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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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  #241  
Old 10-16-2017, 3:02 PM
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Originally Posted by sarabellum View Post
KC Brown, you posed the correct questions. Correct "zoning laws" is not an analysis.

First, the fundamentals of constitutional law applied to businesses are the dormant commerce clause, 1st Amendment commercial speech, 14th Amendment right to a livelihood, etc. The right to contract is considered by the US Supreme Court to be a dead letter.

The First Amended Complaint did not plead these theories of law, perfectly appropriate to a business. Rather, the plaintiffs' complaint plead two causes of action under the Second Amendment and two causes of action under the Equal Protection Clause of the XIV Am. US Constit.

To be fair to the Michel firm, they were retained to bring a 2nd Amendment case, and they did. The 2nd Amendment doctrine is in its infancy. The Plaintiffs in the Teixeira case engaged in experimental law.

Second, on 09/09/13, the District Court order dismissed the case under FRCP 12(b)(6) failure to state a claim, i.e. the pleadings are defective such that the case may resolved without reaching the merits. We have ad nauseum pointed out that the Supreme Court in Heller carved out exceptions to the 2nd Amendment that consume the entire right to bear arms. The District Court precisely and easily cited Heller for the proposition that the states may regulate the possession and sale of firearms:
The first step of the analysis is dispositive in this case: under the Supreme Court‟s decisions in Heller and McDonald, the Ordinance is presumptively lawful. Critically, as previously noted, the Supreme Court has cautioned that nothing in the Heller opinion “should be taken to cast doubt on . . . laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Heller, 554 U.S. at 626-27. The Supreme Court explained that its list of “presumptively lawful regulatory measures” was “not [] exhaustive.” Id. at 627 n.26.
09/09/13 Order granting D motion to dismiss, pp. 9: 14-22

The Heller decision makes clear that state laws controlling the sale of firearms are presumptively valid. Id. The language from the 09/09/13 citing to Heller is dispositive and predicatable.

Third, on 05/16/16 in Teixeira, the 3 judge panel decision from the Ninth Circuit confronted the all consuming exception from Heller, correctly asked the logical question of "how are citizens to exercise a fundamental right to own something if they cannot legally buy it?" by turning to another classic case Carey and the law prohibiting contraceptives, "“[l]imiting the distribution of nonprescription contraceptives to licensed pharmacists clearly imposes a significant burden on the right of the individuals to use contraceptives. . ." pp. 16.

However, 3 judge panel in Teixeira turned to non-judicial support, "The historical record indicates that Americans continued to believe that such right included the freedom to purchase and to sell weapons. In 1793, Thomas Jefferson noted that “[o]ur citizens have always been free to make, vend, and export arms. It is the constant occupation and livelihood of some of them.” pp. 16.

Once the panel determined that a fundamental right to sell and buy firearms exists, then it turned fatally to analyzing what level of scrutiny should apply (even though Heller indicated that all regulations are presumptively valid).

The 3 judge panel concluded that "The district court erroneously believed that the Ordinance fell outside the scope of the Second Amendment and thus warranted no more than rational basis review" (pp. 28) and that, "the intermediate scrutiny standard [applies], all forms of the standard require (1) the government’s stated objective to be significant, substantial, or important; and (2) a reasonable fit between the challenged TEIXEIRA V. 28 COUNTY OF ALAMEDA regulation and the asserted objective.” Id. 27-28. The 3 judge panel court remanded the matter for the trial court to apply intermediate scrutiny:
Alameda County’s Ordinance may very well be permissible. Thus far, however, the County has failed to justify the burden it has placed on the
right of law-abiding citizens to purchase guns. The Second Amendment requires something more rigorous than the unsubstantiated assertions offered to the district court.

Consequently, we reverse the dismissal of Teixeira’s well pled
Second Amendment claims and remand for the district court to subject Alameda County’s 500-foot rule to the proper level of scrutiny.
Id. pp. 34.

The level of scrutiny is a problem since the Heller decision's "presumptively" valid language is lower than rational basis shifting the burden entirely to the plaintiff.

