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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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  #8561  
Old 05-22-2017, 8:23 AM
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Only two more decades...
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  #8562  
Old 05-22-2017, 8:29 AM
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Originally Posted by surfgeorge View Post
SCOTUSblog calendar shows Orders/Opinions on Tuesday, May 30, due to Monday being a holiday.

SCOTUSblog article re "relisting" shows 11.1% of cases granted cert after 4 relists:

http://www.scotusblog.com/2016/10/th...ber-term-2015/
How did you get 11.1%? The last sentence "Another interesting trend has emerged this year: Nearly all (57) of the 61 relisted cases that were ultimately set for briefing and argument (93.4%) were granted after the first or second relist; just four of the 61 petitions (6.6%) were granted after the third or fourth relist"

I see 6.6%
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  #8563  
Old 05-22-2017, 9:00 AM
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How did you get 11.1%? The last sentence "Another interesting trend has emerged this year: Nearly all (57) of the 61 relisted cases that were ultimately set for briefing and argument (93.4%) were granted after the first or second relist; just four of the 61 petitions (6.6%) were granted after the third or fourth relist"

I see 6.6%
Look at the chart at step 4. It's:
11.1% chance of granted ceritorari, with arguments
50% chance of granted ceritorari, with summary opinion issued
38.9% chance of denied ceritorari

So, actually at this point we have about 60% chance of case getting some sort of review from SCOTUS and 40% chance of being denied.
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  #8564  
Old 05-22-2017, 9:02 AM
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Originally Posted by Jimi Jah View Post
Only two more decades...
My father, who passed last year at the age of 86, and who lived his entire life in the County of Los Angeles, never had even a slight chance of obtaining a CCW permit, despite a top-secret clearance from the Feds at one time, and all that jazz. Just like every other good citizen who has/did wait decades, he was denied the ability to legally carry by a system of blatant racism that should have been discarded before it ever became entrenched. The continued delays by the courts and legislature are truly disheartening, and at this point I can only hope that future actions in our favor will benefit my children.
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  #8565  
Old 05-22-2017, 9:09 AM
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Originally Posted by surfgeorge View Post
May 22 2017 DISTRIBUTED for Conference of May 25, 2017.
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Originally Posted by splithoof View Post
Are we still good for possible news on the 30th, whatever that news may be?
Thanx
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Originally Posted by surfgeorge View Post
SCOTUSblog calendar shows Orders/Opinions on Tuesday, May 30, due to Monday being a holiday.

SCOTUSblog article re "relisting" shows 11.1% of cases granted cert after 4 relists:

http://www.scotusblog.com/2016/10/th...ber-term-2015/
looks like it can get relisted 4 more times:

Remaining Conference Dates this session:
May 25
June 1
June 8
June 15
June 22
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  #8566  
Old 05-22-2017, 9:34 AM
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Two small points, plus some encouragement.

It is good that we are all looking at this in a civil way. Please keep up the abstract civil discussion.

1) We all forget that the decision in Heller, the main decision, was 9:0. We forget this all the time because the media always quotes the other decision in Heller, the 4:5 part. Remember, and use, the 9:0 decision. Quote it as often as the other sides quotes the 5:4 aspect -- that is to say use the 9:0 decision exclusively and repeatedly. Using this bit of truth always enrages the antis. So do it as often as possible.

2) Use of statistical analysis here is, at best, not applicable. There is neither a Gaussian random chance in play, nor anything like it. Neither is there simple geometric division. So quoting statistical analysis as if there is any applicability is not just invalid, but somewhat fraudulent. Game theory is OK here, because there is a game being played with biased players and fluid rules. The math involved is something like a combination of fuzzy logic and discrete difference equations -- very messy. While I have been paying attention trillions of dollars have been lost due to misunderstanding these fine points.
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  #8567  
Old 05-22-2017, 10:00 AM
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Originally Posted by command_liner View Post
Two small points, plus some encouragement.

It is good that we are all looking at this in a civil way. Please keep up the abstract civil discussion.

1) We all forget that the decision in Heller, the main decision, was 9:0. We forget this all the time because the media always quotes the other decision in Heller, the 4:5 part. Remember, and use, the 9:0 decision. Quote it as often as the other sides quotes the 5:4 aspect -- that is to say use the 9:0 decision exclusively and repeatedly. Using this bit of truth always enrages the antis. So do it as often as possible.

2) Use of statistical analysis here is, at best, not applicable. There is neither a Gaussian random chance in play, nor anything like it. Neither is there simple geometric division. So quoting statistical analysis as if there is any applicability is not just invalid, but somewhat fraudulent. Game theory is OK here, because there is a game being played with biased players and fluid rules. The math involved is something like a combination of fuzzy logic and discrete difference equations -- very messy. While I have been paying attention trillions of dollars have been lost due to misunderstanding these fine points.
9:0? What are you talking about? It was 5:4. Breyer's dissent stated there was no individual right to own firearms and three other justices concurred.
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  #8568  
Old 05-22-2017, 10:31 AM
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Originally Posted by kcbrown View Post
Perhaps, but before you disagree, allow me to explain why it's logical, at least as applied here.

Firstly, the Supreme Court is immensely reluctant to overturn its own precedent. We have Slaughterhouse as a prime example of that. Despite the Court's obvious recognition that Slaughterhouse is a bad decision (as shown by its willingness to use the kludge of "due process" to apply the Bill of Rights against the states), it is nevertheless unwilling to go against Slaughterhouse.

Secondly, Peruta isn't the end of the line of carry cases, and the justices know it.

