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California 2nd Amend. Political Discussion & Activism Discuss gun rights activism and 2A related political topics here. All advice given is NOT legal counsel.

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  #281  
Old 05-06-2011, 6:30 AM
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Originally Posted by ALSystems View Post
What are the dates that the Supreme Court usually decides which cases they will handle? Or is this something that happens whenever?
I think they have a meeting scheduled for that case within a few weeks.
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  #282  
Old 05-06-2011, 8:09 AM
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Gene was right . . . some of us had too high expectations of Nordyke. Substantial Burden will heretofore mean anything the political/judicial class want.
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  #283  
Old 05-06-2011, 10:22 AM
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Default It is better than we think

see: http://www.examiner.com/la-in-los-an...uds-decision-1

Nichols points out that public safety can no longer be used in court as an argument in support of gun control and that public safety is the basis of virtually every gun control law is in California. I think we will win a few cases based on ruling.
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  #284  
Old 05-06-2011, 10:46 AM
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Originally Posted by jorgyusa View Post
see: http://www.examiner.com/la-in-los-an...uds-decision-1

Nichols points out that public safety can no longer be used in court as an argument in support of gun control and that public safety is the basis of virtually every gun control law is in California. I think we will win a few cases based on ruling.
Nichols obviously either hasn't read the decision or can't read.

From Nordyke:

Quote:
Originally Posted by Nordyke Decision
[10] Accordingly, we reject the Nordykes’ invitation to apply strict scrutiny because we conclude that the Ordinance is “unrelated to the suppression of free expression.” Johnson, 491 U.S. at 407 (internal quotation marks and citation omitted). Instead, O’Brien’s intermediate scrutiny standard applies.

...

[11] The second prong (of the O'Brien test -- kcbrown) requires us to evaluate whether the Ordinance furthers the County’s interest in promoting safety and discouraging violence...

...

[13] We conclude that the Ordinance passes the O’Brien test as applied to the Nordykes’ gun shows. The district court properly granted summary judgment to the County on this claim.

(emphasis mine)

So not only can a "public safety" claim be used in support of gun control measures, the 9th Circuit in its opinion considered and approved that very claim when analyzing the county's ordinance.


Nichols should know better than to encourage false hope, and has now shredded what credibility he had.
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  #285  
Old 05-06-2011, 4:15 PM
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It seems to me that since the court remanded the case to consider the 2nd amendment claims, then the Nordyke's next move is to rename the shows from gun selling shows to political rallies, then claim the right for attendees to carry loaded guns to the rally for self-defense. Since banning self-defense in the context would be a significant burden on the right to self-defense, it would trigger heightened scrutiny. Unfortunately it may only trigger intermediate scrutiny which, depending on the judges making the decision, might be a low enough hurdle for the ordinance to get past. Intermediate scrutiny is of little use to us since plenty of judges would probably say a complete ban on all guns would pass strict scrutiny, let alone lesser regulations passing intermediate scrutiny.

I don't understand the deference courts give to the laws and findings of legislatures who have proven their contempt for constitutional rights. I would understand it in this case if it were by an anti-gun panel of judges, but the past decisions of this three judge panel make it clear it is not anti-gun (though clearly much less pro gun than we are around here).
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  #286  
Old 05-06-2011, 4:36 PM
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Originally Posted by kcbrown View Post
Nichols obviously either hasn't read the decision or can't read.

From Nordyke
Not to be gratuitously rude, but neither can you.

The Nordyke opinion resolves three separate claims – it's the same as if there were three separate court cases. You are incorrectly conflating aspects of two different rulings. Even worse, you're implying that the panel somehow changed the law when it applied the O'Brien test (which it didn't).

All the court did was enforce existing First Amendment doctrine. And unfortunately, there isn't much protection for expressive conduct in this country. I personally believe that this panel went too far, either by creating plausible reasons when none were offered, or by making inferences not supported by the evidence. But it's also possible that Nordyke counsel didn't put forth enough evidence to refute the County's findings.

Either way, the bottom line is that the O'Brien test offers no First Amendment protection to gun shows because there's a plausible risk of gun accidents (not violence) at gun shows. And that's not a decision that the Ninth Circuit made.
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  #287  
Old 05-06-2011, 7:55 PM
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Not to be gratuitously rude, but neither can you.
Arrgh, you appear to be right about that.

Your description of that part of the opinion seems to be correct. However, I should note that just because a particular part of the test was used in a First Amendment context here does not preclude its use in other contexts, and I find nothing in the ruling itself that suggests that it would be precluded so.

I will say this, however: so far, I've seen nothing in the opinion that suggests that the court will no longer consider a public safety argument in favor of a given law. In fact, it is difficult to see how such an argument could be ignored in the event the law in question is treated with a rational basis analysis.

The ruling says that the court will not entertain any heightened scrutiny unless the law in question is determined to "substantially burden" the right to self-defense. Hence, any law which does not meet that standard automatically gets rational basis, if that.


But what if the court decides the law does, in fact, "substantially burden" the right to self-defense?


In that case, it's subject to some form of heightened scrutiny:

Quote:
Originally Posted by Nordyke Opinion
[4] Accordingly, we hold that only regulations which substantially burden the right to keep and to bear arms trigger heightened scrutiny under the Second Amendment.

But if the heightened scrutiny is strict, then the court will automatically assume that the state has a compelling interest:

Quote:
Originally Posted by Nordyke Opinion
Because the Supreme Court has already held that “the Government’s general interest in preventing crime” is “compelling,” United States v. Salerno, 481 U.S. 739, 754 (1987), the question, under strict scrutiny, would be whether the regulation is narrowly tailored to that interest.