The 10/10/17 En Banc decision reversed explaining, "Our conclusion that the Second Amendment does not confer a freestanding right to sell firearms is fully consistent with Heller, which closely examined the historical record and concluded that, at its core, the Second Amendment protects defense of hearth and home.” 554 U.S. at 635," i.e. the right to sell arms is not a fundamental right. Pp. 35. On the other hand, a law prohibiting entirely prohibiting sales would be unconstitutional, "would be untenable under Heller,” id., because a total prohibition would severely limit the ability of citizens to acquire firearms." Id. pp. 37. However, because the Alameda County ordinance applies to the unincorporated areas of the county and not to cities, where persons can currently buy firearms, citizens are only incidentally inconvenienced, "Marzzarella did not consider a situation in which the right of citizens to acquire and keep arms was not significantly impaired, yet commercial retailers were claiming an independent right to engage in sales." Id. at 37.

With regard to a 1st Amendment claim (perhaps in the opposition to the FRCP 12(b)(6) motion the Plaintiffs offered to amend to add a 1st Am claim), the en banc order explained that unlike selling of books and newspapers communicating a point of view, the selling of arms does not implicate the 1st Amendment, "Alameda County’s Zoning Ordinance, to the extent it simply limits a proprietor’s ability to open a new gun
store, therefore does not burden conduct falling within the Amendment’s scope . . ." i.e. persons can buy an existing gun business.

Heller is the problem with its expansive exception concluding all regulation of arms by the states to be presumptively valid.

The Teixeira case was a valuable effort because it forced the development of the contours of 2nd Am. doctrine in the 9th Circuit.
IANAL but the above sounds curious when quoting Heller (which not only established a fundamental enumerated right but STRUCK DOWN A REGULATION that trampled that right). So much for the theory that all government has to do is say "we are regulating" and its presumptively legal.
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  #242  
Old 10-16-2017, 5:34 PM
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Originally Posted by Hoop View Post
I had a back and forth with a liberal lawyer friend of mine (who is also a judge) about this and he said something along the lines of "why is it a big deal if they have to drive 3-4hrs to buy a gun?". When I asked whether or not driving 3-4hrs to get an abortion would be feasible he replied that it was "different". His mentality seems to be the prevailing mood for justices out here.
Yup, and they'll point to the case law that treats it differently as a proof that "it's different." They also avoid the true question: "should it be different?"

The only way to battle this is to stack up the courts with "it's different" types who are on our side.
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  #243  
Old 10-16-2017, 7:37 PM
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There can be no doubt that evidence the regulations are “longstanding” is required to claim Heller’s carve-out for “presumptively lawful” “conditions and qualifications on the commercial sale of arms.” In the above-quoted passage from Heller, the object of the preposition “on” in the phrase “cast doubt on” is a disjunctive parallel construction: “longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Thus, under the series-qualifier canon, the adjective “longstanding” applies to each phrase within the parallelism—including “laws imposing conditions and qualifications on the commercial sale of arms.” See Antonin Scalia and Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 147–151 (West 2012).
It's powerful .. Consider Scalia wrote Heller, and Scalia wrote the book which
Judge Bea used to better understand Heller, I don't think it gets much better then that. There is a lot of good stuff in Bea's dissent.
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  #244  
Old 10-19-2017, 3:53 PM
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The problem with these types of cases is what we knew from the beginning: judges can make each side fit their narrative, so whoever has the numbers wins. No different than stacking the Supreme Court.

Back to this case, sure there are "holes" in the plaintiff's argument, but the holes are there only because the court has adopted a framework that creates these holes so the defendants can win. Claiming that the "holes" are somehow fundamental and not a consequence of the arbitrary nature of the court is disingenuous. There were holes in the desegregation arguments and the courts upheld it. Until they didn't.

The only good coming out of these types of decisions is the understanding that this has nothing to do with the law and everything to do with the ideology. Put enough judges on a court and all of this is reversed. The battle is no longer to make a case in the court, but to make the court to fit the ideology.

Can't wait to see "living constitution" judges and justices appointed. No, not the hard left ideologues, but the far right ideologues. Staying true to the principles has only hurt us in the past. Time to start playing the big boys' game. Please proceed, Mr President...
I want my living constitution to find a need to arm every eligible 18 year old with an m4 with optics and m203 with a few cases of ammo for each. The high achievers get stingers.
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Yes. But the real problem isn't so much that the judges can make each side fit their narrative, but that they do.

