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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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  #41  
Old 02-15-2018, 6:48 PM
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Originally Posted by TruOil View Post
I am waiting to see if the Ninth will go all out and declare that there is no second amendment right to bear arms outside the home, and that the right enunciated in Heller is a right only in the home.
I don't think the 9th will go there as there's a real possibility SCOTUS will take the case and likely overturn them 5-4. That's just a line too far I think even the 9th would dare to go.

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The other likely alternative, in my view, is a declaration that there is a LIMITED right to carry outside the home SUBJECT TO the power of the state to regulate the bearing of arms in the public interest.
I think this is the likely outcome because it's a soft position justifiable with spotty logic rather than a direct dare to SCOTUS.
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  #42  
Old 02-15-2018, 7:59 PM
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After Peruta, it is too late for that, unless SCOTUS finally accepts a case for review. The Ninth in Peruta says there is NO second amendment right to carry a concealed weapon, and SCOTUS declined review. I am waiting to see if the Ninth will go all out and declare that there is no second amendment right to bear arms outside the home, and that the right enunciated in Heller is a right only in the home. The other likely alternative, in my view, is a declaration that there is a LIMITED right to carry outside the home SUBJECT TO the power of the state to regulate the bearing of arms in the public interest. If SCOTUS were to deny review of such a holding, the Second is effectively dead in the Ninth, 2d, 3d, and 4th Circuits.
Unless you live in a state that allows and protects the right to carry outside of the home.
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Old 02-15-2018, 8:15 PM
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How do you think the attorney for Young did?
I think he did well. He was prepared and the law and facts were in his favor as well as opposing counsel being unprepared. I could have wished counsel for Young was more articulate and maybe could have provided more thought provoking responses rather than merely pointing to the arguments in the briefs and evidentiary record. But, having stood in those same shoes, I know that thinking on your feet to quickly answer the questions that the panel throws out is difficult.

We need to create a basic narrative about Constitutional Rights and apply that narrative to the abusive laws and precedent that the Government and the Courts are creating in their efforts to curtail Rights in general. Not just Gun Rights, but all Rights. (Calif gun laws vis a vis Texas Anti-abortion laws - BOTH are attempts to unconstitutionally regulate a Right out of existence.) And then start pounding that narrative into the courts along with the facts of the individual cases.

The argument is no longer just about case law. We need to shift some of the focus to the unconstitutionality of the legislative and judicial attempts to redraft the BOR without the consent and/or ratification of Congress.
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Old 02-16-2018, 2:04 PM
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Unless you live in a state that allows and protects the right to carry outside of the home.
Let me be more precise: the right will be dead as far as those circuits are concerned, but state law, not federal law (absent controlling Supreme Court authority) will still define the scope of the right. Just don't expect that any new limitation on the right as currently exists in free or freer states will be reversed by any one of these circuits, such as those restrictions being proposed in Washington and Oregon.
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Old 02-16-2018, 2:06 PM
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We need to create a basic narrative about Constitutional Rights and apply that narrative to the abusive laws and precedent that the Government and the Courts are creating in their efforts to curtail Rights in general. Not just Gun Rights, but all Rights. (Calif gun laws vis a vis Texas Anti-abortion laws - BOTH are attempts to unconstitutionally regulate a Right out of existence.) And then start pounding that narrative into the courts along with the facts of the individual cases.

The argument is no longer just about case law. We need to shift some of the focus to the unconstitutionality of the legislative and judicial attempts to redraft the BOR without the consent and/or ratification of Congress.
I am pretty sure that this has been tried, i.e., by incorporating First Amendment analysis into Second Amendment cases, but the anti-Circuits insist on treating the Second as a lesser right that the others in the BOR.
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  #46  
Old 02-16-2018, 2:13 PM
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I am pretty sure that this has been tried, i.e., by incorporating First Amendment analysis into Second Amendment cases, but the anti-Circuits insist on treating the Second as a lesser right that the others in the BOR.
I always find it hypocritcal when they are fully able to comprehend that the rest of the bills apply to people as individuals, then say the 2A applies to people as a collective, meaning, the state or government. Because reasons and feelings.

I've never understood how they can perform the logical mental gymnastics required to believe the government needed a codified law to prevent taking guns from itself and still have the processing power left to digest food.
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  #47  
Old 02-16-2018, 5:10 PM
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I always find it hypocritcal when they are fully able to comprehend that the rest of the bills apply to people as individuals, then say the 2A applies to people as a collective, meaning, the state or government. Because reasons and feelings.

