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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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  #1  
Old 11-25-2013, 7:37 PM
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Default Why unqualified non-2A attorneys should not file 2A legal challenges

From a federal court filing this morning from Baker, currently pending before the 9th Circuit COA:

Quote:
Defendants further suggest that intermediate scrutiny is the appropriate level of scrutiny to be applied to Mr. Baker’s claims. Mr. Baker does not dispute this.
Well thank you very much ALAN BECK, AKA "wolfwood" on this forum, for arguing in FAVOR of a reduced standard of scrutiny for 2A cases. WHILE ARGUING ON THE SIDE OF THE SECOND AMENDMENT. Or did you forget which side you on? You sir are the perfect example of why unqualified attorneys should stay the hell away from 2A cases. You are a POX upon all law abiding gun owners.

I don't even know if you understand the significance of the point you have conceded, apparently you do not, but you have stabbed all of us in the back, and given an unfathomable pot of gold to anti-gun advocates. Congratulations. I can't even believe you did this, and I've seen the other garbage you filed. This is truly a new low. Shame. Quite frankly I think there is something wrong with our legal system that you could even get a bar card, let along have such an enormously negative impact on such an important right, at such a critical time. I need a drink.
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Old 11-25-2013, 7:51 PM
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Bumping this.
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Old 11-25-2013, 8:39 PM
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Did you discus this with him before blasting him or at least sent him a link so we may hear his response?
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Old 11-25-2013, 9:16 PM
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Who cares if he corresponded with him. He needs to be made an example of. Damage is done. Damn
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Old 11-25-2013, 9:58 PM
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Originally Posted by deebix View Post
Who cares if he corresponded with him. He needs to be made an example of. Damage is done. Damn
I'm not an attorney and don't know too much about the levels of scrutiny so I was curious as why he did it. Maybe there is a valid reason, maybe there isn't. Worth hearing his side if it.

I'll send him the link just in case
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Old 11-25-2013, 10:10 PM
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Question: why should the court apply the level of scrutiny suggested by a mere lawyer? Shouldn't they apply the level of scrutiny they feel is appropriate?
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Old 11-25-2013, 10:15 PM
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Originally Posted by curtisfong View Post
Question: why should the court apply the level of scrutiny suggested by a mere lawyer? Shouldn't they apply the level of scrutiny they feel is appropriate?
I think we both know that is 0 scrutiny....
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let me guess this means the case will move as fast as a Tuttle on heroin now instead of a snail on salt.................
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Old 11-25-2013, 10:17 PM
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Old 11-25-2013, 10:26 PM
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Originally Posted by LoneYote View Post
I think we both know that is 0 scrutiny....
In which case a lowly lawyer's opinion is even more worthless.

If two completely incompetent lawyers enter a courtroom, why is it even relevant what they claim?

If the court knows better, it will find accordingly, regardless.

If it doesn't, we're screwed regardless.
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Old 11-26-2013, 12:10 AM
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Hey Matt every Court in the Country has applied intermediate scrutiny to carry cases other than the 7th which dealt with a complete ban on carry. It did not adopt a level of scrutiny. We win applying intermediate scrutiny. Sorry that does not work out for you but that is the way the Courts have gone. All I did was to remind the Court that opposing Counsel was incorrect in stating the lower Court accepted our argument that the right extends outside the home. In fact the Court stated the right does not extend outside the home. Applying any level of heightened scrutiny Hawaii's laws fail. That's all my client needs.

Last edited by wolfwood; 11-26-2013 at 12:22 AM..
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Old 11-26-2013, 1:12 AM
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Originally Posted by wolfwood View Post
Hey Matt every Court in the Country has applied intermediate scrutiny to carry cases other than the 7th which dealt with a complete ban on carry.
Really Beck? So in the two cases the Supreme Court took up, where did it apply intermediate scrutiny? Or is that Court in another Country?

