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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 07-25-2011, 7:24 PM
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Default SAF/Gura: Masciandaro (parks carry) cert amicus

Mr. Masciandaro runs a mobile reptile display business around Northern Virginia. One night he fell asleep in his car in a National Park that's more like a strip mall near Alexandria VA. A Federal park ranger woke him up - one thing lead to another and the park ranger found he had a loaded handgun in a backpack in his trunk. This was only a couple of months before the ban on loaded firearms in National Parks was repealed.

Today, SAF and Alan Gura filed this amicus brief in support of a SCOTUS cert grant in Masciandaro v. US.

Some folks we all know and "love" are addressed making it well worth the read.

-Gene
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Old 07-25-2011, 7:27 PM
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There's just so much win here, it's not funny.

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ETA: That said, if you didn't laugh out loud at least 3 times when reading this, please make sure you do, in fact, have a sense of humor.
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  #3  
Old 07-25-2011, 7:29 PM
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Read half of it an hour ago. Will read the other half when I get home. AG briefs are always a smooth read.
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Old 07-25-2011, 8:05 PM
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I'm having trouble thinking of any pending high profile cases he didn't mention, he even gave a shout out to Embody. No wonder Embody doesn't like him.
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Old 07-25-2011, 8:09 PM
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Gene's reference to the "loved" one becomes crystal clear!
Right on, right on.

amicus strongly believes that the
greatest threats to the Second Amendment’s vitality
continue to be poorly-considered, often extremist
positions litigated by people who should know better.
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Old 07-25-2011, 8:12 PM
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Reading Gura's briefs is such a pleasure. The man is a genius.
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Old 07-25-2011, 9:37 PM
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Me likes reading posts by Gene. Now if he would only update his magazine efforts I would have a party!!!
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Old 07-25-2011, 10:22 PM
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For anyone who did not read the amicus linked in the OP - I highly recommend it.

Well written and there is genuine cause for amusement/laughter hidden within for CGNers.
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  #9  
Old 07-25-2011, 10:29 PM
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Quote:
Originally Posted by otteray View Post
Gene's reference to the "loved" one becomes crystal clear!
Right on, right on.

amicus strongly believes that the
greatest threats to the Second Amendment’s vitality
continue to be poorly-considered, often extremist
positions litigated by people who should know better.
I hope the "loved" one is confortable taking a nap under the bus.
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Old 07-25-2011, 10:44 PM
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I laughed a lot reading it. I loved how the entire first part he appears to talk like he is the buddy of SCOTUS pointing out how the lower court is full of trouble makers who don't listen.

The Embody part was priceless too, especially since we just had his latest thread discussing that very case on the forum (before he was banned).
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  #11  
Old 07-25-2011, 10:51 PM
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Quote:
Originally Posted by stix213 View Post
I laughed a lot reading it. I loved how the entire first part he appears to talk like he is the buddy of SCOTUS pointing out how the lower court is full of trouble makers who don't listen.

The Embody part was priceless too, especially since we just had his latest thread discussing that very case on the forum (before he was banned).
Ditto
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  #12  
Old 07-25-2011, 10:53 PM
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Full of WIN and AWESOMNESS!!!

Gura is a cunning linguist indeed.

note: Mr. Embody, if you are watching and listening, please sit down and STFU!! Pre-school is over, it's time for the adults to handle this now!!
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  #13  
Old 07-25-2011, 11:11 PM
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Quote:
In the post-Heller environment, amicus strongly believes that the greatest threats to the Second Amendment’s vitality continue to be poorly-considered, often extremist positions litigated by people who should know better.
Hmm. This sounds like it is directed at a certain somebody's
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Old 07-25-2011, 11:39 PM
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Quote:
Originally Posted by stix213 View Post
I laughed a lot reading it. I loved how the entire first part he appears to talk like he is the buddy of SCOTUS pointing out how the lower court is full of trouble makers who don't listen.
Gura: "Punks be disrespectin' you, SCOTUS! Gotta keep the pimp hand strong!"
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  #15  
Old 07-25-2011, 11:55 PM
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Great reading. I was hoping for a mention of the quote in my sig
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  #16  
Old 07-26-2011, 12:02 AM
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Great reading. I was hoping for a mention of the quote in my sig
I was thinking of that one the whole time I was reading the brief, waiting for Gura to mention it.
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Old 07-26-2011, 1:14 AM
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Some of my thoughts after reading the brief:

1. I love the way Gura turned the lower court's invocation of caution to serve a gun control agenda against them:

Quote:
Nonetheless, the lower court believed it could sidestep the core Second Amendment question because it assumed that, at least on balance if not absolutely, the Second Amendment harms society: “This is serious business. We do not wish to be even minutely responsible for some unspeakably tragic act of mayhem because in the peace of our judicial chambers we miscalculated as to Second Amendment rights.” Pet. App. 17a.

