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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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  #841  
Old 11-17-2018, 3:24 AM
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Originally Posted by wolfwood View Post
First Amicus Brief filed. Its a history brief by San Diego County Gun Owners


https://www.scribd.com/document/3934...s-Amicus-Brief

SD Gun owners is a small local group Yet they stepped up and filed a very important historical brief to refute the Everytown brief. Please consider donating a couple dollars to them. A Big Thanks to Attorney John Dillon and SD County Gun Owners President Michael Schwartz for lending aid.
Great job on the brief Councilor John Dillon and Michael Schwartz! Makes me proud to be a member. You guys have really made a difference in San Diego, keep at it.
I think even the late Sheriff Bill Kolender (bottom left) would have been moved!
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  #842  
Old 11-17-2018, 8:58 AM
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Originally Posted by Metal God View Post
Wolfwood is there another link that does not require us to sign up to read the brief ?
Here is a link to it as posted courtesy of Charles Nichols:

http://californiaopencarry.com/wp-co...?189db0&189db0

And here is Mr. Nichols' site with all the Young documents:

http://californiaopencarry.com/young...-on-9-14-2018/
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  #843  
Old 11-17-2018, 12:23 PM
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Originally Posted by homelessdude View Post
Sounds like a rehash of all their original bull crap. The fact that no one but a few security guards can get one kind of says it all.
If they have to put out that AG opinion it's a clear sign their own issuing officials didn't consider issuing permits to average citizens. So the court is right to assume that's the case.
But the state wants to convince everyone to believe they'll do something they have yet to do. Just trust them.
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  #844  
Old 11-17-2018, 1:03 PM
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While the en banc decision waits, what’s going on in HI for issue especially if the AG has changed the rules at the 11th hour?
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  #845  
Old 11-17-2018, 1:16 PM
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While the en banc decision waits, what’s going on in HI for issue especially if the AG has changed the rules at the 11th hour?
Nothing. Literally. It's exactly the same as it's always been. Never issued an open carry license to anyone but security guards. Never issued a concealed carry license to anyone since 2000 except for the judge and military member and the two "lost" licensees.

The one person I know of who applied for open carry after the AG "opinion" was denied, ostensibly because he failed to provide sufficient evidence "that he or she has a need for protection that substantially exceeds that held by ordinary law-abiding citizens".

So, to summarize, no "ordinary citizen" in Hawaii has, as far as we know, EVER been granted a license to lawfully exercise their right to bear arms outside their home or business. That won't change until there is some kind of precisely-worded inescapable ruling from a court requiring the legislature and police departments to recognize the rights of ordinary citizens. Don't hold your breath.
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  #846  
Old 11-17-2018, 4:03 PM
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Thanks for that info.

Thinking a bit more, if open carry remains the right from the ruling does “good cause” stand or is it de facto overriden? Seems like if open carry is the right and the right is infringed, HI law has to be struck down. Does this case mention good cause? I don’t remember.
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  #847  
Old 11-18-2018, 4:46 AM
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Originally Posted by BryMan92 View Post
Thanks for that info.

Thinking a bit more, if open carry remains the right from the ruling does “good cause” stand or is it de facto overriden? Seems like if open carry is the right and the right is infringed, HI law has to be struck down. Does this case mention good cause? I don’t remember.
The 3 judge opinion states that the case did not specifically decide that. The case would be remanded back to the District Court for further proceedings.

However, the 3 judge panel's opinion would be controlling authority, and no one can plausibly read it as green-lighting may issue. If that were the case then the state wouldn't need to try for en banc. Just allow the case to go back to the District Court and "find" that Young didn't prove a "good cause" for a license.
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  #848  
Old 11-18-2018, 10:06 AM
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The 3 judge opinion states that the case did not specifically decide that. The case would be remanded back to the District Court for further proceedings.

