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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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  #161  
Old 12-04-2012, 9:11 AM
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Originally Posted by kcbrown View Post
You (and possibly others who argue the heightened efficacy of the PI approach) are failing to account for one very important thing: as regards 2nd Amendment action, the main benefit of the PI approach works only if the court sides with you. Which is to say, only if the PI is actually granted. But the very core of the problem is that the right to keep and bear arms is a right that the majority of relevant courts hate and will do everything in their (considerable) power to minimize. Those courts will not grant our preliminary injunction requests.
That's getting into territory of unrealistic.

The lower courts might not like the right, but no one in their right mind would go directly against a Supreme Court ruling. Very bad for their future careers. There are also recourses.

The rulings we are getting these days represent the lack of established precedent much more than any ideological position held by the courts. The whole game right now is to get a "carry case" in front of SCOTUS and expand on Heller dicta by creating a binding precedent. This will remove the wriggling room courts have now. However, expecting the courts to play outside the rules even after the framework is set is just, well, a stretch.
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  #162  
Old 12-04-2012, 9:19 AM
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Originally Posted by M. D. Van Norman View Post
Any victories at district or circuit are just appetizers before the main course.
Even more importantly, a win at circuit court would require the other side to petition the Supreme Court which they might choose not to do.

Bradys and the rest of the anti gunners all begged Chicago mayor Daley NOT TO appeal, so it was his pig headedness we have to thank for making McDonald ruling possible.

A win at the circuit level on a carry case is most important in creating a circuit split, but a loss is what enables our side to control the process and choose which case to (try to) bring in front of SCOTUS.
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  #163  
Old 12-04-2012, 9:28 AM
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Originally Posted by kcbrown View Post
You (and possibly others who argue the heightened efficacy of the PI approach) are failing to account for one very important thing: as regards 2nd Amendment action, the main benefit of the PI approach works only if the court sides with you. Which is to say, only if the PI is actually granted. But the very core of the problem is that the right to keep and bear arms is a right that the majority of relevant courts hate and will do everything in their (considerable) power to minimize. Those courts will not grant our preliminary injunction requests.
I have, without exception, been extremely impressed with every federal judge I have ever met. They are, without exception, extremely bright, hard-working people who have dedicated their lives to public service. To say that these good people will deny preliminary injunctions without regard to Supreme Court precedent is imprudent. Look at the 7th Circuit's order in Ezell, for an example of a court dutifully swallowing a bitter pill. Once the Supreme Court concludes that the people's RKBA includes public carry (in non-sensitive places), the vast majority of courts are going to fall in line. Yes, there will always be courts who interpret the Supreme Court's decisions narrowly. That is not unique to the RKBA -- think of all the decisions narrowing the right to obtain abortions. But I wholly disagree with your belief that judges in the Ninth Circuit will simply disregard Supreme Court precedent finding the RKBA includes public carry.
  #164  
Old 12-04-2012, 9:28 AM
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Originally Posted by OleCuss View Post
I think that is still a little overly pessimistic.

I think that if the SCOTUS gives clear and explicit guidance on the current 2-step mangling of the 2A that the district courts will start to rule accordingly. You'll end up with pressure from both the lower courts and from the higher court for the circuit courts to respect our rights.
Osterweil v Bartlett acts as evidence otherwise.


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You'll also get a certain amount of peer pressure from other circuits who fairly willingly follow SCOTUS guidance.
Maybe, and such pressure would be meaningful were this an issue that didn't carry this kind of weight. But the right to keep and bear arms is regarded as such a "dangerous" right by the courts in question that I can hardly see "peer pressure" having any meaningful effect on them.
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  #165  
Old 12-04-2012, 9:34 AM
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Originally Posted by Kukuforguns View Post
I have, without exception, been extremely impressed with every federal judge I have ever met. They are, without exception, extremely bright, hard-working people who have dedicated their lives to public service. To say that these good people will deny preliminary injunctions without regard to Supreme Court precedent is imprudent. Look at the 7th Circuit's order in Ezell, for an example of a court dutifully swallowing a bitter pill. Once the Supreme Court concludes that the people's RKBA includes public carry (in non-sensitive places), the vast majority of courts are going to fall in line. Yes, there will always be courts who interpret the Supreme Court's decisions narrowly. That is not unique to the RKBA -- think of all the decisions narrowing the right to obtain abortions. But I wholly disagree with your belief that judges in the Ninth Circuit will simply disregard Supreme Court precedent finding the RKBA includes public carry.
OOIDA v Lindley argues against your position here.

Ezell is not an example of a court swallowing a bitter pill. The 7th Circuit ruled in our favor in that case. It does not conflict with my previous statements.
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The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. Your oath to uphold the Constitution is a joke unless you refuse to enforce unadjudicated laws you believe are Unconstitutional.

