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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 10-19-2010, 4:41 PM
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Default Nordyke III Audio is released:

http://www.ca9.uscourts.gov/media/vi..._id=0000006368

Erik.
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  #2  
Old 10-19-2010, 4:51 PM
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Sweet! Listening.
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Old 10-19-2010, 5:16 PM
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One of the Judges asks the County's Counsel:

Quote:
"McDonald tells us not only is the Heller right preserved, it applies to the states, but it really emphasized the fact that the 2nd Amendment is a substantial fundamental right suggesting as we've seen in some of these other post McDonald cases, strict scrutiny perhaps ought to be applied, why shouldn't we apply strict scrutiny to this ordinance?"


Erik.

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Old 10-19-2010, 5:26 PM
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And there wasn't a good answer from the County on that, love it!
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  #5  
Old 10-19-2010, 5:43 PM
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Any transcripts? I don't have time to actually listen to it ...
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Old 10-19-2010, 5:51 PM
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The audio is worth the time spent listening I think you get a "feel" for how the judges stand and you can tell the county speaker is feeling the pressure too.


My question is when do we get the decision?
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  #7  
Old 10-19-2010, 5:55 PM
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Great work Erik!! I will add it to the CGN Facebook Page!!
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  #8  
Old 10-19-2010, 5:56 PM
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It's worth the listen. The comparisons made between the 1st and 2nd amendments were very compelling, and I hope the judges see it the same way. Honestly, who knows how this thing will play out...but the Alameda attorney sure sounds like she's making it up as she goes along.
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Old 10-19-2010, 6:08 PM
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Limited to an Iphone
currently for anything with audio.
Link is to a wma file.
Any links to something iPhone compatible?
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  #10  
Old 10-19-2010, 6:26 PM
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Originally Posted by ptoguy2002 View Post
Limited to an Iphone
currently for anything with audio.
Link is to a wma file.
Any links to something iPhone compatible?
there isn't an app for wma?

.
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  #11  
Old 10-19-2010, 6:27 PM
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posted this a bit ago in the Nordyke Orals III thread, but applies here also:

Quote:
Just got done listening to the audio. Sounded like the county is running an uphill race. They really had to drag it out of her that CCW was specifically allowed on the fairgrounds; and I think that is where the county is going to lose. I also am leaning towards thinking that the court will apply strict scrutiny in this case also. Just my $.02 from listening to the audio. Now, if we can tear Gene away from the previously scheduled libations and culinary delights, maybe we can get a professional's opinion.
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Old 10-19-2010, 6:36 PM
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I thought it was an interesting listen but I also know that I'm not good enough at law and legal procedure to have a good idea whether it bodes ill or if it bodes well.

To me, however, Kilmer seemed to be following a pretty logical and straightforward path and it didn't seem that he caught too much grief from the judges.

I had trouble following what the county lawyer was trying to do. It also seemed to me that she was at times non-responsive (but again, I may have been completely misunderstanding). It also seemed rather interesting that a judge wanted to question her past her allotted time - I'm not at all sure that this meant good things for her case.

I'm looking forward to an expert analysis.
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Old 10-19-2010, 7:05 PM
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Quote:
Originally Posted by OleCuss View Post
I thought it was an interesting listen but I also know that I'm not good enough at law and legal procedure to have a good idea whether it bodes ill or if it bodes well.

To me, however, Kilmer seemed to be following a pretty logical and straightforward path and it didn't seem that he caught too much grief from the judges.

I had trouble following what the county lawyer was trying to do. It also seemed to me that she was at times non-responsive (but again, I may have been completely misunderstanding). It also seemed rather interesting that a judge wanted to question her past her allotted time - I'm not at all sure that this meant good things for her case.

I'm looking forward to an expert analysis.

^^ ++1 ^^

I am thinking that they are all out dining & drinking. Well deserved I must say. Kinda thinking the expert analysis would be better put off until morning. Although, commentary tonight might be interesting & entertaining. We must be like a bunch of kids @ Christmas to them. They know we are all sitting here all figitdy in our chairs awaiting any clues.

