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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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  #721  
Old 09-14-2018, 8:33 AM
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Quote:
Originally Posted by kuug View Post
Tomorrow is the deadline for Hawaii to file their appeal to the 9th circuit for en banc review. I believe the end of October is the deadline for the 9th circuit to go sua sponte and and sabotage the ruling like they did Peruta
Everything (so far) looks like HI will ask for en banc, so no need for sua sponte. But we won't know for sure until after (5:00 pm? midnight?) tonight Hawaiian time.

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Originally Posted by sfpcservice View Post
When does a mandate get issued?
Assuming HI asks for en banc today (or was it yesterday???), I'd say at least 2 months, more likely 3 to 4 for CA9 to decide whether to grant en banc. That's the next step.

If granted, then add 2 - 4 months to get to en banc orals (spring, 2019).

Then another year for the en banc decision to be released (spring, 2020).

ETA2: I'll assume "full court" en banc for CA9 either not requested or denied.

Then 90 days for the loser to decide whether to ask for cert from SCOTUS (late summer 2020).

Then time for SCOTUS to decided to take it. (If this is after MLK Day, it will be held until the following fall.) (fall 2020)

Then time until SCOTUS orals. (winter/early spring 2021)

Then SCOTUS decision will be released during the last week of the following June (2021)....

IOW, don't be cruel by even asking when the mandate will issue (summer 2021 at earliest, maybe as late as summer 2022 if cert granted after MLK Day).

ETA: added estimated dates assuming continued appeals sought and granted until exhausted.
ETA2: put info for both cert being granted before or after MLK Day: if we're lucky, before, if not, after, delaying everything another year.
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  #722  
Old 09-14-2018, 9:59 AM
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Originally Posted by 71MUSTY View Post
So are they saying ?

We allow LEO's and Security Guards to open carry so that should satisfy Heller without allowing anyone else to.
They're essentially trying to say everyone is eligible for an OC permit but still under a may issue scheme so draconian that no one can show a proper cause.
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  #723  
Old 09-14-2018, 10:59 AM
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@Paladin

You forgot to mention the follow-up lawsuits after the affirmative SCOTUS ruling (a la Janus) that forces the state to comply with what SCOTUS mandates.

That should put us squarely into the 2030's before the right is recognized and open carry allowed in any form, given the best circumstances.
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  #724  
Old 09-14-2018, 5:44 PM
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Courtesy of Mr. Nichols, here is the 114-page petition for re-hearing en banc:

http://blog.californiarighttocarry.o...ng-En-Banc.pdf
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  #725  
Old 09-14-2018, 5:58 PM
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The essence of the argument (when you get to the end of it) is that open carry "imperils public safety" and that therefore "public safety" trumps an individual right of self defense. How this squares with the language of "shall not be infringed" is beyond me.
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  #726  
Old 09-14-2018, 6:08 PM
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Originally Posted by surfgeorge View Post
Courtesy of Mr. Nichols, here is the 114-page petition for re-hearing en banc:

http://blog.californiarighttocarry.o...ng-En-Banc.pdf
Read about 3 pages and started getting so angry I had to stop.
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  #727  
Old 09-14-2018, 7:10 PM
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Originally Posted by TruOil View Post
The essence of the argument (when you get to the end of it) is that open carry "imperils public safety" and that therefore "public safety" trumps an individual right of self defense. How this squares with the language of "shall not be infringed" is beyond me.
Doesn't square with the right
Wasn't supposed to square with the right

They aren't talking to you or me, they are talking to the progtards on the 9th
this is part of their language, where [whatever we want] is Constitutional because of [insert-subjective-BS-here]. In this case, as in many, the subjective BS will be public safety.

The state will "find" that public safety is best served by [whatever they want], and the progtards on the 9th will lap it up.

