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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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  #1641  
Old 10-04-2021, 6:31 AM
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Originally Posted by rplaw View Post
This makes me think NYSRPA v Bruen is going down. If not, then why didn't the Supremes just hold Russel?
Because Russel failed to make a federal 2A claim until the case reached the Supreme Court. The Supreme Court likely denied cert because they lacked jurisdiction to review the case.
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  #1642  
Old 10-04-2021, 6:52 AM
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"Right to Carry" would also include CCW as a basic premise until specifically excluded by the court being asked to hear the matter. At this point SCOTUS has not decided this particular issue. They've refused to hear it but that doesn't mean it's not included in "Right to Carry."

However, rewording a "Right to Carry" case as a CCW case then denying Cert to following CCW cases instead of holding them would indicate... what?

Now that's a good question, isn't it?

=8-)
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  #1643  
Old 10-04-2021, 8:19 AM
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Originally Posted by mrrabbit View Post
Perhaps because it was straight up a CCW case as presented by Petitioner and Respondent alike?

Unlike Bruen which was a "Right to Carry" case as presented by Petitioner, called a CCW case by Respondent, and reworded likewise when taken up on cert by SCOTUS?

Distinctions are important.

=8-|
No, it was because it was raising federal 2A issues at a wrong time. Young did not, and is not denied.

No one but you interprets CCW distinctions - not a single person with a brain and education necessary to understand law. Not a single judge.
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  #1644  
Old 10-04-2021, 10:34 AM
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No, it was because it was raising federal 2A issues at a wrong time. Young did not, and is not denied.

No one but you interprets CCW distinctions - not a single person with a brain and education necessary to understand law. Not a single judge.
What do you mean by “ it was raising federal 2A issues at a wrong time.” ? Like what distinguishes Young from the case that was denied cert?
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  #1645  
Old 10-04-2021, 5:27 PM
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What do you mean by “ it was raising federal 2A issues at a wrong time.” ? Like what distinguishes Young from the case that was denied cert?
Russel and his legal team failed to make a federal second amendment claim until they were applying for cert. NJ pointed out as much in their response to the request for cert grant. Russel was making state law claims against NJ's CCW issuance policy. So SCOTUS denied cert, since they didn't have jurisdiction to hear a matter of state law that didn't broach federal law claims.

Young did make federal 2A claims in his lawsuit, so Young v Hawaii was not denied cert.
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  #1646  
Old 10-08-2021, 2:49 PM
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Anyone know why they aren’t updating the docket showing it being relisted? Today should have been it’s 2nd conference.

https://www.supremecourt.gov/search....c/20-1639.html
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  #1647  
Old 10-08-2021, 2:58 PM
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Anyone know why they aren’t updating the docket showing it being relisted? Today should have been it’s 2nd conference.

https://www.supremecourt.gov/search....c/20-1639.html
It's pretty much a given at this point that Young will be held until NYSRPA is decided.
NYSRPA wins, Young gets sent back to CA9 with instructions to "see NYSRPA". In the process the en banc opinion will be vacated and likely Peruta will also essentially be a dead letter.
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  #1648  
Old 10-12-2021, 10:24 AM
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Originally Posted by press1280 View Post
It's pretty much a given at this point that Young will be held until NYSRPA is decided.
NYSRPA wins, Young gets sent back to CA9 with instructions to "see NYSRPA". In the process the en banc opinion will be vacated and likely Peruta will also essentially be a dead letter.
There are two essential questions to be answered by the Court: 1) Does the 2A extend to concealed carry?; and, if it does, 2) Is the right to carry a concealed weapon subject to the reasonable regulation by the State (i.e., discretionary or "may issue" laws)?

If both questions are answered in the affirmative, then the holding of Young that there is no right is reversed but the ultimate outcome is likely affirmed, notwithstanding that an argument can be made that "no issue" is an abuse of discretion.
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  #1649  
Old 10-12-2021, 9:28 PM
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My prediction:

"Primarily" in Scalia's "primarily in the home" actually means "exclusively" (yes, you have to be trained in the law to understand this usage of the English word "primarily"). "Keep and bear" means "keep unloaded, secured, made entirely inert, and 1000 feet away from the nearest magazine and 2000 feet away from the nearest round of ammunition", where "bear" has no meaning whatsoever, because that makes total "logical" sense in the language of law (yes, you have to be trained in law to understand this usage of the English word "bear").

Loss with NYSRPA, Young vacated.

