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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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  #361  
Old 02-02-2018, 2:51 PM
DASchell DASchell is offline
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  • Devoting his energy to fund raising for gun rights orgs
  • Using his passion to teach new shooters
  • Do PRARs. There are 500+ issuing authorities in this state. Why not do some PRAR investigation of them?
  • If he really insists on defending and exercising the right, then just do it. Start carrying. I don't recommend this but if he's that passionate about not compromising his right, he should go ahead and do it. At least by doing that he doesn't jeopardize our rights.
[/QUOTE]

Are you doing any of these or are you just telling someone else do as I say not as I do?
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  #362  
Old 02-09-2018, 4:33 PM
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Quote:
Originally Posted by butchy_boy View Post
Does SCOTUS look at cases in a dynamic setting? What I mean is taking the sequence of events into consideration. To me- Nichols is more enticing now post Peruta as the 9th has established that there is no right to CC. ---> Given no right to CC makes the ban of OC more devasting that before.

Yes, it does. Further, the AG for the PRK said (in Peruta) that there is a Right to bear arms, but not concealed. Well, there's only two ways to bear arms, and if one (concealed) is out, the other (open) MUST be in.


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Originally Posted by TruOil View Post
Not quite. Nichols does not claim a general right to carry, but only a right to carry (loaded or unloaded not specified) in "nonsensitive" areas, i.e., not in any governmental buildings, and not in any gun free school zone. He concedes that he is not contesting the validity of the GFSZA 1000' exclusionary zone.

This is indeed a very narrow right he seeks to establish with respect to urban areas (and is irrelevant in unincorporated areas where second amendment rights exist). In fact, it is so narrow that it is almost entirely useless. Now maybe Mr. Nichols lives in a neighborhood where he can walk around the block carrying a rifle, but the vast majority of people living in cities and towns cannot because they live within 1000 feet of a school.

Of course he doesn't challenge the GFSZs. They aren't a part of his effort. His effort is only about "and bear" outside the home. For all the reasons rplaw mentioned.

And "narrow" isn't the word to use. In case you haven't noticed, the "right people" have wasted the last eight years NOT getting "outside the home" established. AT ALL. Because they went with the fallacy that Heller allowed states to choose which manner of "and bear" they would allow.

And, if "outside the home" is established by Mr Nichols, that would be all the ammo needed to overturn the GFSZs, which, you may have noticed, are only barely hanging in there as it is. When balanced against a Constitutional Right, GFSZs have no chance of remaining. At least, not in a fair court. Which, as you pointed out before, we may not get.

But, there is another group attacking the GFSZs. There are sentence enhancements for dealing drugs in a school zone. YEARS get added on for that. Which has resulted in 'People of Color' being imprisoned for a lot longer than would otherwise be the case. This in spite of the fact that most of the defendants didn't even know that they were in a school zone. Since the people getting slamed are POC, there are now liberals looking to have them shot down. So, if Mr Nichols succeeds, we'd have liberals and a Constitutional Right working to get those legal abominations tossed.


Quote:
Originally Posted by kcbrown View Post
<snip>

As things stand, it's more likely that Flanagan will prevail than Nichols, but only because of the timing of when it hits the Supreme Court. Both are guaranteed to fail in the 9th Circuit. Flanagan will come in behind Nichols. That the Supreme Court (as one should have logically expected based on preceding events) denied cert to Norman means it will most certainly deny cert to Nichols unless its composition changes. That would leave only Flanagan.

Flanagan will be coming to the 9th Circuit under circumstances where the 9CA has destroyed the entire right to carry. I'll be watching with great interest what arguments it raises that could possibly prevail under those circumstances. But again, make no mistake: Nichols will not be the cause of that. The outcome for Flanagan would be exactly the same regardless.

Keeping things brief, and not believing that things are as bad as you say, I'll stick to the last two paragraphs.


There HAS been a change in the composition of SCOTUS. Neil Gorsuch is now firmly settled in. He wasn't for Norman. While the 9th Circus is hostile to this Constitutional Right, Flanagan isn't really an Open Carry case, so it'll die the death it deserves.

Since Mr Nichols is CLEAR on what he's going for, I think it will be granted cert (losing at the 9th Circus is just about guranteed).


Quote:
Originally Posted by rplaw View Post
I have read his briefs. Have you read some of the briefs by "the right people"? Let me tell you, there isn't ANY difference. At least in his case he has the excuse of not being trained or experienced.

All that aside, the thing is, I remember the beginning of his case. The part where he was asking for legal help but got snubbed by all the "experts" here and by "the right people" elsewhere. The part where he was personally attacked and told to go F himself because he was a lunatic. That he needed to dismiss his case because it was a sure loser and that Peruta was the winning course of action.

Amazing how the world turns. All that is over. The vain attempts at resurrecting it have failed, the alternative options have disappeared and SCOTUS refused to hear the question. And here's Nichols, heading for arguments next spring on a clear question of whether we have the right to bear arms in public or not. And yet you and others STILL refuse to support him.

It's pathetic. Really, it is.

Especially since the attacks are all based on what is NOT true: That states can choose the manner of "and bear." They can't. Heller was as clear as it could be (given that "and bear" wasn't a part of the case) that Open Carry, and NOT Concealed Carry, is the protected manner of "and bear." Every case to come before the Circuits (including and ESPECIALLY Peruta) was shot down (as I predicted) for the same reason: Concealed Carry isn't the Protected Right. Now here we have a guy who, for all his many faults, has at least stuck with the actual words of Heller, and the people here do nothing but attack him.

