Why unqualified non-2A attorneys should not file 2A legal challenges

[kcbrown]

Originally Posted by Tincon

I never claimed that, it's ludicrous. I do think you need to make good arguments within the framework of the legal system to win. Better arguments give you a better shot at winning. Conceding to your opponents strongest arguments reduces your chance of winning. I really can't believe I have to explain this. Isn't it obvious?

In the absence of more compelling arguments made on your behalf by amici, I most certainly agree. But in the presence of such arguments made in front of an honest court, then I must disagree. An honest court is not interested in how good an argument sounds, only in the argument's logical soundness and its consistency with what is known or for which there is indisputable proof.

If you're talking about a less than honest court, then all bets are off anyway, and it becomes strictly a matter of luck.

Maybe your comments are in the context of a less than honest court. I can't really argue in that context, because that context is an entirely arbitrary one that has the potential of having whatever characteristics you wish as regards this.


ETA: That said, I most certainly agree that it's preferable to not have any mistakes made by counsel, if only because such is more efficient. But that's not the real question, is it? The real question is how much of a real-world difference it makes. And that is entirely dependent upon context. As regards this particular case in front of this particular court, it almost certainly makes no difference whatsoever. The 9th Circuit will almost certainly apply intermediate scrutiny here whether or not counsel objects to it, and that's that.

[Sakiri]

KC, I'm actually curious as to how we'd get a carry case that SCOTUS would take.

The current school of thought with some is that they'll take a case involving open loaded, rather than concealed carry.

I'd almost be willing to be the guinea pig for the case, but I can't afford to so much as apply for a LTC in CA much less a lawyer for a case. Not being able to afford the LTC effectively kills my RKBA in this miserable state.

Being guaranteed the right to keep and bear arms as per protections from the Second Amendment, and laws forbidding open loaded carry in the state of California, they're placing undue burden on my ability to exercise my rights outside the home.

Can't remember if it was Heller or the one in IL, one of the two stated that the 2nd does in fact apply to outside the home, and if I recall the statement was "possibly more so" than inside.

It could (theoretically) be worth looking at, but as I've mentioned, I can't afford a lawyer and we'll probably have the State of Jefferson before it gets through the court system(that's about my best guess).

[kcbrown]

Originally Posted by Sakiri

KC, I'm actually curious as to how we'd get a carry case that SCOTUS would take.

The current school of thought with some is that they'll take a case involving open loaded, rather than concealed carry.

SCOTUS has denied cert to all cases involving bear outside the home thus far, be they criminal or civil cases. They have run nearly the entire gamut, from cases involving strictly concealed carry, to cases that involve carry inside one's own automobile, to cases involving bear in general being governed by essentially arbitrarily-issued permits. The only two (that I'm aware of) categories that haven't come before them are cases involving utter prohibition of all carry for everyone, and cases that involve strictly open carry. The former was a possibility in Moore, but Madigan was, as I predicted, bright enough to not appeal that case to the Supreme Court. Sans the Marianas Islands, that leaves the latter.

In the 9th Circuit, we already have several carry cases, but they all involve permits and/or concealed carry. We have none involving purely open carry. The open carry prohibition will be upheld by the 9th Circuit, of course, but it becomes a question of whether or not SCOTUS would take the case. My suspicion is that they won't (they didn't take Woollard, after all), but we cannot know until the case is offered to them.

I've no idea whether California is the best jurisdiction in which to bring an open carry case. I'd think, actually, that Denver would be the best place to bring such a case, especially by a resident who already has a concealed carry license. After all, if open carry is the protected right, as some claim, then such a person should be able to prevail even though they can carry concealed, because carrying a concealed firearm is not exercise of the right under that view.

[curtisfong]

Originally Posted by kcbrown

ETA: That said, I most certainly agree that it's preferable to not have any mistakes made by counsel, if only because such is more efficient. But that's not the real question, is it? The real question is how much of a real-world difference it makes. And that is entirely dependent upon context. As regards this particular case in front of this particular court, it almost certainly makes no difference whatsoever. The 9th Circuit will almost certainly apply intermediate scrutiny here whether or not counsel objects to it, and that's that.

I guess the point is that under appeal, it is arguably easier to show that the 9th erred by applying strict scrutiny incorrectly than to show they applied the wrong kind of scrutiny entirely.

