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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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  #321  
Old 11-28-2017, 3:32 PM
rplaw rplaw is offline
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Originally Posted by TruOil View Post
True enough, but court decisions validating the statute as constitutional do.
So what are the options then? Obey a state regulation which bans a Constitutional Right that may, or may not, be lawful? Guaranteed 100% effective in losing the Right affected because you GAVE IT AWAY.

Or challenge the regulation and find out. 50/50 roll of the dice.

Too many people are willing to do NOTHING but sit on the fence and complain that others are doing too much. We have NO RIGHTS AT ALL, unless we are willing to stand up and defend them from our legislators and government. It seems as If Nichols is willing to do that. I am amazed at all of those here who profess to support the 2A but won't stand behind him as he mounts his challenge to governmental infringement of our Rights. Personality differences be damned, he's leading the fight. Where are you?
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  #322  
Old 11-29-2017, 2:51 PM
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So what are the options then? Obey a state regulation which bans a Constitutional Right that may, or may not, be lawful? Guaranteed 100% effective in losing the Right affected because you GAVE IT AWAY.

Or challenge the regulation and find out. 50/50 roll of the dice.

Too many people are willing to do NOTHING but sit on the fence and complain that others are doing too much. We have NO RIGHTS AT ALL, unless we are willing to stand up and defend them from our legislators and government. It seems as If Nichols is willing to do that. I am amazed at all of those here who profess to support the 2A but won't stand behind him as he mounts his challenge to governmental infringement of our Rights. Personality differences be damned, he's leading the fight. Where are you?
Challenging a law is one thing, supporting Nichols is another. Have you read his briefs? His opening brief on appeal was well done, but the reply was nearly unreadable. I have a hard time believing that he will acquit himself well in oral arguments, and since he will be in front of a circuit with a historic antipathy to gun rights of any form, a bad case is just asking for a bad decision...The issue needs to be addressed, but I have no confidence in Mr. Nichols' ability to prevail.

Not that it matters. After the denial of cert in Kolbe and Norman, the stage is set for a decision upholding the open carry ban "in the interest of public safety."
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  #323  
Old 12-03-2017, 12:34 PM
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Challenging a law is one thing, supporting Nichols is another. Have you read his briefs? His opening brief on appeal was well done, but the reply was nearly unreadable. I have a hard time believing that he will acquit himself well in oral arguments, and since he will be in front of a circuit with a historic antipathy to gun rights of any form, a bad case is just asking for a bad decision...The issue needs to be addressed, but I have no confidence in Mr. Nichols' ability to prevail.

Not that it matters. After the denial of cert in Kolbe and Norman, the stage is set for a decision upholding the open carry ban "in the interest of public safety."
I have read his briefs. Have you read some of the briefs by "the right people"? Let me tell you, there isn't ANY difference. At least in his case he has the excuse of not being trained or experienced.

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

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

It's pathetic. Really, it is.
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  #324  
Old 12-03-2017, 3:54 PM
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Default Nichols vs brown

Finally going before the court and hope he prevails
Nichols v. Brown - California Open Carry appeal - Oral Argument Calendared!

2018-02-15 9:00 am Courtroom 3, Richard H. Chambers US Court of Appeals, Pasadena

https://www.ca9.uscourts.gov/calenda...aseno=14-55873
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  #325  
Old 12-03-2017, 4:25 PM
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I have read his briefs. Have you read some of the briefs by "the right people"? Let me tell you, there isn't ANY difference. At least in his case he has the excuse of not being trained or experienced.
Not that this matters in the slightest. The 9CA will decide the issue against him and the Supreme Court (if its composition remains as it is) will refuse to hear the appeal, and that's that.

The "right" to keep and bear arms in this country isn't a real right, it's a politically-metered privilege. If it were a real right then it would be something that we could, as a general rule, lawfully exercise no matter what the government thought. Instead, it is a right we can only lawfully exercise when the government allows it, since nearly any and all laws which impose upon it have been upheld by the judiciary.


No other Constitutionally-protected right has been treated in this manner. Not a single one. That alone is proof that the entirety of government at every level, encompassing all branches, is one that does as it pleases no matter what the Constitution has to say on the subject. The government is no longer a Constitutional government. It is now a fiat government only, and the only reasons it retains power is that, firstly, the citizenry it governs is composed largely of people who care no more about the Constitutional foundation of the government than the government itself does and, secondly, that the government commands far more force than the portion of the citizenry that does care about the Constitution is willing or able to challenge.


Put another way: we no longer live in a Constitutional republic. We merely live in an ever-less-representative republic that operates under an arbitrary set of rules that the government makes up as it goes. By the time the citizenry discovers that it can no longer tolerate the malevolence of the government which shackles them, they will be unable to free themselves of their shackles, having given up their ability to do so long before. This is how tyranny always rises, and why tyranny is the historical norm. We will not see anything like the United States of old again for many centuries, if not millennia, if indeed ever. This is because there is no longer any place to escape to, and technology disproportionately empowers government at an ever increasing pace.


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All that aside, the thing is, I remember the beginning of his case. The part where he was asking for legal help but got snubbed by all the "experts" here and by "the right people" elsewhere.
It should be clear by now that the "right people", well, weren't. Such is what happens when arrogance overpowers logic.

Now, Nichols may have plenty of that himself (I've had no dealings with him myself so I simply cannot say, but what I've seen of his interactions on forums such as this does not inspire confidence). If he does, it will not help him unless he is able to cast it aside when the real world contradicts any preconceived notions he may have.

