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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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  #41  
Old 08-18-2016, 2:42 PM
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Originally Posted by rplaw View Post
The issue I have with it, is that it's amateur hour all over again. These people get paid big bucks to do this, yet they can't seem to make a simple and cogent argument which encompasses the ACTUAL issue.

One has to wonder why? Clearly the argument I illustrated above can be included into this complaint without cluttering the field. Nor is this obscure law. Nor is is a stretching of established precedent. It clearly applies to the facts and is an inalienable Right under the California Const. So where is it in the complaint?

As for support, I'll support the effort. But I won't waste my time trying to spin it into something is clearly isn't. What it isn't, is a winner. It's a rehash of Peruta that will get dismissed based on the precedent in Peruta and we will lose (again) at the appellate level.

Did the attorneys who drafted this not read Peruta? There is no Constitutional Right to carry a concealed weapon in public. Period. End of game. You lose. Why in the world would someone file a complaint seeking an injunction against prohibiting either concealed carry or open carry under the US Constitution KNOWING that CC is not a Right?

Did they not learn about the 1/2-step process where the courts will NOT address the OC case if it's a companion to a case with a CC issue within it?

As for filing only for an injunction against OC, one word; Nichols. Already there, already doing that. Then there's Baker in Hawaii regarding their OC ban. And, Norman is on track to SCOTUS for OC in Fla and likely to get there soon. So what's the point of this case again?
Well, perhaps us amateurs read the Kasler case, which makes your argument dead on arrival:

"If plaintiffs are implying that a right to bear arms is one of the rights recognized in the California Constitution's declaration of rights, they are simply wrong. No mention is made in it of a right to bear arms. (See In re Rameriz (1924) 193 Cal. 633, 651, 226 P. 914 [“The constitution of this state contains no provision on the subject”].) Moreover, “[i]t is long since settled in this state that regulation of firearms is a proper police function.” (Galvan v. Superior Court (1969) 70 Cal.2d 851, 866, 76 Cal.Rptr. 642, 452 P.2d 930.) We reject any suggestion that the regulations at issue here impermissibly infringe upon the right to defend life or protect property guaranteed by the California Constitution."

If you think this is a rehash of Peruta, then it appears you are the one who needs to read the Peruta opinion. What possible reason could there be to challenge every single restriction on carry, open or concealed, following a case where the court dodged the question of the right to bear arms by saying it was a concealed carry challenge? And, is the Ninth Circuit the final arbiter of the scope of the 2A?

And, if you think Nichols sufficiently corners the court, and us amateurs are making a mistake by challenging all potential outs, I am curious to hear your reasoning.

By the way, if you think we are making "big bucks" by doing these cases, you should know that we charge the NRA about half, sometimes less, my normal hourly rate. And, Chuck received an award from the NRA for donating $1 million in pro bono lawyer time, on top of the already low rate.
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  #42  
Old 08-18-2016, 3:46 PM
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I know from personal information going back twenty years that Mr. Michel has been a part of our cause for a long time and he is not doing this for money. He believes in our cause and we need to support him and all of those who are fighting the good fight.
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  #43  
Old 08-18-2016, 3:52 PM
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Well, let's not jump to conclusions just yet.
That was good advice wasn't it? Lol.

2 strikes for rplaw!! Any other brilliant critiques?
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  #44  
Old 08-18-2016, 4:10 PM
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Originally Posted by pistol3 View Post
At the end of the day they can do anything they want to uphold CA's carry ban, but I'm curious how you think it would play out for this case. The argument is basically that SCOTUS says there is a right to carry. Open carry is illegal, and it is impossible to get a license to conceal carry. How can people carry? Maybe they will say open carry is legal in rural areas and that is good enough?
What other right in the bill of rights has a "geographic restriction" on it?
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  #45  
Old 08-18-2016, 4:22 PM
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Thanks for filing this. It's a pretty "in your face, now answer the question" lawsuit... A win here will force our opponents to ram through a shall issue bill just so the warm and fuzzy crowd stops calling their offices every 10 minutes saying "do something about that guy with a holstered gun". Funny, their solution will be to hide the "problem".
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  #46  
Old 08-18-2016, 4:53 PM
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Originally Posted by rplaw View Post
Great, wonderful, it's Peruta II.

As a draft it's fine but they forgot something before they finalized it and filed the complaint. And, it's a BIG something. This is California. The State where Federal law and the US Constitution mean NOTHING!

However, the California Constitution still means something. So the complaint should have referenced the Ca Const. Art I Sec. 1. To wit:

Emphasis added.

An argument could be made that, under the Ca Const., self defense is sufficient good cause to carry a firearm in public. But, did the wiz kids include that? Defending life, protecting property and obtaining safety are inalienable rights of ALL PEOPLE. So where's that argument? No where.

Did they at least mention Art. III, Sec. 1? An argument could be made to support the halfway stated argument they did make that Ca has to obey the US Const. including the 2a.