I've never understood how they can perform the logical mental gymnastics required to believe the government needed a codified law to prevent taking guns from itself and still have the processing power left to digest food.
]

Becuz gunz is baad, m'kay? Since gunz is baad, the possession and carrying of gunz has to be prohibited as much as possible to keep the peoplz safe. And if that means misapplying law and facts, they will do it.
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  #48  
Old 02-17-2018, 12:18 PM
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I am pretty sure that this has been tried, i.e., by incorporating First Amendment analysis into Second Amendment cases, but the anti-Circuits insist on treating the Second as a lesser right that the others in the BOR.
I'm not talking about scrutiny and analysis as applied to Constitutional Rights. I'm talking Constitutional FRAMEWORK as established in Marbury v. Madison.

That case established the concept of Federalism. That the Federal Gov is supreme to States. The Constitution is supreme to Fed law. Thus, under that framework, enumerated Rights are supreme to both Fed and State laws and CANNOT be altered, amended, redacted, redrafted, or modified EXCEPT as provided by the Constitution.

STATES have no power to limit the scope of the Rights in the Constitution. No one would allow a State to pass a law abrogating the 8A's prohibition against cruel and unusual punishment (which is the argument against the death penalty). Why? Because States don't have the power to repeal any Amendment in the BOR. Nor can they pick and choose which Rights they will and won't allow to their citizens. It's an all or nothing deal.

SCOTUS determines the meaning behind the words but that determination cannot abrogate the actual words used.

As applied to the 2A, the States have been trying to do what is not permitted by the language in the Amendment - infringe. No "level of scrutiny analysis" will change that into any sort of authorization. The decision in Heller notwithstanding, the express language of the Amendment prohibits this. "Shall not" doesn't mean "sometimes if we really really think it's ok this time."

This is an argument we haven't been making.
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Old 02-17-2018, 12:33 PM
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Some notes for clarifications of things stated in the above thread:

1. The "Hawaii" in Young v Hawaii is Hawaii County (aka The County of Hawaii), NOT the state of Hawaii. The state was included in the original lawsuit, but was granted a request to be removed. The county attorney was from Hawaii county, and represented no other legal entity (other than the county officials named in the suit) even though he did reference the state AG's amicus brief. I believe it was O'Scannlain who made clear at some point that the state was not involved.

2. There have NOT been "zero CCW licenses issued in 20 years". At least not in the state of Hawaii. There seemed to be at least ambiguity, if not outright confusion and/or misstatement by several of the parties about the facts re CCW licenses.

In 2000 the state instituted mandated reporting of various firearm statistics to the state by the county police departments, who do the registrations, issue firearms permits, accept CCW/open carry license applications and decide whether to issue those licenses. etc. Since 2000 there have been four CCW licenses issued in the entire state. Maui PD claims (personal communication) that the two licenses they issued in 2001 have no extant records, and that no one there currently has any information at all about those licenses. The two other CCW licenses were issued by Kauai PD (personal communication and annual statistical analysis of firearms related data issued by the Hawaii AG office) in 2006 (to a judge) and 2013 (likely to an active duty military member). I requested, and then appealed the denied request, via UIPA (Uniform Information Practices Act, Hawaii's equivalent of FOIA) all information re the Kauai licenses issued. All I eventually got (after more than a year) was one low quality reproduction page of each partially redacted license application. There was enough information there to determine that both licenses had been issued illegally, certainly outside the bounds and restrictions of the Hawaii statute regarding the licenses. (That's another story.)

Also mentioned in the presentation by Mr. Beck was the document from the police chief of Hawaii county, which was a personal letter to me (that I provided to Mr. Beck), that the chief 1. in his tenure as chief had never issued a CCW license, 2. in his 25 years on the force did not recall any CCW license ever being issued by Hawaii County PD, and 3. that also during that entire time on the force he never heard of a license having been issued prior to his employment by Hawaii County PD.

So whenever someone during orals said "no licenses issued in 20 years", they would be correct (actually 18 years for which records exist) if they were referring to Hawaii County, but not if they were referring to the state. If they said "never" they would be referring more of less to the statement of now-retired chief Kubojiri and his recollection of Hawaii County, but there is not any kind of record or documentation to substantiate that question one way or the other.