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Originally Posted by wolfwood View Post
All I did was to remind the Court that opposing Counsel was incorrect in stating the lower Court accepted our argument that the right extends outside the home.
Nope, you went out of your way to volunteer the concession that intermediate scrutiny should apply to 2A cases. But hey since you are here, why don't you display your brilliant legal mind, and explain to us why you could not simply say that strict scrutiny should apply, but that the statute in question cannot survive even under intermediate scrutiny.

I get that this is all an ego trip for you, and that you are convinced you will win because you are right, even in front of a hostile court with shoddy lawyering. But back here in the real world, you are seriously screwing things up for the rest of us. Stop trying to get attention for yourself, and go back to whatever practice you had before you started messing with our rights.
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Old 11-26-2013, 3:31 AM
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Quote:
Originally Posted by wolfwood View Post
Hey Matt every Court in the Country has applied intermediate scrutiny to carry cases other than the 7th which dealt with a complete ban on carry. It did not adopt a level of scrutiny. We win applying intermediate scrutiny. Sorry that does not work out for you but that is the way the Courts have gone. All I did was to remind the Court that opposing Counsel was incorrect in stating the lower Court accepted our argument that the right extends outside the home. In fact the Court stated the right does not extend outside the home. Applying any level of heightened scrutiny Hawaii's laws fail. That's all my client needs.
Thank you for being polite even when under attack. That is a class act.

No comment on your legal acumen. I've not bothered to study the case to the level where I could reasonably do so - and I've no legal training, either.
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Old 11-26-2013, 4:31 AM
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Originally Posted by wolfwood View Post
Hey Matt every Court in the Country has applied intermediate scrutiny to carry cases other than the 7th which dealt with a complete ban on carry. It did not adopt a level of scrutiny. We win applying intermediate scrutiny. Sorry that does not work out for you but that is the way the Courts have gone. All I did was to remind the Court that opposing Counsel was incorrect in stating the lower Court accepted our argument that the right extends outside the home. In fact the Court stated the right does not extend outside the home. Applying any level of heightened scrutiny Hawaii's laws fail. That's all my client needs.
I didn't yet study the case. Is this another criminal trying to get off using the second amendment?
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I am a physician. I am held to being "the expert" in medicine. I can't fall back on feigned ignorance and the statement that the patient should have known better than I. When an officer "can't be expected to know the entire penal code", but a citizen is held to "ignorance is no excuse", this is equivalent to ME being able to sue my patient for my own malpractice-after all, the patient should have known better, right?
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Old 11-26-2013, 4:49 AM
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Originally Posted by Tincon View Post
Really Beck? So in the two cases the Supreme Court took up, where did it apply intermediate scrutiny? Or is that Court in another Country?



Nope, you went out of your way to volunteer the concession that intermediate scrutiny should apply to 2A cases. But hey since you are here, why don't you display your brilliant legal mind, and explain to us why you could not simply say that strict scrutiny should apply, but that the statute in question cannot survive even under intermediate scrutiny.

I get that this is all an ego trip for you, and that you are convinced you will win because you are right, even in front of a hostile court with shoddy lawyering. But back here in the real world, you are seriously screwing things up for the rest of us. Stop trying to get attention for yourself, and go back to whatever practice you had before you started messing with our rights.
So in the other two cases you speak of they applied strict scrutiny?

Not sure which cases you speak of but in heller and McDonald a quick google search showed they applied intermediate.
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Old 11-26-2013, 7:16 AM
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I know next to nothing about this case, but...

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Originally Posted by wolfwood View Post
That's all my client needs.
is scary, when the outcome could affect the entire rest of the country, and all of our rights.
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Old 11-26-2013, 7:32 AM
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Quote:
Originally Posted by Spyder View Post
I know next to nothing about this case, but...



is scary, when the outcome could affect the entire rest of the country, and all of our rights.
And you have contributed how many dollars to this case?

