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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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  #481  
Old 10-14-2020, 8:08 PM
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Originally Posted by cre8nhavoc View Post
WOW,

After watching the hearing, I can see where it may be a 3-0 majority on this one. Hurwitz even sounded like he questioned the states thought process and restrictions to California's Assault Rifle definitions.

The only thing I really didn't hear get mentioned was a similarity to what Benitez brought up with the hi-cap case, too many law-abiding citizens who could potentially be (or are currently) felons due to pre 2016 rifles that still have bullet buttons or not meeting state compliancy (Benitez argued and said that the hi-caps being prohibited can and would create felons out of CA citizens). Working in the firearms industry, it really is alarming how many folks I talk to about the centerfire, semi-automatic rifle/shotgun laws and still TO THIS DAY still have no understanding of the law. You would not believe the amount of folks that are shocked to learn that there was no grandfathering of bullet button rifles and had no idea of the compliance conversion requirements, and their current rifles are considered assault weapons by California definition.
If Hurwitz doesn't help create a 3-0 decision, then no activist Democrat judge ever will. He was easily the most critical Democrat judge I've seen in these recent major 9th circuit decisions that ended up 2-1 in our favor.
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  #482  
Old 10-14-2020, 8:48 PM
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No Democrat will ever vote to uphold Constitution.
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  #483  
Old 10-15-2020, 8:15 AM
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No Democrat will ever vote to uphold Constitution.
Batts did. IIRC, she's a lesbian, Clinton-appointed judge in NYC (about as liberal as one could get) who was sitting on the Duncan case as a visiting judge, and voted in favor of the 2A.

I'll give you that it's rare - just pointing out that it can happen.

Some judges do actually rule on political cases based on merit and not "feelings". Most liberal judges don't, but some do.

Hurwitz really seemed to take issue with the merits of the state's arguments. He could have stayed silent and avoided asking "difficult" questions to the state's attorney, but he chose to actively punch holes in their case and ask questions that he knew would cause them to dig their hole even deeper. Throughout the whole video, Hurwitz seemed unimpressed with the state's arguments.

ETA: I just googled Batts and found that she died back in February... RIP.
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Last edited by CandG; 10-15-2020 at 8:31 AM..
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  #484  
Old 10-15-2020, 1:36 PM
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Originally Posted by CandG View Post
Batts did. IIRC, she's a lesbian, Clinton-appointed judge in NYC (about as liberal as one could get) who was sitting on the Duncan case as a visiting judge, and voted in favor of the 2A.

I'll give you that it's rare - just pointing out that it can happen.

Some judges do actually rule on political cases based on merit and not "feelings". Most liberal judges don't, but some do.

Hurwitz really seemed to take issue with the merits of the state's arguments. He could have stayed silent and avoided asking "difficult" questions to the state's attorney, but he chose to actively punch holes in their case and ask questions that he knew would cause them to dig their hole even deeper. Throughout the whole video, Hurwitz seemed unimpressed with the state's arguments.


ETA: I just googled Batts and found that she died back in February... RIP.
It was for upholding a preliminary injunction, too (2 - 1). Without her vote we would be ALL felons (or worse, compliant) while Duncan winds its way through the court. That's is what was happening in NJ, Third Circuit, while the decision on merits was being written.

Imagine the circular logic if we didn't get the panel we did: "Since all LCMs are illegal in CA and since everyone has to throw them away they are no longer common use."

Time will tell, but I think Duncan might have been the crucial change in the 9th Circuit.
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  #485  
Old 10-15-2020, 3:12 PM
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Oh boy... I forgot all about that part of the orals. Chang was basically arguing that for self defense we don't even need guns that work, they just have to look scary.



The Biden step out on the balcony and fire both barrels of your shotgun into the air defense.
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  #486  
Old 10-16-2020, 7:01 AM
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I imagine it’s 2-1 in our favor under strict scrutiny, but noting it would also fail under intermediate.

