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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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  #81  
Old 12-01-2012, 10:04 AM
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No, the bottom line is this, and it's where I think Heller got it very wrong: the need for self-defense is most acute wherever you happen to be put in mortal danger by a bad guy, not at any particular place or time
Ding ding, a winner. This is a fact which must be argued. It can be sensitively contexted so as not to appear to undermine the concept of the sancitity of the home to which Heller was apparently referring. It is more true that the need is less acute in the home, but merely more historically protected. Far more lethal attacks occur outside the home where there are usually no doors and walls that must first be breached.
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  #82  
Old 12-01-2012, 10:04 AM
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Completely agree. But despite being tailored in that way, a plain reading of Heller quite clearly shows that the right to keep and bear arms exists in public, because otherwise there would be no need for a "sensitive places" doctrine.

The real problem, of course, is that the antis are going to attempt to argue that urban areas are "sensitive places" in their entirety, but a plain reading of Heller dispenses with that as well, for it calls out small and specific places that are generally deep within urban areas as being "sensitive".


No, the bottom line is this, and it's where I think Heller got it very wrong: the need for self-defense is most acute wherever you happen to be put in mortal danger by a bad guy, not at any particular place or time. That very observation quite clearly reveals the core right as existing in public, in the home, or anywhere else where one's defense has not been made an explicit and immediately available duty on the part of whoever is responsible for the place one finds himself.

That last has very specific implications, of course. It's not sufficient merely for there to be armed guards in the "sensitive place" -- they must be present everywhere one might go in the place in question, because the need for defense is immediate when it arises.
The problem isn't the need for self defense, per se. The issue with regard to carry outside the home is whether or not the Government's mandate to enforce public safety supersedes the 2nd Amendment right to individually keep and bear arms.

Our side will argue that the civil rights to keep and bear arms outside the home isn't invalidated by leaving it. The anti's will say that plenty of civil rights are regulated in public, and as such the 2nd Amendment is subject to restriction in the public domain.
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  #83  
Old 12-01-2012, 10:32 AM
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What gets lost in looking at Heller this way is that the Heller decision exists against a backdrop of legal precedents and legislative activity that provide the framework for the courts. This framework for the longest time used implied "collective interpretation" incorrectly derived from Miller and never really challenged until Heller.

If we look at the legal landscape objectively, Heller provides guidance, but the framework still needs to be built. In that respect, Heller indeed is "in the home" precedent, with a clear guidance for the future cases, but those have to be fought and won before they become the framework. Lower courts will change when the framework changes.
For the above to be strictly true, the "sensitive places" discussion must be regarded as dictum, and not an essential part of the ruling itself.
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  #84  
Old 12-01-2012, 10:33 AM
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Originally Posted by SilverTauron View Post
The problem isn't the need for self defense, per se. The issue with regard to carry outside the home is whether or not the Government's mandate to enforce public safety supersedes the 2nd Amendment right to individually keep and bear arms.

Our side will argue that the civil rights to keep and bear arms outside the home isn't invalidated by leaving it. The anti's will say that plenty of civil rights are regulated in public, and as such the 2nd Amendment is subject to restriction in the public domain.
SCOTUS will have to set the courts straight on the difference between "regulating" and de facto bans. Open carry over concealed, licensing w/training, sensitive places off limits are examples of regulating. Allowing the government to pick and choose who gets the licenses is another matter.
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  #85  
Old 12-01-2012, 10:36 AM
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Originally Posted by SilverTauron View Post
The problem isn't the need for self defense, per se. The issue with regard to carry outside the home is whether or not the Government's mandate to enforce public safety supersedes the 2nd Amendment right to individually keep and bear arms.
The problem with the above line of reasoning is that in the context of the "public safety" mandate, the need for self-defense in public arises directly from the failure of the state in its mandate to enforce public safety. And the Supreme Court has already knocked the "public safety" angle off the table by ruling that the police are not mandated to protect anyone -- they do so strictly by choice.