So in that event, quite clearly no public safety argument on the part of the state is required because the court automatically assumes the state's compelling interest.


Worse, the court also abrogates its responsibility to judge whether or not the regulation is narrowly tailored, and defers to the state on that as well:

Quote:
Originally Posted by Nordyke Decision
But courts cannot determine whether a gun-control regulation is narrowly tailored to the prevention of crime without deciding whether the regulation is likely to be effective (or, at least, whether less burdensome regulations would be as effective). Sorting gun-control regulations based on their likely effectiveness is a task better fit for the legislature. Cf. Richard H. Fallon, Jr., Judicially Manageable Standards and Constitutional Meaning, 119 Harv. L. Rev. 1274, 1291 (2006) (“A test may be deemed judicially unmanageable if it would require courts to make empirical findings or predictive judgments for which they lack competence.”)
And so, a public safety argument becomes unnecessary for that as well. For strict scrutiny, that leaves but one test: does the law or policy implement the least restrictive means to achieve the government's interest? On that test, the court appears to be silent. But experience with First Amendment cases shows that a regulation need not indeed be truly the least restrictive means to achieve the government's interest. For instance, governments could achieve the same thing by requiring advance notification as they do with permits for political demonstrations on public property, and since advance notification doesn't require the explicit assent of the government, it is less restrictive. Despite that, laws which require permits for political demonstrations in public have been found to pass strict scrutiny even though the means used in the law isn't the least restrictive. Hence, the "least restrictive means" test appears to be a rather weak test, since it appears to translate to "sufficiently restrictive to satisfy the court".


So in the event the "heightened scrutiny" decided upon by the court happens to be strict scrutiny, it is difficult to see how any law which could so much as pass rational basis would be struck down even if it substantially burdens the core right of self-defense.



What about intermediate scrutiny? For that, (as stated on Wikipedia) it must be shown that the law or policy being challenged furthers an important government interest in a way that is substantially related to that interest.

But the argument the court uses to abrogate its responsibility to determine whether or not a law is "narrowly tailored" applies here just as well, for the court's justification is this:

Quote:
Originally Posted by Nordyke Opinion
Cf. Richard H. Fallon, Jr., Judicially Manageable Standards and Constitutional Meaning, 119 Harv. L. Rev. 1274, 1291 (2006) (“A test may be deemed judicially unmanageable if it would require courts to make empirical findings or predictive judgments for which they lack competence.”)
and whether or not a law actually furthers the government's interest is an empirical question. And so, there is little reason to believe that the court would not defer to the government for at least that part of an intermediate scrutiny test.


What of some other type of scrutiny that has not yet been defined? While I concede that as a possibility, I think it unlikely in the extreme that an appellate court would take it upon itself to create, out of whole cloth, some new method of scrutiny. But even if it did, I see little reason to believe that such a method devised by the 9th Circuit would be friendly to the 2nd Amendment in any reasonable way.


Hence, the bottom line is that the only laws which are likely to be struck down by this court are the ones that cannot even manage to pass rational basis, no matter how much they may burden the core right of self-defense.


So even if Charles Nichols is correct in that the government cannot continue to use "public safety" arguments in front of the court (an assertion I disagree with), he misses that it no longer has to, except perhaps for rational basis examinations.



Quote:
Either way, the bottom line is that the O'Brien test offers no First Amendment protection to gun shows because there's a plausible risk of gun accidents (not violence) at gun shows. And that's not a decision that the Ninth Circuit made.
Note, however, that whether or not there is a plausible risk of gun violence is irrelevant to this court, because that is an empirical question that the court will almost certainly defer to the legislature on.
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Last edited by kcbrown; 05-07-2011 at 4:51 AM..
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  #288  
Old 05-07-2011, 3:52 AM
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Originally Posted by Patrick-2 View Post
The Ninth published a framework for the evaluation of the Second Amendment and complaints against restrictions on it. That framework is far-reaching and could result in an exceptionally high burden on plaintiffs who challenge restrictions in the Ninth and elsewhere.

That framework is not restricted to gun shows on public property. It applies to any complaint that invokes the Second Amendment. This would include criminal and civil cases, denials of right-to-carry, sales restrictions, AW bans...you name it. All would fit quite nicely under this ruling.
I'm trying to remain optimistic and read this as, 'This is not the case you're looking for...", but here's some guidance.
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  #289  
Old 05-08-2011, 5:12 PM
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So in the event the "heightened scrutiny" decided upon by the court happens to be strict scrutiny, it is difficult to see how any law which could so much as pass rational basis would be struck down even if it substantially burdens the core right of self-defense.
Obviously those restrictions which place a substantial burden on the right will not and cannot stand. Otherwise, the Nordyke opinion would be in direct conflict with Heller.

Second Amendment analysis isn't being imported directly from First Amendment jurisprudence – it can't, because the right is different and the situations are different. And the sort of “strict scrutiny” of which you speak is a very specific test which is only applied in cases of content-based speech restrictions. Confusion about scrutiny is understandable; it's complicated and Wikipedia's articles can be very misleading. So yes, some other “type of scrutiny” will develop.

As to exactly what type of “heightened scrutiny [will] appl[y] to laws that substantially burden Second Amendment rights,” we'll find out as more cases make their way through the courts. That's how our judiciary works. And it's why its vitally important that these cases be litigated carefully and strategically.