Possible that Hurwitz dissents arguing for intermediate scrutiny only, but stating that the ban also fails intermediate scrutiny review.
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  #487  
Old 10-16-2020, 8:09 AM
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Originally Posted by Sgt Raven View Post
The Biden step out on the balcony and fire both barrels of your shotgun into the air defense.
ASP just posted a video from Argentina, had to shoot the guy NINE times .

There was also the one from Australia where keep continued to shoot after being hit multiple times.

Mr chang would believe it best u spray and pray, and fumble with a reload while your life is on the line.
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  #488  
Old 10-16-2020, 8:14 AM
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Originally Posted by CalAlumnus View Post
Possible that Hurwitz dissents arguing for intermediate scrutiny only, but stating that the ban also fails intermediate scrutiny review.
That would get a good chuckle out of me if that happened
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  #489  
Old 10-16-2020, 10:52 AM
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It was for upholding a preliminary injunction, too (2 - 1). Without her vote we would be ALL felons (or worse, compliant) while Duncan winds its way through the court. That's is what was happening in NJ, Third Circuit, while the decision on merits was being written.

Imagine the circular logic if we didn't get the panel we did: "Since all LCMs are illegal in CA and since everyone has to throw them away they are no longer common use."

Time will tell, but I think Duncan might have been the crucial change in the 9th Circuit.

Not very predictive, as the standard of review on the injunction is whether the trial court abused its discretion in issuing an injunction, which thus sets a very high burden for overturning a trial court order, especially one that maintains the status quo prior to trial such as the order here. After judgment, the standard is a) did the trial court apply the correct legal standard, a question of law reviewed by the appellate panel anew (de novo), and 2) whether these is substantial evidence to support the verdict. There is plenty of evidence, and the court of appeal is not supposed to reweigh it--not that has stopped the Ninth Circuit. If not reweighed, then there is plenty of evidence to support the decision. The hard part is step one.
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  #490  
Old 10-16-2020, 11:27 AM
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Not very predictive, as the standard of review on the injunction is whether the trial court abused its discretion in issuing an injunction, which thus sets a very high burden for overturning a trial court order, especially one that maintains the status quo prior to trial such as the order here. After judgment, the standard is a) did the trial court apply the correct legal standard, a question of law reviewed by the appellate panel anew (de novo), and 2) whether these is substantial evidence to support the verdict. There is plenty of evidence, and the court of appeal is not supposed to reweigh it--not that has stopped the Ninth Circuit. If not reweighed, then there is plenty of evidence to support the decision. The hard part is step one.
Well it was a 2-1 decision, not 3-0, so at least one judge was able to dance around the standard of review on that appeal. Both sides presented an opinion to her for the opportunity to sign her name on either one, so it shouldn't be fully dismissed that a liberal justice chose to sign her name on the one that was in favor of the 2a.
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Last edited by CandG; 10-16-2020 at 11:29 AM..
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  #491  
Old 10-16-2020, 10:37 PM
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Originally Posted by CalAlumnus View Post
Possible that Hurwitz dissents arguing for intermediate scrutiny only, but stating that the ban also fails intermediate scrutiny review.
I think that is a possible outcome as well, but that would be concurring opinion by Hurwitz, not dissenting one. While not as good as a 3-0 under strict scrutiny, a 3-0 with a majority opinion applying strict scrutiny with a concurring opinion applying intermediate scrutiny would still be pretty groovy outcome.
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  #492  
Old 10-17-2020, 4:31 AM
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A. "How it is used has no bearing on the 2A."

Wrong . . .

Open Carry and Concealed Carry is a type or mode of "use".

Open Carry is considered the natural exercise . . .
Concealed Carry is that coveted by assassin and criminal alike . . . regulated as a privilege by the States.

Don't argue with ME . . . argue with SCOTUS (2008) and SCOTUS (1897) and various State courts.



B. "Any notion of intent for a firearm is irrelevant. The intent of all firearms are to propel a projectile at a high rate of speed safely for the user."