So: game theory time, and remember that this is all from the perspective of a pro-2A Supreme Court justice. If all of the following is true:
  1. There are additional carry cases coming up (not the least of which is Peruta's followup case that challenges the entire prohibition scheme)
  2. You don't know the positions of everyone on the Court, so you can't reliably count to 5
  3. One or more of the justices is due for replacement by a 2A-friendly one who will shift the balance towards support of carry (i.e., towards your position)
  4. Roberts is the only holdout/wildcard on the 2A side (i.e., we assume here that Kennedy has been convinced by Gorsuch to grant cert and to support a strong pro-2A opinion)

then by taking the case:
  1. You leave winning to chance
  2. If you lose, you foreclose later wins
  3. If you lose, you may trigger an Article V Convention (see below)
  4. Even if you win, the nature of the win is likely to prove more hollow than you like due to the compromises you'd have to make in order to secure the win in the first place (see, e.g., Heller).

whereas by denying cert:
  1. You dramatically improve the odds of winning later (with a replacement of Ginsburg, you guarantee a win) with one of the cases that you know is coming
  2. You improve the odds (almost to the point of a guarantee) of the win being more substantial than it would be otherwise
  3. Historical precedent suggests that you won't trigger an Article V Convention, especially given the prior two points

Since the odds of an overall win are higher in the latter and you maximize the odds of avoiding an Article V Convention, denial of cert is the clear game theoretical winner.




Precisely. It's a question of the risks. More precisely, it's a question of the risks versus rewards, compared with the alternatives. It appears to me, based on what I outlined above, that the risk versus reward situation favors denial of cert.




By "rational", I really mean rational, i.e. the true meaning of the word ("based on or in accordance with reason or logic"), not the laughable construct that the anti-2A courts have turned the word into.




Rational and rationalized aren't the same thing, of course, though they are in the minds of those idiotic courts.




I agree, SCOTUS justices aren't immune to their prejudices (else both Heller and especially McDonald would have been a 9-0 decision and not a 5-4 one).

But that doesn't mean they can't count, or that they don't understand the situation.

Sure, it's possible that the pro-2A side will ignore the game theoretical situation and go for granting cert anyway. But that something is possible doesn't make it the way to bet.




Better than 50%. But:
  • It wouldn't be a lot better than 50% (see, e.g., ObamaCare for what Roberts is willing to do)
  • Roberts would be able to use the threat of deciding against as the means of minimizing the benefit of the decision




The question isn't whether Roberts cares, it's really a question of what he cares about more. Does he care more about the perception others have of him, or about the actual effects of his decisions? And keep in mind: it's not like the entire population would have it in for him if he were to side against carry. Many (e.g., the snowflakes and many in urban areas) would support him. And most certainly, much of the rest of the world would agree with such a decision. If he's looking to build a legacy that appeals to the world, and not just the country, he may well believe that the way to do that is to limit the 2nd Amendment as much as possible.




There is no such thing as an insurmountable precedent, most especially as regards the Supreme Court. A consistent message that I've been trying to telegraph is that nothing constrains the ability of judges to decide cases as they please. They suffer no ill effects from any decision they may wish to issue, save perhaps for those few situations where the law they're deciding on directly affects them.

It is vitally important to not confuse unwillingness with inability.


But since we're talking about the viewpoint of the pro-2A justices, the question has to be: are any of them comfortable with the notion of an Article V Convention happening? Are all of them? I'd wager not. Such a Convention under the circumstance where the Court has decided that the 2nd Amendment is nearly a dead letter is one that is likely to not be favorable to the Court as an institution. Importantly, that makes an Article V Convention something even the pro-2A justices will wish to avoid. That will affect the game theoretical balance.




Oh, I completely agree. Nevertheless, the game theoretical situation is what it is, and argues in favor of waiting for a more favorable Court composition.




I think a more pertinent question is: what kind of irreversible damage will occur in the meantime?

I think the answer is "not much" (well, except for the lives needlessly lost because those who lost their lives were forbidden from mounting an effective defense. ). Laws are always subject to change because they are arbitrary constructs that come into existence, and cease to exist, at the stroke of a pen.

The damage that would be most difficult to reverse would come from the Supreme Court, because the Court has an institutional reluctance to reverse its own damage that exceeds that of any other government institution.




Right. But remember: what we're deciding between here is having the Supreme Court overturn a lower court at a later time, versus (if SCOTUS grants cert to Peruta and, God forbid, decides against us) having the Supreme Court overturn its own precedent at a later time. As you point out, the Court is immensely reluctant to overturn its own precedent, no matter how bad it may be, so the former is clearly much easier to achieve than the latter, and the former is something that would be achievable through denials of cert until the Court's composition is solidly in favor of the full power of the 2nd Amendment.
Very good analysis as always. I do have some issues on some of your points. One of your statements bothered me more than any other, though.
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Oh, I completely agree. Nevertheless, the game theoretical situation is what it is, and argues in favor of waiting for a more favorable Court composition.
Where had I encountered that (that basic idea / rationale) before? I slept on it. That helped (always does, ) and the following came instantly to mind:



There is one main point that one must considered.... an analogy, if you will.

It comes from two men in American history (bear with me here as I am certainly not a Historian, but will do my best). Both were Generals. Both were named George. Both were brilliant tacticians. Both had an excellent grasp on the challenges and circumstances they faced. Yet Both handled these challenges in totally opposite ways. History remembers one as wildly successful, against seemingly insurmountable odds, and accomplished the impossible. The other went down in history as brilliant planner, but indecisive and inept.

Who are those two men in History? George McCellan and George Patton. Lincoln charged McCellan with building an Army and taking the fight to the Confederates during the Civil War; Patton, the task of Stopping a surprise German Attack that threatened to break the back of the Allied invasion. He had to turn and entire army (the 3th Armored) 90 degrees and march over 100 miles in less than 3 days to save a tiny town called Bastogne, which was surrounded by German Panzers during the Battle of the Bulge.