But, did they? Uh, noooo. Just like they failed to do so in Peruta.

Honestly, some people just can't get enough failure in their lives.
Current CA case law explicitly denies a RTKBA in the CA Const.
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  #47  
Old 08-18-2016, 8:02 PM
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People here are arguing as if the quality of the arguments in this case will decide whether or not we prevail.

That's not a surprise. Lawyers always seem to believe that if they just make exactly the right argument, they'll win, and thus that a failure to win must be the result of not making the right argument.

While that would be true in front of the kind of judges that they think populate the courts (objective arbiters of law and fact), it's not true in front of the kind of judges that actually populate the courts. Or, at least, that actually populate the 9th Circuit and the bulk of the courts in California. No, those judges do not decide issues such as this on the basis of the quality of the arguments presented. They decide them on the basis of their political and personal preferences. The behavior of the 9th Circuit in Peruta and other cases speaks for itself on that.

This case represents a comprehensive challenge to the set of prohibitions, both in law and in action, against carrying a firearm that is "ready for offensive or defensive action" in the majority of public places where the majority of people find themselves. It is what Peruta should have been from the beginning.

But that won't save us from the 9th Circuit. If we somehow manage to draw a favorable panel again, the 9th Circuit will just take the case en banc and overturn, just like it did with Peruta. I believe this to be essentially guaranteed -- the behavior of the 9th Circuit in Peruta is simply too consistent and compelling to support any other conclusion. So in the end, whether initially or through en banc action, the 9th Circuit will decide this issue against us. There are a number of ways it can do that, e.g.:
  • Assert that Heller and McDonald limited their holdings to the home and that, thus, everything else is "dicta" and non-binding, and that therefore the Supreme Court has not set any precedent that the 2nd Amendment is operative outside the home at all (this is the "if the Supreme Court meant its holding to extend beyond home possession, it will need to say so more plainly" approach).
  • Use the "2A two-step" to decide that even the total prohibition of carry in public "satisfies" the right under "intermediate scrutiny" because "public safety".
  • Declare that what is under examination is mere "regulation" because it doesn't forbid carry in the home or on private property, and therefore doesn't entirely foreclose the right and therefore isn't a ban akin to that addressed by Heller and McDonald.
  • Pretend that the case is only about concealed carry, and reiterate Peruta while leaving the rest of the case unaddressed.
  • Claim that it is entirely permissible to completely ban open carry since concealed carry is "available" (which is code for "not completely and directly banned").

I'm sure there are a lot of additional creative ways the 9th Circuit can decide the case against us. Whatever the 9th Circuit does, it will be entirely contrary to logic. But that doesn't matter. The courts have shown themselves to be results-oriented, objective reasoning be damned.

The only way we're winning this is if Trump wins and nominates at least three staunchly pro-RKBA judges to the Supreme Court. We need at least that many to counteract Kennedy and Roberts.
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Last edited by kcbrown; 08-18-2016 at 8:04 PM..
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  #48  
Old 08-18-2016, 8:13 PM
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Lol, like the democrats in the senate won't filibuster another Scalia...
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  #49  
Old 08-18-2016, 9:14 PM
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Lol, like the democrats in the senate won't filibuster another Scalia...

No doubt. I'm only stating the necessary (at least, what appears to me to be logically necessary) preconditions for winning. I doubt those preconditions will be met, which is why I fully expect that carry is lost for good, and we'll see the rest of what little "right" remains erode until there is nothing left.



(Sent with Tapatalk, so apologies for the lackluster formatting)
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The real world laughs at optimism. And here's why.

Last edited by kcbrown; 08-18-2016 at 10:04 PM..
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  #50  
Old 08-18-2016, 9:17 PM
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Originally Posted by sbrady@Michel&Associates View Post
By the way, if you think we are making "big bucks" by doing these cases, you should know that we charge the NRA about half, sometimes less, my normal hourly rate. And, Chuck received an award from the NRA for donating $1 million in pro bono lawyer time, on top of the already low rate.
Keep up the great work Sean, most of us appreciate the work as well as your time and efforts.

-Cee
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  #51  
Old 08-18-2016, 9:20 PM
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Originally Posted by kcbrown View Post
People here are arguing as if the quality of the arguments in this case will decide whether or not we prevail.

That's not a surprise. Lawyers always seem to believe that if they just make exactly the right argument, they'll win, and thus that a failure to win must be the result of not making the right argument.

While that would be true in front of the kind of judges that they think populate the courts (objective arbiters of law and fact), it's not true in front of the kind of judges that actually populate the courts. Or, at least, that actually populate the 9th Circuit and the bulk of the courts in California. No, those judges do not decide issues such as this on the basis of the quality of the arguments presented. They decide them on the basis of their political and personal preferences. The behavior of the 9th Circuit in Peruta and other cases speaks for itself on that.