I think Tincon (who hasn't posted here, that I've seen, in a very long time, even under a new account that would be associated with his new role at Michel & Associates) pointed out a very valid factor in litigating: you need to raise all arguments, and present all alternatives, that support the outcome you're after. I interpret that to mean, as regards carry, you do not play favorites as regards mode of carry in any way that can possibly compromise the outcome.

Nichols now comes into the picture where the 9CA has eliminated concealed carry as an option. This is very favorable for him in principle. In practice, it won't make a bit of difference as things are now. But it needs to be said: a bad outcome here will not be his fault. The plain fact is that the courts here despise the right to arms with every fiber of their existence, and they will do anything and everything to kill it dead.


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

It's pathetic. Really, it is.
Exactly. At the very least, one should recognize that his case and Flanagan are the only two cases left standing, and Flanagan was filed only because Peruta failed. Nichols is now fighting alone. All other efforts (that I know of) save for Flanagan are dead and buried.

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

Flanagan will be coming to the 9th Circuit under circumstances where the 9CA has destroyed the entire right to carry. I'll be watching with great interest what arguments it raises that could possibly prevail under those circumstances. But again, make no mistake: Nichols will not be the cause of that. The outcome for Flanagan would be exactly the same regardless.
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  #326  
Old 12-03-2017, 4:50 PM
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I think the supreme court has been waiting for a direct basic question like Nichols, and something pushed up by a citizen will probably be more favorable to the court than if it were pushed up by the NRA.

I predict Nichols all the way to a SCOTUS win.
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  #327  
Old 12-03-2017, 5:34 PM
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Default Nichols Vs. Brown update...

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I think the supreme court has been waiting for a direct basic question like Nichols, and something pushed up by a citizen will probably be more favorable to the court than if it were pushed up by the NRA.

I predict Nichols all the way to a SCOTUS win.


How does it materially differ from Norman (well, aside from the declaration that concealed carry isn't protected)? More importantly, how does it differ from Woollard?




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  #328  
Old 12-03-2017, 5:52 PM
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How does it materially differ from Norman (well, aside from the declaration that concealed carry isn't protected)? More importantly, how does it differ from Woollard?




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Not sure really, but I think the home grown nature of this case will be appealing to SCOTUS.
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  #329  
Old 12-03-2017, 5:54 PM
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My point about Nichols is that he is an inarticulate spokesman, and that a more articulate spokesman might have a better chance of succeeding. Also, I don't seem to recall Nichols seeking legal assistance, only funding, but I could be wrong on that; it has been a long time.

In any event, he could lose notwithstanding his inability to string together two sentences that make sense, simply because, as kcbrown points out, this is no longer a legal question but a political one. The Ninth seems more than willing to subordinate second amendment rights to the State's claimed interest in public safety.

Here is my worst case scenario for the next year or so. Nichols wins and we go back to open unloaded, but not in school zones. And, if, unlikely as it seems, national reciprocity passes, our next governor will eliminate concealed carry permits, since, after all, there is no "right" to carry a concealed weapon. (Actually, he could try such a move even without a national reciprocity act, but it is literally guaranteed someone will try if it does.) It will take years, of course, for the next case to make it to the Supreme Court.

Thus, our best hope right now is that Nichols loses and the case goes to SCOTUS.
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  #330  
Old 12-03-2017, 7:26 PM
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Not sure really, but I think the home grown nature of this case will be appealing to SCOTUS.
Why would you expect the home grown nature of the case to overcome SCOTUS' very obvious fear (not mere reluctance) of dealing with any 2A firearms issues? Remember that they've denied cert to all manner of 2A firearms cases. The only 2A case they've done anything about since McDonald is one that involved a "nonlethal" weapon possessed by a poor downtrodden homeless woman whose plight tugged on the heart strings of the liberal judges. Nichols most certainly won't be regarded in such a manner by those same liberal judges.

Firearms represents a political football that SCOTUS obviously regards as too hot to touch. And that is why it won't take Nichols. Not because of the quality of the argument, or the nature of the plaintiff, or the degree of infringement upon the right. But, quite simply, because gunz. SCOTUS quite obviously wants nothing to do with them in the context of law abiding citizens (I am uncertain if SCOTUS is equally reluctant to take firearms cases where criminals, i.e. people who have committed non-firearms crimes, are involved).

That simply cannot change until at least one of the reluctant judges or the liberal judges is replaced by someone who is unafraid of the implications of the citizenry exercising their Constitutionally-protected rights. Right now, there are too few such judges on the Supreme Court. The remainder are either afraid of those implications or are judges who would prefer to see the Constitution torn asunder and are more than happy to help do precisely that.
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  #331  
Old 12-03-2017, 7:39 PM
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Firearms represents a political football that SCOTUS obviously regards as too hot to touch. And that is why it won't take Nichols. Not because of the quality of the argument, or the nature of the plaintiff, or the degree of infringement upon the right. But, quite simply, because gunz. SCOTUS quite obviously wants nothing to do with them in the context of law abiding citizens (I am uncertain if SCOTUS is equally reluctant to take firearms cases where criminals, i.e. people who have committed non-firearms crimes, are involved).

