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2nd Amend. Litigation Updates & Legal Discussion Discuss California 2A related litigation and legal topics here. All advice given is NOT legal counsel.

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  #201  
Old 03-23-2017, 8:47 AM
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Originally Posted by BAJ475 View Post
So, there is no way for me to judge if the county was correct that the complaint failed to properly alleged a claim upon which relief could be granted. If you have read it, what is your opinion?
It's still the same as it was 4 years ago:

http://www.calguns.net/calgunforum/s...4&postcount=80

The Alameda attorney hammered the central problem which is that there is no allegation that the ordinance burdens or impedes an individual's right to acquire firearm, and even if there was it would not be provable. The "a board member lives 2 miles away and wants to buy guns there" doesn't cut it and frankly was pretty lame a la "I want two tone" in the Pena case. (By the way I'm criticizing the arguments not the person making them.) The plaintiffs will be really lucky if they get intermediate scrutiny and a trip back to district court. Still looking for the waiver issue in the record, Alameda attorney cited SER 14, not sure where that is.

Last edited by FABIO GETS GOOSED!!!; 03-23-2017 at 10:31 AM..
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  #202  
Old 03-23-2017, 10:24 AM
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Found the waiver document, it was the transcript of the hearing on the motion to dismiss. The district court judge told HokeySon that the judge was leaning towards tossing the case, and asked if the judge went that way would HokeySon "want to take another crack at the pleading" and HokeySon said "I really don't think so, Your Honor. I think that we have -- we have pled the sufficient facts." So the judge tossed the case without leave to amend and dropped this in a footnote in the opinion: "At oral argument on the Motion to Dismiss the FAC, plaintiffs conceded that they had no additional facts to allege in support of their claims." lol.
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  #203  
Old 03-23-2017, 4:15 PM
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Just for clarification, HokeySon IS a different lawyer than Kilmer right? I've heard reference to HokeySon and thought it was a different lawyer- or is that a pet name you have for Kilmer, Fabio? Sometimes your snark is so particularized I have trouble remembering the appendix as to whom you are sniping at at which time.
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  #204  
Old 03-23-2017, 4:31 PM
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Originally Posted by lowimpactuser View Post
Just for clarification, HokeySon IS a different lawyer than Kilmer right? I've heard reference to HokeySon and thought it was a different lawyer- or is that a pet name you have for Kilmer, Fabio? Sometimes your snark is so particularized I have trouble remembering the appendix as to whom you are sniping at at which time.
Hokeyson was a screen name for a lawyer here on CGN who was assisting/leading in this case and was removed from the case for various reasons. Some of it was not filing things on time.
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  #205  
Old 03-23-2017, 4:34 PM
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Originally Posted by lowimpactuser View Post
Just for clarification, HokeySon IS a different lawyer than Kilmer right? I've heard reference to HokeySon and thought it was a different lawyer- or is that a pet name you have for Kilmer, Fabio? Sometimes your snark is so particularized I have trouble remembering the appendix as to whom you are sniping at at which time.
Yes, a different lawyer. HokeySon was his user name on Calguns, real name Charles Hokanson. His rookie mistakes and stupid stuff like filing late provided FGG much opportunity for amusement and I guess CGF eventually ditched him.
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  #206  
Old 03-23-2017, 5:58 PM
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Thanks for the explanation guys.

Can you now explain what mentioning Hokanson has to do with the case or Kilmer? Sly reference that Fabio thinks kilmer is incompetent; incompetent in similar ways to Hokanson, or the case has similar deficiencies to Hokanson cases? I'm trying to understand the connection.
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  #207  
Old 03-23-2017, 6:17 PM
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HokeySon argued the motion to dismiss. There are some hilarious pleadings in this case where they had to disavow him lol. My go get em HokeySon post was a joke as he is long gone.
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  #208  
Old 04-06-2017, 8:59 AM
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opened a dedicated thread to my question
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  #209  
Old 10-10-2017, 11:54 AM
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Calguns loses en banc:

En Banc opinion
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  #210  
Old 10-10-2017, 12:22 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
Found the waiver document, it was the transcript of the hearing on the motion to dismiss. The district court judge told HokeySon that the judge was leaning towards tossing the case, and asked if the judge went that way would HokeySon "want to take another crack at the pleading" and HokeySon said "I really don't think so, Your Honor. I think that we have -- we have pled the sufficient facts." So the judge tossed the case without leave to amend and dropped this in a footnote in the opinion: "At oral argument on the Motion to Dismiss the FAC, plaintiffs conceded that they had no additional facts to allege in support of their claims." lol.
and

Quote:
Originally Posted by 9th circuit
In sum, based on the allegations in the complaint, Teixeira fails to state a plausible claim on behalf of his potential customers that the ordinance meaningfully inhibits residents from acquiring firearms within their jurisdiction.15

15 Teixeira waived his right to amend the complaint. When the district court asked whether he would like an opportunity to amend the pleadings, counsel for Teixeira declined, noting “we have pled the sufficient facts.”
Hokeyson is like herpes, the gift that keeps on giving!
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  #211  
Old 10-10-2017, 12:46 PM
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Totally predictable:

Quote:
Originally Posted by FABIO GETS GOOSED!!! View Post
The more apt comparison is with Nordyke, not Ezell. As I said earlier (before my post was deleted for snark lol), there literally is no burden whatsoever on any individual's right to acquire a firearm for self defense (assuming that the 2A right extends to acquisition). Had Teixeira actually included an individual purchaser as a plaintiff, maybe CGF could have made this kind of argument, but it would have been a sure fire loser for all the reasons chainsaw (and the Nordyke panel) have already mentioned. The gun dealer's "I have a constitutional right to open a gun store and sell guns anywhere I want" argument is even further removed from that.
vs.