This case represents a comprehensive challenge to the set of prohibitions, both in law and in action, against carrying a firearm that is "ready for offensive or defensive action" in the majority of public places where the majority of people find themselves. It is what Peruta should have been from the beginning.

But that won't save us from the 9th Circuit. If we somehow manage to draw a favorable panel again, the 9th Circuit will just take the case en banc and overturn, just like it did with Peruta. I believe this to be essentially guaranteed -- the behavior of the 9th Circuit in Peruta is simply too consistent and compelling to support any other conclusion. So in the end, whether initially or through en banc action, the 9th Circuit will decide this issue against us. There are a number of ways it can do that, e.g.:
  • Assert that Heller and McDonald limited their holdings to the home and that, thus, everything else is "dicta" and non-binding, and that therefore the Supreme Court has not set any precedent that the 2nd Amendment is operative outside the home at all (this is the "if the Supreme Court meant its holding to extend beyond home possession, it will need to say so more plainly" approach).
  • Use the "2A two-step" to decide that even the total prohibition of carry in public "satisfies" the right under "intermediate scrutiny" because "public safety".
  • Declare that what is under examination is mere "regulation" because it doesn't forbid carry in the home or on private property, and therefore doesn't entirely foreclose the right and therefore isn't a ban akin to that addressed by Heller and McDonald.
  • Pretend that the case is only about concealed carry, and reiterate Peruta while leaving the rest of the case unaddressed.
  • Claim that it is entirely permissible to completely ban open carry since concealed carry is "available" (which is code for "not completely and directly banned").

I'm sure there are a lot of additional creative ways the 9th Circuit can decide the case against us. Whatever the 9th Circuit does, it will be entirely contrary to logic. But that doesn't matter. The courts have shown themselves to be results-oriented, objective reasoning be damned.

The only way we're winning this is if Trump wins and nominates at least three staunchly pro-RKBA judges to the Supreme Court. We need at least that many to counteract Kennedy and Roberts.
KC, you're wrong, because the majority of posters here are californians, and so have the same logic as judges.

That being, they don't want you to be right, because the implications would be devastating, so you're not right because it would make them feel uncomfortable.

Don't you get it KC?
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  #52  
Old 08-18-2016, 9:35 PM
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Originally Posted by kcbrown View Post
People here are arguing as if the quality of the arguments in this case will decide whether or not we prevail.

That's not a surprise. Lawyers always seem to believe that if they just make exactly the right argument, they'll win, and thus that a failure to win must be the result of not making the right argument.

While that would be true in front of the kind of judges that they think populate the courts (objective arbiters of law and fact), it's not true in front of the kind of judges that actually populate the courts. Or, at least, that actually populate the 9th Circuit and the bulk of the courts in California. No, those judges do not decide issues such as this on the basis of the quality of the arguments presented. They decide them on the basis of their political and personal preferences. The behavior of the 9th Circuit in Peruta and other cases speaks for itself on that.

This case represents a comprehensive challenge to the set of prohibitions, both in law and in action, against carrying a firearm that is "ready for offensive or defensive action" in the majority of public places where the majority of people find themselves. It is what Peruta should have been from the beginning.

But that won't save us from the 9th Circuit. If we somehow manage to draw a favorable panel again, the 9th Circuit will just take the case en banc and overturn, just like it did with Peruta. I believe this to be essentially guaranteed -- the behavior of the 9th Circuit in Peruta is simply too consistent and compelling to support any other conclusion. So in the end, whether initially or through en banc action, the 9th Circuit will decide this issue against us. There are a number of ways it can do that, e.g.:
  • Assert that Heller and McDonald limited their holdings to the home and that, thus, everything else is "dicta" and non-binding, and that therefore the Supreme Court has not set any precedent that the 2nd Amendment is operative outside the home at all (this is the "if the Supreme Court meant its holding to extend beyond home possession, it will need to say so more plainly" approach).
  • Use the "2A two-step" to decide that even the total prohibition of carry in public "satisfies" the right under "intermediate scrutiny" because "public safety".
  • Declare that what is under examination is mere "regulation" because it doesn't forbid carry in the home or on private property, and therefore doesn't entirely foreclose the right and therefore isn't a ban akin to that addressed by Heller and McDonald.
  • Pretend that the case is only about concealed carry, and reiterate Peruta while leaving the rest of the case unaddressed.
  • Claim that it is entirely permissible to completely ban open carry since concealed carry is "available" (which is code for "not completely and directly banned").

I'm sure there are a lot of additional creative ways the 9th Circuit can decide the case against us. Whatever the 9th Circuit does, it will be entirely contrary to logic. But that doesn't matter. The courts have shown themselves to be results-oriented, objective reasoning be damned.