But we know for certain that not every gun control law will survive wholly intact.
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  #290  
Old 05-09-2011, 3:14 AM
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Originally Posted by navyinrwanda View Post
Obviously those restrictions which place a substantial burden on the right will not and cannot stand. Otherwise, the Nordyke opinion would be in direct conflict with Heller.

Second Amendment analysis isn't being imported directly from First Amendment jurisprudence – it can't, because the right is different and the situations are different. And the sort of “strict scrutiny” of which you speak is a very specific test which is only applied in cases of content-based speech restrictions. Confusion about scrutiny is understandable; it's complicated and Wikipedia's articles can be very misleading. So yes, some other “type of scrutiny” will develop.

As to exactly what type of “heightened scrutiny [will] appl[y] to laws that substantially burden Second Amendment rights,” we'll find out as more cases make their way through the courts. That's how our judiciary works. And it's why its vitally important that these cases be litigated carefully and strategically.

But we know for certain that not every gun control law will survive wholly intact.
And you are politely dancing around an issue with which I agree: the application of means-end standard testing ("scrutiny") to Second Amendment issues is premature in nearly all cases simply because there is little to no jurisprudence on the challenged rights, let alone the proposed remedies.

Another key difference between the 1st and 2nd amendments: everybody generally agrees with the meaning of the 1st. You get odd cases - like Phelps - where some disagreement exists on the scope of restrictions against it. But the definition is agreed - free speech means saying what you want provide it does not cause actual injury to someone (and even that standard can be quite difficult to reach).

We're still arguing the high-order meaning of the 2nd. We're still parsing the few words of the actual constitutional text (is 'keep and bear' unitary in meaning or semantic flourish to describe one thing?).

Means-end scrutiny proposes a simple set of rules that can be used to efficiently handle restrictions against known rights using mostly-proscribed remedies. Protests, book stores, abortion clinics, etc. All litigated heavily over the years.

Assigning some kind of 'scrutiny' to the analysis of a restriction that applies against a right to which no definitive agreement has been made (yet) is pointless.

No. The correct approach should generally be something more categorical. The first goal is to define the right, then let the analysis of the laws in question flow from that definition. This is what Heller did, and what the SAF (and Halbrook) are doing now.

Leaning on scrutiny is lazy, in my humble opinion. Nordyke had some shades of it in terms of the commerce angle - which is where I hope counsel really presses in their (presumed) amended complaint. But it is far too early to be leaning on frameworks designed to efficiently handle challenges to known rights, when the right in question is legally unknown.

I find it extremely ironic that the same legal watchers who complain about analogizing First and Second Amendment jurisprudence then turn so readily to remedies defined using 'scrutiny' - a framework most familiar in First Amendment jurisprudence. I suspect the reason they do this is because of the outcome - the framework means nothing and allows anything when it comes to a newly-defined right. That means they get to win more than lose (the Two-Step being an excellent example of the opportunity).

Some day this will come back to haunt them, though. Until then, we need to keep looking at those cases that push a categorical analysis and which make the courts actually work for a living.
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  #291  
Old 05-09-2011, 8:14 AM
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We're still parsing the few words of the actual constitutional text (is 'keep and bear' unitary in meaning or semantic flourish to describe one thing?).
I think Heller is pretty clear that "Keep and Bear" is not merely a term of art, and that it means "possess and carry". That the case at hand had, for it's scope, the home, has no legitimate bearing on the ultimate scope of the right.
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  #292  
Old 05-09-2011, 10:01 AM
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I think Heller is pretty clear that "Keep and Bear" is not merely a term of art, and that it means "possess and carry". That the case at hand had, for it's scope, the home, has no legitimate bearing on the ultimate scope of the right.
Yep, those that argue that Heller was only 'keep' because it was about the 'home' fail to see the 'Bear in the Home' part of Heller. If you were only 'Keeping' it would need to be 'Functional' to be 'Kept'. You can't Bear a non-functional firearm.
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  #293  
Old 05-09-2011, 1:12 PM
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Yep, those that argue that Heller was only 'keep' because it was about the 'home' fail to see the 'Bear in the Home' part of Heller. If you were only 'Keeping' it would need to be 'Functional' to be 'Kept'. You can't Bear a non-functional firearm.
The difficulty we are having right now is that while the courts DO recognize that "bear" applies to in the home they are not willing to extend that past your front door.

SCOTUS has certainly contributed, somewhat, to this issue. By stating that TMP restrictions are acceptable without any real guidance on scrutiny (aside from excluding rational basis) AND stating that long standing laws prohibiting CCW would not be unconstitutional Heller left the door open for just what we are seeing.

Certainly, in their Heller analysis in determining the historical meaning of "keep" and "bear" the courts COULD have addressed where "bear" was protected and then concluded that "in the home" was included in those protections. But the court chose not to do so. It is certainly possible that Kennedy was not comfortable knocking out anti-CCW laws specifically like CA's and wouldn't sign otherwise. That would be BAD for us because it would set back forced CCW reform decades if we lose a CCW case at SCOTUS because we can't keep Kennedy in our camp.
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  #294  
Old 05-09-2011, 1:13 PM
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Obviously those restrictions which place a substantial burden on the right will not and cannot stand. Otherwise, the Nordyke opinion would be in direct conflict with Heller.
It is my contention that the Nordyke opinion is in direct conflict with Heller. Were that not the case, then the 9th Circuit would not have said:

Quote:
Originally Posted by Nordyke Decision
[4] Accordingly, we hold that only regulations which substantially burden the right to keep and to bear arms trigger heightened scrutiny under the Second Amendment.
(emphasis mine)

If the 9th Circuit had said that regulations which substantially burden RKBA are invalid on their face then they would have been in agreement with Heller. That is not the case. Since only regulations which impose a substantial burden are subject to heightened scrutiny in the 9th Circuit, that means that all other regulations are not subject to heightened scrutiny, even if they burden the right (as long as it's not, in the eyes of the court, a substantial burden).