Quote:
Originally Posted by 9th circuit
In sum, based on the allegations in the complaint, Teixeira fails to state a plausible claim on behalf of his potential customers that the ordinance meaningfully inhibits residents from acquiring firearms within their jurisdiction. As Judge Silverman observed in his dissent from the panel opinion, “[c]onspicuously missing from this lawsuit is any honest-to-God resident of Alameda County complaining that he or she cannot lawfully buy a gun nearby.”

***

Teixeira also suggests that, independent of the rights of his potential customers, the Second Amendment grants him a right to sell firearms. In other words, his contention is that even if there were a gun store on every square block in unincorporated Alameda County and therefore prospective gun purchasers could buy guns with exceeding ease, he would still have a right to establish his own gun store somewhere in the jurisdiction.

***

Teixeira alleges that Alameda County’s zoning ordinance effectively bars him from opening a new gun store in an unincorporated area of the County. But he does not—and, given the number of gun stores in the County as a whole and in the unincorporated areas, as well as the geography of the County and the distribution of people within it, likely cannot 21—allege that residents are meaningfully restricted in their ability to acquire firearms.

21 Again, Teixeira has waived any right to amend his complaint in this
litigation, see supra note 15. [Editor's note: ]

***

As we have demonstrated, the Second Amendment does not independently protect a proprietor’s right to sell firearms. Alameda County’s Zoning Ordinance, to the extent it simply limits a proprietor’s ability to open a new gun store, therefore does not burden conduct falling within the Amendment’s scope and is “necessarily allowed by the Amendment.” Peruta, 824 F.3d at 939; see also Marzzarella, 614 F.3d at 89.
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  #212  
Old 10-10-2017, 9:32 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
Totally predictable:



vs.
Not surprising, certainly.

Why did the 3 judge panel rule differently if this decision is so incredibly predictable? I certainly don't disagree with you as regards the flaws of this case, but why weren't they anything close to enough to sink the case in front of the 3 judge panel if these judges are all objective arbiters of law?
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  #213  
Old 10-11-2017, 8:25 AM
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  #214  
Old 10-11-2017, 1:15 PM
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Another 9th Circus cluster f***.
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  #215  
Old 10-12-2017, 7:47 PM
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Originally Posted by Two Nuggets View Post
Another 9th Circus cluster f***.
In this case, no. If you go back and read the early threads about this case, some of us who actually understand zoning regs called this one from the beginning and were very skeptical about the 2A angle on the suit. Of course back then, it wasn't very popular to have a dissenting opinion of CGF so our opinion of this case wasn't viewed with much respect (to put it mildly). So here we are...another loss by CGF that was completely predictable, even from us non-lawyers.
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  #216  
Old 10-12-2017, 7:57 PM
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Originally Posted by moleculo View Post
In this case, no. If you go back and read the early threads about this case, some of us who actually understand zoning regs called this one from the beginning and were very skeptical about the 2A angle on the suit. Of course back then, it wasn't very popular to have a dissenting opinion of CGF so our opinion of this case wasn't viewed with much respect (to put it mildly). So here we are...another loss by CGF that was completely predictable, even from us non-lawyers.
If it was so incredibly predictable, then explain the panel decision.
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  #217  
Old 10-12-2017, 8:16 PM
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If it was so incredibly predictable, then explain the panel decision.
My prediction was the case would not win due to zoning. The plaintiff plead 2A all the way ignoring zoning as an issue.

The panels decision was luck of the draw. En Banc in the 9th is to keep luck of the draw, not so lucky. Your whole theme on the 2A and the courts backed this up.
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  #218  
Old 10-12-2017, 8:51 PM
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My prediction was the case would not win due to zoning. The plaintiff plead 2A all the way ignoring zoning as an issue.

The panels decision was luck of the draw. En Banc in the 9th is to keep luck of the draw, not so lucky. Your whole theme on the 2A and the courts backed this up.
What moleculo and Fabio are arguing is that, essentially, the en banc decision is correct as a matter of law.

But if it's so predictably correct, then that means that the panel was not only incorrect, but wildly so, since otherwise the en banc panel decision would not be so easily predictable based on the law (which is a very different thing from a prediction based on the political leanings of the judges).

So my question to moleculo and/or Fabio is: if the en banc decision was so incredibly predictable on the basis of the argued law, then how do you explain the panel's decision? Is it your claim that the panel got the law wildly wrong? That must be your claim if you are to substantiate your prediction on the basis of law alone.