The only way we're winning this is if Trump wins and nominates at least three staunchly pro-RKBA judges to the Supreme Court. We need at least that many to counteract Kennedy and Roberts.
In the vast majority of law that is true in my experience. I do some intellectual property litigation and trust me I have never dealt with a activist judge while interpreting the Landham act. Contract liigation you name it its just a whole different vibe than when dealing with public policy law.
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  #53  
Old 08-18-2016, 10:26 PM
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Default Flanagan v. Harris

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Originally Posted by wolfwood View Post
In the vast majority of law that is true in my experience. I do some intellectual property litigation and trust me I have never dealt with a activist judge while interpreting the Landham act. Contract liigation you name it its just a whole different vibe than when dealing with public policy law.

I don't doubt you on this at all. It's easy for judges to set aside personal preferences on issues that don't matter much to them, and I believe that's precisely why your experience is what it is.

These issues we're talking about matter a great deal to them, perhaps more than any other. Enough so that it takes people of immense integrity to deal with it objectively and logically.

Judges aren't selected for that. They're selected for their willingness to uphold the laws their nominators pass. That's because a politician would have to be a fool to select anyone other than such a person.

The behavior we've seen from judges in these cases is the logical consequence of the selection mechanism they went through, combined with the fact that these judges face no consequences of import for deciding these cases on the basis of their personal and political preferences. Why anyone would dispute such obvious and airtight logic is quite beyond me, but people here have disputed it anyway.


What we've seen thus far was utterly predictable and predicted. Nobody should be surprised that things have gone as they have. Now that we KNOW how this system works, we know what we should expect. Anyone who still thinks we are going to win in the courts in the absence of the preconditions I mentioned is living in fantasyland.

The real question is what we should do about it now, if only in terms of preparation. Our options are growing thin, and we'd better have a contingency to cover the case of us losing the Presidential election, as I expect we will.



(Sent with Tapatalk, so apologies for the lackluster formatting)
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  #54  
Old 08-18-2016, 11:22 PM
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Originally Posted by kcbrown View Post
  • Claim that it is entirely permissible to completely ban open carry since concealed carry is "available" (which is code for "not completely and directly banned").
My vote is on this one. The Court will just issue mirror image of Peruta, ignore the context of CCW restrictions, and say that since there is no explicit right to open carry, the State may ban it.

By stubbornly refusing to consider Peruta's challenge to CCW laws IN THE CONTEXT of the open carry ban, the Court has created an ingenious method by which the State can eliminate any pesky right they wish, simply do it in parts. For example, of course a State ban on all voting would be struck down, but all the State has to do is pass companion laws. One bans voting with your right hand and that will be upheld by the Court on the grounds that while you have the right to vote, nothing guarantees your right to vote with your right hand. Of course the law banning voting with your left hand will be upheld because there is no explicit right to that either.

Insert the cherished right of your choice in the above example.
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Last edited by MajorCaliber; 08-19-2016 at 9:16 AM.. Reason: added clarity
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Old 08-19-2016, 7:12 AM
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For example, of course a State ban on all voting would be struck down, but all the State has to do is pass companion laws. One bans voting with your right hand and that will be upheld by the Court on the grounds that while you have the right to vote, nothing guarantees your right to vote with your right hand. Of course the law banning voting with your left hand will be upheld because there is no explicit right to that either.
Excelent Major, that's seems quite an apt description of the problem.
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  #56  
Old 08-19-2016, 7:22 AM
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As the 2nd Amendment states, "The right of the people to keep and bear arms shall not be infringed"

Well its already being infringed. This state already prevents you from keeping certain firearms. The Democrats do not care about the 2nd Amendment rights.

It's a lost cause in this state, especially when they already infringe. CA is just a different animal and always will be.
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Old 08-19-2016, 7:57 AM
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Old 08-19-2016, 9:18 AM
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Originally Posted by sfpcservice View Post
Thanks for filing this. It's a pretty "in your face, now answer the question" lawsuit... A win here will force our opponents to ram through a shall issue bill just so the warm and fuzzy crowd stops calling their offices every 10 minutes saying "do something about that guy with a holstered gun". Funny, their solution will be to hide the "problem".
The court already ruled you have no right to carry concealed. So in my view they already foreclosed the option of offering concealed carry as a method to satisfy a 2A right to bear.

So if they ruled that OC IS the only protected method of carry....they could pass all the Shall-Issue stuff they want, but they COULD not ban OC, or demand you carry concealed......because concealed does not satisfy your 2A rights by their own words. They could offer SI as an option for those who want it......but they could not limit you to that.
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  #59  
Old 08-19-2016, 11:15 AM
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Originally Posted by kcbrown View Post
People here are arguing as if the quality of the arguments in this case will decide whether or not we prevail.

That's not a surprise. Lawyers always seem to believe that if they just make exactly the right argument, they'll win, and thus that a failure to win must be the result of not making the right argument.