That simply cannot change until at least one of the reluctant judges or the liberal judges is replaced by someone who is unafraid of the implications of the citizenry exercising their Constitutionally-protected rights. Right now, there are too few such judges on the Supreme Court. The remainder are either afraid of those implications or are judges who would prefer to see the Constitution torn asunder and are more than happy to help do precisely that.
Personally--and all any of us can do is guess--I think that there are four pro votes and four anti votes, and neither the pro side nor the anti side has any confidence in where Kennedy (who has become rather "iffy" since Heller and McDonald) will come out. This is a battle for all the marbles, and neither side wants to lose.
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  #332  
Old 12-03-2017, 8:51 PM
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Originally Posted by mexicangunlover View Post
Finally going before the court and hope he prevails
Nichols v. Brown - California Open Carry appeal - Oral Argument Calendared!

2018-02-15 9:00 am Courtroom 3, Richard H. Chambers US Court of Appeals, Pasadena

https://www.ca9.uscourts.gov/calenda...aseno=14-55873
Will there be Youtube streaming? If so, link?
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  #333  
Old 12-04-2017, 1:56 PM
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Will there be Youtube streaming? If so, link?
I can't recall if they have live streaming or it gets posted within a day or so.

Something I noticed when I looked at the CA9 calendar was that they are pulling in a lot of district court judges to sit on their panels. Most of the cases (excluding en banc) seemed to have at least 1 district judge, who could be from anywhere (I saw NH, IL, and WV judges).
This could be a good thing; may actually get a more favorable panel.
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  #334  
Old 12-05-2017, 2:28 AM
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Does SCOTUS look at cases in a dynamic setting? What I mean is taking the sequence of events into consideration. To me- Nichols is more enticing now post Peruta as the 9th has established that there is no right to CC. ---> Given no right to CC makes the ban of OC more devasting that before.
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Old 12-05-2017, 6:29 AM
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You'd think so, although I'm sure the state will probably turn around and say that Nichols should go get a CCW and he didn't avail himself of all remedies. Even though it's crap, they'll likely try it as opposed to straight up admitting they're causing a clear split with Moore.
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  #336  
Old 12-05-2017, 10:30 AM
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Kcbrown and rplaw-
You two are among the few reasons I still visit and post.

Quite simply- absolutely correct and necessary to say.

I’ve corresponded with Nichols.

Anyone can.

It’s more likely he’ll answer if you donate- even a small amount like $10.

The man is definitely strange; but given what it took to persevere and continue under the hostility of the courts, the legal establishment, and even “pro-gun” people-

No one else could have persevered. Nichols is a product of the environment that made someone like him the only possibility. I wish he was kinder and cuddlier; but if he was he wouldn’t have made it through the years and appeals solo as he has. When you’re optimized for survival at 0 degrees kelvin, in the vacuum of space, some humanizing aspects get lost.

What’s more amazing is for all the “selflessness” and “public service” of the pro gun movement, no lawyer could bow his head enough to work with Nichols.

Is Nichols arrogant? Sure.

Is Nichols unfriendly? Sure.

Would Nichols oppose help on his terms, where he gets all the credit? Nope.

The very fact that no one was able to duck his head and abase himself to work with Nichols is proof positive of how this movement is largely made of egotists who can’t put the mission first.

Finally, the very fact everyone loves to speculate over Nichols, instead of just asking him and getting firsthand knowledge of the man is dumbfounding. For a bunch of “activists” people here are surprisingly lazy and unwilling to do the hard, hard task for going to his blog, and hitting the “send an email” link and writing him an email.

Instead, everyone wants to prognosticate over the public statements and findings of the man. Too many sports commentators, not enough actual sports players.
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  #337  
Old 12-06-2017, 6:44 PM
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I have read his briefs. Have you read some of the briefs by "the right people"? Let me tell you, there isn't ANY difference. At least in his case he has the excuse of not being trained or experienced.
Please select some of the arguments from an opening and opposition brief from one of the attorneys, and place them side by side here so we can see how they are identical to Mr. Nichols'.

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The very fact that no one was able to duck his head and abase himself to work with Nichols is proof positive of how this movement is largely made of egotists who can’t put the mission first.
On 02/19/17, I corresponded with Mr. Nichols, who refuses to talk on the phone. I did not merely offer to help with his upcoming reply/rebuttal brief against the AG's opposition brief. Rather, I wrote the reply brief and pointed out that the Overturf case and the statute which it addressed and that he challenged were mooted by a superseding statute, thus not requiring any discussion. For his part, he wrote back garbage and indicated that he did not need any help. Folks, who do not understand the law and history, and do not care to read it, identify with Nichols, because he does not know and does not care to learn. Mr. Nichols is not Clarence Earl Gideon, presenting a thoughtful case in pro per. The sole, tiny redeeming value in Nichols' disastrous cases is that he puts the mechanism of the judiciary in motion in pro per, as the courts were partially designed to do. Nothing else.

Thereafter, the courts dispose of his cases without much thought as they do with every other in pro per case, appearing on the docket 1 out of 1000 times. Next.

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  #338  
Old 12-08-2017, 8:44 AM
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Please select some of the arguments from an opening and opposition brief from one of the attorneys, and place them side by side here so we can see how they are identical to Mr. Nichols'.