McCellan built his army; trained his men, acquired and amassed an enormous amount of equipment and materials, and developed a well thought-out strategic and tactical plan.
Patton on the other hand, confident and bold, drew on his prior experience and literally "WILLED" his army to move ... NOW !

History tells us that, McCellan sought perfection, that and that alone would guaranty success. Doubts constantly crept into his thoughts. He needed More men, more equipment, a Better Plan. Again, again, and again ..... delaying his military action. He was incapacitated by fear .... fear of failure. Enter U.S. Grant and the rest is history.

Patton knew that the Perfect was the enemy of the Good.
A GOOD PLAN, executed today, was better than a Perfect Plan executed tomorrow. So, he acted, and wrote himself into the history books.
Was McCellan wrong in his logic, reasoning, and strategic planning?
No. His plans were airtight, his logic and reasoning, unassailable. But he never acted, deferring to a time when things were perfect, to guaranty his success.

Now, I didn't intend for ^^^ that story to become so dramatic, .Now I'm not calling KC a McCellan, and I certainly am not likening myself to Patton, lol. I'm only pointing out the differences in strategy here and I think this analogy fits quite well. Patton drew on the intangibles and shear force of Will to get it done .... to help guide him to success. He had no choice. Lives were at stake.....And so they are here, my friend. True, we may not get everything we want, but those can be fleshed out better in future cases when the court is stronger, more conservative and liberty minded.

Anyway, it's nice to have presented an alternate yet plausible route that can be taken and I have, again, as always, enjoyed our interaction, KC.

That's all I got ....

SC
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  #8569  
Old 05-22-2017, 11:18 AM
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How did you get 11.1%? The last sentence "Another interesting trend has emerged this year: Nearly all (57) of the 61 relisted cases that were ultimately set for briefing and argument (93.4%) were granted after the first or second relist; just four of the 61 petitions (6.6%) were granted after the third or fourth relist"

I see 6.6%
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Originally Posted by Chatterbox View Post
Look at the chart at step 4. It's:
11.1% chance of granted ceritorari, with arguments
50% chance of granted ceritorari, with summary opinion issued
38.9% chance of denied ceritorari

So, actually at this point we have about 60% chance of case getting some sort of review from SCOTUS and 40% chance of being denied.
I'll throw this in from a poster at MDShooter ....

Quote:
For mid may 2015 conference cases that were redistributed, there is exactly 50-50 chance the case was denied cert (with out without dissent, but usually with), 50-50 chance the case was "decided" (Per curiam, GVR, or scheduled for oral arguments and decided on merits). The only cases that were held over until next term were ones where the SCT requested a response from the Solicitor General. There are a few cases from 2015 and 2016 where they redistributed the case a few times, then asked for a response (all I checked were ultimately denied). FWIW, there are 10 more cases redistributed compared to the same conference last year, and 6 more cases redistributed than 2015.

I'd say at this point it's exactly a coin flip whether its a grant or denial.
I like those odds ....
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I am humbled at the efforts of so many Patriots on this and other forums, CGN, CGF, SAF, NRA, CRPF, MDS etc. etc. I am lucky to be living in an era of a new awakening of the American Spirit; One that embraces it's Constitutional History, and it's Founding Fathers vision, especially in an age of such uncertainty that we are now in.
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  #8570  
Old 05-22-2017, 11:22 AM
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Very good analysis as always. I do have some issues on some of your points. One of your statements bothered me more than any other, though.

...

(McClellan vs Patton analogy, which is quite interesting by the way, removed for brevity's sake)
Hmm...well, there are a couple of fundamental problems with that analogy.

The first is that the game theory I mention isn't ours (though there are elements in it that may be applicable to ours), it's that of the pro-2A SCOTUS justices.

The second is that it presumes that granting cert to Peruta is likely to yield a decision that is "good enough", even after the compromises that would be necessary to get a positive decision at all.

What exactly is "good enough"? If we get a decision that says that "bear" is some sort of "right", but that it is subject to "reasonable regulation" without actually spelling anything out, then we're really no closer to regaining the right than we were prior to the decision. In real terms, it would have the equivalent effect of denying cert, but with one crucial difference: it would cement any negative attributes of the decision for all time.

So it really comes down to this: how likely are we to get a decision that is stronger and more supportive than that when getting a favorable decision at all turns on the whim of someone who doesn't want to expand the right beyond keep in the home?



Quote:
And so they are here, my friend. True, we may not get everything we want, but those can be fleshed out better in future cases when the court is stronger, more conservative and liberty minded.
That is true, but then that is true even with a denial of cert. And that's really the point. If the game theoretical situation is what I outlined, then granting cert to Peruta involves heightened risk without the corresponding reward. In essence, and this is the best case scenario, our choices are:
  1. Get a lukewarm positive decision now and deal with the damage it does, to whatever degree possible, after the Court composition changes
  2. Wait until the Court composition changes and get a damage-free decision out of the gate

Where's the advantage in the first case?


Quote:
Anyway, it's nice to have presented an alternate yet plausible route that can be taken and I have, again, as always, enjoyed our interaction, KC.
Likewise!
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  #8571  
Old 05-22-2017, 11:57 AM
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Clearly we need more conservatives on the bench.
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Old 05-22-2017, 12:12 PM
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Hmm...well, there are a couple of fundamental problems with that analogy.

The first is that the game theory I mention isn't ours (though there are elements in it that may be applicable to ours), it's that of the pro-2A SCOTUS justices.

The second is that it presumes that granting cert to Peruta is likely to yield a decision that is "good enough", even after the compromises that would be necessary to get a positive decision at all.

