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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 04-23-2011, 3:31 PM
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Default (CO/10th Circuit) Peterson v. Martinez Official Appeal Thread

This will be the "official thread" for the appeal of in the district court decision of Peterson v. LaCabe. The case is now Peterson v. Martinez et al, United States Court of Appeals for the Tenth Circuit Case #11-1149.

As RECAP does not work on appellate courts, I will be posting .pdf files in this thread.

As an aside, I wish to give my thanks to those who have supported, both in spirit and financially, to the case, and give the greatest thanks to the CalGuns Foundation for supporting this critical litigation going upwards to the 10th Circuit. When Judge Miller made his decision quicker than expected and we needed to go up to the Tenth Circuit, CGF stepped in order to keep the litigation going up to the appellate level.

UPDATE 12/17/2011: All pertinent Appellate Files are now uploaded to the following location to save you money looking at PACER. Also, for your convenience, the MP3 file of the oral argument is uploaded there for your listening.

Peterson Appeals Folder

Also, I took a few hours tonight to do an unofficial transcription, for the folks here who are more readers than listeners. It is attached to this post as "Peterson v. Martinez Unofficial Transcript" in pdf format...
Attached Files
File Type: pdf 11-1149_Documents.pdf (195.5 KB, 267 views)
File Type: pdf PetersonvMartinezUnOfficialTranscript.pdf (70.0 KB, 92 views)

Last edited by Gray Peterson; 09-09-2012 at 6:56 PM..
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Old 04-23-2011, 5:03 PM
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I have high hopes, and feel strongly that you will prevail in this case.

I think you said 10 months to a hearing?

Is it possible that you get a MSJ in your favor without the need for a hearing?

Erik.
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Old 04-24-2011, 8:34 AM
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Bump so this doesn't drop off so soon (being honest, since it's Easter Sunday ), but to also advise all;

I've modified my signature to link Peterson to this thread rather than the Archive page, that way a search doesn't need to be done for access, all they have to do is click on Peterson v. Garcia.

And it looks like people can still donate to support your case.

Erik.

Last edited by Window_Seat; 04-24-2011 at 9:50 AM.. Reason: Linky get fixied
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Old 04-24-2011, 9:03 AM
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donate to support your case

Linky no worky
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Old 04-24-2011, 9:09 AM
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Filed Jan 2010??? I had no idea this had been going on for that long! Looking forward to the progress.
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Old 04-24-2011, 9:38 AM
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good thing they stepped in and appealed quick. That way the right cases make it up the ladder asap instead of crappy cases.
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Old 04-24-2011, 9:50 AM
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Quote:
Originally Posted by Maestro Pistolero View Post
Fixied!
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Old 04-24-2011, 10:44 AM
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I have high hopes, and feel strongly that you will prevail in this case.

I think you said 10 months to a hearing?

Is it possible that you get a MSJ in your favor without the need for a hearing?

Erik.
MSJ's are not issued by appellate courts. They are a court of reversal of legal and factual errors, essentially. What would happen is an order of reversal, essentially directing the lower court to issue an MSJ after coming to their legal conclusions of the proceedings.

As for "10 months to a hearing". Try "4 to 6 months" (oral argument will occur either in September 12th week or November 14th week).

Thinking about the scenarios here, the potential of a Williams v. State of Maryland cert grant might hold things up at some point. We will, however, proceed as normal and assume an upward trajectory. I am not actually hopeful for a Tenth Circuit win because not one lower court in the federal system has gotten the carry issue correct. I think really think that either as a first civil SCOTUS case for carry, or the map up for non-residency, both issues will be a "5 of 9" situation.
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Old 04-24-2011, 10:57 AM
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Is a SCOTUS case the ultimate game plan, or does the team just want a win and are ok with it being in a lower court?
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Old 04-24-2011, 3:32 PM
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Is a SCOTUS case the ultimate game plan, or does the team just want a win and are ok with it being in a lower court?
The loser of a case at appeal controls whether or not an appeal is filed.

Given that I lost in district court, it was I who could appeal upwards to the Tenth Circuit.

If any of you remember the Parker case in 2007 in the DC Circuit. We won that one. There was a big question of whether or not DC would appeal to the Supreme Court. They attempted to get it up to en banc, but they were smacked down 6-4.

Though the Brady Campaign, Mayor Daley, and numerous others were begging DC not to appeal, Mayor Fenty decided to appeal because politically, a strike down of the handgun ban without taking EVERY available option was not in political cards for Mayor Fenty. Whereas the power brokers of the gun control movement wanted him to not appeal, the local politics did not support the last ditch effort. Fenty appealed, and the rest is history.

It's possible that we could win in the Tenth Circuit, and Colorado/Denver will not appeal to the SCOTUS. If we lose though, a SCOTUS appeal is in the cards, and yes it's being tee'd up for it.

