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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 12-15-2010, 2:32 PM
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Thumbs up Peruta is on Appeal to the 9th Circuit Court of Appeals

This was posted earlier in the day in another thread but it has gotten buried. For the good of all who want to know, Peruta is on Appeal to the 9th Circuit Court of Appeals. The Notice of Appeal was filed on the 14th; it has not shown up in RECAP yet.


Quote:
Originally Posted by Gray Peterson View Post
Logged into PACER, here is what's going on:

Docket Text: NOTICE OF APPEAL as to [65] Clerk's Judgment, [64] Order denying Plaintiff's Motion for Partial Summary Judgment and granting Defendant's Motion for Summary Judgment, by Leslie Buncher, California Rifle and Pistol Association Foundation, Mark Cleary, James Dodd, Michelle Laxson, Edward Peruta. (Filing fee $455 receipt number 0974-3144253.) (Notice of Appeal electronically transmitted to US Court of Appeals.) (Attachments: # (1) Exhibit A, # (2) Exhibit B, # (3) Notice Representation Statement)(Michel, Carl). Modified on 12/14/2010 to edit text re order being appealed. (akr).

Checked PACER for the 9th Circuit, and there's no filing yet.
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  #2  
Old 12-15-2010, 2:36 PM
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Thank you for the update. I consider that to be very good news!
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  #3  
Old 12-15-2010, 2:43 PM
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I wouldn't hold my breath. This case is a legal loser from the first word, and is a "pro gun" case going before the most liberal (left wing) federal jurisdiction in the country. Not to mention that appeals are generally denied well over 90% of the time anyway.

I should give odds and take bets on this one. I'll make a fortune! (lol)
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  #4  
Old 12-15-2010, 2:47 PM
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Originally Posted by djandj View Post
I wouldn't hold my breath. This case is a legal loser from the first word, and is a "pro gun" case going before the most liberal (left wing) federal jurisdiction in the country. Not to mention that appeals are generally denied well over 90% of the time anyway.
The 9th Circuit has a reputation, but it really all depends on which 3 judge draw we'll get. The Nordyke panel is actually pretty good for us, and I had the pleasure of attending the Nordyke hearing two months ago. I think we're going to win that one.

Also, appeals to a 3 judge panel are almost never denied. It is en banc and SCOTUS where appeals become optional for the courts to take.

If the 9th Circuit plays games with us, we'll get review of the case from SCOTUS, or any of the nearly a dozen carry cases filed nationwide.
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  #5  
Old 12-15-2010, 2:49 PM
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Quote:
Originally Posted by djandj View Post
I wouldn't hold my breath. This case is a legal loser from the first word, and is a "pro gun" case going before the most liberal (left wing) federal jurisdiction in the country. Not to mention that appeals are generally denied well over 90% of the time anyway.

I should give odds and take bets on this one. I'll make a fortune! (lol)
really...Harrott a bad case too

everything chaged after didnt it.
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  #6  
Old 12-15-2010, 2:53 PM
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Originally Posted by dieselpower View Post
really...Harrott a bad case too

everything chaged after didnt it.
That was a state court decision, not 9th Circuit.
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  #7  
Old 12-15-2010, 3:01 PM
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I hope this goes to SCOTUS.
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  #8  
Old 12-15-2010, 3:02 PM
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Yep - the Federal law just isn't there to support shall issue or to make the connection between 2A and carrying on the street. The Heller Court was very careful to make it's holding ONLY applicable to home protection, ONLY to pistols and ALWAYS subject to "REASONABLE" state restrictions. Anyone who read Heller or any decision to date to hold that states can't place some restrictions on firearms ownership and carrying is not well read in the law at hand.

This particular argument has no traction and will not get anywhere. We're better off sticking with possession in the home etc.
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  #9  
Old 12-15-2010, 3:03 PM
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Quote:
Originally Posted by Coded-Dude View Post
I hope this goes to SCOTUS.
I hope Peruta wins, but that a better case argued by Mr. Alan Gura goes to SCOTUS.
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  #10  
Old 12-15-2010, 3:04 PM
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I hope this goes to SCOTUS.
Remember the nearly dozen other carry cases that were filed. Kachalsky, Woollard,Bateman, Muller, and Peterson too.
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  #11  
Old 12-15-2010, 3:10 PM
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Quote:
Originally Posted by djandj View Post
Yep - the Federal law just isn't there to support shall issue or to make the connection between 2A and carrying on the street. The Heller Court was very careful to make it's holding ONLY applicable to home protection, ONLY to pistols and ALWAYS subject to "REASONABLE" state restrictions. Anyone who read Heller or any decision to date to hold that states can't place some restrictions on firearms ownership and carrying is not well read in the law at hand.

