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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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  #3121  
Old 05-02-2019, 11:18 AM
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Originally Posted by jcwatchdog View Post
We should have said the guns were undocumented, gay and wanted to get married. It would have been less than a year that progress would have been made.
Don't forget Non Binary gender.. whatever that means.
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  #3122  
Old 05-02-2019, 11:35 AM
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Originally Posted by ivanimal View Post
Its now 10 years since the complaint was filed.
Sad anniversary.

But that means it is almost 12 years since I brought the original complaint to the CalBOF. It is hard to imagine how for a dozen years the state can argue (with many attorneys) that the plain "shall" text of the law can be interpreted to mean "is not required to".
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  #3123  
Old 05-02-2019, 11:38 AM
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We are still certain to lose enbanc. Panels do not matter.
Don't say "we." There are no quitters or losers on my team.
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  #3124  
Old 05-02-2019, 11:46 AM
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Don't forget Non Binary gender.. whatever that means.
I think it refers to the third position on the safety switch
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  #3125  
Old 05-02-2019, 11:52 AM
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I think it refers to the third position on the safety switch
Ha! "End discrimination against rifles that identify as non-binary!"
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  #3126  
Old 05-02-2019, 12:06 PM
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Don't say "we." There are no quitters or losers on my team.
Yes, I should note that I do not include people detached from reality in my "we".
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  #3127  
Old 05-02-2019, 3:58 PM
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Originally Posted by command_liner View Post
Sad anniversary.

But that means it is almost 12 years since I brought the original complaint to the CalBOF. It is hard to imagine how for a dozen years the state can argue (with many attorneys) that the plain "shall" text of the law can be interpreted to mean "is not required to".
Thank you for your efforts.
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  #3128  
Old 05-03-2019, 12:30 PM
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So police and military assault weapons would be non-binary? Why do progos and lefty commies want to take guns from the proletariat while letting the capitalist funded cops and military keep them? Makes no sense to this republican.
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  #3129  
Old 05-03-2019, 1:20 PM
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Why do progos and lefty commies want to take guns from the proletariat while letting the capitalist funded cops and military keep them? Makes no sense to this republican.
Because they think they can bypass the violent revolution phase and grab the power gradually, riding demographic changes and populism, and then just choke capitalism out. They have learned the lessons from the Soviet Union. Government regulation (for the environment and such) work quite effectively.

Only makes sense to ensure support of police unions, for them to be compliant when the need comes (to confiscate).
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  #3130  
Old 05-07-2019, 9:23 AM
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The waiting game sucks. Lets play Hungry Hungry Hippos.
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  #3131  
Old 05-07-2019, 9:51 AM
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It's held along with Mance v. Barr pending:

New York State Rifle & Pistol Association Inc. v. City of New York, New York


As much as I wish the SCOTUS would take multiple cases to provide relief for folks who have been waiting 10+ years to see a case resolved, looks like we will have to wait until sometime in October when the above case is ruled on.

That being said, even if the case is remanded to the 9th with guidance set forth from the NY case I could see the 9th using their retard logic that still doesn't really get the roster tossed in a meaningful manner.

We are talking about microstamping, which is one of the prohibitions of the roster. A technology that still hasn't even proven it can be implemented, that is at best just another feel good idea just like spent case shells that used to and still do get shipped out with new firearms. They too proved to be a generally useless thing.

Sorry just frustrated and disappointed. It's amazing how some LGBT or Abortion case gets fast tracked or people complaining about baking cakes get heard but a de facto handgun ban just sits with dust collecting on it because hey, you can still buy gen 3 Glocks...
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  #3132  
Old 05-07-2019, 10:35 AM
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I'm not minding the wait.

Ginsburg isn't getting any younger and the 2020 odds are looking good.
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  #3133  
Old 05-07-2019, 10:43 AM
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Originally Posted by ZNiner View Post
It's held along with Mance v. Barr pending:

New York State Rifle & Pistol Association Inc. v. City of New York, New York
If they didn't want to hear Pena at all, it seems like they'd have just tossed it now instead of holding it. So maybe this is good news.

Also, the fact that they're holding cases that aren't very similar to NYSRPA, pending the outcome of NYSRPA, tells me they are expecting NYSRPA to be rather broadly painted. Also good news. Also pure speculation on my part

Last edited by cockedandglocked; 05-07-2019 at 10:46 AM..
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  #3134  
Old 05-07-2019, 11:14 AM
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Again, I have no insider information but my theory is that they are working on a summary reversal.

