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California 2nd Amend. Political Discussion & Activism Discuss gun rights activism and 2A related political topics here. All advice given is NOT legal counsel.

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  #1  
Old 10-04-2010, 10:29 PM
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Default Brady Center has taken an interest in the Peruta v. County of S.D. case

Today the battered Brady Center to Prevent gun violence filed an Amicus Curiae Brief in the Peruta v. County of San Diego case. They continue to misrepresent Heller and argue that we don't have the right to carry for self defense.

You can read the Brady brief here. I found most of it pretty repulsive. Also of note was that Gore filed his motion for Summary Judgment along with many documents in support of his motion. I found a 32 page decleration from gun grabber named Franklin Zimring professor of law at Berkley Law School who states that concealed handguns are dangerous and should be restricted.

Oral arguments are in 4 weeks in downtown San Diego. I can't wait.
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  #2  
Old 10-04-2010, 10:37 PM
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Good ol' Zimring, right on time. Saul Cornell? Paging Saul Cornell. Your Cheshire cat interpretation of Heller and McDonald is needed in San Diego.

I'll have to read the filings tonight; if their brief's argument is as poorly contrived as their recent Nordyke brief it should make for a series of amusing moments.

Brady Campaign lawyering - hey, everybody needs a good laugh every once in a while.
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Old 10-04-2010, 11:13 PM
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No need to read the briefs, I'll summarize for you ... "guns are bad,OK?!"
That really seems to be their complete legal strategy.
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Old 10-04-2010, 11:34 PM
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Near as I can tell, the Berkeley prof starts off by accepting that we have a "robust right" to a gun in the house. Ha! Bet he never would have written that in his worst nightmares before Heller.

Then he tells us how effective guns are, and that only criminals should carry them on the streets.

All in all, the same weak thinking of the gun-grabbers before Heller.

ps - I remember seeing the prof speak at a recent anti-UOC debate. He put on quite a charade as a moderate, reasoned thinking individual, but here we see his hatred of an armed law abiding citizen in full force.
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Old 10-05-2010, 12:21 AM
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Their Amicus Brief reads like a Dickensian novel. The prose is truly literative,,, it paints a beautiful portrait. However it is a legal document and should be as logically precise and as concise as possible.

Brady Fail
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  #6  
Old 10-05-2010, 12:32 AM
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So, did they have authorization to file an amicus brief? If they do, is there any way CGF could file one too?
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Old 10-05-2010, 12:35 AM
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Mr. Zimmering has received correspondence. I'm getting close to having more serious conversations with certain attorneys about the long term costs of working to undermine the bill of rights...

As to a GCF amicus... CGF spent capital to create the briefs in the first place....

-Gene
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  #8  
Old 10-05-2010, 12:53 AM
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Originally Posted by hoffmang View Post
Mr. Zimmering has received correspondence. I'm getting close to having more serious conversations with certain attorneys about the long term costs of working to undermine the bill of rights...

As to a GCF amicus... CGF spent capital to create the briefs in the first place....

-Gene
Good point.
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Old 10-05-2010, 1:07 AM
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I will need the date/time/street address for the hearing. I plan on attending. I want to see the judge shred the Brady brief.
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Old 10-05-2010, 1:08 AM
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Originally Posted by Gray Peterson View Post
So, did they have authorization to file an amicus brief?
Why wouldn't they be? Having the Brady Campaign as your amicus curiae is like basting yourself in raw sewage. You might as well scream "I AM A FESTERING STANK POT, RULE AGAINST ME, PLEASE!"
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Old 10-05-2010, 1:26 AM
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There's a lot of things wrong with San Diego's reply brief (not written by the Bradies).
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Old 10-05-2010, 1:49 AM
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Originally Posted by hoffmang View Post
Mr. Zimmering has received correspondence. I'm getting close to having more serious conversations with certain attorneys about the long term costs of working to undermine the bill of rights...

As to a GCF amicus... CGF spent capital to create the briefs in the first place....