If I recall correctly from Wolfwood's past posts, the case is being litigated as it is in part because requests for help have gone unfulfilled. If you don't like the current procedural posture, perhaps you should have volunteered the funds to pay for a Civ Pro expert to assist Wolfwood.

There are cases filed by wing-nuts that rebuff advice from experience 2A litigators and cause damage. Save your ammo for them. If you go back and read the historical posts, I think you'll find Wolfwood is in the category of 2A litigators that would like some help but are doing without and doing the best they can.
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Old 11-26-2013, 8:36 AM
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The question is: would asking for strict scrutiny to be applied (instead of conceding that intermediate is adequate) harm his client's case?

On one hand, I can see that concessions made at this stage can often help a lawyer tip the scales in his client's favor.

On the other hand, it is distressing that this is a strategy that actually *works*.

Why should it matter what scrutiny a lawyer says is sufficient? Shouldn't a judge be able to determine that independent of what a lawyer says he is happy with? Why should a judge determine that the *minimum* scrutiny requested by some random lawyer become the basis (set in stone) for all future cases?
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Old 11-26-2013, 8:39 AM
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How many carry cases has the supreme court decided in the last decade, since Heller?

In how many gun rights cases have appeals and higher courts required the use of strict scrutiny?

In my life, I spent a lot of time at Irvine (just a few weeks ago, I got to hold court at the Goat Hill Tavern), and it is a bit insular. No wonder, if one's attention is completely focused on the girls of OCC and CalState Fullerton. But I didn't know that its law school seems to be completely disconnected from reality, at least judging by one particular student.
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Old 11-26-2013, 10:20 AM
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It should have been strict scrutiny. As a matter of good litigation strategy, you always go for the standard of review that is the best for your case, then rebut if the other side says different. Strict scrutiny is always an easier test to use to strike down a law or regulation.

If it is true that the Supreme Court feels, as it stated in Heller, that the 2nd Amendment is just as valid as the 1st, then you can make a colorable argument for strict scrutiny.

Judges apply the law as you set it out for them, interpretations and all, for the most part. If both sides agree, as here, that intermediate scrutiny is the way to go, the judge isn't going to go digging and adding more work to his plate to change your mind. Depending on the judge, of course, and the issue. (If both sides agree rational basis should apply to a 1st Am case, the judge wouldn't go for it ... but where the area of law is as unsettled as 2nd Am case law...)

The Supreme Court has only told us what the test CAN'T be - it can't be rational basis review or that strange "interest balancing" approach Breyer is so fond of so there IS no clear standard or level of scrutiny on 2nd Am. cases set out by the Supreme Court, so it is SO important that any case brought up on those merits start from the strongest point possible - strict scrutiny. The Supreme Court has only told us what the test CAN'T be - it can't be rational basis review or that strange "interest balancing" approach Breyer is so fond of.

This is frustrating. We shouldn't working against ourselves.
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Old 11-26-2013, 10:22 AM
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Originally Posted by Superduper2013 View Post
So in the other two cases you speak of they applied strict scrutiny?

Not sure which cases you speak of but in heller and McDonald a quick google search showed they applied intermediate.
Incorrect.
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Old 11-26-2013, 10:35 AM
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Tincon is correct - they didn't articulate ANY standard of scrutiny to follow. Therein lies the problem. Here is the cite from a somewhat recent CA case: "In holding the District of Columbia handgun ban unconstitutional, Heller declined to specify the standard of constitutional scrutiny applicable when a defendant challenges legislation on the ground it violates the Second Amendment right to bear arms, holding the D.C. ban would fail “[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights.” (Heller, supra, 128 S.Ct. at pp. 2817–2818, fn. omitted.)" People v. Delacy, (2011) 192 Cal. App. 4th 1481, 1488, review denied (June 8, 2011), cert. denied, 132 S. Ct. 1092, (U.S. 2012).