The real world laughs at optimism. And here's why.

I hope I end up having to donate another $1000 to CGF... However, this $500 is one I hope to not have to donate...
  #166  
Old 12-04-2012, 9:36 AM
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Originally Posted by IVC View Post
That's getting into territory of unrealistic.

The lower courts might not like the right, but no one in their right mind would go directly against a Supreme Court ruling. Very bad for their future careers. There are also recourses.
Ahem. Osterweil v Bartlett, a case that is about keep and bear in the home. The district court ruled in favor of New York despite Heller and McDonald. Nuff said.
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The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. Your oath to uphold the Constitution is a joke unless you refuse to enforce unadjudicated laws you believe are Unconstitutional.

The real world laughs at optimism. And here's why.

I hope I end up having to donate another $1000 to CGF... However, this $500 is one I hope to not have to donate...
  #167  
Old 12-04-2012, 9:54 AM
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Originally Posted by kcbrown View Post
Ahem. Osterweil v Bartlett, a case that is about keep and bear in the home. The district court ruled in favor of New York despite Heller and McDonald. Nuff said.
It wasn't his home. It was a part time vacation residence. His home is in Louisiana.
  #168  
Old 12-04-2012, 10:16 AM
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Originally Posted by kcbrown View Post
Osterweil v Bartlett acts as evidence otherwise.
.
.
.
Assuming that the cited case is relevant, you do understand that a sample of one case does not make a statistically supportable argument.

It may be evidence, but it is not convincing evidence.
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  #169  
Old 12-04-2012, 10:23 AM
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Originally Posted by Gray Peterson View Post
It wasn't his home. It was a part time vacation residence. His home is in Louisiana.
So you're saying they would have ruled in his favor if it had been his primary residence?

Doesn't the law traditionally recognize "wherever you are legally sleeping" (I don't know any legal terms) as having home-like benefits?
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  #170  
Old 12-04-2012, 10:34 AM
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Originally Posted by OleCuss View Post
Assuming that the cited case is relevant, you do understand that a sample of one case does not make a statistically supportable argument.
Of course.


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It may be evidence, but it is not convincing evidence.
It is an existence proof that the district courts can ignore Supreme Court jurisprudence if they so choose.
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The real world laughs at optimism. And here's why.

I hope I end up having to donate another $1000 to CGF... However, this $500 is one I hope to not have to donate...
  #171  
Old 12-04-2012, 10:34 AM
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Originally Posted by speedrrracer View Post
So you're saying they would have ruled in his favor if it had been his primary residence?

Doesn't the law traditionally recognize "wherever you are legally sleeping" (I don't know any legal terms) as having home-like benefits?
He would not had a problem in re NY law if he had.

Let me also remind everyone that Osterweil in district court was pro se litigation. Paul Clement may have represented at appeals, but district court was done by Osterweil.
  #172  
Old 12-04-2012, 10:36 AM
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Originally Posted by Gray Peterson View Post
He would not had a problem in re NY law if he had.
That doesn't necessarily follow.


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Let me also remind everyone that Osterweil in district court was pro se litigation. Paul Clement may have represented at appeals, but district court was done by Osterweil.
Now that is something I did not know.

And it means that the real litmus test here is going to be how the 2nd Circuit rules on it.

I predict they will rule against Osterweil, in an attempt to narrow the scope of the 2nd Amendment as much as possible.
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The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. Your oath to uphold the Constitution is a joke unless you refuse to enforce unadjudicated laws you believe are Unconstitutional.

The real world laughs at optimism. And here's why.

I hope I end up having to donate another $1000 to CGF... However, this $500 is one I hope to not have to donate...
  #173  
Old 12-04-2012, 12:12 PM
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Ezell is not an example of a court swallowing a bitter pill. The 7th Circuit ruled in our favor in that case. It does not conflict with my previous statements.
Perhaps I need to be more explicit. The 7th Circuit's decision in McDonald (not to mention Chicago's laws) indicate that the 7th Circuit is not a friend of the RKBA. Nevertheless, following McDonald, the 7th Circuit issued the Ezell opinion, which is much less antagonistic to the RKBA. As you say, it ruled in favor of the RKBA. By issuing that order -- an order that is inconsistent with the perceived inclinations of the 7th Circuit -- the 7th Circuit swallowed a bitter pill. It did something it did not like -- it ruled in favor of the RKBA. In other words, Ezell is evidence for the proposition that, in the context of the RKBA, federal courts are able to put aside personal feelings.
  #174  
Old 12-04-2012, 12:21 PM
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Originally Posted by Kukuforguns View Post
Perhaps I need to be more explicit. The 7th Circuit's decision in McDonald (not to mention Chicago's laws) indicate that the 7th Circuit is not a friend of the RKBA. Nevertheless, following McDonald, the 7th Circuit issued the Ezell opinion, which is much less antagonistic to the RKBA. As you say, it ruled in favor of the RKBA. By issuing that order -- an order that is inconsistent with the perceived inclinations of the 7th Circuit -- the 7th Circuit swallowed a bitter pill. It did something it did not like -- it ruled in favor of the RKBA. In other words, Ezell is evidence for the proposition that, in the context of the RKBA, federal courts are able to put aside personal feelings.
At least some courts. The question is how pervasive this will be as SCOTUS issues more rulings that more clearly define the extent of the right.
  #175  
Old 12-04-2012, 12:32 PM
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At least some courts. The question is how pervasive this will be as SCOTUS issues more rulings that more clearly define the extent of the right.
Not to follow SCOTUS on an explicit ruling is a counterpart of a coup.