Said it for years, safety is the best way to destroy civil rights. Worked for the Patriot Act, it works against your 4A rights, it'll work against the 2A and anything else.
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  #728  
Old 09-14-2018, 8:15 PM
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Is it really a 3-4 month time frame waiting on the court to decide whether to do en banc or refuse it?
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  #729  
Old 09-14-2018, 9:33 PM
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Originally Posted by homelessdude View Post
Is it really a 3-4 month time frame waiting on the court to decide whether to do en banc or refuse it?
Going by Peruta:
2014 Dec 03: sua sponte call for a vote
2015 March 26: en banc granted

I just noticed a mistake I made in that timeline, which I'll fix now. It changes estimate for SCOTUS decision by 1 year (because I'm guessing/hoping they'll grant cert before MLK Day). I thought I made a mistake, but I was wrong.
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  #730  
Old 09-15-2018, 4:10 AM
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Originally Posted by homelessdude View Post
Is it really a 3-4 month time frame waiting on the court to decide whether to do en banc or refuse it?
If it starts dragging on longer than that it'll be a good sign-that dissents are being written and en banc was denied.
But this is CA9 we're talking about.
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  #731  
Old 09-15-2018, 4:14 AM
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Quote:
Originally Posted by TruOil View Post
The essence of the argument (when you get to the end of it) is that open carry "imperils public safety" and that therefore "public safety" trumps an individual right of self defense. How this squares with the language of "shall not be infringed" is beyond me.
If the 9th takes this up then they'll have to do a crazy gymnastics move.

They won't just say the right doesn't apply outside the home. But then they'll have to explain why a regime that doesn't issue permits (OC or CC under each respective standard) is materially any different than the IL ban struck down in Moore.
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  #732  
Old 09-15-2018, 7:53 AM
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...But then they'll have to explain why a regime that doesn't issue permits (OC or CC under each respective standard) is materially any different than the IL ban struck down in Moore.
They don’t have to do anything with regards to Moore or Grace because those cases didn’t go to SCOTUS. They just have to shoehorn what they want into the words of Heller and dance around Peruta.
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  #733  
Old 09-15-2018, 8:07 AM
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If they don't try to differentiate between Moore than they are almost begging for SCOTUS to take it on appeal.
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  #734  
Old 09-15-2018, 9:15 AM
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Originally Posted by press1280 View Post
If they don't try to differentiate between Moore than they are almost begging for SCOTUS to take it on appeal.
I don’t disagree, but note how “try to” and “almost” worked their way into your sentence.
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  #735  
Old 09-15-2018, 11:07 AM
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I read their brief, all 26 pages of it. It was nuts. Basically the Peruta en banc said, "you should have asked for any kind of carry, not just concealed carry", and the Young case asked for exactly that, and so the Young panel decision was exactly what the Peruta en banc had said it should be. The AG's recent letter saying that, hey, if you've got a stalker problem, apply for an open carry permit! is ridiculous because there are zero examples of that actually happening in Hawaii and so on.

A lot of the en banc result has to do with luck. It's 11 judges drawn at random. Trump will have appointed a few more by the time an en banc gets seated, making this far from a sure victory for the other side.

I'm not convinced at all that this will be re-heard en banc.
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  #736  
Old 09-15-2018, 1:19 PM
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Their brief is an interesting argument.

First they argue that the panel got it wrong because they didn't consider the "after acquired evidence" consisting of the AG letter the panel didn't have.

Then, they distorted the holding in Peruta by saying it said something it flatly and categorically DID NOT because the 9th punted the issue of OC because that issue wasn't before the court.

Next, they raised a specious argument that anyone in need can get a permit, which argument is defeated by the simple fact that NO ONE has ever been issued a permit regardless of "need" except for security guards.

I wonder sometimes about the "quality" of those high dollar attorneys in cases like this. Not that it matters, the 9th is comprised of the same "quality" of "high dollar" attorneys, they just made it to the bench where the lack of quality becomes the standard of the profession.
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  #737  
Old 09-15-2018, 1:36 PM
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So, what does Hawai'i want CA9 to do?

p. 3
Quote:
The panel decision should be vacated, and the case remanded to the District Court so that it can be reassessed based on an accurate understanding of Hawaii law.
That sounds like a quick, clean GVR in light of the AG's letter.

