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2nd Amend. Litigation Updates & Legal Discussion Discuss California 2A related litigation and legal topics here. All advice given is NOT legal counsel.

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  #1  
Old 02-12-2018, 1:03 PM
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Default Young v. Hawaii Orals (CA9)

https://www.youtube.com/watch?v=t7se...ature=youtu.be

Starts at 19:40

I think it went well for us, or another way to put it is VERY bad for Hawaii. Their counsel has basically conceded he can't win unless the panel finds the 2A is home bound. Not to mention he has also admitted to ZERO permits issued in 20 years.
Judges were not buying it.

This is an open carry lawsuit BTW.
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Old 02-12-2018, 2:08 PM
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Originally Posted by Ubermcoupe View Post
This is a Michel & Associates case: http://michellawyers.com/young-v-hawaii/
No its not. Chuck just has copies of the pleadings on his website. Many of the cases on his websites are just cases he is following.
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Old 02-12-2018, 2:10 PM
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Originally Posted by wolfwood View Post
No its not. Chuck just has copies of the pleadings on his website. ...
Didn't realize that.

I stand corrected.
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Old 02-12-2018, 3:54 PM
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IANAL and not trying to be a smart aleck or disparage the attorney representing "our" side. Did he seem well-prepared or persuasive?
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Old 02-12-2018, 4:07 PM
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IANAL and not trying to be a smart aleck or disparage the attorney representing "our" side. Did he seem well-prepared or persuasive?
I'll give my honest opinion and I'm no lawyer so FWIW......

He seemed a little rushed, a little nervous. I didn't hear anything necessarily where he LOST the case or conceded anything. The law was on our side, so he really didn't have to do anything spectacular or be smooth like Alan Gura to win. On a side note I was curious about the original Peruta 3 judge opinion and how much of that not-CCW related was applicable here.

The other attorney BLEW his side's case.

From what I've heard, you rarely will change a judge's mind with a great performance. OTOH, you most certainly can LOSE a case at orals.
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Old 02-12-2018, 7:46 PM
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Didn't Heller suggest that the 2A does apply beyond the boundaries of ones home in some fashion? And that the details as such are still unknown?

Hasn't at least one SCOTUS Justice opined that the notion that the 2A only applies to the home as being complete BS?
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Old 02-12-2018, 7:51 PM
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Interesting. It seems the 3 judge panel realizes it will be hard for them to avoid finding that some sort of carry outside the home is part of the 2nd and that this law is effectively a full ban...

O’Scannlain - we know where he stands (author of original Peruta opinion that was overruled en banc)
Clifton and Ikuta -George W Bush appointees

So this should certainly go our way at the 3 judge panel, question is how far do they take it. They probably know like us it will go En Banc if they take it too far.

The question becomes En Banc and how an en Banc panel tries to either say 2nd doesn’t apply outside the home (hard to do given the sister circuits and other persuasive cases)or more likely how do they make this so narrow that Hawaii’s “near categorical ban” gets watered down only slightly to “you can ban everyone except for maybe 100 Hawaiians” a la LA county CCW rationing only to law enforcement and the like.
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Old 02-12-2018, 9:28 PM
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Problem I see is court can side with plaintiff but say it’s only because no permits we’re issued in 20 years. Ergo if 1 permits is issued it’s not a problem.
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Old 02-13-2018, 5:01 AM
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But if they go down that road, then what, the federal courts takeover the permit process and decide how many are enough?
It's probably safe to say this is a de facto ban, and if the opinion says average people can't get it then the county really can't do anything other than shall issue.
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Old 02-13-2018, 6:26 AM
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Quote:
Originally Posted by press1280 View Post
and ends at 49:00
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Old 02-13-2018, 7:15 AM
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Original link was bad. Here is the new one. https://www.youtube.com/watch?v=podPuHnX698
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Old 02-13-2018, 9:33 AM
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Originally Posted by Drivedabizness View Post
IANAL and not trying to be a smart aleck or disparage the attorney representing "our" side. Did he seem well-prepared or persuasive?
He seemed fairly well prepared, however, not entirely well spoken.