We should be much more worried about which cases and when are going to reach SCOTUS and the likely outcomes based on the facts presented in those cases.
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  #176  
Old 12-04-2012, 12:44 PM
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Originally Posted by Kukuforguns View Post
Perhaps I need to be more explicit. The 7th Circuit's decision in McDonald (not to mention Chicago's laws) indicate that the 7th Circuit is not a friend of the RKBA. Nevertheless, following McDonald, the 7th Circuit issued the Ezell opinion, which is much less antagonistic to the RKBA. As you say, it ruled in favor of the RKBA. By issuing that order -- an order that is inconsistent with the perceived inclinations of the 7th Circuit -- the 7th Circuit swallowed a bitter pill. It did something it did not like -- it ruled in favor of the RKBA. In other words, Ezell is evidence for the proposition that, in the context of the RKBA, federal courts are able to put aside personal feelings.
That's true, but I would argue that the 7th Circuit has been an outlier in that respect.

The reason I'd argue such is that the 7th Circuit actually heeded and adopted the reasoning behind the Heller and McDonald decisions. The majority of the courts have not done this. Instead, those courts have strictly limited their decision-making process to the holdings of Heller and McDonald. But per Supreme Court jurisprudence, the holdings themselves are not the extent of the jurisprudence set forth by the Supreme Court -- the reasoning behind the decisions are also part of the jurisprudence the Court builds. Gura referred, in at least one (and actually several, if I remember right) of his briefs, to a Supreme Court ruling that explicitly states such, but I can't for the life of me remember what brief(s) would have that reference.

Every court in the country which has asserted that the right (either in its entirety or at its core) is limited to the home per Heller and McDonald is intentionally going against Supreme Court jurisprudence. This behavior hasn't been the exception, it's been the rule.

You can't argue that these courts have been following Supreme Court jurisprudence when they pick and choose which jurisprudence to follow!
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The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. Your oath to uphold the Constitution is a joke unless you refuse to enforce unadjudicated laws you believe are Unconstitutional.

The real world laughs at optimism. And here's why.

I hope I end up having to donate another $1000 to CGF... However, this $500 is one I hope to not have to donate...

Last edited by kcbrown; 12-04-2012 at 12:47 PM..
  #177  
Old 12-04-2012, 1:11 PM
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Another way to look at what is happening is that the courts are actually being conservative.

So rather than invalidating a lot of laws by asserting that Heller/McDonald covers carry outside the home they are not assuming the role which should be occupied by the various legislatures.

Let's be rather blunt here. . . All those horrible, rights-trampling laws over which we rage at the courts for not overturning - were passed and signed into law by our elected officials. To claim it is the fault of the courts that those laws still exist is (to a significant extent) to mis-place responsibility.

And if you want a judiciary which is not totally out of control you might want to appreciate and encourage the courts when they do not willy-nilly overturn duly enacted laws.

This may sound strange from a person who strongly believes in the RKBA, but Heller and McDonald should fill us with sadness. The SCOTUS should never have had to intervene by writing those opinions. The POTUS, the Congress, and the various state officials (elected and unelected) should have been enforcing the RKBA since at least the passage of the 14th Amendment.

And what is a non-SCOTUS court to do when SCOTUS did not tell them how to implement the rulings we treasure? Especially when SCOTUS has since repeatedly refused to hear another good RKBA case?

In a sense the SCOTUS has been endorsing what the lower courts have been doing by refusing to take a case and render an opinion which would prevent the currently exceedingly narrow interpretations of Heller and McDonald.

The lower courts and circuits are in a difficult position right now. I hope SCOTUS will take a good case and correct the current idiocy, but I will mourn on the day that they do for the fact that they have to do this implies that the Executive and Legislative branches of our government have to be forced to show even minimal respect for our rights.

