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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 11-27-2012, 8:06 AM
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Thumbs down Kachalsky - CA2 Decision is out - Loss

Kachalsky et al. v. Cty. of Westchester et al.

The decision of the district court is affirmed. See this thread for further details.

The CA2 panel did exactly what many of us thought. Although the suit was aimed at carry in public, as part and parcel of the right, the court looked only at concealed carry and concluded that the NY State law was a valid regulation. This, regardless of the fact that open carry is completely banned. The court sweeps past this with barely any regard at all.

The court does spend 2 pages of writing on why they will not address 2A concerns by importing certain 1A standards. This, despite the fact that the CA4 and CA3 (and even another CA2 panel - US v. DeCastro) did import some of that reasoning.

The core of the right, as seen by this CA2 panel, is "in the home." Anything else deserves less scrutiny. Here, the court couches its "reasonable regulation" in terms of intermediate scrutiny. This, like so many district court decisions is nothing more than rational basis in which the law stands.
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Old 11-27-2012, 8:37 AM
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Al Norris, that was a spectacular opening post to that thread on The Firing Line.
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  #3  
Old 11-27-2012, 8:50 AM
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So what's next with this case? Appeal?
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Old 11-27-2012, 8:51 AM
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Depressing. The court pretty much shot down a 1st amendment challenge without it being at the core of the challenge to the 2nd. While they didn't say you couldn't carry a firearm as a demonstration of a 2nd amendment right, they chiseled a pathway for that to happen in the future.
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Old 11-27-2012, 8:52 AM
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Thanks.

What makes this decision really bad, is that the law in MD is very similar. The CA4 in Woollard might well use the CA2 decision in overturning Judge Legg's decision at district court.

This constant harping about punting to the Supreme Court, as if it was the Court of First Impression, is getting old. Especially when the circuit courts say the same thing.

I sincerely hope that Justice Scalia and Justice Thomas are following these escapades.
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Old 11-27-2012, 9:31 AM
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My questions are on the timing. I think a lot of us are not at all surprised by a loss.

Are they going to appeal in time to have a shot at getting cert for this session of SCOTUS?

Is it likely that they are going to ask for en banc resulting in further delay?

Just wondering. . .
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Old 11-27-2012, 9:36 AM
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Frankly, I'm very surprised they issued an opinion this "early". This means we can appeal to SCOTUS immediately. And this is an Alan Gura case, so it is well-targeted.

Now, that said, it should be clear to all of you by now that the lower courts are going to continue to use the Supreme Court as the effective "court of first resort" and act, merely, as delaying and expense-adding mechanisms for getting a real decision (see Osterweil v Bartlett). Even after the Supreme Court weighs in on the issue of public carry, you can expect cases that are the same as this one in all the ways that matter to have to go to SCOTUS for resolution. SCOTUS will be forced to rule on the merits of all those cases, as was the case in NAACP v Alabama.


Regardless, it is very heartening that the 2nd Circuit gave us the "loss" and thus give us the opportunity to appeal to SCOTUS for a ruling. A certain quote comes to mind on this. What was it? Ah, yes: "please, please don't throw me into that briar patch!".
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  #8  
Old 11-27-2012, 9:36 AM
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At the moment, delay is the only viable strategy the prohibitionists have. Avoid meaningful decisions until the Supreme Court changes or until our frustration breaks.
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Old 11-27-2012, 9:41 AM
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If they go to SCOTUS I hope it's quickly before Obama can get his grubby hands on a new appointment or two.
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Old 11-27-2012, 10:17 AM
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Actually, this seems like GOOD news.

They have set themselves up to be reversed by the Supreme Court. If, as mentioned above, this is an Alan Gura case, he has a history of taking 2A to the highest court and WINNING. That win sets us up in a good position nationwide, including here in CA.

It seems like our prayers are being answered and the anti's keep pitching us slow balls right over the plate in the strike zone. Couldn't ask for better!
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Old 11-27-2012, 10:33 AM
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Seriously. The more glaringly deficient the CA2 decision is, the better it is for us.

Believe it or not, this is probably the best case outcome.
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Old 11-27-2012, 10:42 AM
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Originally Posted by curtisfong View Post
Seriously. The more glaringly deficient the CA2 decision is, the better it is for us.