Wolfwood - I'm not the most seasoned litigator on the block, I've only been at it for 7 years, but I've had some big wins in CA Appellate court and some small ones at the local court level. I'm out of the game now...in-house (thank goodness, but that's a discussion for another day), but maybe coming on here to discuss strategy wouldn't be a bad idea for the next round. When you're that close to a case and a sole practitioner, it can be really tough. Heck, maybe a "2A Litigation Strategy Discussion" forum is in order. Many of the non-lawyers on here have great strategic ideas for these, and there are lots of lawyers on here that have more experience than I!

All of this is assuming I have you pegged as the right Attorney Beck. If I'm wrong and you're an expert out of BigLaw, I apologize!

Last edited by meyerlemony; 11-26-2013 at 10:47 AM.. Reason: Added case cite
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Old 11-26-2013, 12:13 PM
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Quote:
Originally Posted by chainsaw View Post
How many carry cases has the supreme court decided in the last decade, since Heller?

In how many gun rights cases have appeals and higher courts required the use of strict scrutiny?

In my life, I spent a lot of time at Irvine (just a few weeks ago, I got to hold court at the Goat Hill Tavern), and it is a bit insular. No wonder, if one's attention is completely focused on the girls of OCC and CalState Fullerton. But I didn't know that its law school seems to be completely disconnected from reality, at least judging by one particular student.
^wow. Usually you proffer better arguments than that crap
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Old 11-26-2013, 2:16 PM
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Quote:
No. 12-16258
CASE NO. CV 11-00528
RESPONSE TO DEFENDANT’S NOTICE OF SUPPLEMENTAL AUTHORITY
__________________________________
Case: 12-16258 11/25/2013 ID: 8876913 DktEntry: 55 Page: 1 of 4
Response to Defendant’s Notice of Supplemental Authority
COMES NOW THE PLAINTIFF-APPELLANT, Christopher Baker, and submits this Response to Defendants’ Notice of Supplemental Authority. Defendants submitted as supplemental authority the Ninth Circuit’s recent decision in United States v. Chovan, No. 11-50107. Defendants correctly note that the Court adopted a two-step framework for Second Amendment claims. Defendants further suggest that intermediate scrutiny is the appropriate level of scrutiny to be applied to Mr. Baker’s claims. Mr. Baker does not dispute this. However, Mr. Baker does dispute Defendants’ contention that the lower court applied intermediate scrutiny in deciding Mr. Baker’s claims. In fact the lower court explicitly declined to apply a level of scrutiny in deciding Mr. Baker’s claims and merely suggested in dicta that intermediate scrutiny might be an appropriate level of scrutiny.

Additionally, the Court concludes that even if the Hawaii Revised Statutes at issue in this litigation were found to implicate protected Second Amendment activity, and therefore were subject to that the challenged statute fails to be “substantially related to an important government objective.” Baker v. Kealoha, Civ. No. 11-00528 ACK-KSC (D. Haw. Jun. 19, 2012).at 54. The lower Court found no need to adopt a level of scrutiny because it declined to accept Mr. Baker’s argument that the Second Amendment confers a right outside the home. Case: 12-16258 11/25/2013 ID: 8876913 DktEntry: 55 Page: 2 of 4 The Court acknowledges Plaintiff’s argument, however in light of the uncertainty surrounding Heller, the Court joins other courts in awaiting direction from the Supreme Court with respect to the outer bounds of the Second Amendment. See Masciandaro, 638 F.3d at 475. Id at 45.
251648_Baker v. Kealoha_Response to Defendant_s Notice of Supplemental Authority re US v. Chova.pdf

On re-reading this I’m not sure that this reply concedes very much at all. It’s ambiguously worded at the very least. In the part that I’ve bolded, I read it now to say that Mr. Baker doesn’t dispute that the court adopted a two-step framework. He also doesn't dispute that the defendants suggest that intermediate scrutiny is the appropriate level of scrutiny. But that’s not equivalent to saying that Mr. Baker himself agrees that intermediate scrutiny is the appropriate standard. That’s an important distinction.

