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2nd Amend. Litigation Updates & Legal Discussion Discuss California 2A related litigation and legal topics here. All advice given is NOT legal counsel.

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  #81  
Old 04-14-2011, 10:24 PM
bigstick61 bigstick61 is offline
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Then theres the whole array of people who injure themselves to claim DV, and the outright liars, and similar who were never touched.

The worst of this is the massive gender bias. Women strike men and the men are expected to shrug it off or "man up" and not press charges. They're also held to a lesser punishment in a majority of cases, even when their actions are more aggregious than some taken by men. The equal protection amendment is looked at as a joke when considering equal sentencing between men and women. This is wrong. Same crime should mean same time.
I disagree with equality before the law in this sense. Equal outcomes do not necessarily entail just outcomes for each individual case. I believe the sounder principle is that of suum cuique, to each his due. I also subscribe to the maxim that one law for the lion and the ox is oppression.

That said, the DV area seems to be really screwed up and produces many unjust outcomes. IMO the suspension of rights to such a degree is not something that in the case of a misdemeanor is warranted; to impose even a temporary restriction of this severity outside of incarceration, house arrest, etc. (to the extent said punishments are reasonable and just) is grossly unjust. I would say it is the case for many felonies as well as such a punishment does not fit the crime (although I think many things that are felonies should more appropriately be classified as misdemeanors). The punishment only fits violent and certain other crimes of considerable severity, many of which either are or should be punished by a life imprisonment or death sentence (although not in all cases).
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  #82  
Old 05-02-2011, 1:36 PM
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Hi,any updates on this matter?How long could this case take?
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  #83  
Old 05-02-2011, 3:29 PM
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I'm not going to say it.
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  #84  
Old 05-02-2011, 3:31 PM
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I'm not going to say it.
I think I know what you aren't going to say.
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  #85  
Old 05-02-2011, 3:44 PM
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Hi,any updates on this matter?How long could this case take?
TWO YEARS!!!
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  #86  
Old 05-02-2011, 4:09 PM
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So instead of a man saying "I moved her out of the way so I could leave" and instead invoking his right to remain silent would he still be arrested and convicted. Or would it be dropped because it was a he said- she said and there were no marks or other incriminating evidence to go by?
Yeah, whenever the police are brought to a situation that you're involved with, REMAIN SILENT. The police themselves do this. When an officer is involved in a shooting, he gets a lawyer before he makes any statement about it. If they do it, we should all do it! If the police are there to investigate a situation and you're part of that situation, KEEP YOUR TRAP SHUT, except to say, "officer, I understand you're doing your job, but I need to speak with my attorney before I can make any statement to you." If it's a self-defense shooting you could say more, like, "I acted in self defense. He broke into my house and I feared for my life. I will need to speak to my attorney before I say anything further."
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  #87  
Old 05-02-2011, 9:21 PM
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Yeah, whenever the police are brought to a situation that you're involved with, REMAIN SILENT.
Only goes so far and it can backfire in a DV investigation. Many years ago my wife and I were in a big argument and I wanted to leave. She blocked the door so I moved her out of the way (seems a DV for me). After leaving, she ran after me and told me to go back into the house and "talk about it". I was too heated to do anything but go for a walk and cool down. After telling her no, I started to walk away and she grabbed my shirt. After some more yelling outside, we went back in. Well, a short time later there was a knock on the door and guess who was there? They invited themselves in and started asking what the yelling was about, etc.. I told them I had nothing to say and I wanted them to leave. They said no and they had to make sure no one was injured. My wife comes out of the bedroom and they ask her if she is hurt. She says no and they ask me again what happened. I said I wasn't going to talk to them and so they ask her what happened. They asked what the mark on my neck was from (the pulling of my shirt) and she said; "I did that." You know what happened then - click go the bracelets and off to jail she goes. I demand a supervisor and after one arrives, I said she can't go to jail because "I did it". I was told to my face I was lying and they brought her to the car even though I told them I pushed her first, I wasn't pressing charges, I demand she stay home, etc.. I bailed her out and when it came time for her court hearing, they didn't have her on the docket. The court clerk said the DA had a year to file and luckily never did. The arrest came up when she applied for US Citizenship and we had to jump through another set of hoops to "prove" to the INS that she never was convicted of anything.