Last edited by Gray Peterson; 04-24-2011 at 3:36 PM..
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Old 04-24-2011, 3:40 PM
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Refresh my memory, the goal is one of two things: Either Denver must allow OC like the rest of CO, or, non-residents must be allowed to get a CO CCW. The odd CO law not honoring non-resident(3rd party) is not in play, as this would moot the case but provide little in the way of a usable precent. Is this correct?
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Old 04-24-2011, 3:51 PM
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Originally Posted by Gray Peterson View Post
The loser of a case at appeal controls whether or not an appeal is filed.

Given that I lost in district court, it was I who could appeal upwards to the Tenth Circuit.

If any of you remember the Parker case in 2007 in the DC Circuit. We won that one. There was a big question of whether or not DC would appeal to the Supreme Court. They attempted to get it up to en banc, but they were smacked down 6-4.

Though the Brady Campaign, Mayor Daley, and numerous others were begging DC not to appeal, Mayor Fenty decided to appeal because politically, a strike down of the handgun ban without taking EVERY available option was not in political cards for Mayor Fenty. Whereas the power brokers of the gun control movement wanted him to not appeal, the local politics did not support the last ditch effort. Fenty appealed, and the rest is history.

It's possible that we could win in the Tenth Circuit, and Colorado/Denver will not appeal to the SCOTUS. If we lose though, a SCOTUS appeal is in the cards, and yes it's being tee'd up for it.

Exactly I thought. We shall know...in
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Old 04-24-2011, 7:24 PM
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Default Some Clarification.

This case is more than just 2nd amendment, it is 9th amendment(right to travel) and equal protection(14th amendment).

Let's step back for a minute and forget the 2nd amendment.

Colorado's law discriminates against people strictly based on their state of residence.

A California resident cannot CCW legally in Colorado because Colorado doesn't recognize California CCW permits and if that Californian had a Utah or FLorida permit, those would be no good either even though Colorado will recognize permits issued by Florida or Utah for their state residents.

Could this case hit the SCOTUS, who knows. If it does, it opens alot of issues.

The 4 justices who can't seem to read the 2nd amendment might do better on the 14th amendment.

Nicki
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Old 04-25-2011, 12:46 AM
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@nicki...."A California resident cannot CCW legally in Colorado because Colorado doesn't recognize California CCW permits and if that Californian had a Utah or FLorida permit, those would be no good either even though Colorado will recognize permits issued by Florida or Utah for their state residents."....what the hell! That doesn't make any sense. Oh these damn laws.
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Old 04-25-2011, 2:13 AM
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@nicki...."A California resident cannot CCW legally in Colorado because Colorado doesn't recognize California CCW permits and if that Californian had a Utah or FLorida permit, those would be no good either even though Colorado will recognize permits issued by Florida or Utah for their state residents."....what the hell! That doesn't make any sense. Oh these damn laws.
Gray may have to answer this, because if I recall they didn't pursue that particular angle. I suspect that, yes, it would have forced CO to honor non-resident reciprocal permits, but in the 2A "master plan" by doing this wouldn't move the ball forward(getting all states to go shall-issue and issue to non-residents). It would affect only CO, and be persuasive against SC, due to the fact that SC, like Denver, outlaws OC, and like CO requires a permit for CCW and honors only specific resident permits, and doesn't generally issue to non-residents.
The stupid lawmakers' intent in CO was to simply have CO residents carry only on a CO permit, but sloppily wrote the law so now non-residents are also affected. I heard rumors NM was also thinking about doing this as well. They can't seem to figure out that they can just single out their own residents for this rule and leave non-residents out, just like it is in many other states.
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Old 04-25-2011, 8:28 PM
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Originally Posted by press1280 View Post
Gray may have to answer this, because if I recall they didn't pursue that particular angle. I suspect that, yes, it would have forced CO to honor non-resident reciprocal permits, but in the 2A "master plan" by doing this wouldn't move the ball forward(getting all states to go shall-issue and issue to non-residents). It would affect only CO, and be persuasive against SC, due to the fact that SC, like Denver, outlaws OC, and like CO requires a permit for CCW and honors only specific resident permits, and doesn't generally issue to non-residents.
South Carolina, Denver (Colorado), New York, and Michigan are the only four jurisdictions with this particular problem.

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The stupid lawmakers' intent in CO was to simply have CO residents carry only on a CO permit, but sloppily wrote the law so now non-residents are also affected. I heard rumors NM was also thinking about doing this as well. They can't seem to figure out that they can just single out their own residents for this rule and leave non-residents out, just like it is in many other states.
In the early stages of this bill, I actually reached out to Senator Morse (the author of this bill and advised them of the consequences to the residents of the 22 states, and gave suggested language from Washington State and Arizona to fix the evil they were trying to address (which was Colorado residents using out of state licenses to avoid the local process). They made one change (people moving into Colorado have 90 days to change over to a Colorado license), but they completely ignored the rest of my suggestions.
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Old 04-26-2011, 12:10 AM
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Denver had [has?] its own crazy set of laws when i lived there 7 yrs ago. Like if you lived in Denver, you couldn't buy a AW, but the rest of Co you could. IIRC, you need a DENVER CCW to CCW in Denver, and be a resident of Denver to get a Denver CCW or something like that.