And if the panel got the law wildly wrong, then in what way did it get it wrong? Which parts of the panel decision are incorrect, and on what basis?
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  #219  
Old 10-12-2017, 9:19 PM
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The answer to KCBrown's question is in the 3 judge panel dissent and the crux of it was actually commented on in that same majority's opinion:

Quote:
Would a claim challenging an Alameda County ordinance that targeted bookstores be nothing more than “a mundane zoning dispute dressed up as a [First] Amendment challenge”? Surely the residents of Alameda County could acquire their literature at other establishments that, for whatever reason, had not been shuttered by the law.
The answer is Yes, such a claim would be (is) a mundane zoning dispute dressed up to be something it is not if the rights of the citizens in that county were not really burdened because there are plenty of places to buy books that are only minutes away. The en banc panel agreed. Change "bookstore" in that quote for "strip club" (also a protected 1A business) and tell me if this suit even passes the "smell test". It does not. I can't explain why a 3 judge panel thought otherwise, but in this case the ruling of the en banc panel was completely predictable.
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  #220  
Old 10-12-2017, 9:36 PM
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Originally Posted by moleculo View Post
in this case the ruling of the en banc panel was completely predictable.
I'll suggest that in all 2A-related cases the en banc panel decisions of the 9th Circuit are completely predictable.
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  #221  
Old 10-12-2017, 10:46 PM
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Default Teixeira v. Alameda County: en banc LOSS 10/10/17

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Originally Posted by moleculo View Post
The answer to KCBrown's question is in the 3 judge panel dissent and the crux of it was actually commented on in that same majority's opinion:
That doesn't answer the question. The question is how is the 3 judge panel's decision obviously and blatantly wrong such that the en banc decision is easily predictable strictly as a matter of law?

The panel decision dissent points out that the right is not foreclosed by the Alameda County law. It does not point out that it is not infringed by it.


Quote:
The answer is Yes, such a claim would be (is) a mundane zoning dispute dressed up to be something it is not if the rights of the citizens in that county were not really burdened because there are plenty of places to buy books that are only minutes away. The en banc panel agreed. Change "bookstore" in that quote for "strip club" (also a protected 1A business) and tell me if this suit even passes the "smell test". It does not. I can't explain why a 3 judge panel thought otherwise, but in this case the ruling of the en banc panel was completely predictable.
You can't change "bookstore" for something that is less protected like a "strip club" because while the speech of a strip club is protected, that speech is not anything like the lynchpin of the right to speech. Books, however, are much closer to that (newspapers are probably the closest since there is explicit protection for the press). Similarly, guns (particularly, it seems, handguns) are the lynchpin of the right to arms. As such, the comparison with a bookstore is the one that is more apt here, with a comparison with news stands being the most apt.

So: do you truly believe that a zoning ordinance that specifically forbade bookstores (or news stands) and not other establishments would withstand a First Amendment challenge? That clearly must be what you claim here.



One last thing: if the law in question were a state law that forbade establishment of gun stores with a single exemption of only one gun store, located in Redding, do you believe the challenge to that law should yield the same result? After all, people who want to buy a gun would have an alternative, would they not? Their right would not be "shuttered" (the dissent's wording) by the law due to the existence of that one gun store, right?
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Last edited by kcbrown; 10-14-2017 at 1:39 PM..
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  #222  
Old 10-13-2017, 7:02 AM
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Originally Posted by kcbrown
What moleculo and Fabio are arguing is that, essentially, the en banc decision is correct as a matter of law
Nope, guess again lol. The panel decision was correct, until it wasn't.
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  #223  
Old 10-13-2017, 8:38 AM
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Default Teixeira v. Alameda County: en banc LOSS 10/10/17

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Originally Posted by FABIO GETS GOOSED!!! View Post
Nope, guess again lol. The panel decision was correct, until it wasn't.


What? Really? Are you SURE??

Because if that's the case, then the decision is arbitrary, since the law didn't change between the panel decision and the en banc decision.

You can't have it both ways. Either at most one of the decisions is correct across time as long as the law itself doesn't change, or the decision itself is arbitrary. Which is it?


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Last edited by kcbrown; 10-13-2017 at 9:40 AM..
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  #224  
Old 10-13-2017, 8:43 AM
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Nope, guess again lol. The panel decision was correct, until it wasn't.
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What? Really? Are you SURE??

Because if that's the case, then the decision is arbitrary, since the law didn't change between the panel decision and the en band decision.

You can't have it both ways. Either only one of the decisions is correct across time as long as the law itself doesn't change, or the decision itself is arbitrary. Which is it?


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I think what Fabio is saying, is that in appelate court the judges wanted to hear what they heard from plaintiffs.

En Banc, was punching holes in the plaintiffs arguments that they thought the appelate courts should have seen.

Until the SCOTUS makes the 2A crystal clear, the 9th will punt on every 2A case they can no matter what. Unless of course the arguement is crystal. OR when they argument is made to sound crystal clear by the plaintiffs.

