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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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  #281  
Old 06-26-2017, 11:02 AM
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Originally Posted by cockedandglocked View Post
Anti-2a sheriffs.

In Yolo, in particular, it's purely because of the city of Davis (which is, for those who don't know, a liberal UC college town like Berkeley). The rest of the county is rural and largely pro-2a.

Yolo's sheriff is the "Prieto" in "Richards v. Prieto"

I have no idea about Imperial county.
Ah, forgot about Davis, that would do it...
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  #282  
Old 06-26-2017, 11:09 AM
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Originally Posted by Lex Talionis View Post
What is really needed is a case (hypothetically speaking) where a citizen is bearing arms illegally (by state or local statue) and then uses that weapon logically and legally to defend his own life from an attacker despite that ban, but then is prosecuted resulting with his constitutionally protected 2nd Amendment rights being revoked.

I wonder what would be the result of case like that on appeal to the SCOTUS with a better court than we currently have with Kennedy on board?

Justice Thomas was spot on in pointing out that LOGICALLY the founding fathers would not have been limiting the 2nd amendment to carrying a gun from the bedroom to the kitchen and that a universal right to BEAR arms was included in the keeping of arms.
I believe someone pointed out (Sarabellum?) that if you legally use a gun to defend yourself that you were carrying illegally, it's all gravy/grandfathered in, considered legal.

However, if stopped with a gun you're carrying illegally without legally using it for self defense, you're screwed.

So if you can magically teleport a gun into your hands when being attacked, you're fully legal.

Even if that isn't the case, I don't think they will charge someone specifically to avoid your hypothetical.

The bastards got here by being clever and evil, not stupid.
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  #283  
Old 06-26-2017, 11:13 AM
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What is our next move, Norman v. State?
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  #284  
Old 06-26-2017, 11:15 AM
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“For those of us who work in marbled halls, guarded constantly by a vigilant and dedicated police force, the guarantees of the Second Amendment might seem antiquated and superfluous. But the Framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense. I do not think we should stand by idly while a State denies its citizens that right, particularly when their very lives may depend on it. I respectfully dissent.”
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  #285  
Old 06-26-2017, 11:16 AM
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Originally Posted by lowimpactuser View Post
I believe someone pointed out (Sarabellum?) that if you legally use a gun to defend yourself that you were carrying illegally, it's all gravy/grandfathered in, considered legal.

However, if stopped with a gun you're carrying illegally without legally using it for self defense, you're screwed.

So if you can magically teleport a gun into your hands when being attacked, you're fully legal.

Even if that isn't the case, I don't think they will charge someone specifically to avoid your hypothetical.

The bastards got here by being clever and evil, not stupid.
Maybe it's all gravy (not prosecuted) because of the likelihood for the case to win a pro-2a case law on appeal.

Surely it's happened before. I'm betting that's just a can of worms that DAs really don't want to open.

It's worth mentioning that it IS legal (in CA at least, I'm not sure about elsewhere) to concealed carry without a permit if you feel (and can prove) your life is in immediate danger. ("immediate", as in, running away from someone who is trying to kill you.. not just a generalized feeling that someone is out to get you [in the eyes of the court, that's what restraining orders are for])
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I really hope the Office of Administrative Law isn't as stupid as DOJ thinks they are.
On 6/26, we shall see.


Last edited by cockedandglocked; 06-26-2017 at 11:22 AM..
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  #286  
Old 06-26-2017, 11:17 AM
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Default Gorsuch was obviously the right choice.

Ginsberg needs to go

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  #287  
Old 06-26-2017, 11:22 AM
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lol how predictable. This sucks.
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  #288  
Old 06-26-2017, 11:23 AM
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Originally Posted by dave86 View Post
Ginsberg needs to go
I don't wish ill upon her, but I do wish she'd just freakin' retire already.

She never should have been appointed in the first place, she's the very definition of an activist judge.

I realize no judge is fully without bias, but justice appointments should ALWAYS be able to think rationally and put themselves in other people's shoes. Gorsuch, for example, is capable of rational thought. As is Thomas. She, however, is not. She will always rule one way and one way only, which is in favor of her personal feminist liberal beliefs.
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I really hope the Office of Administrative Law isn't as stupid as DOJ thinks they are.
On 6/26, we shall see.