The good news though, is if you have a face, you can get a Denver CCW. Clean background check, proof you're a resident, a CCW course. Very minimal.



There was a law suit against denver because people driving through denver would become criminals for some gun related something (i thought it was ccw, maybe a AW), but because it was legal in the rest of CO, it was like "people driving through might miss the city limit.

Anyway, I know Denver, has/had its own unique set of bazaar laws that needed to be dealt with.
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Old 04-26-2011, 12:24 AM
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Originally Posted by Gray Peterson View Post
South Carolina, Denver (Colorado), New York, and Michigan are the only four jurisdictions with this particular problem.



In the early stages of this bill, I actually reached out to Senator Morse (the author of this bill and advised them of the consequences to the residents of the 22 states, and gave suggested language from Washington State and Arizona to fix the evil they were trying to address (which was Colorado residents using out of state licenses to avoid the local process). They made one change (people moving into Colorado have 90 days to change over to a Colorado license), but they completely ignored the rest of my suggestions.
i don't see how that would have changed anything for residents that wasn't VERY EASILY remedied.

if you live there, you have some form of ID as proof. IIRC a out of state CCW was enough to prove you had gone through CCW class. So it was just a question of finger print back ground check, fill out application (i dont remember if i brought in pic's or they took them).....

But the process took under a 1/2 at the police station. Actually, I think it took under 15 mins.

I don't see that being any more intrusive then, and less of a hassle then having to change your D/L when you move there.

I understand this fight is all about getting Co/Denver into reciprocity, and I'm all for it.

I just don't see how parker applies. Denver/Co has a very liberal shall issue CCW policy, thereby providing a mechanism for law abiding residents to carry a handgun in public for self defense

Sorry if I'm peeing on your parade, and truly don't mean to. Maybe I'm missing something here with respect to your post, not your case.

I get that your case hinges on equal protection clause now that the 2a is incorporated, you are trying to expand Mcdonald's "keep", to "BEAR".

Last edited by sreiter; 04-26-2011 at 12:48 AM..
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Old 04-26-2011, 12:44 AM
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question, is the wiki wrong, or I'm i reading the constitution wrong


"GeorgiaCarry.org v. Toomer is a cousin case filed against a county probate judge (who are the issuing authorities for firearms licenses in Georgia). Peterson differentiates from the GeorgiaCarry.org case due to the plaintiff applying for and being denied the license by Denver, and a denial of a license or registration is considered automatically an injury under Article III of the United States Constitution."

http://www.usconstitution.net/const.html

Article 3 - The Judicial Branch
Section 1 - Judicial Powers
Section 2 - Trial by Jury, Original Jurisdiction, Jury Trials
Section 3 - Treason

is this more applicable/what you mean?

Article IV - The States

Section 1 - Each State to Honor all others

Full Faith and Credit shall be given in each State to the public Acts, Records, and judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records and Proceedings shall be proved, and the Effect thereof.

Section 2 - State citizens, Extradition

The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.


Or more to the point, the 14a Equal protection?

Again, apologies if i'm missing something/totally misconstruing everything/don't understand one word i read

Last edited by sreiter; 04-26-2011 at 12:51 AM..
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Old 04-26-2011, 4:58 AM
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I just don't see how parker applies. Denver/Co has a very liberal shall issue CCW policy, thereby providing a mechanism for law abiding residents to carry a handgun in public for self defense
That's nice that Denver is a very liberal shall-issue carry policy. They don't issue to out of state residents (nor does any county in the state). That's the problem.

Residents are not effected by this lawsuit, except violations of their civil rights in the future would now be addressable in federal court rather than just purely state court, especially if we win in the 10th Circuit.
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Old 04-26-2011, 7:40 AM
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That's nice that Denver is a very liberal shall-issue carry policy. They don't issue to out of state residents (nor does any county in the state). That's the problem.

Residents are not effected by this lawsuit, except violations of their civil rights in the future would now be addressable in federal court rather than just purely state court, especially if we win in the 10th Circuit.
Can you elaborate on what these future civil rights violations the residents will endure could be?

And doesn't their have to be a injured party to bring suit?
if their civil rights haven't been issued yet, how can you sue?

i'm just trying to understand what the legal concepts you have for the suit.

So again, is this a 14a case?

Are you claiming their is con law/concept which mandatory states MUST afford non-residents the right to carry?

