll see how much, won't we?



According to the Penal Code, incitement is also a criminal act. Where do you "see" anything at all about how this relieves rioters from their own criminal responsibility?
Okay, so you are going down the path that I advised against.

If you're going to claim that mere enactment of a law against an action makes that action into a "criminal act" and that it is on that basis alone that said law has legitimacy, then all law has legitimacy, including laws which infringe upon fundamental rights. That is something I fundamentally disagree with.

But regardless, you misunderstand my meaning. My meaning is not with respect to rioters themselves, who are taking action, but with respect to the person whose speech the rioters are using as an excuse to riot. One person merely said things, but the others actually took action, and are claiming that the speech in question somehow "compelled" them to.

So in what way, aside from the mere enactment of law against it, does that somehow make the law against speech which "incites riots" anything other than an infringement upon free speech? If people are responsible for their own actions, and therefore the rioters themselves are responsible for their criminal acts, then how can the speech implicated by this law possibly be legitimately forbidden, since the speech in question does not itself cause harm and therefore does not itself represent a danger to the public? How is that law not an infringement upon free speech?



WOW!
Yes, indeed. And yet, that is precisely the basis upon which the opposition will argue that carry of firearms in public presents a danger to the public. I agree that such an argument should not prevail against the right to carry, and I also agree it should not prevail as a justification for the use of permits. But what I believe it should mean and what the courts think are very different. Seeing how "public safety" is the justification for laws such as those requiring permits for driving and for speech in certain public places, and the judiciary has bought that justification, it means that the argument that permits are off-limits to government as regards carry in public is, I think, likely to fall upon deaf ears in the judiciary.



WOW! I don't know to address something so disconnected from reality.
Look, you were the one who claimed that something being dangerous makes it illegal. I pointed out something dangerous, something that you cannot argue is not dangerous, and that is an existence proof that dangerousness does not automatically make something illegal.



So, can you now see how the Circuits have been able infringe upon "and bear" for all this time? Can you now see why we have to take the damn hint & present the Courts with a case that will make "and bear" core to the 2A?

I can.
Sure, I can see how that is necessary. I have not been arguing otherwise. Again, where you and I differ is in our expectations as regards the results. I expect the attempt to fail, because I believe we are dealing with a judiciary that has no intention of upholding the right to keep and bear arms outside the home.



If we think someone's effort to make LOC the Protected Right is flawed, then we should offer him help. If he wont accept our help, then should request for time at orals to present the case,. If we can't get that, we should file an amicus brief that helps the litigant make his case. It doesn't matter WHO makes the case for unlicensed LOC. What matters is that it gets made.
Yep, you'll get absolutely no disagreement from me on that whatsoever.



And just like that, the thread is unhijacked, in that it addresses the "quality" of the effort (IMHO).

TA DA!
LOL! Nicely done. :D





If you would stop "seeing" things not there & thereby going off into wild & goofy conclusions, we might be closer in our expectations.
My "wild and goofy" conclusions are merely those that result from applying logic to that which is before me.

Now, you may be right about how the judiciary is going to react to the case you're proposing, but I see no evidence in front of me that says why I should believe that, and plenty of evidence that says why I shouldn't.



Yes, the court have. The court could have done a lot of things. That the court didn't is not the fault of the court. The fault is OURS because we didn't bother to ask.
But we did ask whether or not carry of a firearm outside the home is a fundamental Constitutional right protected by the 2nd Amendment, and the court did not answer that question.



It isn't Goldilockian. This wasn't hair-splitting. Or technical. This was simple & basic pleading: There's only means of "and bear" possible. LOC is, according to Heller, the Protected Right. Please agree. This is what we should have done.
In what way is it not Goldlockian? In Woollard, we asked for a means of "and bear". We did not say which one. But instead of correctly saying that we have the right to openly carry in public, the court simply upheld the prohibiting law in full and left it at that.

But my Goldilocks observation is actually more about the Supreme Court than anything else. It has been presented with a variety of cases covering a variety of circumstances, and has refused to hear all of them. Their refusal to grant cert to Woollard was like a refusal to grant cert to Heller on the basis that Heller failed to challenge the permit requirement.



You mean, has SCOTUS ever granted relief that was not asked for? I'm not aware of them ever doing so. Maybe you can provide an example of them doing so? To justify our tactics in Woollard.
No, I mean, when has SCOTUS ever consistently refused cases involving a fundamental Constitutional right on the basis that the relief asked for wasn't exactly what SCOTUS intended to rule the scope of the right to be? Because your argument implies that this is precisely what SCOTUS is doing here.

kcbrown
12-19-2013, 2:51 PM
IMO he's not outlining reasons why we shouldn't ask SCOTUS for constitutional LOC.

He's outlining a prediction that SCOTUS will decline and their likely reasoning for doing so.

Exactly so. I'm also outlining why I believe, even if SCOTUS grants cert to such a case, I expect they'll uphold permit requirements.

Have you seen any errors in my logic? I don't see any myself, but it helps to have another set of eyes on these things.

Mulay El Raisuli
12-20-2013, 9:39 AM
Okay, so far so good, then.


Yeah, but then you ignore where I stand further down.


Maybe I think too much. I cannot say. But the problem here is that the things you say have logical implications, and I'm pointing them out. I'm also pointing out other areas of law in which the right in question was not treated in the way you appear to be expecting the courts to treat the right to keep and bear arms, and as such, my predictions on how the courts will treat the right to keep and bear arms are guided by that.


The problem is that you are A: not applying legal logic, B: not applying Constitutional logic, & C: asking me to answer a question the courts should answer. I.E., this is just one instance of you ignoring where I stand.


Agreed.


Then the next logical question follows: what forms of the right are protected and what forms are not?

And if other rights have forms that are not protected, what forms of the right to keep and bear arms are likewise not protected?


At the moment, what's protected is "in the home" as that's all that been declared (or so the Circuits have Ruled) as "core" to the 2A. All the rest has (at best) minimal protection.

Which is why I keep urging that we get on the stick & take the damn hint.


Okay, then I'll presume here that your answer to my question is "yes, the 7th Circuit rejected the 'dangerousness' argument". Then my next question logically follows: how is the law that was passed by the Illinois legislature consistent with Moore in light of the fact that it is predicated on the very dangerousness argument that the 7th Circuit rejected in Moore by following in SCOTUS' footsteps?


How is that law so predicated?


Heller said what arms are not protected by the 2nd Amendment: those arms that are not typically possessed by law-abiding citizens for lawful purposes.

It did not say what arms are protected. So if you limit Heller to its facts, then the only arm which we know to be protected is the handgun Dick Heller tried to get a permit for.

Given that, how is Heller useful in attacking the roster, if the right is not being infringed as long as some means of exercise of the right is available?


Constitutional review didn't begin & end with Heller. To say that grenades are not allowed is not the same as saying only .22s are.

As for the Roster, the Commerce Clause is (IMHO) the better tool to attack that.


Well, if you're going to go down that route, then you should be asking in what way travel is Constitutionally protected. It's not an enumerated right, so the Constitution is silent on the matter, save for inferences that can be drawn from the 9th Amendment.

If travel is a fundamental right, and driving is a form of travel, then it logically follows that driving is an exercise of a fundamental right. So either an exercise of a fundamental right is protected by the fact that it's a fundamental right, or it's not. You're arguing that this particular form of the exercise of the right is not protected. I agree that the courts have treated it that way.


As my stance is based on what the courts have done, this is all I need.


But that leads to a troubling conclusion: the mere statement by the judiciary that something is a fundamental right is not sufficient of itself to ensure that any given exercise of it is protected! You seem to have argued earlier that mere declaration of LOC as a Constitutionally protected right will be sufficient to insulate it against attempts to control it through permits. But since mere statement that something is a fundamental right is not sufficient to fully protect all exercise of that right, why should we believe that it'll be sufficient to protect some forms of it (bear, not keep) in some locations (public, not in the home) from control through permits?


Because that's what the courts have done. A preacher can't be required to get a permit to be a preacher. But a permit can be required to build a church. Is this less than perfect logic? Yeah. But, it's also reality & a reality-based guy like you should accept that & just deal. Right?


No, "amounts to" is a logical conclusion drawn from the presumptions. So either the logic itself is incorrect, or the presumptions are. Which bit of what I stated is incorrect, and why?


Anything that starts out with a claim that I said such-n-such, when I haven't actually said it.


Oh, really?

So was it necessary for SCOTUS to reach the conclusion they did by stating that their decision does not cast doubt on laws which impose upon the right in "sensitive places"? No, clearly it was not. The issue of "sensitive places" was not before them at all, not even indirectly. And yet they stated that anyway.

There are quite a few things that SCOTUS stated in Heller which were not strictly necessary for arriving at the conclusion they did, and yet, they expounded upon those things anyway.

So, therefore, your claim that Heller stated only what was necessary to reach the conclusion is false, and, therefore, my argument that their failure to discuss the issue of permits is troubling in light of that does carry some weight. But I guess we'll see how much, won't we?


This is another example of how you fool yourself. I never used the word "only" when referring to Heller. I stated that the subject of "and bear" was not necessary to the conclusion reached. If you're going to claim that you reach conclusions based on reality, you should stick to reality.


Okay, so you are going down the path that I advised against.

If you're going to claim that mere enactment of a law against an action makes that action into a "criminal act" and that it is on that basis alone that said law has legitimacy, then all law has legitimacy, including laws which infringe upon fundamental rights. That is something I fundamentally disagree with.

But regardless, you misunderstand my meaning. My meaning is not with respect to rioters themselves, who are taking action, but with respect to the person whose speech the rioters are using as an excuse to riot. One person merely said things, but the others actually took action, and are claiming that the speech in question somehow "compelled" them to.

So in what way, aside from the mere enactment of law against it, does that somehow make the law against speech which "incites riots" anything other than an infringement upon free speech? If people are responsible for their own actions, and therefore the rioters themselves are responsible for their criminal acts, then how can the speech implicated by this law possibly be legitimately forbidden, since the speech in question does not itself cause harm and therefore does not itself represent a danger to the public? How is that law not an infringement upon free speech?


The "mere enactment" is all the courts need. And since that's the context in which I write, all I need as well.


Yes, indeed. And yet, that is precisely the basis upon which the opposition will argue that carry of firearms in public presents a danger to the public. I agree that such an argument should not prevail against the right to carry, and I also agree it should not prevail as a justification for the use of permits. But what I believe it should mean and what the courts think are very different. Seeing how "public safety" is the justification for laws such as those requiring permits for driving and for speech in certain public places, and the judiciary has bought that justification, it means that the argument that permits are off-limits to government as regards carry in public is, I think, likely to fall upon deaf ears in the judiciary.


The difference being that driving is not a Constitutional Right. The permits that can be imposed on speech in public places are allowed NOT on the speech itself, but on the effect on the streets (or parks, or whatever), & CANNOT be imposed where there's no effect on streets (or parks, or whatever). I.E., differing levels of scrutiny are in play.


Look, you were the one who claimed that something being dangerous makes it illegal. I pointed out something dangerous, something that you cannot argue is not dangerous, and that is an existence proof that dangerousness does not automatically make something illegal.


And again, I never claimed any such thing.


Sure, I can see how that is necessary. I have not been arguing otherwise. Again, where you and I differ is in our expectations as regards the results. I expect the attempt to fail, because I believe we are dealing with a judiciary that has no intention of upholding the right to keep and bear arms outside the home.


And the reason I expect better is because we have yet to place a proper case before any of the Circuits.


Yep, you'll get absolutely no disagreement from me on that whatsoever.


From your lips to the "right people's" ears.


LOL! Nicely done. :D


:)


My "wild and goofy" conclusions are merely those that result from applying logic to that which is before me.

Now, you may be right about how the judiciary is going to react to the case you're proposing, but I see no evidence in front of me that says why I should believe that, and plenty of evidence that says why I shouldn't.


No. You're not applying legal or Constitutional logic (which is before you) to how the courts are likely to react.


But we did ask whether or not carry of a firearm outside the home is a fundamental Constitutional right protected by the 2nd Amendment, and the court did not answer that question.