The reply then goes on to argue that whatever the court did (the two-step framework), it wasn’t intermediate scrutiny as far as Mr. Baker is concerned, and apparently not as far as the court itself was concerned either.

It could be argued that wolfwood does make the concession that intermediate scrutiny is the appropriate standard in his post in this thread:

Quote:
Hey Matt every Court in the Country has applied intermediate scrutiny to carry cases other than the 7th which dealt with a complete ban on carry. It did not adopt a level of scrutiny. We win applying intermediate scrutiny. Sorry that does not work out for you but that is the way the Courts have gone. All I did was to remind the Court that opposing Counsel was incorrect in stating the lower Court accepted our argument that the right extends outside the home. In fact the Court stated the right does not extend outside the home. Applying any level of heightened scrutiny Hawaii's laws fail. That's all my client needs.
I don’t think that conclusion is warranted however. He may think that he can prevail under an intermediate scrutiny standard, but that doesn’t preclude him from arguing for strict scrutiny or any other standard in the courts. He doesn't claim in the reply to the defendants that intermediate scrutiny is the appropriate standard. In summary, the reply to the defendants is somewhat “ungraceful”, and may in fact be legal suicide (IANAL), but on the face of it doesn’t appear to concede much. Maybe a “feature” rather than a “bug”.
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Old 11-26-2013, 2:22 PM
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Our justice system is so ****ed.
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Old 11-26-2013, 3:19 PM
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Maybe a “feature” rather than a “bug”.
I would have to disagree. And he does concede intermediate scrutiny in the 28j, intentional or not. And he admits as much here, and in fact tries to justify it. Sickening.
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Old 11-26-2013, 5:36 PM
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I would have to disagree. And he does concede intermediate scrutiny in the 28j, intentional or not. And he admits as much here, and in fact tries to justify it. Sickening.
I assume the 28j is the document you linked to in the original post and from which I quoted. To put it a little differently, I think you're saying that Mr. Baker doesn't dispute the subordinate clause portion of the antecedent sentence that says "that intermediate scrutiny is the appropriate level of scrutiny to be applied to Mr. Baker’s claims." But if the whole sentence is the antecedent then he's not necessarily endorsing intermediate scrutiny as the appropriate level, he's just not disputing the fact that the defense has suggested that it ought to be.

So when "Mr. Baker does not dispute this."; is he not disputing the entire antecedent sentence, or is he also not disputing the subordinate clause?
He can do the former without doing the latter.

As for admitting as much here, he does claim that he can win under an intermediate scrutiny standard; but he also says, "Applying any level of heightened scrutiny Hawaii's laws fail." I don't think he's locked himself in to only considering intermediate scrutiny. On the other hand, he seems to think that's all he's likely to get. He'll be really lucky to get that!
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Old 11-26-2013, 6:43 PM
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The bottom line in Baker, is that Baker was denied a right and his lawyer was hired to get him that right.

The NRA in this case did not want to get involved so Bakers lawyer is doing what he can to achieve a win for his client.

Hawaiian law is much more oppressive than here in CA. Thus, Bakers lawyer is doing what it takes to get his client the right he was seeking. Bakers lawyer is not out to create precedents in the world of the 2A, Baker simply wanted to own a handgun. His lawyer is trying to make that happen for him.

EDIT after a little further reflection. I will say this, if the NRA had discouraged this plaintiff from doing this i would be very displeased with Baker. (i have no knowledge of this communication) Just throwing this in as to not being perceived as being biased either way in the case due to lack of knowledge.

Last edited by taperxz; 11-26-2013 at 8:21 PM..
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Old 11-26-2013, 7:50 PM
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Default As one who was at the Dec 2012 hearings.

Due to the overcapacity at that 3 case hearing, I got to sit in a room with close up videos of both the attorneys and judges on split screens.

Paul Clement knocked it out of the park, Alan Gura was very respectable, Baker's attorney was not as good, but he didn't make from what I remember huge mistakes.