Wrong . . . try not to confuse intent and purpose - though related - not the same.


Barrett .50 Cal rifle for example . . .

Intent was for military, for use as a light vehicle stopper . . . secondary as anti-personal weapon. Purpose of course is to propel a large, high speed, high energy round to achieve that.

Intent was NOT for the purpose of individual self-defense for the purpose of confrontation.

If used for self-defense in the home, the user simply cannot control in any way for the "indiscriminate" nature of the round to severely over-penetrate multiple persons, houses, buildings, vehicles OR travel several miles.

That makes it an "unusual or dangerous" weapon.


Self-defense is one thing - recklessness, negligence are the final afterthoughts. Jury of one's peers ain't gonna be sympathetic . . .


Using the Heller logic - the Barrett .50 Cal rifle is NOT an arm suitable for self-defense for the purpose of confrontation . . .

. . . being semi-auto/bolt-action or bearable by a single person doesn't protect it.


Now...I know you are all chomping at the bit to take the tease and jump to conclusions on .380, .303 and on down the slippery slope to .22LR . . .

. . . but again:


Kahane, Howard, 4th Edition, Wadsworth, "Logic and Contemporary Rhetoric: The Use of Reason in Everday Life."

Chapter 7: Analyzing and Constructing Extended Arguments


Hint: The preexisting Militia has to be effective for suppressing domestic insurrection, repelling foreign invaders and be an obstacle to the imposition of a standing army by a tyrant.


=8-|


Again, don't argue with me, argue with the Heller logic - SCOTUS said it, NOT I.


=8-|
Well it seems many on here are unaware that despite weapons like 50 bmg being wrongfully banned, actual black powder cannons are & have always been legal,& the nanny states have never banned them. If someone can legally own a cannon,so too should they legally own a 50 cal bmg even if it should be ok to ban them from being used for home defense. The 2nd amendment has never been limited to what weapon you can safely use in self defense,the 2nd amendment has more to do with stopping Tyranny than it does with self defense.

Theres a distinct difference between outright banning a commonly used arm(50 bmg is commonly used) & setting limits on where they can be used

(ergo banning ARs from courthouses legal,but banning them outright not) just because a bmg has a bigger bullet doesn't make it an unusual weapon, because its still just a rifle,by the erroneous logic your comment employs,hunting rifles too can be banned because they can't be used safely in the home,travel very far,& are just as deadly as bmg if someone is shot with one & they are far more likely to be used in crime

( where as bmgs have never been afaik used in crimes)

I hope nobody from the courts ever agrees with this erroneous logic that the size of a bullet can render a commonly held arm dangerous & unusual,& therefore legally banned,if thats the case most arms can be banned(which we know is not true under Heller & McDonald)

An unusual or dangerous weapon would be grenade launcher attachment for a rifle,or a arm that doesn't use conventional ammo, or explosive rds for example. Things like that can be banned,but the size of ammunition should be irrelevant especially considering rds like 45-50 Cal are used by millions in handguns.

Last edited by RELIC5150; 10-17-2020 at 4:47 AM..
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  #493  
Old 10-17-2020, 5:57 AM
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There is no such thing as a dangerous and unusual arm. One can use most anything in a dangerous and unusual manner - it is the method of use in a specific time, place or manner that is the problem. Play stupid games win big stupid prizes - if you will.

This is the thing most get wrong. If I wear a cutlass as part of my Halloween pirate costume everyone thinks it's cute. When I run through the local library lopping off heads with the same cutlass no there we have a problem. And the problem has nothing to do with a cutlass.
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  #494  
Old 10-17-2020, 7:32 AM
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Originally Posted by RELIC5150 View Post
I hope nobody from the courts ever agrees with this erroneous logic that the size of a bullet can render a commonly held arm dangerous & unusual,& therefore legally banned.
Hilariously, that is precisely how precedent works. A sufficiently motivated judge has carte blanche to justify any idiotic law, as long as a sufficiently creative lawyer gives him something sufficiently idiotic to copy/paste from.