Still, all these sorts of idiotic games that have to be played just to coerce the system into being honest does not bode well.

Originally Posted by wolfwood

Hey Matt every Court in the Country has applied intermediate scrutiny to carry cases other than the 7th which dealt with a complete ban on carry. It did not adopt a level of scrutiny. We win applying intermediate scrutiny. Sorry that does not work out for you but that is the way the Courts have gone. All I did was to remind the Court that opposing Counsel was incorrect in stating the lower Court accepted our argument that the right extends outside the home. In fact the Court stated the right does not extend outside the home. Applying any level of heightened scrutiny Hawaii's laws fail. That's all my client needs.

I am still rooting for you brother. And of course you and I know these commie courts do what they want. lol.

[Sakiri]

Woollard wasn't a strict open carry case. It was a permit case.

Their permit can be used for either, they just have a "carry" permit.

CA has no open carry outside extremely limited and mostly useless exceptions. If you're hunting or fishing you can carry concealed. You can carry concealed while at a campsite if I remember right. Most of the places and circumstances you'd want to carry in unincorporated areas are allowed concealed under certain circumstances anyways.

They don't like open carry here because people get nervous seeing guns. Too bad.

Exercising that right shouldn't be limited to the rich and/or connected.

[kcbrown]

Originally Posted by curtisfong

I guess the point is that under appeal, it is arguably easier to show that the 9th erred by applying strict scrutiny incorrectly than to show they applied the wrong kind of scrutiny entirely.

Actually, that should be easy. SCOTUS did not say that the core of the right is self-defense in the home. It said that it was self-defense, period:

Originally Posted by District of Columbia v. Heller, 128 S. Ct. 2783 - Supreme Court 2008 at 2818

We must also address the District's requirement (as applied to respondent's handgun) that firearms in the home be rendered and kept inoperable at all times. This makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional.

There are other parts of the majority discussion in Heller which suggest that defense (of self but also of others) is what the Court is most interested in. See, e.g., supra at 2793-2794. Regardless, for the 9th Circuit to insist that the "core" is limited to self-defense in the home is for it to limit Heller to its facts and/or holding and to ignore the basis of the decision. It's also quite clearly incorrect on more fundamental grounds, as one is just as dead whether one is killed inside the home or outside of it, and thus the imperative for self-defense does not change based merely on whether one is inside the home or outside of it.

Still, all these sorts of idiotic games that have to be played just to coerce the system into being honest does not bode well.

One does not coerce the system into being honest. That's much of my point. The system does as it wishes. It operates under no constraints whatsoever. If it is honest at any point, it is only because those involved in it want it to be, not because it was coerced into it. To believe that one has the power to coerce this system into doing anything is to harbor delusions of grandeur.

[kcbrown]

Originally Posted by Sakiri

Woollard wasn't a strict open carry case. It was a permit case.

Their permit can be used for either, they just have a "carry" permit.

Understood, but the reason it's especially notable that it was denied cert is that it covered all carry, not just concealed.

But if SCOTUS is unwilling to deal with cases involving arbitrarily-issued permits, then winning a pure open carry case that does not involve permits will buy scant relief, for the government can (and thus will) then simply slap an arbitrary permit system on open carry and we'll be right back to the situation with Woollard, with exactly the same results as what we have in California currently.

That makes it a distinction without a difference.

[Mulay El Raisuli]

Originally Posted by kcbrown

Understood, but the reason it's especially notable that it was denied cert is that it covered all carry, not just concealed.

But if SCOTUS is unwilling to deal with cases involving arbitrarily-issued permits, then winning a pure open carry case that does not involve permits will buy scant relief, for the government can (and thus will) then simply slap an arbitrary permit system on open carry and we'll be right back to the situation with Woollard, with exactly the same results as what we have in California currently.

That makes it a distinction without a difference.

Permits are anathema to the Constitution, so your claim that they can impose a permit system is a bit iffy. A "pure" LOC case (which is to say, something that is nothing like Woollard) is what we need to save the day.


The Raisuli

[kcbrown]

Originally Posted by Mulay El Raisuli

Permits are anathema to the Constitution, so your claim that they can impose a permit system is a bit iffy. A "pure" LOC case (which is to say, something that is nothing like Woollard) is what we need to save the day.