All three attorneys for the other side OTOH were contradicting themselves, making arguments that the "Empirical Evidence", yada, yada, yada. In other words all three were full of ****.

The one case where we did have a temporary win was the "Woolard" case and the judge in that case used "intermediate scrutiny".

Both San Diego and Yolo counties attornies were arguing that Californian's could "bear arms" in most parts of California, just not "loaded".

The Federal 2nd circuit decided that "intermediate scrutiny" was the correct standard and of course what they did was say it was "intermediate" while using a "rational basis" review in the New York case.

Unfortunately the courts are going to do what they please, if they like a "right", they are going to expand it regardless of how unqualified the lawyer filing the case is.

On the flip side, if judges are hostile to a right, you can expect them to exercise creative writing skills to gut the "right" regardless if you have a "Legal Superstar".

I don't know how to read the 9th, hopefully we will find out soon.

Nicki
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  #29  
Old 11-26-2013, 8:26 PM
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Incorrect.
Wrong answer try again.
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Old 11-26-2013, 8:28 PM
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Wrong answer try again.
HUH? You might need to re read things.
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Old 11-27-2013, 7:31 AM
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EDIT after a little further reflection. I will say this, if the NRA had discouraged this plaintiff from doing this i would be very displeased with Baker. (i have no knowledge of this communication) Just throwing this in as to not being perceived as being biased either way in the case due to lack of knowledge.
That's absolutely the case. The HI group, led by Beck, contacted NRA's litigation team (and I believe Gura/SAF, too) asking for advice/help. They were informed that the issue being litigated, i.e. whether the 2A confers a right to carry a firearm for self-defense, was already being litigated in the 9th Circuit. Having Baker before the 9th was redundant at best, even if ably litigated. Unfortunately, we have seen Beck's litigation skills, both with Baker and the hot mess that is Young. The NRA's litigators (and again, I believe Gura as well) asked them to please not to move forward with their case, and that NRA's guys would be happy to help file follow up litigation at the appropriate time. Once we establish the right, the issues in Baker can be resolved at the District Court level.

NRA's guys also recommended other issues that they should go ahead and move forward with in the interim, and offered to help them with those issues. No one told him to sit on the sidelines.

If anyone doesn't realize how bad his 28j letter is, they should read his filings in Young to get a taste of how pitiful his briefs are. But in any case, he flat out conceded the SOR to the opposition, when he 100% did not need to, in a case where half the point is establishing the SOR. If you don't understand how terrible this is, my blood pressure is jealous of yours.

If I was a criminal defense lawyer, and a client came to me with a novel toxic tort case that could impact litigation in this field for years to come, under no circumstances would I file it. I would refer the client to the best toxic tort litigator I knew. And if they told my client to hold off on filing that case right now, or to litigate certain issues now and hold off on certain issues, I would TAKE THEIR ADVICE. Good god. What I would never do is decide I know better … and the LITIGATE THE CASE MYSELF!

Real professionals in a field realize how little they know. Guys that don’t know squat think they know more than they do. Its like this in most walks of life, not just the law.

I have routinely seen case after garbage case filed by lawyers with no firearms experience, no civil rights litigation experience, no constitutional law experience, and no support staffs. And anyone can review the docket see the disastrous briefs that are filed. We are talking about a guy who literally, in a brief, said to the court, THAT THE COURT WAIVED ANY PROCEDURAL DEFECTS IN HIS BRIEF BECAUSE IT AUTOMATICALLY ACCEPTED HIS ELECTRONIC FILING. Incredible. And there are people here thinking that he is doing a good thing by litigating cases that could decide the SOR for the 2A for all of us. That he should be litigating these issues. That he should be filing cases that the SAF and NRA and lawyers like Clement, Gura, and Michel specifically asked him not to file. I must be hallucinating.