And precedent is filled with endlessly idiotic things.

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One can use most anything in a dangerous and unusual manner
Precisely.
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  #495  
Old 10-17-2020, 9:03 AM
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Hilariously, that is precisely how precedent works. A sufficiently motivated judge has carte blanche to justify any idiotic law, as long as a sufficiently creative lawyer gives him something sufficiently idiotic to copy/paste from.

And precedent is filled with endlessly idiotic things.



Precisely.
"Intent"

One of Calgun's favorite words, as in . . .

"Whatever happened to intent?"

Intent however, works both ways . . .

...design intent and circumstances play a huge role.

Examples:


Concealed carry per se is to covet the secret advantage that criminals and assassins alike desire . . .

Concealed carrying and openly carried firearm when it starts to rain . . .

Concealed carrying and openly carried firearm at a funeral for someone who committed suicide using a firearm . . .


OR


The Barrett .50 cal rifle was not intended for self-defense . . .

. . . the Barrett .50 cal rifle is suitable for very large game hunting in designated hunting areas . . .

. . . the Barrett .50 cal rifle is suitable for issuance for State organized militias . . .

. . . the Barrett .50 cal rifle is a military arm used for disabling light vehicles and secondarily as an anti-personnel arm.


If I can split hairs - so can justices of the court - AND THEY WILL.



=8-|
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  #496  
Old 10-17-2020, 10:57 AM
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Originally Posted by mrrabbit View Post
"Intent"

One of Calgun's favorite words, as in . . .

"Whatever happened to intent?"

Intent however, works both ways . . .

...design intent and circumstances play a huge role.
Heller says that the weapons that aren't protected are those for which most instances are either possessed by criminals or possessed for unlawful purposes.

Don't believe me? Read Heller: https://www.supremecourt.gov/opinions/07pdf/07-290.pdf
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  #497  
Old 10-17-2020, 9:15 PM
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Originally Posted by Epaphroditus View Post
There is no such thing as a dangerous and unusual arm. One can use most anything in a dangerous and unusual manner - it is the method of use in a specific time, place or manner that is the problem. Play stupid games win big stupid prizes - if you will.



This is the thing most get wrong. If I wear a cutlass as part of my Halloween pirate costume everyone thinks it's cute. When I run through the local library lopping off heads with the same cutlass no there we have a problem. And the problem has nothing to do with a cutlass.
Have you seen someone try to use a USFA ZiP .22? It will qualifies as dangerous and unusual.
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  #498  
Old 10-17-2020, 9:38 PM
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I'm sure you all realize that this discussion...and maybe even this website...all becomes moot on Nov. 3rd if Biden wins.
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  #499  
Old 10-17-2020, 10:40 PM
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Have you seen someone try to use a USFA ZiP .22? It will qualifies as dangerous and unusual.
I saw that on forgotten weapons, you are spot on!
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  #500  
Old 10-18-2020, 1:55 AM
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Originally Posted by kcbrown View Post
Heller says that the weapons that aren't protected are those for which most instances are either possessed by criminals or possessed for unlawful purposes.

Don't believe me? Read Heller: https://www.supremecourt.gov/opinions/07pdf/07-290.pdf
Stop trying to cherry pick KCBrown . . .

p. 54-56

"dangerous and unusual" and he picked the M-16 as an example...and then went on to say that despite the effective divide that would exist today - it doesn't change the interpretation of the right.

=8-|
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Old 10-18-2020, 2:12 AM
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Stop trying to cherry pick KCBrown . . .

p. 54-56

"dangerous and unusual" and he picked the M-16 as an example...and then went on to say that despite the effective divide that would exist today - it doesn't change the interpretation of the right.

=8-|
Scalia is speaking on the matter as hypothetical. He doesn't say the m-16 can be banned, he only mentions that if the m-16 may be banned, as it is the weapon you'd associate with militia service, then the right to keep and bear arms not being infringed is entirely disconnected from the prefatory clause that mentions a well-regulated militia. This section does not justify a ban on m-16s, it challenges the ban.
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Old 10-18-2020, 2:34 AM
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Stop trying to cherry pick KCBrown . . .