Best case, same as TruOil above.

Concealed carry is "protected" where "protected" means "not protected in any way, shape or form", since "may issue" can mean "no issue" (yes, you have to be trained in law to understand this usage of the English word "protected" and the word "may").
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  #1650  
Old 10-14-2021, 11:17 AM
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Originally Posted by curtisfong View Post
My prediction:

"Primarily" in Scalia's "primarily in the home" actually means "exclusively" (yes, you have to be trained in the law to understand this usage of the English word "primarily"). "Keep and bear" means "keep unloaded, secured, made entirely inert, and 1000 feet away from the nearest magazine and 2000 feet away from the nearest round of ammunition", where "bear" has no meaning whatsoever, because that makes total "logical" sense in the language of law (yes, you have to be trained in law to understand this usage of the English word "bear").

Loss with NYSRPA, Young vacated.

Best case, same as TruOil above.

Concealed carry is "protected" where "protected" means "not protected in any way, shape or form", since "may issue" can mean "no issue" (yes, you have to be trained in law to understand this usage of the English word "protected" and the word "may").
Wow,you are so negative. Given the current court make up, I good forward to substantial relief for honest gun owners.

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  #1651  
Old 10-14-2021, 1:15 PM
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Originally Posted by 003 View Post
Wow,you are so negative. Given the current court make up, I good forward to substantial relief for honest gun owners.

It was sarcasm or are you playing along?
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  #1652  
Old 10-16-2021, 7:00 PM
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Ok, have not posted in a while...here's my 2 cents worth... We hope all the "carry"hoopla comes down to this:
While the state may not restrict the bearing of firearms, (subject to reasonable restrictions as to location, ie, secure areas of airports) it may decide on the method of carry, either open or concealed. If permits (and required training) are required, a person who can legally purchase and own a firearm may not be denied a permit.
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  #1653  
Old 10-17-2021, 7:30 PM
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Originally Posted by ulmapache View Post
Ok, have not posted in a while...here's my 2 cents worth... We hope all the "carry"hoopla comes down to this:
While the state may not restrict the bearing of firearms, (subject to reasonable restrictions as to location, ie, secure areas of airports) it may decide on the method of carry, either open or concealed. If permits (and required training) are required, a person who can legally purchase and own a firearm may not be denied a permit.
The easy legislative fix for that would be to greatly expand the parameters for a “prohibited person”. I’m sure those anal fiends are already chattering with themselves about how they are going to “fix” the SCOTUS problem if it comes to pass.
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  #1654  
Old 10-17-2021, 8:55 PM
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Originally Posted by press1280 View Post
It's pretty much a given at this point that Young will be held until NYSRPA is decided.
NYSRPA wins, Young gets sent back to CA9 with instructions to "see NYSRPA".In the process the en banc opinion will be vacated and likely Peruta will also essentially be a dead letter.
As I said before, we could lose NYSRPA (CCW) holding yet win a Right to Carry openly, so Young gets GVR’ed (assume decision 2022 June)

Who does Young go to? The last AC to decide it was CA9 en banc. Does it go to them to straighten all of them out?

Does it go down to the original trial court?

Or does it go down to the original 3-judge AC? (this is my guess) (let’s guess 9 months)

And then the loser of that can appeal en banc? (let’s guess a year here)

And the loser of that can appeal for a CA9 full court en banc? (let’s assume denied, 3 months)

And the loser of that go back up to SCOTUS seeking cert?!! (let’s assume denied, 3 months unless Biden “packs the Court,” then granted and NYSRPA overturned….)

When will I ever be able to Bear Arms?!!

Or have I missed something?
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  #1655  
Old 10-18-2021, 7:19 AM
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Yes, you can carry. But, you will have to get out of the county you live in, or get out of CA, like I'm doing. You can't rely on the justice system, it's junk.

ps. I wouldn't re-elect that LA Sheriff. He is just playing politics for his own benefit. Once a tyrant, always a tyrant.
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  #1656  
Old 10-18-2021, 10:02 AM
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I get why a lot of you are pessimistic, but the fact that they are also apparently holding ANJRPC (a magazine capacity case) gives me hope that the Court believes it is going to lay down a new standard on scrutiny for gun cases. Either strict scrutiny, or alternatively, real intermediate scrutiny, not this fake intermediate scrutiny that the lower courts have been doing.