Believe it or not, this is probably the best case outcome.
Not if SCOTUS finds the decision so bad that they simply decide to reverse and remand. Then we get to stay on this merry-go-round even longer.
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Old 11-27-2012, 10:44 AM
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SCOTUS is going down the tubes. They wont side for us any more.
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Old 11-27-2012, 10:45 AM
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SCOTUS is going down the tubes. They wont side for us any more.
There's still time to squeak one more win out of them. But after that, you're right, we're screwed.
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Old 11-27-2012, 10:46 AM
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Not if SCOTUS finds the decision so bad that they simply decide to reverse and remand. Then we get to stay on this merry-go-round even longer.
Even I am skeptical that SCOTUS would do that. GVR requires that there be prior SCOTUS guidance on the issue, but for this there is effectively none. This case is all about the right to keep and bear arms in public, something that was never explicitly addressed in Heller.

It's possible (likely, even) that SCOTUS will hear the case, issue a ruling, and then remand for further proceedings, but they will give guidance one way or the other, and that requires that they rule on the merits.


No, the two most likely scenarios are that they rule on the merits, or they deny cert altogether. I'm hopeful they won't deny cert, but won't be surprised at all if they do -- they may be waiting for Moore or its equivalent, which is a more "pure" case than this.
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  #16  
Old 11-27-2012, 10:55 AM
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An interesting question is whether they'll rule strongly enough to minimize the nullification of the ruling by deliberate noncompliance of the lower courts following it.
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Old 11-27-2012, 11:00 AM
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An interesting question is whether they'll rule strongly enough to minimize the nullification of the ruling by deliberate noncompliance of the lower courts following it.
There is no such kind of ruling, short of one in which they directly threaten the lower court judges with jail or something. I am unaware of any case in the history of the Court in which they issue such a ruling against lower court judges (but that isn't necessarily saying much, as my knowledge of SCOTUS cases in general is so far from encyclopedic that it might be regarded as laughably vacant).
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  #18  
Old 11-27-2012, 11:26 AM
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They could make such a ruling by stating the possible rebuttals, excuses, and sidesteps and thoroughly squash them explicitly one by one. They might be in the habit of issuing airtight rulings but it can be done if they're willing and thinking ahead.
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Old 11-27-2012, 11:30 AM
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Might not be, that is.
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Old 11-27-2012, 11:35 AM
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It doesn't necessarily have to be a Kachalsky RVR (reverse vacate remand), it could be any one of six other U.S. Court of Appeals cases that go to SCOTUS on certiorari. Remember, these cases are designed for SCOTUS.

Erik.
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Old 11-27-2012, 11:42 AM
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Well, it might not have to be one vs. another in theory, but I concur with kc's conclusion that the worst offending states will need to be told specifically THIS MEANS YOU AND NO FURTHER SCREWING AROUND, I DON'T CARE IF YOU DON'T LIKE IT, ISSUE THE DAMN PERMITS TODAY. I just hope they see this situation for what it is and no more of this "nothing in this shall cast doubt on longstanding..." nonsense.
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Old 11-27-2012, 11:57 AM
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I hate to be Mr. Pessimist,but it must be said all the same:attaching concealed carry to the 2nd Amendment as a fundamental right just ain't gonna fly.Our culture is to regressive for a lower court to do anything different than observe the status quo.That norm is this:basically,you can own a gun AT HOME as an exercise of your 2nd Amendment rights,but once you cross the property line you're in the public domain,where Big Government has the " duty" to ensure public safety at the expense of individual rights if the same government deems it necessary.

Since public safety is a "government prerogative" ,it can regulate gun use and possession all the way up to a complete CCW ban if it feels the need. If a total prohibition akin to Illinois' passes legal muster, then naturally discretionary issue becomes immune to legal challenge. Equal rights and treatment under the law becomes an irrelevant canard when carrying in public is a government issued privilege instead of a codified right as gun ownership at home is.
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Old 11-27-2012, 12:19 PM
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Quote:
Originally Posted by kcbrown View Post
Frankly, I'm very surprised they issued an opinion this "early". This means we can appeal to SCOTUS immediately. And this is an Alan Gura case, so it is well-targeted.

Now, that said, it should be clear to all of you by now that the lower courts are going to continue to use the Supreme Court as the effective "court of first resort" and act, merely, as delaying and expense-adding mechanisms for getting a real decision (see Osterweil v Bartlett). Even after the Supreme Court weighs in on the issue of public carry, you can expect cases that are the same as this one in all the ways that matter to have to go to SCOTUS for resolution. SCOTUS will be forced to rule on the merits of all those cases, as was the case in NAACP v Alabama.


