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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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  #1801  
Old 12-05-2019, 5:34 PM
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Originally Posted by jaymz View Post
Am I wrong?
Yes.
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  #1802  
Old 12-05-2019, 10:23 PM
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Originally Posted by MajorCaliber View Post
There is at least an argument to be made (although and incorrect one, I believe) that 2A does not apply to an individual right...
That argument makes sense... if you ignore all of colonial American law, policies, rules, practices, procedures, and regulations from 1584 - 1787; a strict linguistic analysis of the text; an analysis of the internal consistency of the Bill of Rights; everything the Founding Fathers wrote or said about it; existing federal law on the definition of a militia; logic; and historical practice. Then, yeah, it’s a great case.
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  #1803  
Old 12-06-2019, 9:12 AM
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Originally Posted by pratchett View Post
That argument makes sense... if you ignore all of colonial American law, policies, rules, practices, procedures, and regulations from 1584 - 1787; a strict linguistic analysis of the text; an analysis of the internal consistency of the Bill of Rights; everything the Founding Fathers wrote or said about it; existing federal law on the definition of a militia; logic; and historical practice. Then, yeah, it’s a great case.
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  #1804  
Old 12-06-2019, 2:29 PM
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Originally Posted by pratchett View Post
That argument makes sense... if you ignore all of colonial American law, policies, rules, practices, procedures, and regulations from 1584 - 1787; a strict linguistic analysis of the text; an analysis of the internal consistency of the Bill of Rights; everything the Founding Fathers wrote or said about it; existing federal law on the definition of a militia; logic; and historical practice. Then, yeah, it’s a great case.
The argument has its genesis in United States v. Miller, and is the only Supreme Court authority ever offered for that proposition. Then look at Heller, where all nine agreed that it was an individual right (which should put the collective right nonsense to bed), but the dissenters held that it was an individual right to bear arms only while serving in a militia. (Which makes sense, in a way, unless we are talking about crew served weapons (tee hee)--can't have soldiers sharing weapons or anything.) I haven't actually read the dissent in over a decade, so maybe I am shading their argument. Perhaps.
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  #1805  
Old 12-06-2019, 4:34 PM
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Originally Posted by MajorCaliber View Post
This brief touches on a point I have been making for a while:

There is at least an argument to be made (although and incorrect one, I believe) that 2A does not apply to an individual right, just the right of a state to form and arm a militia. There is also an (incorrect) argument to be made that 2A does not apply to modern military style weapons.
Not really. The "collective right" argument had many followers, but it's a classic case of formulating your logic to achieve a desired result. It requires that the phrase "the right of the people" mean one thing in the First Amendment, mean something 180 degrees different in the Second Amendment, then back to the meaning used in the First Amendment for the Fourth Amendment and everywhere else "the People" are referred to in the Bill of Rights. It's ridiculous to state that the Bill of Rights, a collection of limitations on the government to insure individual rights, has made an exception for the Second Amendment and ONLY the Second Amendment.

The Heller decision laid both of these arguments to rest.

Held: 1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.
page 1 [emphsis added]

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, ... and the Fourth Amendment applies to modern forms of search, ... the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.
page 8

Last edited by natman; 12-06-2019 at 4:37 PM..
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  #1806  
Old 12-07-2019, 8:58 AM
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Natman:

I agree completely with that. Both of those anti-2A arguments are wrong.
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  #1807  
Old 12-07-2019, 10:04 AM
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Originally Posted by natman View Post
Not really. The "collective right" argument had many followers, but it's a classic case of formulating your logic to achieve a desired result. It requires that the phrase "the right of the people" mean one thing in the First Amendment, mean something 180 degrees different in the Second Amendment, then back to the meaning used in the First Amendment for the Fourth Amendment and everywhere else "the People" are referred to in the Bill of Rights. It's ridiculous to state that the Bill of Rights, a collection of limitations on the government to insure individual rights, has made an exception for the Second Amendment and ONLY the Second Amendment.