.
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Old 10-19-2010, 7:06 PM
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I think Don Kilmer did very well, and the countty's attorney seemed to fumble, but I got the impression that they may send it back to the trial court with some instruction as to standard of review...
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Old 10-19-2010, 7:16 PM
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Originally Posted by HowardW56 View Post
I think Don Kilmer did very well, and the countty's attorney seemed to fumble, but I got the impression that they may send it back to the trial court with some instruction as to standard of review...
...hmmm...I kinda was thinking that they sounded hesitant to send it back to the trial court...

...but then, IANAL

.
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Old 10-19-2010, 7:17 PM
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Quote:
Originally Posted by choprzrul View Post
^^ ++1 ^^

I am thinking that they are all out dining & drinking. Well deserved I must say. Kinda thinking the expert analysis would be better put off until morning. Although, commentary tonight might be interesting & entertaining. We must be like a bunch of kids @ Christmas to them. They know we are all sitting here all figitdy in our chairs awaiting any clues.

.
I've no problem with their being out celebrating. While I'm interested in their analysis, I'm not overcome with eagerness. It's when the final ruling is handed down that we'll know the outcome. It wouldn't even surprise me if it was changed to en banc again before the ruling.

And when the ruling is issued there will still be a pretty good chance of an appeal no matter what direction the ruling goes.

So I hope Kilmer and the rest just have a great evening without giving us a thought.
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Old 10-19-2010, 7:22 PM
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Originally Posted by choprzrul View Post
...hmmm...I kinda was thinking that they sounded hesitant to send it back to the trial court...

...but then, IANAL

.
The questions from the judges on the adequaqcy of the record regarging the 2nd Amendment, and sensitive places is what makes me think they may send it back to the trial court.

The way I understand it:

The appealate courts deal with questions of law, not fact.

If there are facts to be determined that is for the trial courts...
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Old 10-19-2010, 7:30 PM
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Just finished the Audio. The county attorney stuttered alot and seemed like a child lost in a crowd or something. I like how judges kept the pressure on. It looks good for us but I don't think they are going to send it back trial court for the finding. When can we reasonably expect decision from this court?
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Old 10-19-2010, 7:41 PM
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This may not an accurate quote but one of the judges asked " was there finding where a gun show caused one of the shootings" county's lawyer................ um a umm aaaaa no.
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Old 10-19-2010, 8:12 PM
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The way the judges will rule on this case is based more on the briefs than anything else. The oral arguments are almost a side-show in comparison. That said, I think Kilmer came across better (the Alameda lawyer stuttered too much), but I did think the Alameda lawyer made a bunch of good arguments, especially when she pointed out how the gun show is situated differently than the Scottish Games.

Right at the end there, it almost sound as if she was saying that the vendors could sell guns at a gun show on the fair grounds so long as they're armed. I guess the kicker is that there's no way for the vendors to be legally armed at the gun show.

From the oral arguments, it felt to me that at least one of the judges was fishing for a way to kick this case back down to a lower court.

I'm very curious to hear what our guy's take on this case is. Seems to me that the court could almost say, "Yes, strict scrutiny applies, but even so there's no 2A violation."
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  #21  
Old 10-19-2010, 8:21 PM
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Quote:
Justice: "Was the record developed that the Fairgrounds is a sensitive place, and therefore guns should be banned there?"

County Counsel: "Yes, the County’s position is it certainly was, we didn’t have the rubric of what is a sensitive place, but in terms of the sensitive places category, first of all, the Supreme Court has identified two very different locations; “Government buildings”, and “schools”. There are different things about those two locations that make them sensitive places. One way to look at that is to say the Court is indicating that there’s a Legislative role in deciding what’s a sensitive place, just as the Heffron Court looked at the Fairgrounds and determined in essence, this is a sensitive place with respect to assertion of First Amendment Rights, because we have crowd control issues; because we have people who come here with the expectation that the Governmental body is going to be protecting them while they are using the Fairgrounds for its principle purpose."

