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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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  #3401  
Old 02-26-2021, 12:25 PM
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Quote:
Originally Posted by faris1984 View Post
What are the chances that we win/lose the case?
For the en banc portion of this case:

There's a 24.9% chance that there is a ~100% change of winning.

There's a 75.1% chance that there is a ~0% change of winning.

Once the panel gets chosen, sometime over the next couple weeks, we'll have a pretty good idea if it's 100% or 0%.

It's sad that we can make such predictions based solely on the judges' names, but alas... most of the time, we can. Doesn't ultimately matter if the case is well argued by either side, or what their arguments even are; every single judge in the 9th Circuit already knows which way they'll decide if they get chosen for the panel.
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  #3402  
Old 02-26-2021, 2:32 PM
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Originally Posted by CandG View Post
For the en banc portion of this case:

There's a 24.9% chance that there is a ~100% change of winning.

There's a 75.1% chance that there is a ~0% change of winning.

Once the panel gets chosen, sometime over the next couple weeks, we'll have a pretty good idea if it's 100% or 0%.

It's sad that we can make such predictions based solely on the judge's names, but alas... most of the time, we can. Doesn't ultimately matter if the case is well argues by either side, or what their arguments even are; every single judge in the 9th Circuit already knows which way they'll decide if they get chosen for the panel.
Given the outcomes are so certain, it is ever more frustrating that the whole process takes so long.
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  #3403  
Old 02-26-2021, 2:45 PM
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Originally Posted by CandG View Post
It's sad that we can make such predictions based solely on the judge's names, but alas... most of the time, we can. Doesn't ultimately matter if the case is well argues by either side, or what their arguments even are; every single judge in the 9th Circuit already knows which way they'll decide if they get chosen for the panel.
The worst thing about this is that Sidney Thomas obviously thinks this is a good thing, seeing how often he depends on it being true.

He is a loathsome, corrupt, ethically bankrupt worm. I hold him in complete contempt.

As chief judge, if no other judge is willing to be non-partisan, he, at least, should be.
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  #3404  
Old 02-26-2021, 4:18 PM
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Originally Posted by bigstick61 View Post
What about getting that many pro-gun judges? My understanding is that the number of pro-RKBA judges is smaller than the number of Republican appointees such that depending on who exactly gets picked, a Republican majority may still result in an anti-RKBA-majority panel.
I hate RINOs. How can a true Republican be anti-RKBA?
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  #3405  
Old 02-26-2021, 6:07 PM
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Quote:
Originally Posted by CandG View Post
For the en banc portion of this case:

There's a 24.9% chance that there is a ~100% change of winning.

There's a 75.1% chance that there is a ~0% change of winning.

Once the panel gets chosen, sometime over the next couple weeks, we'll have a pretty good idea if it's 100% or 0%.

It's sad that we can make such predictions based solely on the judges' names, but alas... most of the time, we can. Doesn't ultimately matter if the case is well argued by either side, or what their arguments even are; every single judge in the 9th Circuit already knows which way they'll decide if they get chosen for the panel.
what measures are in place to stop the dems from engineering the judge selection process that the majority selected are anti gun
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  #3406  
Old 02-26-2021, 6:13 PM
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Originally Posted by johncage View Post
what measures are in place to stop the dems from engineering the judge selection process that the majority selected are anti gun
Nothing, just like how we're all told to "trust" Dominion voting systems. Wouldn't surprise me if the 11-judge panel just "happens" to be filled with 11 hardcore partisan Democrat gun grabbers.
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  #3407  
Old 02-26-2021, 6:14 PM
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Originally Posted by johncage View Post
what measures are in place to stop the dems from engineering the judge selection process that the majority selected are anti gun

They use a secure random selection system made by Dominion Voting Systems.
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  #3408  
Old 02-26-2021, 6:33 PM
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Originally Posted by CandG View Post
Once the panel gets chosen, sometime over the next couple weeks, we'll have a pretty good idea if it's 100% or 0%.
How many attempts is it going to take Sidney to pick his "random" 11 judge panel with 8 democrats?