3. The attorney for the county was being disingenuous at best, and more likely knowingly lying, when he said that ordinary citizens would be considered for issuance of an "open carry" license because everyone is "engaged in the practice of protecting [their own] life and property". He, and everyone else knows that is a lie, because 1. Chief Kubojiri stated (personal correspondence) that those licenses would only be considered for employed security guards, and thus no point in even applying unless you have proof of such employment, and 2. the very forms required by the state to be filed monthly by each county lists two possible categories of carry licenses, and they are NOT "concealed" and "open"; they are, respectively "Citizen" and "Security". There is no "citizen security" option. I'm fairly certain I forwarded some of those forms to Mr. Beck in the past several years.
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  #50  
Old 02-17-2018, 1:39 PM
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Originally Posted by surfgeorge View Post
Some notes for clarifications of things stated in the above thread:

1. The "Hawaii" in Young v Hawaii is Hawaii County (aka The County of Hawaii), NOT the state of Hawaii. The state was included in the original lawsuit, but was granted a request to be removed. The county attorney was from Hawaii county, and represented no other legal entity (other than the county officials named in the suit) even though he did reference the state AG's amicus brief. I believe it was O'Scannlain who made clear at some point that the state was not involved.

2. There have NOT been "zero CCW licenses issued in 20 years". At least not in the state of Hawaii. There seemed to be at least ambiguity, if not outright confusion and/or misstatement by several of the parties about the facts re CCW licenses.

In 2000 the state instituted mandated reporting of various firearm statistics to the state by the county police departments, who do the registrations, issue firearms permits, accept CCW/open carry license applications and decide whether to issue those licenses. etc. Since 2000 there have been four CCW licenses issued in the entire state. Maui PD claims (personal communication) that the two licenses they issued in 2001 have no extant records, and that no one there currently has any information at all about those licenses. The two other CCW licenses were issued by Kauai PD (personal communication and annual statistical analysis of firearms related data issued by the Hawaii AG office) in 2006 (to a judge) and 2013 (likely to an active duty military member). I requested, and then appealed the denied request, via UIPA (Uniform Information Practices Act, Hawaii's equivalent of FOIA) all information re the Kauai licenses issued. All I eventually got (after more than a year) was one low quality reproduction page of each partially redacted license application. There was enough information there to determine that both licenses had been issued illegally, certainly outside the bounds and restrictions of the Hawaii statute regarding the licenses. (That's another story.)

Also mentioned in the presentation by Mr. Beck was the document from the police chief of Hawaii county, which was a personal letter to me (that I provided to Mr. Beck), that the chief 1. in his tenure as chief had never issued a CCW license, 2. in his 25 years on the force did not recall any CCW license ever being issued by Hawaii County PD, and 3. that also during that entire time on the force he never heard of a license having been issued prior to his employment by Hawaii County PD.

So whenever someone during orals said "no licenses issued in 20 years", they would be correct (actually 18 years for which records exist) if they were referring to Hawaii County, but not if they were referring to the state. If they said "never" they would be referring more of less to the statement of now-retired chief Kubojiri and his recollection of Hawaii County, but there is not any kind of record or documentation to substantiate that question one way or the other.

3. The attorney for the county was being disingenuous at best, and more likely knowingly lying, when he said that ordinary citizens would be considered for issuance of an "open carry" license because everyone is "engaged in the practice of protecting [their own] life and property". He, and everyone else knows that is a lie, because 1. Chief Kubojiri stated (personal correspondence) that those licenses would only be considered for employed security guards, and thus no point in even applying unless you have proof of such employment, and 2. the very forms required by the state to be filed monthly by each county lists two possible categories of carry licenses, and they are NOT "concealed" and "open"; they are, respectively "Citizen" and "Security". There is no "citizen security" option. I'm fairly certain I forwarded some of those forms to Mr. Beck in the past several years.

We are suing Hawaii County so all that matters is Hawaii County's rate of issuance. Again the state was noticed in this case which is that is required under the federal rules. Even though the State did not participate the Court can strike the law at issue if we prevail.
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Old 02-17-2018, 2:04 PM
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I'm not talking about scrutiny and analysis as applied to Constitutional Rights. I'm talking Constitutional FRAMEWORK as established in Marbury v. Madison.