Last edited by cockedandglocked; 06-26-2017 at 11:26 AM..
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  #289  
Old 06-26-2017, 11:26 AM
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The Supreme Court's denial of a petition for a writ of certiorari is sometimes misunderstood as implying that the Supreme Court approves the decision of the lower court. However, as the Court explained in Missouri v. Jenkins, such a denial "imports no expression of opinion upon the merits of the case[.]" In particular, a denial of a writ of certiorari means that no binding precedent is created by the denial itself, and the lower court's decision is treated as mandatory authority only within the geographical (or in the case of the Federal Circuit, subject-specific) jurisdiction of that court. -Wikipedia article on Certiorari
Though it may well feel that way, I wouldn't call denial of cert handing 9th a victory, especially not with a scathing dissent specifically calling out:
  • en banc avoided answering the important question in the matter
  • 9th would likely be compelled to rule in favor of Peruta had they answered the question

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This Court has already suggested that the Second Amendment protects the right to carry firearms in public in some fashion. As we explained in Heller, to “bear arms” means to “‘wear, bear, or carry upon the person or in the clothing or in a pocket, for the purpose of being armed and ready for offensive or defensive action in a case of conflict with another person.’”
The State's argument in this case was intentionally centered on a technicality; ruling on concealed carry alone without regard to the overall infringement of 2A in California when taken with open carry prohibition in context. This is despite Peruta's amended claim which makes the issue clear as pointed out in today's opinion of dissent.

While we didn't get the victory we wanted, I wouldn't view this as an outright defeat. This is simply the court refusing to hear this case. It does not set legal precedent. We don't know the reasons for denial though we can speculate that ambiguity on the technical merits may have come into play.

What I mean is there's a difference between affirming the scope of Peruta on legal technicalities vs. affirming the contextual conclusion in Peruta with respect to 2A/Heller. It seems like SCOTUS wants more circuit split to take up this issue, and importantly it seems the State is trying to cling to these narrow technicalities everywhere. You'll see this in their push to apply favorable scrutiny so they can avoid running afoul of the complete purpose of 2A. They currently claim the 'core' purpose is home defense even though Heller specifically states otherwise.

Perhaps an upcoming retirement is on the table, but I would assume in that case they'd simply relist for next session. My gut tells me it was going to be a 4-4 split and the argument for Peruta scope to force answering the key question wasn't compelling enough to carry the swing.

Of course I could be wrong about everything. Take all speculation with a huge grain of salt.

Last edited by naeco81; 06-26-2017 at 11:36 AM.. Reason: added wiki link
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  #290  
Old 06-26-2017, 11:29 AM
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Originally Posted by MajorCaliber View Post
Of course that should not be necessary, The existing 2A should override any federal or state legislation, but yet apparently even that is not enough. The idea of needing legislation to guarantee a constitutional right is just upside down.

Here's an idea though. Has anybody proposed or really thought through the idea of a parallel FEDERAL permit process for average citizens? Maybe the answer here is to have legislation for a Federal permit process, administered by the DOJ or ATF, that allows regular citizens to have a permit, good in all 50 states, that cannot be over-ridden by state or local laws. Rights guaranteed in the Federal constitution should never be considered a sates-rights issue.
But then you propose legislation. I'd use a face palm too but it seems you used them all. Civil Rights Act of 1964 ring any bells? How about the Voting Rights Act? All Civil Rights are backed up with Federal Legislation. BTW its not only Carry that is burdened, States walk willy nilly all over the 2nd Amendment. Magazines, rifles, etc that are in common use are burdened by various States. That needs to go away too, just not laws concerning Carry.

The only real question I have is what pitfalls are there if Congress takes over the entire field. What unintended consequences would come from it? Never mind getting Congress to agree on legislation or the hurdles for the moment. Or is getting a clean ruling in favor of 2A from the SCOTUS a much better route? Because if waiting for SCOTUS is the answer, it seems we got a longggggggg wait IMO.
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  #291  
Old 06-26-2017, 11:30 AM
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Originally Posted by kuug View Post
What is our next move, Norman v. State?
Our next move is to replace a justice. Nothing happens until the court moves back to the right.

Right now, my guess is the vote count is:

1) No cert without a clear majority in their favor and will do whatever gymnastics required to limit gun rights: Breyer, Sotomayor, Kagan, Ginsburg
2) No cert under any circumstances. Don't want to expand gun rights, but would grudgingly uphold 2A if they were forced to hear a case: Roberts & Kennedy
3) Want cert and would uphold 2A: Alito, Gorsuch, Thomas

You need to replace a justice in group 1 or 2 to move on a case.
If the rumors are True, maybe it's Kennedy.