If only there were true transparency into that process...
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  #3409  
Old 02-26-2021, 6:35 PM
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Originally Posted by johncage View Post
what measures are in place to stop the dems from engineering the judge selection process that the majority selected are anti gun
None.
Sidney has to pick a random panel.
He keep picking panels until he gets the randomness that he wants.
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  #3410  
Old 02-26-2021, 6:59 PM
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Originally Posted by abinsinia View Post
They use a secure random selection system made by Dominion Voting Systems.
which is housed in the basement of a NY Pizza parlor....

SysAdmins discussing project:

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  #3411  
Old 02-27-2021, 12:01 AM
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The large number of "standard capacity" magazines which entered the state during freedom week is prima facie evidence of both common use, and that they are NOT being used in waves of "gun violence" as the State claims as basis for the necessity of the law. In fact the opposite appears to be the practical outcome.

To overrule Benitez, the en banc has a very serious problem, as ruling the ban is Constitutional then spills over into a second Constitutional issue of more problematic nature - the taking of privately owned property, presumably without proper compensation. This is a can of poison vipers inside a can labelled "worms"...
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  #3412  
Old 02-27-2021, 6:25 AM
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Originally Posted by DB> View Post
The large number of "standard capacity" magazines which entered the state during freedom week is prima facie evidence of both common use, and that they are NOT being used in waves of "gun violence" as the State claims as basis for the necessity of the law. In fact the opposite appears to be the practical outcome.

To overrule Benitez, the en banc has a very serious problem, as ruling the ban is Constitutional then spills over into a second Constitutional issue of more problematic nature - the taking of privately owned property, presumably without proper compensation. This is a can of poison vipers inside a can labelled "worms"...
No problem is too serious for the 9th to overcome with a simple specious argument... "because we said so!"
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  #3413  
Old 02-27-2021, 7:21 AM
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Originally Posted by mshill View Post
No problem is too serious for the 9th to overcome with a simple specious argument... "because we said so!"
I’m afraid that you are correct.
Enbanc loss.
SCOTUS refuses to hear.
Legislature creates more draconian rules.
Calgun’s defenders of the police give them a pass.
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  #3414  
Old 02-27-2021, 8:07 AM
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Nice summary of case up to this point from Jacob Sullum at Reason.
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  #3415  
Old 02-27-2021, 8:32 AM
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Originally Posted by DB> View Post
To overrule Benitez, the en banc has a very serious problem, as ruling the ban is Constitutional then spills over into a second Constitutional issue of more problematic nature - the taking of privately owned property, presumably without proper compensation. This is a can of poison vipers inside a can labelled "worms"...
As I mentioned upthread, the second amendment decisions are separable from the takings decision. Benitez wrote in his order (see page 81 et seq) that, “subsections (c) and (d) of § 32310 impose an unconstitutional taking without compensation” and the en banc court could theoretically throw out everything except that conclusion.
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  #3416  
Old 02-27-2021, 8:03 PM
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Originally Posted by lastinline View Post
I’m afraid that you are correct.
Enbanc loss.
SCOTUS refuses to hear.
Legislature creates more draconian rules.
Calgun’s defenders of the police give them a pass.
Why do you think SCotUS would decline cert?
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  #3417  
Old 02-27-2021, 8:17 PM
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Why do you think SCotUS would decline cert?
Until evidence to the contrary, I also assume the pattern of cert denials will continue, regardless of change in the makeup.

I hope I am wrong.
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  #3418  
Old 02-27-2021, 8:23 PM
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Until evidence to the contrary, I also assume the pattern of cert denials will continue, regardless of change in the makeup.

I hope I am wrong.
Well I think this is the best, last chance we’ll ever have. The court isn’t going to get any better than this. This is it. If SCOTUS denies cert now we’re finished, and it’s time to leave CA and start over somewhere else.
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  #3419  
Old 02-27-2021, 8:24 PM
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Originally Posted by curtisfong View Post
Until evidence to the contrary, I also assume the pattern of cert denials will continue, regardless of change in the makeup.