FGG, didn't just predict this case he actually punched the same holes in plaintiffs arguments that the En Banc did prior to En Banc.

Last edited by taperxz; 10-13-2017 at 8:45 AM..
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Old 10-13-2017, 8:56 AM
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If its worth anything, there is another gun store that opened up in the Bay Area with the help of this case.

After reading this case and understanding the nuances of it, i actually paid attention to the zoning laws and opened a store up knowing that zoning would not be an issue. Right in the belly of beast of Rep. Jackie Speirs district.

Zoning was the very first thing we needed to take into account in order to get a business license.

If they had not let us open and there were not zoning issues, then i might have taken a 2A stance.
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  #226  
Old 10-13-2017, 9:48 AM
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I think what Fabio is saying, is that in appelate court the judges wanted to hear what they heard from plaintiffs.

En Banc, was punching holes in the plaintiffs arguments that they thought the appelate courts should have seen.
If that were what he was saying, then he'd be saying that the panel decision was incorrect from the start.

But that's not what he said. He said that the panel decision was correct until the en banc decision came out. Unless the decisions are arbitrary, his statement is inherently contradictory.


Quote:
Until the SCOTUS makes the 2A crystal clear, the 9th will punt on every 2A case they can no matter what. Unless of course the arguement is crystal. OR when they argument is made to sound crystal clear by the plaintiffs.
I disagree with that last. If the 2nd Amendment is involved, then the 9th Circuit will decide against it unless the case is an exact match in both law and fact with a Supreme Court decision. Which is to say, if the law and facts are identical to those of Caetano, Heller, or McDonald, then the 9th Circuit (during en banc proceedings if nothing else) will (probably -- there's no guarantee even under those circumstances) side with the plaintiffs. Otherwise, it'll side with the government, no matter how clear the plaintiffs' arguments. Jackson should be sufficient proof of this.


Quote:
FGG, didn't just predict this case he actually punched the same holes in plaintiffs arguments that the En Banc did prior to En Banc.
Yes, I realize that. But that does nothing to address my question. That an argument has holes does not automatically mean that the argument loses in court. Otherwise one has to contend that the prevailing party's arguments are always free of holes when they win.

The main "hole" in the argument put forth by the plaintiffs is that there are other stores from which people can buy guns. But that leads directly to my question: if a California law forbade all gun stores save for one located in Redding, why wouldn't that law survive for exactly that reason?
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Last edited by kcbrown; 10-13-2017 at 10:23 AM..
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  #227  
Old 10-13-2017, 10:36 AM
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What? Really? Are you SURE??

Because if that's the case, then the decision is arbitrary, since the law didn't change between the panel decision and the en banc decision.

You can't have it both ways. Either at most one of the decisions is correct across time as long as the law itself doesn't change, or the decision itself is arbitrary. Which is it?


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Old 10-13-2017, 10:49 AM
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Originally Posted by dfletcher View Post
I may be reading too simply but took it in a "the law is what 9 old men say it is" vein. Justice is the perception of a legitimized process, not the result.
Then the law is arbitrary, since it means whatever 9 old men want it to mean.

We already knew this. But seeing Fabio say the equivalent of that is something else entirely.
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Old 10-14-2017, 9:42 AM
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if a California law forbade all gun stores save for one located in Redding, why wouldn't that law survive for exactly that reason?
It was as if the the court was saying that a little bit of tyranny is ok, as long as it's only a little bit. If it's too much tyranny, then that's too much, but a little is ok (of course I'm making it sound ridiculous on purpose).

That's kind of how I read the case. So the one gun store in the whole state (i.e. the Mexican solution) would be too much tyranny , or at least I would hope that they would rule that way, who knows.

I felt like the Brea dissent was the real decision in the case. The majority asked does it burden the core of the right, and they found yes it does a little but then claimed it was the same as nothing.

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Old 10-14-2017, 1:45 PM
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This decision, and others like it, should make it abundantly clear: as far as the 9th Circuit and other hostile courts are concerned, any and every regulation of the right to arms is Constitutional so long as it does not entirely forbid exercise of the right (and even combinations that result in a complete ban may be considered "Constitutional" because what matters to these courts is only the individual laws being challenged, not the totality of their effect in concert).

Which is to say, anything short of a complete ban is perfectly okay. Mexico's approach would be "Constitutional" as far as these courts are concerned.

What other Constitutionally-protected rights are treated that way by the courts? None, right? How, then, is the "right" to keep and bear arms not being treated as a second-class right by these courts? How, then, are their decisions correct as a matter of law unless it is permissible to treat the right to arms as a second-class "right"?
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Old 10-14-2017, 1:56 PM
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From Bea's dissent:

Quote:
For the majority, a challenge to the Alameda Ordinance requires that the Ordinance be not just a burden to the exercise of Second Amendment rights, but a “meaningful[],” Majority Op. 21, or “substantial,” Majority Op. 22, burden before any type of judicial scrutiny, beyond the very permissive “rational review” standard, be applied. This requirement misreads our precedent in United States v. Chovan, 735 F.3d 1127 (9th Cir. 2013) in two ways.
Well, since Texeira is an en banc decision, it overrides and replaces Chovan as regards the hurdles the plaintiff has to go through. As of Texeira, plaintiffs must now show that the burden on the right is "meaningful" and/or "substantial" before the court will even consider what level of scrutiny to apply. While the above says that, absent such a showing, you get rational basis review, the totality of Texeira is such that the government automatically wins under those circumstances. Not even rational basis is needed for the government to prevail anymore (per Bea's dissent, the County itself did not consider the presence of a gun store to be any sort of danger to the surrounding residents, and thus even a rational basis for the law is absent. Since the government won anyway, that logically demands that the plaintiffs show that the burden on the right is "meaningful" and/or "substantial" before the court will even consider the possibility of deciding in the plaintiffs' favor).