My claim is not that the government's action is Constitutional, only that in doing so, it will be creating exactly the situation that SCOTUS denied cert for. Which means that if the government slaps a permit system on LOC (where said permit system already covers concealed carry), why should we believe that SCOTUS would grant cert to the resulting case when the resulting case would be factually identical (or so close as to not matter) to Woollard, a case they denied cert to?

My statement is not about Constitutionality, but rather about the Supreme Court's behavior. My belief is that the Supreme Court is done with us, and that we will not get any carry case rulings until, at the very least, we lose one or more of the Heller 5 to more anti-rights members. Even after that happens, it's very much a roll of the dice as to whether or not we get a carry case in front of the resulting court, since the end result they'd generate by deciding against carry would be essentially identical to the situation as it stands already (and so, that raises the question of why they'd bother).

[dave_cg]

Originally Posted by kcbrown

... My statement is not about Constitutionality, but rather about the Supreme Court's behavior. My belief is that the Supreme Court is done with us, ...

... and you've said why. You've said that even if Wollard was not asking for relief they were willing to grant, they could have taken it and ruled as they like anyway.

But when Wollard was denied cert, I spent a long time thinking about why. I changed my mind about what the Court is looking for. I now believe that any case asking for a permission slip to exercise an enumerated right is a non-starter. Imagine how that propagates to other rights! The SC won't go there. We need to probe the court with a case that says self-defense outside the home is a protected right, and the right to bear is specifically enumerated, without that case also addressing manner. It's enough to get the court to say that *some* manner of carry *must* be legal to non-prohibited persons without a permission slip. The whole 'concealed' versus 'open' carry is a manner question that I think the SC will totally dodge, and defer to the states. We need to get them on record with simply 'carry'. The SC will let the states decide which is the constitutionally protected manner, and which additional manner(s) requires a permission slip.

So... while the court could have taken Wollard, junked the brief, and had a clerk whip up an opinion out of thin air, that's expecting a lot. I won't say the court is done with us until we have hit them between the eyes with a pure carry, manner-doesn't-figure-into-it, case. Wollard could have been briefed that way, and I like to think it would have gotten cert if it had.

[kcbrown]

Originally Posted by dave_cg

... and you've said why. You've said that even if Wollard was not asking for relief they were willing to grant, they could have taken it and ruled as they like anyway.

But when Wollard was denied cert, I spent a long time thinking about why. I changed my mind about what the Court is looking for. I now believe that any case asking for a permission slip to exercise an enumerated right is a non-starter.

Which means the logic I used above is entirely sound. The government can always convert a total ban into something involving permission slips but which is close enough to a total ban that it achieves their purpose of disarming the population.

Imagine how that propagates to other rights! The SC won't go there. We need to probe the court with a case that says self-defense outside the home is a protected right, and the right to bear is specifically enumerated, without that case also addressing manner. It's enough to get the court to say that *some* manner of carry *must* be legal to non-prohibited persons without a permission slip.

But if the Court is unwilling to deal with cases involving permission slips, then it is illogical to believe that the Court will insist that the right be exercisable without them. Rather, it is logical to believe that, when presented with a case involving no permission slips at all, the Court will simply say that the right outside the home exists. And at this point, even that's a stretch. It's more likely that the Court will simply deny cert there as well.

The whole 'concealed' versus 'open' carry is a manner question that I think the SC will totally dodge, and defer to the states. We need to get them on record with simply 'carry'. The SC will let the states decide which is the constitutionally protected manner, and which additional manner(s) requires a permission slip.

So... while the court could have taken Wollard, junked the brief, and had a clerk whip up an opinion out of thin air, that's expecting a lot. I won't say the court is done with us until we have hit them between the eyes with a pure carry, manner-doesn't-figure-into-it, case. Wollard could have been briefed that way, and I like to think it would have gotten cert if it had.

Woollard was briefed that way. It is a mistake to believe that the case that was argued was one that touched upon manner of carry except to explicitly call out that it wasn't being addressed.

Worse, the district court decision in Woollard also did exactly the same thing: explicitly disclaimed that it was addressing manner.