The county attorney got eaten alive. He stated that concealed carry was off the table due to Peruta and then was grilled for not issuing any open carry licenses except to security guards. The justices lit him up hard and cornered him to say that for the state to prevail "the 2nd amendment does not apply outside the home".

I see this as a huge loss for Hawaii and possibly an opening for the court to "explicitly" say that the RKBA DOES exist outside the home. If this goes En Banc the 9th will be cornered to explicitly state that the RKBA does NOT exist outside the home. If they go there I would only hope that SCOTUS would straighten them out.
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Old 02-13-2018, 10:00 AM
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Originally Posted by press1280 View Post
Their counsel has basically conceded he can't win unless the panel finds the 2A is home bound. Not to mention he has also admitted to ZERO permits issued in 20 years.
Sounds to me like their counsel is a genius. Guaranteed the 9th will find that argument 100% persuasive, even if they have to go en banc again.
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Old 02-13-2018, 10:16 AM
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You can see that the panel was really challenging the State over the "de facto ban" by the State not issuing any OC permits except for security guards. The State's explanation that the exception applied to the average person was weak and I would have like the Panel to point out that Heller said something to the effect that "no one knows when they may need a firearm for protection" thus not allowing private citizens to OC except when they are already in danger defeats the purpose of the 2A's "self defense" core purpose.

I also have an issue whereby the average person needs "an exception" before being given permission to exercise his enumerated Rights. I would have liked the Panel to have addressed that issue directly since this seems to place 2 obstacles in the path of the free exercise of Rights.

If the Panel decides in favor of Young, and depending on what happens with both Silvester and Nichols, the 9th will take this case en banc and overturn the panel. However, this would be a good case for SCOTUS to determine that bearing arms includes doing so outside the home and that blanket denial permit schemes negate the Right because they are not narrowly tailored toward the issue being regulated.

We shall have to see.
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Old 02-13-2018, 10:19 AM
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National Reciprocity would take care of this. Call members of the Senate.
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Old 02-13-2018, 11:34 AM
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Originally Posted by rplaw View Post
You can see that the panel was really challenging the State over the "de facto ban" by the State not issuing any OC permits except for security guards. The State's explanation that the exception applied to the average person was weak and I would have like the Panel to point out that Heller said something to the effect that "no one knows when they may need a firearm for protection" thus not allowing private citizens to OC except when they are already in danger defeats the purpose of the 2A's "self defense" core purpose.

I also have an issue whereby the average person needs "an exception" before being given permission to exercise his enumerated Rights. I would have liked the Panel to have addressed that issue directly since this seems to place 2 obstacles in the path of the free exercise of Rights.

If the Panel decides in favor of Young, and depending on what happens with both Silvester and Nichols, the 9th will take this case en banc and overturn the panel. However, this would be a good case for SCOTUS to determine that bearing arms includes doing so outside the home and that blanket denial permit schemes negate the Right because they are not narrowly tailored toward the issue being regulated.

We shall have to see.
How do you think the attorney for Young did?
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Old 02-13-2018, 11:39 AM
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National Reciprocity would take care of this. Call members of the Senate.
No it wouldn't. The National Reciprocity Bill does not make a state grant its own residents' CCWs.
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Old 02-13-2018, 11:41 AM
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This seems to be going along the same strategy as Flanagan:

Quote:
Originally Posted by supplemental authority, Wrenn
Unlike the litigants in Peruta v. Cty. of San Diego, 824 F.3d 919, 927 (9th Cir. 2016) (en banc), Mr. Young did not ask for a concealed carry permit alone. Rather he asked for a permit to carry either openly or concealed. Thus, he is entitled to relief based on the D.C. Circuit reasoning. Mr. Young strongly urges this Court to adopt
the D.C. Circuit’sinsightful analysis when evaluating his claims.
Maybe the Peruta en banc loss wasn't really a loss for us, in that the 9th painted itself into a corner.
Peruta en banc: Hey you were asking about the sheriff's policy, not about carrying a gun in public.