So as of now, in the 9th Circuit, this is what you have:
  • If the plaintiffs show that the burden is "substantial" and/or "meaningful", then:
    • If the right is foreclosed, then you get strict scrutiny
    • If the right is not foreclosed, you get "intermediate" scrutiny
  • But if the plaintiffs fail to show that the burden is not "substantial" and/or "meaningful", then the government wins. Not even rational basis need be applied.

You have to hand it to the 9th Circuit here. The above neatly sidesteps any claim that rational basis does not apply to 2nd Amendment cases, since when the burden is not "substantial" and/or "meaningful", the 9th Circuit doesn't apply rational basis at all, but rather just gives the government the win.
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Old 10-14-2017, 6:20 PM
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Originally Posted by kcbrown View Post
From Bea's dissent:
  • If the plaintiffs show that the burden is "substantial" and/or "meaningful", then:
    • If the right is foreclosed, then you get strict scrutiny
    • If the right is not foreclosed, you get "intermediate" scrutiny
  • But if the plaintiffs fail to show that the burden is not "substantial" and/or "meaningful", then the government wins. Not even rational basis need be applied.
I have no doubt that the 9th would accept having one gun store in Redding. However, to apply your test to this scenario, I think you could make a fairly easy case for a "substantial" or "meaningful" burden in that situation. Then you would end up with intermediate scrutiny since the right isn't entirely foreclosed (although it would be for some). They would be taking gun stores out of areas with no substantial gun problems. To me that means it fails intermediate scrutiny, but I'm not the 9th, they could claim the whole population is in danger.
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Old 10-14-2017, 8:14 PM
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I have no doubt that the 9th would accept having one gun store in Redding. However, to apply your test to this scenario, I think you could make a fairly easy case for a "substantial" or "meaningful" burden in that situation. Then you would end up with intermediate scrutiny since the right isn't entirely foreclosed (although it would be for some). They would be taking gun stores out of areas with no substantial gun problems. To me that means it fails intermediate scrutiny, but I'm not the 9th, they could claim the whole population is in danger.
I put quotes around "intermediate" for a reason. In the 9th Circuit and other hostile courts, "intermediate" scrutiny is a dressed up version of rational basis. The court will only insist that there be a postulated relationship between the law and the government interest in question. It will defer to the legislature for the question of whether or not the evidence supports the ability of the law to achieve the government interest in question.

As such, with a single gun store in Redding, the law will meet the requirements of that "intermediate" scrutiny since the legislature has already made the decision that the law will achieve its goals of "public safety", "public safety" is always a valid government interest, and increasing the difficulty of acquiring firearms is a valid means of achieving that interest since the legislature has determined that fewer guns in the hands of the citizenry yields greater "public safety" and the courts claim that the legislature, and not the courts, is the proper body for making such determinations.


Of course, those same courts are quick to step in to make such determinations themselves when the right in question is abortion. But then, abortion is a first-class right which deserves the utmost of protection, while the Constitutionally-protected right to arms is a second-class right that is hardly worth the court's time, so it's perfectly understandable that the courts would treat the two very differently.
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Old 10-14-2017, 9:29 PM
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Originally Posted by kcbrown View Post
I put quotes around "intermediate" for a reason. In the 9th Circuit and other hostile courts, "intermediate" scrutiny is a dressed up version of rational basis. The court will only insist that there be a postulated relationship between the law and the government interest in question. It will defer to the legislature for the question of whether or not the evidence supports the ability of the law to achieve the government interest in question.

As such, with a single gun store in Redding, the law will meet the requirements of that "intermediate" scrutiny since the legislature has already made the decision that the law will achieve its goals of "public safety", "public safety" is always a valid government interest, and increasing the difficulty of acquiring firearms is a valid means of achieving that interest since the legislature has determined that fewer guns in the hands of the citizenry yields greater "public safety" and the courts claim that the legislature, and not the courts, is the proper body for making such determinations.


Of course, those same courts are quick to step in to make such determinations themselves when the right in question is abortion. But then, abortion is a first-class right which deserves the utmost of protection, while the Constitutionally-protected right to arms is a second-class right that is hardly worth the court's time, so it's perfectly understandable that the courts would treat the two very differently.
Given this decision and other 9th circuit decisions, would it be your position that decade long legal cases won't ultimately result is measurable changes to gun laws in California?