So yes, my reasons for believing that the Court really is done with us are, from what I can tell, rock solid. With the sole possible exception of the issue of permission slips, Woollard was precisely the vehicle that we were looking for. But a vehicle that does not involve permission slips is one that will prove worthless, because if the Court is unwilling to deal with that issue, then it means that governments can and will do whatever they please through the vehicle of permission slips. The mere declaration by the Court that the right outside the home exists is in itself worthless unless it is followed up by a declaration that either the government must issue permission slips to (at a minimum) all non-prohibited persons, or that permission slips are disallowed entirely for at least some manners of the exercise of the right. But whether the former or the latter is what is said, the Court must deal with the issue of permission slips for the right to be treated as a right. There is no escaping that, and that is why Woollard was a suitable vehicle for securing carry.

Hence, to claim that the Court is uninterested in dealing with the issue of permission slips is to conclude that the Court has no problem with the right being infringed to the point of extinction, as long as it is done through the vehicle of permission slips. Is that really your claim? If so, then why would the Court bother to take a case for the purpose of declaring that the right exists outside the home at all?

[curtisfong]

The great thing about the court system is that SCOTUS can decide that the "the sky is blue", and refuse to cert any appeals on decisions (past and future) where lower courts have said "the sky is not blue"

Indefinitely.

[Apocalypsenerd]

At this point I am tending to agree with KC's position that for the time being SCOTUS is done with us.

My only caveat to that, is that it is possible that the SCOTUS waits until all Circuits have ruled before taking a case regarding the subject matter. That being said, I think it is criminal for our highest court to allow individuals to go to jail because they want to wait on a lower court.

My questions regarding this matter are as follows:

Had all circuits ruled on cases similar to Heller before SCOTUS took Heller?

Had all circuits ruled on cases regarding gay marriage before SCOTUS took the challenges to Prop 8 and other anti-gay laws?

How does this compare to other dialogues about different civil liberties?

[kcbrown]

Originally Posted by Apocalypsenerd

At this point I am tending to agree with KC's position that for the time being SCOTUS is done with us.

My only caveat to that, is that it is possible that the SCOTUS waits until all Circuits have ruled before taking a case regarding the subject matter. That being said, I think it is criminal for our highest court to allow individuals to go to jail because they want to wait on a lower court.

My questions regarding this matter are as follows:

Had all circuits ruled on cases similar to Heller before SCOTUS took Heller?

No. Per the respondent's brief, "No state, and only one other major city (Chicago), bans handguns outright. The other two provisions appear unique to Washington, D.C.".

Had all circuits ruled on cases regarding gay marriage before SCOTUS took the challenges to Prop 8 and other anti-gay laws?

Almost certainly not, as that would require laws regarding gay marriage to exist in all circuits. One cannot challenge a law that does not exist.

How does this compare to other dialogues about different civil liberties?

It's very different. As I've shown before, the Supreme Court was much more aggressive in defending the civil rights of blacks than they have been in defending the Second Amendment.



No, this Supreme Court appears to have no intention of actually backing its words with deeds.

[Apocalypsenerd]

Well, if they are not following a pattern that is discernible, and they are ignoring further cases, then we have little choice but to conclude that they are done for the time being. Attempting to parse reasons or motivation is probably just a waste of time.

They could easily have picked ANY carry case and laid out the framework for what they judged was Constitutional.

[kcbrown]

Originally Posted by Apocalypsenerd

Well, if they are not following a pattern that is discernible, and they are ignoring further cases, then we have little choice but to conclude that they are done for the time being. Attempting to parse reasons or motivation is probably just a waste of time.

They could easily have picked ANY carry case and laid out the framework for what they judged was Constitutional.

Precisely.

I see no other logical conclusion to draw from the evidence at hand, particularly in light of the cases they are granting cert to, many of which involve trivia. E.g., Medtronic Inc. v Boston Scientific Corp., involving the specific burdens of patent licensees, or BG Group, PLC v Republic of Argentina, involving who decides whether or not arbitration preconditions have been satisfied, or US v Gary Woods, which asks about the overstatement penalty in the Internal Revenue Code. And that's just three out of 49. I dare say that none of that 49 have the import and scope that Woollard had, but even if some did, it should be plain that there's plenty of room for cases like Woollard, and therefore the only reason the Supreme Court denied cert (given the nature of Woollard) is because it wanted to.

