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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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  #1001  
Old 02-11-2019, 2:53 PM
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Originally Posted by press1280 View Post
I'm thinking though since they are moving at light speed that this may be all about sending the case back to the district court under the AG opinion and that the en banc panel may not even make any judgement call on the 2A. It's definitely underhanded but think about it, it'll waste another few years, and plaintiffs would merely be challenging the 9ths decision to allow the AG opinion.

I may be way off since IANAL, but this is one "out" for CA9. Their other options raise red flags and make a trip to Scotus likely if Rogers or Gould aren't taken.
Doubtful, simply because the panel hasn't been selected, so it is premature to suggest that they already have a resolution in mind.
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  #1002  
Old 02-11-2019, 3:21 PM
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Could someone who knows how to do the probability calculation give us probabilities on the panel composition? Because this is going to be nearly a party line vote.
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  #1003  
Old 02-11-2019, 3:33 PM
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Originally Posted by press1280 View Post
I'm thinking though since they are moving at light speed that this may be all about sending the case back to the district court under the AG opinion and that the en banc panel may not even make any judgement call on the 2A. It's definitely underhanded but think about it, it'll waste another few years, and plaintiffs would merely be challenging the 9ths decision to allow the AG opinion.



I may be way off since IANAL, but this is one "out" for CA9. Their other options raise red flags and make a trip to Scotus likely if Rogers or Gould aren't taken.
If they take that approach, then doesn't Nichols win?

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  #1004  
Old 02-11-2019, 4:56 PM
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https://www.scribd.com/document/3994...ental-Briefing

Defendants want more briefing
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  #1005  
Old 02-11-2019, 5:33 PM
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Originally Posted by Master_P View Post
If they take that approach, then doesn't Nichols win?

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Not automatically, no. The original panel opinion would be (already is) vacated and of no force or effect. Nichols would still need to be decided on its merits. Moreover, Nichols has the different circumstance of a statute that bans urban open carry for average citizens, which Hawaii (arguably) does not. Further, the Young opinion, at least as I read it, does not tell Hawaii that it has to issue open carry permits on a "shall issue" basis.

I don't recall--is Nichols seeking permitless open carry or licensed open carry? All I clearly remember is that he does not challenge GFSZs, and as a result, open carry is no more than a recognition of the right without any realistic possibility of exercising it--absent a license or overturning the GFSZA.
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  #1006  
Old 02-11-2019, 5:37 PM
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Originally Posted by wolfwood View Post
But of course they do! More delay and an opportunity to "augment the record" with the AG opinion! There is the only way, realistically, that will allow the court to consider that opinion except as additional argument.
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  #1007  
Old 02-11-2019, 6:32 PM
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Itís the Monday before the week of argument. So March 18.
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  #1008  
Old 02-11-2019, 8:17 PM
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Originally Posted by TruOil View Post
But of course they do! More delay and an opportunity to "augment the record" with the AG opinion! There is the only way, realistically, that will allow the court to consider that opinion except as additional argument.