If they were granting cert we'd likely know that by now. If they were denying cert we'd likely know it by now. If they were re-listing/re-distributing I think we'd likely know it by now.

The only thing that I know of which would be an alternative to the above and which might take a while to happen without any updates would be the summary reversal.

I'm pretty sure there would be dissent of some sort so I'm betting there is a back-and-forth on the text of the summary reversal and the objection thereto.

I'd also consider it possible that they could work on a summary reversal for a significant time period and decide that they just couldn't make the reversal sufficiently tailored and/or effective and throw it back into the cert pool and then maybe grant or deny cert.

But I'm betting they are working on a summary reversal. It would make some sense to me because they could say that precedent (think Heller and McDonald) have made it clear that arms in common use have to be allowed. The arms which are being prohibited by the law are in common use. And they might work in something about making impossible demands before an enumerated fundamental right can be exercised.

But again, IANAL and I've no insider knowledge so I could easily be way off on this.
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  #3135  
Old 05-07-2019, 11:51 AM
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Originally Posted by OleCuss View Post
Again, I have no insider information but my theory is that they are working on a summary reversal.

If they were granting cert we'd likely know that by now. If they were denying cert we'd likely know it by now. If they were re-listing/re-distributing I think we'd likely know it by now.

The only thing that I know of which would be an alternative to the above and which might take a while to happen without any updates would be the summary reversal.

I'm pretty sure there would be dissent of some sort so I'm betting there is a back-and-forth on the text of the summary reversal and the objection thereto.

I'd also consider it possible that they could work on a summary reversal for a significant time period and decide that they just couldn't make the reversal sufficiently tailored and/or effective and throw it back into the cert pool and then maybe grant or deny cert.

But I'm betting they are working on a summary reversal. It would make some sense to me because they could say that precedent (think Heller and McDonald) have made it clear that arms in common use have to be allowed. The arms which are being prohibited by the law are in common use. And they might work in something about making impossible demands before an enumerated fundamental right can be exercised.

But again, IANAL and I've no insider knowledge so I could easily be way off on this.
FWIW I hope you're right
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  #3136  
Old 05-07-2019, 11:57 AM
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Originally Posted by OleCuss View Post
Again, I have no insider information but my theory is that they are working on a summary reversal.

If they were granting cert we'd likely know that by now. If they were denying cert we'd likely know it by now. If they were re-listing/re-distributing I think we'd likely know it by now.

The only thing that I know of which would be an alternative to the above and which might take a while to happen without any updates would be the summary reversal.

I'm pretty sure there would be dissent of some sort so I'm betting there is a back-and-forth on the text of the summary reversal and the objection thereto.

I'd also consider it possible that they could work on a summary reversal for a significant time period and decide that they just couldn't make the reversal sufficiently tailored and/or effective and throw it back into the cert pool and then maybe grant or deny cert.

But I'm betting they are working on a summary reversal. It would make some sense to me because they could say that precedent (think Heller and McDonald) have made it clear that arms in common use have to be allowed. The arms which are being prohibited by the law are in common use. And they might work in something about making impossible demands before an enumerated fundamental right can be exercised.

But again, IANAL and I've no insider knowledge so I could easily be way off on this.
They would have to grant cert before they can issue a summary reversal.

A summary reversal follows the same process as any other SCOTUS case except that it just skips over the oral/written argument phase.

You may be correct that they are looking to do a summary reversal, but I don't believe the fact that it hasn't been granted cert yet is any indication one way or the other.

Last edited by cockedandglocked; 05-07-2019 at 12:01 PM..
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  #3137  
Old 05-07-2019, 4:25 PM
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Here is the docket for a case with summary reversal.

https://www.supremecourt.gov/docketfiles/14-939.htm

It got relisted a bunch, then granted with summary reversal in one go.

As ZNiner said here's the docket for Mance,
https://www.supremecourt.gov/search....ic/18-663.html

It's got the same delay in it that Peña has. It would seem whatever they are doing they are doing it with both these cases.
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  #3138  
Old 05-07-2019, 4:35 PM
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It looks to me like if they are in the process of writing something like a dissent to denial of cert or the summary reversal , then they re-list and re-list until the writing is finished and give an order.

