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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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#8481
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#8482
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Peruta Denial .... as I said, I would start packing my camping gear. Kolby Denial .... I would get it loaded up. Norman Denial .... ..... .... .... ^^^ I would file an unlawful detainer against you and KC, evict you, set my own camp up, and then lease a campsite back to you both, so at least you'll have ONE PLACE in CA that'll still be legal for you to Open AND Conceal Carry... (I'm not THAT heartless, lol) Quote:
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After all, the enbanc decision from the 9th was not based on the law (or the case as presented to it). Arguments (Court Challenges) based on the law are fruitless against judges who rule by a predetermined outcomes or emotions, or ideology. Quote:
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(wish it were that simple. Did my sarcasum show much ?) Quote:
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That's my point. Force the issue with 4 and a cert. Make that 5th Justice CHOOSE, for all time, in the Face of History. It's all or nothing. Iif the 9th's enbanc decision stands as is we will be on a slide that IMO, will never be reversed.
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Last edited by Southwest Chuck; 05-20-2017 at 9:21 PM.. |
#8483
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But they're not. The only way we'd know that Roberts was the turncoat is if Kennedy signed on to the dissent for denial of cert (or, of course, the Court granted cert, decided against us, and Roberts sided with the majority). Ultimately, the problem here is that each justice's position has to be known in advance by all the others for a cert grant to be a rational thing given the nature of the case. As regards this, I haven't a clue whether Roberts' is known to the others or not, but mere belief about the positions won't be enough, given the gravity of the case. If there is uncertainty about being able to count to 5 (even in the face of the angle you raise), then cert will not be granted. But in the absence of the above, you make an excellent point here, one that I'm actually forced to agree with, at least if Roberts actually cares about being known as the justice who choked the life out of the 2nd Amendment. This is, ultimately, all about politics. Quote:
If that weren't a very real possibility, I'd be right there with you. But at least one of those justices is due for imminent (as these things go, at any rate) replacement. Quote:
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The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional. The real world laughs at optimism. And here's why. |
#8484
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This puts Roberts in the position of having to take a public position. He signs on to the majority option or issues a dissent. When put on the record, it will be harder for him to do a 180 on Heller. |
#8485
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Gorsuch: Master, we need to take this case. A fumdemental constitutional right is being denied. Kennedy: I admire your enthusiasm young Jedi. But understand, I'm just not comfortable letting everyone carry a gun. Please respect that. I'm retiring soon and you'll get another bite at the apple. You have many years on the court. By this time next year, Grace out of DC will probably be looking for cert. |
#8486
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I guess we'll see if Gorsuch enters the fray with a bang or a whimper. I'm betting on the former, with Kennedy's support. We'll know more in or so .... maybe even by Monday !
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#8487
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Thank you for a very thoughtful reply. I'd never considered their relationship in that way. And, by extension, if Gorsuch and Kennedy were adamantly opposed on Peruta, Kennedy could simply take an honorable retirement and let his former student take the field. Thanks for the response.
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#8488
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However, I'm suggesting that it's just as likely Gorsuch is deferential to Kennedy's position as vice versa, but only because Kennedy is probably close to retirement. "Neil, I'm close to retirement. Please don't put me in the position of having to force states to allow carry". If they deny cert, it will be telling if Gorsuch signs onto the dissent. If it's Thomas/Alito (no Gorsuch) it would suggest to me Gorsuch doesn't want to "call out" Kennedy for his vote to deny. Or, God forbid, it could mean Gorsuch is another soft conservative like Roberts and Kennedy. Now, if Kennedy is planning to retire over the summer, then maybe he is deferential toward Gorsuch, since he won't be there to sign onto an opinion. |
#8489
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To me, it's all dependent on a will to push the envelope. Taking risks (but not recklessly). As for what I bolded, "rational", is your "qualifier" for cert to be granted. It's true, but not evidence of outcome (or even probable outcome anymore, given some of the crazy "rational" decisions that have come out over the last few years). As you know, many horrendous court decisions are rational (or rationalized) to the ones who wrote them. It frequently means nothing anymore. What's rational to one, is totally irrational to another and is dependent on your definition of "is", lol. SCOTS Justices are not immune from their own prejudices (or Humanity, either). If Kennedy, Thomas, Gorsuch, and Alito voted for cert, and it was granted, (over Roberts clear rejection) Roberts would immediately be horrified. He'd know he would have to choose. What odds would YOU give on his decision, given the above scenario? Quote:
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#8490
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#8491
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SUCH AN IMPORTANT CASE .... If our enumerated fundamental Rights are going to be dependent on, and/or held hostage to, a favor granted from one Justice to another, so they won't be put in an uncomfortable position, then the Snowflake Revolution and Transformation of our country is complete. I guess I should start packing faster, KC ....
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#8492
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Perhaps, but before you disagree, allow me to explain why it's logical, at least as applied here.