No, we asked for a permit. That would include carrying concealed. That the permit would also allow carrying openly would have been a factor ONLY IF we had made it one. We didn't. My conclusion (and here I'll state that it is ONLY my conclusion) is that this was all the 4th needed to weasel out & kick the issue upstairs to SCOTUS.


In what way is it not Goldlockian? In Woollard, we asked for a means of "and bear". We did not say which one. But instead of correctly saying that we have the right to openly carry in public, the court simply upheld the prohibiting law in full and left it at that.

But my Goldilocks observation is actually more about the Supreme Court than anything else. It has been presented with a variety of cases covering a variety of circumstances, and has refused to hear all of them. Their refusal to grant cert to Woollard was like a refusal to grant cert to Heller on the basis that Heller failed to challenge the permit requirement.


As for SCOTUS, no, they have NOT been presented with a "variety" of cases. They've been presented variations on the same theme: Shall Issue CCW should be the protected Right. The Circuits have shot them all down & SCOTUS hasn't said they were wrong to do so. Because they weren't wrong to do so. CONCEALED CARRY ISN'T THE PROTECTED RIGHT. It isn't now. It isn't going to be.


No, I mean, when has SCOTUS ever consistently refused cases involving a fundamental Constitutional right on the basis that the relief asked for wasn't exactly what SCOTUS intended to rule the scope of the right to be? Because your argument implies that this is precisely what SCOTUS is doing here.


No, my actual argument is that we have yet to present SCOTUS with a case that actually involves a "fundamental Constitutional right."


The Raisuli

strongpoint
12-20-2013, 11:48 AM
In what way is it not Goldlockian? In Woollard, we asked for a means of "and bear". We did not say which one.

the truly goldilockian thing to do would be to ask for three bears.

kcbrown
12-20-2013, 5:11 PM
The problem is that you are A: not applying legal logic,
That's correct. I'm applying real logic. "Legal" logic appears to be unformulated, unspecified, and arbitrary. It appears to shift on the whims of the court invoking it. I have not been able to discern any consistent patterns about it, save that it generally appears to support whatever conclusion the court in question wishes to reach.

If that is the "logic" you are applying, then it is little wonder that this debate is going the way it is: I'm using formal logic and you're not! I am deriving conclusions, while you are merely asserting them (something the courts like to do. It is not a compliment).



B: not applying Constitutional logic,
What is "Constitutional logic"?



& C: asking me to answer a question the courts should answer. I.E., this is just one instance of you ignoring where I stand.
But where you stand is not limited to the set of actions we should be taking, but also includes stated expectations as regards the outcome. I do not dispute the actions -- I agree that we should be taking those actions as part of a more comprehensive approach. But I do dispute your stated expectations.


Look, you can assert whatever you like, and I can do the same. But that doesn't really get us anywhere, because real conclusions can't be drawn from mere assertions unless one applies a set of conclusion-deriving rules to those assertions, such as logic. That is what I'm doing here. It appears to not be what you're doing. Rather, you appear to be asserting things and then, when I show the logical implications of those assertions, saying that those logical implications are not what you said, as if formal logic were entirely meaningless here.


My stance is based on evidence and logic. I try to avoid merely asserting things, and instead to use evidence as my fact base and formal logic as the mechanism from which I derive conclusions, since those are the methods of science, the human endeavor which has been tailored over hundreds of years for the explicit purpose of figuring out how the real world works and how to predict things in/about it.

Is it possible that you'll turn out to be correct and I'll be incorrect? Of course. But this is the real world we live in, and I'm applying the tools that have been proven to work as regards predicting the real world. Ignoring the results of that is probably unwise. But, of course, you're free to do so anyway. :D



At the moment, what's protected is "in the home" as that's all that been declared (or so the Circuits have Ruled) as "core" to the 2A. All the rest has (at best) minimal protection.
No kidding. I am not talking about what is currently considered protected, but what the judiciary can be convinced is protected, how it's protected, and why it's protected.

All the arguments about "dangerousness" and such are related to that.



Which is why I keep urging that we get on the stick & take the damn hint.
I'm curious: what will your response be if the courts behave as I predict on that and not as you predict? What will you say if SCOTUS refuses cert to Bonidy?



How is that law so predicated?
Because that law is a system of permits governing who can and cannot legally carry in public. But worse, open carry is mostly forbidden if not forbidden entirely.

Hence, if it is your claim that LOC is the right and that permits cannot be used to govern the right, then the law in Illinois fails to satisfy Moore because, at a minimum, it still infringes upon the right and because, even if concealed carry were the right, it governs it through the use of permits on the basis of "public safety", i.e. "dangerousness".

So: I see no way that the law passed by the Illinois legislature can possibly be consistent with Moore if you are correct in your assertion that open carry is the right and that the right, whatever it may be, cannot be controlled through permits.



Constitutional review didn't begin & end with Heller. To say that grenades are not allowed is not the same as saying only .22s are.
But I was not talking about grenades there. I was, and am, talking about handguns specifically. If the right is not infringed when at least one form or means of exercise of the right remains uninfringed, then it follows that the right to own and possess a handgun is not infringed as long as there is at least one make and model of handgun that one is not hindered from owning and possessing. Right?



As my stance is based on what the courts have done, this is all I need.
In what way is your stance based on what the courts have done, when the courts have upheld restrictions (or, at least, the use of governing permits) on all manner of rights whenever the opposition has shown that there is a "public safety" element involved?



Because that's what the courts have done. A preacher can't be required to get a permit to be a preacher. But a permit can be required to build a church. Is this less than perfect logic? Yeah. But, it's also reality & a reality-based guy like you should accept that & just deal. Right?
I would agree, except that reality is, firstly, that the courts have been restricting the right to keep and bear arms in every way possible save for situations that match the facts of Heller (even, in Osterweil v Bartlett, going so far to say that it is not operative in a secondary home!), and, secondly, that they are split on even whether the Second Amendment is operative outside the home at all, not to mention the degree to which it extends outside the home when they agree it extends there at all, and, finally, that even when they claim it extends outside the home, their treatment of it is such that the end result is the same as if it did not.

So the reality supports my position much more than it does yours, because my position is that the attempt you're pinning all your hopes upon will fail utterly. But then, I believe that to be the case for any and all attempts to secure the right outside the home. The approach you're favoring here is not special in that regard.


Finally, there is one consistent truth to the forms of exercise of rights that the courts have struck down the use of permits to govern: there was no "public safety" justification shown by the opposition. But I have already outlined the "public safety" argument that the opposition will use to justify the use of permits to govern carry in public. Now, the courts might not buy that argument, but that such an argument exists at all is cause for concern, precisely because the courts have been quite consistent (but not entirely so) as regards treating fundamental rights as being subservient to "public safety".



I never used the word "only" when referring to Heller. I stated that the subject of "and bear" was not necessary to the conclusion reached. If you're going to claim that you reach conclusions based on reality, you should stick to reality.
You're not getting my argument here at all. I'll try to state it plainly.



Heller covered much more than what was strictly necessary to reach its conclusions, including things that were not even indirectly touched upon by the arguments before the Court at the time.
Heller did not cover the issue of permits at all, even though that issue was before them (though not asked for in the prayer for relief).
Therefore, there is reason to believe that the Supreme Court will uphold the use of permits to govern RKBA in the home, since it is clearly capable of opining on matters not directly before it if it chooses to, and it chose to remain silent on permits. In fact, it's worse than that: the Court explicitly asked plaintiffs during orals whether they were challenging the permit requirement. Why would the Court bother to ask such a thing if it was already intent on striking down the permit requirement? Just because plaintiffs don't ask for some specific relief doesn't mean the Court can't grant that relief anyway.
Therefore, since the right to keep and bear arms outside the home is not "most acute", the Supreme Court is more likely to uphold the use of permits to govern the right outside the home than inside, and the foregoing establishes that there is a reasonable chance that it will uphold the use of permits to govern the right inside the home.




The "mere enactment" is all the courts need. And since that's the context in which I write, all I need as well.
Oh, is that so? Then the mere enactment of a law against carry in public is all you need to conclude that carry in public is a criminal act, right?

In what way does that make the fact that something is a "criminal act" in any way "special" as regards whether the law in question is an infringement upon a right?



The difference being that driving is not a Constitutional Right.
So which part of that is what matters here? That there's a right involved, or that it is enumerated in the Constitution?



The permits that can be imposed on speech in public places are allowed NOT on the speech itself, but on the effect on the streets (or parks, or whatever), & CANNOT be imposed where there's no effect on streets (or parks, or whatever). I.E., differing levels of scrutiny are in play.
So what matters is the effect on the public, right?



And again, I never claimed any such thing.
Fine, I'll drop this, since you are now saying that you didn't claim something that you directly claimed:


Being dangerous is illegal.


Kinda hard to argue against someone who insists he didn't say what he directly said...



And the reason I expect better is because we have yet to place a proper case before any of the Circuits.
Well, Woollard was as close as it has gotten to that, and apparently it wasn't "close enough". It is for this reason that I call the courts "Goldilockian": if what we put before them is too much or not enough, then they'll rule against us in the way they have. What we put before them has to be "just right".



No, we asked for a permit.
We didn't challenge the permit requirement in Heller and won anyway. Why should we have expected to fail in Woollard on the basis that we asked for a permit (doing otherwise would have required that we challenge the permit scheme), and why should we conclude now that it is for that reason that it was denied cert?



That would include carrying concealed. That the permit would also allow carrying openly would have been a factor ONLY IF we had made it one. We didn't.
No, we didn't. We made neither concealed carry nor open carry a factor in Woollard. We simply asked for "and bear", and left it for the court to decide what "and bear" means. And instead of deciding that "and bear" exists outside the home and means open carry, the court dispensed with it entirely, all the while claiming that it was presuming that "and bear" existed for the purpose of examining the law in question.

Why do you keep insisting that Woollard was, in any way, about concealed carry when it wasn't about any specific form of carry at all?



My conclusion (and here I'll state that it is ONLY my conclusion) is that this was all the 4th needed to weasel out & kick the issue upstairs to SCOTUS.
And how does this somehow make the courts anything other than Goldilockian?



As for SCOTUS, no, they have NOT been presented with a "variety" of cases. They've been presented variations on the same theme: Shall Issue CCW should be the protected Right.
Except for Woollard, which was silent on that matter.



CONCEALED CARRY ISN'T THE PROTECTED RIGHT. It isn't now. It isn't going to be.
No, but some form of carry (open, as it happens) is, right?

Why is the Supreme Court unable to or unwilling to simply come out and say that open carry is the right when presented with a case (Woollard) that enables it to do so? It is because they didn't that I believe they are done with us.

kcbrown
12-20-2013, 7:18 PM
The problem is that you are A: not applying legal logic, B: not applying Constitutional logic, & C: asking me to answer a question the courts should answer. I.E., this is just one instance of you ignoring where I stand.


I'll be honest. I'm awfully tempted to end the debate right here, something that troubles me greatly because I value rational discourse a great deal.

Why?

Because your position (on the expected outcome, not necessarily on the actions that must be taken) is irrational, and your arguments are likewise irrational. You are arguing from assertion, and insisting, when faced with the logical consequences of your assertions, that you are not stating that which logically follows from those assertions.

Your position is (for lack of a better word) a religious one, not a rational one. And now, in the above, you are insisting that I should apply whatever irrationality you appear to be applying to the arguments in question.

That is not rational discourse. Rational discourse has formal logic (a.k.a. rationality) as its central component. This appears to not be such.


While that doesn't automatically make you incorrect, it does make it pointless to debate you, because debate with someone who insists on adhering to a position despite it being logically contradictory is literally impossible. All one can do is show that the position in question is logically contradictory and leave it at that.

I probably haven't done that terribly well, but that was not my goal when I started out, because I started with the presumption that your position was a rational one, malleable through the application of logic. I see now that I was incorrect in that assumption.


I won't make that mistake again.

:mad:

curtisfong
12-21-2013, 11:22 AM
IMO the problem he is basing his arguments on things he feels the court MUST do, when

1) there is no evidence that anything he suggests can legally compel the court to do what he says they will do

2) history shows no evidence that the court was ever compelled to do that what he suggests they will do.