This particular argument has no traction and will not get anywhere. We're better off sticking with possession in the home etc.
Thank the Almighty that you are on our side!

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  #12  
Old 12-15-2010, 3:16 PM
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Keep up the pressure guys. Best prayers are with you for victory in the 9th.
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  #13  
Old 12-15-2010, 3:19 PM
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Originally Posted by Glock22Fan View Post
Thank the Almighty that you are on our side!


Reality's a bummer - what can I say. Chanting a losing mantra is useless no matter how fervently believed. I want to win as much as the next guy, but we have to focus on fights we can win (IMHO)
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  #14  
Old 12-15-2010, 3:20 PM
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I just think we'd have better luck with SCOTUS in regards to what's reasonable(than say the 9th district), but thats just wishful thinking on my part. I'll probably move to a more constitutional friendly state in the next few years or so. California is a beautiful place......its just filled with morons and moronic law.
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  #15  
Old 12-15-2010, 3:22 PM
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Originally Posted by djandj View Post
Reality's a bummer - what can I say. Chanting a losing mantra is useless no matter how fervently believed. I want to win as much as the next guy, but we have to focus on fights we can win (IMHO)
Wow, we lose one case and you're ready to throw in the towel.
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Old 12-15-2010, 3:26 PM
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Quote:
Originally Posted by djandj View Post
Yep - the Federal law just isn't there to support shall issue or to make the connection between 2A and carrying on the street. The Heller Court was very careful to make it's holding ONLY applicable to home protection, ONLY to pistols and ALWAYS subject to "REASONABLE" state restrictions.
Every right is subject to reasonable restrictions, that is a red herring.

As for SCOTUS limiting the right to the home, they ruled on the case before them. However NOWHERE in the opinion did the majority restrict the right to the home. They specified the possibility of time, manner and place restrictions. How would time and place even apply to a right restricted to the home?
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  #17  
Old 12-15-2010, 3:30 PM
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Quote:
Originally Posted by djandj View Post
Yep - the Federal law just isn't there to support shall issue or to make the connection between 2A and carrying on the street. The Heller Court was very careful to make it's holding ONLY applicable to home protection, ONLY to pistols and ALWAYS subject to "REASONABLE" state restrictions. Anyone who read Heller or any decision to date to hold that states can't place some restrictions on firearms ownership and carrying is not well read in the law at hand.

This particular argument has no traction and will not get anywhere. We're better off sticking with possession in the home etc.
I think that is a very narrow reading of Heller and really doesn't do justice to what that court really did.

But you've a right to your reading and there are plenty of anti-RKBA lawyers and judges that will read it your way.
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Old 12-15-2010, 3:31 PM
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Quote:
Originally Posted by djandj View Post
Yep - the Federal law just isn't there to support shall issue or to make the connection between 2A and carrying on the street. The Heller Court was very careful to make it's holding ONLY applicable to home protection, ONLY to pistols and ALWAYS subject to "REASONABLE" state restrictions. Anyone who read Heller or any decision to date to hold that states can't place some restrictions on firearms ownership and carrying is not well read in the law at hand.
I'd argue that people making your argument is not well read in the law of the land, either.

Footnote 9 of Heller:

9 See Bliss v. Commonwealth, 2 Litt. 90, 91–92 (Ky. 1822); State v. Reid, 1 Ala. 612, 616–617 (1840); State v. Schoultz, 25Mo. 128, 155 (1857); see also Simpson v. State, 5Yer. 356, 360 (Tenn. 1833) (interpreting similar provision with “common defence” purpose); State v. Huntly, 25 N. C. 418, 422–423 (1843) (same); cf. Nunn v. State, 1 Ga. 243, 250–251 (1846) (construing Second Amendment ); State v. Chandler, 5 La. Ann. 489, 489–490 (1850) (same).