What exactly is "good enough"? If we get a decision that says that "bear" is some sort of "right", but that it is subject to "reasonable regulation" without actually spelling anything out, then we're really no closer to regaining the right than we were prior to the decision. In real terms, it would have the equivalent effect of denying cert, but with one crucial difference: it would cement any negative attributes of the decision for all time.

So it really comes down to this: how likely are we to get a decision that is stronger and more supportive than that when getting a favorable decision at all turns on the whim of someone who doesn't want to expand the right beyond keep in the home?





That is true, but then that is true even with a denial of cert. And that's really the point. If the game theoretical situation is what I outlined, then granting cert to Peruta involves heightened risk without the corresponding reward. In essence, and this is the best case scenario, our choices are:
  1. Get a lukewarm positive decision now and deal with the damage it does, to whatever degree possible, after the Court composition changes
  2. Wait until the Court composition changes and get a damage-free decision out of the gate

Where's the advantage in the first case?




Likewise!
Striking down a "need" clause from public carry is a huge step, even if the court doesn't clarify the right any more. This is effectively the only tool the antis have to limit public carry.
Yes, they may think of something else but it gets more and more desperate each time.
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Old 05-22-2017, 12:26 PM
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Clearly we need more conservatives on the bench.
Which makes me wonder if a remand is the best outcome.
Deny and it goes away. Grant and any right to carry gets watered down.
I would expect that the court concedes there is a right to carry, it probably strikes down "just cause" provisions, but Roberts and Kennedy will make sure any majority option provides states with plenty of leeway to trample the right. In CA, NJ, NY, HI etc, you will be permitted to carry a flintlock pistol on the first Tuesday of the month after 400 hours of training and posting a $1 million bond.
But if they remand, it goes back to the 9th Circuit for a year or 2 where they will engage in legal gymnastics to conclude there is no right to carry or there is a right to carry, but pretty much any restrictions are acceptable.
By the time it gets back up to SCOTUS again, perhaps we have a friendlier court.
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Old 05-22-2017, 12:33 PM
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I doubt this will make it out of the cert pool.

As someone mentioned before, justice Scalia has already written a landmark opinion upholding the 2nd amendment as valid for individuals and that placing limits/regulations on concealed carry is appropriate.

This case would not break any new ground.

I don't like that much, but it looks like a whole opinion and solid case law.


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  #8575  
Old 05-22-2017, 1:04 PM
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I doubt this will make it out of the cert pool.

As someone mentioned before, justice Scalia has already written a landmark opinion upholding the 2nd amendment as valid for individuals and that placing limits/regulations on concealed carry is appropriate.

This case would not break any new ground.

I don't like that much, but it looks like a whole opinion and solid case law.


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I disagree. Limits/regulations are not the same as prohibiting entirely. Here in Los Angeles I have a better chance of being abducted by aliens and being given a free sigmoidoscopy than get a carry permit.

And, no, I don't know if the aliens provide the Devil's Lube or not.
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Old 05-22-2017, 3:18 PM
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Wouldn't it make sense for antis to vote for cert so they could kill it? Assuming they think they have 5 votes?
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Old 05-22-2017, 4:26 PM
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Wouldn't it make sense for antis to vote for cert so they could kill it? Assuming they think they have 5 votes?
I suspect the problem is, there's a couple of wobblers on the court and no one knows how they'll vote in terms of gun rights. So both the anti's and the pro's are wary of granting cert.

Either that, or there's some serious legal judgey constitutional stuff going on here and they really are waiting for "the right case."
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Old 05-22-2017, 4:56 PM
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Where's the advantage in the first case?




Likewise!

Your making a lot of assumptions there, my friend , a lot .....

Plus .......

You forgot the 2nd question ......

" What are the risks if we wait and delay for the perfect?"

Another Sandy Hook, Gorsuch or no Gorsuch, could be devastating for us.
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I am humbled at the efforts of so many Patriots on this and other forums, CGN, CGF, SAF, NRA, CRPF, MDS etc. etc. I am lucky to be living in an era of a new awakening of the American Spirit; One that embraces it's Constitutional History, and it's Founding Fathers vision, especially in an age of such uncertainty that we are now in.
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Go cheap you will always have cheap and if you sell, it will sell for even cheaper. Buy the best you can every time.
^^^ Wise Man. Take his advice

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Old 05-22-2017, 5:00 PM
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Originally Posted by butchy_boy View Post
Wouldn't it make sense for antis to vote for cert so they could kill it? Assuming they think they have 5 votes?
Generally, the court takes cases and overturns the appeals ruling something like 75 plus percent. I suspect the antis don't want to touch this because they already got the ruling they wanted, the other appeals courts have also ruled the same.
Just like what happened after US v. Miller, the appeals courts start running wild with bad rulings, and you nearly have precedent for years that the 2A is a collective right. Once the antis step in and make a bad SCOTUS opinion, then pressure mounts to amend the constitution and overturn the ruling. Judges do not like being overruled, especially by the people.
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Old 05-22-2017, 5:01 PM
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Which makes me wonder if a remand is the best outcome.
...........

By the time it gets back up to SCOTUS again, perhaps we have a friendlier court.
You may very well be right about it being the best outcome if the Court wants to punt and wait until the case comes back around on the flip side.
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Old 05-22-2017, 5:34 PM
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I'll throw this in from a poster at MDShooter ....



I like those odds ....
Overtime I've learned that the crowd over at MDshooters is much better at articulating why this time won't be different, yet somehow it always stays the same.

That opinion does not factor in denial of cert in every other 2A case besides Caetano, or a refusal to address the 2A aspect in cases involving firearms.