The theory is correct, if misapplied. No court should wish to feel responsible for a violent crime that could have been averted or disrupted had the court not “miscalculated as to Second Amendment rights” and left the victim without arms for her defense.
2. Gura is right to address Judge Wilkinson's view. Since only the center-right justices are interested in upholding the 2nd Amendment, the greatest threat to the development of 2nd Amendment jurisprudence comes from those conservative jurists who advocate greater caution in its development. Their arguments can be divided into the following categories:

a) States' rights: States should be given maximum discretion to exercise its authority. This theory is fine for states like Texas but disastrous for California.
b) Majoritarianism: The will of the people, as expressed through their elected representatives, should be respected.
c) Judicial restraint: The judiciary has a limited mandate, being the least democratic branch.
d) Prudence: The Supreme Court should give time for lower courts and legislatures to respond to Heller-McDonald before acting again.

One should not underestimate how important these arguments are to conservative jurists. Personally, I was inclined to support a period of inactivity for the Supreme Court on this issue (say, 5-10 years). It was only after realizing the extent of obstructionism from localities like Chicago and DC and lower courts like the 9th Circus that forced me to change my mind. It is very important for Gura to emphasize their obstructionism as well.

3. I wish Gura would invoke Judge Tymkovich's view (US v. McCane) on Supreme Court dicta but apply it to Heller's sections on carry:

Quote:
But Supreme Court dicta binds us "almost as firmly as . . . the Court's outright holdings." Surefoot LC v. Sure Foot Corp., 531 F.3d 1236, 1243 (10th Cir. 2008) (quoting Gaylor v. United States, 74 F.3d 214, 217 (10th Cir. 1996)). This is particularly so where, as here, the dictum is recent and not enfeebled by later statements. See id.; see also Carlton F.W. Larson, Four Exceptions in Search of a Theory: District of Columbia v. Heller and Judicial Ipse Dixit, 60 Hastings L.J. 1371, 1372 (2009) ("Although [Heller's] exceptions are arguably dicta, they are dicta of the strongest sort.").
4. I'm not sure it was wise to raise the point of unsympathetic plaintiffs. Raising it may simply remind the Heller-McDonald majority that people might abuse the 2nd Amendment. That might sway members of that majority to place greater restrictions on the 2nd Amendment.
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Old 07-26-2011, 7:43 AM
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Quote:
Originally Posted by bombmaster View Post
Hmm. This sounds like it is directed at a certain somebody's
Hmm, ya think? Didn't read the brief, or any other posts in this thread, did you?
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Old 07-26-2011, 8:03 AM
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Now’s he’s a historically documented “boob”.


Quote:
Originally Posted by stix213 View Post
I laughed a lot reading it. I loved how the entire first part he appears to talk like he is the buddy of SCOTUS pointing out how the lower court is full of trouble makers who don't listen.

The Embody part was priceless too, especially since we just had his latest thread discussing that very case on the forum (before he was banned).
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Old 07-26-2011, 8:45 AM
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Quote:
Originally Posted by hoffmang View Post
Mr. Masciandaro runs a mobile reptile display business around Northern Virginia. One night he fell asleep in his car in a National Park that's more like a strip mall near Alexandria VA. A Federal park ranger woke him up - one thing lead to another and the park ranger found he had a loaded handgun in a backpack in his trunk. This was only a couple of months before the ban on loaded firearms in National Parks was repealed.

Today, SAF and Alan Gura filed this amicus brief in support of a SCOTUS cert grant in Masciandaro v. US.

Some folks we all know and "love" are addressed making it well worth the read.

-Gene
For the record, this is the first time my personal blog has been cited as a source in a brief to the Supreme Court of the United States! Hahahaa!