Also:

Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment , nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms

Few laws in the history of our Nation have come close to the severe restriction of the District’s handgun ban. And some of those few have been struck down. In Nunn v. State, the Georgia Supreme Court struck down a prohibition on carrying pistols openly (even though it upheld a prohibition on carrying concealed weapons). See 1 Ga., at 251.

Why would this be mentioned by the Heller Five if they wanted to restrict it to inside of the home?
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Old 12-15-2010, 3:40 PM
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If you think Heller restricted gun possession to within the home, you need to better understand SCOTUS. They frequently narrow the scope of their rulings so that they don't overextend the effect of one ruling to a level beyond the case at hand. In this case, the question was about a home handgun ban in DC. They ruled that handguns can be kept in the home, accordingly.
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Old 12-15-2010, 3:42 PM
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Quote:
Originally Posted by djandj View Post
Yep - the Federal law just isn't there to support shall issue or to make the connection between 2A and carrying on the street. The Heller Court was very careful to make it's holding ONLY applicable to home protection, ONLY to pistols and ALWAYS subject to "REASONABLE" state restrictions. Anyone who read Heller or any decision to date to hold that states can't place some restrictions on firearms ownership and carrying is not well read in the law at hand.

This particular argument has no traction and will not get anywhere. We're better off sticking with possession in the home etc.
Um...yeah, ok there.
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  #21  
Old 12-15-2010, 4:00 PM
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It would be quite interesting for the SCOTUS to GVR a Circuit Court loss with simply 'See Heller, Footnote 9'.
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Old 12-15-2010, 4:00 PM
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Quote:
Originally Posted by CalBear View Post
If you think Heller restricted gun possession to within the home, you need to better understand SCOTUS. They frequently narrow the scope of their rulings so that they don't overextend the effect of one ruling to a level beyond the case at hand. In this case, the question was about a home handgun ban in DC. They ruled that handguns can be kept in the home, accordingly.
In this case, all Gura requested for remedy was to allow carry in the home. In no way is the the scope of the case a limitation on the scope of the right itself.
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Old 12-15-2010, 4:07 PM
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Was Judge Gonzalez "just following the rules" of a District Court Judge, and if so, shouldn't we expect this at the Circuit Level as well?

I posted the following on my 'home' thread on the 7th Circuits ruling in McDonald last year.
Quote:
The District AND Circuit levels of the Federal Court system will not and can not go against the Justices nor should they be. They will convey the law, explore boundaries, but rarely create or define it.

McDonald, on the way to SCOTUS had to go through the IL District and 7th Circuit Court of Appeals, and it lost both rounds. Most of you know this, but what is enlightening is the 7th Circuit's Opinion while rejecting McDonald.

http://www.chicagoguncase.com/wp-con...t_decision.pdf

From that disappointing opinion, that ended up well:
(Remember, this is all 7th Circuit in their McDonald denial Opinion)

Quote:
The Supreme Court has rebuffed requests to apply the second amendment to the states. See United States v. Cruikshank, 92 U.S. 542 (1876); Presser v. Illinois, 116 U.S. 252 (1886); Miller v. Texas, 153 U.S. 535 (1894). The district judge thought that only the Supreme Court may change course. 2008 U.S. Dist. LEXIS 98134 (N.D. Ill. Dec. 4, 2008).

Quote:
Cruikshank, Presser, and Miller rejected arguments that depended on the privileges and immunities clause of the fourteenth amendment. The Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873), holds that the privileges and immunities clause does not apply the Bill of Rights, en bloc, to the states. Plaintiffs respond in two ways: first they contend that Slaughter-House Cases was wrongly decided; second, recognizing that we must apply that decision even if we think it mistaken, plaintiffs contend that we may use the Court’s “selective incorporation” approach to the second amendment. Cruikshank, Presser, and Miller did not consider that possibility, which had yet to be devised when those decisions were rendered.

The 7th Circuit, referencing 9th Circuit dicta in Nordyke:
Quote:
Another court of appeals has concluded that Cruikshank, Presser, and Miller still control even though their reasoning is obsolete.

Finally
Quote:
Repeatedly, in decisions that no one thinks fossilized, the Justices have directed trial and appellate judges to implement the Supreme Court’s holdings even if the reasoning in later opinions has undermined their rationale. “If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989).
Must the District and Circut follow Supreme Court dicta? If so, are we stuck with "In the Home" until a revisit to the Supreme Court??
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  #24  
Old 12-15-2010, 4:10 PM
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I don't think we need to get to SCOTUS. A win in the 9'th is good enough for me.

