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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 05-16-2016, 8:35 AM
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Default Teixeira v. Alameda County: en banc LOSS 10/10/17

From gene's Twitter this morning.
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Old 05-16-2016, 8:44 AM
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Presumably in 15 minutes you can see for yourself at this url:

https://www.ca9.uscourts.gov/opinions/
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Old 05-16-2016, 8:55 AM
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Texiera

And it's all because of you, eville!
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Old 05-16-2016, 8:59 AM
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Sweet!!!! I thought this was dead!
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Old 05-16-2016, 9:01 AM
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https://cdn.ca9.uscourts.gov/datasto...6/13-17132.pdf
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Old 05-16-2016, 9:28 AM
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Originally Posted by eville View Post
Sweet!!!! I thought this was dead!
Nevah!

Congratulations to Don Kilmer - and you, btw.
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Old 05-16-2016, 9:47 AM
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Nevah!

Congratulations to Don Kilmer - and you, btw.
Just lucky enough to be in the right places at the right times.

Let's hope for more good news from CA9 this week!
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Old 05-16-2016, 10:14 AM
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Default Teixeira v. Alameda County 9th Circuit Decision out today 5.16.16

9th Circuit opinion just posted today:

http://cdn.ca9.uscourts.gov/datastor...6/13-17132.pdf


The panel affirmed in part and reversed in part the district court’s dismissal for failure to state a claim, and remanded in an action brought by three individuals wishing to operate a gun shop in Alameda County, California, who challenged a County ordinance, which among other things, does not permit prospective gun stores to be located within 500 feet of a residentially zoned district.

Reversing the dismissal of plaintiffs’ Second Amendment claims, the panel held that the County had offered nothing to undermine the panel’s conclusion that the right to purchase and to sell firearms is part and parcel of the historically recognized right to keep and to bear arms. The panel held that the Ordinance burdened conduct protected by the Second Amendment and that it therefore must be subjected to heightened scrutiny—something beyond mere rational basis review. The panel held that under heightened scrutiny, the County bore the burden of justifying its action, and that the district court should have required the County to provide some evidentiary showing that gun stores increase crime around their locations or negatively impact the aesthetics of a neighborhood. The panel held that if on remand evidence did confirm that the Ordinance as applied, completely bans new guns stores (rather than merely regulating their location), something more exacting than intermediate scrutiny would be warranted.

-Cee

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Old 05-16-2016, 10:31 AM
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Nice!
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Old 05-16-2016, 10:47 AM
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The post at Volokh Conspiracy highlights several notable quotes from the majority opinion.

Quote:
The dissent does not share our concern over Alameda County’s attempt to restrict the ability of law-abiding Americans to participate in activity protected by the Second Amendment. According to the dissent, there is no constitutional infirmity so long as firearm sales are permitted somewhere in the County. We doubt the dissent would afford challenges invoking other fundamental rights such cursory review. Would a claim challenging an Alameda County ordinance that targeted bookstores be nothing more than “a mundane zoning dispute dressed up as a [First] Amendment challenge”? Surely the residents of Alameda County could acquire their literature at other establishments that, for whatever reason, had not been shuttered by the law.

Such an ordinance, of course, would give us great pause. Our reaction ought to be no different when it comes to challenges invoking the Second Amendment. The right of law-abiding citizens to keep and to bear arms is not a “second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees that we have held to be incorporated into the Due Process Clause.” McDonald v. City of Chicago. Indeed, it is one “that the Framers and ratifiers of the Fourteenth Amendment counted … among those fundamental rights necessary to our system of ordered liberty.” Just as we have a duty to treat with suspicion governmental encroachments on the right of citizens to engage in political speech or to practice their religion, we must exert equal diligence in ensuring that the right of the people to keep and to bear arms is not undermined by hostile regulatory measures.

We reiterate Heller and McDonald’s assurances that government enjoys substantial leeway under the Second Amendment to regulate the commercial sale of firearms. Alameda County’s Ordinance may very well be permissible. Thus far, however, the County has failed to justify the burden it has placed on the right of law-abiding citizens to purchase guns. The Second Amendment requires something more rigorous than the unsubstantiated assertions offered to the district court.
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Old 05-16-2016, 11:50 AM
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I love how the county wants to make claims that gun stores attract crime. Which is absurd.

If we're going to effectively ban businesses that attract crime shouldn't places like bars and liquor stores be first on the list?
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Old 05-16-2016, 11:52 AM
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Somebody will call for an en banc.
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Old 05-16-2016, 12:48 PM
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Sooooo are they saying that Strict Scrutiny doesn't apply even though it was argued as the ordinance's result was effectively a Black Code...and that the district court said they thought it really only rose to the level of intermediate scrutiny but they messed up on that as a court and essentially applied rational basis as they just sheepled the county's data and didn't question its validity?

