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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 05-31-2011, 3:21 PM
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Default Peruta: SAF/CGF Amicus filed

Today SAF and CGF filed an amicus in Peruta as it is a closely related case to Richards v. Prieto.

We are making the court aware of an alternative, and we think superior, means of reviewing the constitutionality of "good cause" and "good moral character" as those requirements currently exist in California's carry licensing scheme.

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Old 05-31-2011, 3:27 PM
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Thank you!

This is getting good!
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Old 05-31-2011, 3:30 PM
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This looks like the main point:
Quote:
the idea of an official dispensing permission to exercise a “right” is inherently incongruent with the concept of rights.
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Old 05-31-2011, 3:33 PM
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You guys must be buying your 5-Hour Energy at Costco at this rate. Keep up the awesome work!
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Old 05-31-2011, 3:36 PM
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THANK YOU!!!!
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Old 05-31-2011, 3:40 PM
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CGF + SAF = Powerhouse of great people that deserve all the support.

It's like a litigious MCSOCOM Det 1 backed up by a MEU.

Woohoo!
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  #7  
Old 05-31-2011, 3:43 PM
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  #8  
Old 05-31-2011, 3:48 PM
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  #9  
Old 05-31-2011, 3:48 PM
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LEETA also filed yesterday I believe. Lots about how UOC is not adequate for immediate self defense. And they provided lots of reference videos which you can see here. I have tow are you though. They are really boring lol.
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Old 05-31-2011, 3:55 PM
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I like this part so far... And that's just the first paragraph...

"A motion to have Richards argued before this panel on the same day is concurrently filed today."
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Old 05-31-2011, 4:00 PM
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Hell yeah!!!
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  #12  
Old 05-31-2011, 4:07 PM
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Edit on page 7, "All subjective, freefloating
licensing “standards” are barred from application against the
exercise of constitutional rights. And the standards most readily
identifiable as improper are those of the type present in California
Penal Code § 12050 . . . ."
Remove the "And" at the beginning of the 2nd sentence.

Edit on page 15, "The government thus bears the burden of proving that the an applicant may not have a permit."
Remove the "an".
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Old 05-31-2011, 4:08 PM
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Very nice read. Just based on that argument alone I dont see how the court could rule that "may issue" is constitutionally permissive.

I love how this thing is getting kicked into the corner from all directions!

Great job!
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  #14  
Old 05-31-2011, 4:09 PM
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"But they must not be in the business of judging people’s character, or forcing individuals to prove a sufficiently good reason for wanting to exercise something that is their right."

“Rules that grant licensing officials undue discretion are not constitutional.”


Sweet music to my ears. So blindingly obvious. Kudos!
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  #15  
Old 05-31-2011, 4:10 PM
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Quote:
Originally Posted by dantodd View Post
I like this part so far... And that's just the first paragraph...

"A motion to have Richards argued before this panel on the same day is concurrently filed today."
Yep, hitching a ride on Peruta's coattails into the 9th. If granted, that will sure speed things up!

This morning I was reading about that Asian gal nursing student who went missing a couple of days ago while at work in Hayward's Kaiser Hospital. She left the building to briefly go to her car in the garage, but never returned.
http://sanfrancisco.cbslocal.com/201...rsing-student/


It reminded me of all the nurses, esp women, who have to go to their cars parked in garages at all hours of the night.

CA NEEDS SHALL ISSUE CCWS NOW ! ! !
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Last edited by Paladin; 05-31-2011 at 4:32 PM..
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  #16  
Old 05-31-2011, 4:28 PM
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If we honestly had an impartial judiciary that cared about the constitution and read all of these briefs then I would say there is absolutely NO WAY that we can lose this. This case looks WAY more solid than it was before and I'm going to speculate that we have a winner here but after all this is the 9th circuit we are talking about..
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  #17  
Old 05-31-2011, 4:28 PM
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Curious. Is there a particular reason for the timing of the various times for submission of the amici - other than when they are completed?