However, the 3 judge panel's opinion would be controlling authority, and no one can plausibly read it as green-lighting may issue. If that were the case then the state wouldn't need to try for en banc. Just allow the case to go back to the District Court and "find" that Young didn't prove a "good cause" for a license.
^^^ If you read between press1280's lines...

Regulating OC is possible, just the "how" would be under scrutiny.

Heller v. DC provided categorical hints...while making it clear that OC is the default mode for exercising the RIGHT...and cannot be prohibited like Concealed Carry.

- Sensitive places.
- Dangerous / Unusual Weapons (including concealable)
- Common use.

Hawaii knows if the case is allowed to go back to the district court - they will no longer be able in theory to practice the same restrictive standard and issuance for BOTH....one will have to be considerably relaxed...OC.


I'm still going with my prediction as here with California that is this happens, they'll pull the UOC crap....

=8-|
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  #849  
Old 11-18-2018, 12:37 PM
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Thanks guys for the synopsis! So if it’s remanded back to the District Court they would have to use the applied standard (basically, hey, here’s how you should have ruled) and then it stays precedent in the 9th. If the en banc occurs and affirms (or remands with a different standard) the District Court then it would have to be appealed to SCOTUS?

UOC seems to strike at the core of self defense, as would keeping one out of the chamber, so I would reckon the UOC is not a substitute. But we’ll save that for another day.
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  #850  
Old 11-19-2018, 4:40 PM
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This is a good brief.
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  #851  
Old 11-19-2018, 6:00 PM
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Amicus Briefs Got filed. Spent all day in Court so I haven't had a chance to read them.
4 more and waiting on one more.
https://www.scribd.com/document/3936...F-Amicus-Brief

https://www.scribd.com/document/3936...Cal-Guns-Brief
https://www.scribd.com/document/3936...A-Amicus-Brief

https://www.scribd.com/document/3936...oung-HRA-Brief

If you only read one read the last one. It gives you a lot of insight into the Big Island. Shout out to Bum Bum and Paladin. HFC's counsel used the CCCW map you made. its in pages 29-35 of the addendum

https://www.scribd.com/document/3936...oung-HFC-Brief

Last edited by wolfwood; 11-20-2018 at 3:27 AM..
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  #852  
Old 11-19-2018, 6:30 PM
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Originally Posted by wolfwood View Post
Amicus Briefs Got filed. Spent all day in Court so I haven't had a chance to read them.
5 more
https://www.scribd.com/document/3936...F-Amicus-Brief


https://www.scribd.com/document/3936...A-Amicus-Brief

https://www.scribd.com/document/3936...oung-HRA-Brief

If you only read one read the last one. It gives you a lot of insight into the Big Island. Shout out to Bum Bum and Paladin. HFC's counsel used the CCCW map you made. its in pages 29-35 of the addendum

https://www.scribd.com/document/3936...oung-HFC-Brief

Are these briefs organized by you or can groups simply submit whatever they wish?

Thanks for what you do. I love reading these briefs.
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  #853  
Old 11-19-2018, 6:34 PM
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Are these briefs organized by you or can groups simply submit whatever they wish?

Thanks for what you do. I love reading these briefs.


the groups are allowed to submit whatever they want.
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  #854  
Old 11-21-2018, 1:44 PM
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Originally Posted by BryMan92 View Post
Thanks guys for the synopsis! So if it’s remanded back to the District Court they would have to use the applied standard (basically, hey, here’s how you should have ruled) and then it stays precedent in the 9th. If the en banc occurs and affirms (or remands with a different standard) the District Court then it would have to be appealed to SCOTUS?