Unless, of course, he isn't saying they're compelled to follow his predictions, and he just feels the odds are good that that they will.

The latter case is not logic, it is just palm reading, and claiming that such a position is an iron clad sure thing is utter foolishness.

kcbrown
12-21-2013, 1:26 PM
IMO the problem he is basing his arguments on things he feels the court MUST do, when


The problems go deeper than that.



1) there is no evidence that anything he suggests can legally compel the court to do what he says they will do
Worse, there is evidence to suggest that they cannot legally compel the court in such a fashion.

While that evidence is circumstantial, in that the arguments he's proposing be made have not been made in exactly the way he proposes, it does exist.



2) history shows no evidence that the court was ever compelled to do that what he suggests they will do.
And it shows, instead, that nothing compels courts to do anything at all, really, and that what a court does is determined almost entirely by the judges therein.



Unless, of course, he isn't saying they're compelled to follow his predictions, and he just feels the odds are good that that they will.
That could easily be the case, of course, but the problem is that there's no real evidence to support it and it seems to me that there is contraindicating evidence.

Worst of all, however, is the fact that if LOC in public is declared a fundamental right by the Supreme Court (i.e., if he actually proves right on that prediction), the very first thing the losing government will do is enact a law to control LOC through permits, probably through the same mechanism that is used to control access to concealed carry, and the end result will be factually identical (or nearly so) to Woollard, a case that the Supreme Court turned its back on. That means there is already evidence that the Supreme Court will ignore the resulting case.

His answer to that is permits cannot be used to control access to a fundamental right, when they are used to control access to a fundamental right (or particular exercises thereof) in cases where public safety is implicated by such access. The evidence strongly shows that fundamental rights generally lose to "public safety". His answer to that is to handwave the problem away, by decreeing that the permits are not controlling access to the right but instead are controlling something else, as if it's perfectly fine for a fundamental right to be "collateral damage" to the methods the government chooses to use to control those other things. In the alternative, he claims that the particular exercise of the right (driving, for instance) is not, itself, a right, as if there is some magic difference between the right and particular exercises thereof (and while the courts have indeed treated driving as if it were a privilege, that only weakens his case for carry in public being immune to control through permits, as LOC in public is a particular exercise of "and bear", not the entirety of it). He further goes on to claim that there is a difference between a fundamental right and a fundamental Constitutional right, when the courts have actually been kinder to some of the former (e.g., abortion) than some of the latter (e.g., speech).

He fails to realize that every argument he puts forth in defense of the existing infringements of other rights (arguments that I do not necessarily believe he personally buys, but it's possible he does) are, since they are arguments the judiciary has bought with respect to those infringements, arguments the judiciary will give great weight to with respect to the right to openly carry firearms in public. Those things weaken his position, rather than strengthening it.

There is no real consistency in the approach the courts take to the issue of rights, Constitutional or otherwise. The degree to which they protect a right appears to be primarily dependent upon how much they like the right, and little else. And the right to keep and bear arms is one they hate much more than any other, even more than civil rights for blacks, as proven by their own actions.



The latter case is not logic, it is just palm reading, and claiming that such a position is an iron clad sure thing is utter foolishness.That is especially true in light of the above.

curtisfong
12-21-2013, 5:04 PM
There is no real consistency in the approach the courts take to the issue of rights, Constitutional or otherwise.

Yes. This is why making predictions based on logical or legal consistency are pointless.

Although there is another kind of consistency the courts follow: that of judges' personal biases.

You can definitely make accurate predictions based on that.

kcbrown
12-21-2013, 5:25 PM
Yes. This is why making predictions based on logical or legal consistency are pointless.

Although there is another kind of consistency the courts follow: that of judges' personal biases.

You can definitely make accurate predictions based on that.

Precisely. Were that not the case, the political party to which they belong, and the President who nominated them for their position, would be essentially irrelevant. But instead, it is used as a major predictor for where the judge will stand on a given issue, even those involving fundamental rights. This is why it is universally recognized that the President who is in power at the time of nomination matters a great deal.

That is about as close as it gets to incontrovertible proof that the decisions judges issue are based primarily on their own personal biases, as their personal biases and their political affiliation tend to be strongly linked for those things on which the political parties differ significantly (such as the right to keep and bear arms).

And while it is not a perfect predictor, that is only because it is currently impossible to crawl into the head of another. One can only examine the actions someone has taken and derive from that their viewpoints.


Hence, those who claim that the decisions issued by the judiciary are the result of an unbiased look at the law are not only incorrect, they are willfully so if they continue to adhere to that viewpoint when presented with the above.


As always, there are exceptional cases. There are some judges who actually do set aside their biases to at least some degree (e.g., Posner on the 7th Circuit). But the evidence I've seen thus far convinces me that such people really are exceptional, and that judges who decide primarily based on their own biases are the ones who comprise the majority of judges in the land. And that really should not come as any surprise. People who are able to suppress the temptation to use their power for their own ends are exceptional. This has always been so, and is something that the founders of the country were keenly aware of. It's why they created a representative republic with competing branches of government, and not a monarchy.

Mulay El Raisuli
12-22-2013, 3:18 PM
That's correct. I'm applying real logic. "Legal" logic appears to be unformulated, unspecified, and arbitrary. It appears to shift on the whims of the court invoking it. I have not been able to discern any consistent patterns about it, save that it generally appears to support whatever conclusion the court in question wishes to reach.

If that is the "logic" you are applying, then it is little wonder that this debate is going the way it is: I'm using formal logic and you're not! I am deriving conclusions, while you are merely asserting them (something the courts like to do. It is not a compliment).


And that would be why you are unable to understand what I say to you. Courts use their own logic. I understand that. This is why you can't understand why I'm not making mere assertions.


What is "Constitutional logic"?


The logic courts use when deciding Constitutional issues.


But where you stand is not limited to the set of actions we should be taking, but also includes stated expectations as regards the outcome. I do not dispute the actions -- I agree that we should be taking those actions as part of a more comprehensive approach. But I do dispute your stated expectations.


The words I keep using are "We should take the damn hint." I expect that the 10th will act as they hinted they would. I expect SCOTUS to do the same thing. Is this really beyond you????


Look, you can assert whatever you like, and I can do the same. But that doesn't really get us anywhere, because real conclusions can't be drawn from mere assertions unless one applies a set of conclusion-deriving rules to those assertions, such as logic. That is what I'm doing here. It appears to not be what you're doing. Rather, you appear to be asserting things and then, when I show the logical implications of those assertions, saying that those logical implications are not what you said, as if formal logic were entirely meaningless here.


Firstly, if you're not using the logic of the people being discussed, you're a fool.

Secondly, if you make a claim that I "said" something when I didn't actually say it, you're dishonest.


My stance is based on evidence and logic. I try to avoid merely asserting things, and instead to use evidence as my fact base and formal logic as the mechanism from which I derive conclusions, since those are the methods of science, the human endeavor which has been tailored over hundreds of years for the explicit purpose of figuring out how the real world works and how to predict things in/about it.

Is it possible that you'll turn out to be correct and I'll be incorrect? Of course. But this is the real world we live in, and I'm applying the tools that have been proven to work as regards predicting the real world. Ignoring the results of that is probably unwise. But, of course, you're free to do so anyway. :D


Unwise is ignoring the reality that we're not discussing the real world. We're discussing the strange & wonderful land of the courts.


No kidding. I am not talking about what is currently considered protected, but what the judiciary can be convinced is protected, how it's protected, and why it's protected.

All the arguments about "dangerousness" and such are related to that.


Untrue. Your question was, "Then the next logical question follows: what forms of the right are protected and what forms are not?

And if other rights have forms that are not protected, what forms of the right to keep and bear arms are likewise not protected?"

Which I answered.


I'm curious: what will your response be if the courts behave as I predict on that and not as you predict? What will you say if SCOTUS refuses cert to Bonidy?


Presuming we've taken the damn hint & gotten a clear-cut Ruling that LOC is NOT the Protected Right, I'll agree with you that we've lost the battle & that's now time to hit the reset button. Either Con-Con II or Civil War II.


Because that law is a system of permits governing who can and cannot legally carry in public. But worse, open carry is mostly forbidden if not forbidden entirely.

Hence, if it is your claim that LOC is the right and that permits cannot be used to govern the right, then the law in Illinois fails to satisfy Moore because, at a minimum, it still infringes upon the right and because, even if concealed carry were the right, it governs it through the use of permits on the basis of "public safety", i.e. "dangerousness".

So: I see no way that the law passed by the Illinois legislature can possibly be consistent with Moore if you are correct in your assertion that open carry is the right and that the right, whatever it may be, cannot be controlled through permits.


Unless the 7th doesn't agree with me. Which is part of the problem as I have defined it.


But I was not talking about grenades there. I was, and am, talking about handguns specifically. If the right is not infringed when at least one form or means of exercise of the right remains uninfringed, then it follows that the right to own and possess a handgun is not infringed as long as there is at least one make and model of handgun that one is not hindered from owning and possessing. Right?


I see that a simple analogy is beyond you. I'll try again. To say that .22s are protected doesn't mean that .38s aren't protected.


In what way is your stance based on what the courts have done, when the courts have upheld restrictions (or, at least, the use of governing permits) on all manner of rights whenever the opposition has shown that there is a "public safety" element involved?


In the way that the courts have held that driving isn't a Constitutional Right.


I would agree, except that reality is, firstly, that the courts have been restricting the right to keep and bear arms in every way possible save for situations that match the facts of Heller (even, in Osterweil v Bartlett, going so far to say that it is not operative in a secondary home!), and, secondly, that they are split on even whether the Second Amendment is operative outside the home at all, not to mention the degree to which it extends outside the home when they agree it extends there at all, and, finally, that even when they claim it extends outside the home, their treatment of it is such that the end result is the same as if it did not.


You have perfectly captured the reason for us to take the damn hint.


So the reality supports my position much more than it does yours, because my position is that the attempt you're pinning all your hopes upon will fail utterly. But then, I believe that to be the case for any and all attempts to secure the right outside the home. The approach you're favoring here is not special in that regard.


No, the reality (that you keep ignoring) is that the 10th Circuit (and SCOTUS) have given us a real strong hint as to what approach will work. My suggested approach is that we should at least try it.


Finally, there is one consistent truth to the forms of exercise of rights that the courts have struck down the use of permits to govern: there was no "public safety" justification shown by the opposition. But I have already outlined the "public safety" argument that the opposition will use to justify the use of permits to govern carry in public. Now, the courts might not buy that argument, but that such an argument exists at all is cause for concern, precisely because the courts have been quite consistent (but not entirely so) as regards treating fundamental rights as being subservient to "public safety".


The only reason to be concerned over an argument is if it wins. If I'm right, it won't.


The Raisuli

Mulay El Raisuli
12-22-2013, 3:21 PM
You're not getting my argument here at all. I'll try to state it plainly.



Heller covered much more than what was strictly necessary to reach its conclusions, including things that were not even indirectly touched upon by the arguments before the Court at the time.
Heller did not cover the issue of permits at all, even though that issue was before them (though not asked for in the prayer for relief).
Therefore, there is reason to believe that the Supreme Court will uphold the use of permits to govern RKBA in the home, since it is clearly capable of opining on matters not directly before it if it chooses to, and it chose to remain silent on permits. In fact, it's worse than that: the Court explicitly asked plaintiffs during orals whether they were challenging the permit requirement. Why would the Court bother to ask such a thing if it was already intent on striking down the permit requirement? Just because plaintiffs don't ask for some specific relief doesn't mean the Court can't grant that relief anyway.
Therefore, since the right to keep and bear arms outside the home is not "most acute", the Supreme Court is more likely to uphold the use of permits to govern the right outside the home than inside, and the foregoing establishes that there is a reasonable chance that it will uphold the use of permits to govern the right inside the home.



First, I'll remind that my comment was about your dishonesty on making a claim that I said something I didn't say.

Now then, #1 is true & never disputed by me.

#2 is untrue.

#3 is based on a false "therefore" & an assumption about why a question was unasked (and you know what people say about that).

#4. In spite of that, SCOTUS could ignore precedent & impose permits for LOC. I just don't think it likely.