SCOTUS said it, not me. Take it up with them.
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Last edited by kcbrown; 10-18-2020 at 3:31 AM..
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  #503  
Old 10-18-2020, 6:51 AM
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Originally Posted by curtisfong View Post
Hilariously, that is precisely how precedent works. A sufficiently motivated judge has carte blanche to justify any idiotic law, as long as a sufficiently creative lawyer gives him something sufficiently idiotic to copy/paste from.

And precedent is filled with endlessly idiotic things.



Precisely.
I don't disagree at all but any judge employing such logic is intentionally doing so just to strip our rights,which means they would've banned anything that comes before them anyways.(iow they would automatically be an activist judge disobeying the Heller guidelines)
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  #504  
Old 10-18-2020, 9:43 AM
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SCOTUS said it, not me. Take it up with them.
YOU are trying to cherry pick from that . . . I don't . . .

1. Scalia makes it clear: People (Preexisting) > Militia (Preexisting) > Organized Militia / Military (Created)

2. Scalia warns not to purport Miller to be something that it is not.

3. Scalia makes it clear that the Militia of the People bring the commonly held arms suitable for self-defense as the People. The Militia is NOT the military.

4. States and Congress under Article I, Sec. 8, create organized militia that are made into more effective fighting forces - which of course they can arm as necessary.

5. And of course in Sec III, using the "common use" and "dangerous and unusual logic" he makes it clear as part of the limitations discussion that some arms are not protected - giving the M16 as an example - noting that even though technological advances / sophistication would be making today's militia less effective - it doesn't change the interpretation of the right.


Notice I'm not cherry picking...I'm making an honest attempt to COVER THE FULL SPECTRUM of Scalia's discussion.


SCOTUS published it, not I.

=8-|
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  #505  
Old 10-18-2020, 10:01 AM
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Scalia is speaking on the matter as hypothetical. He doesn't say the m-16 can be banned, he only mentions that if the m-16 may be banned, as it is the weapon you'd associate with militia service, then the right to keep and bear arms not being infringed is entirely disconnected from the prefatory clause that mentions a well-regulated militia. This section does not justify a ban on m-16s, it challenges the ban.
Well and succinctly put, Kuug. About all we need in order to respond to our friends and neighbors bleating about banning "weapons of war."

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SCOTUS said it, not me. Take it up with them.
Too funny. I picture a Warner Brothers cartoon where Wile E. Coyote is wearing a Bugs Bunny suit and out-rabitting Mr. Rabbit.
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  #506  
Old 10-18-2020, 10:13 AM
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YOU are trying to cherry pick from that . . . I don't . . .
I can't help it that you don't like what SCOTUS said. They said it, not I. Take it up with them.
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Last edited by kcbrown; 10-18-2020 at 10:43 AM..
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  #507  
Old 10-18-2020, 10:24 AM
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Scalia is speaking on the matter as hypothetical. He doesn't say the m-16 can be banned, he only mentions that if the m-16 may be banned, as it is the weapon you'd associate with militia service, then the right to keep and bear arms not being infringed is entirely disconnected from the prefatory clause that mentions a well-regulated militia. This section does not justify a ban on m-16s, it challenges the ban.
I'd be wary of taking this road. Scalia took this approach for two reasons

1) to appeal to both Fudds and Stevens
2) to force Stevens to choose: EITHER disconnected from military service (negate the impact of the prefatory clause on the right) OR the ban on "military" arms is unconstitutional.

Sadly, no matter how bad that is for both Fudds and those hostile to the right, it does the rest of us little good, because it forces the same choice on us; while those hostile to the right would prefer neither (the 2A applies to the military arms, "military" arms are not protected), we would prefer both (the 2A applies to more than just the organized military, "military" arms in common use by infrantry are protected")

Even worse, it causally connects "military" (and the even more laughable "military style") arms with "dangerous and unusual", and again, *completely* ignores Miller (connecting "common use by infantry" with "ownership by civilians is protected") in its entirety in both interpretations.