Right now the only branch of our government which is functionally even marginally at protecting our rights are the courts. Probably not wise to inveigh against them when they aren't responsible for the oppressive laws and are gradually fixing them.
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  #178  
Old 12-04-2012, 1:12 PM
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You can't argue that these courts have been following Supreme Court jurisprudence when they pick and choose which jurisprudence to follow!
No, what I am arguing is that once the Supreme Court holds that the RKBA extends to public areas (other than sensitive areas, which will require further litigation to define), the vast majority of courts will apply that holding.

Look, the Supreme Court intentionally issued two very limited opinions. Although I disagree with how the lower courts have applied Heller/McDonald to public carry cases, I believe that the holdings are not directly contrary to Heller/McDonald.

The lower courts, like many posters on this board, know that the scope of the RKBA depends upon a conservative majority on the Supreme Court. They know that if the Court changes its composition to a liberal majority before the scope of the RKBA is resolved, that the scope of the RKBA will be much narrower than if resolved with the Court's current composition. Accordingly, the lower courts that want a narrow RKBA, interpret Heller/McDonald as narrowly as they can. These decisions are creating their own precedent that will persist until the S. Ct. issues a contradictory opinion. If, because of a change in composition, the S. Ct. never issues a contradictory opinion, then the lower courts will have prevailed without ever having directly misapplied S. Ct. precedent. They are, in short, playing a waiting game.

On the other hand, I think that the odds of the S. Ct. accepting a public carry case in the relatively near future went up as a result of President Obama's victory. I'm not concerned we're going to lose the majority in the next 4 years. I'm concerned that the next President of the U.S. will not be a friend of the RKBA, and that we will lose the majority in the next 8 years.
  #179  
Old 12-04-2012, 1:44 PM
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No, what I am arguing is that once the Supreme Court holds that the RKBA extends to public areas (other than sensitive areas, which will require further litigation to define), the vast majority of courts will apply that holding.
I do concede that as a possibility. I'm not confident of it (guns in public is very different, and much scarier to anti-gun courts, than guns in the home), but I admit it's possible.


Quote:
Look, the Supreme Court intentionally issued two very limited opinions. Although I disagree with how the lower courts have applied Heller/McDonald to public carry cases, I believe that the holdings are not directly contrary to Heller/McDonald.
But their reasoning is directly contrary to Heller and McDonald to the extent they rely on the notion that the 2nd Amendment does not extend outside the home until the Supreme Court explicitly holds that it does. Gura's brief in Masciandaro points this out:

Quote:
Originally Posted by SAF Cert Amicus Brief for Masciandaro
The Court’s extensive discussion of carrying firearms outside the home was not dictum. It is well established that
Quote:
Originally Posted by Seminole Tribe of Fla. v Florida
When an opinion issues for the Court, it is not only the result but also those portions of the opinion necessary to that result by which we are bound . . . the principle of stare decisis directs us to adhere not only to the holdings of our prior cases, but also to their explications of the governing rules of law. . . .
Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 67 (1996) (citations and internal quotation marks omitted).
Again, you can't argue that the lower courts are following Supreme Court jurisprudence when they are picking and choosing which bits of that jurisprudence to follow!


Quote:
The lower courts, like many posters on this board, know that the scope of the RKBA depends upon a conservative majority on the Supreme Court. They know that if the Court changes its composition to a liberal majority before the scope of the RKBA is resolved, that the scope of the RKBA will be much narrower than if resolved with the Court's current composition. Accordingly, the lower courts that want a narrow RKBA, interpret Heller/McDonald as narrowly as they can. These decisions are creating their own precedent that will persist until the S. Ct. issues a contradictory opinion. If, because of a change in composition, the S. Ct. never issues a contradictory opinion, then the lower courts will have prevailed without ever having directly misapplied S. Ct. precedent. They are, in short, playing a waiting game.
I agree. However, even if the Supreme Court issues a ruling on the issue, the lower courts can still ignore it in the hopes that it will reverse itself once its composition changes.


Quote:
On the other hand, I think that the odds of the S. Ct. accepting a public carry case in the relatively near future went up as a result of President Obama's victory. I'm not concerned we're going to lose the majority in the next 4 years.
You should be.


Quote:
I'm concerned that the next President of the U.S. will not be a friend of the RKBA, and that we will lose the majority in the next 8 years.
That is a grave concern of mine as well. In light of that very real possibility, why wouldn't the anti-gun courts ignore, to the extent that they can get away with it (meaning, right up to, but not to, the point where the Supreme Court issues arrest orders against them), any Supreme Court decisions that support RKBA in public?
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The real world laughs at optimism. And here's why.