Last edited by andytothemax; 07-26-2011 at 8:47 AM..
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  #21  
Old 07-26-2011, 8:48 AM
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I love how smoothly and graciously Gura basically says:
Quote:
"Dear SCOTUS, the lower courts are being a bunch of poosies......would you kindly kick them in the nuts and get them in line?"

Sincerely: Alan "The Hammer" Gura
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  #22  
Old 07-26-2011, 9:11 AM
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Quote:
Originally Posted by hoffmang View Post
Mr. Masciandaro runs a mobile reptile display business around Northern Virginia. One night he fell asleep in his car in a National Park that's more like a strip mall near Alexandria VA. A Federal park ranger woke him up - one thing lead to another and the park ranger found he had a loaded handgun in a backpack in his trunk. This was only a couple of months before the ban on loaded firearms in National Parks was repealed.

Today, SAF and Alan Gura filed this amicus brief in support of a SCOTUS cert grant in Masciandaro v. US.

Some folks we all know and "love" are addressed making it well worth the read.

-Gene
Some real gems in that read. Kudos to CGF for having Gura mention ongoing cases in his brief. Sure would like to see USSC kick CA courts in the nootz and explicitly explain that otherwise not prohibited citizens SHALL NOT be prohibited from bearing arms outside of the home.


On a side note, I wonder how many consecutive wins it will take for Gura to become a USSC 'advisor'? Sooner or later you would think that the supremes will start asking Gura for advice

.
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Old 07-26-2011, 9:23 AM
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I'll put $100 against any odds that one day Gura will be sitting on that bench....
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Old 07-26-2011, 9:36 AM
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Originally Posted by mofugly13 View Post
I'll put $100 against any odds that one day Gura will be sitting on that bench....
We're going to need him to keep doing what he does for at least another 20 years first.
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Old 07-26-2011, 9:41 AM
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We're going to need him to keep doing what he does for at least another 20 years first.
Why would he want to sit on the bench when he is so successful in telling them what to do?

.
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Old 07-26-2011, 9:50 AM
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Will cert for this case be decided during the "Long Conference" (last Monday in Sept, IIRC), when they also decide re cert for Williams?

If so, I'm very confident we'll have at least one of them decided this coming year and, most likely, a RKBA in public outside the home (Shall Issue?) around the country by next 4th of July!!!
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Old 07-26-2011, 10:03 AM
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Nice , the whole enchilada, hope they bite.
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Old 07-26-2011, 10:36 AM
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That was a really good read.

Thanks for posting it Gnee.
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Old 07-26-2011, 10:41 AM
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I think also by including references to so many other pending cases not only is he showing that so many courts are really dancing around a pretty clear issue, but also perhaps encouraging SCOTUS to broaden the language of their rulings and "dicta" to perhaps address contiguous issues in these other cases so they wont need to be run all the way up the flag pole, but instead easily remanded back to the lower courts for proper rulings with clearer guidelines.
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Old 07-26-2011, 10:53 AM
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Originally Posted by Untamed1972 View Post
I think also by including references to so many other pending cases not only is he showing that so many courts are really dancing around a pretty clear issue, but also perhaps encouraging SCOTUS to broaden the language of their rulings and "dicta" to perhaps address contiguous issues in these other cases so they wont need to be run all the way up the flag pole, but instead easily remanded back to the lower courts for proper rulings with clearer guidelines.
That's what I'm hoping. I don't know how broad SCOTUS will be, but hopefully enough to 'encourage' the lower courts to get their act together.

Great read, and excited to see if they grant cert. Thanks for the post.
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Old 07-26-2011, 12:25 PM
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Originally Posted by Paladin View Post
Will cert for this case be decided during the "Long Conference" (last Monday in Sept, IIRC), when they also decide re cert for Williams?

If so, I'm very confident we'll have at least one of them decided this coming year and, most likely, a RKBA in public outside the home (Shall Issue?) around the country by next 4th of July!!!
Probably. Nothing says it is required they act at any time. But the criminal nature and the fact the issue is ripe in many courts suggests the question will come forward soon. Either case you mention would be a good fit. Both would be better.