As for alternate methods of scrutiny, I already addressed that. I very seriously doubt the appellate courts will take it upon themselves to create, out of whole cloth, new methods of scrutiny. That is a task for the Supreme Court. But even if they do take on such a burden, I doubt very much that the methods that would come out of the 9th Circuit would be very friendly to RKBA.


Quote:
But we know for certain that not every gun control law will survive wholly intact.
I don't think we can say even that much, at least as regards how the 9th Circuit will rule on things. I'm in full agreement with you here as regards what the Supreme Court will do to them, however.
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  #295  
Old 05-09-2011, 4:13 PM
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It is my contention that the Nordyke opinion is in direct conflict with Heller.
or in conflict with Roe v Wade?

"But, the Supreme Court does not apply strict scrutiny to every law that regulates the exercise of a fundamental right, despite language in some cases suggesting the contrary"
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  #296  
Old 05-10-2011, 7:18 PM
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Assigning some kind of 'scrutiny' to the analysis of a restriction that applies against a right to which no definitive agreement has been made (yet) is pointless.
Pretty much.

The Nordyke panel borrowed heavily from Eugene Volokh’s UCLA Law Review Article Implementing the Right To Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda. Indeed, they virtually adopted his approach lock, stock and barrel. And they explicitly rejected consideration of danger reduction when evaluating Second Amendment restrictions, which means that any law that substantially burdens the right to keep and bear arms is per se invalid.

Volokh’s paper was published in 2009, not long after the original Heller decision. It’s well worth re-reading now, especially in light of Nordyke and the many other appeals court decisions that have been handed down around the country. Doing so might inspire more to realize that almost all of the focus on scrutiny becomes irrelevant once a burden analysis is employed – and danger reduction ignored.

I don’t agree with all of Volokh’s conclusions – despite his personal dislike for danger reduction as a justification for Second Amendment restrictions, he nonetheless analyzes several commonplace gun control laws with it in mind. He also presumes that some other restrictions (such as assault weapon bans) place little or no burden on the right. I think that’s wrong, but obviously the courts will eventually decide.

More broadly, I think cultural issues and a general ignorance about the judiciary have driven most of the casual fascination on scrutiny – and more fundamentally, on the meaning of the Second Amendment.

There’s a widespread misunderstanding about the text of the Second Amendment: it doesn’t read, “the keeping and bearing of arms by the people shall not be infringed.” Instead, it says, “the right to keep and bear arms shall not be infringed.” This misunderstanding is at the root of the popular refrain, “What part of ‘shall not be infringed’ do you not understand?”

The Heller decision applied a categorical approach towards defining the scope of the right, based upon text, original meaning, tradition and background legal principles. Categorical really does mean “shall not be infringed” – if what’s being infringed is indeed within the scope of the right. And for the question presented in Heller, categorical analysis was more than adequate to reach a decision.

The categorical approach is appropriate for many of the cases currently working their way through the courts. Most of these involve a controversy over the scope of the right. For example, is the right to keep and bear arms limited to the home? Or does it extend to public places outside of the home?

Many would argue that a fair reading of the Heller decision leads inescapably to the conclusion that the right to keep and bear arms extends beyond the home. Otherwise, why would the Supreme Court have spoken about a “right to possess and carry weapons in case of confrontation?”

The full scope of “the right to keep and bear arms” will be only be determined as specific questions are presented to the courts for resolution. That may be frustrating to many – but it’s how our judiciary works. Article III of the Constitution limits the judicial power to actual “cases or controversies.” This text has been interpreted through a multitude of cases that have established the basic doctrine of federal civil procedure, including jurisdiction, justicability (standing, ripeness, mootness, advisory opinions, political questions), and other prudential constraints on judicial review.

So while academics such as Eugene Volokh can write at length proposing comprehensive frameworks for analyzing gun control laws, judges can’t. Instead, we as individuals and plaintiffs have the power to choose how Second Amendment jurisprudence develops. The courts can only rule on the questions before them. It’s up to us to make sure that we ask the right questions, in the right way, and at the right time.
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Old 05-10-2011, 8:52 PM
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Originally Posted by navyinrwanda View Post
Pretty much.

The Nordyke panel borrowed heavily from Eugene Volokh’s UCLA Law Review Article Implementing the Right To Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda. Indeed, they virtually adopted his approach lock, stock and barrel. And they explicitly rejected consideration of danger reduction when evaluating Second Amendment restrictions, which means that any law that substantially burdens the right to keep and bear arms is per se invalid.
But that's not what they said in Nordyke. They said that any law that substantially burdens the right to keep and bear arms is subject to heightened scrutiny. That is very different from saying that it's invalid.

Scrutiny is a means used to determine whether or not the law is valid.


What the 9th Circuit said is very different in effect from what Heller said. Heller said this:

Quote:
Originally Posted by Heller decision
The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.

But scrutiny is one of a number of means by which the judiciary decides on a case by case basis whether the right is really worth insisting upon.