That case established the concept of Federalism. That the Federal Gov is supreme to States. The Constitution is supreme to Fed law. Thus, under that framework, enumerated Rights are supreme to both Fed and State laws and CANNOT be altered, amended, redacted, redrafted, or modified EXCEPT as provided by the Constitution.

STATES have no power to limit the scope of the Rights in the Constitution. No one would allow a State to pass a law abrogating the 8A's prohibition against cruel and unusual punishment (which is the argument against the death penalty). Why? Because States don't have the power to repeal any Amendment in the BOR. Nor can they pick and choose which Rights they will and won't allow to their citizens. It's an all or nothing deal.

SCOTUS determines the meaning behind the words but that determination cannot abrogate the actual words used.

As applied to the 2A, the States have been trying to do what is not permitted by the language in the Amendment - infringe. No "level of scrutiny analysis" will change that into any sort of authorization. The decision in Heller notwithstanding, the express language of the Amendment prohibits this. "Shall not" doesn't mean "sometimes if we really really think it's ok this time."

This is an argument we haven't been making.
Except that every state and federal court, from the lowest to the highest, has the right to interpret the scope of the rights guaranteed by the BOR, and have been doing just that for the last 200 years. For example, you have the First Amendment right of freedom of speech, but the government (*and thus the courts) can limit the time, place and manner of the expression, just not (generally speaking) the content, unless it is a call to riot, communication of state secrets, or threats of imminent personal injury or death, among others. (Now they want to go after "hate" speech as not within the right, but I think that that is a bridge too far.)

As applied in practice, if only the SCOTUS can interpret the BOR, how are courts to adjudicate matters or issues that have not been decided by the SCOTUS?
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Old 02-17-2018, 3:57 PM
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Originally Posted by TruOil View Post
Except that every state and federal court, from the lowest to the highest, has the right to interpret the scope of the rights guaranteed by the BOR, and have been doing just that for the last 200 years. For example, you have the First Amendment right of freedom of speech, but the government (*and thus the courts) can limit the time, place and manner of the expression, just not (generally speaking) the content, unless it is a call to riot, communication of state secrets, or threats of imminent personal injury or death, among others. (Now they want to go after "hate" speech as not within the right, but I think that that is a bridge too far.)

As applied in practice, if only the SCOTUS can interpret the BOR, how are courts to adjudicate matters or issues that have not been decided by the SCOTUS?
Rights are designed to curtail the Gov, not grant liberties to the people. Whenever Gov seeks to limit freedoms in a new manner not previously determined to be lawful, THEY are the ones who must prove the burden in all cases and their laws should have no effect until such proof is attained. Lower courts should never decide in favor of the States until such determination is made. They do not have the authority under the Constitution to do so since such a determination authorizes unlawful infringement and oppression rather than upholding the guarantees granted to us. Remember, if a law hasn't yet been determined to be a lawful infringement, it is by definition UNlawful.

If the courts won't uphold the document that charters them, then they have gone beyond reasonableness. By allowing States to determine what is and what isn't a constitutional law, States could also potentially determine that the Fed courts don't have any force over the the States. And that would be "the law" until the SCOTUS hears that case.

No court would sanction that and would immediately strike such a law. Yet, laws which defeat the BOR are treated differently. For no reason except that those laws do not strike directly at the courts. They strike only at the people who are the very foundation of our government. Thus, the current method of allowing unlawful acts by States to stand until the SCOTUS determines they are lawful elevates the courts above government and the people and lowers the people to a position subservient to their own government. At that point all of our Rights are stripped from us and we don't even know it. We have no guarantees of liberty UNLESS someone says so. How is that a guarantee?
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  #53  
Old 02-17-2018, 4:30 PM
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Originally Posted by njineermike View Post
I always find it hypocritcal when they are fully able to comprehend that the rest of the bills apply to people as individuals, then say the 2A applies to people as a collective, meaning, the state or government. Because reasons and feelings.

I've never understood how they can perform the logical mental gymnastics required to believe the government needed a codified law to prevent taking guns from itself and still have the processing power left to digest food.
Oh, that's easy to understand: they're dishonest and corrupt people. Don' thank me
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Old 02-17-2018, 5:33 PM
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Oh, that's easy to understand: they're dishonest and corrupt people. Don' thank me
Or as often stated: "Politics Is The Second Oldest Profession. It Bears A Strong Resemblance To The First" In other words, politicians are whores and pimps, especially the liberal ones!
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Old 02-17-2018, 6:13 PM
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I'm not talking about scrutiny and analysis as applied to Constitutional Rights. I'm talking Constitutional FRAMEWORK as established in Marbury v. Madison.