-Gene
Finally somebody's doing it
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Old 10-05-2010, 4:03 AM
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These antis can't seem to differentiate between law abiding citizens carrying and the common criminal. Its as if carrying a weapon in public will somehow turn a law abiding citizen into a bank robber or street thug. "Blood in the streets" argument again.
I notice that the briefs for the anti position NEVER mention the 40+ other states that allow public carry of firearms. They try to make it seem as if CA's discretionary CCW law is the norm in the US, as opposed to the exception.
The Brady brief also tries its best to knock down CCW, but in the same breath the cases cited uphold open carry. They spin the fact that several cases cited said a ban on public carry of pocket pistols was permissible, however, a ban on carry of army/navy repeaters was NOT permissible.
These briefs should be easy to be taken apart.
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Old 10-05-2010, 7:08 AM
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Originally Posted by press1280 View Post
These antis can't seem to differentiate between law abiding citizens carrying and the common criminal. Its as if carrying a weapon in public will somehow turn a law abiding citizen into a bank robber or street thug. "Blood in the streets" argument again. ...
There is a lot of odd psychology going on with anti-gunners.

The inability to draw reasonable distinctions seems to come from their fantasy that "all people are the same, and essentially good", and that criminal behavior is always and only the result of insufficient "social justice" or some other fuzzy, ill-defined concept.

The idea that every gun-owner is really just one bad haircut away from going postal stems - IMHO - from their own (perhaps even subconscious) realization that they themselves are regularly irrational. Since - in their view - everyone is "the same", they find it impossible to conceive that anyone else is capable of self-disciplined behavior regarding "dangerous things."
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Old 10-05-2010, 7:22 AM
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Originally Posted by gunsmith View Post
No need to read the briefs, I'll summarize for you ... "guns are bad,OK?!"
That really seems to be their complete legal strategy.
As a person who respects the wisdom of Sun Tzu with regard to knowing your enemy, I read it start to finish and I didn't get that impression. I think it is a well reasoned brief. I don't happen to agree with its conclusions, but that doesn't mean it should be dismissed so easily. Their legal strategy is clear: to convince courts to use the lowest possible level of scrutiny (a "reasonable regulation" test as they call it) when assessing the constitutionality of gun laws. That is probably the best strategy that they have, and it isn't necessarily a loser.

Our side seems to assume that the federal courts will decide that strict scrutiny is the appropriate standard for all 2A claims because SCOTUS once used the word "fundamental" while discussing 2A, and strict scrutiny is the standard used for the fundamental 1A right of free speech. However, context matters. The 2A right they were speaking of is the limited one that has already been confirmed: RKBA for the purpose of self-defense inside the home. It is a large jump to assume that the same level of scrutiny is appropriate for the carrying of guns outside the home in public. The Brady's point out that "words can never hurt me" but guns can. That is true whether we like it or not.

Peruta and Sykes should be slam-dunk wins because of the equal protection claims. The courts need not conclude that we have a fundamental RKBA outside the home, and need not decide that gun laws must pass strict scrutiny outside the home. If I were a betting man, I'd bet that the federal courts (including SCOTUS) will go with a standard lower than strict scrutiny for the outside-the-home-in-public cases. They will do that based on arguments similar to the ones that the Brady Bunch are making in this brief. Our overall RKBA isn't as solid as we may wish to believe, and the war will be won or lost on the basis of scrutiny.
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Old 10-05-2010, 7:34 AM
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Originally Posted by Gray Peterson View Post
There's a lot of things wrong with San Diego's reply brief (not written by the Bradies).

Is that available for reading ?
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Old 10-05-2010, 8:05 AM
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Originally Posted by GrizzlyGuy View Post
As a person who respects the wisdom of Sun Tzu with regard to knowing your enemy, I read it start to finish and I didn't get that impression. I think it is a well reasoned brief. I don't happen to agree with its conclusions, but that doesn't mean it should be dismissed so easily. Their legal strategy is clear: to convince courts to use the lowest possible level of scrutiny (a "reasonable regulation" test as they call it) when assessing the constitutionality of gun laws. That is probably the best strategy that they have, and it isn't necessarily a loser.

Our side seems to assume that the federal courts will decide that strict scrutiny is the appropriate standard for all 2A claims because SCOTUS once used the word "fundamental" while discussing 2A, and strict scrutiny is the standard used for the fundamental 1A right of free speech. However, context matters. The 2A right they were speaking of is the limited one that has already been confirmed: RKBA for the purpose of self-defense inside the home. It is a large jump to assume that the same level of scrutiny is appropriate for the carrying of guns outside the home in public. The Brady's point out that "words can never hurt me" but guns can. That is true whether we like it or not.