Oh, is that so? Then the mere enactment of a law against carry in public is all you need to conclude that carry in public is a criminal act, right?


So far! Which is why we need to take the damn hint. So that The State can't use "mere enactment" to ban LOC anymore.


In what way does that make the fact that something is a "criminal act" in any way "special" as regards whether the law in question is an infringement upon a right?


What?!


So which part of that is what matters here? That there's a right involved, or that it is enumerated in the Constitution?


"Driving" is neither. So, this is a stupid question.


So what matters is the effect on the public, right?


WOW! No. What matters is what has Constitutional Protection & what doesn't.


Fine, I'll drop this, since you are now saying that you didn't claim something that you directly claimed:



Kinda hard to argue against someone who insists he didn't say what he directly said...


You're not providing a FULL quote. This is dishonest. What was the subject? What was the level of scrutiny being discussed?


Well, Woollard was as close as it has gotten to that, and apparently it wasn't "close enough". It is for this reason that I call the courts "Goldilockian": if what we put before them is too much or not enough, then they'll rule against us in the way they have. What we put before them has to be "just right".


There's only two ways to carry. We keep putting the one not protected in front of the courts. It isn't a matter of being "just right." It's a matter of us putting completely wrong in front of the courts.


We didn't challenge the permit requirement in Heller and won anyway. Why should we have expected to fail in Woollard on the basis that we asked for a permit (doing otherwise would have required that we challenge the permit scheme), and why should we conclude now that it is for that reason that it was denied cert?


We didn't expect Woollard to fail. Clearly you "see" me saying otherwise. This would not be reality based. The 'why' is as before.


No, we didn't. We made neither concealed carry nor open carry a factor in Woollard. We simply asked for "and bear", and left it for the court to decide what "and bear" means. And instead of deciding that "and bear" exists outside the home and means open carry, the court dispensed with it entirely, all the while claiming that it was presuming that "and bear" existed for the purpose of examining the law in question.


The first half explains why/how we erred in our tactics. The second half explains (yet again) that we need to take the damn hint. So that the Circuits can't play this game.


Why do you keep insisting that Woollard was, in any way, about concealed carry when it wasn't about any specific form of carry at all?


Because concealed carry was a part of the permit sought, & because we didn't say that a permit for open carry would have been OK by us. To repeat, it ain't about LOC unless we say that it is.


And how does this somehow make the courts anything other than Goldilockian?


See above.


Except for Woollard, which was silent on that matter.


Which was the error.


No, but some form of carry (open, as it happens) is, right?


Not "some form" is. LOC is. Such is the hint from SCOTUS & the 10th Circuit.


Why is the Supreme Court unable to or unwilling to simply come out and say that open carry is the right when presented with a case (Woollard) that enables it to do so? It is because they didn't that I believe they are done with us.


Maybe it's because Woollard wasn't seen to be about LOC?


The Raisuli

Mulay El Raisuli
12-22-2013, 3:55 PM
I'll be honest. I'm awfully tempted to end the debate right here, something that troubles me greatly because I value rational discourse a great deal.

Why?

Because your position (on the expected outcome, not necessarily on the actions that must be taken) is irrational, and your arguments are likewise irrational. You are arguing from assertion, and insisting, when faced with the logical consequences of your assertions, that you are not stating that which logically follows from those assertions.

Your position is (for lack of a better word) a religious one, not a rational one. And now, in the above, you are insisting that I should apply whatever irrationality you appear to be applying to the arguments in question.

That is not rational discourse. Rational discourse has formal logic (a.k.a. rationality) as its central component. This appears to not be such.


While that doesn't automatically make you incorrect, it does make it pointless to debate you, because debate with someone who insists on adhering to a position despite it being logically contradictory is literally impossible. All one can do is show that the position in question is logically contradictory and leave it at that.

I probably haven't done that terribly well, but that was not my goal when I started out, because I started with the presumption that your position was a rational one, malleable through the application of logic. I see now that I was incorrect in that assumption.


I won't make that mistake again.

:mad:


No, you don't value rational debate, in that you don't value HONEST debate. If you want to claim that my stated position is inconsistent because it fails to conform in some way to some other point, that's just fine. You can feel free to point out inconsistencies all day long.

But when you claim that I have said something that I have not actually said, then you are dishonest. You lie. There is no other way to put it.

You also lie when you say your base your arguments on reality. "Reality" does NOT include what is NOT said.

But it isn't just that you're dishonest. You also fool yourself. By seeing that which is not there, you also ignore what is there. I "expect" an outcome from the 10th Circuit based on what they actually said. Could I be wrong? Sure. But based on the reality of what they did say, I don't think so. You think that a "religious" belief? Your choice. But don't claim that your disputation is based on reality.

Rational discourse also includes recognition of how the subject of discussion behaves. If the subject doesn't always use formal logic (as the courts don't necessarily do so), the assigning of the formal rules of logic to the subject is stupid. Add in that you think that what "logically follows" a statement is an actual statement, this is doubly so.

Whether it is pointless to debate me is hard to say since you have yet to try.


The Raisuli

Mulay El Raisuli
12-22-2013, 4:21 PM
IMO the problem he is basing his arguments on things he feels the court MUST do, when

1) there is no evidence that anything he suggests can legally compel the court to do what he says they will do

2) history shows no evidence that the court was ever compelled to do that what he suggests they will do.

Unless, of course, he isn't saying they're compelled to follow his predictions, and he just feels the odds are good that that they will.

The latter case is not logic, it is just palm reading, and claiming that such a position is an iron clad sure thing is utter foolishness.


I've never said that the courts are "compelled" to do anything (other than follow directives from SCOTUS).

This discussion isn't about "the courts." My claim is about what the 10th Circuit (and SCOTUS) will do if we present Bonidy to them in a certain way. This isn't palm reading.

Further, I never (ever) said that this is "iron clad." Which is why my position isn't utter foolishness.

My position is that trying to make Shall Issue CCW the Constitutional Right will continue to fail. My position that we have have a District Court flat-out saying that Open Carry is the protected Right. My position is that (given the dicta in Peterson) the 10th Circuit is likely to Rule likewise. My position is that (given the references to Nunn & the other 19th Century carry cases in Heller) it is likely that SCOTUS will also Rule that Open Carry is the Protected Right. My position is that (as permits to exercise Constitutional Rights are anathema to the Constitution) unlicensed LOC can be established as the Constitutional Right. My position is that this will be a Real Good Thing.

Is the issue clear & unambiguous? No.

Are there other cases in play? Sure.

Could I be wrong? Sure.


The Raisuli

solanoslough
12-22-2013, 7:06 PM
To repeat, it ain't about LOC unless we say that it is.







Woollard did not ask for open carry because open carry of long arms is permitted. The allowance for non permitted open carry was explained by the state in their briefs and that is the reason why the decision in Woollard was reversed and certiorari denied.

The same happened with Kachalski. The same with Peterson. The same with Peruta (although now the circumstances have changed).

kcbrown
12-22-2013, 7:12 PM
No, you don't value rational debate, in that you don't value HONEST debate. If you want to claim that my stated position is inconsistent because it fails to conform in some way to some other point, that's just fine. You can feel free to point out inconsistencies all day long.

But when you claim that I have said something that I have not actually said, then you are dishonest. You lie. There is no other way to put it.

You also lie when you say your base your arguments on reality. "Reality" does NOT include what is NOT said.


In the real world, when A logically implies B (i.e., when A -> B) and you say A, you are also saying B. That's because in the real world, formal logic is controlling (to the same degree as the laws of physics, at any rate, as both are predictors of the real world).

But I will try to be more explicit about such things in the future.



Rational discourse also includes recognition of how the subject of discussion behaves. If the subject doesn't always use formal logic (as the courts don't necessarily do so), the assigning of the formal rules of logic to the subject is stupid. Add in that you think that what "logically follows" a statement is an actual statement, this is doubly so.
I agree with you if what is being discussed is strictly within the realm of the environment in which the subject is operating. But here, we're not merely discussing what the subject has done, we're discussing the options available to the subject and why they are available. Furthermore, some of what we've discussed extends beyond the realm of mere legalities.

Which is to say, the problem here is that the "logic" being applied by the subject has resulted in multiple decisions that are inconsistent with each other at nearly every level. Our disagreement is with respect to which of those decisions will wind up being "controlling" as regards the hypothetical LOC case the Supreme Court will be presented with, and the consequences thereof.

My point is simply this: the very fact that the same entity (the Supreme Court) has produced multiple decisions that are inconsistent with each other at a fundamental level (to the point that even the enumeration of the right in the Constitution, or lack of such enumeration, is not a useful predictor of how the Court will treat the right. See abortion as an example of a right that the Court treats as even more sacrosanct than speech) means that any claim about how the Court will treat the right under consideration has to give greatest consideration to, firstly, cases it has already considered that involve that right (you've done well on that as regards Heller, except perhaps with respect to the problem of permits) and, secondly, cases it has refused to consider that involve that right (something you've essentially handwaved away). When one does that, the most logical conclusion is that the Court is more likely to uphold permits than not, at least as regards exercise of the right in public, and is also reasonably likely to deny cert to a carry case, even if it is a pure LOC case.

You could still be right. I hope you are right, because all the other approaches are most certainly failing. But the argument you present in support of your position is not compelling in the face of the evidence I see before me. That in no way implies that we shouldn't try the approach you advocate -- we most certainly should -- but it does mean that we shouldn't expect it to succeed.

kcbrown
12-22-2013, 7:22 PM
My position is that trying to make Shall Issue CCW the Constitutional Right will continue to fail. My position that we have have a District Court flat-out saying that Open Carry is the protected Right. My position is that (given the dicta in Peterson) the 10th Circuit is likely to Rule likewise. My position is that (given the references to Nunn & the other 19th Century carry cases in Heller) it is likely that SCOTUS will also Rule that Open Carry is the Protected Right. My position is that (as permits to exercise Constitutional Rights are anathema to the Constitution) unlicensed LOC can be established as the Constitutional Right. My position is that this will be a Real Good Thing.


This is such an incredibly good statement of your position that I'm not going to bother going back to the blow-by-blow we were engaged in before, and instead respond to this. This is great stuff here, sir!


I fully agree with you as regards the 10th Circuit. While I think there is a small chance they'll refuse to uphold LOC as the right, I think the most probable outcome is the one you state. I've not seen courts anywhere else call out open carry as the right.


Going stepwise on the rest:


My position is that (given the references to Nunn & the other 19th Century carry cases in Heller) it is likely that SCOTUS will also Rule that Open Carry is the Protected Right.
If SCOTUS grants cert to the case, I agree with you here. But I am deeply skeptical that they will grant cert to that case, to the extent that it is my belief that they almost certainly will not.



My position is that (as permits to exercise Constitutional Rights are anathema to the Constitution) unlicensed LOC can be established as the Constitutional Right.
Oh. If this is the extent of your position on permits, then you have my apologies. I agree that unlicensed LOC can be established as the Constitutional Right, meaning that I agree that it is possible. If that is the extent of your position, then I have no quarrel with you on this.

However, I nonetheless think it's unlikely that we'll succeed in that attempt. It must be made, but my expectation is that the attempt to do so is even more likely to fail, by a rather large margin, than the attempt to establish the right to carry in the first place, at least at the Supreme Court level.


To whatever degree I've misunderstood your meaning and mangled your words previously, you have my heartfelt apologies, sir!

Mulay El Raisuli
12-27-2013, 3:23 PM
In the real world, when A logically implies B (i.e., when A -> B) and you say A, you are also saying B. That's because in the real world, formal logic is controlling (to the same degree as the laws of physics, at any rate, as both are predictors of the real world).

But I will try to be more explicit about such things in the future.

But that's not so. Lawyers & judges live in their own damn world. Very little of anything can be really rated as "controlling" on those people. That's why while I realize there are BIG inconsistencies in what they do. AND in what my predictions about what they'll do (or not do). All I can do is read the tea leaves and make (what i hope is) an educated guess. Which is why I get a teched at people saying I "said" something that I didn't actually say. I realize that it should equal that, but in the real world of lawyers & judges, it just doesn't.


