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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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  #281  
Old 08-05-2017, 7:45 AM
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Originally Posted by press1280 View Post
UOC was never asked for by Nichols. CA9 will either give him some form of LOC or nothing at all. I don't see the court granting a remedy that simply isn't being even suggested by either Nichols or the state.

The easiest way out for the court is to strike the LOC ban but map out a blueprint for the state to simply make LOC permits available statewide, but that those can follow the may-issue scheme just like CCW. Just look to the concurrence in the en banc opinion of Peruta where they stated that even if CCW were protected under the 2A, that the may-issue scheme was still constitutional. This tells me those same judges will do the same under a may-issue OC scheme.
Um, yes he has....

http://blog.californiarighttocarry.o...1116531126.pdf

=8-|
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  #282  
Old 08-05-2017, 10:30 AM
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Sorry to interrupt your discussion but I saw there was new content here and want to see where this case was . I went back 3 pages and found no actual updates .

Where does this case stand now ? Is it at the 9th now ? Has it been heard by the 9th ?

Thanks Metal
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  #283  
Old 08-05-2017, 12:00 PM
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Originally Posted by Metal God View Post
Sorry to interrupt your discussion but I saw there was new content here and want to see where this case was . I went back 3 pages and found no actual updates .

Where does this case stand now ? Is it at the 9th now ? Has it been heard by the 9th ?

Thanks Metal
There is a post in there somewhere saying that the case is awaiting assignment of a hearing date in the Ninth. Briefing was complete months ago, with a recent update for the Wrenn v. D.C. decision. Mr. Nichols thinks it will be scheduled this fall, but I am a little fuzzy as to what month. October?
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  #284  
Old 08-05-2017, 12:28 PM
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Hmm, lot's of good discussion and ideas going on here. I am persuaded that if any relief is granted, it will be worse than a loss. As I've said before, I cannot see the court allowing LOC, even with the existing restrictions as to sensitive places--i.e., all public buildings and all GFSZs. On the other hand, I cannot see it concluding that there is no right to carry outside the home--wiping out "bear", which would assure a grant of review. So instead it will simply strike down the UOC ban, leaving us with a right in name but not in function, since the exercise of that right is still subject to the same sensitive places law and the GFSZ Act that Nichols did not challenge. Moreover, this approach, i.e. unlicensed UOC, avoids the issue of any licensing scheme on a right to bear arms in which a governmental official decides who gets to bear and who doesn't is an infringement as to all who are denied, a direct affront to the "shall not be infringed" language in the amendment...To me, UOC is worse than a loss, but to the court, a delightful poke in the eye to any who wish to exercise their rights.

Last edited by TruOil; 08-05-2017 at 12:33 PM..
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  #285  
Old 08-05-2017, 2:13 PM
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Originally Posted by TruOil View Post
There is a post in there somewhere saying that the case is awaiting assignment of a hearing date in the Ninth. Briefing was complete months ago, with a recent update for the Wrenn v. D.C. decision. Mr. Nichols thinks it will be scheduled this fall, but I am a little fuzzy as to what month. October?
The Ninth Circuit Oral Arugments Calendar is here:

http://www.ca9.uscourts.gov/calendar/

Typically they list the cases 10 weeks before the hearing date. (The past week's updates were for cases scheduled for mid-October.) There is some reason to believe (too long to go in to) that Nichols will be scheduled for the week of November 6 in Pasadena, which means that if orals are held, that they would be listed in the calendar in the next TWO WEEKS. If it is not listed for that date, then... never mind. There is still the unanswered request to have the case heard initially by an en banc panel...

Usually that calendar is updated on Monday or Tuesday, but last week it was updated with the next week's schedule on Sunday.
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  #286  
Old 08-06-2017, 8:08 AM
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Thank you for the update
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  #287  
Old 08-06-2017, 11:41 AM
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I think he's asking for all of the above, not just UOC in isolation and I don't think the court can necessarily "split the baby" and give him just UOC.
There's no RTKBA precedent that I know of where firearms are allowed to be carried ONLY in a unloaded manner.
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  #288  
Old 08-06-2017, 4:50 PM
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Default Nichols Vs. Brown update...

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Originally Posted by mrrabbit View Post
They can strike down the ban on UNLOADED open carry - claiming that satisfies Heller....and ignore Nichol's request for action on Loaded Open Carry.
Technically speaking, they can only do that if the text of the law explicitly calls out unloaded carry as a separate thing. The courts cannot add language to the law. They can change the meaning of what's there, or can strike language, but that's it.