SIGH!


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  #363  
Old 02-10-2018, 8:26 AM
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Originally Posted by Mulay El Raisuli View Post
Keeping things brief, and not believing that things are as bad as you say, I'll stick to the last two paragraphs.


There HAS been a change in the composition of SCOTUS. Neil Gorsuch is now firmly settled in. He wasn't for Norman. While the 9th Circus is hostile to this Constitutional Right, Flanagan isn't really an Open Carry case, so it'll die the death it deserves.

Since Mr Nichols is CLEAR on what he's going for, I think it will be granted cert (losing at the 9th Circus is just about guranteed).
Lemme get this straight. Gorsuch was sufficiently settled in that he was able to join a dissent to denial of cert in Peruta, but wasn't sufficiently settled in to even pen a dissent to the later denial of cert in Norman, or to even convince any of the others (at least one of whom, according to you, must have taken the position in Heller that Norman argued for) to pen such? Seriously???



I must say, I'm impressed. You have even greater optimism than IVC. That takes talent.
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  #364  
Old 02-10-2018, 2:18 PM
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Originally Posted by Mulay El Raisuli View Post
Y

And "narrow" isn't the word to use. In case you haven't noticed, the "right people" have wasted the last eight years NOT getting "outside the home" established. AT ALL. Because they went with the fallacy that Heller allowed states to choose which manner of "and bear" they would allow.
Narrow IS the word for the result; all you have to do is look at one of the maps prepared detailing the extent of GFSZ in various cities in California. The simply FACT of the matter is that there are very few areas that are NOT in a GFSZ. And that is what I meant by "narrow": it is a right that can barely be exercised in the only places it matters, within urban (incorporated) areas. Porbably 80% of San Francisco is in a GFSZ in one way or another, and you can't go anywhere without entering one. I for one live in a GFSZ. Extending a questionable Superior Court Appellate Department that held that unfenced front yards are "semipublic" areas where the concealed carry law applies, I still will not be able to walk out my front door with a firearm that's not unloaded and in a locked case if Nichols prevails. As it is, I can carry all I want in my backyard, but who cares?

[/QUOTE]And, if "outside the home" is established by Mr Nichols, that would be all the ammo needed to overturn the GFSZs, which, you may have noticed, are only barely hanging in there as it is. When balanced against a Constitutional Right, GFSZs have no chance of remaining. At least, not in a fair court. Which, as you pointed out before, we may not get.[/QUOTE]

Really? REALLY? I cannot see ANY court overturning the law. It's for the children! Getting rid of sentencing enhancements is a long way away from eliminating GFSZs.

[/QUOTE]Since Mr Nichols is CLEAR on what he's going for, I think it will be granted cert (losing at the 9th Circus is just about guranteed).[/QUOTE]

Being clear on what he wants is not a harginger of getting a petition for cert granted. There are plenty of petitions that are quite clear, including Peruta, where one of the critical issues, presented again in Silvester, is the fact that the Ninth Circus has essentially ignored Heller's admonitions as to the proper way to analyze these cases by simply pasting an "intermediate scrutiny" label on what is exactly the same as a rational basis review.

[/QUOTE]Especially since the attacks are all based on what is NOT true: That states can choose the manner of "and bear." They can't. Heller was as clear as it could be (given that "and bear" wasn't a part of the case) that Open Carry, and NOT Concealed Carry, is the protected manner of "and bear." Every case to come before the Circuits (including and ESPECIALLY Peruta) was shot down (as I predicted) for the same reason: Concealed Carry isn't the Protected Right. Now here we have a guy who, for all his many faults, has at least stuck with the actual words of Heller, and the people here do nothing but attack him.[/QUOTE]

SIGH! This stupid argument has been shot down so many times that I am tired of repeating it. Heller did not say ANYTHING about the manner of carry outside the home. It cited--but did not adopt--state court cases containing such language, but all of that is "mere dicta," not binding on any court. Heller was not a "carry outside the home" case, and its decision cannot be construed as deciding an issue that was never presented to it. I assume that you are familiar with Norman, a case where the Florida Supreme Court upheld an open carry ban, and the U.S. Supreme Court denied cert. If you are right, then you are saying that SCOTUS allowed a clear constitutional error to remain, even though, as with the taser case from Massachusetts, the case could have been reversed on summary disposition if Heller had really said what you and Nichols so desperately believe it said.
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  #365  
Old 02-10-2018, 3:58 PM
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Gun control as a whole is jeopardized by this case. I could see the antis safe bet here could be to let Nichols win so it only affects the 9th circuit. Make him loose here and he is off to SCOTUS where the antis are "all in" and could loose the whole country.
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  #366  
Old 02-10-2018, 9:28 PM
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Will there be Youtube streaming? If so, link?
I can't recall if they have live streaming or it gets posted within a day or so.
Anyone know for sure whether there's livestreaming or not?
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  #367  
Old 02-11-2018, 7:41 AM
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Anyone know for sure whether there's livestreaming or not?
This link seems to indicate the answer is yes https://www.ca9.uscourts.gov/media/l..._arguments.php
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  #368  
Old 02-11-2018, 7:45 AM
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Originally Posted by Mulay El Raisuli View Post
Yes, it does. Further, the AG for the PRK said (in Peruta) that there is a Right to bear arms, but not concealed. Well, there's only two ways to bear arms, and if one (concealed) is out, the other (open) MUST be in.





Of course he doesn't challenge the GFSZs. They aren't a part of his effort. His effort is only about "and bear" outside the home. For all the reasons rplaw mentioned.

