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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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  #41  
Old 07-31-2013, 5:44 PM
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Originally Posted by wildhawker View Post
Please cite that definition.


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One of the most common ones that gets used is the one from USCIS.

http://fsnews.findlaw.com/firmsite/a...lCharacter.pdf
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  #42  
Old 07-31-2013, 6:04 PM
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Originally Posted by flyonwall View Post
Some suggest that the NRA amicus had more to do with wins in heller and McDonald than gura did...
BWAHHH, Haaaaa, Haaaaa. That's a funny one!! Anyone outside the NRA make that suggestion?
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  #43  
Old 07-31-2013, 6:41 PM
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Originally Posted by sholling View Post
I hope that you are right, but even if we win the antis on the court can still use en banc to keep us from getting cert before October 2014 - assuming that we get cert at all.
Yeah, me too. I am really hoping we don't end up getting Nordyked with another win, followed by a grant of en banc, depublication of the win, and finally a stay until one of the Heller 5 retires.
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Originally Posted by sholling View Post
Correct me if I'm wrong but I thought Nichols was seeking LOC?
AFAIK, you are correct. I brought up UOC because of the trial court's opinion in Peruta; however, I don't expect the leap from UOC to LOC to be huge given the "functional firearm" portion of Heller.
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Originally Posted by sholling View Post
If so then it breaks the pattern of SCOTUS rejection of shall-issue CCW cases
What pattern? I made some comments about the math above. When SCOTUS denies cert for another 100 non-criminal CCW petitions, I'll be more receptive to reading those tea leaves. Kachalsky was essentially a case of first impression. I suspect SCOTUS wanted to see a field of scholarship grow with several more circuits weighing in; the clerks up there knew that they would have plenty of possible chances with Moore, Peterson, Woollard, Drake, Richards, Peruta, and Baker all up at their respective CA's.
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Originally Posted by sholling View Post
gives them a shot at declaring unlicensed open carry as the right, that solves a whole host of problems including interstate carry, FOID requirements, and license to buy or keep in the home.
They could have done away with registration and FOID if they really wanted to in Heller, and again in McDonald. I don't think Nichols can get there from LOC in its current form.
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Originally Posted by sholling View Post
the federal GFSZ law is already on shaky legal ground because they lack jurisdiction.
Except that almost all firearms travel in interstate commerce, which is the excuse jurisdictional basis for regulation. Even weed grown exclusively for your own personal use in your basement triggers the commerce clause (see Gonzales v. Raich).
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  #44  
Old 07-31-2013, 6:51 PM
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Originally Posted by candm View Post
BWAHHH, Haaaaa, Haaaaa. That's a funny one!! Anyone outside the NRA make that suggestion?
I don't think it is an entirely silly thing to say that the NRA's "Due Process" argument carried the day. I think it is wrong, but not entirely silly.

The fact is that the majority opinion did rely on the Due Process argument which the NRA made in orals. So if you think that orals are really the important part of arguments then you could argue that the NRA swayed the court to the majority opinion.

The problem, of course, is that Gura made the same Due Process argument in his briefings and the NRA had been given the time specifically to make that particular argument in the orals so Gura was effectively cut out of the Due Process oral arguments.

But what people forget is that the vote was 4 for the majority opinion, one concurrence, and 4 dissents.

That concurrence was Clarence Thomas. Clarence Thomas went more or less with Gura's P or I argument.

Net effect is that if Gura had not done the P or I argument we don't know that we'd have gotten a win in McDonald. But we pretty much know that if the NRA had not made the Due Process argument that we would still have gotten the 4 majority opinion votes because Gura briefed Due Process as well.

One can argue that Gura's P or I argument was a piece of genius and that Thomas' concurrence was some of the most worthwhile stuff out of SCOTUS that I've ever read. (I must admit that I don't read all that much out of SCOTUS, but this was just remarkable.)

So I don't laugh at people who argue that the NRA won the case - but I certainly disagree with them.
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  #45  
Old 07-31-2013, 8:15 PM
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Originally Posted by OleCuss View Post
One can argue that Gura's P or I argument was a piece of genius and that Thomas' concurrence was some of the most worthwhile stuff out of SCOTUS that I've ever read.
I'll agree with that.