ETA: If it gets GVR'ed, does it get sent back down to the same 3-judge panel?

p. 17:
Quote:
The Court should grant rehearing en banc and reverse this misguided and dangerous decision.
That sounds like they want an en banc panel convened, an en banc appeal heard and a reversal.

Which is it??? Or are they using the shotgun approach?
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  #738  
Old 09-15-2018, 8:51 PM
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Will somebody with a clue be writing rebuttal to that baloney pile?
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  #739  
Old 09-15-2018, 10:35 PM
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Originally Posted by Offwidth View Post
Will somebody with a clue be writing rebuttal to that baloney pile?
That is not baloney, sir. That is baloney after traveling the digestive tract of a male bovine.

Hopefully the Young attorneys will file a response in opposition to the petition for en banc in which they call it what it is.
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  #740  
Old 09-16-2018, 6:40 AM
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Originally Posted by Paladin View Post
So, what does Hawai'i want CA9 to do?

p. 3

That sounds like a quick, clean GVR in light of the AG's letter.

ETA: If it gets GVR'ed, does it get sent back down to the same 3-judge panel?

p. 17:

That sounds like they want an en banc panel convened, an en banc appeal heard and a reversal.

Which is it??? Or are they using the shotgun approach?
The state is fine wasting a few more years on appeal back to the District Court. It's because they're caught in a corner of a total ban (security guards are the only ones who have been eligible) as it stands now. They are trying to give the impression that their scheme is like that of the ones that passed muster in CA2-4 and Peruta, even though, again, no permits were issued to ordinary citizens.

As it stands now, the case would be remanded to the District Court even if en banc is denied. Young was denied for a CCW before (which anyone could apply for), so even if plaintiffs agree with the AG letter, it seems like a moot point. He'll be denied under any standard because they won't issue to ordinary citizens, plain and simple.

If it comes back on appeal, it should go back to the same panel (at least other circuits normally do that).
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  #741  
Old 09-19-2018, 11:34 AM
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Panel asked Young counsel for response to state's petition for en banc. Have 21 days to respond.

I sincerely hope Young counsel poke a ton of serious holes in that load of crap and lies the from the 11 lawyers representing the state and county.
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  #742  
Old 09-19-2018, 12:40 PM
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Originally Posted by surfgeorge View Post
Panel asked Young counsel for response to state's petition for en banc. Have 21 days to respond.

I sincerely hope Young counsel poke a ton of serious holes in that load of crap and lies the from the 11 lawyers representing the state and county.
Understand though that if Young lawyers respond with:


"Open Carry can be banned in favor of concealed carry"


That concedes the open carry claim...and allows judges to:

1. Pull a Heller - allowing the case to be mooted by simply Young being given a license to conceal carry. Nothing further happens...

OR

2. Pull a Peruta - "concealed carry is not a right" and walk away.

=8-|
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  #743  
Old 09-19-2018, 2:56 PM
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Why on earth would Wolfwood argue that open carry can be banned in favor of concealed carry when the original panel said, per Peruta, that concealed carry is not a right in the Ninth Circuit? Peruta applies to Hawaii as well. Hence, if there is a right to bear outside the home, then it must be open carry. The real argument is whether the State can permissibly regulate open carry through a licensing system, and whether that system is unconstitutional if it results in no one other than security guards from getting such permits. Or to put it another way, can the State ban the vast majority of its residents from exercising a right to bear arms without violating the Second Amendment? (We know what the answer will be, we just have to wait to see how they finesse it.)
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  #744  
Old 09-19-2018, 3:09 PM
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Originally Posted by TruOil View Post
Why on earth would Wolfwood argue that open carry can be banned in favor of concealed carry when the original panel said, per Peruta, that concealed carry is not a right in the Ninth Circuit? Peruta applies to Hawaii as well. Hence, if there is a right to bear outside the home, then it must be open carry. The real argument is whether the State can permissibly regulate open carry through a licensing system, and whether that system is unconstitutional if it results in no one other than security guards from getting such permits. Or to put it another way, can the State ban the vast majority of its residents from exercising a right to bear arms without violating the Second Amendment? (We know what the answer will be, we just have to wait to see how they finesse it.)
The fact that you said the above...and have been in this thread for quite some time and that that NRA/CRPA/SAF/ETC lawyers with a history of arguing as such are probably going to come on board . . . requires me to conclude with the following:

PAY ATTENTION!