And "narrow" isn't the word to use. In case you haven't noticed, the "right people" have wasted the last eight years NOT getting "outside the home" established. AT ALL. Because they went with the fallacy that Heller allowed states to choose which manner of "and bear" they would allow.

And, if "outside the home" is established by Mr Nichols, that would be all the ammo needed to overturn the GFSZs, which, you may have noticed, are only barely hanging in there as it is. When balanced against a Constitutional Right, GFSZs have no chance of remaining. At least, not in a fair court. Which, as you pointed out before, we may not get.

But, there is another group attacking the GFSZs. There are sentence enhancements for dealing drugs in a school zone. YEARS get added on for that. Which has resulted in 'People of Color' being imprisoned for a lot longer than would otherwise be the case. This in spite of the fact that most of the defendants didn't even know that they were in a school zone. Since the people getting slamed are POC, there are now liberals looking to have them shot down. So, if Mr Nichols succeeds, we'd have liberals and a Constitutional Right working to get those legal abominations tossed.





Keeping things brief, and not believing that things are as bad as you say, I'll stick to the last two paragraphs.


There HAS been a change in the composition of SCOTUS. Neil Gorsuch is now firmly settled in. He wasn't for Norman. While the 9th Circus is hostile to this Constitutional Right, Flanagan isn't really an Open Carry case, so it'll die the death it deserves.

Since Mr Nichols is CLEAR on what he's going for, I think it will be granted cert (losing at the 9th Circus is just about guranteed).





Especially since the attacks are all based on what is NOT true: That states can choose the manner of "and bear." They can't. Heller was as clear as it could be (given that "and bear" wasn't a part of the case) that Open Carry, and NOT Concealed Carry, is the protected manner of "and bear." Every case to come before the Circuits (including and ESPECIALLY Peruta) was shot down (as I predicted) for the same reason: Concealed Carry isn't the Protected Right. Now here we have a guy who, for all his many faults, has at least stuck with the actual words of Heller, and the people here do nothing but attack him.

SIGH!


The Raisuli
Gorsuch's dissent in Peruta tells me he's fine with the state choosing shall issue CCW over an OC only scheme, and tells me he's fine with Florida's scheme (although it's possible up to 3 justices voted to hear but didn't bother with a dissent).
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  #369  
Old 02-12-2018, 9:12 PM
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This link seems to indicate the answer is yes https://www.ca9.uscourts.gov/media/l..._arguments.php
Thanks!

Do you know where (what YT channel) will have the entire oral arguments posted if you can't watch it live on Thursday and have to watch it later?
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  #370  
Old 02-12-2018, 9:40 PM
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Thanks!

Do you know where (what YT channel) will have the entire oral arguments posted if you can't watch it live on Thursday and have to watch it later?
this is the channel it looks like: https://www.youtube.com/user/9thcirc/videos
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  #371  
Old 02-15-2018, 7:09 AM
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I'm less optimistic for today in light of yesterday. How many times has this happened as an important case is near decision?
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  #372  
Old 02-15-2018, 10:04 AM
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Nichols did not do well.
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  #373  
Old 02-15-2018, 10:05 AM
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No he didn't. Hopefully his briefs make more sense.
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  #374  
Old 02-15-2018, 10:23 AM
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No he didn't but in his defense the panel seemed totally willing to buy into CA's assertion that it's not a total ban and their re-writing of history.
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  #375  
Old 02-15-2018, 11:07 AM
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Nichols did not do well.
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No he didn't. Hopefully his briefs make more sense.
Yeah, as I've been saying all along, Nichols is doing this for his ego, never mind what harm he does to gun rights. He's not on our side. He's on his own side. How could he do well? He's not an attorney. If someone gave me a violin solo at the LA Philharmonic, I would also not do well. It takes many years of hard work and expert professional training and innate talent to be able to do a violin solo. I don't have any of those so I would fail. The only bad thing is I would embarrass myself and waste the time of the audience. Unfortunately, Nichols has a lot more at risk than just making a fool of himself. And doing a good argument in front of a court is much like doing a good violin solo: it takes years of expert professional training, years of hard work, and innate talent, and Nichols has NONE of those things.
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  #376  
Old 02-15-2018, 11:21 AM
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No he didn't. Hopefully his briefs make more sense.
Yeah his briefs are incoherent. I especially love this one where he devotes 2/3 of a page (see PDF page 12) to quote the denouement of The Emperor's New Clothes, by Hans Christian Andersen, to cinch his argument about the state's legal position. Wow, after reading that tale, which no one had ever thought of before, the courts must agree! What a powerful legal argument to make in a gun case!

I know that I'm not an attorney. I don't file court cases. I don't give legal advice. If I have a serious legal matter, I hire a serious and qualified attorney. If I have a serious health matter, I hire a serious and qualified medical doctor. When I file tax documents, I hire a serious and qualified CPA. This is normal smart sane person behavior.
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  #377  
Old 02-15-2018, 11:48 AM
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Thanks!

Do you know where (what YT channel) will have the entire oral arguments posted if you can't watch it live on Thursday and have to watch it later?
The Ninth Circuit will post it late the same day or the next day. I will post it when they do
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  #378  
Old 02-15-2018, 3:21 PM
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Yeah his briefs are incoherent. I especially love this one where he devotes 2/3 of a page (see PDF page 12) to quote the denouement of The Emperor's New Clothes, by Hans Christian Andersen....
I especially like his opening brief (at your "incoherent" link), where in his Introduction (pages 4 - 10) he goes over the racist history of CA's carry laws only to say, near the bottom of p. 9, that he's not going to argue any of that in this case! I'm sure the judges appreciate him wasting their valuable time.