The Heller decision laid both of these arguments to rest.

Held: 1. The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.
page 1 [emphsis added]

Some have made the argument, bordering on the frivolous, that only those arms in existence in the 18th century are protected by the Second Amendment. We do not interpret constitutional rights that way. Just as the First Amendment protects modern forms of communications, ... and the Fourth Amendment applies to modern forms of search, ... the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding.
page 8
There are judges on the Supreme Court, right now, who would argue against both those points. Four of them. God bless Trump not six of them.

So the argument to be made point is valid. They can make an argument.
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  #1808  
Old 12-08-2019, 4:25 AM
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Originally Posted by Offwidth View Post
There are judges on the Supreme Court, right now, who would argue against both those points. Four of them. God bless Trump not six of them.

So the argument to be made point is valid. They can make an argument.
Maybe on the first point but on the second point (only weapons at the time of the founding are protected) ALL the libs signed on to Caetano, which rejected this.
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  #1809  
Old 12-08-2019, 7:52 AM
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The phrase "the people" or "person" is used in the Bill of Rights six times. According to the antis, five of those times it means what is says, "the people," meaning everyone subject to the jurisdiction of the Constitution. But according to the antis, in the Second Amendment, it means, "a militia."

If you look at the rest of the Amendments, those phrases are used a total of 20+ times. AGAIN, each time it means everyone subject to the jurisdiction of the Constitution.

Claiming that the phrases have a different meaning in the Second Amendment is simply wrong. A read of documents from the era in which the Constitution was written, supports this viewpoint, but NOT one that says that the Second Amendment is about a militia.
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  #1810  
Old 12-10-2019, 6:50 PM
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This case is being considered for an upcoming oral argument calendar in Pasadena. Please review the Pasadena sitting dates for April 2020 and the 2 subsequent sitting months in that location...You will receive notice that your case has been assigned to a calendar approximately 10 weeks before the scheduled oral argument date.

https://www.courtlistener.com/docket...avier-becerra/
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  #1811  
Old 12-10-2019, 8:38 PM
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I wonder if I can attend this. First time a case like this is being heard in a reasonable driving distance from me.
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  #1812  
Old 12-11-2019, 10:23 AM
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The Miller decision DID NOT rule that the Second Amendment established a “collective right”. That is a lie maintained by lower courts for seventy years and not addressed by the Supreme Court until Heller. The Miller Decision was remanded only to consider which arms are protected. The government’s argument that Miller needed Militia membershp was ignored.
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  #1813  
Old 12-11-2019, 2:14 PM
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Originally Posted by dave_linnehan View Post
The Miller decision DID NOT rule that the Second Amendment established a “collective right”. That is a lie maintained by lower courts for seventy years and not addressed by the Supreme Court until Heller. The Miller Decision was remanded only to consider which arms are protected. The government’s argument that Miller needed Militia membershp was ignored.
The language on which courts and scholars relied upon for the "collective rights" theory came from the court's holding/dicta that only arms useful for militia purposes were protected by the Second Amendment, and therefore it was legitimate to subject a short barreled shotgun (which the court assumed would not be a militia weapon) to regulation/registration and taxation was constitutional. Everything after that was based on inferences from that basic (and questionable) statement by the court.
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  #1814  
Old 12-11-2019, 3:20 PM
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Quote:
Originally Posted by TruOil View Post
The language on which courts and scholars relied upon for the "collective rights" theory came from the court's holding/dicta that only arms useful for militia purposes were protected by the Second Amendment, and therefore it was legitimate to subject a short barreled shotgun (which the court assumed would not be a militia weapon) to regulation/registration and taxation was constitutional. Everything after that was based on inferences from that basic (and questionable) statement by the court.
Everything after that was based on inferences, spin and wishful thinking from that basic (and questionable) statement by the court.
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  #1815  
Old 12-11-2019, 3:39 PM
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Quote:
Originally Posted by TruOil View Post
The language on which courts and scholars relied upon for the "collective rights" theory came from the court's holding/dicta that only arms useful for militia purposes were protected by the Second Amendment, and therefore it was legitimate to subject a short barreled shotgun (which the court assumed would not be a militia weapon) to regulation/registration and taxation was constitutional. Everything after that was based on inferences from that basic (and questionable) statement by the court.
SCOTUS rejected a collective or militia based right, and confirmed an individual right to keep and bear arms, in Presser v Illinois, 1886. A hundred years ago. The idea that Heller was some departure is a lie.

