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2nd Amend. Litigation Updates & Legal Discussion Discuss California 2A related litigation and legal topics here. All advice given is NOT legal counsel.

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  #1  
Old 09-27-2014, 12:04 PM
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Arrow 9th Circuit: Wolfson v. Concannon going en banc

Non-2A related, but I'm thinking that like the en banc rehearing decision in Henry v. Ryan mentioned here (which I read in its entirety on my last flight because I like habeas stuff) (BTW, thanks, Librarian ), it could have ramifications in the future Peruta decisions by the Court, no?

I saw that Wolfson v. Concannon (750 F.3d 1145 (9th Cir.2014)) is to be reheard en banc. The decision was made yesterday.

"Three judges, three opinions. Still, they all agreed that the rules prohibiting speechifying, endorsements, and fundraising “present the closest question.”" (Collins, 2014, para. 6) (speaking of the previous three Judge panel opinion).

The Court even notes that "[e]very sister circuit except the Seventh that has considered similar regulations since White I has applied strict scrutiny as the standard of review. [Citing] Wersal v. Sexton, 674 F.3d 1010, 1019 (8th Cir. 2012) (en banc), cert. denied, 133 S. Ct. 209 (2012); Carey, 614 F.3d at 198–99; White II, 416 F.3d at 749, 764–65; Weaver v. Bonner, 309 F.3d 1312, 1319 (11th Cir. 2002)." (Op. at page 15).

Which also leads me to ask the question of why would the Court agree to re-hear the case en banc if there was not as much a circuit split on this question and the balancing test used here has (as I thought) just about already been settled in District of Columbia v. Heller, 554 U.S. 570, 635-636 (2008) (not mentioned here). Additionally, could this (in addition to Henry v. Ryan) affect any future decision in Peruta v. County of San Diego? From a Constitutional law standpoint, is this discussion of balancing different than in Justice Breyer's championed one in Heller and McDonald, or is interest-balancing the same loose animal wherever you go in the Constitution? I don't have the en banc petition brief(s), so I'm a bit . Maybe I just need a sandwich and a nap.

Erik.

Reference:
Collins, R. K.L. (2014, May 14). Free Speech & Judicial Elections: The Return of Kaus’ Crocodile. FAN 15 (First Amendment News). Retrieved from http://www.concurringopinions.com/ar...crocodile.html

Last edited by Window_Seat; 09-27-2014 at 12:13 PM.. Reason: To provide a link to the previous three Judge panel opinion
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Old 09-27-2014, 12:28 PM
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We are looking too much into the "statistical justification" for court behavior, such as composition of the judges, similar cases, types and amounts of splits, etc.

In case of Peruta there are (at least) four problems with en banc: (1) the dissent in Peruta was not based on "the right to carry does not exist outside the home," but on "we were not asked to decide on the right to carry, only on the licensing scheme," (2) the majority opinion is extremely closely aligned with Heller and addresses all the inconsistencies of the split circuits, (3) no matter what happens in Peruta, Moore in CA-7 stands, and (4) a reversal of Peruta would *guarantee* filing of a cert, unlike what happened in Moore.

If we assume that judges are political activists who want to push their world view on us, we also have to assume that those same judges understand the consequences of SCOTUS taking this case and ruling against them once and for all. There is simply too much risk for anyone who is a calculated politician as we've *already seen* with AG Madigan in IL.
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Old 09-27-2014, 12:44 PM
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Quote:
Originally Posted by IVC View Post
We are looking too much into the "statistical justification" for court behavior, such as composition of the judges, similar cases, types and amounts of splits, etc.

In case of Peruta there are (at least) four problems with en banc: (1) the dissent in Peruta was not based on "the right to carry does not exist outside the home," but on "we were not asked to decide on the right to carry, only on the licensing scheme," (2) the majority opinion is extremely closely aligned with Heller and addresses all the inconsistencies of the split circuits, (3) no matter what happens in Peruta, Moore in CA-7 stands, and (4) a reversal of Peruta would *guarantee* filing of a cert, unlike what happened in Moore.

If we assume that judges are political activists who want to push their world view on us, we also have to assume that those same judges understand the consequences of SCOTUS taking this case and ruling against them once and for all. There is simply too much risk for anyone who is a calculated politician as we've *already seen* with AG Madigan in IL.


