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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 06-14-2011, 7:37 AM
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Default 9th Circuit Orders Alameda to file Brief in Nordyke

The Ninth Circuit issued an order on June 13, 2011 directing the Appellees (Alameda County) to file a response to the Nordykes' Petition for Rehearing and Petition for Rehearing En Banc. That response is due within 21 days of the June 13, 2011 Order.

The only absolutely safe conclusion that can be drawn is the Petition for Rehearing and Petition for Rehearing En Banc was not summarily denied.

If pushed to venture a speculative assessment of this development, it may (emphasis on may) mean that the May 2, 2011 opinion will be modified.
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  #2  
Old 06-14-2011, 7:39 AM
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  #3  
Old 06-14-2011, 7:40 AM
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Really fascinating! Thank you for the update!
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Old 06-14-2011, 7:43 AM
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I'm glad that you and the Nordykes have taken on this task. If it had been me, I would have been over it a long time ago.
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Old 06-14-2011, 7:47 AM
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Let's hope for the best.
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Old 06-14-2011, 8:09 AM
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Question

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Originally Posted by Lex Arma View Post
...
If pushed to venture a speculative assessment of this development, it may (emphasis on may) mean that the May 2, 2011 opinion will be modified.
Is this possible without an en banc hearing that a panel could make that modification, and has this happened with other cases before?

**ETA**

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Originally Posted by Lex Arma View Post
...
Petition for Rehearing and Petition for Rehearing En Banc
...
I always thought that anything reheard in the courts would have to automatically be reheard by an en banc panel?

Otherwise...

Erik.

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Old 06-14-2011, 9:23 AM
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I hope someday to buy the Nordykes and yourself a tall cold one. It takes a great deal of persistence and dedication to keep fighting. Thanks.
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Old 06-14-2011, 9:25 AM
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Is this possible without an en banc hearing that a panel could make that modification, and has this happened with other cases before?

I always thought that anything reheard in the courts would have to automatically be reheard by an en banc panel?

Otherwise...

Erik.

There are technically two petitions pending: (1) rehearing before the same panel, and (2) rehearing en banc.

Either one can be decided without further briefing, depending on what the Court wants to do. Most petitions for either kind of rehearing result in summary denial. Minor amendments to the opinion might be handled summarily without further briefing. Substantive changes usually don't happen without giving both sides an opportunity to have a say, which can include anything from: asking the other side to file a response (that is what happened here) up to granting a rehearing and/or rehearing en banc and ordering another round of briefs.

Or the Court might reconsider its opinion in light of what the County files and still deny both or either petition.

The only thing we can say with any certitude is that we are going into extra innings here in the Ninth Circuit before moving up to SCOTUS or back down to the trial court.
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Old 06-14-2011, 9:32 AM
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I seriously hope this gets modified because after readying that decision, my hope for Peña and other 2A cases being successful went down the drain. The decision seems to include so much ammunition for the antis to use in future cases.
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Old 06-14-2011, 9:46 AM
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I see it as a dare.

If an en banc doesn't clean it up, it creates a circuit split and that would give it a really great chance of getting to SCOTUS.

If the three judge panel had given us a good decision with strict scrutiny as the standard, the en banc (which would be called) would probably say the ban does not withstand intermediate scrutiny and leave us stuck with that until we get another case that can force that through.