Which is to say, the "mandate" of the state to enforce public safety is no such thing, as per Supreme Court jurisprudence. Since enforcement of public safety is optional for the state, it follows that the state has neither the means nor the mandate to come to the rescue of someone whose life is in immediate peril, and thus to uphold the right to life. That means it is left to us as individuals, and that is where the self-defense core of the right to keep and bear arms comes into play. Because the state cannot and will not uphold the right to life when the need for such is at its greatest, we must do so for ourselves, and the 2nd Amendment as an individual right arises from that need and right.

More to the point, the state does not have the legitimate power to interfere with the right to life of the law-abiding population, but that is precisely what it is doing when it interferes with the right to keep and bear arms.


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Our side will argue that the civil rights to keep and bear arms outside the home isn't invalidated by leaving it. The anti's will say that plenty of civil rights are regulated in public, and as such the 2nd Amendment is subject to restriction in the public domain.
It probably doesn't serve our purposes well to attempt to argue about the right in a vacuum. The right exists for a reason: because we have the right to live. The state's denial of our right to meaningful self-defense is the same as its denial of our right to life, for the latter does not exist without the former.
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Last edited by kcbrown; 12-01-2012 at 10:41 AM..
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  #86  
Old 12-01-2012, 10:39 AM
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Originally Posted by hoffmang View Post
When Justice Kennedy was just a CA-9 Judge he already voted to hold may issue up to equal protection scrutiny in Guillory v. Gates.




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On that note, our side will still be pushing the equal protection in some manner, correct?
Would this be useful in other cases where the info regarding license issuance is NOT open to the public?
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  #87  
Old 12-01-2012, 10:42 AM
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Originally Posted by wildhawker View Post
Listen to/read the Heller orals.

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safewaysecurity:
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He talks about how grizzly bears were around during the time of the founding and people needed guns to defend against bears in the wild. I don't know how that would transfer to an urban carry case where they could argue that carry is permitted for hunters in areas where bears would be present.
Thanks for a responsive post, safewaysecurity. Having read and listened to the Heller orals awhile back, I now recall the reference.

I guess I really am slow today, because I still don't see how Al Norris's point that Kennedy 'drives the bus' sits in conflict with the fact that Kennedy is a cautious, if not reluctant participant in the restoration of the right.
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  #88  
Old 12-01-2012, 10:59 AM
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Originally Posted by kcbrown View Post
It probably doesn't serve our purposes well to attempt to argue about the right in a vacuum. The right exists for a reason: because we have the right to live. The state's denial of our right to meaningful self-defense is the same as its denial of our right to life, for the latter does not exist without the former.
the court will split the hairs of that premise to achieve a collective goal. ie firing a gun in your self defense in a crowded apartment complex risks the lives of 14 un-involved people expecting a degree of safety in their own home. I believe this will be coming soon
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  #89  
Old 12-01-2012, 11:20 AM
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For the above to be strictly true, the "sensitive places" discussion must be regarded as dictum, and not an essential part of the ruling itself.
We are actively looking for the first "carry" case in front of SCOTUS. The sensitive places should be addressed at that time, assuming the court doesn't deliberately avoid the question, which would be hard to do if the court is about to define the applicability of the "outside the home."
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  #90  
Old 12-01-2012, 11:22 AM
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On that note, our side will still be pushing the equal protection in some manner, correct?
Would this be useful in other cases where the info regarding license issuance is NOT open to the public?
Correct, but this is a 14A issue that is in many ways independent of 2A. Even if we got all the loses at the Supreme Court level, the Equal Protection clause would remain and the state would have to either issue LTC equally, or cease issuing them altogether.
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  #91  
Old 12-01-2012, 12:03 PM
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the court will split the hairs of that premise to achieve a collective goal. ie firing a gun in your self defense in a crowded apartment complex risks the lives of 14 un-involved people expecting a degree of safety in their own home.…
Foreclosing the act of armed self-defense by common citizens in public environments would similarly disarm the police. Such a conclusion would be poor public policy and is very unlikely though not impossible.
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  #92  
Old 12-01-2012, 12:07 PM
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Been attempted in UK. They disarmed their police.
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  #93  
Old 12-01-2012, 12:33 PM
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Foreclosing the act of armed self-defense by common citizens in public environments would similarly disarm the police.
I don't agree. Police carry right now in nearly every environment that might be considered sensitive, including for many federal agents, on board commercial aircraft.