UOC seems to strike at the core of self defense, as would keeping one out of the chamber, so I would reckon the UOC is not a substitute. But we’ll save that for another day.
D.C v. Heller: Justice Scalia ruled that the firearm must be in a readily operable condition. With no more then one function to operate; magazine in gun with round in chamber or loaded revolver. So UOC is out as a choice for carriage.
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  #855  
Old 11-21-2018, 2:12 PM
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D.C v. Heller: Justice Scalia ruled that the firearm must be in a readily operable condition. With no more then one function to operate; magazine in gun with round in chamber or loaded revolver. So UOC is out as a choice for carriage.
I don't know the chronology, but I recall that the trial court in Peruta concluded that UOC was an "adequate" protection of 2A rights. Since Heller was decided in 2008, and UOC went out while the case was on appeal, I'd have to assume that the trial court decision was issued after Heller. Further, Heller by its terms specifically applies only to "keep," not "bear," which is why the Ninth has felt free to substantially restrict the exercise of the right outside the home. In short, we cannot assume that UOC is off the table without a "bear" decision from SCOTUS that addresses the question.

I think it is also important to note that as far as the Sheriff of Hawaii is concerned, all that the Young decision requires is that applications by non-security personnel to be considered, but that the "good cause" standard still applies. Young's post-decision application for a carry permit was denied.
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  #856  
Old 11-21-2018, 2:25 PM
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I just filed a sur-reply.. A surreply s a reply to their reply. I basically am asking permission to file the brief. Then I attached the brief I want to file.

https://www.scribd.com/document/3938...Filed-Surreply

I relief heavily on the information obtained by the Hawaii Firearms coalition through a series of UIPA request which is Hawaii's equivalent of the Freedom of Information Act.

Please like their page on facebook and consider joining.

http://hifico.org/

https://www.facebook.com/hificoorg

Last edited by wolfwood; 11-21-2018 at 4:04 PM..
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  #857  
Old 11-21-2018, 3:36 PM
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I don't know the chronology, but I recall that the trial court in Peruta concluded that UOC was an "adequate" protection of 2A rights. Since Heller was decided in 2008, and UOC went out while the case was on appeal, I'd have to assume that the trial court decision was issued after Heller. Further, Heller by its terms specifically applies only to "keep," not "bear," which is why the Ninth has felt free to substantially restrict the exercise of the right outside the home. In short, we cannot assume that UOC is off the table without a "bear" decision from SCOTUS that addresses the question.

I think it is also important to note that as far as the Sheriff of Hawaii is concerned, all that the Young decision requires is that applications by non-security personnel to be considered, but that the "good cause" standard still applies. Young's post-decision application for a carry permit was denied.
Again TrueOil, you either haven't read Heller, or are deliberately misrepresenting Heller. It did cover bear, and cited/referenced many cases that made it clear that OC out and about in the public was protected.

=8-(
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  #858  
Old 11-21-2018, 4:30 PM
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Again TrueOil, you either haven't read Heller, or are deliberately misrepresenting Heller. It did cover bear, and cited/referenced many cases that made it clear that OC out and about in the public was protected.



=8-(


Then explain why cert was denied to Norman.



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  #859  
Old 11-22-2018, 11:46 AM
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Then explain why cert was denied to Norman.



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First, don't try to change the subject kcbrown...

...the point of my post was about correctly respresenting the Heller opinion.

But then again...I'll bite on your supposition.


You're supposition is that I'm wrong...about what SCOTUS said in Heller...

...and you'd be wrong.

In declining cert for Norman, no comments or dissent was given.

Therefore, we don't know WHY they declined cert.

It's anyone's guess....and all guesses have a 50 / 50 chance.

Could be enough justices just didn't want to take up another 2A case?
Could be that because Norman was a CCW permittee and they want a clean OC case?
Could be that I'm wrong on Heller?
Could be that the pro-2A justices didn't want to take chances with Roberts and Kennedy?
Could be they don't care?
Could be they didn't even notice the case existed?

Who knows...they didn't comment on their declining cert, THEREFORE NO CONCLUSION can be drawn on a differing interpretation of Heller.

It still stands...

Heller said:

1. Individual Right
2. Keep = Own
3. Bear = Carry
4, Arms commonly in use.
5. Referenced 600+ Years of tradition, colonial records, precedent.
4. OC is protected.
5. CCW can be prohibited.
6. They right can be regulated.