I hope I am wrong.
The pattern of cert denials was based on a makeup that no longer exists. I tend to doubt that past is prologue once the makeup changed.
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  #3420  
Old 02-27-2021, 8:38 PM
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Funny how some of you guys get your hopes up for a different outcome every single time. The 2A is dead in Californian and will soon be dead across this nation. It is only a matter of time.
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  #3421  
Old 02-27-2021, 8:53 PM
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Originally Posted by ColdDeadHands1 View Post
Funny how some of you guys get your hopes up for a different outcome every single time. The 2A is dead in Californian and will soon be dead across this nation. It is only a matter of time.
It's easy to be a pessimist. It takes courage to be an optimist... With that said, the SCOTUS has changed recently. Did you take that into account when predicting doom and gloom?
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  #3422  
Old 02-27-2021, 8:55 PM
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Originally Posted by aBrowningfan View Post
The pattern of cert denials was based on a makeup that no longer exists. I tend to doubt that past is prologue once the makeup changed.
We'll see. Eventually. I'll be happy to be wrong.
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  #3423  
Old 02-28-2021, 12:14 AM
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Nononononoonono!

Speculating on what SCOTUS might do with this case is certainly premature, but not entirely off topic for the thread.

Dragging in recent political glop, however, is not appropriate here.

I still have my little bottle of
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  #3424  
Old 02-28-2021, 4:07 AM
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Back in September, Reason posted a piece... 3rd Circuit Federal Appeals Court Says Large-Capacity Magazine Bans Are OK The subtitle reads...

Quote:
Last month, the 9th Circuit said the opposite. It's a question the Supreme Court might have to resolve.
Back in 2017... Supreme Court Justices allow ban on high-capacity guns

It does make one wonder if the 9th wants to go for a 'consensus' or a 'split.' With a consensus, it's less likely SCOTUS would take up an appeal unless there is a clear majority who disagrees. If it's a 'split,' it puts the issue within the wheelhouse of SCOTUS in that it's their job to resolve such splits; but, Roberts and, to a lesser degree, Gorsuch have made it plain that they don't want the Court to become involved in the making of 'public policy.'

Which is something I've strenuously disagreed on with regard to explicitly protected, fundamental rights in particular in that even a non-decision in that regard contributes to the making of public policy or, as that last article put it...

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Because the Court provided no reasons for bypassing review of the case of Kolbe v. Hogan, it was not clear that the series of such shootings across the nation over the past two years had had any influence on the Justices. The practical reality, though, was that the action left state legislatures with wide authority to react to such incidents.
Here's the Calguns thread on Kolbe v. Hogan if you need to refresh your memory. In that thread, it was observed...

Quote:
Originally Posted by IVC View Post
At this point this is a good thing. With the recent Las Vegas shooting and the "wobbly justice," we certainly don't want to have a *bad* precedent set at SCOTUS.

Even a watered down win would likely be a disaster for us. Just look at how hard it is with Heller to get any progress. Imagine a ruling where it's so ambiguous that it allows all sorts of bans.

At this time, we need Kennedy to retire or Bader-Ginsburg to, well, um..., you know... Short of that, the best this SCOTUS can do for us is leave any "controversial issue" off the docket.
Obviously, the make up of the Court is now different as Kennedy did retire and RBG, well, um... you know... ahem. Just as obviously, no one knows how different, philosophically, it will work in practicality on issues such as this. There's a lot of HOPE out there, but little which is concrete for anyone, including the 9th, to proceed on. It kinda makes one wonder if the 9th is looking to 'test the waters' or, perhaps worse, that they actually know something we don't.
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  #3425  
Old 02-28-2021, 7:00 AM
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Funny how some of you guys get your hopes up for a different outcome every single time. The 2A is dead in Californian and will soon be dead across this nation. It is only a matter of time.
Seriously. It's like a rabbit chasing a carrot in here, except the rabbit is doing some incredibly complicated, careful dance 10 feet away from a pack of hungry wolves. We're ****ed. Stop "backing the blue," as they will ultimately be replaced by libs and come take your ****. ENOUGH IS ENOUGH.
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  #3426  
Old 02-28-2021, 10:25 AM
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Originally Posted by TrappedinCalifornia View Post
Obviously, the make up of the Court is now different as Kennedy did retire and RBG, well, um... you know... ahem. Just as obviously, no one knows how different, philosophically, it will work in practicality on issues such as this. There's a lot of HOPE out there, but little which is concrete for anyone, including the 9th, to proceed on. It kinda makes one wonder if the 9th is looking to 'test the waters' or, perhaps worse, that they actually know something we don't.
That was a quote from some years back, and it turned out the expected way. It's the step 1. Now to step 2 - getting a case in front of SCOTUS.