^^ I can only hope.

Maybe i’m getting cynical, but the with the way the courts - in my opinion - continue to ad hoc rule loosely based precedence (more like ignoring it completely) and the way Henry v Ryan is being reheard, I just don’t know how to feel anymore.
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Old 10-07-2014, 10:53 AM
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Quote:
Originally Posted by IVC View Post
We are looking too much into the "statistical justification" for court behavior, such as composition of the judges, similar cases, types and amounts of splits, etc.

In case of Peruta there are (at least) four problems with en banc: (1) the dissent in Peruta was not based on "the right to carry does not exist outside the home," but on "we were not asked to decide on the right to carry, only on the licensing scheme," (2) the majority opinion is extremely closely aligned with Heller and addresses all the inconsistencies of the split circuits, (3) no matter what happens in Peruta, Moore in CA-7 stands, and (4) a reversal of Peruta would *guarantee* filing of a cert, unlike what happened in Moore.

If we assume that judges are political activists who want to push their world view on us, we also have to assume that those same judges understand the consequences of SCOTUS taking this case and ruling against them once and for all. There is simply too much risk for anyone who is a calculated politician as we've *already seen* with AG Madigan in IL.
Risk must include consequences. Here, the consequences to the judges are nil. Since there are no consequences to the judges for whatever they do, there is thus no risk to them. There is only the risk that they might not get what they want with respect to pushing their worldview. That is very different from the risk to Madigan, whose very position in the political realm is dependent upon the good graces of those in her party. The risk to her was real, and she acted accordingly.


Yes, the judges wish to push their worldview on us, and yes, they won't be happy if it doesn't work, but they do not win if they give up the way you claim they would.

Put another way, you're arguing that a certain loss in what is arguably the most valuable (to the antis) anti-RKBA circuit in the country, and the resulting ripple effects of that, is somehow less of a risk than the mere possibility that SCOTUS will grant cert to the case and overturn the en banc decision.

No, clearly a 100% guaranteed loss here is "riskier" than what amounts to something like a 20% chance (based on the past behavior of SCOTUS with respect to carry cases) of a cert grant to Peruta (and even if cert is granted, we don't know for sure that SCOTUS will overturn the en banc decision -- we just have substantial expectations of that).
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Old 11-01-2014, 11:52 PM
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Exactly. If they do not go en banc the ruling they do not like stands. If they do go en banc either the ruling they do not like will still stand, or, they reverse and take a shot at upholding their reversal at the USSC.

However, there may be something to leaving it lie for now, hoping to revisit in other cases or other jurisdictions when they think they have a shot. The risk of that tactic is that culture will shift away from their worldview and politicians will override them. But all that is better than an absolute ruling that ties everyone's hands in the future.
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Old 11-02-2014, 8:30 AM
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Quote:
Originally Posted by kcbrown View Post
Risk must include consequences. Here, the consequences to the judges are nil. Since there are no consequences to the judges for whatever they do, there is thus no risk to them. There is only the risk that they might not get what they want with respect to pushing their worldview. That is very different from the risk to Madigan, whose very position in the political realm is dependent upon the good graces of those in her party. The risk to her was real, and she acted accordingly.


Yes, the judges wish to push their worldview on us, and yes, they won't be happy if it doesn't work, but they do not win if they give up the way you claim they would.

Put another way, you're arguing that a certain loss in what is arguably the most valuable (to the antis) anti-RKBA circuit in the country, and the resulting ripple effects of that, is somehow less of a risk than the mere possibility that SCOTUS will grant cert to the case and overturn the en banc decision.

No, clearly a 100% guaranteed loss here is "riskier" than what amounts to something like a 20% chance (based on the past behavior of SCOTUS with respect to carry cases) of a cert grant to Peruta (and even if cert is granted, we don't know for sure that SCOTUS will overturn the en banc decision -- we just have substantial expectations of that).
I agree. The anti-2A activist Progressive judges have nothing to lose in overturning Peruta en banc. In a worst case (for them) scenario SCOTUS grants cert (unlikely based on their track record in carry cases) and rules in favor of right to carry (hardly a sure thing), and let's be generous and say that SCOTUS applies strict scrutiny to 2A cases (unlikely), all the lower courts will have to do is relabel rational basis as strict scrutiny and anti-2A judges will still deny us our rights for decades to come.
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