I'll be really happy if they clarify that restrictions on a fundamental right must be reasonable, not reasonably related to a government interest.
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Old 12-15-2010, 4:13 PM
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The SCOTUS is generally known as: "a lazy court". If and when it decides to take a case, it will only decide the specific issues raised in that particular case. Nothing else.
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Old 12-15-2010, 4:15 PM
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i think i'd rather have a little lazy than a little radical(9th district)
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Old 12-15-2010, 4:17 PM
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Well glad they put it up for appeals court!
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Old 12-15-2010, 4:22 PM
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My prediction, a GVR from SCOTUS:

Peruta et al v. County of San Diego et al

The petition for a writ of certiorari is granted. The
judgment is vacated, and the case is remanded to the United
States Court of Appeals for the Ninth Circuit for further
consideration in light of _________________ (insert Bateman, Kachalsky,Woollard, or Peterson.

Why do I think this may happen? See the shenanigans with Nordyke en banc, and the fact that no one asked for en banc but it happened anyway, I'm willing it was just to keep it from going up to SCOTUS (SCOTUS rejects appeals that still has motions pending in the lower court typically). The Palmer district court judge I think is playing the same game of "delay getting it to SCOTUS".

We'll get a carry case up there.
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Old 12-15-2010, 4:31 PM
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Quote:
Originally Posted by krucam View Post
Was Judge Gonzalez "just following the rules" of a District Court Judge, and if so, shouldn't we expect this at the Circuit Level?

I posted the following on my 'home' thread on the 7th Circuits ruling in McDonald last year.


Must the District and Circut follow Supreme Court dicta? If so, are we stuck with "In the Home" until a revisit to the Supreme Court??
I was naive in thinking that Gonzalez would rule in our favor. So I think that it may be reasonable to see failure at the Appeals level too. But as others have pointed out if we got a pro-Second Amendment Appeals Judicial panel then maybe we get a win there. But still, the loosing state attorney would appeal to the Supreme Court of the United States.

So in the end it does not matter too much how we get there as long as a good right-to-carry case gets there. I pray too, that it's a great attorney that does the arguing!

The Supreme Court is the highest tribunal in the nation for all cases and controversies arising under the Constitution or the laws of the United States. The Court stands as the final arbiter of the law and guardian of constitutional liberties and I have faith that they'll help us!
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Old 12-15-2010, 4:48 PM
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The Supreme Court is the highest tribunal in the nation for all cases and controversies arising under the Constitution or the laws of the United States. The Court stands as the final arbiter of the law and guardian of constitutional liberties and I have faith that they'll help us!
I share your faith, but it's become well-tempered. I always said back in the eighties that if the right case ever made it to the SCOTUS, they would do the right thing. I never dreamed it would take almost 30 years and be decided 5-4.
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Old 12-15-2010, 4:52 PM
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Quote:
Originally Posted by krucam View Post
Was Judge Gonzalez "just following the rules" of a District Court Judge, and if so, shouldn't we expect this at the Circuit Level as well?

I posted the following on my 'home' thread on the 7th Circuits ruling in McDonald last year.


Must the District and Circut follow Supreme Court dicta? If so, are we stuck with "In the Home" until a revisit to the Supreme Court??
They're supposed to take SCOTUS dicta very seriously, however, SCOTUS never said the 2A is strictly confined to the home. However, the 3rd Circuit in Marzarella said that lower courts need to do an analysis when 2A issues not ruled upon in Heller come up. This would mean they have to look outside Heller/McDonald and check state cases like Nunn and Chandler. In Peruta, she did reference those cases. Unfortunately, since only CCWs were at stake, she could simply pass it off as "presumptively lawful." A closer look at CA's law compared with Nunn/Chandler would have found the obvious difference-LOC vs. UOC.

As far as getting a case to SCOTUS, my hunch is they may choose not to look at the first case in line(which theoretically would be Peruta), instead let a circuit split happen.
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Old 12-15-2010, 5:33 PM
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But still, the loosing state attorney would appeal to the Supreme Court of the United States.
I might be wrong but I don't see much reason for San Diego attourneys to appeal a loss in the 9'th. The antis don't want gun issues getting to SCOTUS while the Heller 5 are there.