Peruta and Sykes should be slam-dunk wins because of the equal protection claims. The courts need not conclude that we have a fundamental RKBA outside the home, and need not decide that gun laws must pass strict scrutiny outside the home. If I were a betting man, I'd bet that the federal courts (including SCOTUS) will go with a standard lower than strict scrutiny for the outside-the-home-in-public cases. They will do that based on arguments similar to the ones that the Brady Bunch are making in this brief. Our overall RKBA isn't as solid as we may wish to believe, and the war will be won or lost on the basis of scrutiny.
I appreciate your thoughts. I haven't read the brief and cannot speak to its merits or to your analysis of it (and as a decidedly non-lawyerly type I'm not all that qualified anyway).

My take on the claims of strict scrutiny, however, is a bit different. I don't think that the CGF board, SAF, CRPA, the NRA, etc. consider strict scrutiny to be a sure lock. I believe that they think (as do I) that strict scrutiny is the standard that should be applied and they'd be idiots to suggest in their court filings that anything less might be constitutionally acceptable.

I'm pretty sure that the lack of a lock on strict scrutiny is why they are being very careful about the venues in which obvious scrutiny cases are being raised.
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Old 10-05-2010, 8:10 AM
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Is that available for reading ?
Here's the Wiki page for the case: http://wiki.calgunsfoundation.org/in...y_of_San_Diego

I think it's in there.
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Old 10-05-2010, 8:26 AM
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I appreciate your thoughts. I haven't read the brief and cannot speak to its merits or to your analysis of it (and as a decidedly non-lawyerly type I'm not all that qualified anyway).

My take on the claims of strict scrutiny, however, is a bit different. I don't think that the CGF board, SAF, CRPA, the NRA, etc. consider strict scrutiny to be a sure lock. I believe that they think (as do I) that strict scrutiny is the standard that should be applied and they'd be idiots to suggest in their court filings that anything less might be constitutionally acceptable.

I'm pretty sure that the lack of a lock on strict scrutiny is why they are being very careful about the venues in which obvious scrutiny cases are being raised.
That's right, the people 'in the know' don't consider strict scrutiny a lock, nor should they. The_quark makes that clear in his post here (see especially the last section he titled "What's This Whole "Scrutiny" Thing?"). The Brady's are logically choosing a strategy in opposition to CGF's:

Quote:
We don't yet know what standard of scrutiny the courts will hold gun laws up to. We do know from Heller it won't be "rational basis", so it's either "intermediate" or "strict". Obviously, we want strict, but we're optimistic most of the most onerous gun laws wouldn't stand up to "intermediate", either. One of our big strategic focuses right now is getting a case that is likely to get us "strict" scrutiny, as soon as possible. If we get that, we'll be able to challenge a lot more, more quickly. There is some reason to be optimistic that it will be "strict", based on the McDonald opinion's constant referral to the right as "fundamental".
That's where the war will be won or lost. If strict scrutiny is decided to be appropriate for all gun law cases, the dominos will quickly fall through a series of rather "easy" cases that successfully challenge and eliminate law after law. On the other hand, if intermediate scrutiny or the Bradys' "reasonable regulation" test is adopted, the future will be ugly and never ending trench warfare where battles will be won and lost with high casualties on both sides.
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Old 10-05-2010, 8:55 AM
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Quote:
The idea that every gun-owner is really just one bad haircut away from going postal stems - IMHO - from their own (perhaps even subconscious) realization that they themselves are regularly irrational. Since - in their view - everyone is "the same", they find it impossible to conceive that anyone else is capable of self-disciplined behavior regarding "dangerous things."
That's right. If they don't have firearms because they are afraid of what they might do, then they trust others with them even less. And their fear is so great, they are unable to even consider balancing the lethal force of criminals by arming law abiding people. It just seems like chaos to them.
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Old 10-05-2010, 9:04 AM
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Quote:
Originally Posted by ZombieTactics View Post
The idea that every gun-owner is really just one bad haircut away from going postal stems - IMHO - from their own (perhaps even subconscious) realization that they themselves are regularly irrational. Since - in their view - everyone is "the same", they find it impossible to conceive that anyone else is capable of self-disciplined behavior regarding "dangerous things."
I had that conversation with an anti yesterday. He freely admitted that if he was carrying, he'd be more likely to shoot or be more dangerous. I said "Really? You're that guy that would give up his career, family, freedom, or life for a parking spot?"