I have friend who did basically the same as above, but he got convicted and luckily didn't loose his security clearance. I understand a probationary period of non-rights, but their needs to be relief at some point. I remember when the law went into effect and many cops nationwide lost their jobs. If you want to take away someones gun rights, the conviction needs to be a felony. If it isn't, then it isn't serious enough.
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  #88  
Old 05-02-2011, 10:20 PM
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I disagree with equality before the law in this sense. Equal outcomes do not necessarily entail just outcomes for each individual case. I believe the sounder principle is that of suum cuique, to each his due. I also subscribe to the maxim that one law for the lion and the ox is oppression.
I do believe the punishment should fit the crime. And if the crime is "domestic violence" why is there such a disparity? Just because someone can get weepy and emotional at trial, or is rich, or is famous is no reason they should be given a lesser punishment.

I would love it if this DV crap could be straightened out so that attempting to escape or a non-violent laying of hands to defend yourself are NOT considered assaults.

I've personally known guys who were choked out or beaten bloody by their girlfriends. The cops told them to "man up" and wouldn't file their report. One of the guys went above the beat cops and got himself a report through a supervisor so that he could use it to gain custody of their kid. DV charges were still never filed against her.

Disparity in law is class/race/sexual/gender discrimination. The poor are far more likely to recieve a harsh sentence than the rich when the same crime is committed; is this not oppression? If you're talking about severity of the crime (Ox vs. Lamb), there's already a panoply of laws based on severity of attack, nature of attack, relation between attackers, actual pain inflicted, financial damages, amount of contraband, murder 1-2-3, manslaughter, homicide, negligent homicide, etc... The lamb may not do as much damage to your house if it ran into it; but they can both chew your flowers just as well.
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  #89  
Old 05-05-2011, 10:57 AM
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Default Docket is updated.

Lots of new info on Docket Today. I am amazed(although I shouldnt be) at the revised motion to dismiss. The Feds just ignore the basis of Kilmers arguement all together.
http://ia700300.us.archive.org/35/it...24.docket.html
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  #90  
Old 05-05-2011, 12:53 PM
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Lots of new info on Docket Today. I am amazed(although I shouldnt be) at the revised motion to dismiss. The Feds just ignore the basis of Kilmers arguement all together.
http://ia700300.us.archive.org/35/it...24.docket.html
I like the Defendants providing notice of additional authority in 17: http://www.archive.org/download/gov....15824.17.0.pdf

The new "authority" is of course, Nordyke. It gets better, they're conceding to the Enos Court what the Nordyke panel put out...that being:

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In that case, the Ninth Circuit rejected plaintiffs’ contention that strict scrutiny should apply to all gun-control regulations and held that heightened scrutiny applies only when a gun-control regulation substantially burdens the right to keep and to bear arms for self defense. 2011 WL 1632063, at *3. The Ninth Circuit concluded that plaintiffs had failed to allege sufficient facts that an Alameda County ordinance making it a misdemeanor to possess a firearm or ammunition on county property substantially burdened their right to keep and bear arms, but......
The one Golden Nugget from Nordyke, and here the Defendant's give the Enos court the one thing that will kill their own case.

If a life-long firearm prohibition isn't a "substantial burden" to the right to keep and bear arms, what is?
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  #91  
Old 05-05-2011, 2:13 PM
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I like the Defendants providing notice of additional authority in 17: http://www.archive.org/download/gov....15824.17.0.pdf

The new "authority" is of course, Nordyke. It gets better, they're conceding to the Enos Court what the Nordyke panel put out...that being:



The one Golden Nugget from Nordyke, and here the Defendant's give the Enos court the one thing that will kill their own case.

If a life-long firearm prohibition isn't a "substantial burden" to the right to keep and bear arms, what is?
That was my question also.
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  #92  
Old 05-07-2011, 10:57 AM
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IMO if the crime was bad enough to take away gun rights for life, the state needs to call it a felony. If it wasn't bad enough to be a felony then it wasn't bad enough to take away a fundamental right.
Well put.
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  #93  
Old 05-07-2011, 11:01 AM
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If it isn't a capital offense it's not bad enough to strip the right to life.
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  #94  
Old 05-07-2011, 4:45 PM
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IMO if a man got in trouble at 18 and got a felony, but is now 40 with kids to protect and a lawful member of society, why is he denied a basic right?