While that would be true in front of the kind of judges that they think populate the courts (objective arbiters of law and fact), it's not true in front of the kind of judges that actually populate the courts. Or, at least, that actually populate the 9th Circuit and the bulk of the courts in California. No, those judges do not decide issues such as this on the basis of the quality of the arguments presented. They decide them on the basis of their political and personal preferences. The behavior of the 9th Circuit in Peruta and other cases speaks for itself on that.
As a lawyer, I hate that you're ABSOLUTELY right on point here. Throughout our childhood we are all taught how "independent" the judiciary branch is, and how it's a check on the other branches of government, yada, yada, yada.

It may have started out that way, but it's clear that in today's world it is a mere fairy tale.

Not sure how we can change any of it at this point.

-Cee
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Old 08-19-2016, 11:38 AM
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$50 sent. Good luck!
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Old 08-19-2016, 3:53 PM
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Default Interview with Chuck Michel

Here is an interview with Chuck Michel on the case. Just short of 16 minutes.

https://www.nranews.com/series/cam-a...12-episode-158
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Old 08-19-2016, 5:02 PM
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People seem to be forgetting one important flaw that plagued the peruta case ....especially with the 11 panel en banc trial..When peruta first started in DISTRICT court...unloaded open carry was available. During the time between district and appeals...it was banned..the 11 panel en banc judges questioned that several times as well as the defendants during the trial....now we have a new trial dealing with l.a. county WITH open carry being banned at district level..exactly like illinois with a.g. lisa madigan...so this time the lawyers are attacking at district level...the judges or the defendants cant hide behind open carry anymore...yes I`m upset that all this time has passed by...but...we have to face the fact the elephant in the room was open carry...which is now gone!!!!

ALSO...

theres a lot of bickering between..KC brown..rplaw..Fabio. ...but...no one's bringing up this fact..of open carry at district level..at the beginning of peruta..which is now gone!!

This new case is a clean slate...at the start!!

I'm not a lawyer...but ...even I know that...so to rplaw...Fabio...KC brown..stop puffing your chest...and stick to the facts...it's getting old!!...come up with some solutions...okay!!

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Old 08-19-2016, 10:59 PM
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Can someone please remind me to check the status of this case in 7 years
well, somebody gets it

that's how its been going for you guys in California

seems like no matter how strong an argument you have, how many years are you willing to wait for a decision

meanwhile, the gray hair keeps coming
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Old 08-20-2016, 9:27 AM
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Well, perhaps us amateurs read the Kasler case, which makes your argument dead on arrival:

"If plaintiffs are implying that a right to bear arms is one of the rights recognized in the California Constitution's declaration of rights, they are simply wrong. No mention is made in it of a right to bear arms. (See In re Rameriz (1924) 193 Cal. 633, 651, 226 P. 914 [“The constitution of this state contains no provision on the subject”].) Moreover, “[i]t is long since settled in this state that regulation of firearms is a proper police function.” (Galvan v. Superior Court (1969) 70 Cal.2d 851, 866, 76 Cal.Rptr. 642, 452 P.2d 930.) We reject any suggestion that the regulations at issue here impermissibly infringe upon the right to defend life or protect property guaranteed by the California Constitution."

If you think this is a rehash of Peruta, then it appears you are the one who needs to read the Peruta opinion. What possible reason could there be to challenge every single restriction on carry, open or concealed, following a case where the court dodged the question of the right to bear arms by saying it was a concealed carry challenge? And, is the Ninth Circuit the final arbiter of the scope of the 2A?

And, if you think Nichols sufficiently corners the court, and us amateurs are making a mistake by challenging all potential outs, I am curious to hear your reasoning.

By the way, if you think we are making "big bucks" by doing these cases, you should know that we charge the NRA about half, sometimes less, my normal hourly rate. And, Chuck received an award from the NRA for donating $1 million in pro bono lawyer time, on top of the already low rate.
First, your analysis of my comments misses the mark. I did NOT say that the State Const. includes a Right to bear arms.

What I SAID was that it includes a Right to DEFEND ONESELF, PROPERTY and SAFETY! I extended that argument to one where that the St. Const. includes a provision that the US Const. is the law of the land. Therefore there should be a RTKBA in order to defend oneself / property and be safe.

How are you to do that if the State "over-regulates" the tools available to the average citizen to the point they have no ability to exercise those Rights? Is that an impermissible ban through over-regulation with police powers abrogating a Right? Does unfettered 'discretion' where no one is allowed to exercise ANY of those Rights violate the St. Const.? Is there an argument about violations of our general civil rights rather than any specific Right such as the RTKBA that could win for us? (Such as: Can unfettered discretion be used to unilaterally deny Rts contained in the Const. - does any Public servant have the discretion to deny enumerated Civil Rts in the course of their duties - is there a Constitutional limit on the exercise of official discretion in the due process clause?) Did you make any of those arguments? Oops.

Further, ALL of the cases you cite are pre-McDonald. Even Kasler. Hmm, I wonder if McDonald changes the landscape as to whether the State Const. now includes a 2A Right? Maybe, maybe not, but you DIDN'T MAKE THAT ARGUMENT! Did you? Oops again.