We may have changes to SCOTUS soon, but nothing is certain. Even with changes to SCOTUS many of these case may still not get cert, so we're still stuck with the 9th. I was thinking that breaking up the 9th might allow for the judges to respect each other more, which is why I think the D.C. circuit didn't go en banc on the Grace/Wrenn, even with that I still don't think things will change much in the 9th.
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Old 10-15-2017, 12:36 PM
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Given this decision and other 9th circuit decisions, would it be your position that decade long legal cases won't ultimately result is measurable changes to gun laws in California?
Yes, pretty much. The only thing that will change that is a significant change to the composition of the Supreme Court such that new appointees are extremely strong supporters of the right to arms.

Every restriction that we've tried to get overturned and failed will have to be re-litigated.


Quote:
We may have changes to SCOTUS soon, but nothing is certain. Even with changes to SCOTUS many of these case may still not get cert, so we're still stuck with the 9th. I was thinking that breaking up the 9th might allow for the judges to respect each other more, which is why I think the D.C. circuit didn't go en banc on the Grace/Wrenn, even with that I still don't think things will change much in the 9th.
The problem isn't lack of mutual respect between judges. The problem is lack of respect of the Constitution itself and, especially, the foundational purposes for which it and the Bill of Rights were put into place. Very few judges recognize and respect the primary reason the 2nd Amendment was put into place. A few do, e.g. Kozinski on the 9th Circuit:

Quote:
Originally Posted by Silveira v Lockyer, 328 F. 3d 567 at 570, Kozinski, A. dissenting
My excellent colleagues have forgotten these bitter lessons of history. The prospect of tyranny may not grab the headlines the way vivid stories of gun crime routinely do. But few saw the Third Reich coming until it was too late. The Second Amendment is a doomsday provision, one designed for those exceptionally rare circumstances where all other rights have failed — where the government refuses to stand for reelection and silences those who protest; where courts have lost the courage to oppose, or can find no one to enforce their decrees. However improbable these contingencies may seem today, facing them unprepared is a mistake a free people get to make only once.
And even the Heller majority in the Supreme Court:

Quote:
Originally Posted by District of Columbia v Heller, 554 US 570
There are many reasons why the militia was thought to be "necessary to the security of a free State." See 3 Story § 1890. First, of course, it is useful in repelling invasions and suppressing insurrections. Second, it renders large standing armies unnecessary—an argument that Alexander Hamilton made in favor of federal 2801*2801 control over the militia. The Federalist No. 29, pp. 226, 227 (B. Wright ed.1961). Third, when the able-bodied men of a nation are trained in arms and organized, they are better able to resist tyranny.
But that last purpose has been completely ignored by most courts in their zeal to rid the nation of the dangers attendant with the right to arms.
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Old 10-15-2017, 3:10 PM
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The problem with these types of cases is what we knew from the beginning: judges can make each side fit their narrative, so whoever has the numbers wins. No different than stacking the Supreme Court.

Back to this case, sure there are "holes" in the plaintiff's argument, but the holes are there only because the court has adopted a framework that creates these holes so the defendants can win. Claiming that the "holes" are somehow fundamental and not a consequence of the arbitrary nature of the court is disingenuous. There were holes in the desegregation arguments and the courts upheld it. Until they didn't.

The only good coming out of these types of decisions is the understanding that this has nothing to do with the law and everything to do with the ideology. Put enough judges on a court and all of this is reversed. The battle is no longer to make a case in the court, but to make the court to fit the ideology.

Can't wait to see "living constitution" judges and justices appointed. No, not the hard left ideologues, but the far right ideologues. Staying true to the principles has only hurt us in the past. Time to start playing the big boys' game. Please proceed, Mr President...
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Old 10-15-2017, 4:49 PM
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The problem with these types of cases is what we knew from the beginning: judges can make each side fit their narrative, so whoever has the numbers wins. No different than stacking the Supreme Court.
Yes. But the real problem isn't so much that the judges can make each side fit their narrative, but that they do.

Which is to say, the claim is that judges are supposed to be objective arbiters of law. That is a direct contradiction to the actions of judges who make their decisions fit their preferred narrative. And yet, the latter is what happens.


Quote:
The only good coming out of these types of decisions is the understanding that this has nothing to do with the law and everything to do with the ideology. Put enough judges on a court and all of this is reversed. The battle is no longer to make a case in the court, but to make the court to fit the ideology.

Can't wait to see "living constitution" judges and justices appointed. No, not the hard left ideologues, but the far right ideologues. Staying true to the principles has only hurt us in the past. Time to start playing the big boys' game. Please proceed, Mr President...
So it seems.

Of course, you realize that in doing that, we will lose in the end. Not necessarily because the resulting judges won't protect the liberties that we want protected right now. No, it's because they won't protect the liberties that we may want protected later, precisely because they won't stay true to the foundational principles.

It is only if their ideology is the protection of liberty that we will see them protect liberty in general. Absent that, we will continue to see liberty destroyed in front of us, with even "our" judges looking on approvingly.
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Old 10-15-2017, 8:40 PM
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The question is how is the 3 judge panel's decision obviously and blatantly wrong such that the en banc decision is easily predictable strictly as a matter of law?

