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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 08-22-2013, 5:13 PM
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Default Haynie / Richards v. Harris (AW Ban)

Haynie v. Harris AKA Richards v. Harris
(FKA Haynie v. City of Pleasanton)
Issue: Challenge to California's Ban on Scary-Looking Guns.

Current Status:
As of 12/11/2013 - Trial Court, awaiting settlement with Rohnert Park, (dispositive?) motion(s) set for 6/27/2014.

11/18/2013 - Minute order entered: Motion Hearing set for 6/27/2014.
11/8/2013 - Joint CMC stmt.
10/8/2013 - MSC vacated.
9/10/2013 - CMC continued to 11/15/2013; MSC ordered within 30 days.
11/1/2012 - Amended Complaint (Second Consolidated).
6/9/2012 - Cases Consolidated (3:10-cv-01255, 3:11-cv-02493, 3:11-cv-05580, 3:12-cv-00452).

Trial Court: N.D. Cal.
Case No.: 3:10-cv-01255
Docket: http://ia700507.us.archive.org/10/it...76.docket.html

Links:
CGF Wiki for this case: http://wiki.calgunsfoundation.org/Richards_v._Harris
CGF Wiki Litigation page: http://wiki.calgunsfoundation.org/Li...st_and_Present

Last edited by fizux; 12-11-2013 at 5:59 PM.. Reason: updates
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Old 08-23-2013, 7:50 PM
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I'm eagerly anticipating this one.

Anybody in here have any idea what kind of timeline we might expect on this?
Two weeks?
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Old 08-23-2013, 8:18 PM
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Two weeks?
Ironically, it is exactly two weeks until the CMC, whereupon you'll be instructed to hold your breath for another three months until the next CMC.
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Old 09-06-2013, 9:32 AM
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CMC today. No mention of any delays. Hopefully new updates soon!
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Old 09-06-2013, 9:56 AM
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A girl can dream
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Old 09-06-2013, 8:24 PM
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:drool: what did we get?
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Old 09-06-2013, 8:45 PM
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Who wants to bet it was pushed back to next year?
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Old 09-07-2013, 8:17 AM
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Guys, Gals...

Please remember that we are 0 for XXX in the CAxx District Court, 1 for (I think) 5 or 6 in the U.S. Court of Appeals (see Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012)) (so far), and we are 2 for 2 on 1 First Street, N.E.

I would consider saving the drooling and dreaming for the bigger sandwiches (and take a nap for now).

Erik.
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Old 09-07-2013, 8:32 AM
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Guys, Gals...

Please remember that we are 0 for XXX in the CAxx District Court, 1 for (I think) 5 or 6 in the U.S. Court of Appeals (see Moore v. Madigan, 702 F.3d 933 (7th Cir. 2012)) (so far), and we are 2 for 2 on 1 First Street, N.E.

I would consider saving the drooling and dreaming for the bigger sandwiches (and take a nap for now).

Erik.
I have no idea what this means.
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Old 09-07-2013, 10:34 AM
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I have no idea what this means.
He is saying we haven't won anything at CA appeals... and only won once at Fed appeals level. Basically, he is saying we will not win anything here wait for SCOTUS.
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Old 09-07-2013, 11:01 AM
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We have to lose before we win then. So what happened yesterday?
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Old 09-07-2013, 1:56 PM
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We have to lose before we win then. So what happened yesterday?
If history is any inclination, postponed or loss.
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Old 09-07-2013, 3:43 PM
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I have no idea what this means.
He is saying the only time we have a chance of winning is the SCOTUS and that is years away. So get comfortable and wait it out.
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Old 09-08-2013, 1:45 PM
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2013-08-29 79 0 STIPULATION WITH PROPOSED ORDER to reset CMC filed by Calguns Foundation, Inc., Mark Aaron Haynie, Brendan John Richards, Second Amendment Foundation, Inc.. (Kilmer, Donald) (Filed on 8/29/2013) (Entered: 08/29/2013)

2013-08-29 80 0 ORDER by Judge Susan Illston denying 79 Stipulation to continue hearing. (tfS, COURT STAFF) (Filed on 8/29/2013) (Entered: 08/29/2013)

2013-08-30 81 0 JOINT CASE MANAGEMENT STATEMENT for Sept. 6, 2013 CMC filed by Calguns Foundation, Inc., Mark Aaron Haynie, Brendan John Richards, Second Amendment Foundation, Inc.. (Kilmer, Donald) (Filed on 8/30/2013) (Entered: 08/30/2013)

2013-08-30 82 0 NOTICE by City of Pleasanton Notice of Removal from Electronic Notification
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Old 09-16-2013, 8:36 PM
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Yeah still no idea what this means.