That case established the concept of Federalism. That the Federal Gov is supreme to States. The Constitution is supreme to Fed law. Thus, under that framework, enumerated Rights are supreme to both Fed and State laws and CANNOT be altered, amended, redacted, redrafted, or modified EXCEPT as provided by the Constitution.
More precisely, except in ways provided by the Constitution that do not themselves conflict with the rights or with their protection. This is because the enumerated rights are Amendments to the Constitution, and as such supersede the Constitution whenever there is any conflict between what the Constitution allows and the enumerated rights. The only exception to that is with respect to later Amendments. When a later Amendment conflicts with an earlier one, the later one wins.

This clearly means that the enumerated rights, and their protection, overrides the power of the judiciary in any conflict between the two, since the power of the judiciary is derived from the pre-Amendment Constitution.
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Old 02-17-2018, 6:53 PM
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Except that every state and federal court, from the lowest to the highest, has the right to interpret the scope of the rights guaranteed by the BOR,
No. The courts have the duty to discover the scope of the rights guaranteed by the BOR. The Constitution does not confer the power to define that scope, or to "interpret" it, or any other such nonsense that connotes some kind of power over that scope (even if it otherwise did, the fact that the BoR is a set of Amendments to the Constitution would put them beyond that power, as that power was conferred by the unamended Constitution). A court has the duty to properly (i.e., on the basis of formal logic applied to all relevant objective facts) decide the case in front of it on the basis of the facts available to it, and to discover the intended meaning of anything that is ambiguous by using methods that are standard for that purpose on the basis of all available information. The courts are not empowered to shrink from that duty.

To insist otherwise is to insist that it is the will of the courts, and not the Constitution as amended by the Bill of Rights, that is the supreme law of the land, when it is the Constitution from which the courts derive their power in the first place, and to which they must be subservient.
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The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional.

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Old 02-17-2018, 11:26 PM
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Too bad open carry isn't actually banned in CA; the 9th will point to the fact that in some (not small) portion of the state you can open carry, and say that satisfies the Intermediate Scrutiny.
The "concealed carry is not the right" was "plausible deniability" even if our side explicitly asked for *any* carry.

If we get a win with this panel, the en banc (assuming they go that way) will have to address once and for all whether "open carry is the right protected by 2A." Answering this alone is now tricky - they have said "concealed is not," so saying "open is not either" equals "2A doesn't protect carry at all." Something Kennedy wouldn't allow.

Saying that "open carry is the right" would be a huge win for us even if they used the cop out of "but, it can be eliminated in populated areas." Having a right that cannot be exercised where one lives is a much better position for our side than not having the right in the first place.
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Old 02-17-2018, 11:29 PM
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...precedent, it must issue an en bane decision.
Freudian slip?

Also, aren't you the council in Young?
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Old 02-18-2018, 4:59 AM
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The "concealed carry is not the right" was "plausible deniability" even if our side explicitly asked for *any* carry.

If we get a win with this panel, the en banc (assuming they go that way) will have to address once and for all whether "open carry is the right protected by 2A." Answering this alone is now tricky - they have said "concealed is not," so saying "open is not either" equals "2A doesn't protect carry at all." Something Kennedy wouldn't allow.

Saying that "open carry is the right" would be a huge win for us even if they used the cop out of "but, it can be eliminated in populated areas." Having a right that cannot be exercised where one lives is a much better position for our side than not having the right in the first place.
That would be another gem case that SCOTUS would have to take due to the legal gymnastics undertaken by the 9th.
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Old 02-18-2018, 8:09 AM
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Originally Posted by IVC View Post
Answering this alone is now tricky - they have said "concealed is not," so saying "open is not either" equals "2A doesn't protect carry at all." Something Kennedy wouldn't allow.
Kennedy doesn't have any say in what the 9th does -- as we've seen in the past, he has sometimes voted to overturn their decisions. If they slavishly obeyed his will, that would never have to happen. I'm guessing that you're assuming he's the linchpin in both 1) getting cert granted and 2) getting that 5th vote?