[nicki]

Concealed carry is obviously the "preferred method" of carry for most, but the constitutional issue is "bear arms".

An open carry case in California has a problem, it is called the "Black Panthers", as such, touching "open carry" in California is perceived by many to be a "foolish move".

Rather than run away from the "Black Panther" problem, I say let's embrace the right and the reason why the "Black Panthers" took up arms in 1967 in the first place.

Before any of you "chime in", bear in mind that the "Black Panthers" only started carrying arms after they were attacked by the police for documenting and recording civil rights violations by the police. An activity that the US Supreme court recently ruled is a CONSTITUTIONALLY PROTECTED RIGHT.

If you oppose what the Black Panthers did, then you also have to view that the World War Two veterans who took up arms in Athens, Tennessee were WRONG to take up arms and engage in a gun battle with the local sheriff who was in the process of trying to steal an election.

The Black Panthers prior to 1967 were law abiding and as more documents from the 1960's hits the 50 year mark, we will probably find a lot of questionable behavior on the part of our government during those times.

A open carry case attacking the constitutionality of the "Mulford Act" is something we must do, but in doing so, it must be an all-out effort.

I realize than some here would be very uncomfortable with such a lawsuit because it easily could become an "anti-cop" lawsuit.

It is my feeling that "good cops" want to serve and protect people, not violate them and that "good cops" should want to "purge bad cops" from their ranks.

This would be a difficult case because it would be "hard" to read judges, those who we think should be on our side could flip while those we think are our opponents, could surprise us.

One thing for sure, the case would be present an interesting prospect to the courts. Do the people have the right to bear arms to protect themselves from agents of government operating outside of their oaths of office?

Nicki

[Mulay El Raisuli]

Originally Posted by kcbrown

My claim is not that the government's action is Constitutional, only that in doing so, it will be creating exactly the situation that SCOTUS denied cert for. Which means that if the government slaps a permit system on LOC (where said permit system already covers concealed carry), why should we believe that SCOTUS would grant cert to the resulting case when the resulting case would be factually identical (or so close as to not matter) to Woollard, a case they denied cert to?
<snip>

Then it is clear that what we need is a case that is only about LOC AND license free. Specifically, Bonidy (my comments about how to fight that are elsewhere).


The Raisuli

[kcbrown]

Originally Posted by Mulay El Raisuli

Then it is clear that what we need is a case that is only about LOC AND license free. Specifically, Bonidy (my comments about how to fight that are elsewhere).

But let's say that the Court addresses only issues that are actually before it (remember, the lower courts have generally limited Heller to its facts and holding, so as regards governing the lower courts, this is of monumental importance).

Is the issue of permits before the Court when the case you're thinking of here gets to it? No.

Will the Court thus issue a decision in which the decision itself says anything about permits? Almost certainly not.


So tell me then: what in the world makes you think that the case you're thinking of will have any value whatsoever by itself, when all the governments in question will have to do is slap a "may-issue-but-really-almost-no-issue" permit system on exercise of the right?

The logical answer is completely obvious: the case you're thinking of is completely worthless without a companion case that deals with permits. But if the Court is unwilling to deal with the permit issue, as it quite clearly has indicated based on its inaction with respect to that very issue to date, then why should we believe that it will suddenly be willing to deal with the permit issue in a later case?


That said, we are where we are and there's nothing to be done about it. So the case you're thinking of must go up, because there's nothing else we can do. But to expect that to actually get us anything useful by itself is to live in a fantasy world.

[Whiskey_Sauer]

LOL at the premise of the original post, which was to call out "unqualified" "non-2A attorneys" and to leave Second Amendment litigation to the so-called experts, and not mere-mortal amateurs, which then leads to 3+ pages of rank speculation by amateurs about how the Court is likely to consider further Second Amendment cases.

[curtisfong]

A non-amateur (actual lawyer) would just go on and on about how wonderful the court system is, and how intelligent, consistent and intellectually honest judges as a whole are.

And that having an experienced lawyer who can make an intelligent, consistent, and logical argument is a SURE WIN STRATEGY!

Are you sure that is what you want to hear?

[kcbrown]

Originally Posted by Whiskey_Sauer

LOL at the premise of the original post, which was to call out "unqualified" "non-2A attorneys" and to leave Second Amendment litigation to the so-called experts, and not mere-mortal amateurs, which then leads to 3+ pages of rank speculation by amateurs about how the Court is likely to consider further Second Amendment cases.