Look at how many lawyers they have....
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  #1009  
Old 02-12-2019, 6:20 AM
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Originally Posted by TruOil View Post
Doubtful, simply because the panel hasn't been selected, so it is premature to suggest that they already have a resolution in mind.
Sure, they haven't gotten together and decided anything yet. But it seems to be an easy way out for them.
To take an anti 2A stand for this case will require a level of legal gymnastics never seen before.
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  #1010  
Old 02-12-2019, 7:11 AM
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9th circuit: ďHold my beerĒ.
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  #1011  
Old 02-12-2019, 10:16 AM
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Originally Posted by press1280 View Post
Sure, they haven't gotten together and decided anything yet. But it seems to be an easy way out for them.
To take an anti 2A stand for this case will require a level of legal gymnastics never seen before.
Legal gymnastics... they've been practicing for 30 years, they will have to perfect it with this one. It will be interesting to see.
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  #1012  
Old 02-12-2019, 10:46 AM
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Originally Posted by mshill View Post
Legal gymnastics... they've been practicing for 30 years, they will have to perfect it with this one. It will be interesting to see.
Have you read Pena's roster opinion. I got joint pain from visualizing their contortions.
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  #1013  
Old 02-13-2019, 10:48 AM
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Originally Posted by CCWFacts View Post
Thanks for the info on that. I would say, we will know by Tuesday whether we will win or lose as it's nearly expected to be a party line vote. Odds are we're going to lose, and then we'll be ready to ask for cert.
I don’t have the formula, but I could run a simple simulation.
The 9th Circuit is 25 Dems and 16 R’s (I think). The Chief Judge is a D and automatically on the en banc panel. This means 6 R’s must be selected from the remaining 10 spots to have a chance
My simulation shows this happening about 13% of the time.
Also, I would not assume a party line vote. D’s are pretty reliability for gun control, while R appointees tend not to be reliable.
Wallace, for example, is a Nixon appointee on the 9th who dissented when the 9th circuit panel upheld an injunction to the 10 round magazine law. His absurd opinion was “even if larger magazines are protected, a CA ban is ok, because you can always exercise this right in another state”.
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  #1014  
Old 02-13-2019, 11:43 AM
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Quote:
Originally Posted by Phiremin View Post
I don’t have the formula, but I could run a simple simulation.
The 9th Circuit is 25 Dems and 16 R’s (I think). The Chief Judge is a D and automatically on the en banc panel. This means 6 R’s must be selected from the remaining 10 spots to have a chance
My simulation shows this happening about 13% of the time.
Also, I would not assume a party line vote. D’s are pretty reliability for gun control, while R appointees tend not to be reliable.
Wallace, for example, is a Nixon appointee on the 9th who dissented when the 9th circuit panel upheld an injunction to the 10 round magazine law. His absurd opinion was “even if larger magazines are protected, a CA ban is ok, because you can always exercise this right in another state”.
While not actually a 9th circuit judge (she was a "guest" judge from another circuit, I forget the correct term for that), one of the other 3 judges on that same panel is a die-hard democrat lesbian (not that there's anything wrong with that) from deep-blue NY, but she joined the majority opinion that the PI should be upheld.

So, while the right-leaning judge (unexpectedly) dissented, the left-leaning one (equally as unexpectedly) upheld.

Last edited by cockedandglocked; 02-13-2019 at 11:45 AM..
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  #1015  
Old 02-13-2019, 12:48 PM
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I would pull together a list of other 9th rulings on guns and sort by those opinions as "pro" or "anti" and only use party as a last-ditch guess.
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  #1016  
Old 02-13-2019, 12:55 PM
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Originally Posted by BryMan92 View Post
I would pull together a list of other 9th rulings on guns and sort by those opinions as "pro" or "anti" and only use party as a last-ditch guess.
You'll find the pro 2A 9th circuit rulings in a folder right behind the leprechaun's pot of gold.
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  #1017  
Old 02-13-2019, 1:00 PM
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Originally Posted by njineermike View Post
You'll find the pro 2A 9th circuit rulings in a folder right behind the leprechaun's pot of gold.
I think he meant, seeing specifically which ones were in the majority pro-2a opinions of gun-related cases, and which ones dissented. For example, the Peruta en banc panel had 3 dissenting judges. Also, judges who may have made pro or anti rulings from before they were on the bench in the 9th.
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  #1018  
Old 02-13-2019, 1:36 PM
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Quote:
Originally Posted by Phiremin View Post
I donít have the formula, but I could run a simple simulation.
The 9th Circuit is 25 Dems and 16 Rís (I think). The Chief Judge is a D and automatically on the en banc panel. This means 6 Rís must be selected from the remaining 10 spots to have a chance
My simulation shows this happening about 13% of the time.
Also, I would not assume a party line vote. Dís are pretty reliability for gun control, while R appointees tend not to be reliable.
Wallace, for example, is a Nixon appointee on the 9th who dissented when the 9th circuit panel upheld an injunction to the 10 round magazine law. His absurd opinion was ďeven if larger magazines are protected, a CA ban is ok, because you can always exercise this right in another stateĒ.
Thanks for that. That sounds about like what I would expect, a 13% chance. Yes, you're right too, Republicans are squishy, Democrats are less squishy.

I'm actually happy this is going to en banc. If we win our 1-in-10 chance of winning it, great. If we lose, next stop, cert, and by that time RBG will likely be off the court, so even better.
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  #1019  
Old 02-13-2019, 1:55 PM
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Quote:
Originally Posted by cockedandglocked View Post
I think he meant, seeing specifically which ones were in the majority pro-2a opinions of gun-related cases, and which ones dissented. For example, the Peruta en banc panel had 3 dissenting judges. Also, judges who may have made pro or anti rulings from before they were on the bench in the 9th.
Yes and which ones dissented on pro-gun grounds in lost cases.