Dont get bogged down in the discussion of incorporation. At the time, the bill of rights had not yet been held to apply to state governments. The bill of rights is now fully incorporated.
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  #1816  
Old 12-11-2019, 3:53 PM
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Originally Posted by Citadelgrad87 View Post
SCOTUS rejected a collective or militia based right, and confirmed an individual right to keep and bear arms, in Presser v Illinois, 1886. A hundred years ago. The idea that Heller was some departure is a lie.

Dont get bogged down in the discussion of incorporation. At the time, the bill of rights had not yet been held to apply to state governments. The bill of rights is now fully incorporated.
Not quite. There is no incorporation of the Fifth Amendment's right to an indictment in felony cases. A whole lot of California District Attorneys are still filing felony informations.
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  #1817  
Old 01-13-2020, 9:37 AM
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Any news on what's happening?
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  #1818  
Old 01-13-2020, 1:04 PM
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Originally Posted by prerunners4life View Post
Any news on what's happening?
9th circuit is going to hear it in April at their Pasadena court house.

Nobody can give news on anything until after April unless it has something to do with 9th circuit vacancies or who is being selected to hear the case (which doesn't matter that much because it is going to be heard en banc).
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  #1819  
Old 01-13-2020, 1:57 PM
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Originally Posted by Maverick237 View Post
9th circuit is going to hear it in April at their Pasadena court house.

Nobody can give news on anything until after April unless it has something to do with 9th circuit vacancies or who is being selected to hear the case (which doesn't matter that much because it is going to be heard en banc).
Did I miss something (as in the case is going immediately to en banc as opposed to a motion being filed by the losing party to request rehearing en banc)?
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  #1820  
Old 01-13-2020, 2:12 PM
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Originally Posted by MajorCaliber View Post
This brief touches on a point I have been making for a while:

There is at least an argument to be made (although and incorrect one, I believe) that 2A does not apply to an individual right, just the right of a state to form and arm a militia. There is also an (incorrect) argument to be made that 2A does not apply to modern military style weapons. What makes no sense at all are those that would argue both of those positions simultaneously. Since the purpose of a militia is to defeat an army, certainly foreign and perhaps even domestic, it is absolutely absurd to argue that the founders intended to provide for the arming of a militia, but to exclude those weapons that would be required to perform the function that the militia was intended to perform. One could argue one position or the other, but certainly not both.

That argument was put to bed by the Supreme Court.

District of Columbia v. Heller, 554 U.S. 570 (2008), is a landmark case in which the Supreme Court of the United States held that the Second Amendment protects an individual's right to keep and bear arms, unconnected with service in a militia, for traditionally lawful purposes, such as self-defense within the home, and that the District of Columbia's handgun ban and requirement that lawfully owned rifles and shotguns be kept "unloaded and disassembled or bound by a trigger lock" violated this guarantee.[1] It also stated that the right to bear arms is not unlimited and that guns and gun ownership would continue to be regulated. It was the first Supreme Court case to decide whether the Second Amendment protects an individual right to keep and bear arms for self-defense or if the right was intended for state militias.[2]
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  #1821  
Old 01-13-2020, 2:18 PM
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Did I miss something (as in the case is going immediately to en banc as opposed to a motion being filed by the losing party to request rehearing en banc)?
I think what was meant is it is undoubtedly going to get appealed En Banc after whatever verdict the 3-judge panel renders.