Holding Young pending NYSRPA makes sense given it is a carry case, but why hold ANJRPC unless the Court expects a wide ruling not limited to carry? Could be that someone is writing a dissent from the denial of cert, but usually they keep getting relisted when that is the case til the dissent is done.
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  #1657  
Old 10-18-2021, 10:08 AM
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Originally Posted by 003 View Post
Wow,you are so negative. Given the current court make up, I good forward to substantial relief for honest gun owners.

I am optimistic, but I will say that if we can't win with this 6-3 (well, 5-1-3) court, we will never win via the court system. It's likely the most favorable court we will ever have*.

*unless Breyer refuses to retire and then there is a vacancy in 2025 after a Republican beats the Dem nominee in 2024. But I bet he retires this coming summer while Dems still have a narrow hold on the Senate before the 2022 elections.
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  #1658  
Old 10-18-2021, 12:59 PM
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Originally Posted by meanspartan View Post
I get why a lot of you are pessimistic, but the fact that they are also apparently holding ANJRPC (a magazine capacity case) gives me hope that the Court believes it is going to lay down a new standard on scrutiny for gun cases. Either strict scrutiny, or alternatively, real intermediate scrutiny, not this fake intermediate scrutiny that the lower courts have been doing.

Holding Young pending NYSRPA makes sense given it is a carry case, but why hold ANJRPC unless the Court expects a wide ruling not limited to carry? Could be that someone is writing a dissent from the denial of cert, but usually they keep getting relisted when that is the case til the dissent is done.
Why would they create a new tier of scrutiny when SCOTUS straight up said the standard of scrutiny is "history and tradition" in DC v. Heller 2008?

And they double-downed on that in McDonald v. Chicago 2010 and Caetano v. Massachusetts 2016.

=8-|
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  #1659  
Old 10-18-2021, 1:03 PM
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Originally Posted by meanspartan View Post
I am optimistic, but I will say that if we can't win with this 6-3 (well, 5-1-3) court, we will never win via the court system. It's likely the most favorable court we will ever have*.

*unless Breyer refuses to retire and then there is a vacancy in 2025 after a Republican beats the Dem nominee in 2024. But I bet he retires this coming summer while Dems still have a narrow hold on the Senate before the 2022 elections.
Court wins are temporary and illusions - as SCOTUS has no enforcement mechanism.

State legislators and governors are free to put a law right back on the books only months later - daring old and new plaintiffs to see them in court oftentimes as long as a decade later.

Hence why all the energy and money wasted on court cases is better spent at Congress and State Houses.

=8-|
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  #1660  
Old 10-18-2021, 1:09 PM
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Why would they create a new tier of scrutiny when SCOTUS straight up said the standard of scrutiny is "history and tradition" in DC v. Heller 2008?

And they double-downed on that in McDonald v. Chicago 2010 and Caetano v. Massachusetts 2016.

=8-|
Because whether they like it or not, the lower courts have been using "intermediate scrutiny" (actually glorified rational basis) to uphold just about all gun restrictions so long as it does not totally deny the "core of the second amendment right" (keeping a gun in the home).

So I think SCOTUS will either decide strict scrutiny or real intermediate scrutiny applies to 2A cases generally, or at least instruct the circuits to apply THT in a more strict way, adding more stuff to the "core" right.

Unless I am totally wrong about why ANJRPC is being held, and they just deny cert later on. In that case we may indeed be looking at a narrow carry-only ruling.

BTW rabbit, are you Charles Nichols? You two are the only two people in the progun community I've noticed who are very anti conceal carry haha. Regardless, it's an interesting perspective you both share and it isn't without its historical backing. I would not be surprised if the court ruled that conceal carry could be banned/restricted, because what is protected is only open carry. But if a state bans open carry, then they must allow concealed.

Basically, a right for open carry as the constitutional minimum, but the state may make you conceal if that is what is preferred.
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  #1661  
Old 10-18-2021, 3:04 PM
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Because whether they like it or not, the lower courts have been using "intermediate scrutiny" (actually glorified rational basis) to uphold just about all gun restrictions so long as it does not totally deny the "core of the second amendment right" (keeping a gun in the home).

So I think SCOTUS will either decide strict scrutiny or real intermediate scrutiny applies to 2A cases generally, or at least instruct the circuits to apply THT in a more strict way, adding more stuff to the "core" right.

Unless I am totally wrong about why ANJRPC is being held, and they just deny cert later on. In that case we may indeed be looking at a narrow carry-only ruling.