Which is to say, the claim is that judges are supposed to be objective arbiters of law. That is a direct contradiction to the actions of judges who make their decisions fit their preferred narrative. And yet, the latter is what happens.




So it seems.

Of course, you realize that in doing that, we will lose in the end. Not necessarily because the resulting judges won't protect the liberties that we want protected right now. No, it's because they won't protect the liberties that we may want protected later, precisely because they won't stay true to the foundational principles.

It is only if their ideology is the protection of liberty that we will see them protect liberty in general. Absent that, we will continue to see liberty destroyed in front of us, with even "our" judges looking on approvingly.
That's already the situation.

The only question is do we fight the way we have a fighting chance of preserving/expanding/winning in our lifetimes, or do we cede the battlefield for fear of fighting?

The cat is already out of the bag. The enemy has already revealed themselves and their tactics. And, because of case law, literally the fact that it has been done before makes it a valid technique.

Given the strongly anti-liberty trends we had in cities, urbanization, and globalization, mere "principles" and fighting a principled war based off a "leave me alone" perspective is a doomed ideology, allowing you to scream about your principles as everything important the principles would touch is stripped from you, defiled, and made a memory.

But being able to claim you stood for your principles in the government-owned bar after the dust settles is important, as everyone struggles to get their government-issued surveillance device to analyze your voice stress to see if you are actually advocating anything besides useless puffery.

The judicial cat is out of the bag. We need to nuke the blue slips and use trump to ram through as many judges as possible.

That's the entirety of the game. I'm not a fan of it, but as we've seen legal decisions have a trickle down cultural effect as well that is a force multiplier. If we refuse to fight this way, we admit we are NEVER getting our cake back.
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  #245  
Old 10-19-2017, 10:10 PM
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Originally Posted by lowimpactuser View Post
The cat is already out of the bag. The enemy has already revealed themselves and their tactics. And, because of case law, literally the fact that it has been done before makes it a valid technique.

Given the strongly anti-liberty trends we had in cities, urbanization, and globalization, mere "principles" and fighting a principled war based off a "leave me alone" perspective is a doomed ideology, allowing you to scream about your principles as everything important the principles would touch is stripped from you, defiled, and made a memory.

But being able to claim you stood for your principles in the government-owned bar after the dust settles is important, as everyone struggles to get their government-issued surveillance device to analyze your voice stress to see if you are actually advocating anything besides useless puffery.

The judicial cat is out of the bag. We need to nuke the blue slips and use trump to ram through as many judges as possible.

That's the entirety of the game. I'm not a fan of it, but as we've seen legal decisions have a trickle down cultural effect as well that is a force multiplier. If we refuse to fight this way, we admit we are NEVER getting our cake back.
I don't disagree with you at all. Frankly, the real choice is between "living constitution" types who support the rights and liberties we value, and ones who want to see them destroyed. People who really do adhere to the principles of liberty simply aren't in the cards for this.

And it's quite clear that when the choice is that, you go with the "living constitution" type who agrees with you.

The point wasn't to suggest a better alternative. There is no better alternative. The point was only to set the proper expectations of what will happen if we get what we choose.
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  #246  
Old 10-19-2017, 11:31 PM
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Originally Posted by kcbrown View Post
I don't disagree with you at all. Frankly, the real choice is between "living constitution" types who support the rights and liberties we value, and ones who want to see them destroyed. People who really do adhere to the principles of liberty simply aren't in the cards for this.

And it's quite clear that when the choice is that, you go with the "living constitution" type who agrees with you.

The point wasn't to suggest a better alternative. There is no better alternative. The point was only to set the proper expectations of what will happen if we get what we choose.
I was pretty sure you were with me.

At this point, winning is all that matters. Frankly, politics and constitutional principles have gone so far off the rails, the "muh constitution" reasoning fails because "muh constitution" has been corrupted by leftists to mean "Abortion legal, guns and self defense not" so "muh constitution" basically means backing the leftists on whatever campaign they want, just doing it slower.