No response...
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Old 10-05-2010, 9:15 AM
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Originally Posted by GrizzlyGuy View Post
As a person who respects the wisdom of Sun Tzu with regard to knowing your enemy
One day, this should apply to these bunch of people "...poses no more threat to me than does its smartest termite."
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Old 10-05-2010, 9:16 AM
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Originally Posted by ZombieTactics View Post
The idea that every gun-owner is really just one bad haircut away from going postal stems - IMHO - from their own (perhaps even subconscious) realization that they themselves are regularly irrational. Since - in their view - everyone is "the same", they find it impossible to conceive that anyone else is capable of self-disciplined behavior regarding "dangerous things."
Ah yes, the persuasive argument made by Sarah Thompson, M.D.: Raging Against Self Defense: A Psychiatrist Examines The Anti-Gun Mentality

Go Sarah go!
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Old 10-05-2010, 10:38 AM
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People who have never carried don't have any clue about the quieting influence of having deadly force available on the law-abiding citizen. Perhaps the criminal goes off or the mentally defective, but otherwise ordinary folks do not do so.

If the anti-gunners tried it they might find out which part of the population they belong to, that is the really scary part.

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Old 10-05-2010, 10:44 AM
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Originally Posted by GrizzlyGuy View Post
As a person who respects the wisdom of Sun Tzu with regard to knowing your enemy, I read it start to finish and I didn't get that impression. I think it is a well reasoned brief. I don't happen to agree with its conclusions, but that doesn't mean it should be dismissed so easily. Their legal strategy is clear: to convince courts to use the lowest possible level of scrutiny (a "reasonable regulation" test as they call it) when assessing the constitutionality of gun laws. That is probably the best strategy that they have, and it isn't necessarily a loser.

Our side seems to assume that the federal courts will decide that strict scrutiny is the appropriate standard for all 2A claims because SCOTUS once used the word "fundamental" while discussing 2A, and strict scrutiny is the standard used for the fundamental 1A right of free speech. However, context matters. The 2A right they were speaking of is the limited one that has already been confirmed: RKBA for the purpose of self-defense inside the home. It is a large jump to assume that the same level of scrutiny is appropriate for the carrying of guns outside the home in public. The Brady's point out that "words can never hurt me" but guns can. That is true whether we like it or not.

Peruta and Sykes should be slam-dunk wins because of the equal protection claims. The courts need not conclude that we have a fundamental RKBA outside the home, and need not decide that gun laws must pass strict scrutiny outside the home. If I were a betting man, I'd bet that the federal courts (including SCOTUS) will go with a standard lower than strict scrutiny for the outside-the-home-in-public cases. They will do that based on arguments similar to the ones that the Brady Bunch are making in this brief. Our overall RKBA isn't as solid as we may wish to believe, and the war will be won or lost on the basis of scrutiny.
Your words are sobering and I agree with you. I just read he opening argument and again I see Brady is trying to define RKBA as "in the home".

Here's my take on it - Heller v. DC determined at the very least, a law prohibiting handgun possession violates the 2A. That's all. The "bear" in RKBA has not been defined by the SCOTUS yet and may never be. The SCOTUS did not restrict RKBA TO the home, but said certainly in the home is protected. In Peruta v S.D. are we hoping to have the court define RKBA?

I don't understand scrutiny yet. I just need to sit down one of these evenings and spend some time reading about it, I haven't got around to it yet.
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Old 10-05-2010, 10:57 AM
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Franklin Zimring! Gosh! I LOVE that guy....

He was one of the panelists at the UOC discussion at the Commonwealth Club in San Francisco a while back. Here's my take on him:
http://www.calguns.net/calgunforum/s...0&postcount=46

I wasn't impressed.
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Old 10-05-2010, 11:23 AM
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Here's my take on it - Heller v. DC determined at the very least, a law prohibiting handgun possession violates the 2A. That's all.
Read it again.

The core holding in D.C. v. Heller is that the Second Amendment is an individual right intimately tied to the natural right of self-defense.