BTW rabbit, are you Charles Nichols? You two are the only two people in the progun community I've noticed who are very anti conceal carry haha. Regardless, it's an interesting perspective you both share and it isn't without its historical backing. I would not be surprised if the court ruled that conceal carry could be banned/restricted, because what is protected is only open carry. But if a state bans open carry, then they must allow concealed.

Basically, a right for open carry as the constitutional minimum, but the state may make you conceal if that is what is preferred.
The very fact that you would assume I'm anti-concealed carry is indicative of either:

1. Not being here long.
2. Incapable of paying attention.
3. Inability to make an honest attempt to represent the positions of others.

Quote: "But if a state bans open carry, then they must allow concealed."

You clearly haven't read the particulars of Nunn and Reid either as presented in DC v. Heller 2008. Nor have you read about a particular Vermont case.

Nichols is the "Red" from that 70's show, I'm not.

=8-|
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  #1662  
Old 10-18-2021, 3:13 PM
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The easy legislative fix for that would be to greatly expand the parameters for a “prohibited person”. I’m sure those anal fiends are already chattering with themselves about how they are going to “fix” the SCOTUS problem if it comes to pass.
Yep, once they've established that they can set (and move) the goal posts at will, it becomes incredibly easy to do so with just a quick stroke of the pen.

The goal, if guns cannot be banned outright, is to make everyone prohibited from buying them. Eventually, that speeding ticket you got back in high school, or that controversial thing you said on social media 10 years ago, will make you a prohibited person.
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Old 10-18-2021, 3:21 PM
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The very fact that you would assume I'm anti-concealed carry is indicative of either:

1. Not being here long.
2. Incapable of paying attention.
3. Inability to make an honest attempt to represent the positions of others.

Quote: "But if a state bans open carry, then they must allow concealed."

You clearly haven't read the particulars of Nunn and Reid either as presented in DC v. Heller 2008. Nor have you read about a particular Vermont case.

Nichols is the "Red" from that 70's show, I'm not.

=8-|
Guilty of #1 for sure, apologies. I just read the last couple pages and it seemed like you were arguing along the same lines as Nichols.

But I am well aware of Heller and the cases it cited to. I don't see anything blocking the Court from ruling that text, history, and tradition indicate a trend towards open carry being the protected right to "bear arms", with restrictions on concealment being permissible as they had long been in the past. But from that jumping off point, it wouldn't be unreasonable for the court to acknowledge the modern conceal carry trend, and state that a state can restrict open carry if they allow for all law abiding citizens to be able to reasonably get a CCW permit. Nowadays, it is open carry that causes panic and disrupts the peace due to that panic, at least in coastal cities.
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Old 10-18-2021, 4:52 PM
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Guilty of #1 for sure, apologies. I just read the last couple pages and it seemed like you were arguing along the same lines as Nichols.

But I am well aware of Heller and the cases it cited to. I don't see anything blocking the Court from ruling that text, history, and tradition indicate a trend towards open carry being the protected right to "bear arms", with restrictions on concealment being permissible as they had long been in the past. But from that jumping off point, it wouldn't be unreasonable for the court to acknowledge the modern conceal carry trend, and state that a state can restrict open carry if they allow for all law abiding citizens to be able to reasonably get a CCW permit. Nowadays, it is open carry that causes panic and disrupts the peace due to that panic, at least in coastal cities.
If you had actually read DC v. Heller, then you would know that Scalia made it clear that SCOTUS is not going to use modern trends and advances to redefine a right.

As none other than Donald Kilmer made it clear during a Stanford debate that he stood in for, public polling at any given instant doesn't define the 2nd Amendment right.

=8-|
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Old 10-18-2021, 6:50 PM
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Who said anything about "redifining"? The argument is that *if* conceal carry can be restricted under THT, but open carry is protected, a state can restrict open carry so long as they let you carry concealed instead. Otherwise, the default is that at least open carry is allowed. It's not unlike the "time, place, and manner" restrictions allowable sometimes in 1A cases.

"If you had read Heller..."

Well, I have, I cite it frequently in briefs I help draft, but setting that aside, what is with the tone? Are we not allowed to have a friendly discussion here? Lol.
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Old 10-18-2021, 8:04 PM
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Who said anything about "redifining"? The argument is that *if* conceal carry can be restricted under THT, but open carry is protected, a state can restrict open carry so long as they let you carry concealed instead. Otherwise, the default is that at least open carry is allowed. It's not unlike the "time, place, and manner" restrictions allowable sometimes in 1A cases.