This has happened to every significant 2A case in recent years, so it is not an unwarranted supposition.
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  #1822  
Old 01-13-2020, 4:16 PM
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More like it'll go en banc if the 2A prevails at the three judge panel. If the Benitez decision is overturned our side would ( and this is a wild guess here) likely make the request for en banc but I'm not sure what the odds are of getting it or prevailing there. Does en banc have to happen on the road to SCotUS?
Roll the dice, see what comes up.
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  #1823  
Old 01-13-2020, 8:23 PM
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Who is on the appeal panel?
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  #1824  
Old 01-13-2020, 8:27 PM
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Does en banc have to happen on the road to SCotUS?
No.
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  #1825  
Old 01-13-2020, 9:29 PM
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No.
Thank you. I thought it could be one of those 'you must exhaust every possible avenue' first before bothering the big guys.
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  #1826  
Old 01-14-2020, 10:44 AM
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Thank you. I thought it could be one of those 'you must exhaust every possible avenue' first before bothering the big guys.
Only something like 5% of cases that petition for en banc actually get it granted. The court doesn't have time to do an en banc hearing for every case. So they only grant it for ones that are particularly controversial or likely to be overturned. With 2A cases, and particularly in the 9th circus, the likelihood of getting an en banc hearing is substantially higher, but still not guaranteed.
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  #1827  
Old 01-14-2020, 11:39 AM
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Who is on the appeal panel?
Doesn't seem like it's been set. I cannot find anything on the 9th circuit website indicating a panel has been appointed.
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  #1828  
Old 01-14-2020, 11:40 AM
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Originally Posted by cockedandglocked View Post
Only something like 5% of cases that petition for en banc actually get it granted. The court doesn't have time to do an en banc hearing for every case. So they only grant it for ones that are particularly controversial or likely to be overturned. With 2A cases, and particularly in the 9th circus, the likelihood of getting an en banc hearing is substantially higher, but still not guaranteed.
The odds have gone more in favor with every appointment from Trump as well. Before he was elected a random en banc panel was statistically almost a guaranteed dem majority.
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  #1829  
Old 01-14-2020, 6:11 PM
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The odds have gone more in favor with every appointment from Trump as well. Before he was elected a random en banc panel was statistically almost a guaranteed dem majority.


God bless him!!
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Old 01-14-2020, 7:43 PM
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No.
I think you have to petition for rehearing en banc (even if the petition is denied) among other requirements to qualify for filing the petition for writ of certiorari with the Supremes. See: http://www.ca4.uscourts.gov/docs/pdf...tion-sheet.pdf
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Old 01-14-2020, 7:46 PM
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Quote:
Originally Posted by cockedandglocked View Post
Only something like 5% of cases that petition for en banc actually get it granted. The court doesn't have time to do an en banc hearing for every case. So they only grant it for ones that are particularly controversial or likely to be overturned. With 2A cases, and particularly in the 9th circus, the likelihood of getting an en banc hearing is substantially higher, but still not guaranteed.
Odds of a petition for writ of certiorari being granted are even smaller (1.9% in 2017; see: https://supremecourtpress.com/chance_of_success.html )
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  #1832  
Old 01-14-2020, 8:23 PM
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As the Ninth Circuit practice guide notes, the "names of the judges on each panel are released to the general public on the Monday of the week preceding argument." So you won't find the judge names until right before the oral argument. Just have to wait right now.
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  #1833  
Old 01-14-2020, 8:36 PM
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As the Ninth Circuit practice guide notes, the "names of the judges on each panel are released to the general public on the Monday of the week preceding argument." So you won't find the judge names until right before the oral argument. Just have to wait right now.
But are they selected in advance? Like before Trump appointments?
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  #1834  
Old 01-14-2020, 8:38 PM
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Originally Posted by aBrowningfan View Post
I think you have to petition for rehearing en banc (even if the petition is denied) among other requirements to qualify for filing the petition for writ of certiorari with the Supremes. See: http://www.ca4.uscourts.gov/docs/pdf...tion-sheet.pdf
That appears to be clarifying how the deadline for a petition to SCOTUS is calculated if a petition for rehearing en banc is first filed, not that such a petition must first be filed.
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  #1835  
Old 01-14-2020, 10:17 PM
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There is no guarantee that there will be oral argument in an appeal since many are decided without argument. But, whether or not there is to be argument, the three judge panel is actually picked well before any oral argument since they need time to review the briefs and supporting documents and prepare for the oral argument. The process for assigning the three judge panel is convoluted and can be found here: https://cdn.ca9.uscourts.gov/datasto...cticeGuide.pdf