Hence, if you get some form of scrutiny, as opposed to a rejection, of a given law that has been found to substantially burden a fundamental right, then you are getting precisely the interest-balancing treatment that the Supreme Court explicitly invalidated. Whether the interest-balancing happens as a result of the application of a predefined set of rules (a method of scrutiny) or an ad hoc analysis by the court is irrelevant -- they are merely two forms of the same thing.
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  #298  
Old 05-11-2011, 2:41 AM
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But that's not what they said in Nordyke. They said that any law that substantially burdens the right to keep and bear arms is subject to heightened scrutiny. That is very different from saying that it's invalid.

Scrutiny is a means used to determine whether or not the law is valid.

...

But scrutiny is the very means by which the judiciary decides on a case by case basis whether the right is really worth insisting upon.

Hence, if you get some form of scrutiny, as opposed to a rejection, of a given law that has been found to substantially burden a fundamental right, then you are getting precisely the interest-balancing treatment that the Supreme Court explicitly invalidated. Whether the interest-balancing happens as a result of the application of a predefined set of rules (a method of scrutiny) or an ad hoc analysis by the court is irrelevant -- they are merely two forms of the same thing.
Eh...not really. I am (maybe incorrectly) parsing your nuance here. Your first statement that "scrutiny is a means..." is absolutely true. But it is not the only means and in the case of truly new fundamental questions it is pointless.

The idea of means-end analysis really took off as we approached the middle of the 20th Century. To it's credit, it forced courts to start providing an analysis on their decisions, whereas previously you might end up with a one page opinion with an answer but no explanation. Not helpful.

But there are other ways to get our answers. The Supreme Court used a categorical approach in Heller and McDonald simply because the core of the right was not at all defined. The very nature of the right itself was under review. Means-end analysis calls for a restriction to be compared against some standard (hence the term 'standards analysis'). That standard better be definitive or we end up with the 'solutions' like the 2A Two-Step - where a court can easily rule that the lack of standard means the act is not core to the right. At that point, they can use any form of 'scrutiny' they want to dispense with the right.

Saying "strict scrutiny applies" would really offer no guidance. What is the basis of the right? What is core? Who is core? What the hell are we strictly protecting?

Quote:
Originally Posted by navyinrwanda
More broadly, I think cultural issues and a general ignorance about the judiciary have driven most of the casual fascination on scrutiny – and more fundamentally, on the meaning of the Second Amendment.
I think the judiciary itself should take credit for the loss of a categorical analytical capability. The lower courts - in particular - aim for formulaic solutions to nearly every question asked. In many cases it will work, but issues of true first impression require a little more scholarship. Some argue that District Courts are meant for fact-finding...that they are not the ones to be looking at the Constitution. I don't agree, because in questions of law (no fact finding) there is no way around them.

All of these cases are asking the same macro-question: Does the Constitution's Second Amendment have anything to say about activity X (public bearing, whatever)?

The Courts instead frame the question as: Is there any Second Amendment jurisprudence to support the contention that the activity in question is protected?

This means the only way to get a Constitutional ruling is via the Supreme Court. Interestingly, this is not a problem for other rights when issues of first impression come up. Don't Ask Don't Tell was struck on constitutional issues in a District Court. Issues revolving around warrant-less tracking of people, reading of emails and other matters are routinely evaluated in a constitutional context by the lower courts. Many times their holding are upheld.

It's guns. The courts are terrified of them. That does not bode well for us over the next few years.
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Old 05-11-2011, 3:56 AM
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At times I kinda wish you all would stop smashing my irrational hopes.
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Old 05-11-2011, 5:35 AM
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Look outside the short-term issues and see where things are going. It's all good. Really. So far.

Also look outside California. Remarkably, there is a whole nation out there fighting this. Recent trends suggest the solution to California's problems might come in equal measure (or more) from eastern states.

Don't be discouraged. We're talking about the things that the smart people are working to clean up. In a few years, these issues and threads will hopefully be little more than historical ramblings.
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Old 05-11-2011, 9:28 AM
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Yep. Constitutional gun law is unlikely to emanate from CA, certainly not from the 9th circuit. It will have to be imposed from the higher federal courts. Oh for a crystal ball that looked forward, say 5 years.
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Old 05-11-2011, 10:50 AM
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Eh...not really. I am (maybe incorrectly) parsing your nuance here. Your first statement that "scrutiny is a means..." is absolutely true. But it is not the only means and in the case of truly new fundamental questions it is pointless.
Sorry for the confusion. I've corrected that message to better reflect what I intended to say. I most certainly didn't intend to mean that scrutiny was the only means by which the judiciary decides whether or not a right is worth insisting upon.


I'm analyzing this strictly from the point of view of the 9th Circuit.

The 9th Circuit said that a "substantial burden" on RKBA will trigger "heightened scrutiny".

We don't know what that scrutiny might be, but that doesn't matter. If any scrutiny of any kind, whether it be newly created or something which already exists, is used then the court is deciding at that point whether or not the right is worth insisting upon. And that is directly contrary to Heller, which says that such a decision has been taken away from the judiciary entirely.


The only approach which is consistent with Heller is one which, in the event a law is found to substantially burden RKBA, the law is always struck down immediately.


Quote:
Saying "strict scrutiny applies" would really offer no guidance. What is the basis of the right? What is core? Who is core? What the hell are we strictly protecting?
I certainly agree with you, but my discussion hasn't been limited to strict scrutiny. Certainly, however, if the 9th Circuit decided to use strict scrutiny anyway, we have already established that they have managed to turn that method of scrutiny into something that looks an awful lot like rational basis, and the same would be true of intermediate scrutiny as well.