Shouldn't we get our $ back from judges and our legal system that half-***** application of the law to evidence... and then use our tax $ to sort it out at a higher level? I would think they would benefit from an airline pilots flight prep checklist or surgeons pre and post op approach? The county doesn't owe the Plaintiff legal fee recovery but what about a bad court...in this case it wasn't an error of omission but and error of commission and that seems like a waste of our time and $...
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Old 05-16-2016, 1:37 PM
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Quote:
Originally Posted by Bruce View Post
Somebody will call for an en banc.
Two Republican-appointed judges on the panel (and a dissent from the Clinton-appointee). Obviously, this calls for an en-banc review.
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Old 05-16-2016, 2:21 PM
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Quote:
Originally Posted by Bruce View Post
Somebody will call for an en banc.

Of course! That's a no-brainer. Aren't they automatic now for any positive outcome for a 2A case in the 9th?
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Old 05-16-2016, 2:21 PM
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Read the opinion. The language seems similar to that of the pre-en-banc Peruta ruling (O'Scannlain?).

Of course in Silvermans partial dissent he plays the "if you can get a gun then its not an infringement" card:

The next thing you need to know is that there is no claim
that, due to the zoning ordinance in question, individuals
cannot lawfully buy guns in Alameda County. It is
undisputed that they can. The record shows that there are at
least ten gun stores already operating lawfully in Alameda
County.
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Old 05-16-2016, 2:35 PM
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^

...that wonderful creature En Banc is lurking somewhere around a corner.

=8-|
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Old 05-16-2016, 2:36 PM
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Quote:
Originally Posted by mshill View Post
Read the opinion. The language seems similar to that of the pre-en-banc Peruta ruling (O'Scannlain?).

Of course in Silvermans partial dissent he plays the "if you can get a gun then its not an infringement" card:

The next thing you need to know is that there is no claim
that, due to the zoning ordinance in question, individuals
cannot lawfully buy guns in Alameda County. It is
undisputed that they can. The record shows that there are at
least ten gun stores already operating lawfully in Alameda
County.





Ah- but what if some residents can't afford the bus-fare to get to those other locations????
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Old 05-16-2016, 2:50 PM
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Quote:
Originally Posted by mshill View Post
Read the opinion. The language seems similar to that of the pre-en-banc Peruta ruling (O'Scannlain?).

Of course in Silvermans partial dissent he plays the "if you can get a gun then its not an infringement" card:

The next thing you need to know is that there is no claim
that, due to the zoning ordinance in question, individuals
cannot lawfully buy guns in Alameda County. It is
undisputed that they can. The record shows that there are at
least ten gun stores already operating lawfully in Alameda
County.
That is a ridiculous assertion that makes no sense. That implies that a challenge has no merit unless all the gun stores went out of business, then, plaintiffs would have to wait for the legal system to run it's course, hope for a favorable decision, then wait for a new FFL to open. That process could easily take four years. An infringement is an infringement.
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Old 05-16-2016, 3:06 PM
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Quote:
Originally Posted by Untamed1972 View Post
I love how the county wants to make claims that gun stores attract crime. Which is absurd.

If we're going to effectively ban businesses that attract crime shouldn't places like bars and liquor stores be first on the list?
7-11, stop and "rob", gas stations mini marts...I can't say how many times I've seen what appeared to be drug deals going on in said locations...also robberies and fights. Ban convenience stores!

And don't forget mall parking lots, smash and grabs are huge around here.
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Old 05-16-2016, 4:21 PM
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Old 05-16-2016, 4:25 PM
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Earlier threads:
Teixeira v. Alameda (FFL Zoning)

CGF has 13th complaint in a row thrown out of court before trial

Cal-FFL, CGF, SAF suffer loss in Teixeira v. County of Alameda

Perhaps, just perhaps, early losses have other contributing factors beyond the alleged poor filing/argument?
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Old 05-16-2016, 4:37 PM
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David Kopel on the Decision :
9th Circuit opinion on rights of gun stores applies standard, rigorous Second Amendment doctrines

Quote:
The U.S. Court of Appeals for the 9th Circuit decision Monday in Teixiera v. County of Alameda vindicates the Second Amendment rights of gun stores and provides a good model of the Second Amendment doctrines that have been developed by the federal Circuit Courts of Appeals. Eugene Volokh’s post has summarized the decision, so I will delve into the doctrinal details......
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Old 05-16-2016, 7:04 PM
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Where's the party at?
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Old 05-16-2016, 7:14 PM
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Where's the party at?
over at kamela 'kamel-toe' harris's house.
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Old 05-16-2016, 7:18 PM
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Sweet! We'll take it!
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Old 05-16-2016, 8:38 PM
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Quote:
Originally Posted by thedrickel View Post
Where's the party at?
Party?