starting at page 11. If a case is scheduled for oral argument, the Court plans to distribute the case documents to the 3 judges at least 12 weeks prior to the oral argument so the 3 judges are picked at least 3 months prior to the oral argument.

There is no requirement to request rehearing en banc before filing a petition for cert with the US Supreme Court.

Last edited by gunuser17; 01-14-2020 at 10:21 PM..
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  #1836  
Old 01-14-2020, 11:58 PM
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Originally Posted by aBrowningfan View Post
Did I miss something (as in the case is going immediately to en banc as opposed to a motion being filed by the losing party to request rehearing en banc)?
No I meant that no matter which way this case goes it's going to be requested to be heard en banc (either by defendants or prosecutors, whoever loses).

Defense did it with Peruta so you can bet they'll do it again as well.

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Originally Posted by Offwidth View Post
But are they selected in advance? Like before Trump appointments?
I found the 3 judge panel for cases next Thursday. For February and March they only show the case information and not the panel selection. Basically, we'll find out more in April. I'm following this case more so than others because I live a reasonable distance from the court house and am thinking about sitting in there (they do give access to their audio & video recordings though).

Last edited by Maverick237; 01-15-2020 at 12:15 AM..
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  #1837  
Old 01-21-2020, 4:06 PM
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Per Wolfwood's Facebook:

2020-04-02 9:00 am Courtroom 3, Richard H. Chambers US Court of Appeals, Pasadena
Virginia Duncan v. Xavier Becerra - An appeal from the district court's summary judgment in favor of plaintiffs in their action challenging California Government Code section 32310 which, in relevant part, bans possession of large-capacity magazines holding more than ten rounds of ammunition. [3:17-cv-01017-BEN-JLB]

https://www.ca9.uscourts.gov/calenda...yS45BTeNyr3HL4

Anyone know when they assign the judges? Also, note, this will occur likely before NYRSPA!
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Old 01-21-2020, 4:46 PM
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Originally Posted by BryMan92 View Post
Per Wolfwood's Facebook:

2020-04-02 9:00 am Courtroom 3, Richard H. Chambers US Court of Appeals, Pasadena
Virginia Duncan v. Xavier Becerra - An appeal from the district court's summary judgment in favor of plaintiffs in their action challenging California Government Code section 32310 which, in relevant part, bans possession of large-capacity magazines holding more than ten rounds of ammunition. [3:17-cv-01017-BEN-JLB]

https://www.ca9.uscourts.gov/calenda...yS45BTeNyr3HL4

Anyone know when they assign the judges? Also, note, this will occur likely before NYRSPA!
As I wrote in the post right above yours:
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Originally Posted by Maverick237 View Post
I found the 3 judge panel for cases next Thursday. For February and March they only show the case information and not the panel selection. Basically, we'll find out more in April.
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Old 01-21-2020, 4:59 PM
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Robotron2k84 Robotron2k84 is offline
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Any decision from the ninth would take a while, probably until after June when we would likely see a result with NYSRPA. Hopefully, in our favor. That means the panel may sit on their decision until the landscape is updated by SCOTUS.
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Old 01-22-2020, 2:34 PM
TruOil TruOil is offline
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Originally Posted by Robotron2k84 View Post
Any decision from the ninth would take a while, probably until after June when we would likely see a result with NYSRPA. Hopefully, in our favor. That means the panel may sit on their decision until the landscape is updated by SCOTUS.
I don't think that there is a single gun case in the Ninth that will go anywhere until NYRPA is decided.
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