Quote:
Originally Posted by Stonewalker View Post
The "bear" in RKBA has not been defined by the SCOTUS yet and may never be. The SCOTUS did not restrict RKBA TO the home, but said certainly in the home is protected. In Peruta v S.D. are we hoping to have the court define RKBA?
To better understand what the Peruta case will do, read the PRAYER in the June 25th, Amendment to complaint.

The Justices understand what bear means, it means to carry. In McDonald the Court reaffirmed their holding in Heller. And we know that we have the right to carry in places that are not deemed "sensitive places"

Quote:
The opinion also re-affirmed that certain firearms restrictions mentioned in District of Columbia v. Heller, such as those "prohibit[ing]...the possession of firearms by felons or mentally ill," as well as "laws forbidding the carrying of firearms in sensitive places such as schools and government buildings,
There has not yet been any litigation to explore the sensitive places doctrine. That will come in the future once we have our right to carry established with case law, which is already underway in several circuits.

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I don't understand scrutiny yet. I just need to sit down one of these evenings and spend some time reading about it, I haven't got around to it yet.
Read up on the Equal Protection Clause I found it very helpful.
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Old 10-05-2010, 11:57 AM
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I had that conversation with an anti yesterday. He freely admitted that if he was carrying, he'd be more likely to shoot or be more dangerous. I said "Really? You're that guy that would give up his career, family, freedom, or life for a parking spot?"

No response...
It's good that he realizes he shouldn't carry. Hopefully he won't.
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Old 10-05-2010, 12:04 PM
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Man, whoever scanned these things must have been drunk. Some of those pages are nearly sideways.
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Old 10-05-2010, 12:20 PM
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What I found funny was that they almost advocate open carry, and if that is the case, it should be loaded. look at page 10 and thank the Brady's for their support of LOC.
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Old 10-05-2010, 12:33 PM
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As ridiculous as it is to read, it's not the trainwreck that other Brady briefs have been. What interests me is that the whole brief is basically in support of the existence of 12050 itself, as if the Peruta intent was to completely do away with the statute. They never once commented on the statement that 12050 was unconstitutional on its face or as applied. It seems pretty slamdunk on equal protection grounds to me.
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Old 10-05-2010, 12:35 PM
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Originally Posted by Shiboleth View Post
As ridiculous as it is to read, it's not the trainwreck that other Brady briefs have been. What interests me is that the whole brief is basically in support of the existence of 12050 itself, as if the Peruta intent was to completely do away with the statute. They never once commented on the statement that 12050 was unconstitutional on its face or as applied. It seems pretty slamdunk on equal protection grounds to me.
LAP's reply brief will be an exercise in hilariousness in pointing out the errors from the motions for summary judgment. San Diego's brief is a train wreck.
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Old 10-05-2010, 12:36 PM
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Our side seems to assume that the federal courts will decide that strict scrutiny is the appropriate standard for all 2A claims because SCOTUS once used the word "fundamental" while discussing 2A, and strict scrutiny is the standard used for the fundamental 1A right of free speech. However, context matters. The 2A right they were speaking of is the limited one that has already been confirmed: RKBA for the purpose of self-defense inside the home.
Pretty sure heller said for the purpose of self-defense, most notably in the home.

That does not exclude outside the home. The majority opinion also covered the language of "carry" and referenced other cases where the language reads in the context of - to carry on ones person for the purpose of offensive or defensive action. I could pull the case text, but I'm at work and don't have access to all my stuff.

I can't tell how may times I have seen people say that the 5-4 opinion ruled "only" for the home, when it's "most notably". They utilized their judicial discretion to specifically not say *ANYTHING* about it, but not limit it *just to* the home.
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Old 10-05-2010, 12:40 PM
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First page and I am already frustrated.

Where in the Constitution does it say these RIGHTS are only valid "in the home"?

You have the right to free speech only "in the home?"
The right to the protection from unreasonable search only "in the home?"

Yet their MAIN argument is that the Second Amendment protection sited in Heller and McDonald was only valid "in the home?" Wow. And they had the stones to submit this to the court with their name on it.
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Old 10-05-2010, 1:47 PM
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Pretty sure heller said for the purpose of self-defense, most notably in the home.

That does not exclude outside the home. The majority opinion also covered the language of "carry" and referenced other cases where the language reads in the context of - to carry on ones person for the purpose of offensive or defensive action. I could pull the case text, but I'm at work and don't have access to all my stuff.