I agree with you if what is being discussed is strictly within the realm of the environment in which the subject is operating. But here, we're not merely discussing what the subject has done, we're discussing the options available to the subject and why they are available. Furthermore, some of what we've discussed extends beyond the realm of mere legalities.

Which is to say, the problem here is that the "logic" being applied by the subject has resulted in multiple decisions that are inconsistent with each other at nearly every level. Our disagreement is with respect to which of those decisions will wind up being "controlling" as regards the hypothetical LOC case the Supreme Court will be presented with, and the consequences thereof.

My point is simply this: the very fact that the same entity (the Supreme Court) has produced multiple decisions that are inconsistent with each other at a fundamental level (to the point that even the enumeration of the right in the Constitution, or lack of such enumeration, is not a useful predictor of how the Court will treat the right. See abortion as an example of a right that the Court treats as even more sacrosanct than speech) means that any claim about how the Court will treat the right under consideration has to give greatest consideration to, firstly, cases it has already considered that involve that right (you've done well on that as regards Heller, except perhaps with respect to the problem of permits) and, secondly, cases it has refused to consider that involve that right (something you've essentially handwaved away). When one does that, the most logical conclusion is that the Court is more likely to uphold permits than not, at least as regards exercise of the right in public, and is also reasonably likely to deny cert to a carry case, even if it is a pure LOC case.




You could still be right. I hope you are right, because all the other approaches are most certainly failing. But the argument you present in support of your position is not compelling in the face of the evidence I see before me. That in no way implies that we shouldn't try the approach you advocate -- we most certainly should -- but it does mean that we shouldn't expect it to succeed.

curtisfong
12-27-2013, 3:39 PM
Lawyers & judges live in their own damn world. Very little of anything can be really rated as "controlling" on those people.

Exactly. The point being that logic (legal and real world) are terrible predictors of their actions.

The only thing that predicts their actions with any accuracy is their biases. Because no external logic/reason compels them to do the "right" thing, you can bet the farm on their biases entirely controlling their actions above all else, and the result being them (ex post facto) rationalizing their entirely bias based actions with some laughable simulacrum of legal logic.

It is becoming increasingly obvious that the law (and even dicta) mean nothing to judges in CA, except to provide the flimsiest of facades of objectivity, and then only to justify their decisions by cherry picking whatever weak "logic" is required.

The peanut gallery can complain all they want that incompetent representation (or pleadings, or whatever other technicalities) is costing us our rights when they lose case after case after case, but that is huge red herring. The fact is that the opposition can be as completely incompetent (or even corrupt) as they want, and the CA courts will play along and fix (or ignore) whatever defects exist in the opposition's case to get the results they want.

Mulay El Raisuli
12-27-2013, 4:16 PM
Woollard did not ask for open carry because open carry of long arms is permitted. The allowance for non permitted open carry was explained by the state in their briefs and that is the reason why the decision in Woollard was reversed and certiorari denied.

The same happened with Kachalski. The same with Peterson. The same with Peruta (although now the circumstances have changed).


Yes, but open carry of long guns isn't helpful. It isn't desired either. Which is to say that I don't see how this contradicts my conclusion/guess that we lost because we didn't make Woollard simply & only about LOC.


In the real world, when A logically implies B (i.e., when A -> B) and you say A, you are also saying B. That's because in the real world, formal logic is controlling (to the same degree as the laws of physics, at any rate, as both are predictors of the real world).

But I will try to be more explicit about such things in the future.

But that's not so. Lawyers & judges live in their own damn world. Very little of anything can be really rated as "controlling" on those people. That's why while I realize there are BIG inconsistencies in what they do. AND in what my predictions about what they'll do (or not do). All I can do is read the tea leaves and make (what I hope is) an educated guess. Which is why I get a teched at people saying I "said" something that I didn't actually say. I realize that it should equal that, but in the real world of lawyers & judges, it just doesn't.


I agree with you if what is being discussed is strictly within the realm of the environment in which the subject is operating. But here, we're not merely discussing what the subject has done, we're discussing the options available to the subject and why they are available. Furthermore, some of what we've discussed extends beyond the realm of mere legalities.

Which is to say, the problem here is that the "logic" being applied by the subject has resulted in multiple decisions that are inconsistent with each other at nearly every level. Our disagreement is with respect to which of those decisions will wind up being "controlling" as regards the hypothetical LOC case the Supreme Court will be presented with, and the consequences thereof.


I see CCW (as the Constitutional Right) as completely DOA. It just ain't gonna happen. I started saying that 5 years ago & subsequent events have proven me to be correct. There have been flies in the ointment in that certain cases aren't as clear-cut about the matter, but there's NOTHING to give support to the thought that CCW is going to become the Constitutional Standard.


My point is simply this: the very fact that the same entity (the Supreme Court) has produced multiple decisions that are inconsistent with each other at a fundamental level (to the point that even the enumeration of the right in the Constitution, or lack of such enumeration, is not a useful predictor of how the Court will treat the right. See abortion as an example of a right that the Court treats as even more sacrosanct than speech) means that any claim about how the Court will treat the right under consideration has to give greatest consideration to, firstly, cases it has already considered that involve that right (you've done well on that as regards Heller, except perhaps with respect to the problem of permits) and, secondly, cases it has refused to consider that involve that right (something you've essentially handwaved away). When one does that, the most logical conclusion is that the Court is more likely to uphold permits than not, at least as regards exercise of the right in public, and is also reasonably likely to deny cert to a carry case, even if it is a pure LOC case.


As for refusal to grant cert., I do wave that away. There are THOUSANDS of cases being presented to SCOTUS. Making a firm conclusion about why a case is denied calls for deeper tea leaf reading than even I'm willing to do. But I do have a guess.

The first step for review of an issue is to ask, "Is there an infringement on a Constitutional Right?" If "no," then the matter dies regardless of anything else. By presenting 'CCW is the Constitutional Right' kind of cases, we die on the first step (because CCW ain't the Constitutional Right & it ain't gonna be). Which means that there isn't a conflict for SCOTUS to look at. We didn't ask for something we're not entitled to; the opposition presented a Constitutionally apt argument & the Circuit made the correct Ruling. In short, things have gone as they should & there's nothing for SCOTUS to do. Sure, SCOTUS could take the case, but why the hell should they?

This changes if we fight Bonidy as we should. In Peterson, the 10th has quoted the same cases from Heller that I do. They said this is why the challenge to the ban on CCW failed, but went to to give that BIG damn hint (that a challenge to Denver's ban on Open Carry might succeed). If it is US quoting from Heller, we should win. The 10th wouldn't have given us the hint otherwise. This is why I'm so very optimistic that we can win in the 10th.

Now, Denver will certainly appeal. That means we'd be presenting to SCOTUS a case that is NOT like the losers we've been presenting. WE would be quoting Heller (Nunn & all those other carry cases). WE would be arguing for something we ARE entitled to. WE would be making the Constitutionally apt argument. Which is to say that, for the first time, we would be presenting a case that SCOTUS does not have "adjust" things to give us what we want (but are too afraid to ask for). THIS could (SHOULD) be enough to get us cert.


You could still be right. I hope you are right, because all the other approaches are most certainly failing. But the argument you present in support of your position is not compelling in the face of the evidence I see before me. That in no way implies that we shouldn't try the approach you advocate -- we most certainly should -- but it does mean that we shouldn't expect it to succeed.


I think the situation to be better than that. Heller didn't mention Nunn and those other carry cases just for fun. Even SCOTUS is at least a little limited by the legal fact that they can't Rule on something not before them, & "and bear" wasn't before them. Still, this was a "case of first impression" & they gave us hints (dicta) to follow. I believe I am following the hint. There's only two ways to "and bear" & if CCW ain't it, then LOC has to be.

If I'm wrong, if even the presentation of a nice, clean case that does take the damn hint ain't enough to get cert, then the only logical, rational conclusion to be drawn is that "and bear" is dead as a doornail in its entirety as a Protected Right.

Which makes it time for ConCon II at the very least.


This is such an incredibly good statement of your position that I'm not going to bother going back to the blow-by-blow we were engaged in before, and instead respond to this. This is great stuff here, sir!


I fully agree with you as regards the 10th Circuit. While I think there is a small chance they'll refuse to uphold LOC as the right, I think the most probable outcome is the one you state. I've not seen courts anywhere else call out open carry as the right.


That's why I keep mentioning Bonidy by name.


Going stepwise on the rest:

If SCOTUS grants cert to the case, I agree with you here. But I am deeply skeptical that they will grant cert to that case, to the extent that it is my belief that they almost certainly will not.


In addition to what I wrote above (as to why I am optimistic), there's the fact that the 10th added that comment at all. They are 'plugged in' to what SCOTUS thinks a little better than you & I are. If SCOTUS were really & truly four-square against LOC, then I don't think they would have commented as they did at all.

I agree that this is severe tea leaf reading.


Oh. If this is the extent of your position on permits, then you have my apologies. I agree that unlicensed LOC can be established as the Constitutional Right, meaning that I agree that it is possible. If that is the extent of your position, then I have no quarrel with you on this.

However, I nonetheless think it's unlikely that we'll succeed in that attempt. It must be made, but my expectation is that the attempt to do so is even more likely to fail, by a rather large margin, than the attempt to establish the right to carry in the first place, at least at the Supreme Court level.


For the above reasons/guesses/conclusions, I am still optimistic.


To whatever degree I've misunderstood your meaning and mangled your words previously, you have my heartfelt apologies, sir!


I am suffering from a bit of "holiday blues" lately. This has made just a but more "*****ly" than usual. Sorry.


The Raisuli

Mulay El Raisuli
12-27-2013, 4:20 PM
Exactly. The point being that logic (legal and real world) are terrible predictors of their actions.

The only thing that predicts their actions with any accuracy is their biases. Because no external logic/reason compels them to do the "right" thing, you can bet the farm on their biases entirely controlling their actions above all else, and the result being them (ex post facto) rationalizing their entirely bias based actions with some laughable simulacrum of legal logic.

It is becoming increasingly obvious that the law (and even dicta) mean nothing to judges in CA, except to provide the flimsiest of facades of objectivity, and then only to justify their decisions by cherry picking whatever weak "logic" is required.

The peanut gallery can complain all they want that incompetent representation (or pleadings, or whatever other technicalities) is costing us our rights when they lose case after case after case, but that is huge red herring. The fact is that the opposition can be as completely incompetent (or even corrupt) as they want, and the CA courts will play along and fix (or ignore) whatever defects exist in the opposition's case to get the results they want.


As regards PRK judges, I believe this to be completely true. As for SCOTUS, I don't discount it entirely.

Still, the "bias" of SCOTUS (and the 10th Circuit) seems to be toward LOC as the Protected Right. Or so the dicta leads me to believe.


The Raisuli

P.S. I somehow only posted part of my response. Rather than correct things, I'll just leave it as it is.

Mulay El Raisuli
12-28-2013, 6:53 AM
Exactly. The point being that logic (legal and real world) are terrible predictors of their actions.

The only thing that predicts their actions with any accuracy is their biases. Because no external logic/reason compels them to do the "right" thing, you can bet the farm on their biases entirely controlling their actions above all else, and the result being them (ex post facto) rationalizing their entirely bias based actions with some laughable simulacrum of legal logic.

It is becoming increasingly obvious that the law (and even dicta) mean nothing to judges in CA, except to provide the flimsiest of facades of objectivity, and then only to justify their decisions by cherry picking whatever weak "logic" is required.

The peanut gallery can complain all they want that incompetent representation (or pleadings, or whatever other technicalities) is costing us our rights when they lose case after case after case, but that is huge red herring. The fact is that the opposition can be as completely incompetent (or even corrupt) as they want, and the CA courts will play along and fix (or ignore) whatever defects exist in the opposition's case to get the results they want.


Adding on to this.

You have defined the "why" we should be working on getting unlicensed LOC as the Constitutional Standard. "Give a man an inch....." applies even more so to the idiots wearing robes here in the PRK. We need to have a standard that allows ZERO "interpretation" on the part of the judiciary.