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Saying that "open carry is the right" would be a huge win for us even if they used the cop out of "but, it can be eliminated in populated areas." Having a right that cannot be exercised where one lives is a much better position for our side than not having the right in the first place.
That sounds ridiculous, I probably don't understand it, so you might have to break it down for me. It seems that's a bit more than just a cop-out, it makes a mockery of your "huge win". The ruling would change nothing -- pro-2A states would remain so, and anti-2A states could continue to eliminate our civil rights entirely.

If we can agree SCOTUS is never going to get into defining what magic formula determines if an area is populated or not, then we can agree states like CA would just say, "CA has humans, ergo it is populated, ergo no 2A" so there wouldn't even be a point to going to SCOTUS if that's your idea of a "huge win". What am I missing? Where's the "huge win"?
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Old 02-18-2018, 9:10 AM
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Face it; until one of the libs on SCOTUS is replaced by a more conservative judge, we are screwed in CA at least.
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Old 02-18-2018, 10:25 AM
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Originally Posted by IVC View Post
Freudian slip?

Also, aren't you the council in Young?
Yes this is my case.

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Old 02-18-2018, 12:05 PM
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Kennedy doesn't have any say in what the 9th does -- as we've seen in the past, he has sometimes voted to overturn their decisions. If they slavishly obeyed his will, that would never have to happen. I'm guessing that you're assuming he's the linchpin in both 1) getting cert granted and 2) getting that 5th vote?
Yes, it's about being "the 5th vote" if CA-9 declared that the right to carry didn't exist.

It's one thing to stay out of debate on *concealed* carry, quite another to explicitly state that the right doesn't exist at all.

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It seems that's a bit more than just a cop-out, it makes a mockery of your "huge win". The ruling would change nothing -- pro-2A states would remain so, and anti-2A states could continue to eliminate our civil rights entirely.
Allowing for "zoning out of fundamental rights" is another very risky proposition for SCOTUS to allow - imagine "you can be gay in the same areas where you can carry a gun" law, or "a clinic can provide abortion as long as it's 100 miles away from the nearest paved road" law.

It would open door to much more serious smackdown and CA-9 is fully aware of it.

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What am I missing? Where's the "huge win"?
Having a right recognized and fighting for meaningful availability of the right is much easier than fighting for a right that doesn't exist.
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Old 02-18-2018, 1:37 PM
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Yes this is my case.
Nice work, thank you.
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Old 02-19-2018, 1:46 AM
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Allowing for "zoning out of fundamental rights" is another very risky proposition for SCOTUS to allow - imagine "you can be gay in the same areas where you can carry a gun" law, or "a clinic can provide abortion as long as it's 100 miles away from the nearest paved road" law.

It would open door to much more serious smackdown and CA-9 is fully aware of it.
Seriously?

Why do you continue, even now, to insist on presuming that a court like the 9th Circuit is going to be consistent about the application of such a principle to other areas of law? That is clearly what you must presume for the proposition in question to be "risky" at all.

No, for other areas of law, the 9th Circuit will obviously strike laws which impose upon a right in that way, thus yielding a result that the Supreme Court would be happy with. It's only for laws which impose upon the right to arms that the 9th Circuit will happily let such laws stand, in which case they don't have to worry about SCOTUS at all since SCOTUS has clearly demonstrated that it will refuse cert, and that's that.

More succinctly, it's not "zoning out of fundamental rights" that the 9th Circuit would be allowing, it's "zoning out of the right to lethal arms, and only that" that it would be allowing.

As such, the case you're thinking of will never make it to SCOTUS in the first place, much less end up "forcing" the 9th Circuit to treat the right to arms in the same way as other rights.


You really need to learn and understand a central term here: "arbitrary and capricious". Once you understand the full ramifications of that and how it applies to the 9th Circuit, you'll understand the error in your thinking here.



