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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 10-05-2010, 12:59 PM
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Question Will a Sykes/Peruta win be stayed while being appealed?

Assume we get strict scrutiny w/Nordyke. Once we win either Sykes or Peruta, would the decision in our favor be stayed during an appeal by the losing party?

Or, since they're dealing w/a fundamental right, would the court require "virtual Shall Issue" while the appeal is being decided? Would info re 40 out of 50 states being Shall Issue or better, and, most importantly, the momentum for change has been uniformly on our side for the past 25 years, influence the court?

If the trial court's decision is enforced during an appeal, we should have as much in place as possible to flood the application system.
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Old 10-05-2010, 1:12 PM
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There are a few permutations of the "what if" scenario and the scope of the rulings and how it will apply to everyone. The best writing I have seen so far on the subject is by Charles Nichols on the possibilities of Peruta in his Concealed Carry of handguns imminent? article.

I can only presume that the same would apply for Sykes as well. It really is the $10 question, and nobody knows the answer for certain.
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Old 10-05-2010, 1:43 PM
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The usual answer: Gene knows, but it's strategically disadvantageous to say, but you'll like the outcome at an undeterminable point in the future and it will work towards an undisclosed follow up case that is currently in development.
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Old 10-05-2010, 1:48 PM
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Originally Posted by yellowfin View Post
The usual answer: Gene knows, but it's strategically disadvantageous to say, but you'll like the outcome at an undeterminable point in the future and it will work towards an undisclosed follow up case that is currently in development.
Hmm . . . Now where have I heard all that before . . . . more than once . . .
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Old 10-05-2010, 2:08 PM
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Originally Posted by Paladin View Post
Assume we get strict scrutiny w/Nordyke. Once we win either Sykes or Peruta, would the decision in our favor be stayed during an appeal by the losing party?

Or, since they're dealing w/a fundamental right, would the court require "virtual Shall Issue" while the appeal is being decided? Would info re 40 out of 50 states being Shall Issue or better, and, most importantly, the momentum for change has been uniformly on our side for the past 25 years, influence the court?

If the trial court's decision is enforced during an appeal, we should have as much in place as possible to flood the application system.
As usual: It depends. Take a look at what happened during the Perry Prop 8 situation (this isn't to segway to a larger issue of Prop 8, but merely pointing out a procedural. Posters, do not get this thread shut down over Prop 8). In that case, the plaintiffs asked for the stay to be lifted immediately after they won, the defendant-intervenors asked the judge to stay during the entire appeals process. The judge denied the permanent stay but gave a temporary one for 6 days while they appealed to the merits panel. The D-I's appealed to the motions panel of the 9th Circuit, asking for a permanent stay. The plaintiffs asked for there not to be a stay as they believed that their fundamental rights were being violated, but they asked in the alternative to be given an accellerated briefing schedule due to the fundamental right nature involved. The motions panel voted to put in a stay, but followed the plaintiffs' alternative suggestion which was accelerated briefing schedule.

Not saying here that that's what's gonna happen, but it's one potential path.
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Old 10-05-2010, 2:15 PM
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Gene's head is going to explode with all that backed up info building pressure. I wish that he would let a little leak out, just to tease us a bit.

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  #7  
Old 10-05-2010, 2:26 PM
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Originally Posted by Gray Peterson View Post
As usual: It depends. Take a look at what happened during the Perry Prop 8 situation (this isn't to segway to a larger issue of Prop 8, but merely pointing out a procedural. Posters, do not get this thread shut down over Prop 8). In that case, the plaintiffs asked for the stay to be lifted immediately after they won, the defendant-intervenors asked the judge to stay during the entire appeals process. The judge denied the permanent stay but gave a temporary one for 6 days while they appealed to the merits panel. The D-I's appealed to the motions panel of the 9th Circuit, asking for a permanent stay. The plaintiffs asked for there not to be a stay as they believed that their fundamental rights were being violated, but they asked in the alternative to be given an accellerated briefing schedule due to the fundamental right nature involved. The motions panel voted to put in a stay, but followed the plaintiffs' alternative suggestion which was accelerated briefing schedule.

Not saying here that that's what's gonna happen, but it's one potential path.
But wouldn't there be a difference because the fundamental right in the Prop 8 case was found, IIRC, by a trial court vs the one found by SCOTUS in Heller-McDonald. Thus, wouldn't the 9th be much less likely to stay the trial court's decision w/the CCW case(s)?

IOW, here it is a question of an application of a right declared by SCOTUS vs whether a right declared by a trial court exists. The CCW case is, so to speak, coming from the top down (after the right already went up to the top) vs the Prop 8 case which is still on its way up.