Police will never be held to the same standard as citizens. Laws are enforced through the use of force, up to and including lethal force at significant risk to the public (especially, it seems, in NYC recently). Society tolerates that risk in return for the perception of security and order.
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  #94  
Old 12-01-2012, 12:40 PM
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Correct, but this is a 14A issue that is in many ways independent of 2A. Even if we got all the loses at the Supreme Court level, the Equal Protection clause would remain and the state would have to either issue LTC equally, or cease issuing them altogether.
You're an anti-gun politician with a voting base that considers the entire US Constitution to be 18th Century cow dung. The High Court is offering you two options: Ban Concealed Carry equally, or honor Shall Issue CCW across your jurisdiction.

Given those choices, there's only one move to make.Two actually. One, you cancel all CCW permits outstanding immediately. The second act is to grant reserve LEO status to your large campaign donors and benefactors.

Voila! Your subjects are happy, Cletus from Montana can't carry without threat of jail, and you stuck it to the gun lobby too.
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  #95  
Old 12-01-2012, 12:49 PM
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I don’t agree.…
It’s a legalistic argument. If the government abandons legalism for fiat and caprice, then none of this will matter.
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  #96  
Old 12-01-2012, 1:01 PM
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It’s a legalistic argument. If the government abandons legalism for fiat and caprice, then none of this will matter.
It would matter, because such arbitrary rule will need more than ever, a means of enforcement. That may well mean military rule, in which case you might be technically correct that the police could be disarmed, but the military would step into their place.
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  #97  
Old 12-01-2012, 1:04 PM
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Police will never be held to the same standard as citizens.
The idea was NOT to use "equal protection" in comparison to the police. It doesn't apply.

The idea is that the state would have to prove that there is no need for armed self defense in order to prevent general public from carrying, and the best way to prove it is to disarm the police. If there is really no threat, police don't need guns. If they do need guns, then their argument that the state has provided the necessary safety falls short.

Equal protection is used later, to prevent/exploit corruption inherent in the system.
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Old 12-01-2012, 1:09 PM
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Voila! Your subjects are happy, Cletus from Montana can't carry without threat of jail, and you stuck it to the gun lobby too.
This generally doesn't work for civil rights.

You are discussing using *only* equal protection (14A) and rational basis. What we have is a civil right and heightened scrutiny in *addition* to the equal protection.

I know the scrutiny argument hasn't worked out great yet, but those were all lower courts addressing issues that were not explicitly established by the SCOTUS.
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Old 12-01-2012, 3:10 PM
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Originally Posted by IVC View Post
The idea was NOT to use "equal protection" in comparison to the police. It doesn't apply.

The idea is that the state would have to prove that there is no need for armed self defense in order to prevent general public from carrying, and the best way to prove it is to disarm the police. If there is really no threat, police don't need guns. If they do need guns, then their argument that the state has provided the necessary safety falls short.
That doesn't work, because the state will counter that it is through the armed police that it achieves the goal of the citizenry not needing armed self-defense.

Of course, the very existence of crime that results in bodily injury and death negates that entire argument, but the courts (the 9th Circuit, at the very least) will ignore that because that is a matter of fact and not law...
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Old 12-01-2012, 3:23 PM
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That doesn't work, because the state will counter that it is through the armed police that it achieves the goal of the citizenry not needing armed self-defense.
That's a slippery slope since the Supreme Court ruled several times that the police have no duty to protect citizens, hence the state cannot use the argument that the police (armed or not) provides protection to the citizenry.
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Old 12-01-2012, 3:39 PM
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That's a slippery slope since the Supreme Court ruled several times that the police have no duty to protect citizens, hence the state cannot use the argument that the police (armed or not) provides protection to the citizenry.
Subtle difference here:

Until the SCOTUS rules that all levels of government have a duty to allow us to protect ourselves, then the issue of LEA protection--or lack thereof--is irrelevant.

