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Old 12-04-2012, 8:05 AM
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kcbrown kcbrown is offline
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Originally Posted by OleCuss View Post
You just might be overly pessimistic on this one.

Once we get a good "carry case" through SCOTUS we can start effectively using things like Preliminary Injunctions. IIRC, this will be a bit of a different animal than a regular civil rights suits like we've been forced to bring so far.
The only difference between a preliminary injunction approach and the standard approach is (as far as I know) the amount of time the court can officially take to respond, unless the preliminary injunction is actually issued.

You (and possibly others who argue the heightened efficacy of the PI approach) are failing to account for one very important thing: as regards 2nd Amendment action, the main benefit of the PI approach works only if the court sides with you. Which is to say, only if the PI is actually granted. But the very core of the problem is that the right to keep and bear arms is a right that the majority of relevant courts hate and will do everything in their (considerable) power to minimize. Those courts will not grant our preliminary injunction requests.

It'll still be frustrating and too slow, but I'm pretty sure that what SCOTUS does will have an effect here as well.
Oh, it'll have an effect, eventually. But not until we actually win California cases at that level. For the effects you speak of to actually take hold, we have to show that we can and will win against California respondents. That won't happen until it's clear to said respondents that the courts will side with us for the foreseeable future. The courts won't side with us in general, much less for the foreseeable future, until it's clear to them that the Supreme Court will side with us for the foreseeable future and that there are grave consequences to them for ignoring Supreme Court jurisprudence. But that latter can't happen in this environment because there is serious risk that we'll lose the Heller majority in just the next 4 years (which is a very short period of time in judicial terms), to say nothing of the next 10 or so.

Since the latter can't happen, the former won't happen, and that is why we must actually win all the California cases at the Supreme Court level. Preliminary injunctions will be useful for speeding up that process but will otherwise be useless against recalcitrant counties, because action against those counties has to be brought to courts in those areas.

No, I don't think I'm being overly pessimistic here at all, given what we're up against. Osterweil v Bartlett should be sufficient warning to us of what we can really expect.

One last thing: many here have been basing their assessment of the judicial situation on how courts have treated other, relatively benign issues. That is, how they've been behaving in general. But such behavior is not informative as to how they'll treat cases involving RKBA. RKBA is a right the courts in question hate with a passion and will do everything they can to extinguish. The informative historical context for this situation isn't that of the overall court behavior, it's that of the court behavior when they're faced with an issue they are passionate about and on which their bias conflicts with Supreme Court jurisprudence. The only thing that even comes close to our situation is that of the courts of the south during the civil rights movement. That's why NAACP v Alabama is so relevant.
The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional.

The real world laughs at optimism. And here's why.

Last edited by kcbrown; 12-04-2012 at 8:28 AM..