On 02/19/17, I corresponded with Mr. Nichols, who refuses to talk on the phone. I did not merely offer to help with his upcoming reply/rebuttal brief against the AG's opposition brief. Rather, I wrote the reply brief and pointed out that the Overturf case and the statute which it addressed and that he challenged were mooted by a superseding statute, thus not requiring any discussion. For his part, he wrote back garbage and indicated that he did not need any help. Folks, who do not understand the law and history, and do not care to read it, identify with Nichols, because he does not know and does not care to learn. Mr. Nichols is not Clarence Earl Gideon, presenting a thoughtful case in pro per. The sole, tiny redeeming value in Nichols' disastrous cases is that he puts the mechanism of the judiciary in motion in pro per, as the courts were partially designed to do. Nothing else.

Thereafter, the courts dispose of his cases without much thought as they do with every other in pro per case, appearing on the docket 1 out of 1000 times. Next.
They dispose of the vast majority of pro se cases without oral argument. They are hearing his case in Feb. That means at least one judge thinks that his case has at least some merit.
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  #339  
Old 12-08-2017, 2:09 PM
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Originally Posted by sarabellum View Post
Please select some of the arguments from an opening and opposition brief from one of the attorneys, and place them side by side here so we can see how they are identical to Mr. Nichols'.


On 02/19/17, I corresponded with Mr. Nichols, who refuses to talk on the phone. I did not merely offer to help with his upcoming reply/rebuttal brief against the AG's opposition brief. Rather, I wrote the reply brief and pointed out that the Overturf case and the statute which it addressed and that he challenged were mooted by a superseding statute, thus not requiring any discussion. For his part, he wrote back garbage and indicated that he did not need any help. Folks, who do not understand the law and history, and do not care to read it, identify with Nichols, because he does not know and does not care to learn. Mr. Nichols is not Clarence Earl Gideon, presenting a thoughtful case in pro per. The sole, tiny redeeming value in Nichols' disastrous cases is that he puts the mechanism of the judiciary in motion in pro per, as the courts were partially designed to do. Nothing else.

Thereafter, the courts dispose of his cases without much thought as they do with every other in pro per case, appearing on the docket 1 out of 1000 times. Next.
What a bunch of hooey. Had you done the same thing to me I'd have shot you down as well. No one likes a Buttinski.

But, on to your first request: months ago there was a new complaint which I called "Peruta II" You can search for it if you want, but the gist is that I said the case wasn't going anywhere AND that if the filing attorney was lucky they wouldn't be facing sanctions for filing a frivolous lawsuit.

Upshot: Everyone was backing it because "the 9th had painted itself into a corner and HAD TO hear the matter and decide in favor of it". I was vilified as an idiot who knew nothing. There were even some who questioned if I was actually an attorney. But, here we are - case when nowhere BECAUSE it was "Peruta II".

It's not the only case I (and others) have commented upon where things were poorly stated or left out completely AND the cases hinged upon those items and were defeated because of them or their lack. I don't remember which ones and I'm not all that interested in spending my time trying to remember or search every post on the forum for the answer. You can. I won't. The end.

Yet now you want me to compare those poor showings with Nichol's who ISN'T trained as an attorney? Lolz. By comparison, Nichols' briefs are clear and concise where it matters. Whether you agree with that statement is irrelevant. What's relevant is that Mr. Nichols has Oral Argument in February and you, AND "the right people" involved in those other cases, don't. Whether he prevails or not is unknown at this point but despite all the odds, and the lack of support monetarily, professionally, or via this forum community, he's doing at least as well as the attorneys you try to compare him to.

I'd say that means something.

In Pro Personam cases tend to get MORE judicial scrutiny than cases where the parties have representation. That's because the judge has to actually listen and read and think about what's being said in order to glean the facts and the law. ANY judge who dismisses a case because it's a pro per case without giving thought to what the applicant is trying to say, but for the lack of legal training cannot, is guilty of judicial bias and can be disciplined for it. The courts are DESIGNED to help pro per applicants rather than hinder them by dropping them into a black hole. Perception of bias is real. It exists and judges take special care when dealing with pro per parties not to fall afoul of it.

I don't know if Nichols will get a chance to actually argue in front of the justices. We'll have to see how that shapes up. However, a failure to consider it leaves open the door in a case involving a Constitutional question to judicial bias or misconduct. Not something I'd want as a justice hanging around my professional neck. But that's me and not the 9th which doesn't seem to care about justice or judicial perception by the public.
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  #340  
Old 12-09-2017, 1:18 PM
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IANAL but I think you hit it on the head with this: "But that's me and not the 9th which doesn't seem to care about justice or judicial perception by the public."
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Old 12-10-2017, 7:52 AM
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Originally Posted by rplaw View Post

But, on to your first request: months ago there was a new complaint which I called "Peruta II" You can search for it if you want, but the gist is that I said the case wasn't going anywhere AND that if the filing attorney was lucky they wouldn't be facing sanctions for filing a frivolous lawsuit.

It's not the only case I (and others) have commented upon where things were poorly stated or left out completely AND the cases hinged upon those items and were defeated because of them or their lack. I don't remember which ones and I'm not all that interested in spending my time trying to remember or search every post on the forum for the answer. You can. I won't. The end.
In other words, you are lazy, lying, and cannot demonstrate that Mr. Nichols' briefs or any part of them contain identical content to that of the attorneys.