If it is at all damaging to answer the question - I'll happily accept being ignored.
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  #18  
Old 05-31-2011, 4:34 PM
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Quote:
Originally Posted by safewaysecurity View Post
If we honestly had an impartial judiciary that cared about the constitution and read all of these briefs then I would say there is absolutely NO WAY that we can lose this. This case looks WAY more solid than it was before and I'm going to speculate that we have a winner here but after all this is the 9th circuit we are talking about..
Unless the 9th chooses to hear Richards at the same time, not sure if they're under any obligation to hear/consider the alternative issues/arguments raised by SAF/CGF. They might just ignore them and decide against Peruta in order to "kick the can down the road" to SCOTUS.
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Old 05-31-2011, 4:50 PM
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Looks good. I like it. I hope it works.
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  #20  
Old 05-31-2011, 5:03 PM
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Page 14 of the brief......

Quote:
Accordingly, when the exercise of a right is licensed—subjected, in
constitutional parlance, to a “prior restraint”—that prior restraint must
be permitted only pursuant to objective, well-defined standards that
eliminate the exercise of personal discretion. All subjective, freefloating
licensing “standards” are barred from application against the
exercise of constitutional rights.
When someone says "common sense" concealed carry laws, there it is. No need to look further. And 12050 does not, as currently constructed, pass over that bar.

Brilliant.
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  #21  
Old 05-31-2011, 5:07 PM
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Quote:
Originally Posted by Paladin View Post
Edit on page 7, "All subjective, freefloating
licensing “standards” are barred from application against the
exercise of constitutional rights. And the standards most readily
identifiable as improper are those of the type present in California
Penal Code § 12050 . . . ."
Remove the "And" at the beginning of the 2nd sentence.
That's not a typo but is instead a style choice. Your other item was a typo.

Quote:
Originally Posted by OleCuss View Post
Curious. Is there a particular reason for the timing of the various times for submission of the amici - other than when they are completed?

If it is at all damaging to answer the question - I'll happily accept being ignored.
Amicus briefs are due today by midnight so you're seeing them roll in when completed.

I also hope this brief helps explain why Richards was delayed a short time. The explanation is in a footnote, but one needs to read between some lines.

-Gene
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  #22  
Old 05-31-2011, 5:24 PM
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Quote:
Originally Posted by Paladin View Post
Yep, hitching a ride on Peruta's coattails into the 9th. If granted, that will sure speed things up!

This morning I was reading about that Asian gal nursing student who went missing a couple of days ago while at work in Hayward's Kaiser Hospital. She left the building to briefly go to her car in the garage, but never returned.
http://sanfrancisco.cbslocal.com/201...rsing-student/


It reminded me of all the nurses, esp women, who have to go to their cars parked in garages at all hours of the night.

CA NEEDS SHALL ISSUE CCWS NOW ! ! !
Any updates??
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Old 05-31-2011, 6:31 PM
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Quote:
Originally Posted by NoJoke View Post
Any updates??
Nope. Still missing.

Family is offering a $20,000 reward for her return. If you ck out the link I posted, you'll see there are similarities between her case and nurse Phuong Le's of Fairfield about a year ago. Phuong's body was found 12 days later in Napa Co.

Best to start a new thread about this case in Off Topic forum if you want to discuss it further.
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Old 05-31-2011, 6:39 PM
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As usual, a very good read even for non-lawyer types.

It doesn't make sense that either of these cases lost in the first place but Alan has presented a very succinct argument against law enforcement discretion in CCW permit issuance.

Thanks CGF!
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Old 05-31-2011, 7:07 PM
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Unfortunately, eliminating discretion is not the same thing as shall-issue. If you want to see the hell "no discretion" can deliver you to, look at "zero tolerance" weapons and drugs rules in K-12 schools. I call them "zero intelligence" rules, because you get stupid things like athsmatic students not being permitted to carry epi pens on their person and kids getting expelled for possessing 1/2" miniature plastic knives. The administrators who defend this stupidity argue, among other things, that using intelligence can lead to lawsuits and charges of favoritism, ergo everybody must suffer equally no matter the actuality of their circumstances.
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Old 05-31-2011, 7:30 PM
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randian:

The point of this is to change the law like this:
Quote:
SECTION 1. Section 12050 of the Penal Code is amended to read:
12050. (a) (1) (A) The sheriff of a county, upon proof that the
person applying is of good moral character , that good cause
exists for the issuance,
and that the person applying
satisfies any one of the conditions specified in subparagraph (D) and
has completed a course of training as described in subparagraph (E),
may shall issue to that person a
license to carry a pistol, revolver, or other firearm capable of
being concealed upon the person in either one of the following
formats:
(i) A license to carry concealed a pistol, revolver, or other
firearm capable of being concealed upon the person.
(ii) Where the population of the county is less than 200,000
persons according to the most recent federal decennial census, a
license to carry loaded and exposed in that county a pistol,
revolver, or other firearm capable of being concealed upon the
person.
I don't speak for calguns or anyone else here, but my opinion of the intent here is to remove the discretion based on denials for the reason for carry, not the discretion based on the type of person doing the carrying. If this suit succeeds then issuing authorities in CA can still deny people that have documented and justifiable "bad" moral character.

This is not the wild west (har har)
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Old 05-31-2011, 7:45 PM
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^ The problem is that they can just as easily abuse "moral character" if they want to, like denying permit for a parking ticket or overdue library book. Massachusetts has been known to pull sleazy stuff like that every day.
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Old 05-31-2011, 7:52 PM
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Thanks SAF/CGF!
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Old 05-31-2011, 8:01 PM
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Quote:
Originally Posted by yellowfin View Post
^ The problem is that they can just as easily abuse "moral character" if they want to, like denying permit for a parking ticket or overdue library book. Massachusetts has been known to pull sleazy stuff like that every day.
I was under the impression that there was a case here in CA that defined "good moral character" used elsewhere in the PC as being "not having committed a felony".

I can't find the link now, or maybe I'm just not right
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"It wasn't a failure of laws," said Amanda Wilcox, who along with her husband, Nick, lobbies for the California chapter of the Brady Campaign to Prevent Gun Violence. "I just don't see how our gun laws could have stopped something like that."
-Speaking about the Oikos mass shooting in Oakland.

Quote:
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Old 05-31-2011, 8:10 PM
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Quote:
Originally Posted by yellowfin View Post
^ The problem is that they can just as easily abuse "moral character" if they want to, like denying permit for a parking ticket or overdue library book. Massachusetts has been known to pull sleazy stuff like that every day.
They kindly address the "moral character" portion of the code as well in the brief.

The days seem much brighter, now.
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Old 05-31-2011, 8:14 PM
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And also the following additional modification
Quote:
SECTION 1. Section 12050 of the Penal Code is amended to read:
12050. (a) (1) (A) The sheriff of a county,
upon proof that the person applying is not a person prohibited from owning or possessing a firearm under Section 12021 or 12021.1 of this code or Section 8100 or 8103 of the Welfare and Institutions Code
of good moral character , that good cause exists for the issuance,
and that the person applying satisfies any one of the conditions specified in subparagraph (D) and has completed a course of training as described in subparagraph (E),
may shall issue to that person a
license to carry a pistol, revolver, or other firearm capable of
being concealed upon the person in either one of the following
formats:
since moving the discretion from 'good cause' to 'good moral character' still leaves an arbitrary decision in the hands of some official.
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Old 05-31-2011, 8:25 PM
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C.D. Michel with the NRA on SD CCW...



Chuck, hook up the Skype!
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  #33  
Old 05-31-2011, 8:28 PM
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I like this one. My simple non-lawyer understanding of the argument is this:
Level of scrutiny doesn't matter, because it is a license which applies to a fundamental right, and any cases like that the license must be shall-issue, and not reliant on the personal feelings of some bozo. Not issuing the license is prior restraint, regardless of levels of scrutiny
I haven't even heard that argument before, but I like it! I think that's what Hoffmang was referring to in his posts where he says that the purpose of the litigation is to show that "may" means "shall" in the context of CCW and AW licenses?