I'm very optimistic about this but we might not get our big win for a while.
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Old 06-14-2011, 9:57 AM
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Glad to hear. I really get upset over, what I see as, the political gerrymandering by justices in this case. I really want to thank the Nordykes, Donald Kilmer and all the Attorney's and law firms fighting for them on this case. Go get em.
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Old 06-14-2011, 10:03 AM
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Sadly, I suspect this is little more than a plan to burn up Don's time and money and keep it out of SCOTUS until it can be mooted. It would be better for CA9 if someone else is the sacrificial lamb in this case, they don't really want a big 2A case overturned.
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Old 06-14-2011, 10:07 AM
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Don, Thank you for keeping us all in the loop.
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Old 06-14-2011, 10:11 AM
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Sadly, I suspect this is little more than a plan to burn up Don's time and money and keep it out of SCOTUS until it can be mooted. It would be better for CA9 if someone else is the sacrificial lamb in this case, they don't really want a big 2A case overturned.
Maybe. Maybe not. Besides, my time has already been 'burned' and if anyone cares to notice, our litigation strategy is taken from a page of that great WWII General Anthony McAuliffe, when asked to surrender by the Germans who surrounded his position during the Seige of Bastogne, and he replied: "Nuts."
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If civic virtu does not reside in the people - no constitution, no bill of rights, no legislative body and no court will be able to preserve our liberties.

Unconsciously borrowed from: "Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it." — Judge Learned Hand

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Old 06-14-2011, 10:18 AM
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Maybe. Maybe not. Besides, my time has already been 'burned' and if anyone cares to notice, our litigation strategy is taken from a page of that great WWII General Anthony McAuliffe, when asked to surrender by the Germans who surrounded his position during the Seige of Bastogne, and he replied: "Nuts."
Maybe you nick name should be the Bull Dog. I would say Bastard of Bastogne, but it doesn't work.
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Old 06-14-2011, 11:37 AM
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Maybe. Maybe not. Besides, my time has already been 'burned' and if anyone cares to notice, our litigation strategy is taken from a page of that great WWII General Anthony McAuliffe, when asked to surrender by the Germans who surrounded his position during the Seige of Bastogne, and he replied: "Nuts."
Yup, and skill and determination won the day. Y'all have shown that you've got the skill and determination as well. With a little break you'll win a great victory for us all.

I think I'll still have to be a little patient, however. . .

BTW, as a non-lawyer and a non-courtwatcher, my assumption is that the 9th Circuit views the petition for re-hearing to be quite persuasive and they're trying to find an excuse to turn down the request.

The delay is frustrating, but I think the odds of getting to SCOTUS in the foreseeable future are pretty decent.

Even if I'm all wrong about how things will go in the future - I'm incredibly impressed by what you and the Nordykes have done.
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Old 06-14-2011, 11:51 AM
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Maybe. Maybe not. Besides, my time has already been 'burned' and if anyone cares to notice, our litigation strategy is taken from a page of that great WWII General Anthony McAuliffe, when asked to surrender by the Germans who surrounded his position during the Seige of Bastogne, and he replied: "Nuts."


"A man that eloquent has to be saved!" ~ Patton
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Old 06-14-2011, 2:38 PM
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Maybe. Maybe not. Besides, my time has already been 'burned' and if anyone cares to notice, our litigation strategy is taken from a page of that great WWII General Anthony McAuliffe, when asked to surrender by the Germans who surrounded his position during the Seige of Bastogne, and he replied: "Nuts."
I have no doubt that you will persevere and succeed. I just wish it didn't feel like the courts were working against you so hard. It would be nice if your only enemy in this fight was Alameda and not Alameda and the 9th Federal Circuit. (I am sure you cannot say that, but I can.)
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Old 06-14-2011, 8:28 PM
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"A man that eloquent has to be saved!" ~ Patton
Or keep his case alive long enough for the legal environment to improve to the point he can win!

-Gene
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Old 06-14-2011, 9:03 PM
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Or keep his case alive long enough for the legal environment to improve to the point he can win!

-Gene
Without any delusions of grandeur, Scott filed his second case claiming emancipation in 1853. SCOTUS handed down Scott v Sanford in 1857. Unfortunately Mr. Scott died in 1858 taking the loss to his grave. Imagine if he had lived to see the ratification of the Constitutional Amendment (XIV) in 1868 that vindicated him and overruled that blight upon the Court.

Mr. Scott is my inspiration to keep plugging away at Nordyke.
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If civic virtu does not reside in the people - no constitution, no bill of rights, no legislative body and no court will be able to preserve our liberties.