I will freely admit, though, that Clement is just astonishingly good at orals. Hearing him in person at the most recent 9th Circus was pretty damned awesome. Gura was very good that day, too, but wow.
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  #46  
Old 07-31-2013, 9:36 PM
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Originally Posted by fizux View Post
They could have done away with registration and FOID if they really wanted to in Heller, and again in McDonald. I don't think Nichols can get there from LOC in its current form.
As Scalia pointed out in the majority opinion Gura conceded licensing in Heller, and I don't believe that there was any challenge to licensing in McDonald. The "Right People" seem to hold the opinion that it's okay to require permission slips to exercise any and all rights as long as the permission slips aren't too hard to get.

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Except that almost all firearms travel in interstate commerce, which is the excuse jurisdictional basis for regulation. Even weed grown exclusively for your own personal use in your basement triggers the commerce clause (see Gonzales v. Raich).
Again correct me if I'm wrong but I thought that SCOTUS tossed out federal GFSZ once for lack of federal jurisdiction and that they just haven't been challenged again since congress resurrected it with new wording.

http://en.wikipedia.org/wiki/Talk:Gu...es_Act_of_1990
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  #47  
Old 07-31-2013, 10:14 PM
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Originally Posted by fizux View Post
That is because Daddy was a main proponent of the shall-issue bill, successfully extricating her governorship campaign from the rat's nest of possibly losing at SCOTUS, while simultaneously enhancing her appeal to the swing vote (AKA everyone outside of Chi-town).

When asked about the content of the CCW discussion with his daughter, Daddy simultaneously created and claimed the "family discussion" privilege. (source: http://blogs.suntimes.com/politics/2...to_senate.html)

Our AG isn't running to unseat Gov. Moonbeam in 2014, and he is termed out after that.
Yes, and there's all sorts of backroom politics that could come into play in CA if we won at the 9th.

For example: Say some powerful anti at the federal level, let's say Feinstein, doesn't want a win by us in Richards-Peruta to get to SCOTUS so that the "harm" (in her view) is restricted to the 9th until Hillary wins in '16. If DiFi and the Dem leadership tell Kammie not to ask for cert, unless KH has NO desire for higher political office, she'll stand down.

I think we would be amazed at all of the different political calculi that get made after a 9th win, many of which would be counter-intuitive.
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  #48  
Old 07-31-2013, 10:23 PM
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Originally Posted by sholling View Post
As Scalia pointed out in the majority opinion Gura conceded licensing in Heller, and I don't believe that there was any challenge to licensing in McDonald. The "Right People" seem to hold the opinion that it's okay to require permission slips to exercise any and all rights as long as the permission slips aren't too hard to get.
That doesn't mean that SCOTUS could not have bounced the registration requirement altogether if they wanted to do so, or explain why you think that Nichols has a better shot than Richards or Peruta, but this is getting farther off topic.
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Originally Posted by sholling View Post
Again correct me if I'm wrong but I thought that SCOTUS tossed out federal GFSZ once for lack of federal jurisdiction and that they just haven't been challenged again since congress resurrected it with new wording.
http://en.wikipedia.org/wiki/Talk:Gu...es_Act_of_1990
You're right, it hasn't been challenged since Lopez in 1995... well, except for the fact that it was upheld in:
United States v Danks (Eighth Circuit 1999)
United States v Tait (Eleventh Circuit 2000)
United States v Haywood (Third Circuit 2002)
United States v Smith (Sixth Circuit 2005)
United States v Dorsey (Ninth Circuit 2005)
United States v Nieves-Castaño (First Circuit 2007)
United States v Weekes (Third Circuit 2007)
United States v Benally (Tenth Circuit 2007)
United States v Cruz-Rodriguez (First Circuit 2008)
(plagiarized from Wikipedia)

That "new wording" to which you refer requires the prosecutor to prove that the gun moved in or affected interstate or foreign commerce. Since that specifically addresses the "jurisdiction" issue that caused the 1990 GFSZA to be struck in Lopez, the new wording is not merely changing happy to glad.