Maybe I'm too optimistic but I think the Peruta ruling is on shaky ground and the panel we get in the ninth might not want to be reversed enough to actually rule the right way.
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Old 12-15-2010, 6:04 PM
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The Palmer district court judge I think is playing the same game of "delay getting it to SCOTUS".
I doubt it, see this thread, he's still releasing rulings from cases filed 6 months before Palmer so I think he's just back-logged. He's known to be a very detail-oriented judge on civil rights cases, going into a level of detail far beyond what the case requires.

If he ever gets around to releasing Palmer, I bet it will be a tome of pro-carry citations and references from the last 230+ years.
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Old 12-15-2010, 6:47 PM
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I doubt it, see this thread, he's still releasing rulings from cases filed 6 months before Palmer so I think he's just back-logged. He's known to be a very detail-oriented judge on civil rights cases, going into a level of detail far beyond what the case requires.

If he ever gets around to releasing Palmer, I bet it will be a tome of pro-carry citations and references from the last 230+ years.
Let's hope so. Good to know what actually is going on here, as we were left to speculate what was going on.
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Old 12-15-2010, 7:25 PM
Untamed1972 Untamed1972 is offline
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Originally Posted by djandj View Post
Yep - the Federal law just isn't there to support shall issue or to make the connection between 2A and carrying on the street. The Heller Court was very careful to make it's holding ONLY applicable to home protection, ONLY to pistols and ALWAYS subject to "REASONABLE" state restrictions. Anyone who read Heller or any decision to date to hold that states can't place some restrictions on firearms ownership and carrying is not well read in the law at hand.

This particular argument has no traction and will not get anywhere. We're better off sticking with possession in the home etc.

Can you please direct me to exactly where in the actual Heller decision that the phrase "ONLY in the home" was used?
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Old 12-15-2010, 7:44 PM
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How is this a good thing? I thought the clued folks were hoping to take a much stronger case than Pertua before the 9th?
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Old 12-15-2010, 7:54 PM
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Well, I hope things go better w/the justices of the 9th than they did w/the district judge.

When would we expect a ruling from the 9th (or, after Nordyke I should say, the first ruling from the 9th): sometime before summer 2012? before 2012?
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Old 12-15-2010, 9:25 PM
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I hope this goes to SCOTUS.
I'll take it either way. I don't plan on living anywhere other than the west coast, but I'd also be happy to see the rest of the country get carry rights.
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Old 12-15-2010, 9:29 PM
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Old 12-15-2010, 10:49 PM
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Quote:
Originally Posted by Kharn View Post
I doubt it, see this thread, he's still releasing rulings from cases filed 6 months before Palmer so I think he's just back-logged. He's known to be a very detail-oriented judge on civil rights cases, going into a level of detail far beyond what the case requires.

If he ever gets around to releasing Palmer, I bet it will be a tome of pro-carry citations and references from the last 230+ years.
Thanks a bunch for your post. That explains a lot about the status of Palmer

Quote:
Originally Posted by wash View Post
I might be wrong but I don't see much reason for San Diego attourneys to appeal a loss in the 9'th. The antis don't want gun issues getting to SCOTUS while the Heller 5 are there.
The decision to appeal does not belong to the attorneys. It belongs to sheriff Gore. We know from past dialog that he doesn't believe that we have a right to carry. How deep do his feelings go on the subject? That is anyone's guess.

Quote:
Originally Posted by CharAznable View Post
How is this a good thing? I thought the clued folks were hoping to take a much stronger case than Pertua before the 9th?
Ed's case is a Second Amendment challenge and a right to carry case. As such the question must be answered. "Does the Second Amendment encompass a right to carry a loaded firearm in public for the purpose of self defense? I suppose that the 3-judge panel can answer the question either correctly or incorrectly and it can be further appealed if necessary.
There are simpler Second Amendment challenge cases out there but I don't think Ed's case is a bad one.

I am much more worried about the two Gorski cases in the 9th circuit. Rothery v. Sacramento (Stayed until Jan. 21, 2011) and Mehl v. Blanas which has been withdrawn from submission pending the decision in Nordyke.

At some point someone will have to explain to me how the Gorski cases will affect the other carry cases currently in motion.
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