Flanagan and Young: Ok, I want to carry a gun in public, like you said.

9th en banc: ......
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Old 02-13-2018, 11:50 AM
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Chess not checkers.....? 😉
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Old 02-13-2018, 12:19 PM
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Quote:
Originally Posted by CCWFacts View Post
This seems to be going along the same strategy as Flanagan:



Maybe the Peruta en banc loss wasn't really a loss for us, in that the 9th painted itself into a corner.
Peruta en banc: Hey you were asking about the sheriff's policy, not about carrying a gun in public.

Flanagan and Young: Ok, I want to carry a gun in public, like you said.

9th en banc: ......
I am with you.

According to the 9th Cir., there is no 2A right to carry a concealed weapon. So, if there is a right to carry a weapon outside the home, that right must be to open carry. So the next question would be what, if any, restrictions can a state place on open carry, which necessarily would be a core right. That is, would one even need a permit and, if so, must such permits be shall issue.

So the question is did the en banc panel shoot themselves in the foot.
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Old 02-13-2018, 12:53 PM
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So the question is did the en banc panel shoot themselves in the foot.
I thought they did for the specious logic they used to overrule the Peruta panel. Had SCOTUS taken it, I thought it would be hard not to reverse the en banc decision.

This puts a sharper point on it and it does appear the blind resistance of 9th CA took them a bridge too far.
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Old 02-13-2018, 12:59 PM
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Originally Posted by BAJ475 View Post
I am with you.

According to the 9th Cir., there is no 2A right to carry a concealed weapon. So, if there is a right to carry a weapon outside the home, that right must be to open carry. So the next question would be what, if any, restrictions can a state place on open carry, which necessarily would be a core right. That is, would one even need a permit and, if so, must such permits be shall issue.

So the question is did the en banc panel shoot themselves in the foot.
Theoretically Nichols will answer that question, as will this case (which has been stuck up[ on appeal for five years!), and if the Court, whether this panel or en banc concludes that there is a right to carry arms in public, the question is how limited will be the right that is recognized.
Although the Panel may say that there is a right to carry openly outside the home, that still doesn't answer two principle issues: 1)what about GFSZs, and 2) what restrictions may the state apply to the exercise on that right in the "interest of public safety."
The trial court in this case was more than happy to conclude that the interest in public safety trumps the right to bear arms outside the home, which eliminates the right except for in the home (as Hawai'i argued). I don't think the Ninth Circuit will go that far--it knows that review will be accepted if a case concludes that there is no right to bear arms outside the home at all--but in my cynical view it will conclude that open carry may be licensed on a "may issue" basis upon a showing of exceptional need. One other option is the open unloaded law, although the former grants the state far greater control.
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Old 02-13-2018, 1:03 PM
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That was fun. It was certainly a beatdown for the county's attorney. He obviously had nowhere to go.
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Old 02-13-2018, 1:26 PM
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Quote:
Originally Posted by press1280 View Post
https://www.youtube.com/watch?v=t7se...ature=youtu.be

Starts at 19:40

I think it went well for us, or another way to put it is VERY bad for Hawaii. Their counsel has basically conceded he can't win unless the panel finds the 2A is home bound. Not to mention he has also admitted to ZERO permits issued in 20 years.
Judges were not buying it.

This is an open carry lawsuit BTW.
This link works https://www.youtube.com/watch?v=podPuHnX698
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Last edited by Charlie50; 02-13-2018 at 1:32 PM..
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Old 02-13-2018, 2:28 PM
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Originally Posted by TruOil View Post
Theoretically Nichols will answer that question, as will this case (which has been stuck up[ on appeal for five years!), and if the Court, whether this panel or en banc concludes that there is a right to carry arms in public, the question is how limited will be the right that is recognized.
Although the Panel may say that there is a right to carry openly outside the home, that still doesn't answer two principle issues: 1)what about GFSZs, and 2) what restrictions may the state apply to the exercise on that right in the "interest of public safety."
The trial court in this case was more than happy to conclude that the interest in public safety trumps the right to bear arms outside the home, which eliminates the right except for in the home (as Hawai'i argued). I don't think the Ninth Circuit will go that far--it knows that review will be accepted if a case concludes that there is no right to bear arms outside the home at all--but in my cynical view it will conclude that open carry may be licensed on a "may issue" basis upon a showing of exceptional need. One other option is the open unloaded law, although the former grants the state far greater control.
Perhaps not. This case holds priority over Nichols because it's being heard first. And there was no mention from the panel about some kind of defect that would send Young back down to the district court. If Young wins, then it's almost guaranteed Nichols wins too (putting en banc aside).