Unconsciously borrowed from: "Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it." — Judge Learned Hand

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Old 06-14-2011, 11:17 PM
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Maybe. Maybe not. Besides, my time has already been 'burned' and if anyone cares to notice, our litigation strategy is taken from a page of that great WWII General Anthony McAuliffe, when asked to surrender by the Germans who surrounded his position during the Seige of Bastogne, and he replied: "Nuts."
One of the advantages of being surrounded is that you have the liberty of attacking in any direction.

(stolen from a Marine whose name I can't think of right now)
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Old 06-14-2011, 11:27 PM
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One of the advantages of being surrounded is that you have the liberty of attacking in any direction.

(stolen from a Marine whose name I can't think of right now)
And the ability to continue to hold annual Nordyke dinners!

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Old 06-14-2011, 11:28 PM
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BINGHAM!
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Old 06-14-2011, 11:31 PM
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BINGHAM!
****er.

Now, where's my CGF shotglass?
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Old 06-14-2011, 11:41 PM
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****er.

Now, where's my CGF shotglass?
BINGHAM

Burp.

-Gene
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Old 06-14-2011, 11:47 PM
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BINGHAM

Burp.

-Gene
I have a hearing tomorrow. We are NOT DOING THIS TONIGHT DAMMIT.

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Old 06-14-2011, 11:53 PM
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One of the advantages of being surrounded is that you have the liberty of attacking in any direction.

(stolen from a Marine whose name I can't think of right now)
Chesty Puller

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Old 06-15-2011, 12:07 AM
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Now, where's my CGF shotglass?


(Hic!)
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Old 06-15-2011, 4:09 AM
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BINGHAM!
I count several BINGHAMs. I am ready for a chaser.
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Old 06-15-2011, 4:31 AM
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One of the advantages of being surrounded is that you have the liberty of attacking in any direction.

(stolen from a Marine whose name I can't think of right now)
Chesty Puller at the Chosin Resivoir during the Korean war. Semper Fidelis!
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Old 06-15-2011, 5:08 AM
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Thank you for fighting this epic battle.

Sorry for the thread jack, but thank you for this also. http://calguns.net/calgunforum/showthread.php?t=417935

Is there any insight you can safely speak of regarding Enos v Holder? The courts move so slow to us laymen and the wait is agonizing.
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Old 06-15-2011, 5:21 AM
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Thank you for fighting this epic battle.

Sorry for the thread jack, but thank you for this also. http://calguns.net/calgunforum/showthread.php?t=417935

Is there any insight you can safely speak of regarding Enos v Holder? The courts move so slow to us laymen and the wait is agonizing.
Still waiting for Court's ruling on govt's motion to dismiss.
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If civic virtu does not reside in the people - no constitution, no bill of rights, no legislative body and no court will be able to preserve our liberties.

Unconsciously borrowed from: "Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it." — Judge Learned Hand

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I get the top bunk.
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Old 06-15-2011, 7:14 AM
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One of the advantages of being surrounded is that you have the liberty of attacking in any direction.

(stolen from a Marine whose name I can't think of right now)
General Lewis Burwell "Chesty" Puller
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Old 06-15-2011, 8:27 AM
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I wonder if Alameda is sorry they started this fight.
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Old 06-15-2011, 8:49 AM
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Default "Sensitive Zones".

Seems to me one of the issues is the "sensitive zone" issue.

The "Sensitive Zone" issue IMHO doesn't just substantially burden the right of self defense, it eliminates it.

As such, any area IMHO that is declared a "Sensitive Zone" must have a "compelling public interest" that it requires suspension in that zone of a person's fundamental right.

I haven't heard anyone put forth arguments for setting "criteria" for a sensitive zone. Perhaps this is where we could go.

So, here are Nicki criteria.

1. What in the "sensitive zone" is so "sensitive" that it requires suspension of a person's fundamental right of self defense when they are in the zone?

Is this zone a 24/7/365 zone or is it limited hours?

2. Is this zone marked so that someone with arms just can't walk into it inadvertently.

This zone needs to be kept to a minimum in size.