I hope I end up having to donate another $1000 to CGF... However, this $500 is one I hope to not have to donate...

Last edited by kcbrown; 12-04-2012 at 1:48 PM..
  #180  
Old 12-04-2012, 2:01 PM
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Default Something to consider

Heller and MacDonald had to get Justice Kennedy on board. Justice Kennedy probably was concerned about opening a Pandora's box with regard to gun rights.

As we head to future cases in front of the SCOTUS, the court will have had a track record since mid 2008 to see how the lower courts would use Heller.

What the lower courts have shown the SCOTUS is that there won't be an expansive and reckless application of the second amendment that has happened with other rights that the courts do like.

In the meantime, other rights get ruled on and the lower courts jump on rights they like.
Like it or not, the bill of rights is a chain and all the rights are interdependent links.

Many on both the right and left don't get this, they think they can pick and choose which is why the bill of rights is in shreds.

I predict that the US Supreme court will rule that gay marriage is a constitutional right under equal protection under the law, it will be at least a 5 to 4 ruling with Kennedy being the swing vote.

Equal protection, right to travel and I am sure some other rights will be connected when we finally get a carry case in front of the SCOTUS.

Gay Marriage is going to help carry, especially here in the 9th.

The lower courts are stumbling over themselves figuring creative ways to undermine our rights and ignore the intent and spirit of the Heller case.

IMHO, Heller was written in such a way to give the lower courts plenty of room to hang one's self.

Right now we are in a jam for at least the next two years because certain republican candidates may have cost Romney not only the election, but possibly numerous US Senate seats as well.

The Senate confirms federal appeal court judges and having a track record of voting the wrong way on the second amendment may possibly derail nominations.

Since there will be few gun bills, judicial nominations will become a factor in rating how pro gun a senator is.

A judge who has ruled the wrong way on gun cases will put senators on notice. The republicans have shot themselves in the head on social issues and as such have to find something to rebuild on.

Gun rights and the other rights that are inter-connected by default will be a vehicle.

As Gene says, this is a chess game and in a chess is a war game where pieces are either lost or sacrificed in order to win the game.

One key thing that must be done to win a chess game is to be on offense and having the other side of balance and playing defense.

The other side is playing defense and although we do have setbacks, the truth is we are moving forward. Gun sales are up, CCW permits are up, crime is down and Americans are turning against prohibition as a government policy.

Winning starts with an attitude, if you believe you are a loser, you are.


Nicki

Last edited by nicki; 12-05-2012 at 1:54 AM..
  #181  
Old 12-04-2012, 2:15 PM
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That is a grave concern of mine as well. In light of that very real possibility, why wouldn't the anti-gun courts ignore, to the extent that they can get away with it (meaning, right up to, but not to, the point where the Supreme Court issues arrest orders against them), any Supreme Court decisions that support RKBA in public?
Because the people who make the decisions are good people who strongly believe that they must abide the rulings of the S. Ct. You seem unwilling to accept the difference between a lower court reading a S. Ct. opinion narrowly and a lower court issuing a ruling that is directly contrary to S. Ct. precedent. Read OleCuss's post. It's a good post. Courts have a longstanding tradition of reluctance to declare the work of the Legislative branch to be unconstitutional. I think that the lower courts' refusal to apply the RKBA is based upon something more than that reluctance. Nevertheless, the lower courts are reading Heller/McDonald in a way that the S. Ct. invited. Both cases are replete with language claiming the opinions are limited.

Quote:
the lower courts can still ignore it in the hopes that it will reverse itself once its composition changes.
I suggest that the Court is unlikely to reverse itself. Before a liberal majority would reverse Heller/McDonald they would have to be very sure that there would never again be a conservative majority, because a conservative majority could reverse Roe v. Wade. That being said, the scope of the RKBA is largely unresolved. A liberal majority could neuter the RKBA without ever reversing Heller/McDonald.
  #182  
Old 12-04-2012, 2:15 PM
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This may sound strange from a person who strongly believes in the RKBA, but Heller and McDonald should fill us with sadness. The SCOTUS should never have had to intervene by writing those opinions. The POTUS, the Congress, and the various state officials (elected and unelected) should have been enforcing the RKBA since at least the passage of the 14th Amendment.
Actually, the founders knew that government would eventually act to violate the terms set forth in the constitution, which is why they gave us a federal court. The whole point is to use the court to force government back into the narrow channels allowed to them. So from that perspective, Heller and McDonald don't trouble me at all. The need to overturn bad laws was predicted right from the get-go.