Wouldn't we need a law that all state must allow their own citizens first? If all states don't allow all lawful citizens to carry, how can you expect states be force into reciprocity?

That would create case of someone who resides in cali, with a non-resident Fla card, to carry in CO. but not in their home state. not exactly a uniform "equal protection" law

Also, arent their restriction on non-res permits vs res permits, in the issuing states?

thanks

Last edited by sreiter; 04-26-2011 at 8:10 AM..
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Old 05-02-2011, 12:27 AM
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Can you elaborate on what these future civil rights violations the residents will endure could be?

And doesn't their have to be a injured party to bring suit?
if their civil rights haven't been issued yet, how can you sue?

i'm just trying to understand what the legal concepts you have for the suit.

So again, is this a 14a case?

Are you claiming their is con law/concept which mandatory states MUST afford non-residents the right to carry?

Wouldn't we need a law that all state must allow their own citizens first? If all states don't allow all lawful citizens to carry, how can you expect states be force into reciprocity?

That would create case of someone who resides in cali, with a non-resident Fla card, to carry in CO. but not in their home state. not exactly a uniform "equal protection" law

Also, arent their restriction on non-res permits vs res permits, in the issuing states?

thanks
I can't believe I missed this post. Sorry, let me answer your questions in turn.

First is that this isn't a "future civil right" nor is it a matter of "the civil right hasn't been issued". This is a case of first impression on a burgeoning constitutional doctrine which already pre-exists, but is not recognized yet by the courts in the way that it should.

Let's take Heller, for example. Originally, the case was called Parker v. District of Columbia Heller gave us three answers to the age old question of what 2A means. They determined, in a narrow fashion, four things: There is a right to keep and bear arms by individuals, that the city could not ban the registration of handguns, nor could they ban carrying of one's gun or loading of one's gun in the home for the purpose of self defense.

Heller then went on to describe the contours of the right, much to many people's surprise.

The Parker case was truly a case of first impression, basically asking the basic question of whether a city could do what they did, and the Supreme Court ruled no.

McDonald followed the same path for the 14th amendment application of it to the states.

"Is there a right to carry a functional firearm outside of the home?". All of the rest of the questions, from affording to non-residents the ability to carry, flow from this very basic question. If my case ends up in the Supreme Court, that is the question SCOTUS will answer, along with instructions to the lower courts on how to rule on these issues. The lower courts are generally doing their own thing and essentially kicking the cases upstairs, using flawed logic of their own because they didn't get a Roe v. Wade-style wide pronouncement on the issues.

Originally it was solely going to be PorI with 2A thrown in, but the posture of the Colorado Attorney General's office has made this entire thing purely about 2A.

If Peterson v. Garcia makes it to the Supreme Court, and rules in our favor on that basic question of if there's the ability to carry outside of the home, and they use the critical words "strict scrutiny", it'll help you folks in California, too.
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Old 05-02-2011, 7:27 AM
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I can't believe I missed this post. Sorry, let me answer your questions in turn.

First is that this isn't a "future civil right"

Let's take Heller, for example. Originally, the case was called Parker v. District of Columbia Heller gave us three answers to the age old question of what 2A means. They determined, in a narrow fashion, four things: There is a right to keep and bear arms by individuals, that the city could not ban the registration of handguns, nor could they ban carrying of one's gun or loading of one's gun in the home for the purpose of self defense.
thanks for the response.


2 small points..... here you say "First is that this isn't a "future civil right""...however, if you look at my post. i quote you say this is about some future civil right. ....

2nd - heller said nothing of "bear", only keep, in the home.

I hope you prevail, and i'm behind you 100%. I donate to the CGF.

IANAL, my personal view is your case is too broad in scope. I think we need bear in the state you live before we go after reciprocity, especially for non-residents, as i feel it would be to easy to argue "you dont have the right to carry in the state you live". I think that argument is a very compelling one when talking about PoI, or anything to do with citizens of one state being treated as equals of another. Co is affording you the exact same rights as you would find in Ca.

i guess my thinking is more in line with HR822


I hope you're right right and I'm wrong.

best of luck

Last edited by sreiter; 05-02-2011 at 7:34 AM..
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Old 05-02-2011, 8:38 AM
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Good points, but I think that Gray and company are working at a pretty strategic level. I'm not sure exactly how this ties into everything else that is going on, but Peterson v Garcia seems likely to be of significance at the national level in ways that may not be immediately apparent.

I don't even bother to track exactly how or why. Gray and company are very sharp operators and I'm happy to leave the lead to them on these things. My expertise is elsewhere.
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Old 05-02-2011, 9:28 AM
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IANAL, my personal view is your case is too broad in scope. I think we need bear in the state you live before we go after reciprocity, especially for non-residents, as i feel it would be to easy to argue "you dont have the right to carry in the state you live". I think that argument is a very compelling one when talking about PoI, or anything to do with citizens of one state being treated as equals of another. Co is affording you the exact same rights as you would find in Ca.
There are a few problems here.