Rank speculation and logical deductions based on evidence are not at all the same thing. It is unwise to confuse one with the other, since confusing the former for the latter leads to belief in the impossible, whilst confusing the latter for the former leads to disbelief in that which has been proven correct.

[meyerlemony]

Originally Posted by taperxz

Bakers lawyer is not out to create precedents in the world of the 2A, Baker simply wanted to own a handgun. His lawyer is trying to make that happen for him.

All (rational) litigators know that every time we file a document, each and every time we file a case, and every time we walk into a courtroom for oral arguments, we are making precedent. That is what we DO. Building on case law. Published or unpublished, what happens in every case goes into, at the very least, that judge's mental "bench book" and influences what happens after, and, in the other extreme, appears as the foundation for a Supreme Court case. The just in this matter will forever remember the "pro 2A lawyer" conceding on intermediate scrutiny.

That's why being a litigator is worth the work - you are, with every word, shifting the legal climate of your local courtroom, your jurisdiction, you state, or, if you're lucky, the country.

The magic phrase is, "your honor, opposing counsel argues the test should be intermediate scrutiny. While I respectfully disagree and reiterate, as I have shown in my previous pleadings, that the proper level of scrutiny should be strict scrutiny, for the purposes of this case, it is irrelevant because under ANY standard of heightened scrutiny, the law fails."

You follow the Supreme Court's lead in Heller - you know it isn't rational basis, and because it can't pass strict OR intermediate scrutiny, you drop the argument. But you don't concede. If your arguments are well reasoned and based in statute and case law, you NEVER concede - you respectfully disagree and either the judge goes with it or doesn't. Or you argue in the alternative.

[curtisfong]

Originally Posted by meyerlemony

All (rational) litigators

You mean activist litigators.

Rational litigators only care about the clients they have right now.

Now, you could argue they know what kind of clients they might have in the future (and thus what kind of precedent they may need later), but a sufficiently skilled (and rational) litigator might bat for whatever client pays the most..

[meyerlemony]

Originally Posted by curtisfong

A non-amateur (actual lawyer) would just go on and on about how wonderful the court system is, and how intelligent, consistent and intellectually honest judges as a whole are.

And that having an experienced lawyer who can make an intelligent, consistent, and logical argument is a SURE WIN STRATEGY!

Are you sure that is what you want to hear?

Really? I'm an actual, non-amateur lawyer, and I would never say that. Nothing is EVER a sure win...nothing.

Our court system is pretty good, and I think gets it right more often than not - but it can go very, very badly. It is certainly better than (in my not so humble opinion) what other countries have.

[meyerlemony]

Originally Posted by curtisfong

You mean activist litigators.

Rational litigators only care about the clients they have right now.

Now, you could argue they know what kind of clients they might have in the future (and thus what kind of precedent they may need later), but a sufficiently skilled (and rational) litigator might bat for whatever client pays the most..

All litigators are activists - for their clients. Maybe they are batting for whatever client pays the most...but we all still know that every case is a piece of a bigger puzzle. How does it make you an activist if it is true? Even if you only care about the case you are arguing right that second, the fact that you are influencing case law doesn't change.

I just fundamentally disagree that anyone should accept that "well, it got a good result for my client, and to heck with the precedent" is an acceptable position.

[Whiskey_Sauer]

Originally Posted by kcbrown

Rank speculation and logical deductions based on evidence are not at all the same thing. It is unwise to confuse one with the other, since confusing the former for the latter leads to belief in the impossible, whilst confusing the latter for the former leads to disbelief in that which has been proven correct.

Oho, now you're going to condescend to lecture me about evidence? This thread keeps getting better and better.

[meyerlemony]

Originally Posted by Tincon

We are talking about a guy who literally, in a brief, said to the court, THAT THE COURT WAIVED ANY PROCEDURAL DEFECTS IN HIS BRIEF BECAUSE IT AUTOMATICALLY ACCEPTED HIS ELECTRONIC FILING. Incredible. And there are people here thinking that he is doing a good thing by litigating cases that could decide the SOR for the 2A for all of us. That he should be litigating these issues. That he should be filing cases that the SAF and NRA and lawyers like Clement, Gura, and Michel specifically asked him not to file. I must be hallucinating.