The founders also worried that the federal courts wouldn't do what they were designed to do. For a long time those worries seemed without foundation, but somewhere after the civil war the courts started proving that they wouldn't necessarily act to uphold the letter and intent of the constitution. In fact, Slaughter-House was (to my knowledge) the first time that the Supreme Court deliberately thumbed it's nose at the legislative branch, and the plain meaning of a portion of the constitution. It wasn't the last time.

Since the 1930's, we've had a long, tortured history of the federal courts deliberately, step by step, working to dead letter the Second Amendment. They used some seriously broken logic to do it too. That we somehow ended up with Heller and McDonald was actually a bit of a historical oddity when viewed against the actions of the courts relative to gun control throughout the 20th century.

Now that the lower courts are fixated on the In The Home argument, this is just more of the same dead-lettering activities that the courts have engaged in for 80 years. We could have put an end to that nonsense with a Republican President and the promise of an originalist SCOTUS for decades to come. But with the country voting liberal, the lower courts are content to bide their time, delay, and wait for the composition of the Supreme Court to change so they can dead letter the Second Amendment once and for all.

This, they will do unless we work to protect or even strengthen the originalist philosophy in the federal courts. You can count on it.
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  #183  
Old 12-04-2012, 2:34 PM
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I suggest that the Court is unlikely to reverse itself. Before a liberal majority would reverse Heller/McDonald they would have to be very sure that there would never again be a conservative majority, because a conservative majority could reverse Roe v. Wade.
A conservative majority could reverse Roe v Wade, but to do so would mean they would be ignoring stare decisis, which is a conservative construct (meaning that it minimizes change). And while conservatism has changed its nature over time, it still has some elements of traditional conservatism (reluctance to change).

A liberal majority would be a majority composed of people who believe that the Constitution means what they want it to mean. Stare decisis would be used by such people only to bolster their arguments to uphold and reinforce decisions they agree with. Said majority would almost certainly realize that a conservative majority would be more inclined to follow stare decisis than they would, and so would probably be relatively unconcerned about the possibility of Roe v Wade being reversed.


Quote:
That being said, the scope of the RKBA is largely unresolved. A liberal majority could neuter the RKBA without ever reversing Heller/McDonald.
That depends partly on how much Supreme Court jurisprudence is built up before they gain control. If the liberal majority is inclined to ignore stare decisis for the decisions in question, then it could neuter RKBA entirely, including reversing Heller and McDonald. But absent such an inclination, the degree of neutering would depend on how much of the right has already been spelled out by the Court previously.
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  #184  
Old 12-04-2012, 2:46 PM
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We can't afford a delay of 3 years (probability of losing at least one of the Heller 5 to death in that time frame: roughly 37%). I'd argue that we can't even afford a delay of 2 years (25% probability of losing a Heller 5 justice to death).
Well if you recall there are several related cases. Bircht v. Beck would in all likelihood by heard first as it is already on appeal in the incredibly unlikely chance that both get remanded as that case has been fully briefed.

Counsel in Peruta filed a motion that listed all the related cases. Apparently the relief sought is identical to Peruta.
Quote:
The Birdt appeal seeks almost identical relief as the Peruta appellants (i.e.,
that issuing authorities must recognize self-defense as “good cause” for issuance
of a Carry License because such a license is the only manner to lawfully bear arms
in California).3
http://michellawyers.com/wp-content/...tus-Therof.pdf

Last edited by wolfwood; 12-04-2012 at 2:52 PM..
  #185  
Old 12-04-2012, 2:56 PM
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We can't afford a delay of 3 years (probability of losing at least one of the Heller 5 to death in that time frame: roughly 37%). I'd argue that we can't even afford a delay of 2 years (25% probability of losing a Heller 5 justice to death).
Have a think on this. There is an Obama super majority in the senate. Democrats are making noises about abolishing the filibuster. The Constitution does not specify the number of justices on the Supreme Court.

At least two presidents, Lincoln & FDR, have in the past gotten what they wanted out of SCOUTS by merely threatening to pack the court. Appoint two new justices and our 5-4 becomes 6-5, time is of the essence!

Look it up. It is true. Does anyone really put that kind of slimy crap past Obama?! Be afraid; then get off your butt and start writing checks and letters.
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Last edited by retired; 12-07-2012 at 6:48 PM..
  #186  
Old 12-04-2012, 3:02 PM
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There is an Obama super majority in the senate.
Not quite.
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  #187  
Old 12-04-2012, 3:16 PM
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That's getting into territory of unrealistic.

The lower courts might not like the right, but no one in their right mind would go directly against a Supreme Court ruling. Very bad for their future careers. There are also recourses.