Then he continues to say that the reason he's not going to argue that, even though he could win on it, is because, basically, the courts and the state legislature will collude to screw the little guy. Not the best approach to those who will be standing in judgement of your case.

Oh well, we will see what we will see.

I try not to trash Nichols since, like it or not, he has the ear of CA9....
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  #379  
Old 02-15-2018, 3:46 PM
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https://www.youtube.com/watch?v=V2z808dHuIo&t=15s

It starts at about 1:25 minutes. It goes downhill pretty fast. The Hawaii Panel seemed much more sympathetic to the argument that Heller established some 2A right to "carry" outside the home. This panel seemed not to think so. But it is very difficult to really read the judges.
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Old 02-15-2018, 5:07 PM
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Here is the direct link to just Nichols argument

https://www.youtube.com/watch?v=l1z7...&feature=share
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Old 02-15-2018, 5:36 PM
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Here is the direct link to just Nichols argument

https://www.youtube.com/watch?v=l1z7...&feature=share
Thanks.



The most important point I got out of watching the orals is that this panel is, hopefully, going to wait until the Young v. Hawaii panel publishes its decision, even though CA would like it to proceed independently. (See 19 min into the video.)
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  #382  
Old 02-15-2018, 5:40 PM
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This panel seemed not to think so. But it is very difficult to really read the judges.
? Piece of cake. Use the KCBrown method. The judgment will be 2-1, we lose. The only question is what kind of shenanigans will they come up with for the judgment.

KCBrown method = look up the judges by name. Figure out who appointed them. 100% of democratic appointees will vote against gun issues. ~2/3's of republican appointees will vote for them. It's damn easy and freaky accurate.
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US Circuit Courts of Appeal have no deadlines; they work on what they want, when they want. The 9th also seems sometimes to Make Stuff Up in their opinions.
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  #383  
Old 02-15-2018, 5:42 PM
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Originally Posted by spalterego View Post
https://www.youtube.com/watch?v=V2z808dHuIo&t=15s

It starts at about 1:25 minutes. It goes downhill pretty fast. The Hawaii Panel seemed much more sympathetic to the argument that Heller established some 2A right to "carry" outside the home. This panel seemed not to think so. But it is very difficult to really read the judges.
\
Technically speaking, Heller does NOT establish a right to "bear" outside the home. Scalia said, in dicta, that the right to "keep" and the right to "bear" are separate rights, and the right to bear implies that there is a right to carry arms on one's person for the purpose of immediate self defense--but that is not a HOLDING of Heller, no matter how fervently Mr. Nichols believes it to be. On the other hand, the State in the Peruta orals admitted that there is a right to bear out side the home., the parameters of which were those enunciated under the Penal Code, i.e., a right cabined by the power of state regulatory (police) power in the interest of public safety.
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Old 02-15-2018, 8:22 PM
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Nichols did well, especially for a non lawyer.

The most important question was when the center judge (the most active on the panel) asked deputy atty general if it was correct that loaded open carry was legal from statehood until around 1960. She really forced him to answer and he agreed. The loaded open carry ban is not a longstanding law and Nichols did a good job explaining in his briefs how the open carry ban coupled with the “may” issue concealed scheme was super racist mainly against black Americans and basically all asian Americans from anywhere east of Sacramento.

The real question what does Judge Thomas think?!
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Old 02-16-2018, 12:56 PM
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The real question what does Judge Thomas think?!
Judge Thomas thinks all guns should be banned, that carrying in public is a threat to public safety, and that any restriction on the right to keep and bear arms passes his version of "intermediate scrutiny," i.e., if the public passes the law, it's good enough for him (which for legal scholars amounts to rational basis review, the lowest level of constitutional scrutiny).

Justice Thomas on the other hand, believes quite the opposite.
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Old 02-16-2018, 2:43 PM
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I would say expect a loss for Nichols.

You could tell from when he started speaking they already had contempt for him because he was not an attorney.

Notice that when the Deputy AG was speaking, Judge Berzon (center) was eating (crunching) the ice from her glass twice. Another sign that she felt that Nichols should not have been before her.

They also let the Deputy AG go over time and was glad because he was helping them write their decision.

It was like a love fest between the two women judges (both appointed by Democrat Presidents) and the State of California. Look how they both were laughing and Bybee was not. Berzon even looked over at him as if he should be laughing with them.

Nice try Nichols
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Old 02-19-2018, 5:36 AM
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Lemme get this straight. Gorsuch was sufficiently settled in that he was able to join a dissent to denial of cert in Peruta, but wasn't sufficiently settled in to even pen a dissent to the later denial of cert in Norman, or to even convince any of the others (at least one of whom, according to you, must have taken the position in Heller that Norman argued for) to pen such? Seriously???



I must say, I'm impressed. You have even greater optimism than IVC. That takes talent.

Yes, that's my opinion. Newbies, even newbies as old as Justice Gorsuch, frequently need a 'settling in' time. Also, I think Gorsuch is playing a waiting game. The Notorious RBG ain't died yet and Kennedy isn't solidly on our side. Resolving the issue for all time calls for cauthion and strategy. And the seating of another Justice who believes in obeying the US Constitution. Which hasn't happened. Yet.