Justice: "But there’s no finding is there… by the trial Judge that this is or is not a sensitive place…"

County Counsel: "There’s no finding by the trial judge on that point, but if there’s sufficient evidence before this court, for the court to buttress it’s other findings regarding the Second Amendment with the conclusion that the Fairgrounds fits nicely within the category, then there is no reason to send it back to the trial court…"
Erik.
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Old 10-19-2010, 9:09 PM
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Quote:
Originally Posted by Peter.Steele View Post
Any transcripts? I don't have time to actually listen to it ...
But you have time to read it? So much is gained by voice inflection reading would not be the same.
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Old 10-19-2010, 9:21 PM
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County Counsel :
[...] Eight gun shot victims the youngest was age eight. There were two other victims under the age eight-teen...
Fudge Judge : (I'm liking him just on everything he says..)
Was there any showing about... uhhhm victims uhhmm as a result about a gun show ?
County Counsel :
Thee... no, but[...]

I want him to say... you'll have to excuse me, but I'm far to busy.. being delicious.
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Old 10-19-2010, 9:59 PM
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Thanks for posting the link to the audio. I just finished lisrening. Don did a great job. It's anybodys guess what the panel will do. I do get the feeling we could win here or go back to district court for trial. I just hope they dont take too long.
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Old 10-19-2010, 10:37 PM
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Quote:
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Thanks for posting the link to the audio. I just finished lisrening. Don did a great job. It's anybodys guess what the panel will do. I do get the feeling we could win here or go back to district court for trial. I just hope they dont take too long.
Anybody's guess is right. I thought Alameda did well under the circumstances.
I would like to have seen Don take them to the mat on trying to tie unrelated shootings to the gun show, and perhaps hammer them a little more with comparisons to the 1st amendment. The county wouldn't dream of restricting books at a book show, even if some of the books were dangerous Nazi or KKK literature (despicable as it is).

I wouldn't even try to handicap this with someone else's money. I pray for strict scrutiny, or at least a reversal based on very narrow intermediate scrutiny.
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Old 10-19-2010, 10:48 PM
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Quote:
Originally Posted by choprzrul View Post
posted this a bit ago in the Nordyke Orals III thread, but applies here also:
She wasn't just running up hill dude... she was "litigating" herself into a corner! I was sitting in that courtroom hearing her speak and thinking... "OK, she just said that the fairground needed to be considered a sensitive area similar to that of a courthouse and a school zone. Maybe then if all the counties across america that have firearms restrictions in courthouses AND school zones ALL agree to ALSO restrict firearms on their fairgrounds... she could possibly have a case"

Mr. Kilmer didn't catch her on that particular point... but I couldn't believe she did that to herself! I did however LOVE what Mr. Kilmer DID do to catch her in the end when he brought up the exception to the rule where courthouses DO allow firearms when they are the venue for a gun show... HAHAHA!!! Talk about socking it to her... OUCH!
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Old 10-20-2010, 7:41 AM
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Originally Posted by Liberty1 View Post
But you have time to read it? So much is gained by voice inflection reading would not be the same.

I'm in law school. You get pretty good at skimming and picking up on the important parts of cases and court documents / transcripts.

But, yeah, you get more out of listening, I agree. I'll see if I can get time today. Maybe.
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Old 10-20-2010, 8:53 AM
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The more I listen to the oral argument and the questions propounded by the court, the more I am inclined to consider the possibility that the court is leaning toward finding that the District court erred in denying the amendment of the complaint to include the Second Amendment cause of action, and remanding the case back to the District court for a decision based on the amended complaint.

I have very few times before wished I was as "wide of the mark" as I wish I am now on this reflection.
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Old 10-20-2010, 9:09 AM
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This is awesome! Thank you! Does anyone know if the McDonald v. Chicago Audio was ever released?
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Old 10-20-2010, 9:55 AM
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The other thread is now identical in topic to this one. I suggest this be merged with the original thread.
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Old 10-20-2010, 10:41 AM
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Originally Posted by nomidlname View Post
This is awesome! Thank you! Does anyone know if the McDonald v. Chicago Audio was ever released?
Interesting (good question). No, I don't know if the McDonald audio has been released, I doubt it will.