As far as any GFSZ and other restrictions, the court can only rule on what's in front of it.
So, if one were to get the magical Hawaii OC permit, what are the restricted areas currently?
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Old 02-13-2018, 10:02 PM
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wow that dude for the county was lame
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Old 02-14-2018, 7:03 AM
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I would imagine the decision will sound like this.

"While the attorney for Young made some valid points, we have to agree with the state attorney that couldn't find his *** with two hands. For the sake of public safety, no open carry or concealed."
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Old 02-14-2018, 3:23 PM
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Perhaps not. This case holds priority over Nichols because it's being heard first. And there was no mention from the panel about some kind of defect that would send Young back down to the district court. If Young wins, then it's almost guaranteed Nichols wins too (putting en banc aside).
There is no such thing as "priority." Each panel of the Court of Appeals issue its decisions when it is good and ready to do so. Further, the decision of one panel is not technically binding on the decision of another panel, although it may be quite persuasive. And the en banc panel isn't bound by anything but the Supreme Court; en banc review means that the original opinion goes in the trash can.
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Old 02-14-2018, 8:54 PM
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Quote:
Originally Posted by TruOil View Post
There is no such thing as "priority." Each panel of the Court of Appeals issue its decisions when it is good and ready to do so. Further, the decision of one panel is not technically binding on the decision of another panel, although it may be quite persuasive. And the en banc panel isn't bound by anything but the Supreme Court; en banc review means that the original opinion goes in the trash can.
But within the Ninth Circuit, horizontal
stare decisis operates to bind
subsequent panels. Thus, the first panel
of Ninth Circuit judges to publish an
opinion on an issue binds not only district
courts within the circuit, but also
subsequent Ninth Circuit panels. For
the Ninth Circuit to overrule its own
precedent, it must issue an en bane decision.
(Miranda B. v. Kitzhaber (9th Cir.
2003) 328 F.3d 1181, 1185 [panel musfollow prior panel decisions, unless a
Supreme Court decision, an en bane
decision, or subsequent legislation undermines
its precedential value].)
https://www.manatt.com/Manatt/media/...fender-70,.pdf
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Old 02-15-2018, 6:10 AM
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Wait a second, I thought it was whoever is HEARD first?
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Old 02-15-2018, 9:56 AM
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Wow. That was ... interesting. Didn't think either side performed particularly well -- reminded me of a bad high-school debate.

But dang, the attorney for Honolulu got his head handed to him.
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Old 02-15-2018, 11:00 AM
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Quote:
Originally Posted by TruOil View Post
There is no such thing as "priority." Each panel of the Court of Appeals issue its decisions when it is good and ready to do so. Further, the decision of one panel is not technically binding on the decision of another panel, although it may be quite persuasive. And the en banc panel isn't bound by anything but the Supreme Court; en banc review means that the original opinion goes in the trash can.
In the Nichols orals today, one of the judges literally said that the Young case would have “priority” over Nichols, and that Nichols would probably have to wait for the outcome of Young.
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Old 02-15-2018, 11:08 AM
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Hawaii's orwellian overreach could potentially kill the open carry ban in CA if this makes it to SCOTUS.
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Old 02-15-2018, 1:17 PM
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Originally Posted by njineermike View Post
Hawaii's orwellian overreach could potentially kill the open carry ban in CA if this makes it to SCOTUS.
Seems likely to me that either the 9th or SCOTUS (or both) find that some manner of carry is protected, but the state can regulate the manner. You can make public safety arguments in favor of either concealed or open.