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Having a right recognized and fighting for meaningful availability of the right is much easier than fighting for a right that doesn't exist.
Not when the court you're fighting in front of is the 9th Circuit, and the right you're fighting for is the right to arms. For the first, the 9th Circuit will obviously (because it can) decide that the law somehow "satisfies" whatever arbitrary criteria it "imposes" so that it may stand. For the second, the Supreme Court will simply deny cert unless the plaintiff is a poor downtrodden homeless woman who is attempting to use a nonlethal weapon to protect herself.
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Old 02-19-2018, 3:43 PM
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No. The courts have the duty to discover the scope of the rights guaranteed by the BOR. The Constitution does not confer the power to define that scope, or to "interpret" it, or any other such nonsense that connotes some kind of power over that scope (even if it otherwise did, the fact that the BoR is a set of Amendments to the Constitution would put them beyond that power, as that power was conferred by the unamended Constitution). A court has the duty to properly (i.e., on the basis of formal logic applied to all relevant objective facts) decide the case in front of it on the basis of the facts available to it, and to discover the intended meaning of anything that is ambiguous by using methods that are standard for that purpose on the basis of all available information. The courts are not empowered to shrink from that duty.

To insist otherwise is to insist that it is the will of the courts, and not the Constitution as amended by the Bill of Rights, that is the supreme law of the land, when it is the Constitution from which the courts derive their power in the first place, and to which they must be subservient.
This is what is called "mincing words." There is no conceivable difference between "discovering the scope or intended meaning" of the BOR or any other provision of the Constitution and "interpreting" or ascertaining the scope of such laws. And as you silently agree, trial courts do this all the time unless directed by a particular interpretation dictated by a higher court. The ultimate, but not the sole power to interpret the Constitution is invested in the Supreme Court.
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Old 02-19-2018, 3:58 PM
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Rights are designed to curtail the Gov, not grant liberties to the people. Whenever Gov seeks to limit freedoms in a new manner not previously determined to be lawful, THEY are the ones who must prove the burden in all cases and their laws should have no effect until such proof is attained. Lower courts should never decide in favor of the States until such determination is made. They do not have the authority under the Constitution to do so since such a determination authorizes unlawful infringement and oppression rather than upholding the guarantees granted to us. Remember, if a law hasn't yet been determined to be a lawful infringement, it is by definition UNlawful.

If the courts won't uphold the document that charters them, then they have gone beyond reasonableness. By allowing States to determine what is and what isn't a constitutional law, States could also potentially determine that the Fed courts don't have any force over the the States. And that would be "the law" until the SCOTUS hears that case.

No court would sanction that and would immediately strike such a law. Yet, laws which defeat the BOR are treated differently. For no reason except that those laws do not strike directly at the courts. They strike only at the people who are the very foundation of our government. Thus, the current method of allowing unlawful acts by States to stand until the SCOTUS determines they are lawful elevates the courts above government and the people and lowers the people to a position subservient to their own government. At that point all of our Rights are stripped from us and we don't even know it. We have no guarantees of liberty UNLESS someone says so. How is that a guarantee?
I have read a lot of nonsense from lawyers over the years, but this really takes the cake. What you are saying, when reduced to its essentials, is that all laws are (or should be) unconstitutional until their constitutionality is determined by the Supreme Court. As an attorney ( I presume) you know full well that all laws are presumed lawful until their unlawfulness is determined by a court of law. It would mean that a state would have to pass a law and then file an action in some court to determine that it is constitutional, putting the law on hold for years until that final determination is made. The ONLY time this occurs is when a trial or appellate court enjoins the application of a law until final determination is made (at that level).

And you must also know that Article III of the Constitution, section 2, empowers not just the Supreme Court, but such inferior courts as it establishes, to decide such controversies. There are no amendments to the Constitution that act in derogation of these powers.

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Old 02-19-2018, 4:00 PM
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This is what is called "mincing words." There is no conceivable difference between "discovering the scope or intended meaning" of the BOR or any other provision of the Constitution and "interpreting" or ascertaining the scope of such laws.
Of course there is, and the difference is a crucial one.

The former implies an objective truth to be discovered, and limits the scope of activity to discovery of that truth. Here, that truth is what the originators of the documented intended to communicate.

The latter implies at least the possibility of a subjective determination that arises from the meanings that the people on the court choose to (or find themselves naturally gravitating towards, due to upbringing, cultural influences, etc.) ascribe to that which the Constitution says.

This difference is utterly massive, and is directly responsible for the state of affairs that we find ourselves in, for it is the latter, and not the former, that courts have engaged in.