Firstly, the Supreme Court is immensely reluctant to overturn its own precedent. We have Slaughterhouse as a prime example of that. Despite the Court's obvious recognition that Slaughterhouse is a bad decision (as shown by its willingness to use the kludge of "due process" to apply the Bill of Rights against the states), it is nevertheless unwilling to go against Slaughterhouse. Secondly, Peruta isn't the end of the line of carry cases, and the justices know it. So: game theory time, and remember that this is all from the perspective of a pro-2A Supreme Court justice. If all of the following is true:
then by taking the case:
whereas by denying cert:
Since the odds of an overall win are higher in the latter and you maximize the odds of avoiding an Article V Convention, denial of cert is the clear game theoretical winner. Quote:
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But that doesn't mean they can't count, or that they don't understand the situation. Sure, it's possible that the pro-2A side will ignore the game theoretical situation and go for granting cert anyway. But that something is possible doesn't make it the way to bet. Quote:
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It is vitally important to not confuse unwillingness with inability. But since we're talking about the viewpoint of the pro-2A justices, the question has to be: are any of them comfortable with the notion of an Article V Convention happening? Are all of them? I'd wager not. Such a Convention under the circumstance where the Court has decided that the 2nd Amendment is nearly a dead letter is one that is likely to not be favorable to the Court as an institution. Importantly, that makes an Article V Convention something even the pro-2A justices will wish to avoid. That will affect the game theoretical balance. Quote:
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I think the answer is "not much" (well, except for the lives needlessly lost because those who lost their lives were forbidden from mounting an effective defense. ). Laws are always subject to change because they are arbitrary constructs that come into existence, and cease to exist, at the stroke of a pen. The damage that would be most difficult to reverse would come from the Supreme Court, because the Court has an institutional reluctance to reverse its own damage that exceeds that of any other government institution. Quote:
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The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional. The real world laughs at optimism. And here's why. Last edited by kcbrown; 05-21-2017 at 3:00 PM.. |
#8494
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This may be an unpopular opinion BUT
For the rest of the country, it may be better to have cert denied lest we lose completely at SCOTUS until at least we have a bonafide conservative majority. Yes it will suck for you guys still, but there are many states on the line of pro gun/anti gun, and a loss at SCOTUS could harm many more states than just CA. |
#8495
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If someone else does, please speak up. Even the lawyers who post here who never say they agree courts have shown themselves to act politically don't affirmatively say that they believe courts are acting impartially. So if I missed someone that does affirmatively believe courts are acting mostly if not wholly out of jurisprudence, then please correct me. Even
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Last edited by lowimpactuser; 05-22-2017 at 7:27 PM.. |
#8500
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Looks like the next batch of orders will be released on 30 May.
Reading through SCOTUS blog (I'm a nobody), it seems like the case can be ordered as late as 27 June, and more likely to be argued next term (October at the earliest). If opinions are typically issued around June, that may give us another year to filter moon dust. Those on here who better know the scheduling than I please make corrections. |
#8503
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SCOTUSblog article re "relisting" shows 11.1% of cases granted cert after 4 relists: http://www.scotusblog.com/2016/10/th...ber-term-2015/ |
#8505
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I see 6.6% |
#8506
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11.1% chance of granted ceritorari, with arguments 50% chance of granted ceritorari, with summary opinion issued 38.9% chance of denied ceritorari So, actually at this point we have about 60% chance of case getting some sort of review from SCOTUS and 40% chance of being denied.
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#8507
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My father, who passed last year at the age of 86, and who lived his entire life in the County of Los Angeles, never had even a slight chance of obtaining a CCW permit, despite a top-secret clearance from the Feds at one time, and all that jazz. Just like every other good citizen who has/did wait decades, he was denied the ability to legally carry by a system of blatant racism that should have been discarded before it ever became entrenched. The continued delays by the courts and legislature are truly disheartening, and at this point I can only hope that future actions in our favor will benefit my children.
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#8508
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Remaining Conference Dates this session: May 25 June 1 June 8 June 15 June 22 |
#8509
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Two small points, plus some encouragement.