"If you had read Heller..."

Well, I have, I cite it frequently in briefs I help draft, but setting that aside, what is with the tone? Are we not allowed to have a friendly discussion here? Lol.
To answer your last question first, we are but some resort to name calling or belittlement when their position is challenged.
That is a BIG if. Simply put, the Heller court was not faced with any question about carrying outside the home, so anything said about carrying is dicta. Some want to take this dicta as binding authority. With respect to modes of carrying outside the home, to me, it is almost a blank slate, because, to me, the only history that is needed begins with "When in the course of human events..." and IMHO the founding fathers wanted to ensure that if a future government sought to try what King George attempted the people would have a constitutionally protected right to keep & bear arms sufficient to curtail and prevent such an attempt from succeeding. Of course, I am just an Idahoan who thought that I was a Californian until I got to Idaho and discovered that I had been wrong for over 7 decades!

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  #1667  
Old 10-18-2021, 8:12 PM
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Originally Posted by Wildcat19 View Post
ps. I wouldn't re-elect that LA Sheriff. He is just playing politics for his own benefit. Once a tyrant, always a tyrant.
See: https://www.calguns.net/calgunforum/....php?t=1733804

/off topic
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Old 10-18-2021, 8:28 PM
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BAJ475 - oh I totally agree. I was running through the hypothetical where the Court agreed with the argument that the right to bear arms protects open carry only, given the THT of restricting conceal carry.

It's not an unreasonable conclusion, but ultimately I don't think they'll rule that way.
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  #1669  
Old 10-18-2021, 10:33 PM
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Again the notion that you can predict the outcome based on logic is ludicrous. The decision will be entirely political.

Stop believing what lawyers tell you. All of their training and "legal acumen" is folly and self delusion. It's bullsh1t. The only thing they do that matters in the 2A is forum shopping, up until SCOTUS, at which point it is a coinflip depending on whatever deals they're making inside or optics SCOTUS wants the public looking through for their "legacy".

Want proof? Nearly every outcome can be predicted by partisan alignment with almost perfect accuracy. And yes, if you are the plaintiff's lawyer, you have the added hard requirement of making zero mistakes in a hostile court. That same court will bend over backwards to fill in for and correct any mistakes the State makes. To that extent, your litigation skills are important. But that's where it ends.

Yes, make all the legal (or logical) arguments you want to impress your friends, but rest assured it has zero predictive power. SCOTUS literally has the power to make reality conform to whatever they wish. Any decision they make can be justified by whatever means they want to employ by selectively copy/pasting from the winning party's filings. That's the way courts work. They (and in particular SCOTUS) cannot be compelled to do anything they do not wish to do, and certainly not by some lawyer's self-important cleverness.
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  #1670  
Old 10-19-2021, 7:32 AM
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Who said anything about "redifining"? The argument is that *if* conceal carry can be restricted under THT, but open carry is protected, a state can restrict open carry so long as they let you carry concealed instead. Otherwise, the default is that at least open carry is allowed. It's not unlike the "time, place, and manner" restrictions allowable sometimes in 1A cases.

"If you had read Heller..."

Well, I have, I cite it frequently in briefs I help draft, but setting that aside, what is with the tone? Are we not allowed to have a friendly discussion here? Lol.
If you had read Heller, then you would know that the precedents cited and the States that were involved did not support the "either / or" argument.

Open carry was simply regarded as the natural exercise of the right, whereas the other was not and regulated. One WAS NOT predicated upon the other.

Will SCOTUS change their mind in NYSRPA v Bruen?

Who knows...

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Old 10-19-2021, 8:15 AM
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Curtisfong - actually most cases are decided in SCOTUS with at least some partisan crossover votes. And a lot more cases than people think are 7-2, 8-1, or 9-0. But perhaps you were limiting it to the universe of "controversial" cases. Even then though crossover is not unusual. Gorsuch joining the liberals on trans rights, for example.

I'll grant you that the conservative judges seem to cross the perceived party lines more than the liberals. It would be a huge shock if one of the three liberals ruled on the side of carry rights, for example, but not that shocking if Kavanaugh, Roberts, or Gorsuch uphold abortion rights.

Mrrabbit - yes I know. The either/or thing is just a prediction of one of many possible outcomes in the current case.
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Old 10-19-2021, 12:33 PM
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Curtisfong - actually most cases are decided in SCOTUS with at least some partisan crossover votes. And a lot more cases than people think are 7-2, 8-1, or 9-0. But perhaps you were limiting it to the universe of "controversial" cases. Even then though crossover is not unusual. Gorsuch joining the liberals on trans rights, for example.