And the bottom line is that in the 9th Circuit, every law which faces a 2nd Amendment challenge will get a rational basis treatment, or something close to it, if even that much.


Quote:
I think the judiciary itself should take credit for the loss of a categorical analytical capability. The lower courts - in particular - aim for formulaic solutions to nearly every question asked. In many cases it will work, but issues of true first impression require a little more scholarship. Some argue that District Courts are meant for fact-finding...that they are not the ones to be looking at the Constitution. I don't agree, because in questions of law (no fact finding) there is no way around them.
Indeed. And yet, is it not true that the purpose of the jury is to decide matters of fact, while the purpose of the judiciary is to decide matters of law?


Quote:
It's guns. The courts are terrified of them. That does not bode well for us over the next few years.
I completely agree, and have said as much before. From the standpoint of jurisprudence, this is, in all the ways that really matter, a brand new right that the courts hate and wish to see neutered. That the 2nd Amendment has been there since the Bill of Rights was written doesn't matter for that.

This is why I'm still of the belief that, short of a sweeping ruling from the Supreme Court that includes instructions so simple that a 4 year old could follow them, it will probably take decades to get things like shall-issue CCW here in California. Without such a ruling, it will take many, many trips to the Supreme Court to hash everything out to the point where the right is truly meaningful here in California. And each trip to the Supreme Court takes a lot of time.
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Old 05-11-2011, 3:20 PM
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kcbrown: with you 100% on your last post.

You are a smart guy, regardless of what Gene suggests to me about you and farm animals...
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Old 05-11-2011, 4:50 PM
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kcbrown: with you 100% on your last post.

You are a smart guy, regardless of what Gene suggests to me about you and farm animals...
LOL!

Well, Gene almost certainly realizes the truth that I am a Super Genius.
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Old 05-11-2011, 5:04 PM
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Look outside the short-term issues and see where things are going. It's all good. Really. So far.

Also look outside California. Remarkably, there is a whole nation out there fighting this. Recent trends suggest the solution to California's problems might come in equal measure (or more) from eastern states.

Don't be discouraged. We're talking about the things that the smart people are working to clean up. In a few years, these issues and threads will hopefully be little more than historical ramblings.
Don't worry, I'm not really getting discouraged. I figure that momentum is on our side. And every once in a while I think about Chester and I get at least a little smile.

But I'm not nearly an expert on Constitutional law and thus get some irrational ideas as to what things mean when I read or hear certain things. Not nice to have those happy thoughts punctured. . . But it doesn't change my overall attitude.

And I still contend that we will eventually have both Shall Issue CCW and LOC in Kalifornia. I consider it almost inevitable but suspect it will take more than 5 years.

In the meantime, I actually have my CCW and my RAW. I'm in fairly good shape personally. I just want that and more for others - Things like a 4th Gen Glock for my wife.

FWIW.
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Old 05-11-2011, 5:22 PM
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Oh, and lest I forget: the longer this takes, the greater the risk that we will be stopped in our tracks by hostile changes within the Supreme Court itself.

As it is, I think there is a significant chance that Obama will win the next election. I have little reason to believe the Republicans will field a worthy candidate, and it's even reasonably possible that the candidate they field will be worthless from the standpoint of the Supreme Court nominations they might make as well. But I have relatively little insight into these things, so who knows.

The bottom line is that we have to get our wins in early and often at the Supreme Court level, and I think the opposition (which includes hostile district and appellate courts) knows this. It's why it's a very good thing indeed that this fight is on the national scale.
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Old 05-11-2011, 6:50 PM
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I think that there are a number of potential Republican candidates who can beat Obama. They just need to ensure that their message is not dumbed down.

But even if Obama should get re-elected, if we get a conservative Republican Senate they have the potential for stopping the anti-RKBA types.

FWIW
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Old 05-11-2011, 7:58 PM
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kcbrown: with you 100% on your last post.

You are a smart guy, regardless of what Gene suggests to me about you and farm animals...
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LOL!

Well, Gene almost certainly realizes the truth that I am a Super Genius.
How did I get drawn into this? I'm just here to watch the show.



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Old 05-12-2011, 6:32 PM
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We don't know what that scrutiny might be, but that doesn't matter. If any scrutiny of any kind, whether it be newly created or something which already exists, is used then the court is deciding at that point whether or not the right is worth insisting upon. And that is directly contrary to Heller, which says that such a decision has been taken away from the judiciary entirely.
“Heightened scrutiny” is not a legal term of art – particularly as it is used in the Nordyke opinion. It does not demand a balancing test. Instead, it simply means that a court must be a “vigilant judicial police.”

The Nordyke panel categorically rejected any interest-balancing tests. It makes no sense to conclude that their completely appropriate reticence to define “heightened scrutiny” instead compels one.
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Old 05-12-2011, 7:42 PM
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“Heightened scrutiny” is not a legal term of art – particularly as it is used in the Nordyke opinion. It does not demand a balancing test. Instead, it simply means that a court must be a “vigilant judicial police.”

The Nordyke panel categorically rejected any interest-balancing tests. It makes no sense to conclude that their completely appropriate reticence to define “heightened scrutiny” instead compels one.
If any method used by the judiciary leaves on the table the choice of keeping on the books a law which substantially burdens RKBA, then that method is an "interest balancing" test, for there is no justification for leaving such a law on the books other than some kind of compelling interest by the state. While "heightened scrutiny" may not be a term of art, it does have meaning, and I would opine that it means, at a minimum, "closer examination".