The key issue is this: Do all levels of government have a duty to allow us to protect ourselves--a duty derived from recognition of something implicit in the Second Amendment?

Such a duty or obligation on the government--from top to bottom, federal to local--could easily be argued to be within the "penumbra" of rights implicit in the Second Amendment.

This type of argument is not my invention.

See "Second Amendment Penumbras: Some Preliminary Observations (Final)," by Glenn Harlan Reynolds, University of Tennessee College of Law, in the February 9, 2012 Southern California Law Review, Vol. 85, No. 247, 2012; University of Tennessee Legal Studies Research Paper No. 169.

http://papers.ssrn.com/sol3/papers.c...act_id=2002132

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  #102  
Old 12-01-2012, 4:02 PM
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That's a slippery slope since the Supreme Court ruled several times that the police have no duty to protect citizens, hence the state cannot use the argument that the police (armed or not) provides protection to the citizenry.
Of course they can. Lack of duty to do something does not automatically imply that said something won't be done, only that it isn't something that must be done. The state can still choose to protect citizens even if it does not have the duty to do so.

Where this really heads is, of course, towards whether or not the people have the right to meaningful defense of their lives, whether it's self-provided or provided by the state. The Supreme Court has ruled that the people have the right to meaningful and effective self-defense by declaring it as being at the core of the 2nd Amendment, while also having ruled elsewhere that the state has no duty to provide meaningful defense of the lives of the citizenry. Taken together, that forecloses the state's option of taking the right to keep and bear arms in public off the table.

The only way out of this for the state is for it to, in essence, argue that the citizenry has no right to meaningful and effective defense of their lives when in public and thus to argue, in essence, that the citizenry does not have the right to life when in public.

The state will never actually argue that, of course, for to do so would be tantamount to political suicide, an admission that the state exists to wield power over the citizenry rather than to serve the citizenry. However, I expect that such is precisely what those who oppose armed self-defense enough to argue against the right to it in court actually believe -- that the citizenry is "little people" who serve the state, rather than the state serving the citizenry.
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Last edited by kcbrown; 12-01-2012 at 4:05 PM..
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  #103  
Old 12-01-2012, 4:18 PM
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The Supreme Court has ruled that the people have the right to meaningful and effective self-defense by declaring it as being at the core of the 2nd Amendment, while also having ruled elsewhere that the state has no duty to provide meaningful defense of the lives of the citizenry. Taken together, that forecloses the state's option of taking the right to keep and bear arms in public off the table.
Agree wholeheartedly. See my sig below. No right can be more fundamental than the right to life itself.
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  #104  
Old 12-02-2012, 6:34 AM
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Originally Posted by SilverTauron View Post
You're an anti-gun politician with a voting base that considers the entire US Constitution to be 18th Century cow dung. The High Court is offering you two options: Ban Concealed Carry equally, or honor Shall Issue CCW across your jurisdiction.

Given those choices, there's only one move to make.Two actually. One, you cancel all CCW permits outstanding immediately. The second act is to grant reserve LEO status to your large campaign donors and benefactors.

Voila! Your subjects are happy, Cletus from Montana can't carry without threat of jail, and you stuck it to the gun lobby too.

Being as this how things (basically) work in ILL., this isn't entirely out in left field.

The only counter to this tactic is to make LOC the Minimum Constitutional Standard.


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  #105  
Old 12-02-2012, 11:43 AM
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It would matter, because such arbitrary rule … may well mean military rule.…
And that would render these little discussions of ours irrelevant, which was my point.
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  #106  
Old 12-02-2012, 2:21 PM
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Originally Posted by Al Norris View Post
Are you really opposing the idea that Justice Scalia tailored the Heller decision in the manner he did, to retain Justice Kennedy's vote?
Yes. I'm far more concerned that the opinion's dicta was to keep the Chief. However, even in that dicta is clear evidence that public carry is an expected part of the right. There are certainly no schools or government buildings in my house. Yours?