Regardless, it is very heartening that the 2nd Circuit gave us the "loss" and thus give us the opportunity to appeal to SCOTUS for a ruling. A certain quote comes to mind on this. What was it? Ah, yes: "please, please don't throw me into that briar patch!".

So does this mean Kachalsky just jumped to the head of the pack and could even go before SCOTUS this session if we (Gura, etc) act quickly?

Do I detect a small amount of uncharacteristic optimism in your post KC?

On all the other similar cases that will continue to be kicked up to SCOTUS after a "bear arms" decision, wouldn't SCOTUS likely just quickly reverse & remand those rather than basically hearing the same case over again?


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Originally Posted by SilverTauron View Post
I hate to be Mr. Pessimist,but it must be said all the same:attaching concealed carry to the 2nd Amendment as a fundamental right just ain't gonna fly.Our culture is to regressive for a lower court to do anything different than observe the status quo.That norm is this:basically,you can own a gun AT HOME as an exercise of your 2nd Amendment rights,but once you cross the property line you're in the public domain,where Big Government has the " duty" to ensure public safety at the expense of individual rights if the same government deems it necessary.

Since public safety is a "government prerogative" ,it can regulate gun use and possession all the way up to a complete CCW ban if it feels the need. If a total prohibition akin to Illinois' passes legal muster, then naturally discretionary issue becomes immune to legal challenge. Equal rights and treatment under the law becomes an irrelevant canard when carrying in public is a government issued privilege instead of a codified right as gun ownership at home is.
Then what exactly does "bear arms" refer to? I believe SCOTUS will say banning concealed carry is just fine...... as long as alternative forms of carry for all law abiding people are available.
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Old 11-27-2012, 12:20 PM
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Originally Posted by SilverTauron View Post
I hate to be Mr. Pessimist,but it must be said all the same:attaching concealed carry to the 2nd Amendment as a fundamental right just ain't gonna fly.Our culture is to regressive for a lower court to do anything different than observe the status quo.That norm is this:basically,you can own a gun AT HOME as an exercise of your 2nd Amendment rights,but once you cross the property line you're in the public domain,where Big Government has the " duty" to ensure public safety at the expense of individual rights if the same government deems it necessary.

Since public safety is a "government prerogative" ,it can regulate gun use and possession all the way up to a complete CCW ban if it feels the need. If a total prohibition akin to Illinois' passes legal muster, then naturally discretionary issue becomes immune to legal challenge. Equal rights and treatment under the law becomes an irrelevant canard when carrying in public is a government issued privilege instead of a codified right as gun ownership at home is.
I think that as the SCOTUS is currently constituted that you are wrong. There was obvious interest last session in taking a case to clean things up. The cases, however, were criminal and not clean.

The "Heller 5" seems likely to take a case and to issue a ruling which will be more consistent with the proper exercise of our rights than the circuit courts have been willing to allow. It won't be as good as I would like, but it is difficult to read Heller 1 and McDonald without thinking that they wanted a more robust right to be recognized.
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Old 11-27-2012, 12:38 PM
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Equal rights and treatment under the law becomes an irrelevant canard when carrying in public is a government issued privilege instead of a codified right as gun ownership at home is.
Not really. If it worked that way, there would still be segregation in some parts of the deep south. Equal protection is 14A and is independent of any 2A argument.

If the rest of your argument is to stand, the state would have to ban carry completely, or allow similar people to carry regardless of their political connections.
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Old 11-27-2012, 12:40 PM
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The "Heller 5" seems likely to take a case and to issue a ruling which will be more consistent with the proper exercise of our rights than the circuit courts have been willing to allow. It won't be as good as I would like, but it is difficult to read Heller 1 and McDonald without thinking that they wanted a more robust right to be recognized.
"Robust" is in the eye of the beholder. The "Heller 5" may be interested in taking a carry case so as to clarify what the " well regulated" portion of the 2nd Amendment precisely means. This can be anything from carry open & concealed being an absolute civil right, to concealed carry being a government issued privilege subject to unlimited regulation at State, local, and Federal levels in the name of public security.