=8-)
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  #860  
Old 11-24-2018, 12:47 PM
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Originally Posted by TruOil View Post
I don't know the chronology, but I recall that the trial court in Peruta concluded that UOC was an "adequate" protection of 2A rights. Since Heller was decided in 2008, and UOC went out while the case was on appeal, I'd have to assume that the trial court decision was issued after Heller. Further, Heller by its terms specifically applies only to "keep," not "bear," which is why the Ninth has felt free to substantially restrict the exercise of the right outside the home. In short, we cannot assume that UOC is off the table without a "bear" decision from SCOTUS that addresses the question.

I think it is also important to note that as far as the Sheriff of Hawaii is concerned, all that the Young decision requires is that applications by non-security personnel to be considered, but that the "good cause" standard still applies. Young's post-decision application for a carry permit was denied.
But now they have to consider Young's application with the 3 judge panel's ruling as precedent.
How will the district court (with a straight face) rule that Young isn't entitled to a carry permit?
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  #861  
Old 11-24-2018, 8:12 PM
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But now they have to consider Young's application with the 3 judge panel's ruling as precedent.
How will the district court (with a straight face) rule that Young isn't entitled to a carry permit?
Easy, a straight face means nothing.
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  #862  
Old 11-25-2018, 10:12 AM
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But now they have to consider Young's application with the 3 judge panel's ruling as precedent.
How will the district court (with a straight face) rule that Young isn't entitled to a carry permit?
They won't rule that "Young isn't entitled to a carry permit" (point of information: in Hawaii it's a license and is issued or denied by the county police chief, not a sheriff (which, I believe, only exist on Oahu and are not elected)). They will rule that he is entitled to apply for a license under the permissible and lawful "regulations" in place as "clarified" by the AG "opinion", and if he meets the criteria established therein ("urgency or the need has been sufficiently indicated" and "need...significacantly exceeds that held by an ordinary law-abiding citizen", etc.), he may be issued a license, if not, the license will be denied and lawfully so. And that will take care of that... until the next iteration of the lawsuit/appeal.

Just because no one ("ordinary law-abiding citizen") has ever gotten such a license in the past, and that no one will ever get one in the future, doesn't mean that it's not a logical possibility, it's just not a possibility in reality, and that reality is in conformance with the law (lawful "regulation") because there is the theoretical possibility that someone somewhere someday somehow could get one. Therefore, the right to bear arms has not been infringed. Q.E.D.
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  #863  
Old 11-26-2018, 5:04 PM
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They won't rule that "Young isn't entitled to a carry permit" (point of information: in Hawaii it's a license and is issued or denied by the county police chief, not a sheriff (which, I believe, only exist on Oahu and are not elected)). They will rule that he is entitled to apply for a license under the permissible and lawful "regulations" in place as "clarified" by the AG "opinion", and if he meets the criteria established therein ("urgency or the need has been sufficiently indicated" and "need...significacantly exceeds that held by an ordinary law-abiding citizen", etc.), he may be issued a license, if not, the license will be denied and lawfully so. And that will take care of that... until the next iteration of the lawsuit/appeal.

Just because no one ("ordinary law-abiding citizen") has ever gotten such a license in the past, and that no one will ever get one in the future, doesn't mean that it's not a logical possibility, it's just not a possibility in reality, and that reality is in conformance with the law (lawful "regulation") because there is the theoretical possibility that someone somewhere someday somehow could get one. Therefore, the right to bear arms has not been infringed. Q.E.D.
Agreed. As I said above, I read that Young's post-decision application was denied for inadequate good cause. Sad that it takes so many little, time consuming, and expensive steps to achieve one big one.
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  #864  
Old 11-26-2018, 6:05 PM
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Agreed. As I said above, I read that Young's post-decision application was denied for inadequate good cause. Sad that it takes so many little, time consuming, and expensive steps to achieve one big one.
By the reasoning of the dissenting judge in Young, the state, and the AG, the fact that no one gets a license isn't proof that no one can or could get a license, simply that no one who has applied has met the lawful criteria (noted above). That means, by that reasoning, that every single person in Hawaii could apply, every single person be denied for not meeting the standards, and the law would still be constitutional. That is their argument, and if it goes before the Ninth en banc, it will be overturned (unless Young is upheld for some "strategic" reason), as that logic melds perfectly with the logic of the court majority. There may be a "right", but imposing standards upon the exercise of that right to the point of zero exercise due to "regulation"... well, that's perfectly reasonable commonsense gun safety regulation.