That's what I say when people either:

1. Literally don't pay attention.
2. Ignore that which is already known in their arguments or statements.

If members of the so-called "legal dream team" for gun rights do hop aboard, that is exactly the twist and risk they might take - trying to pull a pure CCW win out of a temporary OC win.

And that is what will allow Hawaii to escape the corner they are in - CA9 pulling a Heller or a Peruta in which SCOTUS declines cert.


And of course, we'd be treated to probably another great quote from Justice Thomas - like the one already in my sig.

=8-|
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  #745  
Old 09-19-2018, 3:35 PM
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The request is for a response to the state petition arguments for an en banc hearing, not to submit a brief on the merits of the case. Any claims or arguments about whether a state can ban some manner or other of bearing arms is not germane to the state's arguments for re-hearing en banc, and thus would be superfluous and useless.

It's pretty simple really. Here are the proper responses to the state's arguments:

I. No.

II. No.

III. No.

IV. So?

Of course Young counsel will have to flesh those out, at least a little bit, so judges O'Scannlain and Ikuta can ostensibly point to something written by plaintiff counsel when denying the en banc petition.
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  #746  
Old 09-20-2018, 10:19 AM
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If the states en banc gets denied, can the 9th come over top of that and request it themselves?
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  #747  
Old 09-20-2018, 11:21 AM
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Originally Posted by sfpcservice View Post
If the states en banc gets denied, can the 9th come over top of that and request it themselves?
I suspect so. The 9th seems to be able to make up rules as it goes, and ignore the rules it does not like.
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  #748  
Old 09-20-2018, 12:17 PM
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Originally Posted by sfpcservice View Post
If the states en banc gets denied, can the 9th come over top of that and request it themselves?
Yes. That's exactly what happened with Peruta. Panel denied en banc petition. Sua sponte call by a judge for a vote by the entire court. Court voted for en banc. En banc panel overturned Peruta. Rinse and repeat. Any questions?

Last edited by surfgeorge; 09-20-2018 at 12:19 PM..
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  #749  
Old 09-20-2018, 1:21 PM
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Originally Posted by mrrabbit View Post
"Open Carry can be banned in favor of concealed carry"
I really hope Alan have read the panel opinion that highlighted that this is NOT a winning argument.

Open Carry is a right and can not be banned. Concealed Carry can be banned. Just "Carry" is of now is undefined by Supreme Court and can not be asked for.
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  #750  
Old 09-20-2018, 1:34 PM
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Originally Posted by TruOil View Post
The problem of course that Scalia's statements about "carry" are technically dicta (since this was a pure "keep" case) and not binding on other courts--as some courts (whose names we need not intone) have (gleefully) concluded.

Now obviously I think that Scalia is correct, the right exists outside the home, and even the State of California admitted as much during argument in Peruta. The problem is elevating that right to a strict scrutiny concern not subject to the sliding scale vagaries of "public security."
Sorry to come back to this, but just reread McDonald. If this is dicta, why does McDonald cite it as "held"? This is the SCOTUS citing SCOTUS, so it seems like they'd know what they held. Still trying to understand the nuances.

From the first page of McDonald v City of Chicago:
Quote:
Two years ago, in District of Columbia v. Heller, 554 U. S. ___ (2008), we held that the Second Amendment protects the right to keep and bear arms for the purpose of self-defense, and we struck down a District of Columbia law that banned the possession of handguns in the home.
reference is way back from post #680

Last edited by ritter; 09-20-2018 at 1:35 PM.. Reason: clarification
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  #751  
Old 09-20-2018, 2:06 PM
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Originally Posted by mrrabbit View Post
The fact that you said the above...and have been in this thread for quite some time and that that NRA/CRPA/SAF/ETC lawyers with a history of arguing as such are probably going to come on board . . . requires me to conclude with the following:

PAY ATTENTION!