.1% chance they grant cert if you look at the big picture.
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Old 05-22-2017, 5:34 PM
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Originally Posted by press1280 View Post
Generally, the court takes cases and overturns the appeals ruling something like 75 plus percent. I suspect the antis don't want to touch this because they already got the ruling they wanted, the other appeals courts have also ruled the same.
Just like what happened after US v. Miller, the appeals courts start running wild with bad rulings, and you nearly have precedent for years that the 2A is a collective right. Once the antis step in and make a bad SCOTUS opinion, then pressure mounts to amend the constitution and overturn the ruling. Judges do not like being overruled, especially by the people.
More likely Kennedy an/or Roberts are okay with where the 2A is right now. Neither wants to expand nor restrict it. I don't think fear of a constitutional convention is the driving factor in cert denial/acceptance in this case.
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Old 05-22-2017, 6:15 PM
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Your making a lot of assumptions there, my friend , a lot .....
True as that might be, I don't know what set of alternative assumptions have at least equal plausibility. After all, Alito explicitly called out the Court as "grudging" with respect to a stun gun case.


Quote:
Plus .......

You forgot the 2nd question ......

" What are the risks if we wait and delay for the perfect?"
That is true.


Quote:
Another Sandy Hook, Gorsuch or no Gorsuch, could be devastating for us.
How would it not be regarded by the pro-2A faction on the Court as merely more of the same?

That's a problem the progressives have: if something happens often enough, it becomes part of the background noise. It loses its sensationalism, becomes "more of the same". But worse (for them), such events as Sandy Hook never occur in places where people are allowed to carry and where people actually are carrying. The worse that happened in that respect was the Giffords shooting, and likely only because there were relatively few people carrying in the area.


But let's say the Court grants cert, and as a result of the factors I mentioned, issues a decision which "acknowledges" the right but which also does not (at least explicitly) forbid severe limits on it (see, e.g., Washington D.C. or NYC, where it's still nigh unto impossible to acquire a firearm for personal defense despite Heller). And then a Sandy Hook type event occurs. What, exactly, do you expect to be different about the ultimate outcome?

Logically, the outcome would be essentially the same: no carry for the average individual at a minimum in the places they tend to be most often, or at least in places they are required to traverse in order to get where they're going (e.g., mass transit), and most likely nearly everywhere. Nothing would change, because the lower courts would regard that as "reasonable regulation", and SCOTUS would agree as a result of the new Sandy Hook type event having taken place.

And that's the best one could expect from a decision which is crafted under "duress", upon pain of a decision siding against the right altogether. The worst case would be a decision which explicitly says that carry is a right, but because it's exercised in public, "intermediate scrutiny" is the proper analytical method to apply to laws governing it. That will seal our doom while paying lip service to the right. Why? Because for a later Court to undo the damage, it would have to reverse itself.


What do we gain from that not inconsiderable risk? A more immediate "acknowledgement" of the right, and little else. Which is to say, we'll gain nothing useful if the narrative is controlled by the person who does not want to see the right expanded beyond its current explicitly acknowledged scope.


And so, I see little reason to alter my expectations here. I see no way we truly gain anything from a decision which contains the "compromises" that would be necessary to satisfy a SCOTUS member who wishes to see the right remain confined to the home. Maybe the pro-2A faction on the Court knows of a way to deal with that, in which case a cert grant is more probable. But based on the assumptions that seem most likely to be true, the game theoretical situation seems to clearly disfavor granting cert.

Now, I certainly cannot entirely discount the possibility that a cert grant will result in a strong opinion that supports the right. But that is the least probable outcome. If it were a substantially probable outcome, the Court almost certainly wouldn't have repeatedly denied cert to prior carry cases (even Woollard, which covers all forms of carry).
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The real world laughs at optimism. And here's why.

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Old 05-22-2017, 6:38 PM
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Originally Posted by butchy_boy View Post
This may be an unpopular opinion BUT

For the rest of the country, it may be better to have cert denied lest we lose completely at SCOTUS until at least we have a bonafide conservative majority.

Yes it will suck for you guys still, but there are many states on the line of pro gun/anti gun, and a loss at SCOTUS could harm many more states than just CA.
That's already been discussed by Kc and Chuck.

SouthwestChuck, who assets himself to be more optimistic, asserts pushing Peruta, even with a loss, would help galvanize people like YOU to call for an article V and force the issue to be sewn up in a constitutional convention.

Kcbrown, the pessimist, believes that we have more time.

I was going to quote the passages, but comment is too long already. I'll give them to you if you ask.

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Originally Posted by kcbrown View Post

Better than 50%.
This is why I LOVE kc. He's willing to play games, including odds and percentages! YAY!!!
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Originally Posted by kcbrown View Post
But:
  • It wouldn't be a lot better than 50% (see, e.g., ObamaCare for what Roberts is willing to do)
  • Roberts would be able to use the threat of deciding against as the means of minimizing the benefit of the decision




The question isn't whether Roberts cares, it's really a question of what he cares about more. Does he care more about the perception others have of him, or about the actual effects of his decisions? And keep in mind: it's not like the entire population would have it in for him if he were to side against carry. Many (e.g., the snowflakes and many in urban areas) would support him. And most certainly, much of the rest of the world would agree with such a decision. If he's looking to build a legacy that appeals to the world, and not just the country, he may well believe that the way to do that is to limit the 2nd Amendment as much as possible.
EVERYONE should take the time to stop and read the above. Slowly. With meaning.

Globalism is an infectious ideology that has been making various attempts to weaken our nationalism, jurisprudence, beliefs, history, etc. since the turn of the 20th century. The progressive wing of the court openly advocates for listening to other nations on jurisprudence. Nations that almost universally ban hate speech. Roberts has shown himself, above all, to be an ally of corporations.

What evidence does anyone have that Roberts isn't allied with globalist-corporatism as an ideology? Further, the "progressive" alliance with globalism was an easy threat to see- judges talk about it. However, the conservative-globalist perspective has been the phantom menace that may very well be cutting us off at the waist/forearm/wrist/knees.