Gray resides in WA, his case is in CO. Both states are shall issue, so the argument "you don't have the right to carry in the state you live" doesn't come up in this case.

We don't really need to get shall issue in all 50 for residents first to then go after non residents. We need a clarified definition of the right. If SCOTUS says that 2A confers a right to carry for non-prohibited individuals for example, that right can not then be hinged on staying within the confines of your state of residence.

As to the statement that "Co is affording you the exact same rights as you would find in Ca." The 10th circuit doesn't care, neither does SCOTUS. CO won't be making the argument "but.. but.. but California does it!"

ETA: Please don't misconstrue this as me arguing on Gray's behalf as its not my place to do so, these are simply my opinions.
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Last edited by Connor P Price; 05-02-2011 at 9:30 AM..
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Old 05-02-2011, 10:13 AM
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There are a few problems here.

Gray resides in WA, his case is in CO. Both states are shall issue, so the argument "you don't have the right to carry in the state you live" doesn't come up in this case.

We don't really need to get shall issue in all 50 for residents first to then go after non residents. We need a clarified definition of the right. If SCOTUS says that 2A confers a right to carry for non-prohibited individuals for example, that right can not then be hinged on staying within the confines of your state of residence.

As to the statement that "Co is affording you the exact same rights as you would find in Ca." The 10th circuit doesn't care, neither does SCOTUS. CO won't be making the argument "but.. but.. but California does it!"

ETA: Please don't misconstrue this as me arguing on Gray's behalf as its not my place to do so, these are simply my opinions.
You would actually be correct here. If it weren't for AG Suthers responses changing the posture of the litigation (AG Suthers being the CO Attorney General), this would have been more of a right to travel case.

Also, Legislation doesn't fix the underlying problem, and there may be litigation on HR822 which may cast doubt onto the law unless the basic question is asked: Is there a right to carry outside of the home.
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Old 05-02-2011, 6:42 PM
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There are a few problems here.

We need a clarified definition of the right. If SCOTUS says that 2A confers a right to carry for non-prohibited individuals for example, that right can not then be hinged on staying within the confines of your state of residence.
I'm looking at this from a article iv perspective. States are [supposed to be] sovereign. article iv goes on to say one state has to treat citizens of another state the same (expanded by the 14th).

This is at the core of the argument, IMO (IANAL), because the SCOTUS has not given us BEAR, only KEEP.

So it comes down to equal protection. How can you argue equal protection when not all states are equal in this regard.

Since there is no national reciprocity, and since all rights not reserved by the fed become reserved by the states, the states can enter into agreements with other states about reciprocity. They can choose who the want to deal with and who they don't.

Grey is using his non-res Fl permit, here, not his Wa permit, because no reciprocity between Wa and Co - which is still a argument. "Sorry, we don't have any agreements with Wa"

Now, if the strategy is too lose at every turn, and hope for cert., then i can see the rational. I just don't see any valid recourse/remedy for forcing a state to recognize a CCW from a state it doesnt want to.

Can you break down the legal argument as to what justification the case has merit?
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Old 05-02-2011, 6:48 PM
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i know i'm still focused on right to travel, even though you keep saying the AG changed the scope to 2a....but i can't think of a valid 2a argument, other then the "bear" section. And, maybe i'm not smart enough to see this as the "perfect" case to challenge bear at the SCOTUS level, again, IANAL, but from the few scotus case's i've read, etc. I don't know if this case rises to the level of being granted cert.



again, maybe i'm just not smart enough to be catching on.
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Old 05-02-2011, 9:17 PM
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I'm looking at this from a article iv perspective. States are [supposed to be] sovereign. article iv goes on to say one state has to treat citizens of another state the same (expanded by the 14th).

True, therefore CO has to treat residents of other states the same as it treats its own. Since CO is shall issue for residents, wouldn't one reasonably believe that this means they must be shall issue for non residents as well?

This is at the core of the argument, IMO (IANAL), because the SCOTUS has not given us BEAR, only KEEP.

True, they'll need to be the ones to give us BEAR if it is to be binding for the entire nation. Its possible that this case could be the one to do that.

So it comes down to equal protection. How can you argue equal protection when not all states are equal in this regard.

Since the suit is in Denver CO specifically, that is the only place that matters if one tries to make an equal protection claim. Denver is shall issue for its residents, it would be violating equal protection by not issuing to non residents. Other states not being equal holds no bearing on the argument as it applies to Denver's conduct. However this case is less about equal protection than it is about 2A

Since there is no national reciprocity, and since all rights not reserved by the fed become reserved by the states, the states can enter into agreements with other states about reciprocity. They can choose who the want to deal with and who they don't.