Thus, wouldn't the evidence of a lack of mischief/harm caused by not staying the decision for our side (as seen in the pro-Shall Issue statistics and the decades long move for Shall Issue w/o a single state going in the opposite direction), when weighed against possible infringement of a fundamental right and the statistically likeliness of people actually being physically harmed due to lack of CCWs cause the 9th to not issue a stay?
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Last edited by Paladin; 10-05-2010 at 3:15 PM.. Reason: fleshed out argument
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  #8  
Old 10-05-2010, 3:28 PM
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Gene's head is going to explode with all that backed up info building pressure. I wish that he would let a little leak out, just to tease us a bit.
The answer is likely in a court case you've never heard of that applies in a random yet relevant way plus a current case that hasn't been discussed, in combination with specific obscure Latin terminology. When in doubt, just check the Volokh Conspiracy and Scotusblog.

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In Pennsylvania Your permit to carry concealed is called a License to carry fire arms. Other states call it a CCW. In New Jersey it's called a crime.
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  #9  
Old 10-05-2010, 3:33 PM
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The answer is likely in a court case you've never heard of that applies in a random yet relevant way plus a current case that hasn't been discussed, in combination with specific obscure Latin terminology. When in doubt, just check the Volokh Conspiracy and Scotusblog.
De Factos will be carefully studied by de Jure who will Stare Decisisly at the plaintiff while rendering their verdict.
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Old 10-05-2010, 4:22 PM
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You guys are making this way too complicated.

The rule is: if there's a way to drag out the decision, and then the implementation of the decision, that is what will be done. Nothing quick happens with 2A case law. Everything takes at least two years (and sometimes 10+ years).

The longest, least efficient path to affirming our right to arms will be found. If that means obscure Latin terminology, then they will resort to obscure Latin terminology. Count on it.
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Old 10-05-2010, 4:30 PM
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You assume there will be an appeal.

If the case for discretionary issue is the loser I think it is, the counties might not appeal a loss.

If the judges are bad enough to hand us a loss, we'll appeal. I'm sure of that.
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Old 10-05-2010, 5:06 PM
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Quote:
Originally Posted by yellowfin View Post
The usual answer: Gene knows, but it's strategically disadvantageous to say, but you'll like the outcome at an undeterminable point in the future and it will work towards an undisclosed follow up case that is currently in development.
Quote:
Originally Posted by yellowfin View Post
The answer is likely in a court case you've never heard of that applies in a random yet relevant way plus a current case that hasn't been discussed, in combination with specific obscure Latin terminology.
Sigline material right there.

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De Factos will be carefully studied by de Jure who will Stare Decisisly at the plaintiff while rendering their verdict.
Someone's been reading the lawyer pick-up lines thread.

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You guys are making this way too complicated.

The rule is: if there's a way to drag out the decision, and then the implementation of the decision, that is what will be done. Nothing quick happens with 2A case law. Everything takes at least two years (and sometimes 10+ years).

The longest, least efficient path to affirming our right to arms will be found. If that means obscure Latin terminology, then they will resort to obscure Latin terminology. Count on it.
Sigh. Such low expectations that I cannot help but be pleasantly surprised.

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Old 10-05-2010, 5:08 PM
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You guys are making this way too complicated.

The rule is: if there's a way to drag out the decision, and then the implementation of the decision, that is what will be done. Nothing quick happens with 2A case law. Everything takes at least two years (and sometimes 10+ years).

The longest, least efficient path to affirming our right to arms will be found. If that means obscure Latin terminology, then they will resort to obscure Latin terminology. Count on it.
Wow, tough crowd.
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  #14  
Old 10-05-2010, 5:17 PM
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You assume there will be an appeal.

If the case for discretionary issue is the loser I think it is, the counties might not appeal a loss.
I'd love for them to roll over and die and give me my RKBA, or at least a CCW. But I wanted to see how people thought things would play out if they don't.

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If the judges are bad enough to hand us a loss, we'll appeal. I'm sure of that.
Me too!
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Old 10-05-2010, 6:12 PM
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Old 10-05-2010, 6:15 PM
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LOL!
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Old 10-05-2010, 6:48 PM
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Wow, tough crowd.
The many years of beatings have made many of us calloused and hard, yes. It's easier to set your expectations low and be pleasantly surprised when they are exceeded.

Then again, after our recent wins I'm feeling more optimistic than ever.
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Old 10-05-2010, 9:13 PM
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A win would probably be stayed pending appeal. However, that stay doesn't mean that a county would continue to not issue or not start issuing.

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Old 10-06-2010, 7:34 AM
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De Factos will be carefully studied by de Jure who will Stare Decisisly at the plaintiff while rendering their verdict.