But the good news is that Gorsuch joined the dissent from denial, so we know where he stands.
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  #292  
Old 06-26-2017, 11:35 AM
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The sooner trump gets to nominate another justice the better
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  #293  
Old 06-26-2017, 11:42 AM
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Republicans have the nuclear option... Kennedy will go and we'll have our victory.
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  #294  
Old 06-26-2017, 11:48 AM
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Could be worse.
Hillary wins the election. We have a 5 justice liberal majority: Breyer, Sotomayor, Kagan, Ginsburg and justice Maxine Waters.
Unlike Roberts and Kennedy, who don't want to expand gun rights, but at least have enough respect for precedent to deny cert and simply not take the case, the 5 liberal justices have no such hang-ups about the pesky constitution standing in the the way of their personal ideology.
They grant cert and uphold the 9th circuit
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  #295  
Old 06-26-2017, 11:53 AM
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Originally Posted by splithoof View Post
I wonder what the immediate, practical effect this will have here in California;
You'll see this introduced again:
http://leginfo.legislature.ca.gov/fa...201520160AB466
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  #296  
Old 06-26-2017, 11:56 AM
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Originally Posted by subaruwrx View Post
Republicans have the nuclear option... Kennedy will go and we'll have our victory.
I like your screen name, but I'd feel a lot better with two appointees.
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  #297  
Old 06-26-2017, 11:58 AM
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Republicans have the nuclear option... Kennedy will go and we'll have our victory.
Kennedy has to go first.
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  #298  
Old 06-26-2017, 12:00 PM
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Originally Posted by MajorCaliber View Post
Of course that should not be necessary, The existing 2A should override any federal or state legislation, but yet apparently even that is not enough. The idea of needing legislation to guarantee a constitutional right is just upside down.

Here's an idea though. Has anybody proposed or really thought through the idea of a parallel FEDERAL permit process for average citizens? Maybe the answer here is to have legislation for a Federal permit process, administered by the DOJ or ATF, that allows regular citizens to have a permit, good in all 50 states, that cannot be over-ridden by state or local laws. Rights guaranteed in the Federal constitution should never be considered a sates-rights issue.
You are correct I agree on both points, I have had said the same concerning needing a Federal permit process. Now that its apparent that our supreme court is not pro self defense I think we will see the anti gun crowd start to ramp up more restrictive gun laws. IMO although many states are not as anti gun as CA or NJ but many are not as pro gun as AZ and a few other states which are in the minority so I would not be surprised to see push for a nationwide turn back toward the anti gun laws.
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  #299  
Old 06-26-2017, 12:05 PM
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Originally Posted by SWalt View Post
But then you propose legislation. I'd use a face palm too but it seems you used them all. Civil Rights Act of 1964 ring any bells? How about the Voting Rights Act? All Civil Rights are backed up with Federal Legislation. BTW its not only Carry that is burdened, States walk willy nilly all over the 2nd Amendment. Magazines, rifles, etc that are in common use are burdened by various States. That needs to go away too, just not laws concerning Carry.
We actually agree. I should have been more clear in the distinction I was making. Legislation should not be required, but unfortunately it is since depending on the courts is not working. That is the sad state of affairs we are now in. We need a solution that does not depend on the agreement or cooperation of either the Federal courts or the states and their courts. I agree that all the infringements you mentioned need to go, I'm just looking at a solution that gets to at least part of the problem.
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  #300  
Old 06-26-2017, 12:09 PM
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Originally Posted by champu View Post
I'm confused... Tribal gaming? I don't see anything in that bill that relates to concealed carry. Also that billed was signed into law by the governor already, so I don't understand why it would be introduced again.

Edit: Ok I did a little research and see what you meant now. It was formerly a bill to increase the standards for "good cause". The bill was basically defeated and then gutted and amended into something unrelated to guns, which was passed.
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I really hope the Office of Administrative Law isn't as stupid as DOJ thinks they are.
On 6/26, we shall see.


Last edited by cockedandglocked; 06-26-2017 at 12:17 PM..
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  #301  
Old 06-26-2017, 12:10 PM
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Well, Norman is a "clean" open carry case (none of the "extraneous" issue of Peruta) .
Norman isn't a clean case because Florida has a shall-issue system, so the state can always use a flip of the Peruta logic: hey, you want to "bear" in Florida? No problem, get a permit! Norman isn't asking for the right to "bear" in some manner, it's asking for the right to bear in one particular manner.