I can't tell how may times I have seen people say that the 5-4 opinion ruled "only" for the home, when it's "most notably". They utilized their judicial discretion to specifically not say *ANYTHING* about it, but not limit it *just to* the home.
Whoa!!!

A first-time post which is pretty much nailing it! I don't remember the "most notably" part from the text, but Heller specifies the right to defend your self in your home and there are implications to carry outside the home although they don't get explicit. But IIRC, Heller talked about sensitive places and there would be little point in addressing those if they meant carry to be only inside the home. McDonald similarly indicates support for carry outside the home.

Welcome to CGN I think it will be very good having you on board.

Last edited by OleCuss; 10-05-2010 at 1:51 PM..
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Old 10-05-2010, 2:07 PM
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Read it again.

The core holding in D.C. v. Heller is that the Second Amendment is an individual right intimately tied to the natural right of self-defense.



To better understand what the Peruta case will do, read the PRAYER in the June 25th, Amendment to complaint.

The Justices understand what bear means, it means to carry. In McDonald the Court reaffirmed their holding in Heller. And we know that we have the right to carry in places that are not deemed "sensitive places"

There has not yet been any litigation to explore the sensitive places doctrine. That will come in the future once we have our right to carry established with case law, which is already underway in several circuits.



Read up on the Equal Protection Clause I found it very helpful.
I should clarify my opinion. Heller v. DC only struck down a handgun possession ban. They left the other intricacies for DC to deal with. The majority opinion talks about carrying as a fundamental right but their decision only permitted handgun possession, it did not deal with carry laws or permitting processes.

So... they only restricted the city from banning possession, which at the very least means keeping a handgun in your home. To possess something you must have a place to...possess it. They implied carrying was covered but that's not what their decision was about. The SCOTUS has not specifically decided that carry is a fundamental right

therefore...

DC or any other jurisdiction is free at this point to restrict carry without violating the 2nd amendment. Peruta and Sykes will go forward without the 2nd amendment covering carry.

Or am I totally incorrect here?

Last edited by Stonewalker; 10-05-2010 at 2:14 PM.. Reason: addition
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Old 10-05-2010, 2:28 PM
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I should clarify my opinion. Heller v. DC only struck down a handgun possession ban. They left the other intricacies for DC to deal with. The majority opinion talks about carrying as a fundamental right but their decision only permitted handgun possession, it did not deal with carry laws or permitting processes.

So... they only restricted the city from banning possession, which at the very least means keeping a handgun in your home. To possess something you must have a place to...possess it. They implied carrying was covered but that's not what their decision was about. The SCOTUS has not specifically decided that carry is a fundamental right

therefore...

DC or any other jurisdiction is free at this point to restrict carry without violating the 2nd amendment. Peruta and Sykes will go forward without the 2nd amendment covering carry.

Or am I totally incorrect here?
I don't think you're totally incorrect. I think, however, that the idea that jurisdictions are free to restrict carry without violating the 2nd Amendment is going a bit too far.

It is important to distinguish between the explicit rulings of SCOTUS and the part of the Constitution which is in question.

So while SCOTUS has not explicitly ruled that the 2nd Amendment allows carry outside the home, that does not mean that the 2nd Amendment does not protect that right or that a jurisdiction is free to violate that right.

So I'd say that a municipality or jurisdiction such as Chicago or D.C. at least has the fig leaf of the lack of a specific legal ruling as they claim that they can violate our rights - but I'd contend that they aren't really "free" to do so. Although one could argue that they won't get locked up for violating our 2nd Amendment rights - so maybe they really are free to do so. . .
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Old 10-05-2010, 2:33 PM
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Yea I was being a bit facetious when I said they 'free to restrict'. They have not had their hand on the exact issue slapped by the SCOTUS so those that want to restrict carry, will restrict carry and it will be up to us to fight it through the courts.

I still think the punishment for passing unconstitutional legislation should be public hanging. Perhaps that's a bit to strong - they should at least be stripped and locked up in stocks at the town square so we can throw feces at them. It would only take one...
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Old 10-05-2010, 2:36 PM
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This is the link for Robertson V Baldwin, 165 us. 275 (1897)
http://inclusion.semitagui.gov.co/Ta...US275-1897.pdf
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Old 10-05-2010, 2:56 PM
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A decision in Peruta will cover Imperial County as well won't it?
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