As for the Peruta rehash, yes, this case is a rehash. The 9th may have dodged the remaining question of OC, but your new claim isn't about OC. It's about the SAME issues presented in Peruta. Exactly the same. Do you really think the same court which ignored your previous argument in Peruta is going to listen to it now? After just denying the super en banc request on those issues? Insanity. Oops #3.

So, taking your argument that the State must allow either OC or CC out of the discussion, what you're left with is OC. As I posted earlier; Baker, Nichols, and the Fla case are ahead of you. Where exactly do you find a win in this? Oops #4.

As for amateurs, there are LOTS of non-lawyers who dissected Peruta and came to the same conclusion the 9th did. Yet here we go again.

From there: I NEVER even intimated that you are doing this for big bux. The fact that you brought it up makes it seem, to me at least, that YOU are the ones pushing that line of thinking. (I'd make this another oops, but I've lost count of all the fail here.)

I'm not omnipotent. Nor do I have all the answers. I sometimes miss things that experts know. But, what I do know is that if you bring a similar claim immediately after losing the prior claim on the same issues, you risk being sanctioned. You don't get a do-over just because you don't like the prior outcome. It's a waste of judicial time and resources.

Good luck with the 12b(6) motion that's in your future. I'm crossing my fingers it isn't followed by that OSC re Sanctions I mentioned earlier. Another thing I didn't mention earlier (because I didn't think of it), is the Vextatious Litigant possibility. It's unlikely but, depending on the State's motions and argument, pushing this too hard could have you defending against that too.

The only corner I can see is the one where you're on the ropes hoping for the bell that ends the round. Time for a different strategy.
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Old 08-20-2016, 10:33 AM
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I am sucker for shelf abuse, volunteered free of charge to act as a Conservator for a elderly family member. Its the Superior Court of the State of California not a federal court, but from my experience, the whole system is just a bumbling bureucratic mess. Talk about idiots with bar cards. It is really embarrassing how broken the system has become. These people are not political just incompetent.



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Originally Posted by kcbrown View Post
People here are arguing as if the quality of the arguments in this case will decide whether or not we prevail.

That's not a surprise. Lawyers always seem to believe that if they just make exactly the right argument, they'll win, and thus that a failure to win must be the result of not making the right argument.

While that would be true in front of the kind of judges that they think populate the courts (objective arbiters of law and fact), it's not true in front of the kind of judges that actually populate the courts. Or, at least, that actually populate the 9th Circuit and the bulk of the courts in California. No, those judges do not decide issues such as this on the basis of the quality of the arguments presented. They decide them on the basis of their political and personal preferences. The behavior of the 9th Circuit in Peruta and other cases speaks for itself on that.

This case represents a comprehensive challenge to the set of prohibitions, both in law and in action, against carrying a firearm that is "ready for offensive or defensive action" in the majority of public places where the majority of people find themselves. It is what Peruta should have been from the beginning.

But that won't save us from the 9th Circuit. If we somehow manage to draw a favorable panel again, the 9th Circuit will just take the case en banc and overturn, just like it did with Peruta. I believe this to be essentially guaranteed -- the behavior of the 9th Circuit in Peruta is simply too consistent and compelling to support any other conclusion. So in the end, whether initially or through en banc action, the 9th Circuit will decide this issue against us. There are a number of ways it can do that, e.g.:
  • Assert that Heller and McDonald limited their holdings to the home and that, thus, everything else is "dicta" and non-binding, and that therefore the Supreme Court has not set any precedent that the 2nd Amendment is operative outside the home at all (this is the "if the Supreme Court meant its holding to extend beyond home possession, it will need to say so more plainly" approach).
  • Use the "2A two-step" to decide that even the total prohibition of carry in public "satisfies" the right under "intermediate scrutiny" because "public safety".
  • Declare that what is under examination is mere "regulation" because it doesn't forbid carry in the home or on private property, and therefore doesn't entirely foreclose the right and therefore isn't a ban akin to that addressed by Heller and McDonald.
  • Pretend that the case is only about concealed carry, and reiterate Peruta while leaving the rest of the case unaddressed.
  • Claim that it is entirely permissible to completely ban open carry since concealed carry is "available" (which is code for "not completely and directly banned").

I'm sure there are a lot of additional creative ways the 9th Circuit can decide the case against us. Whatever the 9th Circuit does, it will be entirely contrary to logic. But that doesn't matter. The courts have shown themselves to be results-oriented, objective reasoning be damned.

The only way we're winning this is if Trump wins and nominates at least three staunchly pro-RKBA judges to the Supreme Court. We need at least that many to counteract Kennedy and Roberts.
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Old 08-20-2016, 12:36 PM
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First, your analysis of my comments misses the mark. I did NOT say that the State Const. includes a Right to bear arms.

What I SAID was that it includes a Right to DEFEND ONESELF, PROPERTY and SAFETY! I extended that argument to one where that the St. Const. includes a provision that the US Const. is the law of the land. Therefore there should be a RTKBA in order to defend oneself / property and be safe.