If it sounds like I'm furious, it's because I am.
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Last edited by Tincon; 11-27-2013 at 7:36 AM..
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Old 11-27-2013, 7:36 AM
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That's absolutely the case. The HI group, led by Beck, contacted NRA's litigation team (and I believe Gura/SAF, too) asking for advice/help. They were informed that the issue being litigated, i.e. whether the 2A confers a right to carry a firearm for self-defense, was already being litigated in the 9th Circuit. Having Baker before the 9th was redundant at best, even if ably litigated. Unfortunately, we have seen Beck's litigation skills, both with Baker and the hot mess that is Young. The NRA's litigators (and again, I believe Gura as well) asked them to please not to move forward with their case, and that NRA's guys would be happy to help file follow up litigation at the appropriate time. Once we establish the right, the issues in Baker can be resolved at the District Court level.

NRA's guys also recommended other issues that they should go ahead and move forward with in the interim, and offered to help them with those issues. No one told him to sit on the sidelines.

If anyone doesn't realize how bad his 28j letter is, they should read his filings in Young to get a taste of how pitiful his briefs are. But in any case, he flat out conceded the SOR to the opposition, when he 100% did not need to, in a case where half the point is establishing the SOR. If you don't understand how terrible this is, my blood pressure is jealous of yours.

If I was a criminal defense lawyer, and a client came to me with a novel toxic tort case that could impact litigation in this field for years to come, under no circumstances would I file it. I would refer the client to the best toxic tort litigator I knew. And if they told my client to hold off on filing that case right now, or to litigate certain issues now and hold off on certain issues, I would TAKE THEIR ADVICE. Good god. What I would never do is decide I know better … and the LITIGATE THE CASE MYSELF!

Real professionals in a field realize how little they know. Guys that don’t know **** think they know more than they do. Its like this in most walks of life, not just the law.

I have routinely seen case after garbage case filed by lawyers with no firearms experience, no civil rights litigation experience, no constitutional law experience, and no support staffs. And anyone can review the docket see the disastrous briefs that are filed. We are talking about a guy who literally, in a brief, said to the court, THAT THE COURT WAIVED ANY PROCEDURAL DEFECTS IN HIS BRIEF BECAUSE IT AUTOMATICALLY ACCEPTED HIS ELECTRONIC FILING. Incredible. And there are people here thinking that he is doing a good thing by litigating cases that could decide the SOR for the 2A for all of us. That he should be litigating these issues. That he should be filing cases that the SAF and NRA and lawyers like Clement, Gura, and Michel specifically asked him not to file. I must be hallucinating.

If it sounds like I'm furious, it's because I am.
You don't need to convince me. LOL If you only knew.
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Old 11-27-2013, 7:39 AM
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Thank you for being polite even when under attack. That is a class act.

No comment on your legal acumen. I've not bothered to study the case to the level where I could reasonably do so - and I've no legal training, either.
because
""being polite""
is all that matters
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  #34  
Old 11-27-2013, 7:55 AM
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Really Beck? So in the two cases the Supreme Court took up, where did it apply intermediate scrutiny? Or is that Court in another Country?



Nope, you went out of your way to volunteer the concession that intermediate scrutiny should apply to 2A cases. But hey since you are here, why don't you display your brilliant legal mind, and explain to us why you could not simply say that strict scrutiny should apply, but that the statute in question cannot survive even under intermediate scrutiny.

I get that this is all an ego trip for you, and that you are convinced you will win because you are right, even in front of a hostile court with shoddy lawyering. But back here in the real world, you are seriously screwing things up for the rest of us. Stop trying to get attention for yourself, and go back to whatever practice you had before you started messing with our rights.

That strikes me as a real good question.


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It should have been strict scrutiny. As a matter of good litigation strategy, you always go for the standard of review that is the best for your case, then rebut if the other side says different. Strict scrutiny is always an easier test to use to strike down a law or regulation.

If it is true that the Supreme Court feels, as it stated in Heller, that the 2nd Amendment is just as valid as the 1st, then you can make a colorable argument for strict scrutiny.