Peruta is interesting decision because I think *all* judges agreed CCW was clearly restricted but there was disagreement on how OC/CCW behave if one/both is banned:
https://reason.com/volokh/2016/06/11...diego-analyzed

Looking at winning cases, dissents, and en banc reviews might provide statistical tea-leaves readings.

Last edited by BryMan92; 02-13-2019 at 2:00 PM..
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  #1020  
Old 02-13-2019, 7:45 PM
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Quote:
Originally Posted by Phiremin View Post
I donít have the formula, but I could run a simple simulation.
The 9th Circuit is 25 Dems and 16 Rís (I think). The Chief Judge is a D and automatically on the en banc panel. This means 6 Rís must be selected from the remaining 10 spots to have a chance
My simulation shows this happening about 13% of the time.
Also, I would not assume a party line vote. Dís are pretty reliability for gun control, while R appointees tend not to be reliable.
Wallace, for example, is a Nixon appointee on the 9th who dissented when the 9th circuit panel upheld an injunction to the 10 round magazine law. His absurd opinion was ďeven if larger magazines are protected, a CA ban is ok, because you can always exercise this right in another stateĒ.
Your numbers are off. Aside from Thomas who is on the panel, the pool for the remaining 10 slots is just 24 judges (the other 22 fulltime judges and the two Senior judges who were on the three-judge panel). All other Senior judges are not eligible to be drawn. The breakdown of those 24 is 15 Democrat appointees, and 9 Republican. But as noted, only so much stock can be put in that, especially since, for example, one of those Republican nominees (Clifton) was on the original panel, dissented, and would have ruled for Hawaii.
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  #1021  
Old 02-14-2019, 2:21 PM
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The Ninth Circuit has stayed the en banc proceedings pending the Supreme Court's opinion in NYSRPA.
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  #1022  
Old 02-14-2019, 2:27 PM
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Interesting delay tactic. Do they know more than we know?
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  #1023  
Old 02-14-2019, 2:32 PM
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Originally Posted by Kukuforguns View Post
The Ninth Circuit has stayed the en banc proceedings pending the Supreme Court's opinion in NYSRPA.
This would suggest that the 9th wants to see if SCOTUS ruling in NYSRPA is narrow or broader.

If narrow, 9th can go narrow. If not, then 9th is constrained for both Young AND Nichols.

Interesting...

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  #1024  
Old 02-14-2019, 2:32 PM
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What's this mean in English?
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  #1025  
Old 02-14-2019, 2:37 PM
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What's this mean in English?
It means the Ninth Circuit will not even begin considering whether HI's public carriage law is unconstitutional until sometime in 2020 (after the Supreme Court issues its opinion in New York State Rifle and Pistol Association).
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  #1026  
Old 02-14-2019, 2:49 PM
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Originally Posted by Kukuforguns View Post
It means the Ninth Circuit will not even begin considering whether HI's public carriage law is unconstitutional until sometime in 2020 (after the Supreme Court issues its opinion in New York State Rifle and Pistol Association).
Only 8 years after the initial complaint was filed? Dang, these cases are moving so fast that if you blink you might miss it!

By the time it reaches SCOTUS, it will be renamed Old v. Hawaii (epic dad joke, I know)
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  #1027  
Old 02-14-2019, 3:55 PM
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So is the ruling currently still valid or still null?
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  #1028  
Old 02-14-2019, 3:57 PM
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So is the ruling currently still valid or still null?
The panel opinion is vacated/null.
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  #1029  
Old 02-14-2019, 4:14 PM
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A quick recap(*) of where we are now (2/14/19):
1) Young sued Hawaii, claiming HI law depriving him of the right to carry a gun in public is unconstitutional;
2) HI asked the trial judge to dismiss Young's action because Young has not stated a claim;
3) The trial judge dismissed Young's action;
4) Young asked the 9th Circuit to overrule the trial judge's order;
5) A three-judge panel of the Ninth Circuit reversed the trial judge's order and held that HI's law was unconstitutional;
6) HI asked the entire Ninth Circuit to reconsider the panel's opinion;
7) SCOTUS granted cert (agreed to hear) NYSRPA;
8) The entire Ninth Circuit vacated the panel opinion and agreed to reconsider Young's appeal;
9) The entire Ninth Circuit has stayed (halted/suspended) its reconsideration of Young's appeal until after SCOTUS issues an opinion in NYSRPA.