I'd also point out, this is why TRUMP was necessary. BOTH Bushes appointed weak-kneed judges on the MOST important issues for us. Screw 'em and the NRA support of them. I'm really starting to like the NRA for going to the mat with Trump, as he cares about loyalty, and if anything we definitely demonstrated that.

Now we need to figure out how to make a big enough stink that Republicans realize they need to feed US.

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Originally Posted by kcbrown View Post
There is no such thing as an insurmountable precedent, most especially as regards the Supreme Court. A consistent message that I've been trying to telegraph is that nothing constrains the ability of judges to decide cases as they please. They suffer no ill effects from any decision they may wish to issue, save perhaps for those few situations where the law they're deciding on directly affects them.

It is vitally important to not confuse unwillingness with inability.
True, but they are about as close to practical inability (through choice) as you get on this issue. You yourself talk about how a bad precedent could be deadly.

At least until you and I figure out a campaign to get Ted Nugent appointed to the court, with the implicit threat that we'll hire "whackobirds" unless we get what we want.


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Originally Posted by kcbrown View Post
But since we're talking about the viewpoint of the pro-2A justices, the question has to be: are any of them comfortable with the notion of an Article V Convention happening? Are all of them? I'd wager not. Such a Convention under the circumstance where the Court has decided that the 2nd Amendment is nearly a dead letter is one that is likely to not be favorable to the Court as an institution. Importantly, that makes an Article V Convention something even the pro-2A justices will wish to avoid. That will affect the game theoretical balance.
KC, 24 was more or less groundbreaking in bringing up the 25th amendment out of obscure thrillers.

Article V is even more obscure. I'd bet there's one judge on the court who'd be at least a bit confused by that text/where it belongs/etc. without context because it has rested so long they may have forgot it was an Ent, and not a tree.

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Originally Posted by kcbrown View Post
Oh, I completely agree. Nevertheless, the game theoretical situation is what it is, and argues in favor of waiting for a more favorable Court composition.
For Chuck's benefit: it's important to put dates and times on such wishy-washy promises.

2 years. We give it two years for a replacement. Maybe KC has a different time frame in mind, but I say 2 years, and that gives us a definite date to start proceedings after we fail. It's important to have concrete goals. I think 2 years is achievable. Need to go pick up some black candles to burn.


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Originally Posted by kcbrown View Post
I think a more pertinent question is: what kind of irreversible damage will occur in the meantime?

I think the answer is "not much" (well, except for the lives needlessly lost because those who lost their lives were forbidden from mounting an effective defense. ). Laws are always subject to change because they are arbitrary constructs that come into existence, and cease to exist, at the stroke of a pen.

The damage that would be most difficult to reverse would come from the Supreme Court, because the Court has an institutional reluctance to reverse its own damage that exceeds that of any other government institution.
Right. This case has taken 10 years. I notoriously chomp at the bit (ask Kc). But this time, it definitely makes more sense to wait because the process of undoing another Heller clusterf*ck is way too long, compared to the instant and final (more or less) relief of a very strong decision.

I agree, wishy-washy is the enemy here.


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Originally Posted by kcbrown View Post
Right. But remember: what we're deciding between here is having the Supreme Court overturn a lower court at a later time, versus (if SCOTUS grants cert to Peruta and, God forbid, decides against us) having the Supreme Court overturn its own precedent at a later time. As you point out, the Court is immensely reluctant to overturn its own precedent, no matter how bad it may be, so the former is clearly much easier to achieve than the latter, and the former is something that would be achievable through denials of cert until the Court's composition is solidly in favor of the full power of the 2nd Amendment.
NUGENT FOR SCOTUS.

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Originally Posted by Southwest Chuck View Post


SUCH AN IMPORTANT CASE .... If our enumerated fundamental Rights are going to be dependent on, and/or held hostage to, a favor granted from one Justice to another, so they won't be put in an uncomfortable position, then the Snowflake Revolution and Transformation of our country is complete.

I guess I should start packing faster, KC ....
Yes! Pack pack pack! I'm ok having a usurious landlord if it gets us further along.

My dark master: he seems ready for the next step to becoming a legal sith lord. He seems most resistant to nerd references, so maybe we need to find someone chuck respects and have them geek out, or we should temporarily scrub our geek culture- or find if he's a trekkie, and make references to defeating the Borg as an do-or-die endeavor, where you have to hit the queen/entire colony or they will adapt to get around us. I think I can work with Borg metaphors.
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Old 05-22-2017, 6:42 PM
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Because you're literally the only one arguing that SCOTUS cares about the law over outcome/personal feelings anymore.

If someone else does, please speak up. Even the lawyers who post here who never say they agree courts have shown themselves to act politically don't affirmatively say that they believe courts are acting impartially. So if I missed someone that does affirmatively believe courts are acting mostly if not wholly out of jurisprudence, then please correct me. Even Milan has started to waver on if courts will agree with him (which doesn't make him wrong about precedent, just about the honesty of courts).
DO NOT DELIBERATELY MISREPRESENT MY POSITION IN THIS THREAD.

We're supposed to keep this thread civil.

I've made it cyrstal clear like so many others in this thread that our courts are not our saviours - and nor are they free from politics.

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Old 05-22-2017, 6:48 PM
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I disagree. Limits/regulations are not the same as prohibiting entirely. Here in Los Angeles I have a better chance of being abducted by aliens and being given a free sigmoidoscopy than get a carry permit.

And, no, I don't know if the aliens provide the Devil's Lube or not.
Which is why Peruta is ripe as a 14A / Equal Protection case?

Here in Santa Clara County, the sheriff only issues to her very wealthy campaign donors.