Presuming no en banc ... The plaintiffs now get to schedule a lower Federal court trial - a couple months.

Then they hold the trial - a week or two, maybe.

Then the court issues a ruling. Months.

Then the loser appeals to 9th Circuit. More months, to accept/deny. Then new briefs - months. Then Oral arguments. Then a ruling - months.

Last cycle took 4 years. 3-4 years again looks probable.

I hope Don is grooming a replacement for himself, for when he retires. Lots of his cases will still be active.
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Old 05-16-2016, 8:46 PM
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Sounds like party at Berger's house.
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Old 05-17-2016, 2:40 AM
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Quote:
Originally Posted by Librarian View Post
Party?

Presuming no en banc ... The plaintiffs now get to schedule a lower Federal court trial - a couple months.

Then they hold the trial - a week or two, maybe.

Then the court issues a ruling. Months.

Then the loser appeals to 9th Circuit. More months, to accept/deny. Then new briefs - months. Then Oral arguments. Then a ruling - months.

Last cycle took 4 years. 3-4 years again looks probable.

I hope Don is grooming a replacement for himself, for when he retires. Lots of his cases will still be active.
I know your signature has some variation of "IANAL" - but 4 years is enough time. Are you volunteering?

Anyway I'm not quite yet.

And thanks for the kind words posted earlier regarding assessments of the early stages of public interest litigation. We had some unique obstacles to overcome in this case, but it is in a much better posture now.
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Old 05-17-2016, 7:03 AM
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Quote:
Originally Posted by mshill View Post
Read the opinion. The language seems similar to that of the pre-en-banc Peruta ruling (O'Scannlain?).

Of course in Silvermans partial dissent he plays the "if you can get a gun then its not an infringement" card:

The next thing you need to know is that there is no claim
that, due to the zoning ordinance in question, individuals
cannot lawfully buy guns in Alameda County. It is
undisputed that they can. The record shows that there are at
least ten gun stores already operating lawfully in Alameda
County.
The problem then becomes if such discrimination is allowed against gun shops you end up with what happened in SF.....eventually their will be none. Sure maybe the existing shops are grandfathered in, but if they set their ordinance such that no new shops can ever be established, eventually their wont be any.

I like O'Scannlians retort about "he wouldn't be saying that if we were talking about book shops."

What if it was churches. Would a judge really say: "its ok to effectively ban new churches because there are already other existing churches you can go to"?
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Old 05-17-2016, 7:09 AM
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Quote:
Originally Posted by SonofWWIIDI View Post
7-11, stop and "rob", gas stations mini marts...I can't say how many times I've seen what appeared to be drug deals going on in said locations...also robberies and fights. Ban convenience stores!

And don't forget mall parking lots, smash and grabs are huge around here.
That's exactly my point....liquor stores get robbed WAY more than gun stores ever do. And there is a reason the term "bar-fight" was coined. They happen there a lot, prolly more so than other common location.

The whole 500ft thing is so arbitrary too. Really....so 446 ft away and all hell is gonna break loose.....but 500ft and all is well?

The contention that gun stores attract crime is also rather offensive. Its another example of no matter much we comply its never enough. After all the hoops we hafta jump thru to buy a gun, with background checks and waiting periods, safety cards, etc, its still not enough to satisfy them. It just further reinforces that they're true mentality is that ALL gun owners are criminals.....period!
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Old 05-17-2016, 7:44 AM
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What effect, if any, will this have on the case in Pleasant Hill, where the city council rammed through an ordinance that was zoning for gun sales and FFL's, and claimed it wasn't zoning? I haven't checked lately what the status of the case is.

I expect what Librarian posted above is the case. Years of paperwork and hearings ahead.
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Old 05-17-2016, 8:03 AM
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Quote:
Originally Posted by redhead View Post
What effect, if any, will this have on the case in Pleasant Hill, where the city council rammed through an ordinance that was zoning for gun sales and FFL's, and claimed it wasn't zoning? I haven't checked lately what the status of the case is.

I expect what Librarian posted above is the case. Years of paperwork and hearings ahead.
It would depend on the effects of that ordinance. The ruling didn't say zoning was unconstitutional........but if the as-applied effect of the zoning is effectively a ban or nearly a ban then it would be.