The rulings we are getting these days represent the lack of established precedent much more than any ideological position held by the courts. The whole game right now is to get a "carry case" in front of SCOTUS and expand on Heller dicta by creating a binding precedent. This will remove the wriggling room courts have now. However, expecting the courts to play outside the rules even after the framework is set is just, well, a stretch.
????????What! How many how many lower court judges do the Justices appoint? Lower court judges need to kiss up to POTUS and senators.
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  #188  
Old 12-04-2012, 3:22 PM
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I have, without exception, been extremely impressed with every federal judge I have ever met. They are, without exception, extremely bright, hard-working people who have dedicated their lives to public service. To say that these good people will deny preliminary injunctions without regard to Supreme Court precedent is imprudent. Look at the 7th Circuit's order in Ezell, for an example of a court dutifully swallowing a bitter pill. Once the Supreme Court concludes that the people's RKBA includes public carry (in non-sensitive places), the vast majority of courts are going to fall in line. Yes, there will always be courts who interpret the Supreme Court's decisions narrowly. That is not unique to the RKBA -- think of all the decisions narrowing the right to obtain abortions. But I wholly disagree with your belief that judges in the Ninth Circuit will simply disregard Supreme Court precedent finding the RKBA includes public carry.
Please! Spin me some more cotton candy clouds to go with my unicorn farts!
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  #189  
Old 12-04-2012, 3:46 PM
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Not quite.
What can I say, Iím mathematically challenged I guess.
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  #190  
Old 12-04-2012, 3:59 PM
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????????What! How many how many lower court judges do the Justices appoint? Lower court judges need to kiss up to POTUS and senators.
There is more to being a professional than the confirmation hearings.
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  #191  
Old 12-04-2012, 4:25 PM
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There is more to being a professional than the confirmation hearings.
There's nothing more to getting the job than the nomination and the confirmation hearings, and once you've got the job, you're set for life. There probably isn't a job out there that has more job security than a federal court appointment does.

More to the point, the politicians are the only people that matter when it comes to getting a job on the bench (be it at SCOTUS, a circuit court, or a district court).

The rulings that a judge issues are entirely irrelevant to their career advancement except to the degree they impress or repulse politicians. Politicians are corrupt and evil, because their entire purpose in life is to pass legislation restricting the freedom of the citizenry while simultaneously convincing the citizenry that said restrictions are somehow a good thing. As such, politicians aren't going to give a flying fig about how consistent those rulings are with respect to Supreme Court jurisprudence, nor how legally brilliant they are, except to the degree they affect the one thing the politicians are going to care about: how effective the candidate would be in advancing the politician's political agenda. For a SCOTUS appointment, the consistency of the judge's rulings with Supreme Court jurisprudence is of no consequence whatsoever, because the SCOTUS positioning means the candidate will have the power to ignore that jurisprudence entirely.
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Last edited by kcbrown; 12-04-2012 at 4:43 PM..
  #192  
Old 12-04-2012, 5:00 PM
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Have a think on this. There is an Obama super majority in the senate. Democrats are making noises about abolishing the filibuster. The Constitution does not specify the number of justices on the Supreme Court.

At least two presidents, Lincoln & FDR, have in the past gotten what they wanted out of SCOUTS by merely threatening to pack the court. Appoint two new justices and our 5-4 becomes 6-5, time is of the essence!

Look it up. It is true. Does anyone really put that kind of slimy crap past Obama?! Be afraid; then get off your butt and start writing checks and letters.
Hello McFly!

CONGRESS regulates the Federal Courts. No President can change the number of seats on the Court. Period. Done. Thanks for playing.

And do date, Obama's extra/unConstitutional actions still poll badly. As would Reid trying to do the nuclear option with so many vulnerable Dems up in '14.
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Last edited by retired; 12-07-2012 at 6:48 PM..
  #193  
Old 12-05-2012, 5:40 AM
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Well if you recall there are several related cases. Bircht v. Beck would in all likelihood by heard first as it is already on appeal in the incredibly unlikely chance that both get remanded as that case has been fully briefed.

Counsel in Peruta filed a motion that listed all the related cases. Apparently the relief sought is identical to Peruta.

http://michellawyers.com/wp-content/...tus-Therof.pdf
Did he NOTIFY the State lol?
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  #194  
Old 12-05-2012, 6:11 AM
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Did he NOTIFY the State lol?
I'd argue he'd likely not need to since the relief he seeks is similar to the current version of Peruta where they are only seeking to challenge the interpretation of CA CCW statute.
  #195  
Old 12-05-2012, 11:07 AM
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Hopefully there will be one or more people Tweeting in the audience.

Who will be tweeting, what accounts?
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  #196  
Old 12-05-2012, 12:04 PM
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I have been doing my best not to get drawn into this, but I must comment here that it begs the question of who decides who are " people who are not competent in strategic civil rights litigation."