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  #107  
Old 12-02-2012, 3:06 PM
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Originally Posted by hoffmang View Post
Yes. I'm far more concerned that the opinion's dicta was to keep the Chief. However, even in that dicta is clear evidence that public carry is an expected part of the right. There are certainly no schools or government buildings in my house. Yours?
The antis will argue that the dicta was put there because the Court was concerned about governments taking transport off the table. They'd be incorrect, but that's how they'll argue.
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Old 12-02-2012, 3:16 PM
SilverBulletZ06 SilverBulletZ06 is offline
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Originally Posted by kcbrown View Post
The antis will argue that the dicta was put there because the Court was concerned about governments taking transport off the table. They'd be incorrect, but that's how they'll argue.
You all are on crack if you don't think that, if permitted, the court wouldn't skip over the carry issue altogether.

I hold no illusion that we are going to win on SCOTUS review.
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Old 12-02-2012, 6:28 PM
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Nothing to add, I just wanted to say I appreciate reading all this, taking it in and thinking where we are headed.

My concern is CA laws and how this may help us in CA.

We can not open carry since Jan1 of this year, and we also can not obtain a CWP unless you are famous or rich or politician.

Is the "may issue" being challenged? Sorry if I'm not up on current topics here and missed it somewhere.

CA is NOT a may issue state, not in any real sense of the word. I've pursued every avenue and since I'm in LA county there is no way I'll get one. IF a court case regarding CCW permits goes in our favor, will it be of benefit to have already applied and been denied? Will the county be ordered to issue those denied permits?
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Old 12-02-2012, 7:26 PM
hoffmang hoffmang is offline
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Is the "may issue" being challenged? Sorry if I'm not up on current topics here and missed it somewhere.
The California cases to watch are Richards v. Prieto and Peruta v San Diego.

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Old 12-02-2012, 7:34 PM
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Thanks mang.
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Old 12-02-2012, 8:11 PM
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Originally Posted by SilverBulletZ06 View Post
You all are on crack if you don't think that, if permitted, the court wouldn't skip over the carry issue altogether.

I hold no illusion that we are going to win on SCOTUS review.
Fortunately, since this case is entirely about carry, it would be difficult for the court to skip the issue. Not saying that it would be impossible, mind you (the Supreme Court can ultimately do whatever it pleases, after all)...

As for winning upon SCOTUS review, while I don't think such a win is a lock, I think the odds of us winning are currently greater than 50%. I think it's more likely that SCOTUS will simply deny cert than go to the trouble of explicitly ruling against us.
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  #113  
Old 12-03-2012, 6:46 AM
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Quote:
Originally Posted by hoffmang View Post
Yes. I'm far more concerned that the opinion's dicta was to keep the Chief.
Interesting opinion.

Quote:
However, even in that dicta is clear evidence that public carry is an expected part of the right.
In that, we agree.
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Old 12-03-2012, 7:42 PM
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At TFL, Al Norris has posted an update to Woolard that seems to bear on Kachalsky.

Alan Gura has posted his 28j letter noting the Kachalsky result - and like Al, I agree that last paragraph is indicative
Quote:
Finally, Kachalsky’s use of rational basis review was not sanctioned simply by being euphemistically styled “intermediate scrutiny.” Kachalsky eviscerated the right to bear arms merely upon the State having declared it unacceptable as a matter of public policy. The Kachalsky Court refused to question a legislative judgment relating to an enumerated, fundamental right. But in so doing, Kachalsky second-guessed the People’s ratification of the Second Amendment—an act the Supreme Court will soon have an opportunity to review.
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File Type: pdf CA4-28jkachalsky.pdf (126.1 KB, 14 views)
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Old 12-03-2012, 9:50 PM
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Quote:
Originally Posted by Librarian View Post
At TFL, Al Norris has posted an update to Woolard that seems to bear on Kachalsky.

Alan Gura has posted his 28j letter noting the Kachalsky result - and like Al, I agree that last paragraph is indicative
Gura is a master wordsmith. We're fortunate he didn't end up a writer or journalist.
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