Lawyer English sucks.
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Old 09-16-2013, 9:12 PM
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Oh look, another CMC, who'd of thunk it?

Minute Entry: Further Case Management Conference held on 9/6/2013 before Susan Illston (Date Filed: 9/10/2013). Further Case Management Conference set for 11/15/2013 03:00 PM in Courtroom 10, 19th Floor, San Francisco. (Court Reporter n/a.) (tfS, COURT STAFF) (Date Filed: 9/10/2013) (Entered: 09/10/2013)

Based on the final document, it seems the case was sent to a magistrate judge for settlement.

ORDERED AFTER HEARING:
This case shall be referred to a magistrate-judge for settlement purposes. The settlement conference
shall occur within 30 days.
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Old 09-16-2013, 9:34 PM
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How does a settlement get us any further up the ridiculously corrupt CA court system?
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Old 09-16-2013, 9:38 PM
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How does a settlement get us any further up the ridiculously corrupt CA court system?
No clue. I can only figure the case is either not great when compared to other cases, or maybe it's just a good-faith thing. Show the judge that the plaintiff is more than willing to play ball.
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Old 09-18-2013, 9:11 AM
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Settlement is a viable option given the way this is pled. As I recall the suit claims the AW features ban is unconstitutionally vague, and one remedy being requested is that the AG issue memorandums clarifying exactly what a flash hider is, exactly what the definition of a fixed stock is, etc. IF they do that, then theoretically the suit is done because the law is no longer vague. So, the point of settlement conference may be to discuss how that could be accomplished.

One thing I'd like to know, is whether this entire suit is mooted by SB347? The new AW ban removes the features language and straight up bans detachable mag semi autos. There might be a new suit about whether that laws descriptions are vague, but it seems like this one would be moot because the law has effectively been repealed.
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Old 09-28-2013, 10:02 AM
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Where are we with this?
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I am a physician. I am held to being "the expert" in medicine. I can't fall back on feigned ignorance and the statement that the patient should have known better than I. When an officer "can't be expected to know the entire penal code", but a citizen is held to "ignorance is no excuse", this is equivalent to ME being able to sue my patient for my own malpractice-after all, the patient should have known better, right?
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Old 09-28-2013, 10:30 AM
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Where are we with this?
Look at the docket for updated information: http://ia700507.us.archive.org/10/it...76.docket.html
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Old 09-28-2013, 9:29 PM
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Settlement is a viable option given the way this is pled. As I recall the suit claims the AW features ban is unconstitutionally vague, and one remedy being requested is that the AG issue memorandums clarifying exactly what a flash hider is, exactly what the definition of a fixed stock is, etc. IF they do that, then theoretically the suit is done because the law is no longer vague. So, the point of settlement conference may be to discuss how that could be accomplished.

One thing I'd like to know, is whether this entire suit is mooted by SB347? The new AW ban removes the features language and straight up bans detachable mag semi autos. There might be a new suit about whether that laws descriptions are vague, but it seems like this one would be moot because the law has effectively been repealed.