Note that all of these cases except Cruz-Rodriguez came before Heller. A new challenge to the 1995 GFSZA would most likely rely much more on a 2A analysis, and far less upon interstate commerce (or "jurisdiction"). Despite the thread detours, we are back to RKBA in public requires California to issue permits or suffer a conflict between the 2A and GFSZA. Would it be an unfunded mandate? Maybe, but we won't care because that will be a fight between Sacramento and D.C.
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  #49  
Old 07-31-2013, 10:28 PM
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Originally Posted by Paladin View Post
Yes, and there's all sorts of backroom politics that could come into play in CA if we won at the 9th.
For example: Say some powerful anti at the federal level, let's say Feinstein, doesn't want a win by us in Richards-Peruta to get to SCOTUS so that the "harm" (in her view) is restricted to the 9th until Hillary wins in '16. If DiFi and the Dem leadership tell Kammie not to ask for cert, unless KH has NO desire for higher political office, she'll stand down.
I think we would be amazed at all of the different political calculi that get made after a 9th win, many of which would be counter-intuitive.
I would love to have this problem.
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  #50  
Old 08-01-2013, 7:40 AM
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Originally Posted by OleCuss View Post
But considering that Ginsburg has suggested others avoid using the US Constitution in developing their own? Seems kind of farcical that we could have a Justice on the SCOTUS who so thoroughly disrespects the US Constitution.
You should read a book or two about the Constitutional Convention. I don't think any of the Founders were very happy with it. It was a masterpiece of compromise.

The great strength of the US Constitution, however, is precisely what most of the folks around here don't like about it: that it is a living document rooted in English Common Law. I disagree with Ginsburg, however, about using it as a model for other constitutions. The very brevity and fluidity of our Constitution are what make it so superior to the wordy and brittle efforts of recent years (cf: the 485-page abortive EU Constitution).

If Ginsburg or some other great legal mind could simply sit down and dictate a new constitution, I'm sure the result would be more elegant (if not more enduring) than what we have today. But that's not how constitutions are made, for better or worse.
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  #51  
Old 08-01-2013, 7:53 AM
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Originally Posted by Lulfas View Post
One of the most common ones that gets used is the one from USCIS.

http://fsnews.findlaw.com/firmsite/a...lCharacter.pdf
I've never seen that standard applied to PC 26150 (formerly PC 12050) (nor would it be Constitutional anyway) - can you cite an example where it was?

For California carry licenses, GC and GMC (as they sit today) are both entirely discretionary and vary from licensing authority to licensing authority.

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  #52  
Old 08-01-2013, 8:42 AM
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Heller’s language “warns readers not to treat Heller as containing broader holdings than the Court set out to establish: that the Second Amendment created individual rights, one of which is keeping operable handguns at home for self-defense.” Id. (emphasis added).

Appellants contend also that “[t]ext, history, tradition and precedent all confirm that [individuals] enjoy a right to publicly carry arms for their defense.” Appellants’ Brief 12 (emphasis added). At this time, we are not inclined to address this contention by engaging in a round of full-blown historical analysis, given other courts’ extensive consideration of the history and tradition of the Second Amendment.
So the court seeks to opine the limitations of Heller citing context but refuses to entertain extensions of Heller citing context? Interesting.

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For these reasons, we decline to definitively declare that the individual right to bear arms for the purpose of self-defense extends beyond the home, the “core” of the right as identified by Heller. We do, however, recognize that the Second Amendment’s individual right to bear arms may have some application beyond the home. Ultimately, as our Court did in Marzzarella, we refrain from answering this question definitively because it is not necessary to our conclusion.
Seems as though the circuit courts just want this off their table.
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  #53  
Old 08-01-2013, 8:58 AM
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Originally Posted by fizux View Post
That doesn't mean that SCOTUS could not have bounced the registration requirement altogether if they wanted to do so
I'm not a lawyer so please correct me if my impression that the US Supreme Court rarely answers unasked question is wrong. No need to look up citations, I'll take your word for it.

Quote:
or explain why you think that Nichols has a better shot than Richards or Peruta, but this is getting farther off topic.
Simply because SCOTUS has rejected for cert every case that seeks an order to issue CCW licenses. Either they aren't yet ready to rule or they are seeking a non-CCW carry case, or they are they are seeking to knock out license requirements in a non-CCW carry case. Of course they may just have lost interest 2nd Amendment litigation or think that their current make up makes 2nd Amendment cases too risky. It's all speculation, but we keep throwing nearly identical pieces of spaghetti at the wall in the hope that at least one will stick - so far without success. At least Nichols is completely different from the cases that the court has already rejected and addresses the licensing of enumerated rights so it's worth a shot. Especially since the possibility of the court rejecting a license requirement for open carry solves so many problems in one single case. Rejection of a license requirement for open carry not only solves in-state carry, it also solves carry while traveling interstate and it sets the stage for wiping out the years long license to possess games being played out in Chicago, NYC, and DC and for those reasons alone it's worth a shot.