And Heller removes that option from the table entirely. Under Heller, any law which substantially burdens RKBA is automatically invalid, for under Heller, courts are simply not allowed to decide, once a law has been determined to substantially burden RKBA, whether or not the right is worth insisting upon. That wording shuts the door on the very idea of allowing such a law to stand.

You cannot say that a law which substantially burdens RKBA is both automatically invalid and subject to "heightened scrutiny" at the same time. Those two things simply do not intersect at all, for a law which is automatically invalid needs no additional scrutiny.

Hence, the 9th Circuit's Nordyke ruling is directly in conflict with Heller.
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Old 05-12-2011, 8:47 PM
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Hence, the 9th Circuit's Nordyke ruling is directly in conflict with Heller.
I like this interpretation. Lets hope the SCOTUS agrees and is still pro-freedom by the time this reaches them sometime in the 2020s.
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Old 05-12-2011, 9:19 PM
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And Heller removes that option from the table entirely. Under Heller, any law which substantially burdens RKBA is automatically invalid, for under Heller, courts are simply not allowed to decide, once a law has been determined to substantially burden RKBA, whether or not the right is worth insisting upon. That wording shuts the door on the very idea of allowing such a law to stand.
...
Hence, the 9th Circuit's Nordyke ruling is directly in conflict with Heller.
Heller pretty plainly rejects the notion that a law substantially burdening 2A rights can be justified by any compelling interest. Heller struck a handgun ban that substantially burdened the 2A, so the majority saw no reason to define the level of scrutiny for laws not substantially burdening the right.

Nordyke, OTOH, focused more on alleviating judicial burden of reviewing so many 2A cases. Nordyke centered around an ordinance that was deemed not substantially burdening 2A rights, given current facts before the court, so the majority saw no reason to define the scrutiny to be used for laws that do substantially burden the right.

Basically, the Nordyke ruling mistakenly draws on Heller's importance on the substantial burden test to say that laws not substantially burdening the right aren't subject to any heightened scrutiny. That is really big conclusion to jump to. Heller didn't declare a level of scrutiny for non-burdensome laws, but that doesn't mean the Heller majority thought such laws should get a free pass. Again, the point in Heller was to say laws substantially burdening the right cannot stand. Nordyke took the Heller version of the substantial burden test and morphed it into "only laws substantially burdening the right are subject to heightened scrutiny." That is some remarkably flawed logic.

I find their use of the term 'heightened scrutiny' really perplexing. The word scrutiny implies an investigation or inquiry into a matter. In the case of a law that substantially burdens a 2A right, Heller made it pretty clear that no "scrutiny" is required. The law is unconstitutional, and that's that. Some parts of the ruling make me think they understand the importance of this.

I think one big mistake we all made was aiming for strict scrutiny, when in reality, what we want is a substantial burden constitutionality test as set forth by Heller. Sure, we can try for strict scrutiny for laws that don't substantially burden the right, but I think the Nordyke court reacted to the push for strict scrutiny by accurately pointing out the flaw in applying blanket strict scrutiny to 2A rights. The quotes at the bottom demonstrate that point.

Yes, the 9th really f***ed us good when it comes to laws that do not substantially burden the right, and that is going to stick us with some really bad laws. But for any matter regarding gun possession, self defense, carrying, obtaining a firearm, and training with firearms, we should push for the substantial burden test and throw the 9th's own words directly at the district courts:

Quote:
Rather, the majority rejected such test because it would allow
judges to constrict the scope of the Second Amendment in sit-
uations where they believe the right is too dangerous. See id.
at 634 (majority opinion) (“The very enumeration of the right
takes out of the hands of government—even the Third Branch
of Government—the power to decide on a case-by-case basis
whether the right is really worth insisting upon.”); id. (“A
constitutional guarantee subject to future judges’ assessments
of its usefulness is no constitutional guarantee at all.”). But
applying strict scrutiny to every gun-control regulation would
require courts routinely to make precisely those types of gov-
ernment interest assessments
Quote:
Just as important as what Heller said about a
government-interest approach is what Heller did not say.
Nowhere did it suggest that some regulations might be per-
missible based on the extent to which the regulation furthered
the government’s interest in preventing crime. Instead, Heller
sorted such regulations based on the burden they imposed on
the right to keep and to bear arms for self-defense.
I don't know how any district court could look at this and honestly believe any law substantially burdening the right to keep and bear arms should not be struck down immediately.
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Old 05-12-2011, 11:59 PM
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I find their use of the term 'heightened scrutiny' really perplexing. The word scrutiny implies an investigation or inquiry into a matter. In the case of a law that substantially burdens a 2A right, Heller made it pretty clear that no "scrutiny" is required. The law is unconstitutional, and that's that. Some parts of the ruling make me think they understand the importance of this.
I think the 9th Circuit understands the importance of that just fine, but they don't want to actually comply with it.

I believe the 9th Circuit said exactly what they intended to. They intend to intentionally misinterpret Heller as giving them carte blanche to uphold all laws that can so much as pass rational basis.

In that light, their use of the term "heightened scrutiny" makes perfect sense. They intentionally read Heller in such a way as to divide laws into two categories: those that can be directly treated with rational basis analysis, and those that they can apply their butchered and neutered "heightened scrutiny" to. "Strict scrutiny" is a form of "heightened scrutiny", after all, and they neutered that completely. As I mention before, their reasoning applies just as well to "intermediate scrutiny" and yields the same neutered "scrutiny". There is no reason in the world to believe that any other form of "scrutiny" they might come up with would be any less impotent.