I keep wondering at what point states are limited by infringing..... It seems if Feds have a mechanism in place defining dangerous and unusual and a regulatory scheme that states can choose to accept or prohibit. But this battle in the future seems like it will need to revolve around in common use. States like ca are trying to userp the fed system of dangerous and unusual by creating thier own micro classifications. Scotus slid down a slope of allowing infringement where it says shall not be infringed now they'll have to clearify how short of a rope states have. Just like hand guns in dc this battle will need to establish if a state or jurisdiction chooses to ban an entire class of weapons in common use does that reach the level of infringement? With handguns they discussed it some but never clearified if revolver vs semi auto could be sectioned off and restricted. That's where this is all heading piece mill bans and battles. Lead vs armor piercing, semi auto vs bolts only. If it's in common use can a state take it away or restrict it.
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Old 09-28-2013, 10:14 PM
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One thing I'd like to know, is whether this entire suit is mooted by SB347? The new AW ban removes the features language and straight up bans detachable mag semi autos. There might be a new suit about whether that laws descriptions are vague, but it seems like this one would be moot because the law has effectively been repealed.
I suspect you are correct.
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Old 10-14-2013, 8:06 PM
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Looks like there's gonna be more case management in November. Can anybody else read more into these tea leaves
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Old 10-14-2013, 8:27 PM
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I have no idea what this means.
Cases start in district courts, the lowest level. We always lose at that level, because judges at that level are following along "passively" and doing whatever the law says. After losing at that level, we go up higher and higher levels, up to Federal circuit courts, and then SCOTUS. As we get higher up, we have better chances of winning. Unfortunately, our problem is that sometimes our appeals are denied so we don't get a chance to go higher.
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Old 11-13-2013, 9:40 AM
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We're two days out from the next hearing. This seems like it might be a promising case.
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Old 11-13-2013, 9:59 AM
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Cases start in district courts, the lowest level. We always lose at that level, because judges at that level are following along "passively" and doing whatever the law says. After losing at that level, we go up higher and higher levels, up to Federal circuit courts, and then SCOTUS. As we get higher up, we have better chances of winning. Unfortunately, our problem is that sometimes our appeals are denied so we don't get a chance to go higher.
Yeah, I HATE it when judges follow the law.
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Old 11-13-2013, 9:49 PM
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Yeah, I HATE it when judges follow the law.
Funny that you intentionally misinterpreted his comment....
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let me guess this means the case will move as fast as a Tuttle on heroin now instead of a snail on salt.................
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Old 11-14-2013, 7:09 AM
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Ahhh, back to the difference between "laws" and "the law."

Trial court judges typically exhibit a high level of deference to legislation, and are unlikely to "create new law" by overturning legislation without an appellate opinion on point. The trial court judge knows that these cases are going up on appeal, so they pass the buck up to the next level.

Overall, I think this is a good thing, even if the results in uncharted/novel areas of the law are initially disappointing at the trial court level. The stare decisis system actually works in our favor, since it provides a (slightly) higher level of certainty than we would have if judges made it all up as they went along. Although we like to accuse lower courts of ignoring Heller, there is no threat of a blanket municipal handgun ban anymore -- SF acknowledged as much in the Jackson oral args with "we tried that already." Courts are enforcing Heller to the letter, but going no further.