Ruling would almost surely be the last day of the term, so basically the end of June 2012. Just in time for the 4th. Don't shoot your eye out.
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Old 07-26-2011, 12:55 PM
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Originally Posted by Rossi357 View Post
I hope the "loved" one is confortable taking a nap under the bus.
No more deserving person has ever been thrown under one.

Ryan
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Old 07-26-2011, 12:58 PM
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Quote:
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That was a really good read.

Thanks for posting it Gnee.
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Old 07-26-2011, 1:42 PM
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Probably. Nothing says it is required they act at any time. But the criminal nature and the fact the issue is ripe in many courts suggests the question will come forward soon. Either case you mention would be a good fit. Both would be better.

Ruling would almost surely be the last day of the term, so basically the end of June 2012. Just in time for the 4th. Don't shoot your eye out.
Let's run with this for a minute to flesh out a timeline.

SCOTUS decides to take a carry case this term.

What does that do to Peterson, Peruta, Richards, and the other carry cases in lower fed cts? My guess is that they all are put on pause pending SCOTUS' decision. So, that means no movement on those until after 29 June 2012.

Okay, we get a real, RKBA ruling (none of this "in your home" BS) on 29 June 2012. Then what? (1) Do we have to wait until those lower courts re-start their carry cases to make their own application of the new carry law in their own decisions? IOW, we will have to wait until fall 2012, winter or spring 2013 before we actually get Shall Issue in CA?

Or, (2) can we go for some sort of Preliminary Injunction to force CA to allow anyone (w/a valid Handgun Safety Certificate?) to carry, thus forcing Sacto politicos to scramble to pass a Shall Issue law?
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Old 07-26-2011, 1:50 PM
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Now’s he’s a historically documented “boob”.
Who is Embody or what was his screen name?

Links? So that I can view this from all angles when talking about Mr Embody.
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Old 07-26-2011, 1:53 PM
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Let's hope and pray that the makeup of the Supremes remains in our favor for at least another year.

Seems to me that that is the one thing that could screw us up.
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Old 07-26-2011, 1:55 PM
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Who is Embody or what was his screen name?

Links? So that I can view this from all angles when talking about Mr Embody.
Kwikrnu

http://www.calguns.net/calgunforum/s...d.php?t=458448
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Old 07-26-2011, 1:56 PM
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Quote:
Originally Posted by mrrsquared79 View Post
Who is Embody or what was his screen name?

Links? So that I can view this from all angles when talking about Mr Embody.
kwikrnu is his screen name, on this and many other sites.
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Old 07-26-2011, 2:20 PM
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Originally Posted by Paladin View Post
Let's run with this for a minute to flesh out a timeline.

SCOTUS decides to take a carry case this term.

What does that do to Peterson, Peruta, Richards, and the other carry cases in lower fed cts? My guess is that they all are put on pause pending SCOTUS' decision. So, that means no movement on those until after 29 June 2012.

Okay, we get a real, RKBA ruling (none of this "in your home" BS) on 29 June 2012. Then what? (1) Do we have to wait until those lower courts re-start their carry cases to make their own application of the new carry law in their own decisions? IOW, we will have to wait until fall 2012, winter or spring 2013 before we actually get Shall Issue in CA?

Or, (2) can we go for some sort of Preliminary Injunction to force CA to allow anyone (w/a valid Handgun Safety Certificate?) to carry, thus forcing Sacto politicos to scramble to pass a Shall Issue law?
Hopefully (2). If SAF and NRA succeed in their PIs in Illinois, could we do the same... For this option to work, would it require the Illionois PIs to fail at the lowest level and win on appeal so we could dare the 9th into another circuit split?

With these recent SCOTUS filings, the anticipation is building.
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Old 07-26-2011, 3:08 PM
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If the SCOTUS grant cert in this case it could be large, the SCOTUS could save them self's years of case work with this one case, and once and for all, make it clear that the Constitution is the law of the land, carry could become as common as driving, from coast to coast. No more could a lower court pass law on feeling, but rather on fact. State infringement would be a thing of the past, and as for open cases now in front of the lower courts, they could be rendered moot. A permit to carry could be nothing more then a right to buy, rights don't need permits. And maybe Ambody did some good after all, ( giving the courts some way to weed out nut jobs) in the RKAB debate. I know I am hoping for a lot, but if you shot for the moon you will hit something.
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