This seems like great logic, much better than trying to persuade them which level of scrutiny they should apply. Of course I would like it to be strict scrutiny but convincing them of that could be quite difficult.

This story about the nursing student... I saw it a couple of days ago. I think we all know that she didn't voluntarily drop out of her school, career, friends, and family, and sooner or later we will find out the grim details of a tragedy. It makes me so angry. Another victim sacrificed on the altar of gun control. No petite female should be walking around that area of Hayward after dark. But I'm sure Sheriff Ahern will have no regrets about his CCW policies, no matter how many lives they may cost.
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  #34  
Old 05-31-2011, 8:47 PM
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I like Gura's style.... I sat here reading the Brief, and realized that I was smiling...
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Old 05-31-2011, 8:49 PM
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Maybe I'm a simpleton, but could someone explain to me why the court couldn't just rule that UOC is an acceptable alternative and therefore the right isn't restricted?
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  #36  
Old 05-31-2011, 8:49 PM
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hoffmang hoffmang is offline
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Originally Posted by HowardW56 View Post
I like Gura's style.... I sat here reading the Brief, and realized that I was smiling...
His writing and arguments are just pleasurable.

-Gene
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Old 05-31-2011, 8:50 PM
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Originally Posted by notme92069 View Post
Maybe I'm a simpleton, but could someone explain to me why the court couldn't just rule that UOC is an acceptable alternative and therefore the right isn't restricted?
The right to bear arms is the right to bear operable arms. For example, Parker (which was affirmed as Heller) said that it was no answer to have an unloaded firearm which is simply a pile of metal and springs.

ETA: Because this comes up a lot, I want to quote Parker on the issue of unloaded firearms:
Quote:
As appellants accurately point out, § 7-2507.02 would reduce a
pistol to a useless hunk of “metal and springs.” Heller does not
appear to challenge the requirement that a gun ordinarily be kept
unloaded or even that a trigger lock be attached under some
circumstances. He simply contends that he is entitled to the
possession of a “functional” firearm to be employed in case of
a threat to life or limb. The District responds that,
notwithstanding the broad language of the Code, a judge would
likely give the statute a narrowing construction when confronted
with a self-defense justification. That might be so, but judicial
lenity cannot make up for the unreasonable restriction of a
constitutional right. Section 7-2507.02, like the bar on carrying
a pistol within the home, amounts to a complete prohibition on
the lawful use of handguns for self-defense. As such, we hold
it unconstitutional.
Remember that this opinion was affirmed by Heller and remains good law of the DC Circuit Federal Court of Appeals.

-Gene
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Last edited by hoffmang; 05-31-2011 at 9:02 PM..
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Old 05-31-2011, 8:52 PM
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kcbrown kcbrown is offline
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Brilliant! Gura shines again:

Quote:
Originally Posted by SAF-CGF Peruta Amicus Brief
It will not do to respond that prior restraint has never been applied to Second Amendment rights. Second Amendment law is in its infancy. Three years ago, municipal handgun bans had never been struck down under the Second Amendment, either. And until this Court’s opinion in Nordyke v. King, 563 F.3d 439 (9th Cir. 2009), no federal court had applied the Second Amendment to the States. Within a year of McDonald, many if not most Second Amendment cases will require unprecedented analysis. But while other emerging Second Amendment challenges require the development of new doctrines, this case can and should be resolved by the time-tested, straightforward logic of prior restraint law.
I just love how he anticipated where you know the court was going to go with this and slammed the door on it well before the court got there.

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Old 05-31-2011, 9:00 PM
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This is great news! Whichever way the 9th Circuit votes it sounds like we are moving forward. Hooray!
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Old 05-31-2011, 9:01 PM
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Quote:
Originally Posted by hoffmang View Post
The right to bear arms is the right to bear operable arms. For example, Parker (which was affirmed as Heller) said that it was no answer to have an unloaded firearm which is simply a pile of metal and springs.

-Gene
You have convinced me but I was already convinced. I didn't see that discussed in the amicus. But I am slow sometimes
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