Yes, there is a lot of hope, but it's not (yet) a fool's hope. That's just how the process works. Didn't we all have hope that the composition of the SCOTUS would change in the above way? That was an "educated guess" for at the time Trump was just starting, Kennedy would be looking to retire during R administration and RBG was older than Yoda. So we got our first step in the ladder of hope. And that one was quite a huge step because it depended on the nature taking its course.

9th cannot know anything that we don't know. It would be a conspiracy theory of massive proportions to believe/assume/suggest/consider some secret way in which the justices would communicate with the 9th, and especially the justices who are originalists communicating to the activists on the 9th... Just not the case.

The best hope 9th can have is to avoid circuit split and make it less appealing to SCOTUS, but we DO know that there is appetite on SCOTUS to take 2A cases since we've seen *written* dissents to the denial of 2A certs. If anything, I would guess that the removing the split is the primary Thomas's concern (the bad Thomas, not the good one) since it's the only way to keep 2A in check at this time. His options are limited and he is buying time (composition of the court can change) with the only option that can even in theory yield the policy result he desires.

This is an expected outcome, we've been en-banced before and it's pretty effective. The only thing we don't know at this time is what happens at SCOTUS, for we do know that if we lose (luck of the panel draw at this time) we WILL file for a writ of certiorari. And if we win, do you think the other side will request the SCOTUS review? I doubt it. And that's why this is not just a fool's hope.
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  #3427  
Old 02-28-2021, 11:05 AM
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And that's why this is not just a fool's hope.
I agree, despite my posting history of pessimism.

1) you can't win if you don't play
2) we've never had a better shot at this than now
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  #3428  
Old 02-28-2021, 12:07 PM
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Originally Posted by IVC View Post
That was a quote from some years back, and it turned out the expected way. It's the step 1. Now to step 2 - getting a case in front of SCOTUS.

Yes, there is a lot of hope, but it's not (yet) a fool's hope. That's just how the process works. Didn't we all have hope that the composition of the SCOTUS would change in the above way? That was an "educated guess" for at the time Trump was just starting, Kennedy would be looking to retire during R administration and RBG was older than Yoda. So we got our first step in the ladder of hope. And that one was quite a huge step because it depended on the nature taking its course.

9th cannot know anything that we don't know. It would be a conspiracy theory of massive proportions to believe/assume/suggest/consider some secret way in which the justices would communicate with the 9th, and especially the justices who are originalists communicating to the activists on the 9th... Just not the case.

The best hope 9th can have is to avoid circuit split and make it less appealing to SCOTUS, but we DO know that there is appetite on SCOTUS to take 2A cases since we've seen *written* dissents to the denial of 2A certs. If anything, I would guess that the removing the split is the primary Thomas's concern (the bad Thomas, not the good one) since it's the only way to keep 2A in check at this time. His options are limited and he is buying time (composition of the court can change) with the only option that can even in theory yield the policy result he desires.