And I think that is what many of these ordinances were pushed by the Bradys and VPC were intended to do. In a dense population center restricting something to be away from schools, homes, bars/liquor stores, etc was intended to act as a ban because they know there is virtually no where that will meet that criteria.
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"..the mind is the weapon and the hand only its extention. Discipline your mind!" Master Hao, Chenrezi monastery, Valley of the Sun
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  #34  
Old 05-17-2016, 8:53 AM
eville eville is offline
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Originally Posted by thedrickel View Post
Sounds like party at Berger's house.
Agreed! Without you introducing me to JD none of this may have happened.
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  #35  
Old 05-17-2016, 9:55 AM
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Originally Posted by Lex Arma View Post
I know your signature has some variation of "IANAL" - but 4 years is enough time. Are you volunteering?
Nah. Then I'd have to change my .sig.
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Originally Posted by Lex Arma View Post
Anyway I'm not quite yet.
More to the point, I really am. And since I live in NorCal, my choices are probably Boalt or Hastings, not the most gun-friendly venues.

Does the Bar still allow study with a member of the Bar instead of law school?

ETA - it's B&P code 6060(e)(2)
Quote:
(e) Have done any of the following:

(1) Had conferred upon him or her a juris doctor (J.D.) degree or a bachelor of laws (LL.B.) degree by a law school accredited by the examining committee or approved by the American Bar Association.

(2) Studied law diligently and in good faith for at least four years in any of the following manners:

(A) In a law school that is authorized or approved to confer professional degrees and requires classroom attendance of its students for a minimum of 270 hours a year.

A person who has received his or her legal education in a foreign state or country wherein the common law of England does not constitute the basis of jurisprudence shall demonstrate to the satisfaction of the examining committee that his or her education, experience, and qualifications qualify him or her to take the examination.

(B) In a law office in this state and under the personal supervision of a member of the State Bar of California who is, and for at least the last five years continuously has been, engaged in the active practice of law. It is the duty of the supervising attorney to render any periodic reports to the examining committee as the committee may require.

(C) In the chambers and under the personal supervision of a judge of a court of record of this state. It is the duty of the supervising judge to render any periodic reports to the examining committee as the committee may require.

(D) By instruction in law from a correspondence law school authorized or approved to confer professional degrees by this state, which requires 864 hours of preparation and study per year for four years.

(E) By any combination of the methods referred to in this paragraph (2).
Hey! Correspondence school!

ETA2: I'm laughing at all this and explaining it to my wife. She said "I'm not sure I'd want to be married to a lawyer ..."
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JB now has until mid-October to act (or not) on bills sent to him. We're immune from most further mischief until the next session begins, late December 2017.

There is no value at all complaining or analyzing or reading tea leaves to decide what these bills really mean or actually do; any bill with a chance to pass will be bad for gun owners.

The details only count after the Governor signs the bills.

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Last edited by Librarian; 05-17-2016 at 10:07 AM..
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  #36  
Old 05-17-2016, 10:03 AM
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Aw, Jeez....

I'm thinking Izzies.

I'm not letting you savages into my house. You'll drink all my booze, terrify my family, and molest my dogs.
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  #37  
Old 05-17-2016, 10:06 AM
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Aw, Jeez....

I'm thinking Izzies.

I'm not letting you savages into my house. You'll drink all my booze, terrify my family, and molest my dogs.
Just another Tuesday, eh?
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JB now has until mid-October to act (or not) on bills sent to him. We're immune from most further mischief until the next session begins, late December 2017.

There is no value at all complaining or analyzing or reading tea leaves to decide what these bills really mean or actually do; any bill with a chance to pass will be bad for gun owners.

The details only count after the Governor signs the bills.

Not a lawyer, just Some Guy On The Interwebs.


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  #38  
Old 05-17-2016, 10:23 AM
eville eville is offline
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Originally Posted by jdberger View Post
Aw, Jeez....

I'm thinking Izzies.

I'm not letting you savages into my house. You'll drink all my booze, terrify my family, and molest my dogs.
Well Drakes Barrel house might be a good option.
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  #39  
Old 05-17-2016, 10:39 AM
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Originally Posted by Librarian View Post
And since I live in NorCal, my choices are probably Boalt or Hastings, not the most gun-friendly venues.
Not sure why that would be a factor. There's also USF and GGU, which strike me as a little more middle-of-the-road.
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  #40  
Old 05-17-2016, 11:16 AM
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Originally Posted by strongpoint View Post
Not sure why that would be a factor. There's also USF and GGU, which strike me as a little more middle-of-the-road.
And JFK, for that matter (more left-ish, I think).

Not so sure about the political stance of USF any more; when I was an undergrad there, lots of the SFPD were USF grads, and the law school served many of those for career advancement. Expensive, though.

Apologies for dragging this off topic. I know I know better.
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JB now has until mid-October to act (or not) on bills sent to him. We're immune from most further mischief until the next session begins, late December 2017.

There is no value at all complaining or analyzing or reading tea leaves to decide what these bills really mean or actually do; any bill with a chance to pass will be bad for gun owners.

The details only count after the Governor signs the bills.

Not a lawyer, just Some Guy On The Interwebs.


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