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Old 05-22-2017, 6:50 PM
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DO NOT DELIBERATELY MISREPRESENT MY POSITION IN THIS THREAD.

We're supposed to keep this thread civil.

I've made it cyrstal clear like so many others in this thread that our courts are not our saviours - and nor are they free from politics.

My apologies, as I was certainly NOT deliberately misrepresenting you. I am genuinely confused how you can believe courts are not our saviors, not free from politics- but imagine SCOTUS will actually follow the law/jurisprudence like an autistic savant, who won't bend to politics, but follows the text doggedly without regard for people's feelings. Literally, I BELIEVE in Open carry as the right, like Mulay, Nichols, you, and KC to some degree. Yet I don't believe it will be upheld or ruled that way because justices ARE wimps and care more about feelings than about doing their job.

I welcome you to clarify this because I quite honestly forgot you had said that and still have trouble understanding how you can do both, which makes it hard to remember you hold two ideas that seem fundamentally at odds from my point of view.
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Old 05-22-2017, 7:14 PM
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What is true? Some hazy reference to possible future harms of an unknown sort on an unknown time frame?
No. What is true is that I didn't address the risks (such as they are) of waiting. The argument was incomplete without that.

Note that waiting was not the game theoretical best play prior to Trump's election. At that point, we were on a clock that was unfavorable to us. Right now the clock favors us. That is, of course, subject to change, but for now, the clock favors us for a bit.

I'm more inclined to give 3 years instead of 2 as the timeline, but no matter what, the amount of time it takes to get these cases up to SCOTUS is such that we still have to file them now to get them there 3 or more years from now.
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Old 05-22-2017, 7:20 PM
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No. What is true is that I didn't address the risks (such as they are) of waiting. The argument was incomplete without that.

Note that waiting was not the game theoretical best play prior to Trump's election. At that point, we were on a clock that was unfavorable to us. Right now the clock favors us. That is, of course, subject to change, but for now, the clock favors us for a bit.

I'm more inclined to give 3 years instead of 2 as the timeline, but no matter what, the amount of time it takes to get these cases up to SCOTUS is such that we still have to file them now to get them there 3 or more years from now.
And fair enough. We can quibble over 2 or 3 years, create arguments for or against, and go from there. But that's a debate with properly addressed terms where we can be clear on the debate. That's what I was getting at.
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Old 05-22-2017, 7:50 PM
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I disagree. Limits/regulations are not the same as prohibiting entirely. Here in Los Angeles I have a better chance of being abducted by aliens and being given a free sigmoidoscopy than get a carry permit.



And, no, I don't know if the aliens provide the Devil's Lube or not.


Oh, I know and feel for you. However the scalia opinion says this is OK as long as open carry is legal. It sucks in many ways but it is great in many ways. The cases in Illinois are what Californians to will issue.


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Old 05-22-2017, 8:11 PM
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This is why I LOVE kc. He's willing to play games, including odds and percentages! YAY!!!
Since you like odds so much, I'm willing to bet this thread reaches over 2 Million views before the case is settled (3 Million if it's GVR'd), and give it a better than even chance if you and KC stay engaged.

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Yes! Pack pack pack! I'm ok having a usurious landlord if it gets us further along.

My dark master: he seems ready for the next step to becoming a legal sith lord. He seems most resistant to nerd references, so maybe we need to find someone chuck respects and have them geek out, or we should temporarily scrub our geek culture- or find if he's a trekkie, and make references to defeating the Borg as an do-or-die endeavor, where you have to hit the queen/entire colony or they will adapt to get around us. I think I can work with Borg metaphors.
Well, I'll give you this: You've given me my first laugh in this thread, and that's saying something, lol

e
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I am humbled at the efforts of so many Patriots on this and other forums, CGN, CGF, SAF, NRA, CRPF, MDS etc. etc. I am lucky to be living in an era of a new awakening of the American Spirit; One that embraces it's Constitutional History, and it's Founding Fathers vision, especially in an age of such uncertainty that we are now in.
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Old 05-22-2017, 8:19 PM
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Since you like odds so much, I'm willing to bet this thread reaches over 2 Million views before the case is settled, and give it a better than even chance if you and KC stay engaged.


MOAR ODDS! It's like a gun fivethirtyeight in here! I LOVE IT.



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Well, I'll give you this: You've given me my first laugh in this thread, and that's saying something, lol

e


YES! I look at my relative advantages compared to Kc, and it's certainly not in the logic department, so I fill the sorely lacking humor space of calguns. Besides, Kc's unrelenting logic can get a little oppressive for people; I always found the right mixture of humor and gloom does a better job of getting people off the ledge than just gloom alone. Wait a sec, what way are they getting off the ledge, the quick way?
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Old 05-22-2017, 9:22 PM
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9:0? What are you talking about? It was 5:4. Breyer's dissent stated there was no individual right to own firearms and three other justices concurred.
In only 9 years this concept has been so completely obfuscated that I am truly impressed at what the antis have done.

Here is the quote from the DISSENT, agreeing that the 2nd protects an individual right, something not stated until the Heller case. First paragraph of dissent by the 4 dissenters.

The question presented by this case is not whether the
Second Amendment protects a “collective right” or an
“individual right.” Surely it protects a right that can be
enforced by individuals. But a conclusion that the Second
Amendment protects an individual right does not tell us
anything about the scope of that right.


See https://www.supremecourt.gov/opinions/07pdf/07-290.pdf

The majority opinion is much stronger on this point. Go ahead and re-read the whole opinion.

What is truly amazing is that a clear win for us gets so totally buried. NONE of the summary readings on the popular internet sites highlight this conclusion. Certainly it is not mentioned at wikipedia. But I was paying keen attention at the time and do remember reading 2-3 articles on this point.