As for Nichols case, that's actually the biggest danger to permanently losing our "bear" right. He's like someone with no medical training attempting to do a heart transplant. He knows he's going to kill the patient and he's doing it anyway. He may give final victory to Team Feinstein.
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  #302  
Old 06-26-2017, 12:27 PM
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Originally Posted by CCWFacts View Post
Norman isn't a clean case because Florida has a shall-issue system, so the state can always use a flip of the Peruta logic: hey, you want to "bear" in Florida? No problem, get a permit! Norman isn't asking for the right to "bear" in some manner, it's asking for the right to bear in one particular manner.

As for Nichols case, that's actually the biggest danger to permanently losing our "bear" right. He's like someone with no medical training attempting to do a heart transplant. He knows he's going to kill the patient and he's doing it anyway. He may give final victory to Team Feinstein.
Well, this is concerning.
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Old 06-26-2017, 12:36 PM
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"The petition for a writ of certiorari is denied."

https://www.supremecourt.gov/opinion...6-894_p86b.pdf
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  #304  
Old 06-26-2017, 12:39 PM
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Exactly what ran through my mind when I read about this.
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  #305  
Old 06-26-2017, 1:08 PM
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Originally Posted by CCWFacts View Post
Norman isn't a clean case because Florida has a shall-issue system, so the state can always use a flip of the Peruta logic: hey, you want to "bear" in Florida? No problem, get a permit! Norman isn't asking for the right to "bear" in some manner, it's asking for the right to bear in one particular manner.
Well, as I recall, the Norman plaintiffs have argued that the Florida courts have explicitly called out concealed carry in Florida as a privilege, not a right. So if concealed carry is a privilege according to the Florida courts, then what exactly is a right there?

That said, the FL legislature changed possession of the permit from an affirmative defense to a direct element of the crime (i.e., that lack of a permit is part of the crime, rather than possession of the permit being a mere "affirmative defense"), so that may have mooted the "privilege" argument insofar as the FL courts go. And, indeed, the appellate court there ruled, and the FL supreme court affirmed, that the FL concealed carry permit "shall issue" scheme is sufficient to satisfy the right to bear, and since it's the FL supreme court that affirmed such, that pretty much eliminates the "privilege" argument.

It'll be interesting to see what the petition for cert looks like. But with the current composition of the Supreme Court, it's a near certainty that the Court will deny cert to Norman, and really to all other 2A cases involving firearms.

It will take at least two Supreme Court nominations, with at least one of them being a replacement of a Democrat appointee and the other either being a replacement of a Democrat appointee or a replacement of Kennedy, before we see any real positive movement on the right to arms in the Supreme Court. Replacing Kennedy alone might be sufficient, but I think it's more likely than not, given decisions such as the ObamaCare case, that Roberts is also refusing to side with the right to arms.
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  #306  
Old 06-26-2017, 1:11 PM
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Originally Posted by Steve1968LS2 View Post
“For those of us who work in marbled halls, guarded constantly by a vigilant and dedicated police force, the guarantees of the Second Amendment might seem antiquated and superfluous. But the Framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense. I do not think we should stand by idly while a State denies its citizens that right, particularly when their very lives may depend on it. I respectfully dissent.”
God freaking damn it. This. Needs. To. Be. Repeated. Have they forgotten Scalise already? Or Animal Farm?
"All animals are equal, but some animals are more equal than others."
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When it comes to gun control, no one is more hypocritical than liberal celebrities and politicians. While these people promote the end of gun rights for ordinary Americans, it’s often the case that they are protected in public and in their homes, by cadres of highly trained and armed bodyguards. They reap the benefits of the Second Amendment, while treating the rest of us like children who can’t be trusted with a gun.
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  #307  
Old 06-26-2017, 1:22 PM
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I know it would be a huge stretch, and virtually unprecedented, but just for argument's sake, is this case permanently DEAD dead, or can SCOTUS theoretically still decide to hear the case later in the future?

Or was this a death-blow that ensures it can't possibly ever be heard, even in the extremely unlikely event that SCOTUS wanted to change their mind someday?
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I really hope the Office of Administrative Law isn't as stupid as DOJ thinks they are.
On 6/26, we shall see.

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  #308  
Old 06-26-2017, 1:35 PM
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Originally Posted by cockedandglocked View Post

It's worth mentioning that it IS legal (in CA at least, I'm not sure about elsewhere) to concealed carry without a permit if you feel (and can prove) your life is in immediate danger. ("immediate", as in, running away from someone who is trying to kill you.. not just a generalized feeling that someone is out to get you [in the eyes of the court, that's what restraining orders are for])
And the sad part of that of course is that the founding fathers understood that the rights in the 2nd Amendment did not require a specific articulable threat but rather the knowledge that an immediate means should be permitted to deal with both generalized threats as well as specific threats.
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