As you yourself have admitted, we need an article V to amend the constitution. Many people I know are advocating for secession/breakup of the US. Whatever it is, it clearly involves a radical reimagining and codification of the current legal contract on a constitutional level- either a severing or expelling of those who don't like it, or a rewrite and clarification to radically change what we already have and how it functions- whether it be extra restrictions or limits or nullification of court power, etc.

^That's pretty much a forgone conclusion at this point. The only issue is what we bring to the table as inalienable rights, that we actually HAVE and EXERCISE, as those are the ONLY things that will stand a chance of being protected at the next major constitutional revision. Right now, our job is to get the cake back; THEN we worry about how we preserve the cake.
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  #247  
Old 10-20-2017, 11:26 AM
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Judge Bea needs to be on the president's very, very short list for the next SCOTUS vacancy. We should all vocally insist upon it.
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  #248  
Old 10-26-2017, 7:27 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
Calguns loses en banc:

En Banc opinion
It's been two weeks. Anyone know if they're going to ask for cert.?
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  #249  
Old 10-26-2017, 8:51 PM
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Judge Bea needs to be on the president's very, very short list for the next SCOTUS vacancy. We should all vocally insist upon it.
Judge B is way to old-- we need a 50 YR old constitutionalist
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  #250  
Old 01-08-2018, 3:47 PM
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When is/was the deadline for Teixeira to ask for cert? Since Oct and Dec have 31 days, I think it was today.

Regardless, any word on if they're going to ask for cert?
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  #251  
Old 01-09-2018, 2:29 PM
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NOW AWAITING SCOTUS REVIEW

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  #252  
Old 01-11-2018, 9:17 AM
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Jan 08 2018 Petition for a writ of certiorari filed. (Response due February 9, 2018)
From: https://www.supremecourt.gov/search....ic/17-982.html
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  #253  
Old 02-09-2018, 12:27 PM
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Jan 29 2018 Motion to extend the time to file a response is granted and the time is extended to and including April 10, 2018.
From: https://www.supremecourt.gov/search....ic/17-982.html
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  #254  
Old 02-09-2018, 2:15 PM
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I cant believe this BS is going on 8 years and just now getting considered by SCOTUS.
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Old 02-10-2018, 8:07 PM
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Amicus brief filled - http://davekopel.org/Briefs/17-982%2...ief%20Cato.pdf

See also the Volokh Conspiracy post here - http://reason.com/volokh/2018/02/09/...ores-amicus-br
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Old 02-11-2018, 8:51 AM
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Whaatttt? Over 2 MONTHS given for an extension?
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Old 04-06-2018, 3:57 PM
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Jan 29 2018 Motion to extend the time to file a response is granted and the time is extended to and including April 10, 2018.
From: https://www.supremecourt.gov/search....ic/17-982.html
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Old 04-07-2018, 6:46 AM
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IANAL but I think the question is all wrong. I see no right for anyone to sell arms, necessarily. The right is of the People to be able to do commerce in arms. The end result is the same, the County cannot, user the guise of "regulation" burden the People's ability to conduct commerce in arms. I think the Circuit Court framed it that way BECAUSE sellers may be routinely regulated, etc.
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Old 04-10-2018, 7:49 AM
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Quote:
Quote:
Jan 29 2018 Motion to extend the time to file a response is granted and the time is extended to and including April 10, 2018.
From: https://www.supremecourt.gov/search....ic/17-982.html
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Old 04-10-2018, 12:43 PM
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Its up!
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Old 04-10-2018, 3:09 PM
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It subsequently dismissed petitioners’ amended complaint with prejudice, again for failure to state a claim, after petitioners “waived [their] right to amend the complaint” further by expressly declining the opportunity to do so.
[cough]Hokeyson[/cough]