Judges apply the law as you set it out for them, interpretations and all, for the most part. If both sides agree, as here, that intermediate scrutiny is the way to go, the judge isn't going to go digging and adding more work to his plate to change your mind. Depending on the judge, of course, and the issue. (If both sides agree rational basis should apply to a 1st Am case, the judge wouldn't go for it ... but where the area of law is as unsettled as 2nd Am case law...)

The Supreme Court has only told us what the test CAN'T be - it can't be rational basis review or that strange "interest balancing" approach Breyer is so fond of so there IS no clear standard or level of scrutiny on 2nd Am. cases set out by the Supreme Court, so it is SO important that any case brought up on those merits start from the strongest point possible - strict scrutiny. The Supreme Court has only told us what the test CAN'T be - it can't be rational basis review or that strange "interest balancing" approach Breyer is so fond of.

This is frustrating. We shouldn't working against ourselves.

And the part in bold is why it's a good question.


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Old 11-27-2013, 8:27 AM
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Nope, you went out of your way to volunteer the concession that intermediate scrutiny should apply to 2A cases. But hey since you are here, why don't you display your brilliant legal mind, and explain to us why you could not simply say that strict scrutiny should apply, but that the statute in question cannot survive even under intermediate scrutiny.
Because he is an advocate for his client. And if advocating for your client means you need to concede that a recently-filed opinion states what it states, and that you have no quarrel with that, and you believe that it will preserve your credibility with the court with regard to other matters, that's what you need to do sometimes.

His duty is to his client. Not to you. Not to "us." To his client, period.
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Old 11-27-2013, 8:37 AM
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Because he is an advocate for his client. And if advocating for your client means you need to concede that a recently-filed opinion states what it states, and that you have no quarrel with that, and you believe that it will preserve your credibility with the court with regard to other matters, that's what you need to do sometimes.

His duty is to his client. Not to you. Not to "us." To his client, period.
I don't think his conceding an intermediate SOR helps anyone, including his client. I also think you are oversimplifying the role of a public interest attorney, which is the role Beck has unfortunately placed himself in. As far as Beck and his credibility, did you see this:

Quote:
We are talking about a guy who literally, in a brief, said to the court, THAT THE COURT WAIVED ANY PROCEDURAL DEFECTS IN HIS BRIEF BECAUSE IT AUTOMATICALLY ACCEPTED HIS ELECTRONIC FILING.
How do you think that impacts his credibility? Do you really think that after that he has ANY credibility to "preserve?"
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Old 11-27-2013, 8:38 AM
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Again, do concessions ever help a client's case?

It's a simple question.
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Old 11-27-2013, 8:42 AM
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Again, do concessions ever help a client's case?

It's a simple question.
Actually, it isn't. Does wearing a nicer suit help a client's case? Maybe, some people certainly think so, but it's hard to quantify. On the other hand, I have no problem stating that conceding a critical point in a case is unhelpful.
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Old 11-27-2013, 8:51 AM
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I don't think his conceding an intermediate SOR helps anyone, including his client. I also think you are oversimplifying the role of a public interest attorney, which is the role Beck has unfortunately placed himself in.
There have been many instances in which I have had to concede a point of law, particularly with regard to recently-published authority. By doing so, you are preserving the most important asset that you bring as an advocate to the court, your reputation and your credibility. Whether he is a "public interest attorney" or not, he is representing a client.

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How do you think that impacts his credibility? Do you really think that after that he has ANY credibility to "preserve?"
I offer no opinion as to this particular attorney's credibility. All I saw was a concession (or really, a point of non-dispute) that Chovan held what it held. That is perfectly acceptable, and in fact, advisable within the bounds of advocacy.

I know we would all like to be on the same team here, but attorneys' duties are to their clients, not to a cause.
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Old 11-27-2013, 8:53 AM
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Again, do concessions ever help a client's case?

It's a simple question.
Yes.
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