The panel decision dissent points out that the right is not foreclosed by the Alameda County law. It does not point out that it is not infringed by it.

So: do you truly believe that a zoning ordinance that specifically forbade bookstores (or news stands) and not other establishments would withstand a First Amendment challenge? That clearly must be what you claim here.
KC Brown, you posed the correct questions. Correct "zoning laws" is not an analysis.

First, the fundamentals of constitutional law applied to businesses are the dormant commerce clause, 1st Amendment commercial speech, 14th Amendment right to a livelihood, etc. The right to contract is considered by the US Supreme Court to be a dead letter.

The First Amended Complaint did not plead these theories of law, perfectly appropriate to a business. Rather, the plaintiffs' complaint plead two causes of action under the Second Amendment and two causes of action under the Equal Protection Clause of the XIV Am. US Constit.

To be fair to the Michel firm, they were retained to bring a 2nd Amendment case, and they did. The 2nd Amendment doctrine is in its infancy. The Plaintiffs in the Teixeira case engaged in experimental law.

Second, on 09/09/13, the District Court order dismissed the case under FRCP 12(b)(6) failure to state a claim, i.e. the pleadings are defective such that the case may resolved without reaching the merits. We have ad nauseum pointed out that the Supreme Court in Heller carved out exceptions to the 2nd Amendment that consume the entire right to bear arms. The District Court precisely and easily cited Heller for the proposition that the states may regulate the possession and sale of firearms:
The first step of the analysis is dispositive in this case: under the Supreme Court‟s decisions in Heller and McDonald, the Ordinance is presumptively lawful. Critically, as previously noted, the Supreme Court has cautioned that nothing in the Heller opinion “should be taken to cast doubt on . . . 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.” Heller, 554 U.S. at 626-27. The Supreme Court explained that its list of “presumptively lawful regulatory measures” was “not [] exhaustive.” Id. at 627 n.26.
09/09/13 Order granting D motion to dismiss, pp. 9: 14-22

The Heller decision makes clear that state laws controlling the sale of firearms are presumptively valid. Id. The language from the 09/09/13 citing to Heller is dispositive and predicatable.

Third, on 05/16/16 in Teixeira, the 3 judge panel decision from the Ninth Circuit confronted the all consuming exception from Heller, correctly asked the logical question of "how are citizens to exercise a fundamental right to own something if they cannot legally buy it?" by turning to another classic case Carey and the law prohibiting contraceptives, "“[l]imiting the distribution of nonprescription contraceptives to licensed pharmacists clearly imposes a significant burden on the right of the individuals to use contraceptives. . ." pp. 16.

However, 3 judge panel in Teixeira turned to non-judicial support, "The historical record indicates that Americans continued to believe that such right included the freedom to purchase and to sell weapons. In 1793, Thomas Jefferson noted that “[o]ur citizens have always been free to make, vend, and export arms. It is the constant occupation and livelihood of some of them.” pp. 16.

Once the panel determined that a fundamental right to sell and buy firearms exists, then it turned fatally to analyzing what level of scrutiny should apply (even though Heller indicated that all regulations are presumptively valid).

The 3 judge panel concluded that "The district court erroneously believed that the Ordinance fell outside the scope of the Second Amendment and thus warranted no more than rational basis review" (pp. 28) and that, "the intermediate scrutiny standard [applies], all forms of the standard require (1) the government’s stated objective to be significant, substantial, or important; and (2) a reasonable fit between the challenged TEIXEIRA V. 28 COUNTY OF ALAMEDA regulation and the asserted objective.” Id. 27-28. The 3 judge panel court remanded the matter for the trial court to apply intermediate scrutiny:
Alameda County’s Ordinance may very well be permissible. Thus far, however, the County has failed to justify the burden it has placed on the
right of law-abiding citizens to purchase guns. The Second Amendment requires something more rigorous than the unsubstantiated assertions offered to the district court.

Consequently, we reverse the dismissal of Teixeira’s well pled
Second Amendment claims and remand for the district court to subject Alameda County’s 500-foot rule to the proper level of scrutiny.
Id. pp. 34.

The level of scrutiny is a problem since the Heller decision's "presumptively" valid language is lower than rational basis shifting the burden entirely to the plaintiff.

The 10/10/17 En Banc decision reversed explaining, "Our conclusion that the Second Amendment does not confer a freestanding right to sell firearms is fully consistent with Heller, which closely examined the historical record and concluded that, at its core, the Second Amendment protects defense of hearth and home.” 554 U.S. at 635," i.e. the right to sell arms is not a fundamental right. Pp. 35. On the other hand, a law prohibiting entirely prohibiting sales would be unconstitutional, "would be untenable under Heller,” id., because a total prohibition would severely limit the ability of citizens to acquire firearms." Id. pp. 37. However, because the Alameda County ordinance applies to the unincorporated areas of the county and not to cities, where persons can currently buy firearms, citizens are only incidentally inconvenienced, "Marzzarella did not consider a situation in which the right of citizens to acquire and keep arms was not significantly impaired, yet commercial retailers were claiming an independent right to engage in sales." Id. at 37.