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Old 04-24-2018, 5:05 AM
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reply brief filed http://www.scotusblog.com/case-files...ty-california/
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Old 04-24-2018, 3:56 PM
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Quote:
Originally Posted by SCOTUS
Apr 24 2018 DISTRIBUTED for Conference of 5/10/2018.
From: https://www.supremecourt.gov/search....ic/17-982.html
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  #264  
Old 04-30-2018, 4:22 PM
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Originally Posted by Drivedabizness View Post
IANAL but I think the question is all wrong. I see no right for anyone to sell arms, necessarily. The right is of the People to be able to do commerce in arms. The end result is the same, the County cannot, user the guise of "regulation" burden the People's ability to conduct commerce in arms. I think the Circuit Court framed it that way BECAUSE sellers may be routinely regulated, etc.
The question is if the sellers are regulated out of existence that removes the right of the people. This needs to be taken in the light of the state forcing more regulations requiring use of FFLs. With almost all gun transfers required to go through dealers and now ammunition sales shutting down dealers via regulations suspends our rights.
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Old 05-11-2018, 10:08 PM
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Quote:
Originally Posted by SCOTUS
Apr 24 2018 DISTRIBUTED for Conference of 5/10/2018.
From: https://www.supremecourt.gov/search....ic/17-982.html
bump
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Old 05-11-2018, 11:03 PM
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IANAL but I think the question is all wrong. I see no right for anyone to sell arms, necessarily. The right is of the People to be able to do commerce in arms.
I see no right in the Constitution for newspaper publishers or website publishers, writers, editors, etc. to exist either. Are you seriously going to argue that in order for a right to exist, that the commercial aspects of the businesses that engage in that Constitutional right must therefore be enumerated in the Constitution?

What exactly are you smoking/drinking/inhaling/injecting? Because it seems like you're ingesting some Scheduled narcotics.
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Old 05-12-2018, 4:19 PM
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I see no right in the Constitution for newspaper publishers or website publishers, writers, editors, etc. to exist either. Are you seriously going to argue that in order for a right to exist, that the commercial aspects of the businesses that engage in that Constitutional right must therefore be enumerated in the Constitution?

What exactly are you smoking/drinking/inhaling/injecting? Because it seems like you're ingesting some Scheduled narcotics.
What I *think* the court is saying is that it's supposed to be potential customers suing, and not the business alone. Sort of a technical glitch.
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Old 05-14-2018, 9:19 AM
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Quote:
May 14 2018 Petition DENIED.
From: https://www.supremecourt.gov/search....ic/17-982.html
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Old 05-14-2018, 9:40 AM
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The liberal justices once again upholding their blood pact of turning their back on the 2A.
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Old 05-15-2018, 1:00 PM
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This case REDLINED right down the toilet!
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Old 05-15-2018, 2:29 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
This case REDLINED right down the toilet!
I don't read emotions in to posts, but are you happy this happened?
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Old 05-15-2018, 2:56 PM
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Happy, no.

Angry, frustrated and concerned, definitely.

This is now a hole we're going to have to dig out of.

http://reason.com/archives/2018/05/1...-to-regulate-g
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Old 05-15-2018, 3:21 PM
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We might as well be back living under the Articles of Confederation than the Constitution.
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Old 05-16-2018, 4:21 PM
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I wonder if we will see another run at this one now that ammunition must go through a dealer. I suspect if a few more abortion hostile jurisdictions drive out all clinics in a state we might watch the liberals come down with a ruling with a right to access. I suspect some of the more recent Republican appointees wouldn't fight that battle much. It would be very interesting to see how they can find a right to access something that isn't an enumerated right yet find no similar access for a right.
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Old 05-16-2018, 7:01 PM
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This was a zoning issue that turned into a 2A argument. To many variables for SCOTUS to swim through. Sorry to the plaintiffs but it didn’t start out on the right footing. JMHO
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Old 05-17-2018, 4:01 AM
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If this was about regulating abortion clinics out of existence they would've taken the case.

At this point I think Kennedy is just hanging on because of a few issues he wants to be present for on the bench, then he'll check out. I think it's a selfish legacy thing. My guess is gay cake stuff and other social issues, since he's the almighty "swing justice". He probably has an agreement that he won't decide on 2A cases either way, and the rest can hash it out when he's gone. I guess it dies on the vine in the meantime.
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Old 05-17-2018, 8:41 AM
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This was in the news today:

https://townhall.com/notebook/bethba...ision-n2481493
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