If it sounds like I'm furious, it's because I am.

Oh dear. Really? I wouldn't mind reading that. If you have the cite handy, I'd appreciate it. Otherwise I can just pick through Westlaw tomorrow.

[curtisfong]

Originally Posted by Whiskey_Sauer

Oho, now you're going to condescend to lecture me about evidence? This thread keeps getting better and better.

So we should delete posts from anybody who didn't pass the Bar?

[kcbrown]

Originally Posted by Whiskey_Sauer

Oho, now you're going to condescend to lecture me about evidence? This thread keeps getting better and better.

About evidence? No. What need is there of that? You've not disputed the evidence. We know what the Supreme Court has done, and we know what the Supreme Court has not done. We also know what the lower courts have done, and what they have not done. We know what has been presented to all of them. Logical conclusions can be drawn from all of that.

It may be that you don't like the conclusions being drawn, but that you may not like them in no way casts doubt on their validity. They stand or fall on their own.


ETA: If you have a better hypothesis that fits the facts and makes predictions at least as good as the hypothesis I'm operating under, spill it. Otherwise, you really haven't much to stand on, do you?

[Whiskey_Sauer]

Originally Posted by meyerlemony

All litigators are activists - for their clients. Maybe they are batting for whatever client pays the most...but we all still know that every case is a piece of a bigger puzzle. How does it make you an activist if it is true? Even if you only care about the case you are arguing right that second, the fact that you are influencing case law doesn't change.

I just fundamentally disagree that anyone should accept that "well, it got a good result for my client, and to heck with the precedent" is an acceptable position.

Wrong. Your client pays you - and you have a duty - to get the best possible outcome for him, period. If you are willing to compromise your client's position because you think there might be a better outcome for a community of similarly-situated parties, and possibly earn you glory on appeal, then you aren't doing your duty to your client.

I find it hard to believe that you litigate cases and actually think about precedent in 99% of the law & motion matters you handle, unless you are an appellate specialist.

[Whiskey_Sauer]

Originally Posted by curtisfong

So we should delete posts from anybody who didn't pass the Bar?

No, not at all. I am quite sincere when I say this thread has a high amusement factor. Prognosticate away.

I especially find amusement from newly-minted JDs who haven't even passed the bar or represented an actual client in court who start threads and condescend to lecture actual attorneys how not to represent their clients. No, it doesn't get any better than that.

[chainsaw]

Originally Posted by meyerlemony

I just fundamentally disagree that anyone should accept that "well, it got a good result for my client, and to heck with the precedent" is an acceptable position.

So you say you are an actual lawyer. I presume that you mean the following: You are licensed to practice law by the state of California, and you are a member of the California bar.

Above, you are telling me that getting the best result for your client is not your highest priority, if getting that result would lead to bad precedent for future clients, or for the community at large. Do you agree that this is just a clearer exposition of what you stated in the quote above?

Is that compatible with the duty you (as a licensed attorney) have above all to your client? I think if I took your statement to a disciplinary hearing at the bar, bad things would happen to your license.

Now, in some cases your client is not interested in the outcome of the particular lawsuit, but in setting precedent (which is common in lawsuits by political advocacy organizations, such as CGF, NRA, SAF, and uncommon but not unheard of in lawsuits by individuals or corporations). In that case, your obligation is still to your client. But the focus on setting good precedent is ethical if and only if your client wishes that to be the focus.

[kcbrown]

Originally Posted by Whiskey_Sauer

I find it hard to believe that you litigate cases and actually think about precedent in 99% of the law & motion matters you handle, unless you are an appellate specialist.

Question: how would being an appellate specialist change the calculus here?

[Tincon]

Originally Posted by Whiskey_Sauer

If you are willing to compromise your client's position because you think there might be a better outcome for a community of similarly-situated parties, and possibly earn you glory on appeal, then you aren't doing your duty to your client.

No one here said that. What was said was, there is an artful (and entirely commonplace) way to achieve the same purported goal without conceding such a massively important point to opposing counsel.

[Tincon]

Originally Posted by Whiskey_Sauer

.
I especially find amusement from newly-minted JDs who haven't even passed the bar or represented an actual client in court who start threads and condescend to lecture actual attorneys how not to represent their clients. No, it doesn't get any better than that.