"No one can lawfully bear arms" fulfills the requisite "may not be infringed" clause of the Second Amendment. That's what passes for logic these days.
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Old 11-27-2018, 12:05 PM
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I'd rephrase that slightly: "No one has sufficient good cause to bear arms".
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Old 11-27-2018, 6:34 PM
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The fact we could be waiting until fall 2019 for a decision on this en banc decision is extremely frustrating.
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  #867  
Old 11-27-2018, 9:39 PM
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The fact we could be waiting until fall 2019 for a decision on this en banc decision is extremely frustrating.


Look on the bright side. Trump might stack the 9th in our favor by then.
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  #868  
Old 11-28-2018, 8:35 AM
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Look on the bright side. Trump might stack the 9th in our favor by then.
Anyone have a link that would show which 9th judges seats will open up and when?
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Old 11-28-2018, 9:31 AM
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Anyone have a link that would show which 9th judges seats will open up and when?
I believe those are lifetime appointments and there is no requirement that a judge take "senior status" or retire at any particular age, so we don't really know how many more positions may become open in the next two years.

Trump's nominee and appointment from Hawaii garnered the full support of both senators, Hirono and Schatz, two of the most "progressive" members of the U.S. Senate, so I don't think we can expect much support from him. Let's hope Trump's other nominees are more on our side. Even then, no guarantees when it comes to the second-class Second Amendment.
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Old 11-28-2018, 9:53 AM
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Yep, lifetime appointment. Today I learned something new.

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  #871  
Old 11-28-2018, 10:12 AM
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By the reasoning of the dissenting judge in Young, the state, and the AG, the fact that no one gets a license isn't proof that no one can or could get a license, simply that no one who has applied has met the lawful criteria (noted above). That means, by that reasoning, that every single person in Hawaii could apply, every single person be denied for not meeting the standards, and the law would still be constitutional. That is their argument, and if it goes before the Ninth en banc, it will be overturned (unless Young is upheld for some "strategic" reason), as that logic melds perfectly with the logic of the court majority. There may be a "right", but imposing standards upon the exercise of that right to the point of zero exercise due to "regulation"... well, that's perfectly reasonable commonsense gun safety regulation.

"No one can lawfully bear arms" fulfills the requisite "may not be infringed" clause of the Second Amendment. That's what passes for logic these days.
With a well written decision they will be able to work around it up to a point. With Heller, yes people can own handguns now in DC, or Chicago, no matter how much they have wanted to work around that.
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Old 11-28-2018, 10:53 AM
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Anyone have a link that would show which 9th judges seats will open up and when?


There’s an ongoing thread about it.

https://www.calguns.net/calgunforum/....php?t=1443232
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  #873  
Old 11-29-2018, 6:53 AM
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Neal Katyal is being paid 185 thousand to defend young according to this fee schedule obtained through a UIPA request . Note he just came on for the en banc proceedings



https://www.scribd.com/document/3944...erts-Documents
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  #874  
Old 11-29-2018, 7:13 AM
Califpatriot Califpatriot is online now
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Originally Posted by wolfwood View Post
Neal Katyal is being paid 185 thousand to defend young according to this fee schedule obtained through a UIPA request . Note he just came on for the en banc proceedings



https://www.scribd.com/document/3944...erts-Documents
The hourly rates, after the discount, are fairly reasonable
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  #875  
Old 11-29-2018, 12:13 PM
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Originally Posted by wolfwood View Post
Neal Katyal is being paid 185 thousand to defend young according to this fee schedule obtained through a UIPA request . Note he just came on for the en banc proceedings



https://www.scribd.com/document/3944...erts-Documents
So, you took on the case pro bono (hopefully you've been supported by non-profits / donors).