The Raisuli

kcbrown
12-28-2013, 1:29 PM
But that's not so. Lawyers & judges live in their own damn world. Very little of anything can be really rated as "controlling" on those people. That's why while I realize there are BIG inconsistencies in what they do. AND in what my predictions about what they'll do (or not do). All I can do is read the tea leaves and make (what I hope is) an educated guess. Which is why I get a teched at people saying I "said" something that I didn't actually say. I realize that it should equal that, but in the real world of lawyers & judges, it just doesn't.


That's true as far as it goes, so it really depends on the realm of what you're saying. If what you're saying is a legal statement and you are using it strictly in the legal realm, then I agree. But once your statement touches the real world, logic comes back into play.

In any case, I most certainly agree that those that practice law live in their own world, oblivious (willfully so, I'd wager) to the detrimental real-world effects their machinations have. Predictions about what they will do will thus have to be limited only by the biases of the judges in question and the "precedence" they have to work with. And it should be noted that one can find "precedence" for anything one wishes. You'll note that even the Supreme Court has, more than once, even gone so far as to reach across the pond for "guidance" (which is, more often than not, code for "excuses") for their decisions, as if the US were still a commonwealth of England or something.



I see CCW (as the Constitutional Right) as completely DOA. It just ain't gonna happen. I started saying that 5 years ago & subsequent events have proven me to be correct. There have been flies in the ointment in that certain cases aren't as clear-cut about the matter, but there's NOTHING to give support to the thought that CCW is going to become the Constitutional Standard.


I agree, by way of CCW being a subset of carry in general, which I believe to be DOA in its entirety except for in jurisdictions such as the 7th and, more likely than not, the 10th circuits.



As for refusal to grant cert., I do wave that away. There are THOUSANDS of cases being presented to SCOTUS. Making a firm conclusion about why a case is denied calls for deeper tea leaf reading than even I'm willing to do. But I do have a guess.


The problem is that we know that the Supreme Court is perfectly capable of issuing whatever decision it wishes with whatever case it has before it, provided the case presents the fundamental issue, even if what is being presented is more than just that.

Moreover, we know that SCOTUS is taking lots of cases that involve trivialities, so the claim that they're inundated with cases loses its persuasiveness in light of that.



The first step for review of an issue is to ask, "Is there an infringement on a Constitutional Right?" If "no," then the matter dies regardless of anything else. By presenting 'CCW is the Constitutional Right' kind of cases, we die on the first step (because CCW ain't the Constitutional Right & it ain't gonna be). Which means that there isn't a conflict for SCOTUS to look at. We didn't ask for something we're not entitled to; the opposition presented a Constitutionally apt argument & the Circuit made the correct Ruling. In short, things have gone as they should & there's nothing for SCOTUS to do. Sure, SCOTUS could take the case, but why the hell should they?


But Woollard is potentially a counterexample to that, though I admit it asked for a permit and didn't challenge the permit scheme itself. Nevertheless, it presented to the Supreme Court a number of options from which it could issue a decision, and the Supreme Court refused to consider it.

I agree that the Supreme Court could be playing the role of a legal "Goldilocks", as it were, insisting upon having exactly the right case in front of it before it will say anything at all. But there is not, to my knowledge, any other fundamental right (Constitutional or otherwise) that it treats in that manner.



This changes if we fight Bonidy as we should. In Peterson, the 10th has quoted the same cases from Heller that I do. They said this is why the challenge to the ban on CCW failed, but went to to give that BIG damn hint (that a challenge to Denver's ban on Open Carry might succeed). If it is US quoting from Heller, we should win. The 10th wouldn't have given us the hint otherwise. This is why I'm so very optimistic that we can win in the 10th.


I agree. I think we're more likely than not to win Bonidy, and eventually LOC, in the 10th Circuit.



Now, Denver will certainly appeal. That means we'd be presenting to SCOTUS a case that is NOT like the losers we've been presenting. WE would be quoting Heller (Nunn & all those other carry cases). WE would be arguing for something we ARE entitled to. WE would be making the Constitutionally apt argument. Which is to say that, for the first time, we would be presenting a case that SCOTUS does not have "adjust" things to give us what we want (but are too afraid to ask for). THIS could (SHOULD) be enough to get us cert.


That is certainly a possibility. I have little expectation for it, because my perception is that SCOTUS is finished with carry in its entirety, but I still hold out hope that you're right on this.



I think the situation to be better than that. Heller didn't mention Nunn and those other carry cases just for fun.


But what other cases could they have mentioned for the purpose of illustrating that the right is not unlimited, but still exists? More precisely, what cases could they possibly have mentioned that involved carry and that would have illustrated that?



Even SCOTUS is at least a little limited by the legal fact that they can't Rule on something not before them, & "and bear" wasn't before them.


They can't rule on what is not before them, but they can say anything they want about anything they want in "dicta". So why didn't they? Why didn't they explicitly call out open carry in public as part of the right? Most certainly that was an option that was available to them, since they already had the necessary cases (e.g., Nunn) cited.

After all, they did say that laws prohibiting the right in "sensitive places" were not being called into question by their decision, and that is well beyond the scope of what was before them.



Still, this was a "case of first impression" & they gave us hints (dicta) to follow. I believe I am following the hint. There's only two ways to "and bear" & if CCW ain't it, then LOC has to be.


That is certainly true, presuming that the Court will uphold "and bear" at all.



If I'm wrong, if even the presentation of a nice, clean case that does take the damn hint ain't enough to get cert, then the only logical, rational conclusion to be drawn is that "and bear" is dead as a doornail in its entirety as a Protected Right.

Which makes it time for ConCon II at the very least.


And hence, this is why my belief is that it is time to start preparing for precisely that. The "hint" I see SCOTUS having given us is that they will not take any carry cases, because (thanks to events such as Sandy Hook) they have no intention of upholding carry in public as a real right. The lower courts are, for the most part, doing what SCOTUS wants with respect to that, so there is no need for SCOTUS to stick its proverbial neck out to achieve what is already being achieved.



In addition to what I wrote above (as to why I am optimistic), there's the fact that the 10th added that comment at all. They are 'plugged in' to what SCOTUS thinks a little better than you & I are. If SCOTUS were really & truly four-square against LOC, then I don't think they would have commented as they did at all.

I agree that this is severe tea leaf reading.


That is possible, but it would mean the 10th Circuit is better at reading SCOTUS better than any other circuit in the land. I'm skeptical. But you might be right.



I am suffering from a bit of "holiday blues" lately. This has made just a but more "*****ly" than usual. Sorry.


:(

Well, here's hoping your holidays have gotten better! And don't worry about it. Now that I understand your position better, I can discuss the issue with you with a bit less frustration on both our parts. :D

And in any case, here's hoping the rest of your holidays are full of cheer!

kcbrown
12-28-2013, 1:39 PM
We need to have a standard that allows ZERO "interpretation" on the part of the judiciary.


There is no such thing. No law, standard, or even Constitutional directive is immune to interpretation by the judiciary.

One would think that the statement in the 2nd Amendment is as clear as a bell. But the judiciary has insisted upon "interpreting" it away into nothingness regardless.

curtisfong
12-28-2013, 1:40 PM
And hence, this is why my belief is that it is time to start preparing for precisely that. The "hint" I see SCOTUS having given us is that they will not take any carry cases, because (thanks to events such as Sandy Hook) they have no intention of upholding carry in public as a real right. The lower courts are, for the most part, doing what SCOTUS wants with respect to that, so there is no need for SCOTUS to stick its proverbial neck out to achieve what is already being achieved.

IMO the hint is that SCOTUS has no intention of properly incorporating the 2nd against the states in any real form.

They are perfectly happy letting state and local legislatures do whatever they want without restriction, and letting the lower courts sort it out however they see fit with absolutely no oversight. SCOTUS simply doesn't care whether or not the 2nd enumerates a fundamental right, and feel absolutely no compulsion to apply real any legal logical conclusions that should follow accordingly. Scalia might (personally), but that is about it. The idea that the court (any court) *must* follow legal logic to its full conclusion has been proven folly again and again. No "ideal", perfectly "qualified" lawyer is going to compel a court to do something it simply does not want to do.

Heller is as far as SCOTUS will go, and if the lower courts feel it is toothless, SCOTUS is fine with that.

I don't see them taking an open carry case for this reason.

That said, I have no problem with people at least trying.

Apocalypsenerd
12-28-2013, 5:44 PM
Generally, I have the same point of view as KC and it appears Curtisfong. Let me, while not agreeing with what I am about to say, offer it as a devil's advocate point of view.

Recently, Justice Ginsburg talked about Roe Vs. Wade being too sweeping too quickly. She basically lamented that abortion rights would be stronger if the SCOTUS had not jumped ahead of the nation and forced something when so much of the nation was against it.

She did this when commenting on the recent cases regarding gay marriage. Equality advocates wanted something more sweeping, but she basically said, equality will be on stronger footing if we take a little longer to let the nation adjust.

Is it possible that SCOTUS is doing the same thing with gun rights? Just 6 years ago, we were truly concerned that all guns could be banned. Now, our concern is greatly lessened by the Heller and MacDonald rulings that have made it clear that, in the home at least, we MUST be allowed to own a handgun. There has been an adjustment period wherein even dirt bags like Sen. Chuck Schumer have stated that we have a right to own handguns. That never would have happened pre-MacDonald.

kcbrown
12-28-2013, 6:30 PM
Generally, I have the same point of view as KC and it appears Curtisfong. Let me, while not agreeing with what I am about to say, offer it as a devil's advocate point of view.


Interesting points. I'll respond without presuming anyone holds them as such. Ideas stand or fall on their own, IMO.



Recently, Justice Ginsburg talked about Roe Vs. Wade being too sweeping too quickly. She basically lamented that abortion rights would be stronger if the SCOTUS had not jumped ahead of the nation and forced something when so much of the nation was against it.


One wonders how they might be stronger than they already are. What sort of intrusion upon it does she currently see happening, and what sorts of intrusions does she foresee that wouldn't already be forbidden by current jurisprudence?



She did this when commenting on the recent cases regarding gay marriage. Equality advocates wanted something more sweeping, but she basically said, equality will be on stronger footing if we take a little longer to let the nation adjust.

Is it possible that SCOTUS is doing the same thing with gun rights? Just 6 years ago, we were truly concerned that all guns could be banned. Now, our concern is greatly lessened by the Heller and MacDonald rulings that have made it clear that, in the home at least, we MUST be allowed to own a handgun. There has been an adjustment period wherein even dirt bags like Sen. Chuck Schumer have stated that we have a right to own handguns. That never would have happened pre-MacDonald.

True as all that may be, the seminal counterexample to all that is the speed with which the Court dealt with the issue of minority civil rights. After Brown v Board of Education (the minority civil rights equivalent of Heller and McDonald combined), the Supreme Court took a number of cases in rather quick succession.

Is it Ginsburg's argument that the civil rights of minorities are insufficiently protected today because the Court dealt with those issues too quickly? If so, then what infringements are occurring now that wouldn't be had the Court not acted as quickly as it did?


No, actually, I believe Ginsburg to either misunderstand the situation completely, or to be deliberately misleading. The fact of the matter is that the longer infringements on rights are tolerated, the more difficult those infringements are to rectify later, precisely because they become "longstanding" in nature, something the court system places inherent value upon irrespective of their infringing nature. She also fails to understand that infringements build upon prior infringements. We see that clearly in California, where ever more onerous laws are being passed precisely because less onerous laws had previously been passed and remain standing.

No, between the nature of building infringements and the Court's reluctance to make wholesale changes to the fabric of law, it should be quite clear that, completely contrary to Ginsburg's claim, a slower approach to protecting a right will result in a weaker right, not a stronger one.

Apocalypsenerd
12-28-2013, 7:35 PM
KC, I normally agree with your position, and I don't necessarily agree with the argument I put forth. However, your arguments have some holes in them.

First, I find it hard to believe that you understand jurisprudence and law better than a SCOTUS justice. It doesn't matter to me that she has a different ideology than I do. Is she being misleading? Perhaps, but I don't think so.