Either your debt to society is repaid or it isn't, don't create a second class citizen for life.

As a reasonable approach, I say that after a person finishes parole, if they go five years without committing any crimes, they should be able to buy guns again.
(Theoretically I think it should be immediately after parole is done, just make parole longer. But that will never fly).
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  #95  
Old 05-07-2011, 4:51 PM
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Originally Posted by RyanAnchors View Post
IMO if a man got in trouble at 18 and got a felony, but is now 40 with kids to protect and a lawful member of society, why is he denied a basic right?

Either your debt to society is repaid or it isn't, don't create a second class citizen for life.

As a reasonable approach, I say that after a person finishes parole, if they go five years without committing any crimes, they should be able to buy guns again.
(Theoretically I think it should be immediately after parole is done, just make parole longer. But that will never fly).
I know someone in close to that situation. Many people were present when the "crime" took place and you would be amazed at what he lost an "unalienable" right for.
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  #96  
Old 05-07-2011, 8:30 PM
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I know someone in close to that situation. Many people were present when the "crime" took place and you would be amazed at what he lost an "unalienable" right for.
Sadly, I wouldn't be amazed in the least bit if he was jaywalking. So whatever actually happened won't shock me either...these things need to change.
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  #97  
Old 05-09-2011, 10:25 AM
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New reply by Kilmer on Docket. Kilmer takes the time to explain to the Feds what this case is about, since the feds have failed to understand it so far.
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  #98  
Old 05-09-2011, 4:43 PM
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New reply by Kilmer on Docket. Kilmer takes the time to explain to the Feds what this case is about, since the feds have failed to understand it so far.
Thank you for the update.

The Madison Society could use donations to help with this case.
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  #99  
Old 05-09-2011, 7:05 PM
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Getting ready to post the following at TFL, but since I happen to be here, you folks get it first.

As you may remember, the Nordyke decision came out last Monday (05-02-2011). The defense in Enos v. Holder immediately submitted two Notices of Supplemental Authority, citing Nordyke (05-03-2011, #17 on the Docket) and Booker (#18 on the Docket), a criminal case from the 2nd Circuit, also filed on Monday the 2nd.

The court held a hearing on the 4th and ordered supplemental briefs from both sides (#19 on the Docket):

Quote:
2011-05-04 19 0 MINUTES (Text Only) for proceedings held before Judge John A. Mendez: MOTION HEARING held on 5/4/2011 re 11 MOTION to DISMISS filed by Robert Mueller, III, Eric Holder, MOTIONS SUBMITTED: Further briefing, limited to 5 pages, to be filed by 5/11/11 and 5/18/11. Order to be prepared by Court in due course. Plaintiffs Counsel D. Kilmer present. Defendants Counsel E. Olsen present. Court Reporter: K. O'Halloran. (Vine, H) (Entered: 05/04/2011)
Donald Kilmer must have been ready for this, as on the 6th, he filed his reply brief (which wasn't due until the 11th, btw). Since the defense brought up both Nordyke and Booker, Mr. Kilmer shows exactly how they can not be used as any kind of defense.

In Nordyke, Kilmer writes:

Quote:
C. Nordyke does not advance the discussion in Enos v. Holder because the federal statutes at issue impose a complete ban on all of the Enos Plaintiffs’ rights associated with the Second Amendment. In other words, 18 U.S.C. §§ 922(d)(9) and 922(g)(9) are not mere “burdens” that make gun ownership/possession more difficult or more expensive, these statutes (1) prevent the lawful transfer of a firearm at the point of sale to any person convicted of misdemeanor crimes of domestic violence, and (2) if found in possession, these misdemeanants are subject to arrest, prosecution and felony conviction. This statutory scheme places the Enos Plaintiffs in the exact same position as the plaintiff in District of Columbia v. Heller, 554 U.S. 570 (2008), wherein the Supreme Court found that a complete ban offends the Second Amendment under any level of scrutiny. Heller at 628 et seq.