Very true. They can decide what states they would like to recognize. That doesn't mean they can deny people their fundamental right to armed self defense by virtue of the state they live in. For example, they can decide they don't to recognize CA permits, but that doesn't mean they can deny my rights there. They just have to recognize them another way (most likely by issuing me a non-res permit.)

Grey is using his non-res Fl permit, here, not his Wa permit, because no reciprocity between Wa and Co - which is still a argument. "Sorry, we don't have any agreements with Wa"

I believe this to be factually incorrect. Gray is asking for a non-resident CO permit.

Now, if the strategy is too lose at every turn, and hope for cert., then i can see the rational. I just don't see any valid recourse/remedy for forcing a state to recognize a CCW from a state it doesnt want to.

Cases are often designed for higher courts, they have to go through the lower ones before they get there. Your right that one probably cant force a state to recognize a permit from another (judicially, legislatively would be another story) but its quite likely that one could force a state to issue non-resident permits.

Can you break down the legal argument as to what justification the case has merit?
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Old 05-02-2011, 9:25 PM
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i know i'm still focused on right to travel, even though you keep saying the AG changed the scope to 2a....but i can't think of a valid 2a argument, other then the "bear" section. And, maybe i'm not smart enough to see this as the "perfect" case to challenge bear at the SCOTUS level, again, IANAL, but from the few scotus case's i've read, etc. I don't know if this case rises to the level of being granted cert.



again, maybe i'm just not smart enough to be catching on.
As far as the SCOTUS level? I like to think about it this way: Ignore preconceptions about right to travel, ignore state sovereignty, think strictly about 2A. SCOTUS would be deciding whether 2A grants a right to carry. Does it? If it does, will SCOTUS say that the right only applies when one is in their home state?

I say yes it does grant the right to carry. Assuming that it does, SCOTUS simply cant say that one only has that right in their state of residence. Depending on wording states would likely still be able to require licenses, and still decide what licenses to recognize. However they would have to allow some way to exercise the right, whether through reciprocity or through non-resident permits.

Admittedly this is a very brief, simple, and inexperienced analysis. The important thing to take away is that its less about right to travel than it is about 2A. Why is it the best? I can't say with any degree of certainty that it's the best, but its good, and Gray is a solid plaintiff. I don't have a deep enough understanding of all the cases working their way up to formulate an opinion as to which is best.
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Old 05-03-2011, 12:14 AM
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I'm looking at this from a article iv perspective. States are [supposed to be] sovereign. article iv goes on to say one state has to treat citizens of another state the same (expanded by the 14th).

True, therefore CO has to treat residents of other states the same as it treats its own. Since CO is shall issue for residents, wouldn't one reasonably believe that this means they must be shall issue for non residents as well?

Thats only half right. I do understand that the law was written to stop prejudice of a states citizens over that of another, especially in business. But, the other side is if you had a right in your state, you should be afforded the same rights in other states. There were several slavery cases that came up because in the SCOTUS because slave holders would travel to free states, and bring their slaves. The slaves brought suit that claimed, now thay i'm in a free state, i should be freed. they lost.

This is at the core of the argument, IMO (IANAL), because the SCOTUS has not given us BEAR, only KEEP.

True, they'll need to be the ones to give us BEAR if it is to be binding for the entire nation. Its possible that this case could be the one to do that.

which is what i'm wondering about. I think on its merits at the state/district level, it won't stand, but if the end game is SCOTUS, then who knows

So it comes down to equal protection. How can you argue equal protection when not all states are equal in this regard.

Since the suit is in Denver CO specifically, that is the only place that matters if one tries to make an equal protection claim. Denver is shall issue for its residents, it would be violating equal protection by not issuing to non residents. Other states not being equal holds no bearing on the argument as it applies to Denver's conduct. However this case is less about equal protection than it is about 2A

Fair enough. I would think it EP would only matter to residents.ie not being able to get a CCW in denver if you have blond hair. Why can't you get a non-resident D/L ? And before you say a CCW is a right,I would disagree with you. It's a policy. I didnt believe Denver shall issue is in the states constitution.


Since there is no national reciprocity, and since all rights not reserved by the fed become reserved by the states, the states can enter into agreements with other states about reciprocity. They can choose who the want to deal with and who they don't.

Very true. They can decide what states they would like to recognize. That doesn't mean they can deny people their fundamental right to armed self defense by virtue of the state they live in. For example, they can decide they don't to recognize CA permits, but that doesn't mean they can deny my rights there. They just have to recognize them another way (most likely by issuing me a non-res permit.)

exactly when was it established the people had the right to bear arms in public as being a fundamental right? As 2a advocates, evangelistic, etc., we like to believe that, thats what the framers had in mind, and thats what i believe they had in mind. However, this fight has been going on a long time, and sine the scotus hasnt ruled bear is ok, as in not one of the things that can be totally regulated against (such as sensitive places), I'm not going to go as far as to proclaim it a fundamental right in the eyes of the law. If it was well established, Gray wouldnt be in this fight


Grey is using his non-res Fl permit, here, not his Wa permit, because no reciprocity between Wa and Co - which is still a argument. "Sorry, we don't have any agreements with Wa"

I believe this to be factually incorrect. Gray is asking for a non-resident CO permit.