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In Pro Personam cases tend to get MORE judicial scrutiny than cases where the parties have representation.
Prove it.
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Old 12-10-2017, 8:09 AM
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Originally Posted by wolfwood View Post
They dispose of the vast majority of pro se cases without oral argument. They are hearing his case in Feb. That means at least one judge thinks that his case has at least some merit.
FRCP Rule 34(a)(2) of the Federal Rules of Appellate Procedure provides:
Oral argument must be allowed in every case unless a panel of three judges who have examined the briefs and record unanimously agrees that oral argument is unnecessary for any of the following reasons: (A)*the appeal is frivolous; (B)* the dispositive issue or issues have been authoritatively decided; or (C)*the facts and legal arguments are adequately presented in the briefs and record, and the decisional process would not be significantly aided by oral argument.
That a case does not rise to the level of frivolous does not necessarily mean that the case has meritorious arguments. The court made up its mind long ago as occurs in all cases that go to oral argument, someone will lose, invariably Nichols, and, like any other case, the court will draft an opinion indicating that the losing party's arguments have no merit. Subsections (B) and (C) do not apply to Mr. Nichols' contentions regarding the moot case of Overturf. The AG's reasoning in the opposition brief that possession of a firearm in one's home is sufficient protection while walking about in public does not qualify for subsections (B) and (C). Thus, Mr. Nichols' case will move forward to the perfunctory oral argument.
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Old 12-10-2017, 11:49 AM
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Originally Posted by sarabellum View Post
In other words, you are lazy, lying, and cannot demonstrate that Mr. Nichols' briefs or any part of them contain identical content to that of the attorneys.


Prove it.
There's no need to get personal.

I've been an attorney in private practice for over 20 years. That's 20+ years of reading and responding to crappy legal briefs written by attorneys who are supposed to be better trained and educated. Trust my knowledge and experience here, Nichols is better than most. His arguments properly conform to requirements, aren't overly lengthy, and articulate his position on the issues with supporting authority. That you don't agree with them, or follow the logic, is immaterial because if everyone agreed on what the law says and means, we wouldn't need anyone to decide the case.

In addition to that, I've sat on the bench as a judge Pro Tem. In order to do that, I HAVE TO HAVE mandatory judicial training. This training is different from, and in addition to, the ordinary continuing legal education that every practicing attorney has to have.

This training includes training in judicial bias as well as how to deal with self represented litigants. Trust me again, when it comes to Pro Se litigation, the unrepresented litigant gets a LOT more attention and deference than the attorney does. I will listen more attentively, think about what they are saying as well as what they are trying to say and I will give them more time to do that. Failure to follow that procedure can result in removal from the bench AND possible sanctions by the judicial council.

Finally, California's legal system is one of "Equity and law". That means EQUITY comes first. If what it takes to deal with a case fairly and decisively is to give deference to the self represented litigant and pay a bit more attention to their presentation of the issues/argument, then that's what it takes. And, sometimes you give them opportunities that attorneys don't get. Such as setting aside a default if there's a good reason to do so. For an attorney to get that, they must fall on their sword and admit malpractice. There WILL BE a sanction for it. However, should a self represented party ask to set aside a default AND they have a good reason for it, there will usually be NO sanction. Why? Because they don't have the intimate knowledge of the legal system and can't be expected to perform to the same level as an attorney. This standard applies in all cases for the same reasons.

Now you can say that's for California and 9th circuit justices aren't California State attorneys or judges. That's true, BUT the standards are the same. Listen to what is being said, think about what was said, what was attempted to be said, and what you know the law to be, and then decide the case on the merits, not the parties appearance or representational status. Why? Because this is what is FAIR and IMPARTIAL.

In this country we DO NOT decide cases based on appearances, likability, or financial status of the parties. Or, we're not supposed to anyway. I'm not so sure that's the case anymore.
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Old 12-10-2017, 1:26 PM
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Originally Posted by rplaw View Post
There's no need to get personal.
I've been an attorney in private practice for over 20 years.

Why? Because this is what is FAIR and IMPARTIAL.
.
Said the pot. An alleged attorney would have no problem placing side by side the analyses of an attorney with the content of Nichols' briefs.

An alleged attorney would have presented evidence to support the volume of your contentions summed up on in one conclusory circular argument, "the courts are fair and impartial toward in pro pers because they are fair and impartial." Since you allege to be an attorney, who at one time was a pro tem judge, i.e. a substitute judge hired by the judges appointed by the governor, cite the case names and case numbers of the in pro per cases, which you heard and for which you granted the relief requested by the in pro per Plaintiff. You have heaped one lie on top of another.

Pro se litigants prevail in 3.5 of their cases. Landsman, Steven, "The Challenge of Pro Se Litigants," (2009), pp. 242. 76% had judgement entered against them. Id. 56% of their pleadings were dismissed. Id. That is to say 98.2% are denied the relief requested, because they are in pro per. Remember that you alleged that in pro pers write as well and fashion the proper arguments like an attorney.

Remember, alleged attorney, a federal Plaintiff need only state a brief simple statement of the facts entitling that person to relief. FRCP 8. A state court plaintiff need only state simple ultimate facts. CCP §425.10. Yet, as the Landsman article dispositively indicates, courts dismiss more than half of the in pro plaintiff's cases on demurrer (the FRCP 12(b)(6) equivalent) for failure to state a claim. The conclusion is that in pro per cases are summarily neutralized. Those astounding statistics undermine your contentions that a) in pro pers do as well as attorneys, and b) that courts carefully review the cases of in pro pers.

Noticeably, alleged attorney, you have not cited a single authority or evidence regarding the conduct of the judiciary or can even recall what you write in this forum. You have gone so far as to invite me to help with retrieval of your voluminous materials because you do not know how to do a google search for your own material. No lawyer is incompetent at research. I await you next set of lies.