How are you to do that if the State "over-regulates" the tools available to the average citizen to the point they have no ability to exercise those Rights? Is that an impermissible ban through over-regulation with police powers abrogating a Right? Does unfettered 'discretion' where no one is allowed to exercise ANY of those Rights violate the St. Const.?
(emphasis mine)

If it doesn't violate the federal Constitution, which is exactly what the 9th Circuit ruled in the context where the Supreme Court explictly said that self-defense is the "central component" of the right protected by the 2nd Amendment, then how can it possibly violate the state constitution?

Quote:
As for the Peruta rehash, yes, this case is a rehash. The 9th may have dodged the remaining question of OC, but your new claim isn't about OC.
It isn't? Really? What can this possibly be, if not that:

Quote:
Originally Posted by Flanagan v Harris complaint
72. California statutes prohibiting law-abiding citizens, including Plaintiffs, from publicly carrying an exposed firearm for self-defense violate the Second Amendment.
In fact, the primary prayer for relief is an injunction against the open carry ban. The alternative relief is that which was requested in Peruta.

Looks to me like the primary argument here is about open carry, but the concealed carry argument is present in order to complete the coverage of the case.

It won't work, of course, but not because of anything the plaintiffs are doing wrong. It won't work because the 9th Circuit is plainly dead-set against the right to self-defense.
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Old 08-20-2016, 12:43 PM
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I am sucker for shelf abuse, volunteered free of charge to act as a Conservator for a elderly family member. Its the Superior Court of the State of California not a federal court, but from my experience, the whole system is just a bumbling bureucratic mess. Talk about idiots with bar cards. It is really embarrassing how broken the system has become. These people are not political just incompetent.
There is incompetence, to be sure, but that is not the primary driver of the decisions we've been handed.

These people are political. How can they not be (in general -- most everything has exceptions), when their political stance is the very reason they were nominated in the first place?

It is a mistake, and a big one, to presume incompetence when it is malice which is present. The actions of the judges in the courts that have heard our cases have been far too consistent for those actions to be primarily the result of incompetence.
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Old 08-20-2016, 3:41 PM
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That was good advice wasn't it? Lol.

2 strikes for rplaw!! Any other brilliant critiques?
does 3 strikes your out count?
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Old 08-20-2016, 10:39 PM
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Great, wonderful, it's Peruta II.

As a draft it's fine but they forgot something before they finalized it and filed the complaint. And, it's a BIG something. This is California. The State where Federal law and the US Constitution mean NOTHING!

However, the California Constitution still means something. So the complaint should have referenced the Ca Const. Art I Sec. 1. To wit:

Emphasis added.

An argument could be made that, under the Ca Const., self defense is sufficient good cause to carry a firearm in public. But, did the wiz kids include that? Defending life, protecting property and obtaining safety are inalienable rights of ALL PEOPLE. So where's that argument? No where.

Did they at least mention Art. III, Sec. 1? An argument could be made to support the halfway stated argument they did make that Ca has to obey the US Const. including the 2a.



But, did they? Uh, noooo. Just like they failed to do so in Peruta.

Honestly, some people just can't get enough failure in their lives.
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Ok, I get it. You're on board with this to the point you take criticism of it personally. You're entitled to do that. No problems. We're good.

The issue I have with it, is that it's amateur hour all over again. These people get paid big bucks to do this, yet they can't seem to make a simple and cogent argument which encompasses the ACTUAL issue.

One has to wonder why? Clearly the argument I illustrated above can be included into this complaint without cluttering the field. Nor is this obscure law. Nor is is a stretching of established precedent. It clearly applies to the facts and is an inalienable Right under the California Const. So where is it in the complaint?

As for support, I'll support the effort. But I won't waste my time trying to spin it into something is clearly isn't. What it isn't, is a winner. It's a rehash of Peruta that will get dismissed based on the precedent in Peruta and we will lose (again) at the appellate level.

Did the attorneys who drafted this not read Peruta? There is no Constitutional Right to carry a concealed weapon in public. Period. End of game. You lose. Why in the world would someone file a complaint seeking an injunction against prohibiting either concealed carry or open carry under the US Constitution KNOWING that CC is not a Right?

Did they not learn about the 1/2-step process where the courts will NOT address the OC case if it's a companion to a case with a CC issue within it?

As for filing only for an injunction against OC, one word; Nichols. Already there, already doing that. Then there's Baker in Hawaii regarding their OC ban. And, Norman is on track to SCOTUS for OC in Fla and likely to get there soon. So what's the point of this case again?