Quote:
You're right, it hasn't been challenged since Lopez in 1995... well, except for the fact that it was upheld in:
Thank you, I learned something new today.
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  #54  
Old 08-01-2013, 9:11 AM
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I have sometimes wondered (with perhaps naive hope) if the court is really waiting to be ask about unlicensed carry (whether open or concealed) for unprohibited people. Maybe they don't like the idea of licensing a fundamental right at all.

Ok, I'm back on earth now.
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  #55  
Old 08-01-2013, 9:20 AM
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Originally Posted by flyonwall View Post
Some suggest that the NRA amicus had more to do with wins in heller and McDonald than gura did...
And in other news, roosters across the country this morning successfully caused the sun to rise.
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  #56  
Old 08-01-2013, 9:35 AM
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Originally Posted by Maestro Pistolero View Post
I have sometimes wondered (with perhaps naive hope) if the court is really waiting to be ask about unlicensed carry (whether open or concealed) for unprohibited people. Maybe they don't like the idea of licensing a fundamental right at all....

THIS^

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  #57  
Old 08-01-2013, 9:44 AM
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Originally Posted by CCWFacts View Post
Can you find any cases where someone was denied a CCW for non-substantial good character problems?
Quote:
Originally Posted by wildhawker View Post
I've seen many, actually.
eh, he he ahem...
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  #58  
Old 08-01-2013, 10:19 AM
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I find the notion spurious that the Supreme Court would deny cert on a fundamental civil rights because they didn't like the attorney. That, to me, is extremely thin speculation. If that were true the court is a complete farce.
There is definitely some arbitrary politicking going on, particularly with the "rule of four." Perhaps there are a one or two hold outs on the Heller 5 on taking the other cases. The other 4 certainly aren't interested in overturning anything else WRT to carry/bear.

I would like to see a new judicial act requiring review as a matter of right, though scaling issues would certainly need to be considered.

The district courts are about as annoying as SCOTUS is getting to be because you can almost always predict the results based on the politics of who nominated them.
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Old 08-01-2013, 11:04 AM
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I think we have to view the SCOTUS' actions from an anti-2A perspective to understand their motivations.

If we consider that their goal is to clarify FURTHER restrictions on the RKBA,then none of the current cases would ideally accomplish that. Thus it makes sense to deny such cases.
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  #60  
Old 08-01-2013, 2:12 PM
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I think a lot of posters here are missing that the SC prefers to let issues percolate through several Circuits before they tackle it, giving them a much larger body of material to work with rather than shooting from the hip at every cause celebre that catches a 60 Minutes special.
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Old 08-01-2013, 2:14 PM
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Originally Posted by CCWFacts View Post
Can you find any cases where someone was denied a CCW for non-substantial good character problems? The only case I can think of is one of the Gorski cases where someone was denied and the sheriff said it's because he was kicked out of the FBI for mental issues. That's not a non-substantial problem.
If you mean "case" in the general sense (as opposed to a court case) then you need to get out more. A lot more. There are plenty of CCWs denied on very trivial GMC grounds, even in self-described "gun friendly" counties.

The may-issue nature of CCW in California is two-pronged, and it blows me away that the GMC problem is so easily dismissed while GC is emphasized so much. I am not a lawyer, but it seems to me that the burden of proving a citizen is not of good moral character rests with the issuing agency, while the burden of proof for having good cause is placed on the citizen. Wouldn't that make a challenge to may-issue on GMC grounds, with the right case, more desirable than the challenges on GC grounds that are currently on the courts?
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Old 08-01-2013, 2:23 PM
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Originally Posted by Kharn View Post
I think a lot of posters here are missing that the SC prefers to let issues percolate through several Circuits before they tackle it, giving them a much larger body of material to work with rather than shooting from the hip at every cause celebre that catches a 60 Minutes special.
I appreciate that reminder.
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Old 08-01-2013, 3:26 PM
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Nopal: Have any of these GMC denials ever approached an attorney to discuss? I have never heard of anyone challenging a denial based upon GMC, much less heard of anyone being denied for that reason. (other than Gorski, but we ar enot even sure that was the actual reason for the denial, but it was an issue).
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Old 08-01-2013, 10:24 PM
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This is the first case IMHO whereby it was argued (although lost at the appellate level) substantially similar to how I suspect SCOTUS will ultimately rule on how to analyze the 2a. Therefore, I think this is an excellent case for SCOTUS to grant cert. The arguments although not analyzed by the appellate court and simply disregarded without any logic are throughout the opinion. The outcome is not how I think SCOTUS would decide this case and it wouldnt get past step 1.