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Old 12-10-2017, 4:22 PM
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Its pretty common knowledge that pro se briefs are liberally constued and that is what rplaw is referring to


Haines v. Keaner, et al. 404 U.S. 519,92 s. Ct. 594,30 L. Ed. 2d 652.

Whatever may be the limits on the scope of inquiry of courts into the internal administration of prisons, allegations such as those asserted by petitioner, however inartfully pleaded, are sufficient to call for the opportunity to offer supporting evidence. We cannot say with assurance that under the allegations of the pro se complaint, which we hold to less stringent standards than formal pleadings drafted by lawyers, it appears 'beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.' Conley v. Gibson, 355 U.S. 41,45 46 (1957). See Dioguardi v. Durning, 139 F.2d 774 (CA2 1944).
Baldwin County Welcome Center v. Brown 466 U.S. 147,104 S. Ct. 1723,80 L. Ed. 2d 196,52 U.S.L.W. 3751.

Rule 8(f) provides that 'pleadings shall be so construed as to do substantial justice.' We frequently have stated that pro se pleadings are to be given a liberal construction.
Estelle, Corrections Director, et al. v. Gample 29 U.S. 97, 97 S. Ct. 285, 50 L. Ed. 2d 251.

We now consider whether respondent's complaint states a cognizable 1983 claim. The handwritten pro se document is to be liberally construed. As the Court unanimously held in Haines v. Kerner, 404 U.S. 519 (1972), a pro se complaint, "however inartfully pleaded," must be held to "less stringent standards than formal pleadings drafted by lawyers" and can only be dismissed for failure to state a claim if it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Id., at 520 521, quoting Conley v. Gibson, 355 U.S. 41,45 46 (1957).
Hughes v. Rowe et al. 449 U.S. 5, 101 S. Ct. 173,66 L. Ed. 2d 163,49 U .S.L. W .3346.

Petitioner's complaint, like most prisoner complaints filed in the Northern District of Illinois, was not prepared by counsel. It is settled law that the allegations of such a [pro se] complaint, "however inartfully pleaded" are held "to less stringent standards than formal pleadings drafted by lawyers, see Haines v. Kerner, 404 U.S. 519,520 (1972). See also Maclin v. Paulson, 627 F.2d 83,86 (CA7 1980); French v. Heyne, 547 F.2d 994,996 (CA7 1976). Such a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Haines, supra, at 520 521. And, of course, the allegations of a complaint are generally taken as true for purposes of a motion to dismiss. Cruz v. Beto, 405 U.S. 319,322 (1972).
Rabin v. Dep't of State, No. 95-4310, 1997 U.S. Dist. LEXIS 15718.

The court noted that pro se plaintiffs should be afforded "special solicitude."
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Old 12-10-2017, 5:28 PM
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would the above apply to so-called taxpayer lawsuits here in CA?
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Old 12-11-2017, 12:22 PM
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Originally Posted by wolfwood View Post
Its pretty common knowledge that pro se briefs are liberally constued and that is what rplaw is referring to
Haines v. Keaner, et al. 404 U.S. 519,92 s. Ct. 594,30 L. Ed. 2d 652.
"Common knowledge, in my experience . . . " have zero legal and probative value. Facts, Evidence, and law are all that matter. The data I cited are dispositive as to the summary dismissal of in pro per causes of action. In fact, Nichols, perennial in pro per, has lost every single case and lost in this iteration at the District Court level.

No pin cite for Haines or a citation to the language of Haines? 2L con law: what are the differences between the due process rights of a criminal defendant/prisoner and civil litigant? The criminal defendant and prisoner plaintiff cases implicate liberty and bodily integrity concerns inherent in the terms of incarceration. The Haines v. Keaner, 404 U.S. 519 (1972) case addresses whether a court should broadly construe the pleadings of prisoners:
The only issue now before us is petitioner's contention that the District Court erred in dismissing his pro se complaint without allowing him to present evidence on his claims.

Whatever may be the limits on the scope of inquiry of courts into the internal administration of prisons, allegations such as those asserted by petitioner, however inartfully pleaded, are sufficient to call for the opportunity to offer supporting evidence. We cannot say with assurance that under the allegations of the pro se complaint, which we hold to less stringent standards than formal pleadings drafted by lawyers, it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."

Accordingly, although we intimate no view whatever on the merits of petitioner's allegations, we conclude that he is entitled to an opportunity to offer proof. The judgment is reversed, and the case is remanded for further proceedings consistent herewith.
Id. at 521

Haines v Keaner does not apply to Nichols, because the 5th and 14th Amendment liberty and conditions of incarceration concerns (8th Am. cruel and unusual punishment) are not present in the cause of action by a non-prisoner and in particular a 2nd Amendment cause of action by Nichols.