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Originally Posted by TruOil View Post
Narrow IS the word for the result; all you have to do is look at one of the maps prepared detailing the extent of GFSZ in various cities in California. The simply FACT of the matter is that there are very few areas that are NOT in a GFSZ. And that is what I meant by "narrow": it is a right that can barely be exercised in the only places it matters, within urban (incorporated) areas. Porbably 80% of San Francisco is in a GFSZ in one way or another, and you can't go anywhere without entering one. I for one live in a GFSZ. Extending a questionable Superior Court Appellate Department that held that unfenced front yards are "semipublic" areas where the concealed carry law applies, I still will not be able to walk out my front door with a firearm that's not unloaded and in a locked case if Nichols prevails. As it is, I can carry all I want in my backyard, but who cares?
I should clarify my words from before. Yes, if Mr Nichols succeeds, we won't be able to bear in large swaths of 'Frisco, and this will be the case in lots of other places. But "narrow" isn't the word to use because he's not attacking the 'where' carry can be done, only the 'if' it can be done. But, if Mr Nichols wins, it will part of the ammo used to undo the GFSZs. And of course, a great big all-singing, all-dancing Ruling just ain't gonna happen. The Right will come to us in the same way it left, by bits and pieces. Success by Mr Nichols will give a pretty big 'piece.'


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Originally Posted by TruOil View Post
Really? REALLY? I cannot see ANY court overturning the law. It's for the children! Getting rid of sentencing enhancements is a long way away from eliminating GFSZs.

As I pointed out before, while GFSZs are "for the children!" (and therefore something big in the hearts of "Liberals") it also works against People of Color, which is also big in the hearts of "Liberals." That's why there's "Liberals" working to end them. This, coupled with carry being recognized as a Constitutinal Right (IF that happens), will (I predict) end them.


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Originally Posted by TruOil View Post
Being clear on what he wants is not a harginger of getting a petition for cert granted. There are plenty of petitions that are quite clear, including Peruta, where one of the critical issues, presented again in Silvester, is the fact that the Ninth Circus has essentially ignored Heller's admonitions as to the proper way to analyze these cases by simply pasting an "intermediate scrutiny" label on what is exactly the same as a rational basis review.

I never said that "being clear" would be a harbringer for getting cert. I pointed out that you're attacking Mr Nichols over issues that he's not fighting. Things that have nothing to do with the issue he IS fighting.


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Originally Posted by TruOil View Post
SIGH! This stupid argument has been shot down so many times that I am tired of repeating it. Heller did not say ANYTHING about the manner of carry outside the home. It cited--but did not adopt--state court cases containing such language, but all of that is "mere dicta," not binding on any court. Heller was not a "carry outside the home" case, and its decision cannot be construed as deciding an issue that was never presented to it. I assume that you are familiar with Norman, a case where the Florida Supreme Court upheld an open carry ban, and the U.S. Supreme Court denied cert. If you are right, then you are saying that SCOTUS allowed a clear constitutional error to remain, even though, as with the taser case from Massachusetts, the case could have been reversed on summary disposition if Heller had really said what you and Nichols so desperately believe it said.

SIGH! Of course Heller didn't decide anything about "and bear" outside the home. Just as, also of course, the citation of Nunn was just dicta.

BUT, dicta DOES matter. Each and every Carry case that the right people have put HUGE amounts of time, effort and money into has been shot down because each and every Circuit has cited the same parts of Heller that I (and Mr Nichols) have cited. You think it a stupid argument. But sure as hell the Circuits don't.

What IS "stupid" (IMHO) is making what is essentially the same argument again and again and again, and crying about getting the same result. If the right people don't like the idea of a non-lawyer litigating a pure Open Carry case, the solution is completly obvious; They could (and SHOULD) have litigated one themselves. ESPECIALLY after they got shot down the first time.

As for Norman, the 'field of battle' isn't as simple as it was the taser matter. That means we don't have 9-0 clarity. Also, Norman involved a GUN, not a taser. For those that hate guns, and HATE the US Constitution (like the Notorious RBG), they're quite happy to have any and all carry cases shot down. So the comparison isn't even remotely apt.


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Originally Posted by press1280 View Post
Gorsuch's dissent in Peruta tells me he's fine with the state choosing shall issue CCW over an OC only scheme, and tells me he's fine with Florida's scheme (although it's possible up to 3 justices voted to hear but didn't bother with a dissent).

Possibly. Or, possibly, he's being strategic in his thinking. Also to be considered, the vote was not a Ruling on the matter, but merely a vote to hear the matter. Ther's nothing to stop him (and the others who do respect the US Constitution) from Holding that SCofLa erred and that Shall Issue does not conform to the US Constitution, but that Open Carry does. I'm not a fly on the wall of where this gets discussed, nor do I know one.


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Originally Posted by CCWFacts View Post
Yeah, as I've been saying all along, Nichols is doing this for his ego, never mind what harm he does to gun rights. He's not on our side. He's on his own side. How could he do well? He's not an attorney. If someone gave me a violin solo at the LA Philharmonic, I would also not do well. It takes many years of hard work and expert professional training and innate talent to be able to do a violin solo. I don't have any of those so I would fail. The only bad thing is I would embarrass myself and waste the time of the audience. Unfortunately, Nichols has a lot more at risk than just making a fool of himself. And doing a good argument in front of a court is much like doing a good violin solo: it takes years of expert professional training, years of hard work, and innate talent, and Nichols has NONE of those things.

Your analogy is apt.

But, Mr Nichols is at least playing the correct tune. The Right People may have those years of experience and whatever, but if the contest is about playing Beethoven's Fifth, and they play Beethoven's Ninth, they're for sure going to lose (and this is where I point out THAT THEY HAVE). Whereas, if Mr Nichols is the ONLY guy playing Beethoven's Fifth, the odds are he'll win.