D. More to the point, the Enos Plaintiffs are not making a facial constitutional challenge of 18 U.S.C. § 922(d)(9) and/or § 922(g)(9), unless the rights restoration procedures under 18 U.S.C. § 921(a)(33) are definitively interpreted to mean that there is a life time ban on exercising the fundamental rights secured by the Second Amendment.
In regards Booker, Kilmer writes:

Quote:
C. This is a case about the restoration of rights, it is not about the definition of misdemeanor crime of domestic violence – or the initial consequences (loss of gun rights) upon conviction of a misdemeanor crime of domestic violence.
There is more, of course, but Mr. Kilmer makes the defense look rather dumb for bringing notices about cases that do not help them at all. If anything, Nordyke helps the plaintiffs, as in the (paraphrased) words of the Nordyke panel, 18 U.S.C. § 922(d)(9) and/or § 922(g)(9) do much more than "burden" the core right, it bans the right altogether. Booker, on the other hand, is a complete wash. It has no bearing at all.

I can't imagine how the the defense is going to spin these, so I guess we will wait and see, on or about the 18th of May.
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Last edited by Al Norris; 05-09-2011 at 9:24 PM.. Reason: minor corrections
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  #100  
Old 05-09-2011, 9:01 PM
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Originally Posted by Al Norris View Post
Getting ready to post the following at TFL, but since I happen to be here, you folks get it first.

As you may remember, the Nordyke decision came out last Monday (05-02-2011). The defense in Enos v. Holder immediately submitted two Notices of supplemental Authority, citing Nordyke (05-03-2011, #17 on the Docket) and Booker (#18 on the Docket), a criminal case from the 2nd Circuit, also filed on Monday the 2nd.

The court held a hearing on the 4th and ordered supplemental briefs from both sides (#19 on the Docket):



Donald Kilmer must have been ready for this, as on the 6th, he filed his reply brief (which wasn't due until the 11th, btw). Since the defense brought up both Nordyke and Booker, Mr. Kilmer shows exactly how they can not be used as any kind of defense.

In Nordyke, Kilmer writes:



In regards Booker, Kilmer writes:



There is more, of course, but Mr. Kilmer makes the defense look rather dumb for bringing notices about cases that do not help them at all. If anything, Nordyke helps the plaintiffs, as in the (paraphrased) words of the Nordyke panel, 18 U.S.C. § 922(d)(9) and/or § 922(g)(9) do much more than "burden" the core right, it bans the right altogether. Booker, on the other hand, is a complete wash. It has no bearing at all.

I can't imagine how the the defense is going to spin these, so I guess we will wait and see, on or about the 18th of May.
Thank you Al. This is interesting.
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  #101  
Old 05-10-2011, 7:26 AM
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I know I shouldn't say this, because someone will take it the wrong way, but here goes. The Lautenberg amendment is my favorite anti gun law. Not because it is retroactive, or that you can lose your gun rights for life on a bs misdeamor charge ( I HATE those parts of the law), but because leos are not exempt. If we could get all laws involving guns to not exempt leos, we would win the gun control fight in less than six months. I AM NOT BASHING LEOS. I just think if all the leos had to go through what we have to go through, their unions would wield their considerable power and those laws would cease to exist.

Flame on!

Yea the safe handgun roster comes to mind. They can we can't, the police unions would have given support and pressure so the that bill would not have passed if they had to follow it.
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  #102  
Old 05-11-2011, 2:42 PM
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Originally Posted by Al Norris View Post
Getting ready to post the following at TFL, but since I happen to be here, you folks get it first.

As you may remember, the Nordyke decision came out last Monday (05-02-2011). The defense in Enos v. Holder immediately submitted two Notices of Supplemental Authority, citing Nordyke (05-03-2011, #17 on the Docket) and Booker (#18 on the Docket), a criminal case from the 2nd Circuit, also filed on Monday the 2nd.

The court held a hearing on the 4th and ordered supplemental briefs from both sides (#19 on the Docket):



Donald Kilmer must have been ready for this, as on the 6th, he filed his reply brief (which wasn't due until the 11th, btw). Since the defense brought up both Nordyke and Booker, Mr. Kilmer shows exactly how they can not be used as any kind of defense.