I was going off of Nicki's post. I thought he(apologies if you prefer to be called she) was speaking of Grays case specifically


Now, if the strategy is too lose at every turn, and hope for cert., then i can see the rational. I just don't see any valid recourse/remedy for forcing a state to recognize a CCW from a state it doesnt want to.

Cases are often designed for higher courts, they have to go through the lower ones before they get there. Your right that one probably cant force a state to recognize a permit from another (judicially, legislatively would be another story) but its quite likely that one could force a state to issue non-resident permits.

How would that work? Ca. to issue non-res permits, so Out of stater's could carry, while us residents can't?

my thoughts in green

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Old 05-03-2011, 12:48 AM
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Since there is no national reciprocity, and since all rights not reserved by the fed become reserved by the states, the states can enter into agreements with other states about reciprocity. They can choose who the want to deal with and who they don't.

This is one thing I think the Feds may have legitimate involvement with. States aren't supposed to make special deals with only certain states, even though in the case of reciprocity most of it is because the anti-gun states don't want any reciprocity,period.
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Old 05-03-2011, 2:05 AM
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Since there is no national reciprocity, and since all rights not reserved by the fed become reserved by the states, the states can enter into agreements with other states about reciprocity. They can choose who the want to deal with and who they don't.

This is one thing I think the Feds may have legitimate involvement with. States aren't supposed to make special deals with only certain states, even though in the case of reciprocity most of it is because the anti-gun states don't want any reciprocity,period.
don't states make special deals with other states?

NY/NJ have the port authority, a joint venture. Didn't we enter into a special deal with Nevada about water rights, etc.?

It does however open up the interpretation of the commerce clause, which has been used to support the registration requirement under the Sex Offender Registration and Notification Act.

so if the fed can regulate that.....

although the court ruled in United States v. Alfonso Lopez, Jr that the clause didnt include the power to regulate the gun free school zone, which it had tried to do.

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Old 05-03-2011, 3:29 AM
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This is at the core of the argument, IMO (IANAL), because the SCOTUS has not given us BEAR, only KEEP.
This is an inaccurate statement. The Second Amendment says "keep and bear." The SCOTUS ruled in Heller that this is an individual right and again in McDonald that the right is enforceable against the States.

The problem here is not that the SCOTUS didn't 'say so more plainly,' it's that the lower courts won't 'grow a pair.'
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Old 05-03-2011, 11:22 AM
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This is an inaccurate statement. The Second Amendment says "keep and bear." The SCOTUS ruled in Heller that this is an individual right and again in McDonald that the right is enforceable against the States.

The problem here is not that the SCOTUS didn't 'say so more plainly,' it's that the lower courts won't 'grow a pair.'
Sorry, but i believe you are incorrect. Heller we can keep them in the home. mcdonald said the right is enforceable against the states, as in it applies to the states. Scotus said reasonable restrictions are still ok, like no guns in sensitive places.

No one has challenged what the sensitive place means or what reasonable restrictions are.

For all we know, the court may define a sensitive place as city or town there is a population > 10 people.

For all intents and purposes, who dont have "Bear" yet. Not until the scotus has ruled on where bear applies. Until then, the anti states will use the wording of "not in sensitive places" to mean whatever they want, which means we haven't won the right to bear anywhere we want yet.
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Old 05-03-2011, 12:37 PM
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Sorry, but i believe you are incorrect. Heller we can keep them in the home. mcdonald said the right is enforceable against the states, as in it applies to the states. Scotus said reasonable restrictions are still ok, like no guns in sensitive places.
Yes, DC residents being able to keep a functional firearm 'in the home' was one of the outcomes of Heller, but first the court had to determine if the Second Amendment right to 'keep and bear' arms was a collective or individual right.

You, like the castrated courts, seem to want to gloss over this. The right is to 'keep and bear' arms. To 'keep and bear' is the individual right that is enforceable (applies) against the States via the courts decision in McDonald.

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No one has challenged what the sensitive place means or what reasonable restrictions are.
What does this have to do with the price of eggs?

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For all we know, the court may define a sensitive place as city or town there is a population > 10 people.
I suppose they could, but that's not really probable. Is it?