IMHO SCOTUS should ultimately find that the 2a should be evaluated as follows(this is supported in Heller and McDonald).

Step 1. Look at history and tradition of the enacted law/regulation to see if there was a ban/restriction similar when the 2a was ratified (Simiar to how a right to trial by jury in the 6a is looked at and analyzed by the court. I.e. Is this a cause of action/suit at law or at equity. So they analyze did this restriction exist at ratification of 2a prominently). If so then move to step 2. If not then unconstitutional because there is not a history and tradition of the ban/restriction.

Because 2a is a fundamental right State bears burden of proof at all steps.

Step 2: Is this ban/restriction a prior restraint of the 2a such that it obliterates the core right of self defense. Import 1a cases and analysis. If so unconstitutional. If not then move to step 3.

Step 3: Apply means end scrutiny to right. If ban/restriction goes to core right of self defense then strict scrutiny. If not then intermediate scrutiny. Both have State with burden of proof.

Just my to cents but IMHO this would give us a strong 2a and be in line with Heller, McDonald, and the US Constitution.
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Old 08-02-2013, 12:08 AM
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I have sometimes wondered (with perhaps naive hope) if the court is really waiting to be ask about unlicensed carry (whether open or concealed) for unprohibited people. Maybe they don't like the idea of licensing a fundamental right at all.
That's opposite of how SCOTUS tends to do exploratories on rights. If you want to see how it works, take a look at the federal cases after Mapp v. Ohio came down.

You don't attack licensing immediately. You attack may-issue or bans first, then go after high fees.
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Old 08-02-2013, 3:01 AM
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Default Observation.

In the Heller/MacDonald cases, the Supreme court specifically ruled out "interest balancing tests" for reviewing second amendment cases.

Yet, the interest balancing standard which was advocated by Justice Breyer is what most of the lower courts have been doing across the country.

What this means to me is that there are 3 Supreme court judges(Alioto, Scalia and Thomas) who are probably really pissed at the defiance of the lower courts and who may be waiting for an ideal case to come to set notice to the lower courts as to who the "TOP DOGS" are.

I think that the SCOTUS may have denied the Kachalsky case to bait Ill. AG Madigan on the "Moore case" to seek cert, they even granted her an extension.

That won't happen though since Illinois came to their senses.

Right now the Supreme court is probably waiting to see what the circuit splits are.


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Old 08-02-2013, 3:21 AM
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Keep the ball rolling. I'm really just waiting for an opinion from the ninth on any of the carry cases.
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Old 08-02-2013, 7:05 AM
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Nopal: Have any of these GMC denials ever approached an attorney to discuss? I have never heard of anyone challenging a denial based upon GMC, much less heard of anyone being denied for that reason. (other than Gorski, but we ar enot even sure that was the actual reason for the denial, but it was an issue).
I was denied over very trivial stuff, and I'm not the only one. I am currently considering a lawyer, but I can't go fully into details. Departments tend to mask the real reason behind their denials even though by law they have to be clear. For example, the San Bernadino Sheriff's department officially lists bad moral character denials as "failed background check" denials because after all, any denial reason other than good cause, no matter how trivial, is based on the applicant's background. That's all I should say about that now.
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Old 08-02-2013, 7:30 AM
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Can you find any cases where someone was denied a CCW for non-substantial good character problems?
What are substantial good character problems? If you can own a gun shouldn't you be able to carry it?
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Old 08-02-2013, 11:33 AM
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SBSO is being sued currently for a denial that provided no reason at all. You can get a lawyer and sue them tomorrow.
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Old 08-02-2013, 11:38 AM
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SBSO is being sued currently for a denial that provided no reason at all. You can get a lawyer and sue them tomorrow.
Can you point to any wins in court?