Sure, there are some obvious examples. Others are less obvious. However, in this case, the judgement is being made by those who think they are the only ones who are competent, and therefore have a vested interest in trashing the others.
The vested interest is saving the Second Amendment's full effect, not filing lawsuits purely as a fundraising gimmick (NRA-ILA v. Chicago).

Almost no one trashed Thurgood Marshall & Charles Hamilton Houston in the black community (except for the ones who generally were violent revolutionary types) when they were litigating the college schooling & equal government pay issues in the years of leadup to Brown, because on top of just generally needing to survive, they knew that slinging arrows at their competent litigators (as NRA-ILA aligned people kept doing to Gura and keeps doing so until this day) was unwanted, there simply was too much was at stake. You can bet that Marshall & Houston and the people around them did everything to discourage "crazy person"/fundraising gimmick lawsuits. Some gun owners, and some gun rights litigators, confuse ego with competence.

Remember: NRA-ILA started the war of competence first. They accused Gura of filing litigation with no 2A experience or no competence on the issue, despite the fact that he was a former Deputy AG for the State of California who defended it in civil litigation (and therefor has a keen eye to errors made typically by plaintiffs). Gura proved them wrong and won Parker. He almost didn't win Parker because Mr. Halbrook filed sham litigation in Seegars naming John Ashcroft as one of the defendants, thinking that because of the recent change in interpretation at the federal level, they would side with the NRA's case and essentially screw over DC.

It did not happen that way because Halbrook has no idea how the US Justice Department works. Seegars bringing the much more competent counsel of the US DOJ over the incompetent counsel of the DC AG's office, they brought up defenses that the City did not bring up, such as standing. After Heller applied for gun registration and was denied, and when USDOJ brought up the standing issue, and the other Parker plaintiffs went down to attempt to register their guns, the Metro Police Department refused to give them applications and closed the window on them.

All this because Halbrook & the NRA-ILA had to control the 2A narrative at all costs.

Quote:
I have the greatest respect for Gura. But I am a little tired of the "Drink the Koolaid" cult that surrounds him.
Santa Maria & Torrance were not wins for the TBJ camp, despite it being done by lawyers supposedly more familiar with Preston's work.
  #197  
Old 12-05-2012, 12:40 PM
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Hopefully there will be one or more people Tweeting in the audience.

Who will be tweeting, what accounts?
I'll have @combs_brandon, at least 3 there will have @CalgunsFdn, and I'll have @2AFDN running also.

-Brandon
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  #198  
Old 12-05-2012, 1:04 PM
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The vested interest is saving the Second Amendment's full effect, not filing lawsuits purely as a fundraising gimmick (NRA-ILA v. Chicago).
Your judgement again.

Quote:
Originally Posted by Gray Peterson View Post
Santa Maria & Torrance were not wins for the TBJ camp, despite it being done by lawyers supposedly more familiar with Preston's work.
Who brought Preston into this? I do have a mind of my own.

And you guys took over Preston's work in Santa Clara and lost that one, despite reworking it to suit your idea of where Preston got it wrong. Are you the right people to throw stones?
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Last edited by Glock22Fan; 12-05-2012 at 1:06 PM..
  #199  
Old 12-05-2012, 1:30 PM
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... because Mr. Halbrook filed sham litigation

It did not happen that way because Halbrook has no idea how the US Justice Department works.

All this because Halbrook & the NRA-ILA had to control the 2A narrative at all costs.
Don't throw Steven under the bus or anything...
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Old 12-05-2012, 1:32 PM
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My one concern with the current state of things is its essentially two guys currently doing all the litigation. Donald Kilmer and Alan Gura. The victories have been easy cases like the various resident alien case or criminal defense attorney's pulling off small miracles when the issue was forced on them such as in Yanna and to a lessor degree Weaver. The one thing that, in the long run, the NRA guys in California are doing better is they are part of big firms so their younger guys are getting groomed to take over. Its not like Second Amendment litigation going to be decided in 20 years. Gitlow incorporated freedom of speech in 1914 and the body of law is still being built on. While I am sure their is something being done it does not appear like a new generation is being groomed. Levy and Clark Nelly were the motivating forces behind Heller but went back to other worthy pursuits. It seems like SAF should reach out to Nelly's Institute for Justice or follow their model in order to groom a new generation. Either that or figure out some accord with the NRA where the NRA still gets credit but SAF works independently. I may be speaking from ignorance as I only recently began learning about the politics involved here. If there is a preexisting plan please do correct me.


edit as to Mr. Halbrook. I don't know about his abilities as a lawyer but I do know that I drafted all of the history in Baker and his material was very helpful. Regardless of how he is in other fields he is a fine historian.

Last edited by wolfwood; 12-05-2012 at 2:10 PM..
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