This field is heavily mined. Tread carefully.

Again, SCOTUS is not constrained. They can conclude *whatever they want*. The notion they are constrained by precedent is quite obviously meaningless, given the breadth of opinions made possible by decades (if not centuries) of conflicting precedent.

It follows we should not feel constrained either, and that making predictions *on those very same illusory constraints* is foolish.

The outcome will be determined by political bias, not precedent, not fact, and certainly not logic.
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Old 10-18-2020, 10:33 AM
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Quote:
Originally Posted by SandHill View Post
Well and succinctly put, Kuug. About all we need in order to respond to our friends and neighbors bleating about banning "weapons of war."



Too funny. I picture a Warner Brothers cartoon where Wile E. Coyote is wearing a Bugs Bunny suit and out-rabitting Mr. Rabbit.
p.55

Second paragraph.

Read it very slowly . . .

It's a problematic paragraph - when literally read suggests that the M16 (which was full auto / later burst auto ) as an unusual weapon in society at large may be banned WITHOUT detaching the right from the prefatory clause.

...and continues of course noting that despite the relative ineffectiveness of small arms against today's tanks and modern bombers - it doesn't change the interpretation of the right.

Again SCOTUS published that problematic paragraph - NOT I.

=8-|
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Old 10-18-2020, 10:46 AM
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Quote:
Originally Posted by mrrabbit View Post
p.55

Second paragraph.

Read it very slowly . . .

It's a problematic paragraph - when literally read suggests
Suggests. So it's your interpretation after all, since it "suggests", and you're just running with what you believe that "suggestion" is.


Quote:
Again SCOTUS published that problematic paragraph - NOT I.
And you're interpreting it to derive a meaning from it.
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  #510  
Old 10-18-2020, 10:50 AM
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Originally Posted by kcbrown View Post
Suggests. So it's your interpretation after all, since it "suggests", and you're just running with what you believe that "suggestion" is.




And you're interpreting it to derive a meaning from it.
You took the bait, hence my next post . . .

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Old 10-18-2020, 11:08 AM
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Scenario:

Assuming CA9 is NOT a rogue court . . . I know, go ahead and laugh .


What CA9 can do . . .

1. CA9 can cite specifically from the Militia discussions, Miller discussion and p. 54 - 56 limitations discussion of DC v. Heller:

- People > Militia
- Commonly held arms suitable for self-defense.
- Effective force to suppress domestic insurrection and repel foreign invaders.
- No "dangerous and unusual" weapons - weapons not found in society at large.

2. Declare that California has put numerous commonly held arms suitable for self-defense erroneously on the AW / RAW list, noting that many of the semi-auto rifles listed ARE not uncommon or unusual or extremely dangerous - and give examples by manufacturer, model, year, etc.

3. Declare that California has the right to maintain a list of arms that is considers AW / RAWs.

4. Provide examples of arms that may qualify - such as the Barrett .50 Cal Rifle, very early models of AR-15s with full-auto feature, etc., noting their uncommon use, indiscriminate nature and design and production intent.

5. Close the case with California's AW / RAW base framework for registration and regulation intact - just minus numerous arms.


The result is that California can continue to regulate and require registration of the few arms that it considers "assault weapons" . . .

. . . and the folks that are still unhappy with the result . . . have to take their chances on SCOTUS taking up their case on cert.

=8-|
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Old 10-18-2020, 11:15 AM
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Quote:
Originally Posted by mrrabbit View Post
Scenario:

Assuming CA9 is NOT a rogue court . . . I know, go ahead and laugh .


What CA9 can do . . .
Again, all of that is from your interpretation. Not from what Heller strictly said.