It does appear that section 26350 explicitly calls out unloaded open carry as prohibited, so it is possible for the court to strike that. Nichols does explicitly call for that in his prayer for relief, so it is a possibility on the table.


But that said, why would the 9th Circuit give us anything at all, even if it's just unloaded open carry, when it doesn't have to? It has plenty of options for completely eviscerating the right while claiming to not be doing so. Since it has such options, it's essentially guaranteed it'll use one of them.
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  #289  
Old 08-06-2017, 7:36 PM
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Originally Posted by kcbrown View Post
Technically speaking, they can only do that if the text of the law explicitly calls out unloaded carry as a separate thing. The courts cannot add language to the law. They can change the meaning of what's there, or can strike language, but that's it.

It does appear that section 26350 explicitly calls out unloaded open carry as prohibited, so it is possible for the court to strike that. Nichols does explicitly call for that in his prayer for relief, so it is a possibility on the table.


But that said, why would the 9th Circuit give us anything at all, even if it's just unloaded open carry, when it doesn't have to? It has plenty of options for completely eviscerating the right while claiming to not be doing so. Since it has such options, it's essentially guaranteed it'll use one of them.
Because if they don't - effectively a total ban - it increases the likelihood of SCOTUS taking up an appeal by Nichols.

And THAT - IF SCOTUS is consistent - increases the likelihood of both LOC and UOC getting struck.

They're not going to leave that to chance...they cherry picked and ran with the "cherry" in Peruta and got away with it - they'll do it again in Nichols - and in my opinion - get away with it again.

=8-|
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  #290  
Old 08-06-2017, 7:45 PM
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Can they choose not to hear it ?
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Anyone else find it sad that those who preach tolerance CAN'T allow the existence, occurrence, or practice of (something that they do not necessarily like or agree with) without interference.

If you have the time check this out https://www.youtube.com/watch?v=04wyGK6k6HE or a picture of Mohamed https://www.youtube.com/watch?v=1VwpwP_fIqY
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  #291  
Old 08-06-2017, 9:34 PM
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Originally Posted by mrrabbit View Post
Because if they don't - effectively a total ban - it increases the likelihood of SCOTUS taking up an appeal by Nichols.
With the primary argument being one about open carry and all of the history that comes with it.

That's different enough that it might catch SCOTUS' attention, but it's important to realize that SCOTUS was perfectly happy to let an essentially identical ban stand in Woollard.

Methinks you ascribe far too much fear of SCOTUS on the part of the 9th Circuit here. I guarantee they're not afraid of SCOTUS at all, since it has refused Every Single Firearms 2A Case since McDonald. And the political situation at SCOTUS has not changed since then either, nor will it until the composition changes.

A change in composition is the only thing the 9th reasonably has to fear. But if that changes, then ANY reasonable carry case will result in securing "bear". So the 9th has absolutely nothing to lose by eviscerating the right.




Quote:

They're not going to leave that to chance...they cherry picked and ran with the "cherry" in Peruta and got away with it - they'll do it again in Nichols - and in my opinion - get away with it again.
Oh, I agree. They'll get away with it, and do so by denying the right in exactly the same way so many other courts have. We will get absolutely nothing from the 9th Circuit




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  #292  
Old 08-06-2017, 11:22 PM
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Originally Posted by kcbrown View Post
With the primary argument being one about open carry and all of the history that comes with it.

That's different enough that it might catch SCOTUS' attention, but it's important to realize that SCOTUS was perfectly happy to let an essentially identical ban stand in Woollard.

Methinks you ascribe far too much fear of SCOTUS on the part of the 9th Circuit here. I guarantee they're not afraid of SCOTUS at all, since it has refused Every Single Firearms 2A Case since McDonald. And the political situation at SCOTUS has not changed since then either, nor will it until the composition changes.

A change in composition is the only thing the 9th reasonably has to fear. But if that changes, then ANY reasonable carry case will result in securing "bear". So the 9th has absolutely nothing to lose by eviscerating the right.






Oh, I agree. They'll get away with it, and do so by denying the right in exactly the same way so many other courts have. We will get absolutely nothing from the 9th Circuit




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Those were primarily CCW cases, "not so clean cases" (baggage) and/or regulatory cases . . . not cases that were simply about bans on any kind of open carry.

Nichols = straight arrow to LOC ban.
Nichols = straight arrow to UOC ban.

=8-)

Here's another thought that crossed my mind...raised by a previous poster:

Can CA9 choose to bypass the hearing and just go ahead and release a decison?

Effectively pulling the limelight rug out from under Nichols's - ie., preventing him from having the podium and live camera in court?