* Since it's an incredibly quick recap, some nuance will be lost and irrelevant inaccuracies stated.
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  #1030  
Old 02-14-2019, 5:09 PM
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Originally Posted by Kukuforguns View Post
The Ninth Circuit has stayed the en banc proceedings pending the Supreme Court's opinion in NYSRPA.
Link to official Ninth Circuit document?

Latest I see there is from Feb 8 announcing en banc hearing.
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  #1031  
Old 02-14-2019, 5:17 PM
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Link to official Ninth Circuit document?

Latest I see there is from Feb 8 announcing en banc hearing.
Firearms Policy Coalition (@gunpolicy) has a screenshot on their twitter feed. C.D. Michel also tweeted the same.
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Old 02-14-2019, 5:26 PM
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Originally Posted by Kukuforguns View Post
Firearms Policy Coalition (@gunpolicy) has a screenshot on their twitter feed. C.D. Michel also tweeted the same.
I've seen screenshots of the one page document, but no link to it from the Ninth site.

Does anyone know how frequent or common it is for an en banc case to be stayed pending a decision from SCOTUS, especially since it doesn't seem as if the issues in the two cases are congruent? I know there is a lot of speculation about what SCOTUS could rule in NYSRPA, but it isn't about carry for self-defense at all. It seems like either the Ninth is engaging in that speculation, or, it's a delay tactic.
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Old 02-14-2019, 5:33 PM
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<snip> or, it's a delay tactic.
Giving the Ninth Circuit the benefit of the doubt, the Court's opinion in NYSRPA will directly address whether the Second Amendment has any application outside the home. NYC's law significantly limits where an owner can "keep" her firearm. If the Second Amendment's protection regarding the right to keep a firearm is limited to one's home, then NYC's law is appropriate. If the Second Amendment's protection regarding the right to keep a firearm extends to anywhere a person may legally travel (other than sensitive locations like schools and government buildings), then NYC's law is unconstitutional.

If the Court holds the right to keep arms extends beyond the home, this would eliminate one of the justifications for HI's law.
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  #1034  
Old 02-14-2019, 5:36 PM
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I've seen screenshots of the one page document, but no link to it from the Ninth site.
The Ninth Circuit publicly posts opinions, not every order. The absence of the order on the Ninth Circuit's website is unremarkable.

The order posted by FPC looks exactly like what a document filed on PACER looks like (see the stamp up at top of the page). I suppose it could be a fake, but that would be very unlike FPC and unlike Mr. Michel.
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Old 02-14-2019, 5:37 PM
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Originally Posted by surfgeorge View Post
I've seen screenshots of the one page document, but no link to it from the Ninth site.

Does anyone know how frequent or common it is for an en banc case to be stayed pending a decision from SCOTUS, especially since it doesn't seem as if the issues in the two cases are congruent? I know there is a lot of speculation about what SCOTUS could rule in NYSRPA, but it isn't about carry for self-defense at all. It seems like either the Ninth is engaging in that speculation, or, it's a delay tactic.
It is extremely rare, if not unprecedented. I have been practicing before this Court for a long time, and I still find this a shocking display of political abuse of Article III. This Court knew exactly what it was doing by granting the en banc petition, which was to reinstate Hawaii’s law over the lawful ruling of its own three-judge panel, knowing full well we are nearly a year away from a Supreme Court ruling that is likely to have no direct precedential bearing on the issues in this case. And if it does, the Court will use that decision to craft a speciously-reasoned opinion upholding the law.

I am truly disgusted.

EDIT: The order is real. I have seen it on the PACER docket. Part of what makes this whole episode so gross is that the Court gave Katyal even more than he was asking for in his request for additional briefing, which never even mentioned the status of the NY case.

Last edited by LVSox; 02-14-2019 at 5:39 PM..
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  #1036  
Old 02-14-2019, 5:49 PM
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The 9th doesn't lose by delaying.