All discussion of the health of the "Heller 5" aside, the longer SCOTUS waits, the more public opinion swings our way (pro-gun control article explaining why the couldn't get anything done after Newtown: http://www.theguardian.com/commentis...-newtown-media), and the easier it will be for SCOTUS to rule our way while staying inside the Overton Window (http://en.m.wikipedia.org/wiki/Overton_window). SCOTUS will rule on the right to bear in public at some point, and it will be easier with Heller and McDonald than without. At that point, our legislature and cities like SF will pass a whole load of laws to highly restrict people with permits, which will get challenged, and we will go through this routine again. The roster, AWs, mag bans, will all be easier to challenge after a favorable decision on bearing in public because the right is no longer limited to the home where you can keep extra mags and NY reloads. We already saw this in Jackson with a contorted argument about (in the interest of public safety) requiring trigger locks on loaded guns -- the discussion never went to unloaded guns or banning guns altogether because of Heller and McDonald.
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Case Status: Peña v. Cid (Handgun Roster). SF v. 44Mag (Mag Parts Kits). Bauer v. Harris (DROS Fees). Davis v. LA (CCW policy). Jackson v. SF (Ammo/Storage). Teixeira (FFL Zoning). First Unitarian v. NSA (Privacy). Silvester (Waiting Period). Schoepf (DROS Delay). Haynie (AW ban). SFVPOA v. SF (10+ mag possession ban). Bear in Public: Drake (3CA); Moore (7CA); Richards, Peruta, McKay (9CA).
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Old 11-14-2013, 7:20 AM
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We have to lose before we win then lose on appeal.
Fixed that for you. We seem to lose pretty much every case that that we bring, followed by yet another loss on appeal. But that doesn't stop the "Right People" from claiming that they are the only ones qualified to bring litigation.
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Old 11-14-2013, 7:24 AM
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Fixed that for you. We seem to lose pretty much every case that that we bring, followed by yet another loss on appeal. But that doesn't stop the "Right People" from claiming that they are the only ones qualified to bring litigation.
What exactly have we (the 2A community as a whole) lost at SCOTUS?
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Case Status: Peña v. Cid (Handgun Roster). SF v. 44Mag (Mag Parts Kits). Bauer v. Harris (DROS Fees). Davis v. LA (CCW policy). Jackson v. SF (Ammo/Storage). Teixeira (FFL Zoning). First Unitarian v. NSA (Privacy). Silvester (Waiting Period). Schoepf (DROS Delay). Haynie (AW ban). SFVPOA v. SF (10+ mag possession ban). Bear in Public: Drake (3CA); Moore (7CA); Richards, Peruta, McKay (9CA).
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Old 11-14-2013, 8:04 AM
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What exactly have we (the 2A community as a whole) lost at SCOTUS?
You do realize that not SCOTUS is not the only court in the land and that they've denied cert on all of our carry cases so far? The point is that the "Right People" seem to pretty consistently lose in California courts, in California's federal district courts, and in federal courts of appeal and all of those losses then become case law which can be used against us later. There has to be some reason (beyond biased judges) that our "Right People" can't seem to win any carry cases or AWB cases or pretty much any cases in this state. Losing those cases isn't two steps forward - one step back if SCOTUS rejects cert, it's zero steps forward and two steps back because we've created bad case law that can be used against us in the future. It's time to figure out what we're doing wrong... do we have the wrong lawyers? Are good lawyers getting sloppy? Are we picking the wrong cases or using the wrong strategies? I don't have the answers but it's time for some deep thought on the subject before we shoot ourselves in the foot yet again.
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Old 11-14-2013, 8:09 AM
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What exactly have we (the 2A community as a whole) lost at SCOTUS?
I don't know about you but I consider SCOTUS denying to take our cases a loss. So, based on that, we have lost quite a few cases in recent months at the SCOTUS.
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Old 11-14-2013, 9:15 AM
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I don't know about you but I consider SCOTUS denying to take our cases a loss. So, based on that, we have lost quite a few cases in recent months at the SCOTUS.
I stated this elsewhere (with minor tweaks), and state it here because I have heard it from the Chief Justice himself, and it's what I believe about SCOTUS.

SCOTUS takes cases in which there is a circuit split (which we have) and/or the striking of a statute (not sure whether it has to be a federal or state statute). It doesn't matter how bad the law is (when they are deciding whether or not to grant certiorari) because it's likely to be reviewed "elsewhere". It may be more likely that they will reject any facial attack. (Roberts, C.J. 2010), (Gillan E., 2009).

It's my opinion that "not granting certiorari" in a particular case isn't necessarily a loss, it is more of a process of elimination on a list of menu items in which the Calguns Foundation, SAF, NRA and others have created for the purpose of choosing the best one so that we win at the SCOTUS level. The OP addressed the AW ban challenge, but in addresing the carry cases, I think that at this point, we wait for Richards v. Prieto (Signature), Peruta or Baker. We have a long ways to go for the AWB case to even reach the CA9 Court level, and that doesn't include time for en banc review petitions.

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References:
Gillan E. Metzger, Facial and As-Applied Challenges Under the Roberts Court, 36 Fordham Urb. L.J. 773 (2008).
Available at: http://ir.lawnet.fordham.edu/ulj/vol36/iss4/7

Roberts, C.J. (Speaker). (2010, March 9). Spring 2010 Albritton Lecture [Audio podcast]. Retrieved from University of Alabama School of Law Lectures website: http://www.law.ua.edu/resources/roberts10/
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Old 11-14-2013, 9:43 AM
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SCOTUS takes cases in which there is a circuit split (which we have) and/or the striking of a statute (not sure whether it has to be a federal or state statute).
Sometimes they do, but always? At this point it's far more likely that neither the Heller majority or the Progressives trust that they have a reliable enough majority to risk creating case law... or we're sending them cases that do not interest them.