With egos as big as theirs driving an agenda, I can see them wanting to keep Nichol's from being the "star" of the show...

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  #293  
Old 08-06-2017, 11:38 PM
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Originally Posted by mrrabbit View Post
Those were primarily CCW cases, "not so clean cases" (baggage) and/or regulatory cases . . . not cases that were simply about bans on any kind of open carry.



Nichols = straight arrow to LOC ban.

Nichols = straight arrow to UOC ban.
This is true except for Woollard, which was not about any kind of mode at all, since the same law covered all forms of carry and a permit authorized all forms of carry. If "may issue" qualifies as an effective ban, then that case is proof that the Court has no problem with letting an effective ban stand.

In any case, the main point is that the 9th Circuit has no reason to fear anything from SCOTUS as regards Nichols. Their decision will eviscerate the right because they have no reason to fear reversal.







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  #294  
Old 08-07-2017, 8:48 AM
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Originally Posted by kcbrown View Post
This is true except for Woollard, which was not about any kind of mode at all, since the same law covered all forms of carry and a permit authorized all forms of carry. If "may issue" qualifies as an effective ban, then that case is proof that the Court has no problem with letting an effective ban stand.

In any case, the main point is that the 9th Circuit has no reason to fear anything from SCOTUS as regards Nichols. Their decision will eviscerate the right because they have no reason to fear reversal.







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With Peruta being decided the way it was, it does set the stage of a total ban, different than Woollard. The OC permit is unavailable to him based on where he lives and the 9th cannot turn around and say that CCW is available since they already said it's not part of the 2A at all.

So it would be a total ban, something Scotus would likely answer, although to what degree I don't know.
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  #295  
Old 08-07-2017, 1:02 PM
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Originally Posted by press1280 View Post
With Peruta being decided the way it was, it does set the stage of a total ban, different than Woollard. The OC permit is unavailable to him based on where he lives and the 9th cannot turn around and say that CCW is available since they already said it's not part of the 2A at all.
You're presuming honesty on the part of a court that has repeatedly proven its dishonesty.

The 9th Circuit can just as easily claim that even though CCW itself isn't protected by the 2nd Amendment, its "availability" is sufficient to "satisfy" the right to bear arms and, therefore, the ban on open carry does not foreclose the right to bear arms. It can also claim that open carry is available in some locations and, thus, that the prohibition is merely a "time, place, or manner" regulation.


Quote:
So it would be a total ban, something Scotus would likely answer, although to what degree I don't know.
With a construction such as the above, the dispute will be, in part, about whether or not there's a total ban in place.

Admittedly, it does have differences from Woollard. But even so, we're not talking about a Supreme Court that has refused to hear carry cases, we're talking about a Supreme Court that has refused to hear all firearms-related 2nd Amendment cases. This most certainly qualifies in that latter category, ban or no.

But finally, if the question is about whether or not a ban on that which is protected by the 2nd Amendment is allowable when something that may not be protected is available, then Norman presumably qualifies. As such, whether or not the Court grants cert to Norman should serve as an indicator as to whether or not they'd take Nichols with their present composition.
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  #296  
Old 08-07-2017, 3:27 PM
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Can they choose not to hear it ?
Do you mean can they refuse to entertain oral argument? I actually don't know; federal trial courts certainly have that discretion, and many exercise it. Moreover, parties can waive oral argument. However, I think the court may be required to hold orals if requested, but they have untrammeled discretion as to when that will be.

If you mean "hear" in the legal sense of "deciding" a matter (i.e., the court "hears" your case), no, review is as of right, while a grant of review (certiorari) in the Supreme Court is discretionary.
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  #297  
Old 08-07-2017, 3:56 PM
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Federal Rules of Appellate Procedure › TITLE VII. GENERAL PROVISIONS › Rule 34. Oral Argument
Rule 34. Oral Argument
(a) In General.

(1) Party's Statement. Any party may file, or a court may require by local rule, a statement explaining why oral argument should, or need not, be permitted.