However, that's not what we're seeing. Peña and Mance are on triple secret hold. I suspect they can't write a summary reversal without a decision in the New York case.
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  #3139  
Old 05-07-2019, 6:21 PM
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Originally Posted by OleCuss View Post
Again, I have no insider information but my theory is that they are working on a summary reversal.

If they were granting cert we'd likely know that by now. If they were denying cert we'd likely know it by now. If they were re-listing/re-distributing I think we'd likely know it by now.

The only thing that I know of which would be an alternative to the above and which might take a while to happen without any updates would be the summary reversal.

I'm pretty sure there would be dissent of some sort so I'm betting there is a back-and-forth on the text of the summary reversal and the objection thereto.

I'd also consider it possible that they could work on a summary reversal for a significant time period and decide that they just couldn't make the reversal sufficiently tailored and/or effective and throw it back into the cert pool and then maybe grant or deny cert.

But I'm betting they are working on a summary reversal. It would make some sense to me because they could say that precedent (think Heller and McDonald) have made it clear that arms in common use have to be allowed. The arms which are being prohibited by the law are in common use. And they might work in something about making impossible demands before an enumerated fundamental right can be exercised.

But again, IANAL and I've no insider knowledge so I could easily be way off on this.
Or one or more of the Justices are writing a dissent from denial...
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  #3140  
Old 05-07-2019, 6:38 PM
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Sorry But i am not a Legal Guy... Give it so me in simple terms ... does it look more favorable to Pro-Gun folks that the Roster will be overturned ?
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  #3141  
Old 05-07-2019, 6:41 PM
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If it was something as simple as writing a dissent from denial, then it would show as being continuously redistributed for conference, just like in Peruta. This must be something different. Peruta’s listing on the Supreme Court website was updated weekly. I remember because I checked every week, like clockwork.
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  #3142  
Old 05-07-2019, 7:29 PM
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The fact that the case has not been relisted since its first conference means that it's being held (likely until the result of NYSRPA v. NYC):

Quote:
Question: What does it mean for the Court to hold a case?

Answer: When the Court is holding a case, that means that it is waiting to act on the case until some later, unspecified time. A “hold” does not appear on the order list; the case’s electronic docket simply will not reflect any further action. In most scenarios, a case is being held for one of two reasons: (1) the Court is already considering another case presenting a similar issue on the merits, and it believes that the resolution of that case could affect its decision on the held case; or (2) the Court is waiting for another petition for review, presenting a similar question, to be ready for it to consider. Unfortunately, the Court does not tell us why it is holding a case; although the reason is often fairly obvious, sometimes it can be harder to figure out.
The same thing is happening to the Mance v. Barr case (which was heard at the same conference as Pena).

Last edited by FirearmFino; 05-07-2019 at 7:32 PM.. Reason: Mance v. Barr info
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  #3143  
Old 05-07-2019, 7:31 PM
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It will be denied with a blistering dissent from Thomas.
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  #3144  
Old 05-07-2019, 7:33 PM
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Half the people on the marketplace have to be freaking out over the speculation in this thread recently lol
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  #3145  
Old 05-07-2019, 8:16 PM
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Originally Posted by ZNiner View Post
If so, I will kiss the feet of Justice Thomas, while I shed tears for our freedoms. Remember, the Constitution does not define our freedoms but the limits that government can infringe on them.
Im confused.

How it been denied (potentially) a good thing?
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  #3146  
Old 05-07-2019, 8:26 PM
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Originally Posted by FirearmFino View Post
The fact that the case has not been relisted since its first conference means that it's being held (likely until the result of NYSRPA v. NYC):



The same thing is happening to the Mance v. Barr case (which was heard at the same conference as Pena).
I'm now thinking we will get strict scrutiny from NYSRPA, based on holding Mance. Originally Mance was a win for us based on strict scrutiny. If we are getting a test it must be something closer to strict security as the lower courts have ignored Heller using intermediate scrutiny. It makes the most sense to hold both these cases until we get the new standard then send them back down.

Then it will be up to the ninth to find some new bs. If they can we will be back at scotus for sure.
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  #3147  
Old 05-08-2019, 7:04 AM
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Originally Posted by Harry Ono View Post
Sorry But i am not a Legal Guy... Give it so me in simple terms ... does it look more favorable to Pro-Gun folks that the Roster will be overturned ?
No.