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For all intents and purposes, who dont have "Bear" yet. Not until the scotus has ruled on where bear applies. Until then, the anti states will use the wording of "not in sensitive places" to mean whatever they want, which means we haven't won the right to bear anywhere we want yet.
Again, I'll argue we do indeed have the right to 'keep and bear.' The court just hasn't 'said so more plainly.'
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Old 05-03-2011, 12:56 PM
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When the courts completely skip out on their responsibility to strike down intentionally unconstitutional laws, the probability is that things will get much worse on the legislative+judicial rubber stamping front before they get better (what we hope will be favorable SCOTUS rulings before any of the Heller 5 retire or die).
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Old 05-03-2011, 1:48 PM
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my thoughts in green
You are operating under numerous false assumptions, equal protection is not only for residents, its for everyone. CCW in colorado is a right not a policy, they have a very robust 2A equivalent and laws protecting the right to carry. So if the case is decided there it must be treated as such.

Drawing analogies to drivers license as you have is also not proper. First because driving has nothing to do with a fundamental right and second because there is already national reciprocity there. There would never be a need for a non resident dl because all state dls work everywhere.

Lastly, you seem to mistake the distinction between this case being decided in the 10th or the possibility of SCOTUS. As far as you question regarding california having to issue non resident permits you fail to acknowledge that california its only effected if the decision is made by the supremes. That means that if they declare carry to be protected under the second california would have to issue to residents. Not just non residents.

Its unlikely that the supremes would draw out a particular system for carry, that would likely be left up to the states. What with their sovereignty and all. States could probably decide between concealed, open, or both, but no carry would be unacceptable if the right is protected. Its also likely that states could decide who to grant reciprocity to. However if the right its affirmed, they can't deny it based on lack of residence, states would have to recognize other permits or grant their own non resident permits. National reciprocity will be found through the legislature.

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Old 05-03-2011, 3:30 PM
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Yes, DC residents being able to keep a functional firearm 'in the home' was one of the outcomes of Heller, but first the court had to determine if the Second Amendment right to 'keep and bear' arms was a collective or individual right.

You, like the castrated courts, seem to want to gloss over this. The right is to 'keep and bear' arms. To 'keep and bear' is the individual right that is enforceable (applies) against the States via the courts decision in McDonald.



What does this have to do with the price of eggs?



I suppose they could, but that's not really probable. Is it?



Again, I'll argue we do indeed have the right to 'keep and bear.' The court just hasn't 'said so more plainly.'

Ok, so you have the right to bear.... So you LOC, and/or CCW without permits, right? Or you can walk into any issuing agency and get a permit to BEAR in anywhere in the USA, and then you can BEAR anywhere but the few specific sensitive places mentioned in heller and mcdonald, RIGHT?

Heck, why is Gray bothering with this suit if he already has a fundamental right to bear?

I'm not glossing over anything. Of course the amendments stands as written, which includes BEAR. However, since Heller and McDonald, no locale has been able to stop functioning weapons from being in every home who wishes one.

The same can't be said for every person wishing to carry. Therefore, until the court tells us exactly what BEAR means, we don't have bear.

Do you really not understand that concept?

Funny thing is, these exact sentiments have been echo'd on the board by numerous people, and IIRC Gene is one of them.


re: [senstive place defined as city/town >10 people] I suppose they could, but that's not really probable. Is it?

i wouldn't put it past L.A. NYC, NJ, Chicago, DC, Ma., etc to try, would you?
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Old 05-03-2011, 3:46 PM
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CCW in colorado is a right not a policy, they have a very robust 2A equivalent and laws protecting the right to carry. So if the case is decided there it must be treated as such.[/quote]

if it were as robust as you claim, Denver wouldn't be able to do what it does.

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Drawing analogies to drivers license as you have is also not proper. First because driving has nothing to do with a fundamental right and second because there is already national reciprocity there. There would never be a need for a non resident dl because all state dls work everywhere.
While thats true, every state requires you change D/L and reg within 30 days of moving there. Why not allow you to keep your old tags with a non-res permit, keep your Ca D/L as a non-res D/L?

D/L's are valid for travel, however, you are expected to follow local laws.

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Lastly, you seem to mistake the distinction between this case being decided in the 10th or the possibility of SCOTUS. As far as you question regarding california having to issue non resident permits you fail to acknowledge that california its only effected if the decision is made by the supremes. That means that if they declare carry to be protected under the second california would have to issue to residents. Not just non residents.

Its unlikely that the supremes would draw out a particular system for carry, that would likely be left up to the states. What with their sovereignty and all. States could probably decide between concealed, open, or both, but no carry would be unacceptable if the right is protected. Its also likely that states could decide who to grant reciprocity to. However if the right its affirmed, they can't deny it based on lack of residence, states would have to recognize other permits or grant their own non resident permits. National reciprocity will be found through the legislature.

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I don't buy that premise at all. You are expanding the scope of this case, and the SCOTUS never does that. They focus as narrow as they can.

This case is about non-resident CCW ONLY. Thats what will be decide. How you think SHALL ISSUE to residents will be thrown in is beyond me.
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