With regard to a 1st Amendment claim (perhaps in the opposition to the FRCP 12(b)(6) motion the Plaintiffs offered to amend to add a 1st Am claim), the en banc order explained that unlike selling of books and newspapers communicating a point of view, the selling of arms does not implicate the 1st Amendment, "Alameda County’s Zoning Ordinance, to the extent it simply limits a proprietor’s ability to open a new gun
store, therefore does not burden conduct falling within the Amendment’s scope . . ." i.e. persons can buy an existing gun business.

Heller is the problem with its expansive exception concluding all regulation of arms by the states to be presumptively valid.

The Teixeira case was a valuable effort because it forced the development of the contours of 2nd Am. doctrine in the 9th Circuit.

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Old 10-16-2017, 8:39 AM
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Back to this case, sure there are "holes" in the plaintiff's argument, but the holes are there only because the court has adopted a framework that creates these holes so the defendants can win.
I had a back and forth with a liberal lawyer friend of mine (who is also a judge) about this and he said something along the lines of "why is it a big deal if they have to drive 3-4hrs to buy a gun?". When I asked whether or not driving 3-4hrs to get an abortion would be feasible he replied that it was "different". His mentality seems to be the prevailing mood for justices out here.
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Old 10-16-2017, 1:50 PM
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Second, on 09/09/13, the District Court order dismissed the case under FRCP 12(b)(6) failure to state a claim, i.e. the pleadings are defective such that the case may resolved without reaching the merits. We have ad nauseum pointed out that the Supreme Court in Heller carved out exceptions to the 2nd Amendment that consume the entire right to bear arms. The District Court precisely and easily cited Heller for the proposition that the states may regulate the possession and sale of firearms:
The first step of the analysis is dispositive in this case: under the Supreme Court‟s decisions in Heller and McDonald, the Ordinance is presumptively lawful. Critically, as previously noted, the Supreme Court has cautioned that nothing in the Heller opinion “should be taken to cast doubt on . . . 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.” Heller, 554 U.S. at 626-27. The Supreme Court explained that its list of “presumptively lawful regulatory measures” was “not [] exhaustive.” Id. at 627 n.26.
09/09/13 Order granting D motion to dismiss, pp. 9: 14-22

The Heller decision makes clear that state laws controlling the sale of firearms are presumptively valid. Id. The language from the 09/09/13 citing to Heller is dispositive and predicatable.
Yes, I agree that this is the crux of the matter. Judge Bea in his dissent attempts to address this:

Quote:
Originally Posted by Texeira v County of Alameda en banc decision, pp. 59-60
In my view, the County cannot avail itself of the italicized limitations for “longstanding . . . laws imposing conditions and qualifications on the commercial sale of arms,” because it has failed to carry its burden of establishing that the Ordinance is “longstanding” or is in a class of longstanding prohibitions as to the location of firearms sales and services in particular. Indeed, the County has offered no evidence demonstrating that the Ordinance is the kind of regulation which Americans would have seen as permissible at the time of the adoption of the Second Amendment. See Teixeira, 822 F.3d at 1058. Though the majority has unearthed its own historical narrative to that effect, see Majority Op. 28–34, none of those materials were presented by the County to the district court or in the County’s brief on appeal.

There can be no doubt that evidence the regulations are “longstanding” is required to claim Heller’s carve-out for “presumptively lawful” “conditions and qualifications on the commercial sale of arms.” In the above-quoted passage from Heller, the object of the preposition “on” in the phrase “cast doubt on” is a disjunctive parallel construction: “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.” Thus, under the series-qualifier canon, the adjective “longstanding” applies to each phrase within the parallelism—including “laws imposing conditions and qualifications on the commercial sale of arms.” See Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 147–151 (West 2012).
So that raises the question: is Bea correct in terms of how to properly read the "presumptively lawful" passage in Heller? The entire case turns on this.

Indeed, the panel opinion also seems to interpret the passage the same way, since it says:

Quote:
Originally Posted by Teixeira v County of Alameda, 822 F. 3d 1047 (2016) at 1057
The proper question, therefore, is whether Alameda County's ordinance is the type of longstanding "condition[]" or "qualification[] on the commercial sale of arms," Heller, 554 U.S. at 626-27, 128 S.Ct. 2783, whose interference with the right to keep and to bear arms historically would have been tolerated.
(emphasis mine)


Quote:
The level of scrutiny is a problem since the Heller decision's "presumptively" valid language is lower than rational basis shifting the burden entirely to the plaintiff.
This is true under the assumption that the law in question meets the "presumptively lawful" qualification. But does it, if the law must also be "longstanding"?


Quote:
Heller is the problem with its expansive exception concluding all regulation of arms by the states to be presumptively valid.
If indeed "presumptively lawful" is independent of "longstanding", then you are absolutely correct here. But if all regulation of arms by the states are presumptively valid, then how is it that total bans are excluded from that?
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Last edited by kcbrown; 10-16-2017 at 2:36 PM..
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