Were I on the bench and this case was assigned to me, I'd seriously be thinking about an OSC re: sanctions for filing a frivolous complaint. I probably wouldn't do it, but I'd be thinking about it. You can bet the State will be thinking along those lines too.
I have an idea. Instead of *****ing about the cases that actual lawyers bring to the courts and calling them all stupid, why don't you become a lawyer yourself and bring your own cases in front of the courts?
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Old 08-20-2016, 11:09 PM
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I have an idea. Instead of *****ing about the cases that actual lawyers bring to the courts and calling them all stupid, why don't you become a lawyer yourself and bring your own cases in front of the courts?
AMEN!!!!...the crap Is getting old!!

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Old 08-21-2016, 11:12 AM
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My feelings on this right now:

The Peruta logic was snarky. "We're not challenging the law, we're just challenging Sheriff Gore's policy!" So they got a snarky response: "Hey you didn't ask about open carry so nyah nyah nyah!"

This new case is not snarky at all. "We're challenging the state's de facto prohibition on carrying a functional firearm. What's up, Kamala?"

I hope for a similarly direct response from the legal system. It should be either, "yes you have a right. California, you have 180 days to create a regulatory scheme that you want to live with" or "no, the 2A doesn't mean what it says, you have no right. But you can get gay-married if you want to, and feel free to use the girls restroom any time."

Either way, it's better to address this issue head-on.

I fundamentally agree with KC, as I have for a long time. This is a political question and the courts will answer politically, regardless of logic or law, unfortunately. It's also a racial question, of which racial groups will have power on the street. Legal carry gives that power to whites, while a ban on legal carry transfers that power to minority gangs. This is the fundamental issue of gun control actually. You'll notice that the Democrats strangely oppose gun control approaches which take guns away from minority gang members (and which are very effective at saving lives), such as stop-query-frisk and Federal prosecution of straw buyers. The Democrats only want laws that impact white gun owners, such as mumbo-jumbo technical restrictions on AR15s and concealed carry.

Trump '16 is, in my opinion, the only hope we have of ever getting any form of carry in California.

Note that many countries around the world, including Mexico and North Korea, have a RKBA in their constitutions, but their courts do not have the will or the power to enforce it, so it's a dead letter. As we get an increasingly Mexican electorate, we will also get an increasingly Mexican style interpretation of our constitution, which is exactly what Hillary is hoping for.
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Old 08-21-2016, 4:18 PM
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Today's L.A. Times: http://www.latimes.com/local/lanow/l...nap-story.html

I'm assuming this is the same lawsuit?
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Old 08-21-2016, 4:50 PM
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Today's L.A. Times: http://www.latimes.com/local/lanow/l...nap-story.html

I'm assuming this is the same lawsuit?
Yes
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Old 08-22-2016, 8:24 AM
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"The lawsuit contends that the ban on openly carrying a gun in public must be struck down now that a federal appeals court has upheld a policy that denies concealed firearm permits to most people in urban counties. The suit was filed by four Los Angeles County residents and the California Pistol and Rifle Assn."

Who is the CPRA?

Journalism today?
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Old 08-22-2016, 8:24 AM
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Today's L.A. Times: http://www.latimes.com/local/lanow/l...nap-story.html

I'm assuming this is the same lawsuit?
What kind of "journalist" writes a complete article about a court case without identifying the court case? Oh I know, an LA Times journalist.
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Old 08-22-2016, 10:49 AM
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Good lord, does Charles Nichols have nothing better to do than run around talking crap on any gun lawsuit that is not his? He is all over the comments sections on the LA Times and SF tribune. The level of narcissism is astounding, not to mention how bitter and whiney he is.
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Old 08-22-2016, 11:04 AM
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Quote:
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These people get paid big bucks to do this, yet they can't seem to make a simple and cogent argument which encompasses the ACTUAL issue.
Quote:
Originally Posted by rplaw View Post
From there: I NEVER even intimated that you are doing this for big bux. The fact that you brought it up makes it seem, to me at least, that YOU are the ones pushing that line of thinking. (I'd make this another oops, but I've lost count of all the fail here.)
I was just setting the record straight because you suggested we were getting "big bucks" for this, that's all.

As for your legal analysis, we are making a broader challenge than the other cases you mentioned and preserving all arguments for a higher court. If that doesn't make sense to you, ask an attorney you trust to weigh in.
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Old 08-22-2016, 11:09 AM
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I was just setting the record straight because you suggested we were getting "big bucks" for this, that's all.

As for your legal analysis, we are making a broader challenge than the other cases you mentioned and preserving all arguments for a higher court. If that doesn't make sense to you, ask an attorney you trust to weigh in.
Thank you...some real answers..from a real attorney...keep up the good work!!
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Old 08-22-2016, 2:07 PM
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Let's also be clear.

Flanagan is behind Nichols and baker. The smart assumption is that if Flanagan has a use, it's going after a different angle than already filed lawsuits.

I do wish that someone else would file a pure OC case because all the hopes of a pure OC case lies with Nichols, and frankly, I like the idea of redundancies with a pro-se lawsuit being the only outlet for pure OC arguments.
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Old 08-22-2016, 3:37 PM
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Is this for Open loaded Carry?
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