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Then what exactly does "bear arms" refer to? I believe SCOTUS will say banning concealed carry is just fine...... as long as alternative forms of carry for all law abiding people are available.
I doubt they care about alternative forms of anything. Like it or not the judicial precedent is that public safety is a government prerogative-and few things are more relevant to public safety than the carrying of personal weapons. A consistent ruling is also impossible because of cultural differences between the states; a ruling of absolute carry rights will royally offend millions of urban people and force the rewrite of a metric sh-t ton of gun regulations.

By comparison, a ruling that A) states can determine the matter at their discretion or B) carry nationwide is an activity subject to regulation without limit due to the "well regulated militia" clause maintains the status quo, upsets fewer people,and clarifies the issue .

Its relevant to note that culturally speaking VERY few people actually want carry to be considered a civil right in the same manner that gun ownership period is; the theme being that while a rifle over the fireplace is kosher, that same gun owner better ask permission from SOMEONE before walking out the door with a pistol. Heck, many gun owners believe CCW shouldn't even be an option without a state mandated training process-and a SCOTUS ruling for absolute carry rights would render such regs unconstitutional.
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Old 11-27-2012, 12:47 PM
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Not really. If it worked that way, there would still be segregation in some parts of the deep south. Equal protection is 14A and is independent of any 2A argument. .
Good point , and this is true in the subject of civil rights law.

However,I direct you to the current situation at the University of Colorado where gun owners very much are "segregated" from the rest of the student body by being compelled to stay in a separate dormitory.

Another example are weapons permits in NYC. Wealthy people and politically connected residents can obtain CCW permits quite easily, while the average New Yorker has no chance in he-l of ever getting one.

Where firearms are concerned, it would seem "equal protection" is all but lip service.



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If the rest of your argument is to stand, the state would have to ban carry completely, or allow similar people to carry regardless of their political connections.
A simple way out of this conundrum would be to punt it back as a states rights issue. Put simply SCOTUS says its a state's right to decide how its residents define the right to keep and bear arms, and that's that. Places which respect the RKBA will of course continue as usual, while repressive regimes in NJ and California will hit the gas pedal on IL-style CCW bans. Note carefully that in Illinois politicians are deputized as "reserve officers" so as to dodge the state carry prohibition.
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Old 11-27-2012, 12:55 PM
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Originally Posted by SilverTauron View Post
Its relevant to note that culturally speaking VERY few people actually want carry to be considered a civil right in the same manner that gun ownership period is; the theme being that while a rifle over the fireplace is kosher, that same gun owner better ask permission from SOMEONE before walking out the door with a pistol.
The point of civil rights is that it doesn't matter what people think.

Arguably more important consequence of 2A being a recognized civil right is that those who tend to support and talk about civil rights the most also tend to hate guns and the gun culture the most. The same irony as when Google complains China is restricting them, while at the same time arbitrarily restricting gun sales themselves.

It's just a matter of time before this hypocrisy becomes too obvious to those who have "cultural unacceptance" of concepts they don't like, while pretending to be civil rights activists and open to all ideas.
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Old 11-27-2012, 1:00 PM
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However,I direct you to the current situation at the University of Colorado where gun owners very much are "segregated" from the rest of the student body by being compelled to stay in a separate dormitory.
Patience. This is an extremely new development and it has already received a lot of attention precisely for the "segregation" aspect. It takes time to untangle a big mess.

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Note carefully that in Illinois politicians are deputized as "reserve officers" so as to dodge the state carry prohibition.
Heh. Look at the Ajax thread about "reserve officers" in Montana as a way to use LEOSA and carry in all 50 states. Funny how humans always find a way to get around an injustice, even if they pretend publicly to support it...
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Old 11-27-2012, 1:05 PM
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A member of the "right" wrote this terrible opinion, despite indicating at oral argument that he agreed with us.
The higher a person achieves in appointed or elected position, the less significant their personal past affiliations and stated beliefs become. Even the great messiah obama himself has disappointed his many followers and supporters at "people" level by enabling big banks and finance institutions, furthering the war(s), and signing bills into law like NDAA. And his wishy washy words on gay marriage. Gun rights too for that matter.
The power at the top at this point, although limited in size, is positioned like a great lever.
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Old 11-27-2012, 1:06 PM
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a ruling of absolute carry rights will royally offend millions of urban people and force the rewrite of a metric sh-t ton of gun regulations.
And that's supposed to be a bad thing? Screw them. A lot of people were offended by negation of lots of laws by court decision, so only now do they care?
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Old 11-27-2012, 1:09 PM
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Originally Posted by SilverTauron View Post
I doubt they care about alternative forms of anything. Like it or not the judicial precedent is that public safety is a government prerogative-and few things are more relevant to public safety than the carrying of personal weapons. A consistent ruling is also impossible because of cultural differences between the states; a ruling of absolute carry rights will royally offend millions of urban people and force the rewrite of a metric sh-t ton of gun regulations.