Does this zone include private property that the owners get to keep arms themselves? If so, why?

3. Does the zone have security to screen all those who enter the zone to ensure that arms are not brought in?

4. In the event that the security zone is breached by armed individuals, does the zone have a armed security force immediately available to deal with those armed intruders?

Does the fairgrounds ever have events with anything that causing injuries or deaths in society. Things like CAR SHOWS, Knives or swords, sporting goods like ski, sky diving etc. Maybe a equal protection angle?

Who was on the county board of supervisors when this whole case started?

Perhaps this could give a clue, especially if they went on to higher office and sponsored gun legislation.

Nicki
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Old 06-15-2011, 9:37 AM
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Nicki:

I like your logic.

I'd also note that if vehicles are used then it is not a sensitive place. A 2 ton vehicle (at least in some contexts) is far more deadly than is my Glock.
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Old 06-15-2011, 10:51 AM
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I wonder if Alameda is sorry they started this fight
Thus far there haven't been any consequences to them, at least none that hurt bad enough for them to change their ways.
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Old 06-15-2011, 7:42 PM
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Old 06-16-2011, 3:32 AM
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Seems to me one of the issues is the "sensitive zone" issue.

The "Sensitive Zone" issue IMHO doesn't just substantially burden the right of self defense, it eliminates it.

As such, any area IMHO that is declared a "Sensitive Zone" must have a "compelling public interest" that it requires suspension in that zone of a person's fundamental right.

I haven't heard anyone put forth arguments for setting "criteria" for a sensitive zone. Perhaps this is where we could go.

So, here are Nicki criteria.

...

Nicki
Nice.

I think we could simplify the whole situation considerably with one simple rule: "When exercising authority over of the right to self-defense, the government must accept responsibility for the outcome."

This is an offshoot of the most simple rule I use in my life: "Responsibility must come with authority. Authority must take responsibility. If ever you are offered responsibility without authority, turn it down. If ever you are given authority without responsibility, be exceptionally fearful."


I think this approach melds into existing jurisprudence quite well. We already know that the government and law enforcement are not 'responsible' for saving you. They can try, but don't have to. The Supreme Court made clear we are on our own, legally-speaking.

We also now know that we have a right to self-preservation.

Add the two together, and the Constitution basically says: "Suck it. You are responsible for your own personage, and here is the authority (2A) you can use to effect the outcome."


My Thesis: If the government wishes to take your authority (sensitive places), then they must also accept responsibility for the outcomes while your authority is abrogated.


I think this is where Scalia was going in his dicta. Each of the places he mentions has some type of authority in power (jails, schools, courthouses, etc.) that accepts responsibility for the security of that place. You can over-read the use of the word 'schools', but we are cautioned to not parse individual words in dicta.

So simply put, sensitive places must come with security - and the government must work to ensure the safety of everyone in that location. And when they fail to do that?

Responsibility means they pay when they are negligent. Note that not every crime can be prevented, but they must never 'fail to respond' and they must be staffed to a level commensurate to prevent most threats from occurring. So a jail or criminal courthouse would require quite a few guards, but an elementary school not so much (maybe mindful teachers is enough).

Taken this way, the list of sensitive places would be much, much smaller. Frankly, I would imagine the government actively working to reduce the size, scope and location of 'sensitive places' just to avoid the responsibility. Especially municipal governments: by declaring a place 'sensitive' they would be obligated not only to protect it, but to also indemnify it. Ouch.

Simple. Clean. Balanced.
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Old 06-16-2011, 4:09 AM
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Mulay El Raisuli Mulay El Raisuli is offline
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Originally Posted by OleCuss View Post
Nicki:

I like your logic.

I'd also note that if vehicles are used then it is not a sensitive place. A 2 ton vehicle (at least in some contexts) is far more deadly than is my Glock.

I like Nicki's logic. I like your logic. What Patrick-2 had to say thrills me also.

But you're all applying logic. Gun grabbers don't have logic. Don't recognize logic. Don't care about logic.


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