That's what I say when people either:

1. Literally don't pay attention.
2. Ignore that which is already known in their arguments or statements.

If members of the so-called "legal dream team" for gun rights do hop aboard, that is exactly the twist and risk they might take - trying to pull a pure CCW win out of a temporary OC win.

And that is what will allow Hawaii to escape the corner they are in - CA9 pulling a Heller or a Peruta in which SCOTUS declines cert.


And of course, we'd be treated to probably another great quote from Justice Thomas - like the one already in my sig.

=8-|
Yeah, well, I have no idea what you just said, anymore than I understood why Wolfwood should argue that open carry can be banned in favor of open carry. Such an argument is clearly foreclosed by the Peruta decision. I think I just explained how the Ninth will attempt to escape the corner it painted itself into with Peruta--licensed open carry subject to a "may issue" regime, such as exists in Hawaii right now, as long as it is clear that licensing applications are not limited to security guards (which I have to assume is how the chiefs/sheriffs have been interpreting the statute up until the AG's new position paper).
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  #752  
Old 09-20-2018, 2:42 PM
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Originally Posted by TruOil View Post
should argue that open carry can be banned in favor of open carry.
Such a ban I can live with.
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  #753  
Old 09-20-2018, 4:08 PM
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Originally Posted by TruOil View Post
Why on earth would Wolfwood argue that open carry can be banned in favor of concealed carry when the original panel said, per Peruta, that concealed carry is not a right in the Ninth Circuit? Peruta applies to Hawaii as well. Hence, if there is a right to bear outside the home, then it must be open carry. The real argument is whether the State can permissibly regulate open carry through a licensing system, and whether that system is unconstitutional if it results in no one other than security guards from getting such permits. Or to put it another way, can the State ban the vast majority of its residents from exercising a right to bear arms without violating the Second Amendment? (We know what the answer will be, we just have to wait to see how they finesse it.)
Preserve the argument for SCOTUS?
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  #754  
Old 09-20-2018, 4:16 PM
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Originally Posted by sfpcservice View Post
If the states en banc gets denied, can the 9th come over top of that and request it themselves?
If en banc is denied then it is because more judges voted NOT to hear it, they won't reverse themselves.

The Peruta situation was different. The defendants opted not to file en banc and one judge (probably Chief Thomas) went sua sponte and called for the vote to happen anyway.
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Old 09-20-2018, 4:24 PM
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[QUOTE=TruOil;22135119]Yeah, well, I have no idea what you just said, anymore than I understood why Wolfwood should argue that open carry can be banned in favor of open carry. Such an argument is clearly foreclosed by the Peruta decision. I think I just explained how the Ninth will attempt to escape the corner it painted itself into with Peruta--licensed open carry subject to a "may issue" regime, such as exists in Hawaii right now, as long as it is clear that licensing applications are not limited to security guards (which I have to assume is how the chiefs/sheriffs have been interpreting the statute up until the AG's new position paper).[/QUOTE]

I agree with this. But then they'd be teeing up an OC licensing scheme for SCOTUS in which only security guards have received permits. Even though the 3 judge panel's opinion is wiped out within the 9th, it's still going to be part of the record for the SCOTUS appeal.
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Old 09-20-2018, 4:27 PM
TruOil TruOil is offline
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[QUOTE=press1280;22135521]
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Yeah, well, I have no idea what you just said, anymore than I understood why Wolfwood should argue that open carry can be banned in favor of open carry. Such an argument is clearly foreclosed by the Peruta decision. I think I just explained how the Ninth will attempt to escape the corner it painted itself into with Peruta--licensed open carry subject to a "may issue" regime, such as exists in Hawaii right now, as long as it is clear that licensing applications are not limited to security guards (which I have to assume is how the chiefs/sheriffs have been interpreting the statute up until the AG's new position paper).[/QUOTE]