I'll grant you that the conservative judges seem to cross the perceived party lines more than the liberals. It would be a huge shock if one of the three liberals ruled on the side of carry rights, for example, but not that shocking if Kavanaugh, Roberts, or Gorsuch uphold abortion rights.
I maintain any crossover is not the result of some lawyer's cleverness.
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Old 10-19-2021, 1:20 PM
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I maintain any crossover is not the result of some lawyer's cleverness.
To some degree I'm sure you're right; while they would never admit to as much, in controversial and high profile cases I'm sure all 9 justices already know which way they'll rule long before oral arguments ever happen, and it's unlikely that oral arguments really ever change the outcome in the bulk of those cases. After all, oral arguments almost never present anything new that hasn't already been discussed ad nauseam in the lower courts' records that the justices and their clerks have already gone over with a fine-toothed comb beforehand. As much as we'd like to think they are impartial going into oral arguments, the contrary is plain as day to see for anyone who's ever watched oral arguments in the lower circuit courts.
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  #1674  
Old 10-19-2021, 1:34 PM
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I maintain any crossover is not the result of some lawyer's cleverness.
Scalia himself made it a point to work with and persuade others - including Justices like Ginsburg.

You can yell from the gallows thinking you're making your point heard . . .

. . . or you can try persuasion.

Funny thing, hard as it is, persuasion actually works. Learned it the hard way in a very nasty overly politicized IT environment for three years back in the early 2000s.

No cleverness was required.

Quite possible that Kagan may be the one doing some persuading this time around.

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  #1675  
Old 10-19-2021, 1:55 PM
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. . . or you can try persuasion.
SCOTUS isn't reading any posts here, and any arguments here are usually to make a prediction, IMO. I don't think any of this ever makes it to any filing; I find it hard to believe any lawyer would deign to mine anything here for their own use (unless nefariously).

So to that extent, arguing here only has two purposes

1) helping the "other" side (I've seen this claim but don't find it terribly convincing)
2) make predictions

And I've said my piece on 2). Logic/reason don't enter into it.
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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." - Kamala Harris

Lawyers and their Stockholm Syndrome
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  #1676  
Old 10-20-2021, 11:01 AM
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Originally Posted by CandG View Post
To some degree I'm sure you're right; while they would never admit to as much, in controversial and high profile cases I'm sure all 9 justices already know which way they'll rule long before oral arguments ever happen, and it's unlikely that oral arguments really ever change the outcome in the bulk of those cases. After all, oral arguments almost never present anything new that hasn't already been discussed ad nauseam in the lower courts' records that the justices and their clerks have already gone over with a fine-toothed comb beforehand. As much as we'd like to think they are impartial going into oral arguments, the contrary is plain as day to see for anyone who's ever watched oral arguments in the lower circuit courts.
Oral arguments is for PR. They demonstrate their reasoning for the decision (already made in their mind) during questioning.
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Old 10-20-2021, 11:02 AM
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If you had read Heller,
Heed your own advice and try to understand its meaning. Need a link?
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Old 10-20-2021, 12:36 PM
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Originally Posted by CandG View Post
To some degree I'm sure you're right; while they would never admit to as much, in controversial and high profile cases I'm sure all 9 justices already know which way they'll rule long before oral arguments ever happen, and it's unlikely that oral arguments really ever change the outcome in the bulk of those cases. After all, oral arguments almost never present anything new that hasn't already been discussed ad nauseam in the lower courts' records that the justices and their clerks have already gone over with a fine-toothed comb beforehand. As much as we'd like to think they are impartial going into oral arguments, the contrary is plain as day to see for anyone who's ever watched oral arguments in the lower circuit courts.
This is true for all appellate courts, in many of which oral argument is held only at the request of one of the parties (or in rare occasions at the request of the Court). In SCOTUS, all cases are argued. Many appellate practitioners consequently believe that oral argument is simply an occasion for counsel to put his foot in his mouth.
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  #1679  
Old 10-20-2021, 1:02 PM
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Originally Posted by mrrabbit View Post
Scalia himself made it a point to work with and persuade others - including Justices like Ginsburg.



Quite possible that Kagan may be the one doing some persuading this time around.

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That's a definite ^^^^^^
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