(2) Standards. Oral argument must be allowed in every case unless a panel of three judges who have examined the briefs and record unanimously agrees that oral argument is unnecessary for any of the following reasons:

(A) the appeal is frivolous;

(B) the dispositive issue or issues have been authoritatively decided; or

(C) the facts and legal arguments are adequately presented in the briefs and record, and the decisional process would not be significantly aided by oral argument.
...
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  #298  
Old 10-05-2017, 9:54 AM
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This thread has been sleeping for almost 2 months.
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  #299  
Old 10-05-2017, 1:28 PM
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This thread has been sleeping for almost 2 months.
Really. Didn't old Charlie or one of his minions post months ago that this was to go to orals this month or next?
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  #300  
Old 10-05-2017, 2:33 PM
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The court is in NO hurry to decide this because there is only one way they can.
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  #301  
Old 10-06-2017, 2:05 PM
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The court is in NO hurry to decide this because there is only one way they can.
Maybe. The Ninth is the busiest circuit, and the time that has gone by is pretty typical for most cases.
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  #302  
Old 10-10-2017, 1:05 PM
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oral argument is in February
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  #303  
Old 10-11-2017, 2:55 PM
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oral argument is in February
Mr. Nichols' opening brief was well-written, his reply horrible. I shudder to imagine what oral argument will be like.

Who is taking bets on the outcome? I'd bet that the Ninth:
1. will affirm that there is a right to bear outside the home (which the State admitted in Peruta),
2. but that it may be subject to "reasonable regulation" in the public interest (which Nichols concedes by agreeing that the GFSZA is a valid exercise of state power), and that
3. "intermediate scrutiny" (which in the Ninth is indistinguishable from rational basis review) will be applied (of course because the "core" of the right is inside the home, not outside)
4. and upon application of this standard of review, the court will uphold the open carry ban, which currently applies only in urban areas because the interest in public safety and the power of the State to regulate the carrying outweigh the personal interest in bearing arms in cities and towns.
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Old 10-12-2017, 11:38 PM
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Originally Posted by TruOil View Post
Mr. Nichols' opening brief was well-written, his reply horrible. I shudder to imagine what oral argument will be like.

Who is taking bets on the outcome? I'd bet that the Ninth:
1. will affirm that there is a right to bear outside the home (which the State admitted in Peruta),
2. but that it may be subject to "reasonable regulation" in the public interest (which Nichols concedes by agreeing that the GFSZA is a valid exercise of state power), and that
3. "intermediate scrutiny" (which in the Ninth is indistinguishable from rational basis review) will be applied (of course because the "core" of the right is inside the home, not outside)
4. and upon application of this standard of review, the court will uphold the open carry ban, which currently applies only in urban areas because the interest in public safety and the power of the State to regulate the carrying outweigh the personal interest in bearing arms in cities and towns.
If the 3 judge panel doesn't rule that way, you can count on the en banc panel to find that there is no right to bear arms in urban areas.
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  #305  
Old 10-13-2017, 1:13 PM
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If the 3 judge panel doesn't rule that way, you can count on the en banc panel to find that there is no right to bear arms in urban areas.
Oh so true, however, they won't be able to say it like that as it would be discriminatory.
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Old 10-13-2017, 3:21 PM
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Originally Posted by wolfwood View Post
oral argument is in February
Where do you get that from?

I just went to his webpage re the current status of his case and right at top it says, "On October 10, 2017, I received notice from the court that my case is being considered for oral argument in Pasadena in February, March or April of 2018."
http://blog.californiarighttocarry.org/?page_id=6922
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  #307  
Old 10-13-2017, 4:20 PM
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Originally Posted by Paladin View Post
Where do you get that from?

I just went to his webpage re the current status of his case and right at top it says, "On October 10, 2017, I received notice from the court that my case is being considered for oral argument in Pasadena in February, March or April of 2018."
http://blog.californiarighttocarry.org/?page_id=6922
http://newsblaze.com/business/legal/...in-2018_87600/

Also his newsletter: http://mailchi.mp/44764a9b437f/febru...n-carry-appeal

Basically February if no conflicts but also March and April backup dates.

I can post his case-related emails and articles if people want when they come around, if that's seen as helpful at all.
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  #308  
Old 10-13-2017, 4:30 PM
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Originally Posted by Paladin View Post
Where do you get that from?

I just went to his webpage re the current status of his case and right at top it says, "On October 10, 2017, I received notice from the court that my case is being considered for oral argument in Pasadena in February, March or April of 2018."
http://blog.californiarighttocarry.org/?page_id=6922
He'll get argument in February. The only reason he would not is if one side has a conflict and if they did they would have written the Court by now.

However that does not mean he gets oral argument. I suspect he will because the legal issue is novel but as a whole pro se's typically do not get oral argument.

This I can't wait to watch assuming he gets oral argument. I just hope he keep some of his openly misogynist comments down to a minimum. It does not win any votes to tell the Court I don't want to carry because I don't carry a purse etc.

Last edited by wolfwood; 10-13-2017 at 4:33 PM..
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