Second, there are clearly places in the abortion debate where the right is being curtailed. One of Sandra Day O'Connor's complaints after leaving the Court was that the conservative justices were undoing some of her case law. All one has to do is watch the news to hear about fights over varying portions of abortion law going on all over the country. I don't know the details, because I don't research that conflict very much. However, the fight is clearly still going on all over our nation in the courts and legislatures.

Finally, the debate over gay marriage is not finished. The recent rulings by the Court were limited in such a way as to still allow quite a bit of variation in different states.

Her comments appear valid to me, and sit as a possible reason the SCOTUS is waiting on more gun cases.

kcbrown
12-28-2013, 7:43 PM
KC, I normally agree with your position, and I don't necessarily agree with the argument I put forth. However, your arguments have some holes in them.

First, I find it hard to believe that you understand jurisprudence and law better than a SCOTUS justice. It doesn't matter to me that she has a different ideology than I do. Is she being misleading? Perhaps, but I don't think so.


But that misunderstands the issue.

It is not one of jurisprudence, it is one of the real world effect of that jurisprudence. Protection of a right isn't a mere legal technicality, it's a real world action.



Second, there are clearly places in the abortion debate where the right is being curtailed. One of Sandra Day O'Connor's complaints after leaving the Court was that the conservative justices were undoing some of her case law. All one has to do is watch the news to hear about fights over varying portions of abortion law going on all over the country. I don't know the details, because I don't research that conflict very much. However, the fight is clearly still going on all over our nation in the courts and legislatures.


You may be more in tune with the current state of the abortion issue than I am, as the abortion issue isn't one that I really track. So it may be that the right isn't as protected as Ginsburg would like. I'm still curious as to what specific protections she believes aren't already in place, and what infringements are occurring as a result.

Furthermore, even assuming there are such infringements and such protections that are yet to be put into place, that alone doesn't validate her viewpoint. For her viewpoint to have real validity, she would need an example of a right which starts off being greatly infringed and which, as a result of slow and deliberate construction of jurisprudence, results in a right which is more greatly protected than abortion already is. I know of no such right. I do know of a right or two that, perhaps because of the slow rate at which "protection" has been built, exists in name only. An example is that of travel.

So we have evidence which contradicts her thesis, and no evidence (that I am aware of, at any rate) which confirms it. And since we're talking about real-world effects here, this isn't something that can be handwaved away as being in the realm of "judicial logic".



Finally, the debate over gay marriage is not finished. The recent rulings by the Court were limited in such a way as to still allow quite a bit of variation in different states.

Her comments appear valid to me, and sit as a possible reason the SCOTUS is waiting on more gun cases.

Were it not for the real-world observations I raised, I'd be more inclined to think of her position as being valid. But in the face of how rights which legislatures insist on infringing tend to disappear without strong intervention by the courts, combined with the courts' reluctance to make wholesale changes to law, it follows that it becomes a question of the rate at which new infringements are invented relative to the rate at which protections are added. When the former exceeds the latter, the right disappears in all but name. And we see that happening right before our eyes in California.

No, Ginsburg can believe what she wants, but she cannot argue against real-world evidence that contradicts her view unless she has real-world evidence of her own.

curtisfong
12-28-2013, 7:54 PM
The only court that can undermine SCOTUS is SCOTUS itself.

Now Ginsberg may argue that pushing too hard at the SCOTUS level may be counterproductive, and that gaining insufficient consensus early on may invite backsliding on later SCOTUS cases... but when faced by lower courts that refuse to fall in line, that are almost universally openly defiant of SCOTUS, I see absolutely no advantage to taking a measured approach. Consensus building is not needed. SCOTUS does not need the support of lower courts in any way, shape, or form. If anything, giving defiant lower courts an inch will only embolden them to take a mile, and everybody suffers.

kcbrown
12-28-2013, 8:18 PM
There is an additional point that I must make here.

The problem with rights such as gay marriage (which I actually view as an equal protection issue, but still) and abortion is that these rights are ones that require explicit acknowledgement by the courts because there is no definitive reference, that I know of, that calls them out as being rights. They have to be built up, bit by bit, their scope explored and refined over time.

This isn't a problem shared by the right to keep and bear arms. That right is, even more than any other right, explicitly called out as being protected in the Constitution. It has the immediate status of law as of the ratification of the Bill of Rights. There should be no question that it exists, nor should there be any question of why it exists or what its scope is, for those things are easily determined through historical textual analysis and a bit of research into its purpose and what those who penned the Bill of Rights believed those to be. Which is to say, this is ground that has already been well-covered by the very people who penned the Bill of Rights, among others.

So it follows that Ginsburg's lament is not applicable here at all. Of all rights we have, this is one that should be fully protected from the foundation of the country forwards, for its enumeration occurred almost immediately after the Constitution itself was penned.

There is, therefore, no excuse for SCOTUS to dilly-dally on protecting this right. That it has completely failed to protect it until now should make it clear that SCOTUS has utterly failed in its fundamental duty to uphold the very Constitution that empowers it to operate at all. It illustrates that the Supreme Court is a joke, a body of people who do what they do only because they wish to, and for no other reason. For them, the Constitution is not operative at all except where they wish it to be.

The authors of the Bill of Rights would be horrified (but probably not surprised) by what the Supreme Court has done with their charge.

Apocalypsenerd
12-28-2013, 10:28 PM
KC, your arguments seem weaker here than normal. A little bit of thought will preclude the sweeping generalizations you are making.

For instance, even after the rulings of Heller and MacDonald, the antis are attempting to make inroads that "nibble at the edges" of the 2A Right. The civil rights platform, which you seem to think was a singular, large ruling, was the result of 16? years of smaller legal steps prior to Brown. It's possible, and I'm not a legal scholar, that the Brown ruling was much more broad because of the platform constructed prior to that ruling.

Every single courtroom conflict over social norms and culture continues even after the broadest of rulings. The fight over the 2A is a cultural argument. It stands to reason that building a platform of smaller rulings will pre-empt some of the fights that are bound to occur after a sweeping win for either side.

kcbrown
12-29-2013, 12:48 AM
KC, your arguments seem weaker here than normal.


Heh. I will try to do better. :D



A little bit of thought will preclude the sweeping generalizations you are making.

For instance, even after the rulings of Heller and MacDonald, the antis are attempting to make inroads that "nibble at the edges" of the 2A Right.


Of course. Isn't that actually consistent with what I've been arguing here? Ginsburg's argument is that going more slowly will result in a more secure right, but the inroads the antis are attempting to make can succeed only if the judiciary does go slowly like Ginsburg suggests they should. Such efforts cannot gain traction if they are cut off by the judiciary before they can get anywhere, but they most certainly can gain traction in the face of inaction on the part of the judiciary.



The civil rights platform, which you seem to think was a singular, large ruling, was the result of 16? years of smaller legal steps prior to Brown. It's possible, and I'm not a legal scholar, that the Brown ruling was much more broad because of the platform constructed prior to that ruling.


That may be the case, but that doesn't make the Heller and McDonald duo any less of an equivalent to Brown v Board of Education, and that's what really matters here: what to do once the basic right has been established as existing at all.

The question, thus, isn't one of building the foundation of a right. For the right to keep and bear arms, in terms of jurisprudence, that has already been done in Heller and McDonald, and in terms of purpose, meaning, and scope, that was done by the authors of the Bill of Rights.


But of even greater importance is the fact that the minority civil rights movement revolved around one question: are minorities inferior to whites? That is a question that the judiciary had to answer for themselves, because it was not answered by the Constitution nor, it is claimed in Brown (see Brown v. Board of Education, 347 US 483 at 489), by the historical record surrounding the enactment of the 14th Amendment (though my belief is that the answer arrived at by the Court in Brown was implied by the authors and supporters of the 14th Amendment through its enactment).

In contrast, the question of what the authors of the 2nd Amendment meant when they wrote it is actually rather plain and well-known by those who have taken the time to educate themselves on the views of those authors. To put it succinctly, the authors of the 2nd Amendment intended for the citizenry to possess the arms necessary to ensure that they would come out on top if the citizenry ever had to again, like the founders themselves, wrest their liberty from a tyrannical government, and to be able to carry the arms necessary for effective defense of self and others against any and all aggressors. They believed in this right so strongly that they dispensed with the "Congress shall pass no law" language and said, plainly, that the right shall not be infringed.


And finally, even though the above does not dispense with the possibility that the jurisprudence leading up to Brown resulted in a more secure decision, the mere possibility that Brown was more secure due to the preceding cases is not of itself sufficient to counter actual evidence of a right eroding due to inaction on the part of the judiciary. Which is to say, a possible connection is not sufficient to overcome an actual connection.



Every single courtroom conflict over social norms and culture continues even after the broadest of rulings. The fight over the 2A is a cultural argument. It stands to reason that building a platform of smaller rulings will pre-empt some of the fights that are bound to occur after a sweeping win for either side.

But the fight over the 2nd Amendment isn't just a cultural argument. This isn't merely a question of whether or not the culture in question likes the right to keep and bear arms. It is one of whether or not the Constitution actually means what those who penned it intended it to mean. It is one of whether the enumeration of rights in the Constitution carries any real meaning at all. A meaning which shifts with the wind is no meaning at all and is an anathema to the purpose of even having a Constitution, for a foundation which has a constantly changing meaning is no foundation at all.

If the culture truly and sufficiently reviles the right to keep and bear arms, then a process by which to eliminate its Constitutional protection exists: the amendment process itself. But to attempt to eliminate the protection of the right by having the judiciary write it out of the Constitution (whether through action or inaction) is not only dishonest, it is downright dangerous, because doing so secures the possibility of having the same done for every enumerated right.


No, for a right to actually be a right, it has to prevail despite the desires of the majority. It is precisely for this reason that the enumerated rights were secured via Constitutional amendment. And it is precisely for this reason that the judiciary was tasked with their preservation.


In any case, for Ginsburg's thesis to apply to the 2nd Amendment, anyone who might argue for that position will have to show that the logic I previously put forward as regards the rate of infringement versus the rate of protection is somehow unsound or contravened by the evidence. Since evidence supporting the logic I provided already exists (and in the here and now, no less), the evidence to counter it will need to be very strong indeed.



So: better? :D

kcbrown
12-29-2013, 2:36 AM
My position is that trying to make Shall Issue CCW the Constitutional Right will continue to fail. My position that we have have a District Court flat-out saying that Open Carry is the protected Right. My position is that (given the dicta in Peterson) the 10th Circuit is likely to Rule likewise. My position is that (given the references to Nunn & the other 19th Century carry cases in Heller) it is likely that SCOTUS will also Rule that Open Carry is the Protected Right. My position is that (as permits to exercise Constitutional Rights are anathema to the Constitution) unlicensed LOC can be established as the Constitutional Right. My position is that this will be a Real Good Thing.


Embody v Cooper is, I believe, pending cert. It doesn't involve a permit, because the plaintiff was forbidden from obtaining one, and he reasoned (correctly, IMO) that if he contested the permit issue, he could simply be denied it later, so it looks like he made the case about whether or not bear in public exists as a right at all. So my question to you is this: is it your belief that it will be denied cert because it is not specifically and only about open carry? That would be my expectation, if my understanding of what you've been saying in the discussion so far is correct.

Mulay El Raisuli
12-29-2013, 8:03 AM
Embody v Cooper is, I believe, pending cert. It doesn't involve a permit, because the plaintiff was forbidden from obtaining one, and he reasoned (correctly, IMO) that if he contested the permit issue, he could simply be denied it later, so it looks like he made the case about whether or not bear in public exists as a right at all. So my question to you is this: is it your belief that it will be denied cert because it is not specifically and only about open carry? That would be my expectation, if my understanding of what you've been saying in the discussion so far is correct.


I haven't read the latest on this one. I have no time today. Don't let me forget about it.


The Raisuli

Mulay El Raisuli
12-29-2013, 8:09 AM
IMO the hint is that SCOTUS has no intention of properly incorporating the 2nd against the states in any real form.

They are perfectly happy letting state and local legislatures do whatever they want without restriction, and letting the lower courts sort it out however they see fit with absolutely no oversight. SCOTUS simply doesn't care whether or not the 2nd enumerates a fundamental right, and feel absolutely no compulsion to apply real any legal logical conclusions that should follow accordingly. Scalia might (personally), but that is about it. The idea that the court (any court) *must* follow legal logic to its full conclusion has been proven folly again and again. No "ideal", perfectly "qualified" lawyer is going to compel a court to do something it simply does not want to do.