Worse, Haines v Keaner is no longer good law for the premise that a prisoner's complaint need not state any facts giving rise to liability. See Ashcroft v. Iqbal, (addressing FRCP 8 and 12(b)(6) standards for )(Where a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’”). Ashcroft v. Iqbal explained:
[appellants] “knew of, condoned, and willfully and maliciously agreed to subject [him, Iqbal]” to harsh conditions of confinement “as a matter of policy, solely on account of [his] religion, race, and/or national origin and for no legitimate penological interest.” Complaint ¶96, App. to Pet. for Cert. 173a–174a. The complaint alleges that Ashcroft was the “principal architect” of this invidious policy, id., ¶10, at 157a, and that Mueller was “instrumental” in adopting and executing it, id., ¶11, at 157a. These bare assertions, much like the pleading of conspiracy in Twombly, amount to nothing more than a “formulaic recitation of the elements” of a constitutional discrimination claim. . . namely, that petitioners adopted a policy “ ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” Feeney, 442 U. S., at 279. As such, the allegations are conclusory and not entitled to be assumed true.
(no page number in the original at https://supreme.justia.com/cases/fed...2/opinion.html)

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Old 12-11-2017, 1:10 PM
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Originally Posted by sarabellum View Post
"Common knowledge, in my experience . . . " have zero legal and probative value. Facts, Evidence, and law are all that matter. The data I cited are dispositive as to the summary dismissal of in pro per causes of action. In fact, Nichols, perennial in pro per, has lost every single case and lost in this iteration at the District Court level.

No pin cite for Haines or a citation to the language of Haines? 2L con law: what are the differences between the due process rights of a criminal defendant/prisoner and civil litigant? The criminal defendant and prisoner plaintiff cases implicate liberty and bodily integrity concerns inherent in the terms of incarceration. The Haines v. Keaner, 404 U.S. 519 (1972) case addresses whether a court should broadly construe the pleadings of prisoners:
The only issue now before us is petitioner's contention that the District Court erred in dismissing his pro se complaint without allowing him to present evidence on his claims.

Whatever may be the limits on the scope of inquiry of courts into the internal administration of prisons, allegations such as those asserted by petitioner, however inartfully pleaded, are sufficient to call for the opportunity to offer supporting evidence. We cannot say with assurance that under the allegations of the pro se complaint, which we hold to less stringent standards than formal pleadings drafted by lawyers, it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief."

Accordingly, although we intimate no view whatever on the merits of petitioner's allegations, we conclude that he is entitled to an opportunity to offer proof. The judgment is reversed, and the case is remanded for further proceedings consistent herewith.
Id. at 521

Haines v Keaner does not apply to Nichols, because the 5th and 14th Amendment liberty and conditions of incarceration concerns (8th Am. cruel and unusual punishment) are not present in the cause of action by a non-prisoner and in particular a 2nd Amendment cause of action by Nichols.

Worse, Haines v Keaner is no longer good law for the premise that a prisoner's complaint need not state any facts giving rise to liability. See Ashcroft v. Iqbal, (addressing FRCP 8 and 12(b)(6) standards for )(Where a complaint pleads facts that are “merely consistent with” a defendant’s liability, it “stops short of the line between possibility and plausibility of ‘entitlement to relief.’”). Ashcroft v. Iqbal explained:
[appellants] “knew of, condoned, and willfully and maliciously agreed to subject [him, Iqbal]” to harsh conditions of confinement “as a matter of policy, solely on account of [his] religion, race, and/or national origin and for no legitimate penological interest.” Complaint ¶96, App. to Pet. for Cert. 173a–174a. The complaint alleges that Ashcroft was the “principal architect” of this invidious policy, id., ¶10, at 157a, and that Mueller was “instrumental” in adopting and executing it, id., ¶11, at 157a. These bare assertions, much like the pleading of conspiracy in Twombly, amount to nothing more than a “formulaic recitation of the elements” of a constitutional discrimination claim. . . namely, that petitioners adopted a policy “ ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” Feeney, 442 U. S., at 279. As such, the allegations are conclusory and not entitled to be assumed true.
(no page number in the original at https://supreme.justia.com/cases/fed...2/opinion.html)
Are you disputing that pro se briefs are supposed to be construed liberally?
I gave you a supreme cite that says all pro se briefs need to be construed liberally. Here is another one. Erickson v.
Pardus, 551 U.S. 89, 94 (2007).

That is that rplaw meant. You insulted him and insist that he is wrong when he posted. Since what he said is right you should apologize to him. It really breaks forum etiquette to call someone a liar for no reason.
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Old 12-12-2017, 10:56 AM
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Wolfwood, don't bother. He's wrong but he'll never admit it because he believes he's right. We've both probably had clients like this. The same remedy applies.
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Old 01-12-2018, 2:17 PM
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Originally Posted by rplaw View Post
And here's Nichols, heading for arguments next spring on a clear question of whether we have the right to bear arms in public or not. And yet you and others STILL refuse to support him.

It's pathetic. Really, it is.
That should have been the question, all along. Nichols had the question framed correctly, from the beginning. All this frail nuance of not wanting to admit that carry in public might actually mean open carry, and, gosh, wouldn't that just be too frightful for even the gun owners, themselves?, has merely caused a bunch of easily defeated impedimentary litigation to get in the reporters.

Keep at it, Nichols.
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Old 01-14-2018, 2:47 PM
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That should have been the question, all along. Nichols had the question framed correctly, from the beginning. All this frail nuance of not wanting to admit that carry in public might actually mean open carry, and, gosh, wouldn't that just be too frightful for even the gun owners, themselves?, has merely caused a bunch of easily defeated impedimentary litigation to get in the reporters.