Hint: the 2nd Amendment protects the sorts of weapons "in common use at the time". Is the M-16 in common use or not? Answer carefully.
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  #513  
Old 10-18-2020, 12:34 PM
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Originally Posted by mrrabbit View Post
Assuming CA9 is NOT a rogue court . . . I know, go ahead and laugh .
It is not necessary to call *any* court rogue. It is sufficient to say they can back any position they want with the precedent that is available with the appropriate selective copy/paste of citations provided by a sufficiently creative litigant.

You dramatically underestimate the many possible (conflicting and logically, mutually exclusive) outcomes.

The notion that precedent (and "logic", lol!) alone provides a singular most probable outcome (based only on historical holdings and "logic") is naive in the extreme.
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Old 10-18-2020, 12:40 PM
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Quote:
Originally Posted by mrrabbit View Post
p.55
It's a problematic paragraph - when literally read suggests that the M16 (which was full auto / later burst auto ) as an unusual weapon in society at large may be banned WITHOUT detaching the right from the prefatory clause.
Already addressed this in my post. If you'll notice I already observed it stands separately from the "detaching militia from the right"-to-avoid-Miller issue.

They both, independently, deliberately *ignore* (or outright dismantle) just about every useful provision of Miller.

Quote:
Originally Posted by kcbrown View Post
the 2nd Amendment protects the sorts of weapons "in common use at the time". Is the M-16 in common use or not? Answer carefully.
See above. I believe he is saying Scalia deliberately dismantled Miller, such that that no longer matters. I actually tend to agree.
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"“[S]cientific proof” of both gun-rights and gun-control theories “is very hard to get”; therefore, requiring “some substantial scientific proof to show that a [firearm] law will indeed substantially reduce crime and injury” is tantamount to applying strict scrutiny to, and almost certainly will lead to invalidation of, the law." - Kamela Harris

Lawyers and their Stockholm Syndrome

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Old 10-18-2020, 12:53 PM
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Talk about cherry picking.

"We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns."

That's quite a tongue twister. Who knew Scalia was such a contortionist?

The truly astonishing argument being how the protected rights of free people are limited by the actions of criminals.

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Old 10-18-2020, 1:06 PM
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Originally Posted by Epaphroditus View Post
"We therefore read Miller to say only that the Second Amendment does not protect those weapons not typically possessed by law-abiding citizens for lawful purposes, such as short-barreled shotguns."
Don't forget Miller itself is questionable. It was deliberately cobbled together to railroad Miller in absentia; one could argue they knew declaring an SBS as "not in common use by the military" was a deliberate falsehood (despite the history of trench guns, as pointed out by a previous poster here).

To that extent, should we really be hanging our hats on Miller, from an *ideological* perspective?

Again, to preempt any objection from Monsieur Rabbit: this doesn't indicate the courts are rogue. You could argue this sort of ridiculous, ad-hoc contortions to achieve the desired goal are de rigueur and even common place. And thus firmly supported by "precedent", since we know that is the only benchmark. Logic and fact certainly have no obvious role in the courts.
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"“[S]cientific proof” of both gun-rights and gun-control theories “is very hard to get”; therefore, requiring “some substantial scientific proof to show that a [firearm] law will indeed substantially reduce crime and injury” is tantamount to applying strict scrutiny to, and almost certainly will lead to invalidation of, the law." - Kamela Harris

Lawyers and their Stockholm Syndrome

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Old 10-18-2020, 1:19 PM
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Originally Posted by curtisfong View Post
See above. I believe he is saying Scalia deliberately dismantled Miller, such that that no longer matters. I actually tend to agree.
Except that he reads too much into what is said (i.e. he interprets). SCOTUS explicitly states that Miller says only what weapons are not protected: those weapons for which most instances are either held by non-law-abiding people or held for unlawful purposes.