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It's my opinion that "not granting certiorari" in a particular case isn't necessarily a loss, it is more of a process of elimination on a list of menu items in which the Calguns Foundation, SAF, NRA and others have created for the purpose of choosing the best one so that we win at the SCOTUS level.
If we lose at the courts of appeals and SCOTUS doesn't grant cert then binding case law has been set in stone and it's a loss for our side - period.

The strategy of repeatedly losing cookie cutter cases in circuit after circuit in the hopes of one big win in some distant future appeal to SCOTUS is a very risky strategy. But never fear, as long as we keep writing checks to attornies for loss after loss they'll keep filing the same losing cookie cutter cases over and over. It's time to review the strategy and to bring in a skeptical outside attorney to evaluate why we keep losing.
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Last edited by sholling; 11-14-2013 at 9:53 AM..
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Old 11-14-2013, 10:27 AM
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The strategy of repeatedly losing cookie cutter cases in circuit after circuit in the hopes of one big win in some distant future appeal to SCOTUS is a very risky strategy. But never fear, as long as we keep writing checks to attornies for loss after loss they'll keep filing the same losing cookie cutter cases over and over. It's time to review the strategy and to bring in a skeptical outside attorney to evaluate why we keep losing.
This isn't the right way to look at it. Even if these cases have a low chance of succeeding, we must bring them now. Due to demographic shifts in the US, there's a good chance there will never again be a conservative majority on SCOTUS. 2016 may well be the last time a Republican is electable. After that, Florida's white population will be too small for the GOP to carry it, and there's no path to victory for the GOP that doesn't include Florida. After 2020, Texas will be a battleground state, again due to the rising Hispanic population.

These court cases may be low-probability, but 10 years from now, they will be zero probability. Losing at SCOTUS doesn't remove anything we currently we have. We currently have no constitutional protection for the RKBA except for the right to own some kinds of guns inside the home. Losing cases doesn't take away anything that we already have, and it's a one-time chance to advance.
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Old 11-14-2013, 10:48 AM
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This isn't the right way to look at it. Even if these cases have a low chance of succeeding, we must bring them now.
You misunderstood my point (or more likely I wasn't clear). I'm all for getting a ton of cases filed and fought right now - I'm just no longer convinced that the "Right People" are really the right people for the job. Much like Gura was fixated on POI during the Heller case, the "Right People" are fixated on shall-issue licensed concealed carry and will fight that exact same battle over and over and over again no matter how many times they lose and will fight to keep unlicensed open carry from becoming the recognised right even if it means no carry ever for 99% of Californians. Worse they seem to do a half-arsed job on what should be winnable state cases. Who knows, they may be the very best in the business, but we need to at least consider a change in strategy or a change in council - or at least bring in a highly experienced and skeptical attorney to help them plug the holes in their cases.
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Old 11-14-2013, 12:23 PM
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You misunderstood my point (or more likely I wasn't clear). I'm all for getting a ton of cases filed and fought right now - I'm just no longer convinced that the "Right People" are really the right people for the job.
Yes, I misunderstood. Now I get what you were saying and I think you're right. Maybe we do need a second team with some fresh approach. It can't hurt. Btw I'm not talking about idiots like Gorski and his type.

Our only opportunity for relief from the courts is right now, due to the demographic trends I mentioned. California's voter demographics are the future of the rest of the US.
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Old 11-14-2013, 4:44 PM
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We don't need a criminal case where someone is caught with a unregistered banned weapon. We need a retired police officer who wants to buy one but is denied (like the Heller case). Then we appeal and appeal again.
Then we do it again, until we win.

Never let the issue die. Just like the antis do.


And don't forget to vote for pro gun rights candidates forever!!
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Old 11-15-2013, 1:20 PM
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We don't need a criminal case where someone is caught with a unregistered banned weapon.
Those aren't the facts of this case.
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