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

This is indeed a very narrow right he seeks to establish with respect to urban areas (and is irrelevant in unincorporated areas where second amendment rights exist). In fact, it is so narrow that it is almost entirely useless. Now maybe Mr. Nichols lives in a neighborhood where he can walk around the block carrying a rifle, but the vast majority of people living in cities and towns cannot because they live within 1000 feet of a school.
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Old 01-14-2018, 6:09 PM
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Not quite. Nichols does not claim a general right to carry, but only a right to carry (loaded or unloaded not specified) in "nonsensitive" areas, i.e., not in any governmental buildings, and not in any gun free school zone. He concedes that he is not contesting the validity of the GFSZA 1000' exclusionary zone.

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

Well if he cant carry there he cant carry anywhere, so I am not sure how your point....
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Old 01-14-2018, 8:28 PM
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Well if he cant carry there he cant carry anywhere, so I am not sure how your point....
Me either.

if they can declare "school zones" (as applied) they can "zone" the right out of existence. Just as in the Alameda County case extant....

As Bill Weise has pointed out - "sensitive places" are places like airports (inside the ticketing/security area) and courthouses where EVERYONE" is disarmed and active security provided.
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Old 01-14-2018, 8:56 PM
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I will admit, I'm not a fan of Nichols, but I appreciate his efforts. He is pretty smug in his ways, but I do respect him.
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Old 01-15-2018, 9:52 AM
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Not quite. Nichols does not claim a general right to carry, but only a right to carry (loaded or unloaded not specified) in "nonsensitive" areas, i.e., not in any governmental buildings, and not in any gun free school zone. He concedes that he is not contesting the validity of the GFSZA 1000' exclusionary zone.

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

Nichols' challenge is to non sensitive places where the gov prohibits the right to bear arms anyway. Those who live inside GFSZ areas will have to challenge that specific infringement AFTER Nichols' establishes whether there is a right to bear arms in public or not. Attempting to do both at the same time will result in a guaranteed loss because Heller is quite clear on the subject and the courts will decide based on that while ignoring the other claims made. Just like they used Peruta to defeat Flanigan.
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Old 02-01-2018, 6:25 AM
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Old 02-01-2018, 3:40 PM
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The oral arguments must not be missed.

I hope he has time to file a notice of Illinois Supreme Court decision in People v. Chairez (1000 foot park gun exclusion zones unconstitutional), what with all the practice he is probably doing for oral arguments.

This is the hail Mary folks! God Bless Charles Nichols, may he be granted wisdom and humility on his journey.
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Old 02-01-2018, 8:47 PM
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The oral arguments must not be missed.

I hope he has time to file a notice of Illinois Supreme Court decision in People v. Chairez (1000 foot park gun exclusion zones unconstitutional), what with all the practice he is probably doing for oral arguments.

This is the hail Mary folks! God Bless Charles Nichols, may he be granted wisdom and humility on his journey.
The Ninth would most likely say that the decision is irrelevant since there is no 1000' ban for parks in California, and Nichols is not challenging the GFSZA 1000' buffer zone. Further, although I haven't read the case, I assume it applies to CCW, while Nichols is aiming for open carry, the Ninth already having shot down CCW in Peruta. (I seem to recall that Illinois doesn't have open carry except on private property and while hunting.) Finally, the Ninth has already established that its own special version of "intermediate scrutiny" applies to carry cases outside the home, which is functionally no different than the lowest level, rational basis review. The probability that it would adopt the Illinois Supreme Court's heightened intermediate scrutiny test is slim to none. That was made clear not only in Peruta, but also the case challenging the SF locked and unloaded except when actually carried ordinance, which got as close to the overturned D.C. law as SF could get away with, without violating the Heller ruling.

Truly, the Ninth has such great antipathy to guns and the carrying of guns that I would be entirely unsurprised if its decision pays nothing but lip service to the "right" contained within the 2A, concluding that "public safety" trumps 2A rights. Hell, just look at the twisted logic employed in Peruta, the SF case, and in Silvester used to justify a result adverse to 2A rights.
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Old 02-02-2018, 11:43 AM
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Originally Posted by rplaw View Post
We have NO RIGHTS AT ALL, unless we are willing to stand up and defend them from our legislators and government. It seems as If Nichols is willing to do that. I am amazed at all of those here who profess to support the 2A but won't stand behind him as he mounts his challenge to governmental infringement of our Rights. Personality differences be damned, he's leading the fight. Where are you?
He's taking actions which are gambling our rights based on very strange theories of a non-lawyer whose briefs are rambling. That's wrong. If he really insists of standing up and defending our rights, honestly, I would prefer for him to do it in other ways, such as:
  • Devoting his energy to fund raising for gun rights orgs
  • Using his passion to teach new shooters
  • Do PRARs. There are 500+ issuing authorities in this state. Why not do some PRAR investigation of them?
  • If he really insists on defending and exercising the right, then just do it. Start carrying. I don't recommend this but if he's that passionate about not compromising his right, he should go ahead and do it. At least by doing that he doesn't jeopardize our rights.
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Old 02-02-2018, 12:32 PM
Elgatodeacero Elgatodeacero is offline
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Given the treatment we are getting from the government, and especially the courts, I see very little risk in Mr. Nichols pressing on to the end.

Is he a perfect hero, no, but this is real life, and none of the famous 2nd Amend litigators have gotten any results in California re: carry. So lets force the 9th to give us our rights or explain why we cannot exercise the black and white rights written in the constitution and bill of rights.

Based on recent news, it seems reasonable to conclude the rule of law is near dead or dead.

Last edited by Elgatodeacero; 02-02-2018 at 1:06 PM..
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