Heller is as far as SCOTUS will go, and if the lower courts feel it is toothless, SCOTUS is fine with that.

I don't see them taking an open carry case for this reason.

That said, I have no problem with people at least trying.


In addition to ApocalypseNerd's theory, someone here once said that SCOTUS likes to let the Circuits chew new landmarks over for a bit. To get a sense of how far things should go.

I'm not entirely ruling out that you & kcbrown aren't right, but one reason we have to present the right case is so we do know if it is time for ConCon II.


The Raisuli

Mulay El Raisuli
12-29-2013, 8:16 AM
Cutting out the parts that I agree with....


That's true as far as it goes, so it really depends on the realm of what you're saying. If what you're saying is a legal statement and you are using it strictly in the legal realm, then I agree. But once your statement touches the real world, logic comes back into play.


Lawyers never think about the real world, so logic means very little to them. IOW, it isn't that I am unaware of logic. I am aware that they are unaware of logic.


The problem is that we know that the Supreme Court is perfectly capable of issuing whatever decision it wishes with whatever case it has before it, provided the case presents the fundamental issue, even if what is being presented is more than just that.

Moreover, we know that SCOTUS is taking lots of cases that involve trivialities, so the claim that they're inundated with cases loses its persuasiveness in light of that.


It's not an iron-clad claim. Still, they do have a lot on their plate & that makes them just a bit picky about what they'll look at.


But Woollard is potentially a counterexample to that, though I admit it asked for a permit and didn't challenge the permit scheme itself. Nevertheless, it presented to the Supreme Court a number of options from which it could issue a decision, and the Supreme Court refused to consider it.

I agree that the Supreme Court could be playing the role of a legal "Goldilocks", as it were, insisting upon having exactly the right case in front of it before it will say anything at all. But there is not, to my knowledge, any other fundamental right (Constitutional or otherwise) that it treats in that manner.


Not disagreeing completely with this. But, this would be a reason to play their game in the way they want to play it. So, if SCOTUS wants to be Goldilockian, we should suck it up & give them a case that is "just right." If nothing else, they'll have no excuses for turning us down & we'll know for sure that it is time for ConCon II.


But what other cases could they have mentioned for the purpose of illustrating that the right is not unlimited, but still exists? More precisely, what cases could they possibly have mentioned that involved carry and that would have illustrated that?


Presumably, any case, going back to 1783. But, these are the cases they did pick so these are the ones I'm going to work with.


They can't rule on what is not before them, but they can say anything they want about anything they want in "dicta". So why didn't they? Why didn't they explicitly call out open carry in public as part of the right? Most certainly that was an option that was available to them, since they already had the necessary cases (e.g., Nunn) cited.

After all, they did say that laws prohibiting the right in "sensitive places" were not being called into question by their decision, and that is well beyond the scope of what was before them.


They could have decided that they added enough "extra" for the moment. Also, someone once mentioned that a case of first impression leaves some stuff out so that the Circuits can chew things over. Then, SCOTUS can get a better handle on "how the winds blow" (so to speak). That 16 year effort prior to Brown, for instance.


And hence, this is why my belief is that it is time to start preparing for precisely that. The "hint" I see SCOTUS having given us is that they will not take any carry cases, because (thanks to events such as Sandy Hook) they have no intention of upholding carry in public as a real right. The lower courts are, for the most part, doing what SCOTUS wants with respect to that, so there is no need for SCOTUS to stick its proverbial neck out to achieve what is already being achieved.


I like ApocalypseNerd's theory on this.


That is possible, but it would mean the 10th Circuit is better at reading SCOTUS better than any other circuit in the land. I'm skeptical. But you might be right.


Or, just that they think they're better at it. :D


:(

Well, here's hoping your holidays have gotten better! And don't worry about it. Now that I understand your position better, I can discuss the issue with you with a bit less frustration on both our parts. :D

And in any case, here's hoping the rest of your holidays are full of cheer!


Not so far. But thanks.


The Raisuli

kcbrown
12-29-2013, 11:04 AM
Cutting out the parts that I agree with....





Lawyers never think about the real world, so logic means very little to them. IOW, it isn't that I am unaware of logic. I am aware that they are unaware of logic.


That's true, and if all you're doing is limiting your statements to what the lawyers think they're claiming, then I guess the logical implications of them don't come into play until we start talking about the real world.



It's not an iron-clad claim. Still, they do have a lot on their plate & that makes them just a bit picky about what they'll look at.


Picky, perhaps, but apparently not in the way that one would think. Else they would skip the cases that are about trivialities.



Not disagreeing completely with this. But, this would be a reason to play their game in the way they want to play it. So, if SCOTUS wants to be Goldilockian, we should suck it up & give them a case that is "just right." If nothing else, they'll have no excuses for turning us down & we'll know for sure that it is time for ConCon II.


Now that is true. I do not dispute that we have to do whatever it takes to get a case in front of SCOTUS. However, if SCOTUS is being Goldilockian here when they haven't been with other rights, doesn't that of itself show that they are not taking the right itself, as a right, seriously?



Presumably, any case, going back to 1783. But, these are the cases they did pick so these are the ones I'm going to work with.


Well, yes, but that presumes that there are any such cases to choose. That's my point: I'm skeptical that there are any.

Now, if there aren't any such cases, then that most certainly has implications as to the original public understanding of the right. It then becomes a question of whether or not SCOTUS will uphold that as the right. Previously, there was the question of that. I think, now, it should be pretty clear that if they're going to uphold anything at all, it will be that original understanding. So going forward, I agree we should be, at a minimum, incorporating a LOC argument into the pubic carry cases.



They could have decided that they added enough "extra" for the moment. Also, someone once mentioned that a case of first impression leaves some stuff out so that the Circuits can chew things over. Then, SCOTUS can get a better handle on "how the winds blow" (so to speak). That 16 year effort prior to Brown, for instance.


This presumes, however, that "how the winds blow" is actually relevant with respect to the right. I don't see how one can possibly make a legitimate argument in favor of that. The Court has already stated, in Heller, that the scope of the right is that which was understood at the time of the Amendment's ratification, and most circuits have already weighed in on the question of the right in public: they insist on the use of intermediate scrutiny, where they recognize it as existing at all.

But even if no circuit, except the one involving the case before the Court, had weighed in, the opinions of the other circuits on the right in question are irrelevant. This isn't a right for which its scope and nature must be determined by the courts themselves, because that has already been done by the authors of the Bill of Rights. So it thus comes down to whether or not the circuit in the case before the Court got it right or not, and nothing else.

So like the right to free speech, this right is something that is already fully established, and demands nothing from the courts except actual recognition. Any delay on the part of the Court is thus nothing more than another way to uphold infringement upon it.



I like ApocalypseNerd's theory on this.


Except that I poked a bunch of holes in it. :D



Or, just that they think they're better at it. :D


Well, none of the other circuits seem to be thinking along the lines that you seem to be saying SCOTUS is (I have to take care about any claims I might make about what you said, so I can only relay my understanding of such), which is why I said it that way...




Not so far. But thanks.


:(

Apocalypsenerd
12-29-2013, 12:13 PM
KC, you are mixing the argument over what the right should be with how the SCOTUS might be forming a platform. They are two separate things.

There are two parts to what Ginsburg's commentary encompasses. The first is the scope of a right. The second is the jurisprudence platform upon which that scope will be built.

My suggestion is that the delay is based upon the SCOTUS' desire to build the proper platform, not that the scope of the right agrees with the "plain meaning of the amendment" or your and my ideological position. They are likely building a platform we would disagree with. That doesn't mean that the delay in taking cases suggested is not valid.

Yes, I agree with your ideological points about the meaning of the 2A. That's not my point for taking this devil's advocate position. For this discussion, the argument over what the 2A should be or will be is not material. The argument is why have they not done more in the last 5 years. It could be because they are likely to take at least 10-16 years to fully form the foundation before making another sweeping ruling.

Drivedabizness
12-29-2013, 1:25 PM
I always love a thread that turns into a

http://i278.photobucket.com/albums/kk95/drivedabizness/ththpissingcontest.gif

kcbrown
12-29-2013, 1:26 PM
KC, you are mixing the argument over what the right should be with how the SCOTUS might be forming a platform. They are two separate things.


Separate, perhaps, but nonetheless interrelated to the extent that one has a significant effect on the other. And it's not really what the right should be that is involved here, but rather the source of that.



There are two parts to what Ginsburg's commentary encompasses. The first is the scope of a right. The second is the jurisprudence platform upon which that scope will be built.

My suggestion is that the delay is based upon the SCOTUS' desire to build the proper platform, not that the scope of the right agrees with the "plain meaning of the amendment" or your and my ideological position. They are likely building a platform we would disagree with. That doesn't mean that the delay in taking cases suggested is not valid.


Certainly, that in and of itself doesn't mean that the delay is invalid -- unless we are correct about the meaning of the right. And we are, for the logical consequences of us being incorrect are enough to shatter the foundation of the republic, since if we are incorrect, then the authors of the Bill of Rights were also incorrect.

The position that some of us (which includes me) take on this is not merely an ideological position. Words have the meaning they were imparted with when they were uttered. That is because the meaning they have has a purpose behind it. That is not an ideological position, it is a practical one. Whenever we build something tangible and real on the basis of instructions, we always attempt to determine the intended meaning of the instructions because we know that the outcome is dependent upon that, and we want to get it right. Why do we want to get it right? Because there are real-world consequences if we do not.

The protection of enumerated rights is no different in that regard. Their protection, or lack thereof, has real world consequences. And if society doesn't like the consequence of protecting the right, then as I said before, there is already a ready-made means of dealing with that in such a way as to avoid the other logical consequences: the Constitutional amendment process.

For society to simply impose its will, in contravention of what the authors of the Bill of Rights actually meant by what they wrote, upon all those who might disagree with said society, is for it to ignore the meaning and purpose of the Constitution itself, and that has consequences. Those consequences are so far-reaching that they can be legitimately be described as the death of the Constitutional republic itself, for the reason behind building a republic upon a Constitution is to have a solid foundation (the Constitution) for the republic which is being built upon it, an anchor which keeps it from straying from the purposes for which the republic is being constructed to begin with. Take away that foundation, and you have nothing. At that point, you may as well argue that it is perfectly legitimate for the executive branch to utterly ignore the will of the legislature because, after all, the Constitution doesn't actually mean what it says.


None of this is strictly within the realm of law -- it is within the realm of the real world, where logic reigns supreme. One cannot, therefore, escape these real-world consequences by scurrying behind the claim that law is immune from logic.



Yes, I agree with your ideological points about the meaning of the 2A. That's not my point for taking this devil's advocate position. For this discussion, the argument over what the 2A should be or will be is not material. The argument is why have they not done more in the last 5 years. It could be because they are likely to take at least 10-16 years to fully form the foundation before making another sweeping ruling.

But it is material, to the extent that it derives from the meaning intended by those who penned the Bill of Rights. Because if that is the proper meaning, then that meaning, the scope thereof, etc., have already been laid out. It means there is no work for the judiciary to do other than to acknowledge that which has already been described. It therefore means that any delay is merely support for infringement upon the right, and nothing more. And infringement of a right which is allowed to continue is, by definition, a weakening of the right.

I agree with you that the Court is building a foundation that we will disagree with. That we will disagree with it means, ipso facto, that it will be in disagreement with the scope and purpose of the right's enumeration by those who penned the Bill of Rights. It will thus be contrary to the Constitution. It means that the right will be weakened, not strengthened, by the delay. And that means that Ginsburg's claim will be incorrect as applied here.

Gray Peterson
12-30-2013, 12:33 AM
Because concealed carry was a part of the permit sought, & because we didn't say that a permit for open carry would have been OK by us. To repeat, it ain't about LOC unless we say that it is.
.....
Maybe it's because Woollard wasn't seen to be about LOC?


The Raisuli

Was Moore v. Madigan a LOC case?