And the State of Hawaii's Office of Attorney General, funded by the taxpayers, is spending up to $185K on an outside firm for the en banc proceedings and possibly the USSC if it goes that far. Or more $$, if the firm provides notice of a likelihood of exceeding the cap and the OAG agrees.

Seems legit.

Shame Katyal didn't get a sweet multi-million dollar retainer similar to Eric Holder's deal with CA.
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  #876  
Old 11-29-2018, 12:25 PM
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Originally Posted by Cortelli View Post
So, you took on the case pro bono (hopefully you've been supported by non-profits / donors).

And the State of Hawaii's Office of Attorney General, funded by the taxpayers, is spending up to $185K on an outside firm for the en banc proceedings and possibly the USSC if it goes that far. Or more $$, if the firm provides notice of a likelihood of exceeding the cap and the OAG agrees.

Seems legit.

Shame Katyal didn't get a sweet multi-million dollar retainer similar to Eric Holder's deal with CA.
I have not been supported by nonprofits. I have spent thousands of dollars on this out of my own pocket. However if this goes to the Supreme Court LaRue Tactical will be fundraising for us so I don't go broke litigating this.
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  #877  
Old 11-29-2018, 12:32 PM
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I have not been supported by nonprofits. I have spent thousands of dollars on this out of my own pocket. However if this goes to the Supreme Court LaRue Tactical will be fundraising for us so I don't go broke litigating this.
Well, if and when you are comfortable doing something (set up a GoFundMe or associate with a non-profit org with directed donations, etc.) post it here. I'll donate. I'll support LaRue's efforts if they are launched after this (maybe) is headed to USSC.
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  #878  
Old 11-29-2018, 12:43 PM
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Drivedabizness Drivedabizness is offline
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^^^ If you read between press1280's lines...

Regulating OC is possible, just the "how" would be under scrutiny.

Heller v. DC provided categorical hints...while making it clear that OC is the default mode for exercising the RIGHT...and cannot be prohibited like Concealed Carry.

- Sensitive places.
- Dangerous / Unusual Weapons (including concealable)
- Common use.

Hawaii knows if the case is allowed to go back to the district court - they will no longer be able in theory to practice the same restrictive standard and issuance for BOTH....one will have to be considerably relaxed...OC.


I'm still going with my prediction as here with California that is this happens, they'll pull the UOC crap....

=8-|
I think you're mistaken that "concealable" can be conflated w/Dangerous/Unusual.
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  #879  
Old 11-29-2018, 2:25 PM
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I think you're mistaken that "concealable" can be conflated w/Dangerous/Unusual.
Pay attention...

...the majority of the precedents cited and referenced in Heller v. DC and the Heller judges said this, not me.

Too many people narrowly focus on OC v. CCW forgetting that there is also a third test often considered before the courts.

"Is the weapon under consideration unusual, dangerous or concealable?"

You can be carrying openly and still get screwed because it was determined that the weapon you were openly carrying was unusual, dangerous or concealable.

You see this often in the cases from the 1800s.

The other "gotcha" is concealed while traveling. There doesn't seem to be any standard as to what constitutes traveling.

You can use Charles Nichol's old site to see the list of early cases and abstracts and read them yourself (via guncite.com).

Heller v. DC wasn't decided out of thin air...it referenced 600+ of tradition, colonial practice and precedent - and the various "tests" referenced within.

=8-)
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  #880  
Old 11-29-2018, 6:38 PM
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Thought you guys might enjoy this, basically a summary of the overpaid taxpayer funded government lawyer’s weaksauce petition, and his destruction thereof by Alan and his merry band of amici.

https://firearmsunknown.com/FU2/blog...pen-carry-case
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