...-


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  #388  
Old 02-19-2018, 2:35 PM
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Originally Posted by Mulay El Raisuli View Post


As I pointed out before, while GFSZs are "for the children!" (and therefore something big in the hearts of "Liberals") it also works against People of Color, which is also big in the hearts of "Liberals." That's why there's "Liberals" working to end them. This, coupled with carry being recognized as a Constitutinal Right (IF that happens), will (I predict) end them.
Dream on. The solution, of course, is to "harden" schools, but this last school was hardened--at least until the fire alarm was pulled and unlocked all the doors. But "commonsense" gun control advocates can't seem to see that, instead increasing the restrictions on lawful carry. Just like California banned CCW holders from carrying on any campus anywhere in the state, despite a total absence of any evidence that any such h9older has ever committed a crime.








[/QUOTE]SIGH! Of course Heller didn't decide anything about "and bear" outside the home. Just as, also of course, the citation of Nunn was just dicta.[/QUOTE]

If Heller doesn't so hold, why does Mr. Nichols continue to argue that it does?



[/QUOTE]But, Mr Nichols is at least playing the correct tune. The Right People may have those years of experience and whatever, but if the contest is about playing Beethoven's Fifth, and they play Beethoven's Ninth, they're for sure going to lose (and this is where I point out THAT THEY HAVE). Whereas, if Mr Nichols is the ONLY guy playing Beethoven's Fifth, the odds are he'll win.[/QUOTE]

What if he wins in the sense that the Ninth is forced to recognize the right, but further holds that it is subject to "reasonable restrictions" in the public interest, which of course, will include every incorporated city and ton in the entire state? Don't you think, given this court's past history of applying a rational basis analysis (while calling it intermediate scrutiny), that this is the most likely outcome? And if this is indeed the result, any attack on GFSZs would be entirely fruitless. And yet again, we are faced with the same old issue: we cannot win any of these cases until the Supreme court intervenes and instructs lower courts in no uncertain terms as to the applicable standard of review, and more importantly, the manner in which that standard is to be applied. As things stand right now, the liberal circuits are applying the same sliding scale analysis that Scalia specifically rejected in Heller.
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  #389  
Old 02-20-2018, 3:09 AM
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Originally Posted by Mulay El Raisuli View Post
Yes, that's my opinion. Newbies, even newbies as old as Justice Gorsuch, frequently need a 'settling in' time. Also, I think Gorsuch is playing a waiting game. The Notorious RBG ain't died yet and Kennedy isn't solidly on our side. Resolving the issue for all time calls for cauthion and strategy. And the seating of another Justice who believes in obeying the US Constitution. Which hasn't happened. Yet.
Firstly, Gorsuch was "settled in" enough to join Thomas in Peruta. Norman was denied cert a full five months later. It's quite a stretch to claim that Gorsuch was still "settling in" after that kind of time and activity. But presuming that to be plausible anyway, I went and looked to see if there were any Supreme Court decisions in that time frame (in the time period between when Peruta was denied cert and when Norman was) that Gorsuch had actually joined. And there were. Here are but a few of them:
  • District of Columbia v Wesby
  • Hamer v Neighborhood Housing Services of Chicago
  • National Association of Manufacturers v Department of Defense
  • Artis v District of Columbia (Gorsuch actually filed a dissent in this one)
  • Pavan v Smith (Gorsuch again filed a dissent, this time against a per curiam decision)

Indeed, there were no decisions in that time frame that he didn't participate in, at least that I can tell. He looks to be a fully active sitting Justice, and has been since at least Peruta.

So Gorsuch was quite clearly sufficiently "settled in", seeing how he was completely active in other cases during the same time frame.

Therefore, the fact that Gorsuch didn't even bother to pen a dissent quite clearly means that he does not care enough about the Norman argument (a.k.a. your argument) to even convince someone who you implicitly claim must support that argument (seeing how you claim that SCOTUS said that which Norman argues) to pen a dissent, much less to pen one of his own.


Secondly, Gorsuch has clearly already shown part of his hand, seeing how he joined Thomas in his dissent against Peruta's denial of cert. There is absolutely no advantage to failing to write a dissent to denial of cert in Norman, since that does not affect the outcome (i.e., does not prevent such denial). Gorsuch could easily have penned a dissent that says that the argument in Norman is correct, and could perhaps even more easily have convinced one of the other justices (e.g., Thomas) to do that, especially if (as you must claim) that other justice agreed with the Norman argument. He did neither.


No, sir. Your argument is now officially dead in the water at SCOTUS. Your argument thus cannot now be that SCOTUS said what you claim, since SCOTUS has clearly divested itself of it. You can now only argue (at most) that Scalia said it. But the support of one (now dead) justice is not sufficient, especially when his replacement doesn't take up that mantle.

You can, of course, continue to believe in the argument that you continue to put forth. Everyone is entitled to believe what they wish, even when the real world clearly contradicts it. But your argument is now a faith-based one, equivalent to a religious assertion, and not a logical argument with supporting evidence, since the unanimous and unequivocal evidence is against it.
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Old 02-20-2018, 10:54 AM
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Can't wait for Nichols to be done away with and no gain of liberty so I can see read an explanation of our path to judicial victory that puts to shame anything in the fantasy or science fiction genres!
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Old 02-21-2018, 8:21 PM
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I especially like his opening brief (at your "incoherent" link), where in his Introduction (pages 4 - 10) he goes over the racist history of CA's carry laws only to say, near the bottom of p. 9, that he's not going to argue any of that in this case! I'm sure the judges appreciate him wasting their valuable time.
That part is hilarious, especially because it includes not just one, but three pictures of the armed Black Panthers who visited California and Washington's state capitols. We needed that in there because... because of nothing! He's not using that in the legal argument at all!