I agree with this. But then they'd be teeing up an OC licensing scheme for SCOTUS in which only security guards have received permits. Even though the 3 judge panel's opinion is wiped out within the 9th, it's still going to be part of the record for the SCOTUS appeal.
I am aware of that--but I think that the AG's opinion is intended to put that at least theoretically to rest, allowing them to (try to) argue that the chiefs were merely "misinterpreting" the statutes. It is very much a Hail Mary, in the sense that the court is supposed to review cases as they were developed in the trial courts, not on new matters not previously considered, and particularly not arguments not presented in the trial court. As it did in Peruta, the en banc panel will conveniently ignore these "rules."
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Old 09-20-2018, 5:05 PM
press1280 press1280 is offline
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[QUOTE=TruOil;22135538]
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I am aware of that--but I think that the AG's opinion is intended to put that at least theoretically to rest, allowing them to (try to) argue that the chiefs were merely "misinterpreting" the statutes. It is very much a Hail Mary, in the sense that the court is supposed to review cases as they were developed in the trial courts, not on new matters not previously considered, and particularly not arguments not presented in the trial court. As it did in Peruta, the en banc panel will conveniently ignore these "rules."
So do you think the AG has essentially conceded that the police chiefs have been assuming OC permits are only for security guards?
If that's the case, then shouldn't en banc be denied since the law is (somewhat) changed, and this should go back to the district court with the 3 judge panel's opinion as their guide under the new AG opinion?
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Old 09-20-2018, 5:55 PM
TruOil TruOil is offline
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[QUOTE=press1280;22135667]
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So do you think the AG has essentially conceded that the police chiefs have been assuming OC permits are only for security guards?
If that's the case, then shouldn't en banc be denied since the law is (somewhat) changed, and this should go back to the district court with the 3 judge panel's opinion as their guide under the new AG opinion?
The law, i.e. the statue, hasn't changed at all. I am guessing there are no prior cases interpreting the language. So the AG opinion is all the guidance that is "needed." According to the AG, the law itself isn't unconstitutional, just that it has been "inadvertently" (and of course reasonably and excusably) misinterpreted. His opinion (which is all that it is) is all the guidance that is needed, Nonetheless, the Ninth en banc will gleefully adopt his opinion, because they know full well that it will take any number of years to show that the sheriffs/police chiefs have not changed their behavior and are unconstitutionally refusing to consider/refusing to issue carry applications from persons not in the security industry. Delay is good!
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Old 09-20-2018, 6:40 PM
mrrabbit mrrabbit is offline
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[QUOTE=TruOil;22135832]
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Originally Posted by press1280 View Post

The law, i.e. the statue, hasn't changed at all. I am guessing there are no prior cases interpreting the language. So the AG opinion is all the guidance that is "needed." According to the AG, the law itself isn't unconstitutional, just that it has been "inadvertently" (and of course reasonably and excusably) misinterpreted. His opinion (which is all that it is) is all the guidance that is needed, Nonetheless, the Ninth en banc will gleefully adopt his opinion, because they know full well that it will take any number of years to show that the sheriffs/police chiefs have not changed their behavior and are unconstitutionally refusing to consider/refusing to issue carry applications from persons not in the security industry. Delay is good!
Then what you are saying then is:

1. Court will go en banc.
2. AG will have chief issue permit for either.
3. Case is then mooted.

in other words, Heller.

=8-)
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Old 09-20-2018, 10:25 PM
TruOil TruOil is offline
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[QUOTE=mrrabbit;22135976]
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Then what you are saying then is:

1. Court will go en banc.
2. AG will have chief issue permit for either.
3. Case is then mooted.

in other words, Heller.

=8-)
More like post-Heller. The direct holding in the case was to invalidate a single statue or group of DC statutes regulating possession of firearms in the home. Heller did not consider licensing or permit schemes, nor did it consider carry outside the home. Heller I did not ask for "bear"; that came later in other cases. Read into Heller all you want, but courts do not issue advisory opinions on matters not addressed by the issues brought by the parties. Which is why there were later cases--cases as you well know that came to contradictory conclusions as to the scope of the right and, critically, the standard of review, questions that Scalia's majority opinion left wide open.
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