In Nordyke, Kilmer writes:



In regards Booker, Kilmer writes:



There is more, of course, but Mr. Kilmer makes the defense look rather dumb for bringing notices about cases that do not help them at all. If anything, Nordyke helps the plaintiffs, as in the (paraphrased) words of the Nordyke panel, 18 U.S.C. § 922(d)(9) and/or § 922(g)(9) do much more than "burden" the core right, it bans the right altogether. Booker, on the other hand, is a complete wash. It has no bearing at all.

I can't imagine how the the defense is going to spin these, so I guess we will wait and see, on or about the 18th of May.
That is some great stuff from Mr. Kilmer!
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Old 05-13-2011, 4:05 PM
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Default Question for the legal minds.

Lets see if I got this right. If after the 18th the motion to dismess is denied, then would case go to summary judgement? After reading all of Kilmers Briefs I see no disputed facts. Or would feds appeal denial before judgement is ordered? And would that hold up judges Ruling?
Also since Heller and McDonald shouldnt the Gov be fighting on behalf of the Constitution?
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  #104  
Old 05-13-2011, 4:12 PM
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Lets see if I got this right. If after the 18th the motion to dismess is denied, then would case go to summary judgement?
That's generally correct.

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  #105  
Old 05-13-2011, 4:22 PM
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That's generally correct.

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How long would that take?
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  #106  
Old 05-13-2011, 4:24 PM
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Default Thanks Gene

So if judge rules in favor of plantiffs would they be allowed at that point in time to purchase a firearm? And all those simularly situated to plantiffs?
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Old 05-13-2011, 4:30 PM
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How long would that take?
We all know the answer to that.
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  #108  
Old 05-13-2011, 4:42 PM
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We all know the answer to that.
Yes. I should have not asked that here.
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Old 05-13-2011, 4:58 PM
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How long would that take?




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Old 05-15-2011, 3:08 AM
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I like that post back there about losing rights should be a tall order. Yes, very much agreed. Bill of Rights is for everyone and shouldnt be taken lightly by the courts. In MY way, a DV case can be decided any way it will and then if there is a question of losing RIGHTS, it should be a separate case and hearings and decided on its own merits. There are lots of people i think shouldnt have a gun but its RIGHTS we are talking about, not priviledges. DRIVING is not a right, its a priviledge and gun RIGHTS or anything in all the amendments shouldnt fall in that category and not taken so lightly by the citizens or the courts.

One of the common threads as i read above is that the courts (and govt ) are pressing to separate the 2nd Amendment from the Bill of Rights in order to trample it. Indeed, even Obama has inferred that the govt should remove and stay out of the 2nd Amendment and lets the states handle their own gun laws which would be catastrophic to gun owners, the worst nightmare. (For those not catching this, it would mean that without the federal constitution to protect the right, states are now free to ban as they like and my guess is that 90% will). That, in the end is the real aim here and my advice is to stop rocking that boat by involving yourselves in DV cases in your houses and instead use that brawn and time and energy to push back against the tide coming against gun owners by forcing the govt to uphold the constitution in its complete form.
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Last edited by CharlesV; 05-15-2011 at 3:24 AM..
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Old 05-16-2011, 7:04 PM
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This is a rare chance to fight back. The Madison Society needs money to fight this. If everyone who felt like you donated some money to the cause we would be able to fix many of these problems.
clicked on your links..not working

Last edited by sreiter; 05-16-2011 at 7:19 PM..
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Old 05-16-2011, 8:24 PM
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clicked on your links..not working
http://www.madison-society.org/

All the info is posted there.
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  #113  
Old 05-18-2011, 5:21 PM
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So if judge rules in favor of plantiffs would they be allowed at that point in time to purchase a firearm? And all those simularly situated to plantiffs?
Thats a good question.Any experts here know the answer to this?
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Old 05-18-2011, 10:07 PM
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Thats a good question.Any experts here know the answer to this?
That's the point. Once you spend your 10 years prohibited, you would become un-prohibited on day 3651.

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Old 05-19-2011, 6:12 AM
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Default Maryland vs. Williams

In Maryland vs. Williams
"Although Williams attempts to find succor in this dicta, it is clear that prohibition of firearms in the home was the gravamen of the certiorari questions in both Heller and McDonald and their answers. If the Supreme Court, in this dicta, meant its holding to extend beyond home possession, it will need to say so more plainly."