Then he goes on with pages of rambling where he quotes a whole bunch of statues at length. It's like he thought there's a minimum page requirement, so why not fill it with excessive quotes of statutes and pictures of Black Panthers?

He goes over so many pages on so many different legal subjects, with diversions of sharing his wisdom about the useful range of pistols vs shotguns, that it's hard to follow what his point is. I admit I skimmed.

This other one is great where (PDF page 23) he goes into detail of his violations of the law by open carrying loaded guns. (Typos mine, as the PDF is from a scan that was not OCRed. Click to page 23 to read.)

Quote:
Originally Posted by Nichols brief
Plaintiff has frequently and countless times violated California Penal Code Section 25850, the Redondo Beach City Ordinances and other California statutes prohibiting firearms from being carried in non-sensitive public places. Plaintiff continues to violate California Penal Code Section 25850.. on the 7th day of every month by carrying a firearm (a holstered handgun, rifle or shotgun of a type in common use by the public) in a public place. Plaintiff will violate California Penal Code Sections 25850, 26350, 26400, and the Redondo Beach City Ordinances and other California statutues prohibiting firearms from being carried in public places on August 7, 2013 in the same location in the Ctiy of Redondo Beach where he was prevented from openly carrying a firearm under threat of arrest on August 7, 2010 ... Plaintiff will then proceed from the Redondo Beach Pier and environs to the South Bay Shopping Center in the City of Redondo Beach to do some shopping. Plaintiff will then ... visit relative in Torrance ...where he will openly carry firearms along the public streets and on the public sidewalks... Plaintiff will openly carry a loaded holstered handgun, loaded rifle and loaded shotgun of a type in common use by the public. ....
I found a picture of Plaintiff on his open carry walks:

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Old 02-27-2018, 8:30 PM
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ORDER

Before: BERZON and BYBEE, Circuit Judges, and GLEASON,*
District Judge.
Submission of this case is vacated pending issuance of a decision in Young
v. State of Hawai’i, No. 12-17808.
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  #393  
Old 02-28-2018, 2:25 PM
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Originally Posted by wolfwood View Post
ORDER

Before: BERZON and BYBEE, Circuit Judges, and GLEASON,*
District Judge.
Submission of this case is vacated pending issuance of a decision in Young
v. State of Hawai’i, No. 12-17808.
Personally, I think this is a beneficial development, just in consideration of the makeup of the two panels. Then again, Nichols' case is distinguishable to a certain degree, which may lay the ground for a different conclusion under California law than Hawai'i law.
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  #394  
Old 02-28-2018, 2:40 PM
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Personally, I think this is a beneficial development, just in consideration of the makeup of the two panels. Then again, Nichols' case is distinguishable to a certain degree, which may lay the ground for a different conclusion under California law than Hawai'i law.
The right denied using one justification versus the right denied using a different one?
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  #395  
Old 02-28-2018, 3:10 PM
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Pretty clear what's going on here.

1. CA does not like how things went in HI, and wanted to force the issue before the more hostile justice Nichols encountered during his hearing and toss a wrench into the consideration dicusssion for Young.

2. That got rejected - now we are waiting on Young.

3. A betting wise man say: "CA is already manning the typewriters typing up an en-banc request ahead of time in anticipation of an unfavorable decision by the justices in the Young case."

4. Should that happen . . . CA 9 is locked tight in a corner like a rabid rat with three choices:


A. Admit Heller got it right - strike down bans on open carry per se.

B. Uphold the bans claiming Heller got it wrong and risk a cert.

C. Weasel with the public safety argument and strike down the Unloaded Open Carry ban only.



My bet hasn't changed.

"A" ain't happening . . . The "Elites" in CA simply will not tolerate that.
"B" ain't happening . . . Peruta decision is a strong indicator of that.
"C" is the likely scenario . . . SCOTUS will reject cert from Nichols as his case will no longer be a "pure" case.

As a side note, gotta like that one judge for Young:

"But that's a security guard . . ."

=8-)
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  #396  
Old 02-28-2018, 3:59 PM
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4. Should that happen . . . CA 9 is locked tight in a corner like a rabid rat with three choices:


A. Admit Heller got it right - strike down bans on open carry per se.

B. Uphold the bans claiming Heller got it wrong and risk a cert.

C. Weasel with the public safety argument and strike down the Unloaded Open Carry ban only.
Option B (sans the claim about Heller -- see below) covers quite a lot of ground, and is by far the most likely outcome. But "risk" of cert? Really? After everything we've seen? Bwahahahaha!!!

Note that the court doesn't even have to say anything about Heller getting anything wrong in order to uphold the bans, and therefore won't say anything about Heller being wrong. They'll uphold the bans because they pass "intermediate scrutiny" and because the right is "satisfied" as long as there exists the mere possibility that the state might approve a permit to carry. They might even go on to say that as long as some people are able to carry, the right is "satisfied". I'm wondering just how long it'll be before the court claims that because law enforcement officers are citizens and can carry, the right is "satisfied"...
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  #397  
Old 03-01-2018, 5:42 AM
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Originally Posted by TruOil View Post
If Heller doesn't so hold, why does Mr. Nichols continue to argue that it does?