On another related note, is it rare for the Circuit Court to remand if the facts are already there? It seems that the facts are already in existence... CCW is permitted at the fairgrounds, there are metal detectors, the County considers it a "sensitive place", but does not have a standard definition on what "sensitive place" is, and has not taken a legislative role on whether the fairgrounds is a sensitive place, so why would the court remand? Do they have to remand when reversing? Is it not a "no brainer" for the Court to figure this one out?

Not to forget about this part of the County Counsel's statement to the Court:

Quote:
"...this is a sensitive place with respect to assertion of First Amendment Rights, because we have crowd control issues; because we have people who come here with the expectation that the Governmental body is going to be protecting them while they are using the Fairgrounds for its principle purpose."
I'm sure County Counsel is aware of Warren v. District of Columbia. 444 A.2d 1 (D.C. 1981), and the fact that there is no better case to look to when deciding whether or not Police, at times will or will not protect individuals at the Fairgrounds. If they are not required to protect individuals within the home, I don't see how they could be compelled to protect individuals in the fairgrounds. I hope that the Court will also look at this as well. Further, she admits that the County, nor the Legislature has not even bothered to define sensitive places more narrowly, and it's too broad. The Supreme Court in Heller just made it to be schools & government buildings (and in many cases, a school is a government building, no?).

Erik.
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Old 10-20-2010, 10:58 AM
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Quote:
Originally Posted by Window_Seat View Post
I'm sure County Counsel is aware of Warren v. District of Columbia. 444 A.2d 1 (D.C. 1981), and the fact that there is no better case to look to when deciding whether or not Police, at times will or will not protect individuals at the Fairgrounds. If they are not required to protect individuals within the home, I don't see how they could be compelled to protect individuals in the fairgrounds. I hope that the Court will also look at this as well. Further, she admits that the County, nor the Legislature has not even bothered to define sensitive places more narrowly, and it's too broad. The Supreme Court in Heller just made it to be schools & government buildings (and in many cases, a school is a government building, no?).

Erik.
IANAL, but my understanding is that Warren does not apply when you are disarmed by the proprietor of a facility. Once they have removed your ability to defend yourself, they have assumed the protection role. This could be incorrect, but in viewing the restrictions of firearms on military bases, schools, federal buildings, and the like, there is some measure of protection provided. Now, I can't cite any caselaw where a disarming authority has been sued for negligence for allowing an attack after disarming the victims, but that's not to say it isn't there.
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Old 10-20-2010, 11:40 AM
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Quote:
Originally Posted by nomidlname View Post
This is awesome! Thank you! Does anyone know if the McDonald v. Chicago Audio was ever released?
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Originally Posted by Window_Seat View Post
Interesting (good question). No, I don't know if the McDonald audio has been released, I doubt it will.
found it, http://www.oyez.org/sites/default/fi...2-argument.mp3
http://www.oyez.org/cases/2000-2009/2009/2009_08_1521
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Old 10-20-2010, 11:46 AM
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Freakin awesome! Thank you so much!!

Bah! Darn work firewall preventing me from downloading the MP3. oh well... needed to go home anyways

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Old 10-20-2010, 12:06 PM
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ke6guj, YOU ARE THE DUDE!!!!!!!!!! THANKS!!!!!!!! DING DING DING, WE HAVE A WINNER!!!!!!!!

Erik.
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  #36  
Old 10-20-2010, 12:53 PM
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Originally Posted by AIMSMALL View Post
My question is when do we get the decision?
Whenever the judges see fit to issue it.
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Old 10-20-2010, 12:55 PM
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I am thinking that they are all out dining & drinking.
Yup, that was pretty much where we were.
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Old 10-22-2010, 6:00 PM
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Thanks Eric. I'm finally home and able to listen to this.
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  #39  
Old 12-21-2010, 8:16 PM
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Purple K Purple K is offline
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Sixty days down.....
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"A Government big enough to give you everything you want, is strong enough to take everything you have."
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  #40  
Old 12-21-2010, 8:20 PM
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HowardW56 HowardW56 is offline
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Sixty days down.....

And too many more to go....
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