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And as you silently agree, trial courts do this all the time unless directed by a particular interpretation dictated by a higher court. The ultimate, but not the sole power to interpret the Constitution is invested in the Supreme Court.
The rightful power ascribed to the courts is to, when the intended meaning is not already plainly obvious (said obviousness arising as a result of prior discoveries, the result of direct communication, the result of the use of language being identical now to that of the time the Constitution was authored, or the result of the nonexistence of any alternative meanings), discover the intended meaning of the Constitution by way of the most effective and accurate methods that are available (which generally involve research into the use of language at the time, the historical context of that which was said, etc.), and then apply those meanings to the instant case.

They do not have the rightful power to "interpret" the Constitution. Such a power confers the ability to assign meaning, not merely to discover it. But assignment of meaning causes the end result to be that which the assigner wishes, not that which the originator intended.


Again, this is a critical difference. It is the difference between a court being subservient to the Constitution and the court being superior to it. This is so because any court which has the power to "interpret" the Constitution has the power to alter its meaning from that which was intended. That is not a legitimate power. A court which has the power to "interpret" the Constitution has the power to "interpret" it to mean that the Constitution confers upon the court ultimate absolute power, a direct contravention of the entire point of having a Constitution in the first place.
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Old 02-19-2018, 4:17 PM
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Not when the court you're fighting in front of is the 9th Circuit, and the right you're fighting for is the right to arms. For the first, the 9th Circuit will obviously (because it can) decide that the law somehow "satisfies" whatever arbitrary criteria it "imposes" so that it may stand. For the second, the Supreme Court will simply deny cert unless the plaintiff is a poor downtrodden homeless woman who is attempting to use a nonlethal weapon to protect herself.
IVC does have a point though. For SCOTUS to cert or not depends on what the 9th uses as justification in their ruling for State. If the 9th plainly says the 2A does not protect the right to carry open, has already said it doesn't protect the right to carry concealed in Peruta, and ignores addressing the fact that there is no other way to carry, the obvious total ban on carry outside the home might get SCOTUS's attention.

If the 9th says the right isn't being infringed with the current Hawaii regulatory scheme in place and doesn't actually state the 2A protects the right to carry open, well......
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Old 02-19-2018, 4:26 PM
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IVC does have a point though. For SCOTUS to cert or not depends on what the 9th uses as justification in their ruling for State. If the 9th plainly says the 2A does not protect the right to carry open, has already said it doesn't protect the right to carry concealed in Peruta, and ignores addressing the fact that there is no other way to carry, the obvious total ban on carry outside the home might get SCOTUS's attention.

If the 9th says the right isn't being infringed with the current Hawaii regulatory scheme in place and doesn't actually state the 2A protects the right to carry open, well......
There is no evidence at all that SCOTUS grants cert solely on the basis of the justification for ruling in favor of the state. If you don't believe me, you need only examine Friedman v Highland Park, where the justification was, in part, that the law made the people feel safer.

Indeed, if it is only the basis of the justification for such decisions that the Court uses for deciding to grant or deny cert, then that has dire implications, for it means that the Court does not substantially disagree with the reasoning behind any of the prior decisions which it has denied cert to.

No, I raised the "poor downtrodden homeless person with a nonlethal weapon" condition for a very good reason. If that reason is invalid, then it means that the situation is even worse than what I've been arguing, and leaves IVC's argument in an even worse position than it already is.
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Old 02-19-2018, 4:38 PM
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There is no evidence at all that SCOTUS grants cert solely on the basis of the justification for ruling in favor of the state. If you don't believe me, you need only examine Friedman v Highland Park, where the justification was, in part, that the law made the people feel safer.

Indeed, if it is only the basis of the justification for such decisions that the Court uses for deciding to grant or deny cert, then that has dire implications, for it means that the Court does not substantially disagree with the reasoning behind any of the prior decisions which it has denied cert to.

No, I raised the "poor downtrodden homeless person with a nonlethal weapon" condition for a very good reason. If that reason is invalid, then it means that the situation is even worse than what I've been arguing, and leaves IVC's argument in an even worse position than it already is.
I do believe, hopefully mistakingly, that your statement is exactly correct in practice that "the Court does not substantially disagree with the reasoning behind any of the prior decisions which it has denied cert to". You see this all the time in who dissents on cert denials. Cynically, the minority gets to write dissents and eat crow, and yes that is a sad state of affairs if true. I have a hard time believing SCOTUS is just too busy to take important cases that blatantly infringe on constitutional rights.
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