SCOTUS may hand down a ruling which is pretty explicit about how fundamental the right to self-defense really is and mean that the 9th has to go back and re-do what they might be doing on this case.

Given their past speed in dealing with cases such as this one, the 9th could be looking at issuing their opinion at about the time SCOTUS hands down the ruling on the other.

So if the 9th makes their ruling on this case and (of course) it is anti-liberty and then a few days later the SCOTUS hands down a ruling which is pro-liberty, then you'd expect the 9th Circus to look stupid and for the SCOTUS to stomp on them in an expeditious manner. It could actually be that the 9th Circus anti-liberty ruling would result in a petition for cert and that upon receiving the request for cert the SCOTUS might issue a summary reversal.

If instead the 9th Circus waits until SCOTUS rules they can then pioneer a new way to lawyer a circumvention of the Constitution and fundamental rights in light of that ruling. But that might be more difficult if this case has already been argued/briefed?

Seriously, if they wait to craft their ruling until after the SCOTUS issues its new ruling then they can write their 9th Circus opinion in the most anti-liberty manner possible rather than getting either a summary reversal or maybe having SCOTUS taking their anti-liberty ruling and then destroying the anti-liberty arguments in greater detail.

IMHO the upshot is that a delay allows them to be more restrictive on our rights and just maybe having it stick.


Edit: I think LVSox said it better. Not a big surprise since IANAL.
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  #1037  
Old 02-14-2019, 6:03 PM
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If I am reading the en banc process right the Ninth did more than that. This week is the week where the en banc court decided the Young 11 judge panel. That is now locked in if I am right. Now the 5 trump appointees will not be part of the random en banc draw because that draw has already happened. So when Young is unstayed we will be left with a unfavorable left leaning panel. This is unfair both to Mr. Young and to the entire Circuit. As you mentioned the transport case is not even on point to deal with carry so it is unclear how that case deserves a sua sponte stay. The worst part is the parties were not allowed to submit their positions on this issue.
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Old 02-14-2019, 6:34 PM
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Originally Posted by wolfwood View Post
If I am reading the en banc process right the Ninth did more than that. This week is the week where the en banc court decided the Young 11 judge panel. That is now locked in if I am right. Now the 5 trump appointees will not be part of the random en banc draw because that draw has already happened. So when Young is unstayed we will be left with a unfavorable left leaning panel. This is unfair both to Mr. Young and to the entire Circuit. As you mentioned the transport case is not even on point to deal with carry so it is unclear how that case deserves a sua sponte stay. The worst part is the parties were not allowed to submit their positions on this issue.
Pray the Court grants cert in Rogers v. Grewal or Morgan v. Gould.

If they don't take a carry case next term, tens of millions of people will be denied their civil liberties for at least another 3 years.
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  #1039  
Old 02-14-2019, 7:09 PM
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Paladin Paladin is offline
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As I've said before, best not to count on and wait for the federal courts to bail us out. Best to let those "wheels of justice" turn on their own while undertaking local action.

IMO, in NorCal that means meeting up with new Yolo Co sheriff, Lopez, and persuading him (i.e., selling him) on the idea of liberalizing his GC standard. In CoCoCo that means hitting all the ranges and gun shops with fliers promoting CCWs and having a link to my "Advice" thread for CoCoCo applicants. (http://www.calguns.net/calgunforum/s....php?t=1482924) In Marin and Santa Clara Co, that means developing a local organization (a FB group?), like gunnies did with San Diego County Gun Owners and Sheriff Gore. In SClara, that is to pressure Laurie Smith to liberalize issuance. If that fails, to have an organization to help someone else win Marin or SClara sheriffs' elections in 3.5 years.

In SoCal, that means following the work of the West Covina gunnies pushing their new City Manager to push their Chief of Police to issue CCWs and accept SD = GC. Glendora and LaVerne also have organizations on FB for this. I think Glendale and Torrance would be other worthy battlegrounds.

Bottom line: no need to follow Young for almost a year. What to do instead?

JMO

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Old 02-14-2019, 7:40 PM
thorium thorium is offline
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On an optimistic note: The SCOTUS justices friendly to 2A will know about this stay, and that might be one more small incentive for them to rule more broadly in NYSRPA... “you want your guidance, here’s your guidance!”
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