It is good that we are all looking at this in a civil way. Please keep up the abstract civil discussion. 1) We all forget that the decision in Heller, the main decision, was 9:0. We forget this all the time because the media always quotes the other decision in Heller, the 4:5 part. Remember, and use, the 9:0 decision. Quote it as often as the other sides quotes the 5:4 aspect -- that is to say use the 9:0 decision exclusively and repeatedly. Using this bit of truth always enrages the antis. So do it as often as possible. 2) Use of statistical analysis here is, at best, not applicable. There is neither a Gaussian random chance in play, nor anything like it. Neither is there simple geometric division. So quoting statistical analysis as if there is any applicability is not just invalid, but somewhat fraudulent. Game theory is OK here, because there is a game being played with biased players and fluid rules. The math involved is something like a combination of fuzzy logic and discrete difference equations -- very messy. While I have been paying attention trillions of dollars have been lost due to misunderstanding these fine points. |
#8510
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#8511
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There is one main point that one must considered.... an analogy, if you will. It comes from two men in American history (bear with me here as I am certainly not a Historian, but will do my best). Both were Generals. Both were named George. Both were brilliant tacticians. Both had an excellent grasp on the challenges and circumstances they faced. Yet Both handled these challenges in totally opposite ways. History remembers one as wildly successful, against seemingly insurmountable odds, and accomplished the impossible. The other went down in history as brilliant planner, but indecisive and inept. Who are those two men in History? George McCellan and George Patton. Lincoln charged McCellan with building an Army and taking the fight to the Confederates during the Civil War; Patton, the task of Stopping a surprise German Attack that threatened to break the back of the Allied invasion. He had to turn and entire army (the 3th Armored) 90 degrees and march over 100 miles in less than 3 days to save a tiny town called Bastogne, which was surrounded by German Panzers during the Battle of the Bulge. McCellan built his army; trained his men, acquired and amassed an enormous amount of equipment and materials, and developed a well thought-out strategic and tactical plan. Patton on the other hand, confident and bold, drew on his prior experience and literally "WILLED" his army to move ... NOW ! History tells us that, McCellan sought perfection, that and that alone would guaranty success. Doubts constantly crept into his thoughts. He needed More men, more equipment, a Better Plan. Again, again, and again ..... delaying his military action. He was incapacitated by fear .... fear of failure. Enter U.S. Grant and the rest is history. Patton knew that the Perfect was the enemy of the Good. A GOOD PLAN, executed today, was better than a Perfect Plan executed tomorrow. So, he acted, and wrote himself into the history books. Was McCellan wrong in his logic, reasoning, and strategic planning? No. His plans were airtight, his logic and reasoning, unassailable. But he never acted, deferring to a time when things were perfect, to guaranty his success. Now, I didn't intend for ^^^ that story to become so dramatic, .Now I'm not calling KC a McCellan, and I certainly am not likening myself to Patton, lol. I'm only pointing out the differences in strategy here and I think this analogy fits quite well. Patton drew on the intangibles and shear force of Will to get it done .... to help guide him to success. He had no choice. Lives were at stake.....And so they are here, my friend. True, we may not get everything we want, but those can be fleshed out better in future cases when the court is stronger, more conservative and liberty minded. Anyway, it's nice to have presented an alternate yet plausible route that can be taken and I have, again, as always, enjoyed our interaction, KC. That's all I got .... SC
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Last edited by Southwest Chuck; 05-22-2017 at 11:20 AM.. |
#8512
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#8513
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The first is that the game theory I mention isn't ours (though there are elements in it that may be applicable to ours), it's that of the pro-2A SCOTUS justices. The second is that it presumes that granting cert to Peruta is likely to yield a decision that is "good enough", even after the compromises that would be necessary to get a positive decision at all. What exactly is "good enough"? If we get a decision that says that "bear" is some sort of "right", but that it is subject to "reasonable regulation" without actually spelling anything out, then we're really no closer to regaining the right than we were prior to the decision. In real terms, it would have the equivalent effect of denying cert, but with one crucial difference: it would cement any negative attributes of the decision for all time. So it really comes down to this: how likely are we to get a decision that is stronger and more supportive than that when getting a favorable decision at all turns on the whim of someone who doesn't want to expand the right beyond keep in the home? Quote:
Where's the advantage in the first case? Quote:
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The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional. The real world laughs at optimism. And here's why. |
#8515
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Yes, they may think of something else but it gets more and more desperate each time. |
#8516
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Which makes me wonder if a remand is the best outcome.
Deny and it goes away. Grant and any right to carry gets watered down. I would expect that the court concedes there is a right to carry, it probably strikes down "just cause" provisions, but Roberts and Kennedy will make sure any majority option provides states with plenty of leeway to trample the right. In CA, NJ, NY, HI etc, you will be permitted to carry a flintlock pistol on the first Tuesday of the month after 400 hours of training and posting a $1 million bond. But if they remand, it goes back to the 9th Circuit for a year or 2 where they will engage in legal gymnastics to conclude there is no right to carry or there is a right to carry, but pretty much any restrictions are acceptable. By the time it gets back up to SCOTUS again, perhaps we have a friendlier court. |
#8517
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I doubt this will make it out of the cert pool.
As someone mentioned before, justice Scalia has already written a landmark opinion upholding the 2nd amendment as valid for individuals and that placing limits/regulations on concealed carry is appropriate. This case would not break any new ground. I don't like that much, but it looks like a whole opinion and solid case law. Sent from my iPad using Tapatalk |
#8518
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And, no, I don't know if the aliens provide the Devil's Lube or not.
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"The most hated initials in America today ... TSA." Said by yours truly to an audience of nodding IRS employees. |
#8520
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Either that, or there's some serious legal judgey constitutional stuff going on here and they really are waiting for "the right case."
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Proud to belong to the NRA Members' Council of Santa Clara County Disclaimer: All opinions are entirely my own. |
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