The damage the 9th has done to the 2nd Amendment should not be underestimated, and considering the amount of time that went into the deliberations involved, it would be insanity to believe that they didn't fully understand exactly what they were doing and what effect it would have.

We now have to rely on the Supreme Court to pick up the broken shards of the 2nd Amendment that the 9th Circuit left on the ground.
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Old 05-13-2011, 4:54 AM
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Heller pretty plainly rejects the notion that a law substantially burdening 2A rights can be justified by any compelling interest. Heller struck a handgun ban that substantially burdened the 2A, so the majority saw no reason to define the level of scrutiny for laws not substantially burdening the right.
I think both you and kcbrown have hit this nail on the head. The Supreme Court created a framework for the analysis of restrictions of the Second Amendment: if the restriction is a substantial burden; stop.

The problem is Heller hedged and tried to soft-shoe the approach, maybe to avoid judicial overstretch and creating a literal free-for-all. It seems they wanted to draw some confinements of the right (felons, etc.) and this is the source of much confusion today.

Quote:
...
Again, the point in Heller was to say laws substantially burdening the right cannot stand. Nordyke took the Heller version of the substantial burden test and morphed it into "only laws substantially burdening the right are subject to heightened scrutiny." That is some remarkably flawed logic.
This is considered a fairly "absolutist" stand in modern media, but reading the whole of the decision most tend to agree with it. I think people conflate this view with one that literally offers no restrictions, at all. Any gun, anywhere, held by anyone, at any time. Life itself is a limit.

Heller tried to create some boundaries, but in doing so opened the door to claims that an restriction - however tangentially related - that falls under the famous "presumptively lawful" dicta is somehow exempt from core analysis. Essentially the states are arguing that if they can somehow link their restrictions to that dicta, they can then claim a "non-core" holding for the activity and wash it away with rational basis.

As you guys note, the use of any level of scrutiny is not appropriate in some of these cases - when the restriction categorically burdens exercise the underlying right.

Quote:
I find their use of the term 'heightened scrutiny' really perplexing. The word scrutiny implies an investigation or inquiry into a matter. In the case of a law that substantially burdens a 2A right, Heller made it pretty clear that no "scrutiny" is required. The law is unconstitutional, and that's that. Some parts of the ruling make me think they understand the importance of this.
Judicial hedging and some slight of hand to put the legislature and judicial in charge of the exercise of the right. Nothing more, nothing less.

Quote:
I think one big mistake we all made was aiming for strict scrutiny, when in reality, what we want is a substantial burden constitutionality test as set forth by Heller.
...
Agreed. Forget strict scrutiny. The issue is trying for any level of scrutiny, at all.

Note that Gura and the SAF argue exactly the point you make here: that the laws burden the right and cannot stand on categorical grounds. No mean-end analysis required. The Supreme Court said as much in Heller: no analysis makes sense when the right is infringed.

Courts keep trying to use standards-analysis to end-run this point.

Hopefully the next big case puts another nail in the coffin and strengthens the argument for a more fundamental analysis of Second Amendment first impression cases.
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Old 05-13-2011, 8:14 AM
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Perhaps obviously, if the courts weren't engaging in the exact kind of "interest balancing approach" that Heller proscribed, there wouldn't be such a ripe opportunity for a SCOTUS smack-down such as the one that seems to be emerging. I kind of want Scalia to write the majority opinion on the next one, with his sarcastic wit in full-tilt.

A really clever pro-gun judge would bait the court with some of the same nonsense that the anti-gun judges are writing.
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Old 05-14-2011, 11:07 AM
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Default Nordyke, possibly to a degree useful?

http://www.examiner.com/la-in-los-an...paign-clueless

Click on "filing" in the third paragraph to see the "Notice..."

Regards

Jack
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Old 05-15-2011, 11:09 PM
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I'd love to know if our best and brightest foresaw this particular ruling. Somehow I suspect they probably did...
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Old 05-15-2011, 11:11 PM
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I think it is safe to say that many of "the right people" assumed this is exactly where we'd be. Some thought it might be on other grounds but I suspect some figured it would be kicked for 2A grounds. I have no idea if anyone thought the court would be so explicit in guiding the lower court how to rule against us.
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  #319  
Old 05-15-2011, 11:17 PM
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kcbrown kcbrown is offline
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Originally Posted by dantodd View Post
I think it is safe to say that many of "the right people" assumed this is exactly where we'd be. Some thought it might be on other grounds but I suspect some figured it would be kicked for 2A grounds. I have no idea if anyone thought the court would be so explicit in guiding the lower court how to rule against us.
I suspect that the explicit guidance was foreseen as well. I mean, if the court can issue such guidance and we expect it will issue a ruling against us, then it's probably best to assume that the court will also issue such guidance as well, no?

In any case, the notion that this ruling was foreseen just has to make you smile, because it means it's been accounted for in our strategy.


The smackdown from SCOTUS should be of epic proportions indeed.
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Old 05-15-2011, 11:21 PM
dantodd dantodd is offline
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I suspect that the explicit guidance was foreseen as well. I mean, if the court can issue such guidance and we expect it will issue a ruling against us, then it's probably best to assume that the court will also issue such guidance as well, no?

In any case, the notion that this ruling was foreseen just has to make you smile, because it means it's been accounted for in our strategy.


The smackdown from SCOTUS should be of epic proportions indeed.
What odd universe have I awoken in where KCBrown has a more positive attitude than I do on something?
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