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Old 08-02-2013, 11:43 AM
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SBSO is being sued currently for a denial that provided no reason at all. You can get a lawyer and sue them tomorrow.
... or wait and see what happens with Richards v. Prieto. Talking about suing is cheap, but when it gets underway, it is expensive and exhausting.

Why advocate suing the SO here, while elsewhere continuously criticizing CGF & SAF for doing exactly that?
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Old 08-02-2013, 12:06 PM
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It is not an all or nothing. I love CGF, SAF and NRA. I love most anyone willing to fight. The only cases I have criticized are Peterson, scocca, NSA and nordyke. Of those I am only really critical of nordyke, but 20/20 hindsight is easy. You must remember though that Kilmer was a family law lawyer out of his league when that started. And no I am not aware of any wins in CA yet (included the false claim of a win in Sacramento). Richards is a great case, the sunshine initiative rocks as do the countless legal challenges CGF is pursuing.
The problem here is the black and white kool aid knee jerk of "you are with us or against us" whereas I think we are all on the same ship seeking the same destination, I just think some took the short bus to the ship. There are a lot of people here with a great deal of knowledge and experience. Just because they don't see things the same way does make them wrong.
Why sue every SO if it is a good case? Because the Court will then have jurisdiction to immediately implement any 9th circuit or SC win.

Last edited by flyonwall; 08-02-2013 at 12:10 PM..
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Old 08-02-2013, 12:33 PM
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To clarify, at this point I don't oppose people exercising their judicial options on issues where solid cases are already up at Circuit or cert pending.

-Brandon
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Old 08-02-2013, 3:01 PM
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Why sue every SO if it is a good case? Because the Court will then have jurisdiction to immediately implement any 9th circuit or SC win.
Honest question: wouldn't it just be easier, cheaper, and less damaging (bad case law from a sub-optimal plaintif or poorly argued case), if the offending SO could just be "sunshined" into submission in the case of a 9th/SC win?
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Old 08-02-2013, 3:38 PM
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Honest question: wouldn't it just be easier, cheaper, and less damaging (bad case law from a sub-optimal plaintif or poorly argued case), if the offending SO could just be "sunshined" into submission in the case of a 9th/SC win?
Easier & cheaper yes, but incredibly slow and with no teeth.
Less damaging? You mean worse than all of the rulings to date in California which have all been serious losses? No, because as Brandon points out, five of these cases are already fully briefed and two have been submitted post oral argument so the only downside is the 400 filing fee and $60 to have the Defendant served. Then you have them in Court, you have their policies and you have the forum for an immediate enforcement order should the 9th agree with us, else they face even more in attorney fee exposure and/or injunction.

I also think the more pressure the better. LAPD has issued 4 permits in 20 years and has a total of 20. How many times have they been sued in those 20 years for a 2a violation? 1 time. Nobody is willing to step up and apply and then sue, so why should they care? Well, later this year the 9th may order them to care.

CA is different because, unlike Moore, nobody is challenging the statute so there will be no change at the state level if an individual wins. Richards and Peruta don't even directly attack the discretionary aspect of good cause, they just challenge the denial and the trial courts finding that they could open carry instead.

The other three cases only deal with the question of whether the departments abused their discretion in the way they define GC. So again, a win only provides immediate relief to that Plaintiff. If you wait, every other county will start from scratch and then say they are drafting a new policy, so that will take a year.

Wouldn't you rather already have your department sitting in front of a judge having to explain why it is not complying with the 9th's order?
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Old 08-02-2013, 4:03 PM
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I think, also, it might show the courts how serious and pervasive the problem is.

-Brandon
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  #78  
Old 08-02-2013, 4:21 PM
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I think, also, it might show the courts how serious and pervasive the problem is.

-Brandon
Brandon, would you say that it would be desirable for many people who applied for CCW and were rejected, to sue the denying agency? If so, would CGF be willing to coordinate an effort like that?
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Old 08-02-2013, 4:39 PM
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^ Or apply now and, if denied, initiate litigation?
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Old 08-02-2013, 4:44 PM
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CA is different because, unlike Moore, nobody is challenging the statute so there will be no change at the state level if an individual wins.
Good point.
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