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  #3148  
Old 05-08-2019, 8:44 AM
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Indeed. I am growing more pessimistic about this.
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Old 05-08-2019, 8:50 AM
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So I’d Pena is successful and the roster is thrown out can I build an ar pistol?
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  #3150  
Old 05-08-2019, 9:19 AM
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So I’d Pena is successful and the roster is thrown out can I build an ar pistol?
Sure, and you'd be able to just buy one at a store, too. As long as it has a fixed magazine that holds 10 rounds or less.

Last edited by cockedandglocked; 05-08-2019 at 9:23 AM..
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  #3151  
Old 05-08-2019, 9:27 AM
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OK so if i keep dreaming...if we ultimately win Duncan and Pena we would be able to own a ar pistol with a 30 round mag? Why would it need to have a fixed magazine at this point? My glock 17 has legal 17 round mags since freedom week and they drop free just fine
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Old 05-08-2019, 9:30 AM
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OK so if i keep dreaming...if we ultimately win Duncan and Pena we would be able to own a ar pistol with a 30 round mag? Why would it need to have a fixed magazine at this point? My glock 17 has legal 17 round mags since freedom week and they drop free just fine
Duncan will have no effect on that. We aren't allowed to use 11+ round mags in any fixed-magazine semiautomatic AR pistol or rifle, and all semiautomatic AR pistols (with very few exceptions) are required to have fixed magazines, as of 7/1/2018.

Putting a magazine larger than 10 rounds in any fixed-magazine semiautomatic centerfire rifle or any fixed-magazine semiautomatic pistol (rimfire or centerfire) creates an Assault Weapon. You can use 11+ round magazines in an AR rifle that is featureless, but featureless isn't an option for AR pistols, because they accept a magazine outside the pistol grip, which is specifically an Assault Weapon feature for pistols.

The only legal way to use an 11+ round magazine in a semiautomatic AR pistol in CA is for it to be one of the 6,000 or so pistols that were registered as Assault Weapons before 7/1/2018. Every single other semiautomatic AR pistol in CA (excluding law enforcement) is limited to 10rds or less.



There's another case challenging the AW statutes, called Rupp v Becerra, but it hasn't progressed very far yet. It's still in the District court, where it may be ruled on as early as May 31st. But then, as we all know, it will spend a couple years in the 9th circuit before ever heading to SCOTUS.

Last edited by cockedandglocked; 05-08-2019 at 10:16 AM..
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  #3153  
Old 05-08-2019, 10:31 AM
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Originally Posted by DanMedeiros View Post
OK so if i keep dreaming...if we ultimately win Duncan and Pena we would be able to own a ar pistol with a 30 round mag? Why would it need to have a fixed magazine at this point? My glock 17 has legal 17 round mags since freedom week and they drop free just fine
They're different laws and have to be challenged separately.

The court can only answer questions about the law at issue in the suit. That's all that would be DIRECTLY changed immediately.

Now, INDIRECTLY - the court may come back with a 2A "test" of some sort by which to fairly and reasonably evaluate future gun law cases for constitutionality. If they do that, then that will have broader applications than just the law at issue in the decided case. Other laws will still have to be challenged separately, BUT the lower courts will have a clear standard against which to measure those challenges. Which is exactly what Benitez did in the Duncan case. The only hitch there is that his method isn't binding on higher courts. If it were put out there by SCOTUS, THEN it would be incumbent on the lower courts to use that standard or run the risk of summary reversals in all cases where they didn't employ it.

Clearer now?
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  #3154  
Old 05-08-2019, 10:32 AM
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Quote:
Originally Posted by cockedandglocked View Post
There's another case challenging the AW statutes, called Rupp v Becerra, but it hasn't progressed very far yet. It's still in the District court, where it may be ruled on as early as May 31st. But then, as we all know, it will spend a couple years in the 9th circuit before ever heading to SCOTUS.
Wouldn't a favorable ruling at SCOTUS for NYSRPA and Pena set a precedent that wou!d force lower courts to ru!e favorably?
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Old 05-08-2019, 10:55 AM
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Wouldn't a favorable ruling at SCOTUS for NYSRPA and Pena set a precedent that wou!d force lower courts to ru!e favorably?
Maybe, it depends on exactly what the SCOTUS opinion says. Lots and lots and lots (and lots) of speculation about that in this thread, but probably only one person in the world right now has any idea what kind of ground the opinion may or may not cover, and he doesn't talk much.
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  #3156  
Old 05-08-2019, 2:50 PM
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My WAG is that SCOTUS has been waiting for a case that is:

1) Particularly egregious constitutionally.
2) Not particularly scary.