I don't even have a JD. And yet, I'm not wrong.

[arsilva32]

Originally Posted by Tincon

I don't even have a JD. And yet, I'm not wrong.

lol you sir will make a great attorney or the like,don't let anything or anyone change that conviction.

[Mulay El Raisuli]

Originally Posted by kcbrown

But let's say that the Court addresses only issues that are actually before it (remember, the lower courts have generally limited Heller to its facts and holding, so as regards governing the lower courts, this is of monumental importance).

Is the issue of permits before the Court when the case you're thinking of here gets to it? No.

Will the Court thus issue a decision in which the decision itself says anything about permits? Almost certainly not.


So tell me then: what in the world makes you think that the case you're thinking of will have any value whatsoever by itself, when all the governments in question will have to do is slap a "may-issue-but-really-almost-no-issue" permit system on exercise of the right?

The logical answer is completely obvious: the case you're thinking of is completely worthless without a companion case that deals with permits. But if the Court is unwilling to deal with the permit issue, as it quite clearly has indicated based on its inaction with respect to that very issue to date, then why should we believe that it will suddenly be willing to deal with the permit issue in a later case?


That said, we are where we are and there's nothing to be done about it. So the case you're thinking of must go up, because there's nothing else we can do. But to expect that to actually get us anything useful by itself is to live in a fantasy world.

What makes you think that the governments in question have the ability to just slap on a permit system? The District judge on Bonidy stated flat out that open carry is the Right. If we carry this WIN to the 10th (and to SCOTUS), we would then have permitless LOC as The Law of The Land. Because, as you say, permits are NOT part of the case, any & all effort in that direction is disallowed.

Now, the antis can try to pass a 'permit for LOC' law afterward, but the burden is on the antis to justify, in Federal court, whatever permit law they might want to pass. Which they can't do. Just as permits can't be imposed on any other Constitutional Right that is "fundamental" to the American scheme.

Originally Posted by Whiskey_Sauer

LOL at the premise of the original post, which was to call out "unqualified" "non-2A attorneys" and to leave Second Amendment litigation to the so-called experts, and not mere-mortal amateurs, which then leads to 3+ pages of rank speculation by amateurs about how the Court is likely to consider further Second Amendment cases.

Mostly true. However, before 2008, the ranks of "unqualified" "non-2A attorneys" included Gura.

Also, it isn't completely "rank speculation." I have been proven completely correct in my predictions of how the 'Shall Issue CCW is the Constitutional Right' effort would be treated in the Federal courts.

Originally Posted by meyerlemony

All (rational) litigators know that every time we file a document, each and every time we file a case, and every time we walk into a courtroom for oral arguments, we are making precedent. That is what we DO. Building on case law. Published or unpublished, what happens in every case goes into, at the very least, that judge's mental "bench book" and influences what happens after, and, in the other extreme, appears as the foundation for a Supreme Court case. The just in this matter will forever remember the "pro 2A lawyer" conceding on intermediate scrutiny.

That's why being a litigator is worth the work - you are, with every word, shifting the legal climate of your local courtroom, your jurisdiction, you state, or, if you're lucky, the country.

The magic phrase is, "your honor, opposing counsel argues the test should be intermediate scrutiny. While I respectfully disagree and reiterate, as I have shown in my previous pleadings, that the proper level of scrutiny should be strict scrutiny, for the purposes of this case, it is irrelevant because under ANY standard of heightened scrutiny, the law fails."

You follow the Supreme Court's lead in Heller - you know it isn't rational basis, and because it can't pass strict OR intermediate scrutiny, you drop the argument. But you don't concede. If your arguments are well reasoned and based in statute and case law, you NEVER concede - you respectfully disagree and either the judge goes with it or doesn't. Or you argue in the alternative.

Makes sense to me.


The Raisuli

[Whiskey_Sauer]

Originally Posted by Tincon

No one here said that. What was said was, there is an artful (and entirely commonplace) way to achieve the same purported goal without conceding such a massively important point to opposing counsel.

I still would like to see the brief that you would have written in response to the defendants' Notice of Supplemental Authority. Since you speak for the Association of Qualified Second Amendment Attorneys ("AQSAA").