OK using that Logic, Supreme Court clearly didnt mean for prohibitions on misdeaments to be included in their long standing prohibitions.

I cant for the likes of me understand why the intoduced Booker in the Enos case. It would never hold up in 9th circuit, The have constantly ruled in immagration casees regarding DV that statute cant include reckless behavior to be cause for deportation. Also with cases like Nobriga and Cisneros-Perez in the 9th circuit it makes Feds position even harder.
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Old 05-23-2011, 7:52 AM
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Hi does anyone know if the defendents filed a recent response? Thank you.
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Old 05-23-2011, 10:02 AM
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Hi does anyone know if the defendents filed a recent response? Thank you.
Yes, a supplemental brief was filed on Thursday. I just RECAP'd it.
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Old 05-23-2011, 12:24 PM
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Default The Proof is in the Pudding

"Nordyke has very limited application to the present case. Nordyke does not address what level
of scrutiny should be applied to gun statutes directed at felons and misdemeanants – persons who
manifestly are not “law-abiding, responsible citizens.” See Dist. of Columbia v. Heller, 554 U.S. 570,"
From the Gov. supplemental brief now on docket.

Where does Heller say Midemeanants arent law abiding citizens?
So if 15 years ago i got a speeding ticket in Nevada (a misdemeanor) I am no longer considered a law abiding citizen?
Even in this brief the feds still only address the constitutionality of 922(g)(9) and continue to ignore the basis of Kilmers arguement that its about the restoration of the right. I hope that the gun rights movement hears what the Feds are saying loud and clear " We want to take all your guns away no matter who you are"
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Old 05-23-2011, 1:24 PM
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OK, so I read that brief and still fail to see where the defendants are actually defending the points of the case at hand. Anybody else read this as the defendants know they have no argument, so they are trying to confuse the matter with cases that might be of a similar nature, but are irrelevant to the situation?

Am I wrong in my understanding of this: Aren't we arguing that after mdv conviction, AND after 10 years AND after expungement, rights would be restored. Our point is to gain rights back for those that are deserving, and have completed whats required to restore rights, not to allow people still within the 10 years to possess. This does not appear to be disputed thus far, the defendant's seem to be essentially saying none of the plaintiff's should own, but can't give a valid reason why not. Am I completely off basis here?
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Old 05-23-2011, 4:37 PM
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Default Law Abiding Citizens

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Originally Posted by otis_bartleh View Post
OK, so I read that brief and still fail to see where the defendants are actually defending the points of the case at hand. Anybody else read this as the defendants know they have no argument, so they are trying to confuse the matter with cases that might be of a similar nature, but are irrelevant to the situation?

Am I wrong in my understanding of this: Aren't we arguing that after mdv conviction, AND after 10 years AND after expungement, rights would be restored. Our point is to gain rights back for those that are deserving, and have completed whats required to restore rights, not to allow people still within the 10 years to possess. This does not appear to be disputed thus far, the defendant's seem to be essentially saying none of the plaintiff's should own, but can't give a valid reason why not. Am I completely off basis here?
I think your exactly right Otis
The only arguement I see the Feds making is that these plantiffs are not law abiding citizens. However I cant see that arguement flying, the times it has been used in other circuits the defendants had broken laws currently and in the past. The plantiffs here are seeking not to violate the law which should allow them to be considered a "Law abiding citizen"

Only legal matters i could find on the subject were:
1. Parolees are expected to be law abiding citizens
2. Illegal aliens as part of getting a visa or amnesty are required to be "law abiding citizens"

Note that both have in the past violated the law.

The one Plantiff whos conviction of 242 simple battery is being denied in clear violation of Law. The 9th circuit court has already said in Cisneros-Perez that 242 simple battery is not considered a crime of domestic violence. What about all those 273.5 convictions for roomates, relatives or casual dating relationships. How do they meet the statutory definition of similarly situated to a spouse?

As I posted earlier if misdeamenants are not considered "law abiding Citizens" then we all are in a lot of trouble. This concept being taken on by the courts needs to be shot down in a hurry before it makes bad precedent and becomes an excuse to violate all of our Civil rights.

Last edited by SunTzu; 05-23-2011 at 4:52 PM.. Reason: spelling add info
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