If such a ruling occurs, CA statutes will have to change in response. I predict we’d become a shall issue concealed state, with open carry still banned.
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Old 02-15-2018, 1:31 PM
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Originally Posted by CalAlumnus View Post
Seems likely to me that either the 9th or SCOTUS (or both) find that some manner of carry is protected, but the state can regulate the manner. You can make public safety arguments in favor of either concealed or open.

If such a ruling occurs, CA statutes will have to change in response. I predict we’d become a shall issue concealed state, with open carry still banned.
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.

SCOTUS is a different equation, but in its current composition, I'm not sure we'd be heard at all.
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Old 02-15-2018, 1:46 PM
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The judges might like to let the Hawaii case play out first but there is no such requirement. Moreover, any appellate court could simply issue a per curiam opinion affirming the lower court without actually writing an opinion. That would have no real impact on the later ruling appellate court.
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Old 02-15-2018, 4:18 PM
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Quote:
Originally Posted by jwkincal View Post
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.

SCOTUS is a different equation, but in its current composition, I'm not sure we'd be heard at all.
Unfortunately I think your line of thinking is what's going to happen.

Judge Ikuta asked the first important question, "In order for you (State) to win, do we need to find that in fact the 2nd amendment doesn't extend to carrying a firearm outside of the home, is that the bottom line?", State replied yes (stupidly may I point out).

Judge O'Scannlain mentioned that Wrenn suggests Hawaii has a defecto ban for reasonable citizens.

Those points taken together suggestion IMO a likelihood the panel will rule in Young's favor.

Here's my guess of what happens:

Young panel says 2A protects the right to carry in some way outside the home, which is consistent with other rulings, and that Hawaii has in reality prevented that right from being exercised. Rules in favor of Young.

9th knows that they can't rule the 2A doesn't protect a right to carry outside the home, because SCOTUS may actually wake up on this issue and likely strike it down on that specific item. So, 9th says the right to carry isn't being violated because there is a method in place to obtain a permit and Young didn't meet the State's "reasonable" requirements so go back and bring them a more compelling case that the denied applicant had a "real" compelling reason, dodging the 2A issue, conveniently ignoring Wrenn, and maybe even throw some Peruta logic out there that the 2A does not specifically protect open carry (pretending there may be another way to carry other than concealed or open). Rules in favor of State.

A couple SCOTUS judges say they're disappointed they're not taking the case, they all go back to sleep, and we go back to square one. Hope I'm wrong, but unfortunately my pessimism has been supported by previous decisions at the higher courts.
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Old 02-15-2018, 5:29 PM
TruOil TruOil is offline
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Seems likely to me that either the 9th or SCOTUS (or both) find that some manner of carry is protected, but the state can regulate the manner. You can make public safety arguments in favor of either concealed or open.

If such a ruling occurs, CA statutes will have to change in response. I predict we’d become a shall issue concealed state, with open carry still banned.
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.
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Old 02-15-2018, 5:34 PM
TruOil TruOil is offline
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In the Nichols orals today, one of the judges literally said that the Young case would have “priority” over Nichols, and that Nichols would probably have to wait for the outcome of Young.
No doubt, but any "priority" is a policy of comity only, and to try to assure that decisions coming out of the court are not in conflict with each other.
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Old 02-15-2018, 5:37 PM
TruOil TruOil is offline
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Didn't Heller suggest that the 2A does apply beyond the boundaries of ones home in some fashion? And that the details as such are still unknown?

Hasn't at least one SCOTUS Justice opined that the notion that the 2A only applies to the home as being complete BS?
Yes as to both. Heller suggests, albeit in dicta, that the amendment has two parts, to keep and to bear, and "to bear" implies a right to carry guns on the person (outside the home) for the purpose of immediate self-defense, the parameters of which were outside the scope of the issue presented for determination in Heller. The second part, I think, came in the dissent to the refusal to grant cert. in Peruta.
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