By comparison, a ruling that A) states can determine the matter at their discretion or B) carry nationwide is an activity subject to regulation without limit due to the "well regulated militia" clause maintains the status quo, upsets fewer people,and clarifies the issue .

Its relevant to note that culturally speaking VERY few people actually want carry to be considered a civil right in the same manner that gun ownership period is; the theme being that while a rifle over the fireplace is kosher, that same gun owner better ask permission from SOMEONE before walking out the door with a pistol. Heck, many gun owners believe CCW shouldn't even be an option without a state mandated training process-and a SCOTUS ruling for absolute carry rights would render such regs unconstitutional.
Allowing blacks into white only schools and to sit at the front of the bus offended more people than carry rights will, it still happened, and it forced a rewrite of plenty of laws.
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Old 11-27-2012, 1:36 PM
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There's still time to squeak one more win out of them. But after that, you're right, we're screwed.
Kennedy or Scalia would need to retire or die for it to be a problem for us. I think Ginsberg or Breyer retiring or passing away (most likely for Ginsberg) in the next 4 years is much more likely. Granted, the replacement will more than likely be the most politically leftist justice ever to serve.
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Old 11-27-2012, 1:40 PM
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Allowing blacks into white only schools and to sit at the front of the bus offended more people than carry rights will, it still happened, and it forced a rewrite of plenty of laws.
....after coming >< close to Civil War #2. The governor of Arkansas-a Democrat by the way-ordered the state national guard to block black students entering Little Rock High School after the SCOTUS ruled in Brown vs Board of Education, prompting President Dwight Eisenhower to send the 101st Airborne in to restore lawful order.

Considering the intransigence of the anti-gun political lobby is just as strong as the segregationists' were in that time, assuming the SCOTUS ruled in favor of carry rights the only realistic way Sacramento, Albany, NYC, D.C.,Springfield , & Chicago would obey a carry ruling is at the point of a Federal gun

Somehow, I doubt Obama is inclined to send the US Army to those capitols when they rebel against the SCOTUS .
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Old 11-27-2012, 1:45 PM
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I said that everywhere I could. I certainly don't participate on internet forums only when they're California specific.

Of course, there were certainly plenty of supposedly pro-gun advocates out on forums with a national and international audience who were badmouthing Romney. So, you know, they won. Yay. When our gun rights go down the tubes, I'll bet they'll even have the unmitigated gall to claim they fought for those rights as hard as they could. But what they really are, are hypocrites, to put it mildly.
We need to abstain from the political commentary. Not only is it counterproductive its also pointless, because we already know millions of gun owning Americans voted for Obama. Put simply gun rights aren't a priority issue for most folks, who nowadays would just hand over the goods if the G-men came knocking tomorrow.

Incoming chest pounding molon laabe post in 5....4....3....2.....
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Old 11-27-2012, 3:14 PM
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Back on topic, is there still time to appeal this to SCOTUS for a decision in 2013?
Yes. The chance of resolution just went way up.
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Old 11-27-2012, 4:49 PM
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McDonald is settled law. If it gets to SCOTUS, I'd imagine the lower court's failure to respect precedent would not be looked kindly upon.
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Old 11-27-2012, 8:37 PM
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McDonald is settled law. If it gets to SCOTUS, I'd imagine the lower court's failure to respect precedent would not be looked kindly upon.
AFAIK, there is no precedent on carry. McDonald set the precedent for owning a handgun in the home nationwide. Other than that, the 2A is open for interpretation.

If I'm wrong, which isn't unlikely, someone correct me and I'll go back to sitting in the corner.
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Old 11-27-2012, 8:38 PM
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I go out for an afternoon errand and the thread goes off the rails.

In case you can't figure it out, this thread is about the court case.

Wanna talk about something else? Start your own thread.
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Old 11-27-2012, 8:40 PM
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I go out for an afternoon errand and the thread goes off the rails.

In case you can't figure it out, this thread is about the court case.

Wanna talk about something else? Start your own thread.
Boo!

Things were just starting to get interesting.
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