As I said earlier, Heller has 2 findings. One is 9:0 in our favor, the other is 5:4 in our favor. Use this indisputable fact to your advantage whenever possible.

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Old 05-22-2017, 11:03 PM
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My apologies, as I was certainly NOT deliberately misrepresenting you. I am genuinely confused how you can believe courts are not our saviors, not free from politics- but imagine SCOTUS will actually follow the law/jurisprudence like an autistic savant, who won't bend to politics, but follows the text doggedly without regard for people's feelings. Literally, I BELIEVE in Open carry as the right, like Mulay, Nichols, you, and KC to some degree. Yet I don't believe it will be upheld or ruled that way because justices ARE wimps and care more about feelings than about doing their job.

I welcome you to clarify this because I quite honestly forgot you had said that and still have trouble understanding how you can do both, which makes it hard to remember you hold two ideas that seem fundamentally at odds from my point of view.
And you continue to misrepresent me...




...after so many posts on my part on how SCOTUS can go multiple ways with this GOOD OR BAD...with us at their mercy.

=8-(
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Old 05-23-2017, 2:23 AM
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Wouldn't it make sense for antis to vote for cert so they could kill it? Assuming they think they have 5 votes?
Just my opinion, but I think Roberts and Kennedy don't want to expand gun rights. They personally aren't comfortable mandating nationwide must-issue carry. However, intellectually and legally, they know it's a protected right and would grudging rule in Peruta's favor if cert was somehow granted.
So, the 4 anti's aren't voting for cert, knowing they would lose.
I think you have also seen some of the frustration on the side of the pros (Scalia, Thomas in dissents from cert and Alito in a concurrence on Caetano), since they believe they would win, but can't get Roberts and Kennedy to move on Cert.

One has to wonder what that outcome would have been if Hillary had won the election and instead of Gorsuch, we had Justice Maxine Waters (I don't know who it would be, but an anti 2A liberal). Would the new liberal majority vote for cert so they affirmatively roll back gun rights and close the door on carry?
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Old 05-23-2017, 12:24 PM
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And you continue to misrepresent me...




...after so many posts on my part on how SCOTUS can go multiple ways with this GOOD OR BAD...with us at their mercy.

=8-(
Saying I'm getting you wrong, and when I apologize and ask for clarification, more whining about how I mischaracterize you instead of seizing the platform to discuss where I'm wrong, where I went astray.

I've apologized on my end for misunderstanding you, yet instead of actually helping me see how clever and brilliant your ideas are you... don't talk about your ideas.

Ok. If you like your martyr complex claiming I'm misrepresenting you without actually representing yourself, I'll let you keep it.
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Old 05-23-2017, 4:36 PM
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Saying I'm getting you wrong, and when I apologize and ask for clarification, more whining about how I mischaracterize you instead of seizing the platform to discuss where I'm wrong, where I went astray.

I've apologized on my end for misunderstanding you, yet instead of actually helping me see how clever and brilliant your ideas are you... don't talk about your ideas.

Ok. If you like your martyr complex claiming I'm misrepresenting you without actually representing yourself, I'll let you keep it.
This:

VVV

"I am genuinely confused how you can believe courts are not our saviors, not free from politics- but imagine SCOTUS will actually follow the law/jurisprudence like an autistic savant, who won't bend to politics, but follows the text doggedly without regard for people's feelings."

^^^

...is a complete and total misrepresentation of everything I've said in this thread.


Facts:

1. We can't rely on courts to be our saviors. Even if they tried, all it takes is one or more States or a political party to simply ignore 'em.

The courts ability to enforce a decision is only as good as the willingness of agencies, heads and LEOs to go along with them.


2. The approach to Constitutional law varies among the justices. The politcial pressure to change their composition comes from multiple directions. And the political pressure to decide one way or another comes from all the same directions.

Bottom-line...

Peruta could be used as a vehicle to:

1. Expand the modes by which we practice our right. Additive Shall Issue
2. Destroy the modes by which we practice our right. Sub for Open Carry - Toss Heller


Norman / Nichols could be used as a vehicle to:

1. Expand the modes by which we practice our right. Affirm Heller
2. Destroy the modes by which we practice our right. Deny Cert or Toss Heller - Allowing certain States to continue to Ignore Heller


National CCW Reciprocity Legislation could be used as vehicle to:

Destroy our Individual right and States CCW regulatory rights by daring SCOTUS to say they got it wrong in Heller.


Both the Antis AND the so-called Pros would be on the same side in this regard.

Sam Parades at the most recent GS2AC meeting immediately redirected the subject of his speech the moment I pointed this out...


The sad reality is simply that politics never fails to convolute and muddy the waters for any issue, debate or attempt at resolution.

The Uniparty no matter what will always make certain that their interests are protected...even when supposedly deciding in our favor. The devil in the details will show that.


1. When deciding in our favor - it is so easy for just ONE party or entity to defy it . . . and as we've learned here so well on Calguns . . . get away with it for very long periods of time.

"Two Weeks!" It's not just a funny one liner...it's a sad reallity.


2. When deciding against us - it is so easy for all parties to continue enforcing the negative against us - the momentum is always there - it's called:

Government


I'll end by saying this:


Whether it's Peruta, Nichols, Norman or Nat. CCW Recip . . . we're at their mercy no matter what.


If Cert is granted for anything, my suggestion is - don't pick up any bars of soap for awhile - you don't know where they're gonna go with it.

=8-(
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  #8598  
Old 05-23-2017, 6:13 PM
lowimpactuser lowimpactuser is offline
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Thank you Mr. Rabbit. I sometimes struggle to fully understand your posts, but this one was crystal clear. Thank you for your forthright and stinging post. I hope you'll see other people quote it because I'd love to see this level of clarity, construction, and support continue, it really makes posting here pleasurable.
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