...which they could then use to establish a firm standard of review for 2A cases, and hope that the lower courts make the "tough" decisions on the basis of that standard of review. This prevents SCOTUS from seeming overtly political, a major concern of Roberts.

If they decide "strict scrutiny applies to 'keeping' and 'bearing,' and 'bearing' means 'you can take it outside your home'," then all manner of CA-style regulation should go. No more may issue for carry, probably no more AWBs (under the common use test), probably no more high capacity magazine bans, no roster mandating impossible technology, etc.

But as others have said, SCOTUS must be willing to issue a string of Caetano-style decisions, as the 9th Circuit will likely continue to decide against the 2A regardless of the standard of review.
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  #3157  
Old 05-08-2019, 4:24 PM
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The New York City case covers a lot of ground.

Gun bans .. Check
Carry Bans .. Check
Good Cause .. Check
Interstate Commerce .. Check
Scrutiny Question .. Check

So Peña and the roster is right in there, and Mance is also. Rogers will likely get held also.
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Old 05-09-2019, 10:09 AM
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divert_fuse divert_fuse is offline
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Originally Posted by abinsinia View Post
The New York City case covers a lot of ground.

Gun bans .. Check
Carry Bans .. Check
Good Cause .. Check
Interstate Commerce .. Check
Scrutiny Question .. Check
I don't think it covers any of those but scrutiny and interstate commerce, and I doubt interstate commerce will come up. This is primarily about scrutiny, or really "standard of review," since SCOTUS has raised the question of whether or not the 1A-related "levels of scrutiny" framework does or should apply to 2A cases.

This isn't really a bad thing. SCOTUS tries to make a big impact by ruling on a small point, and in this case they easily can. Any kind of favorable ruling on standard of review would allow Pena to be overturned in the 9th (assuming SCOTUS didn't just overturn it rather than remanding).
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Old 05-09-2019, 10:46 AM
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abinsinia abinsinia is offline
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Originally Posted by divert_fuse View Post
I don't think it covers any of those but scrutiny and interstate commerce, and I doubt interstate commerce will come up. This is primarily about scrutiny, or really "standard of review," since SCOTUS has raised the question of whether or not the 1A-related "levels of scrutiny" framework does or should apply to 2A cases.

This isn't really a bad thing. SCOTUS tries to make a big impact by ruling on a small point, and in this case they easily can. Any kind of favorable ruling on standard of review would allow Pena to be overturned in the 9th (assuming SCOTUS didn't just overturn it rather than remanding).
Take gun bans which you don't think the New York case covers, and that intersects with Peña. The New York law has a good cause requirement, you can't get a any gun at all unless you meet good cause. If you don't meet good cause which is likely most of the city, then your banned from all firearms.

If you meet good cause, it's still a gun ban. With good cause you can buy a gun, but If you leave the city you are prohibited from taking your gun with you, so your banned from your own gun.

With Peña , we can buy some guns but not any gun we want. The gun people really really want, is the one which they already own. SCOTUS will likely address this in the final ruling, or at least they have the option to address it because the case includes it.
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Old 05-09-2019, 3:32 PM
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I don't think we know how broadly the SCOTUS will choose to rule in the NY case.

Assuming the outcome is a ruling in our favor, I think they could strike it down on the narrowest possible terms or potentially put out an opinion which is surprisingly broad.

Only time will tell. I'd note, however, that unless the NY case has been argued and decided without my knowledge, the SCOTUS probably doesn't know how broad or how narrow their NY ruling will be and I'd argue that if they find Pena to be even 10% as egregious as I do, they won't let Pena slide into a denial of cert when they don't know the shape of the NY ruling.

But on Pena I'm still betting they are working on a summary reversal. Even if I'm right it is possible that if they cannot generate a summary reversal which is to the liking of the majority then they can still issue cert or deny cert and go from there.

I'll happily agree that I could be wrong.
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