SCOTUS also states what weapons are explicitly protected: the sorts "in common use at the time":

Quote:
Originally Posted by United States v Miller, 307 US 174 at 179
And further, that ordinarily when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time.
(emphasis mine)

Of the kind in common use at the time. There is nothing in either Miller or Heller that says anything about "common use" being limited to "common use by non-military citizens". Nor is there anything in either that says that soldiers in the military are not also members of the militia (soldiers in the military do not relinquish their citizenship by being in the military). Nor is there anything that specifies what "kind" (or "types", or "sorts") truly means (it can be as broad as "rifle" and as narrow as "semi automatic rifle with a pistol grip, detachable magazine, extendable folding stock, barrel length more than 16 inches, top picatinny rail, and M-lok handguard", though the former appears to be closer to the more natural meaning in the context in which the terms are used).


Combine all that together, and the literal reading of Heller is that the only arms that are definitively not protected are those types which are held mostly by criminals or mostly for criminal purpose, and that the arms that are definitively protected are those types that are in common use, and everything else is unaddressed.


Which goes right back to the question I asked: is the M-16 a type of weapon that is in common use? I believe you know what the correct answer to that is, and know what a literal reading of Heller, in light of the above, implies that to mean.
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Old 10-18-2020, 1:36 PM
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Originally Posted by kcbrown View Post
he interprets
I agree, especially to the extent that I am also "interpreting" what Scalia said and extending it to mean it as undermining Miller.

My underlying point is not to disagree explicitly with either your position or mrrabbits, but to say that because the law isn't logic, you can both simultaneously be correct, and either interpretation is possible, even by a non-rogue court.

I would go so far as to say both interpretations are not only simultaneously possible, but both simultaneously probable. To wit: one in the holding and one in the dissent.

I believe the underlying problem here is that everyone here is looking for real life logic, where two contradictory facts cannot be simultaneously true, not legal logic, where literally anything under the sun, no matter how contradictory or illogical (real logic), is not only simultaneously possible, but simultaneously probable in the courts.

In many ways, the court system appears to be more quantum than classical, if you are of the physicist bent.
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"“[S]cientific proof” of both gun-rights and gun-control theories “is very hard to get”; therefore, requiring “some substantial scientific proof to show that a [firearm] law will indeed substantially reduce crime and injury” is tantamount to applying strict scrutiny to, and almost certainly will lead to invalidation of, the law." - Kamela Harris

Lawyers and their Stockholm Syndrome

Last edited by curtisfong; 10-18-2020 at 1:39 PM..
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Old 10-18-2020, 1:56 PM
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Originally Posted by curtisfong View Post
I agree, especially to the extent that I am also "interpreting" what Scalia said and extending it to mean it as undermining Miller.

My underlying point is not to disagree explicitly with either your position or mrrabbits, but to say that because the law isn't logic, you can both simultaneously be correct, and either interpretation is possible, even by a non-rogue court.
There's a clear difference between a reading of a decision being correct and the reading being one which subsequent court decisions will adhere to. The latter is utterly arbitrary. The former is not (the term "correct" loses all meaning otherwise).

But it is the former which mrrabbit claims, while also simultaneously claiming that he is not engaging in any interpretation.

But not engaging in any interpretation means that one must adhere strictly to a literal reading of the decision, neither inferring anything nor following any "suggestions". He does both.

I've always acknowledged that how he interprets Heller may turn out to be how later courts (and in particular, SCOTUS in followup decisions) will interpret it. But that is but one of many possibilities, and there are other indications from at least one SCOTUS justice (Thomas) who signed onto Heller that how he would interpret Heller differs from how mrrabbit does.


Quote:
In many ways, the court system appears to be more quantum than classical, if you are of the physicist bent.
It does have something of that kind of feel to it, doesn't it?
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The real world laughs at optimism. And here's why.

Last edited by kcbrown; 10-18-2020 at 1:59 PM..
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Old 10-18-2020, 6:03 PM
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I can't see what rabbit has been jabbering about since he's made it to my ignore list, but I still can't shake the feeling that he's going to get this thread locked like so many others.

Sincerely recommend everyone quit engaging with him so that we can continue using this thread to discuss this case. Please.
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Social justice warriors and the media will basically have no choice but to support us.
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