Because dicta matters. So, while Heller didn't RULE that Open Carry is the Protected Right, by citing Nunn, etc, it sent a pretty big hint that OC was the only manner of "and bear" that they would support. ALL of the Circuits (and me, BTW) took that hint. That's why ALL of the Circuits denied each and every case we sent them, and is why my predictions that that is exactly what they would do have come true.


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Originally Posted by TruOil View Post
What if he wins in the sense that the Ninth is forced to recognize the right, but further holds that it is subject to "reasonable restrictions" in the public interest, which of course, will include every incorporated city and ton in the entire state? Don't you think, given this court's past history of applying a rational basis analysis (while calling it intermediate scrutiny), that this is the most likely outcome? And if this is indeed the result, any attack on GFSZs would be entirely fruitless. And yet again, we are faced with the same old issue: we cannot win any of these cases until the Supreme court intervenes and instructs lower courts in no uncertain terms as to the applicable standard of review, and more importantly, the manner in which that standard is to be applied. As things stand right now, the liberal circuits are applying the same sliding scale analysis that Scalia specifically rejected in Heller.

Even if that happens (which I don't think will happen, but agree is possible), it would still be a better result than any of the Right People have gotten in the last ten years. Who, you'll recall, have been doing nothing but offering a big 'ol heaping of FAIL ever since Heller did NOT say anything about "the state gets to choose the manner of 'and bear.'"

My guess isn't that the GFSZs will fall just because having of OC recognized as the Right. But that recognition, coupled with the efforts of others on The Left to have them struck down (because it gets People of Color extra years in the House of Many Doors for drug dealing) will do the trick.


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Originally Posted by kcbrown View Post
snip

No, sir. Your argument is now officially dead in the water at SCOTUS. Your argument thus cannot now be that SCOTUS said what you claim, since SCOTUS has clearly divested itself of it. You can now only argue (at most) that Scalia said it. But the support of one (now dead) justice is not sufficient, especially when his replacement doesn't take up that mantle.

You can, of course, continue to believe in the argument that you continue to put forth. Everyone is entitled to believe what they wish, even when the real world clearly contradicts it. But your argument is now a faith-based one, equivalent to a religious assertion, and not a logical argument with supporting evidence, since the unanimous and unequivocal evidence is against it.

It was always a faith-based argument. One now, I must agree, is DOA.

SIGH!


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Originally Posted by wolfwood View Post
ORDER

Before: BERZON and BYBEE, Circuit Judges, and GLEASON,*
District Judge.
Submission of this case is vacated pending issuance of a decision in Young
v. State of Hawai’i, No. 12-17808.

I admit I haven't been following Young. What does this mean, do you think?


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  #398  
Old 03-01-2018, 7:20 AM
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It doesn’t matter if the wrong or right people file the suit. It doesn’t matter if the briefs are rambling or concise. We will lose every case in the 9th and SCOTUS will deny cert.

The only result is another ruling against the 2A, that builds precedence that will have to be overcome at a later date. Is it even worth continuing these cases at this point?
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Old 03-01-2018, 8:20 AM
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Originally Posted by Mulay El Raisuli View Post
It was always a faith-based argument. One now, I must agree, is DOA.

SIGH!
Well, I certainly realize that you always had faith in that argument. But interestingly enough, I didn't regard it as being a faith-based argument in the beginning, or even until relatively recently. Absent evidence to the contrary, it always had some plausibility, because it was just an interpretation of Heller like so many others (not the most well-supported interpretation, to be sure, but not entirely implausible, either).

The difference between now and before is that we do have evidence, in the form of Thomas' dissent to denial of cert in Peruta and most especially the way Norman was denied cert without so much as a comment in protest. The former cast grave doubt on the argument. The latter put a stake through its heart. Once you have substantial evidence like that against an argument, continued belief in that argument requires faith that overrides evidence and logic, thus making it "faith-based". But it's not until the point where the evidence refutes the (otherwise plausible) argument that it can legitimately be regarded as "faith-based".

So you shouldn't feel bad, at all, for getting behind the argument! Most certainly, both state courts and even the earlier Supreme Court (see Baldwin) insisted that open carry is the only protected mode of carry under the 2nd Amendment and other equivalent state provisions, so it's not like there isn't any plausibility to that interpretation. Indeed, it was sufficiently plausible that an entire case (Norman) was essentially dedicated to it. It's just that courts are political before they are anything else, so the end result is going to be whatever the players on the court want it to be, and nothing else. It's now clear that the players don't like open carry and don't want to explicitly protect it (indeed, it looks like they don't want to, as a group, protect anything at all except for poor homeless women wielding nonlethal weapons).
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Old 03-01-2018, 8:27 AM
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Originally Posted by Bhobbs View Post
It doesn’t matter if the wrong or right people file the suit. It doesn’t matter if the briefs are rambling or concise. We will lose every case in the 9th and SCOTUS will deny cert.

The only result is another ruling against the 2A, that builds precedence that will have to be overcome at a later date. Is it even worth continuing these cases at this point?
At this point, there is only one primary legitimate reason for continuing to file cases: anticipation of a significant compositional change in the Supreme Court.

That said, failure to successfully challenge laws runs the risk of those laws becoming "longstanding" and, thus, being bootstrapped into Constitutionality even in the face of a "conservative" court, so there comes a point where there's no real alternative but to challenge the law. Once a law becomes "longstanding", equivalent laws that are passed in other jurisdictions later will inherit that "longstanding" attribute. So we have to challenge those laws before that happens, regardless of the judicial climate.
__________________
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.
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