Oh! Legal puns.

So dorky...

Pulling the life out of me...

Fading fast....

arrrgggghhhh.......


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Old 10-06-2010, 7:44 AM
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any decision will be appealed and, as Gene said, a decision in our favor will likely be stayed it opens a whole can of worms that cannot be closed again: what about CCWs that are issued strictly under the case in question? Same as prop 8 and marriage licenses being issued to same sex couples being issued pending the outcome of appeals.

However; there is a FUNDAMENTAL difference in the two cases. Same sex marriage wasn't protected by a superior court, in this case the RKBA IS protected by SCOTUS and it's a fundamental right. Once the court speaks, even pending an appeal, many counties are going to be hesitant to open themselves up to potential lawsuits of their own for civil rights violations by denying law abiding citizens their right "to possess and carry weapons in case of confrontation."
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Old 10-06-2010, 7:51 AM
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any decision will be appealed and, as Gene said, a decision in our favor will likely be stayed it opens a whole can of worms that cannot be closed again: what about CCWs that are issued strictly under the case in question? Same as prop 8 and marriage licenses being issued to same sex couples being issued pending the outcome of appeals.
No biggie. The issuing authority (CLEO), just pulls the permits. Happens all the time now when a CCW'er does something that disqualifies him to have a CCW (e.g., drunk driving, or . . . ceasing to be a member of the sheriff's posse ).
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Old 10-06-2010, 8:11 AM
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No biggie. The issuing authority (CLEO), just pulls the permits. Happens all the time now when a CCW'er does something that disqualifies him to have a CCW (e.g., drunk driving, or . . . ceasing to be a member of the sheriff's posse ).
No, it's a huge difference. You cannot pull a permit simply because you changed your mind. This is one of the areas that no one pursued with Sandra Hutchens and as for leaving The Posse, that one is in federal court right now (as I'm sure you know.) Once you have a permit you have a substantive interest in that permit so you are entitled to due process in its revocation which is not the case before you are issued the permit.
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Old 10-06-2010, 8:46 AM
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No, it's a huge difference. You cannot pull a permit simply because you changed your mind. This is one of the areas that no one pursued with Sandra Hutchens and as for leaving The Posse, that one is in federal court right now (as I'm sure you know.)
It won't be pulled just because the CLEO changes their mind, but because the appellate court overrules/reverses the trial court and says the 2nd A does NOT gut CA's GC requirement.

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Once you have a permit you have a substantive interest in that permit so you are entitled to due process in its revocation which is not the case before you are issued the permit.
I cannot make an informed comment re. this since I am not a expert on the laws re revoking permits. But remember, a substantive interest is not the same as a substantial interest. The interest may be substantive but insubstantial, esp since they are routinely pulled for cause. The cause here is the AC overruling the TC.

Why would a court even want to risk going down that road? As I wrote earlier, that involves weighing the pluses and minuses of a stay or not.

Time will tell.
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Old 10-06-2010, 8:48 AM
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It won't be pulled just because the CLEO changes their mind, but because the appellate court overrules/reverses the trial court and says the 2nd A does NOT gut CA's GC requirement.
It is because the LEO "changed his/her mind" because they don't have good cause to revoke. You think your driver's license could be revoked because DMV simply decided to change their policy?
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Old 10-06-2010, 9:03 AM
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It is because the LEO "changed his/her mind" because they don't have good cause to revoke. You think your driver's license could be revoked because DMV simply decided to change their policy?
Again, the issuing authority did not change their own policy.

We're assuming the TC says SD is GC, so that waives/eliminates the CLEO's policy re GC. Next we're assuming the AC then reverses the TC, so, if that reversal is not stayed, the CLEO's policy re. GC is then legal and applied again.

The CLEO won't have to retroactively apply their GC requirements and pull permits. They could just wait until the permits issued after the TC's decision expire and not reissue new ones, ending the CCW'ers "substantive interest." End of problem.
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Old 10-06-2010, 11:37 AM
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I think Paladin's worry is a bit unfounded.

If a win is stayed, the status quo will remain generally intact. Remember that their friends have permits, too, and that every time they make a move they'll face some additional work (which they *hate*).

We're watching them. Closely.
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Old 10-06-2010, 12:26 PM
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The CLEO won't have to retroactively apply their GC requirements and pull permits. They could just wait until the permits issued after the TC's decision expire and not reissue new ones, ending the CCW'ers "substantive interest." End of problem.
Possibly. But that is 2 years down the road and the case is much more likely to have been decided, plus it is 2 years in which the good guy isn't disarmed and at the mercy of potential bad guys.
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