This is an expected outcome, we've been en-banced before and it's pretty effective. The only thing we don't know at this time is what happens at SCOTUS, for we do know that if we lose (luck of the panel draw at this time) we WILL file for a writ of certiorari. And if we win, do you think the other side will request the SCOTUS review? I doubt it. And that's why this is not just a fool's hope.
+1. The way you put points on the board is by turning 1 - 2 yards into 10 yards and then 10 yards into a touchdown. We got the 10 yard gain (20 yards, counting the 3-judge panel ruling). Now it is time for the touchdown.
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  #3429  
Old 02-28-2021, 1:00 PM
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I hate RINOs. How can a true Republican be anti-RKBA?
The Republican Party:

Founded as a liberal progressive party.
Founded as a big state (statist party).
Founded as an abolitionist party that supported John Brown's murder spree.
Led by a president that straight up suspended the constitution and habeus corpus and due process.

A true Republican can be anti-RKBA.

Why people are shocked when they meet them is bizarre.

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Old 02-28-2021, 2:56 PM
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A true Republican can be anti-RKBA.
No, cannot.

The platform of the Republican party is pro-RKBA and the history of the party has always been pro-liberty. If you want to call it "liberal" in the traditional sense, then by all means I am a liberal who believes in personal civil liberties and human rights. All rights for all people.

And so do other Republicans.
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Old 02-28-2021, 9:00 PM
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That was a quote from some years back, and it turned out the expected way. It's the step 1.
It turned out in the expected way in terms of vacancies. We don't know, yet, if it turned out in the way we hope in terms of who filled those vacancies.

Quote:
Originally Posted by IVC
Now to step 2 - getting a case in front of SCOTUS.
Which was the point of my post. To think that the 9th isn't discussing what their 'best' strategy is would be hopelessly naïve or overly optimistic. Remember, the makeup of the 9th is different than it was prior to Trump; but, the majority still retains the philosophical view it did, not just on a Liberal vs. Conservative, basis, but when it comes to 'tradition,' precedent, etc. As with Trump's Supreme Court appointments, while there are now more "Republican appointees" on the 9th, it's still uncertain as to where they will come down on decisions, particularly as regards the 2nd Amendment.

A year ago, The Los Angeles Times attempted to assess the situation... Trump has flipped the 9th Circuit — and some new judges are causing a ‘shock wave’ If you read the piece, it's almost all the same speculation we've gone through. However, the one passage seems to speak to our present situation...

Quote:
Still, with Democratic nominees heavily outnumbering Republicans, there were usually enough votes to overturn conservative decisions by three-judge panels.

Smith predicts the full effect of the Trump appointees won’t be seen until 2021, when they will be carrying full caseloads.

But even now, Democratic appointees are likely to be more reluctant to ask for 11-judge panels to review conservative decisions because the larger en banc panels, chosen randomly, might be dominated by Republicans, judges said.
If we remember that a good lawyer never asks a question they don't already know the answer to, then we're forced to confront the idea that I laid out in the above post... What are they more desirous of? Remember, it may not be so much whether they want a consensus or a split as it may about 'testing' the new make up of SCOTUS with regard to firearms related litigation on a topic that the lower courts have already, largely, agreed upon thus far. Benitez is an exception and we celebrate him as such.

The 3-judge panel was a victory, but not a definitive one. Clearly, the calculus used in calling for an en banc hearing is that they lost and would like to get the momentum back. It's typically 'easier' (relatively speaking) to be on the 'winning' side in an appeal to SCOTUS than on the appellant side. Why? Because as the appellant, you have to first persuade SCOTUS to even 'take a look.'

Quote:
Originally Posted by IVC
Yes, there is a lot of hope, but it's not (yet) a fool's hope.
Hope is a good thing. Just be cautious not to put too much faith in the less predictable aspects. It wasn't much of an 'educated guess' that Kennedy was likely to retire and that RBG was on her last legs as a Justice. In some circles, the only portion which was a 'guess' turned out to be the exact timing, not the 'what' and there were already discussions being had as to whether, in the case of RBG, how much longer SCOTUS could 'cover' for her in the way it typically does for inhibited Justices.

Put another way, simply because a 'hope' in terms of timing vis a vis a 'conservative President' as related to what you term "step 1" was a largely predictable reality based on Nature taking its course (something you acknowledge when you say "it turned out the expected way"), doesn't mean that 'our hopes' were predictably fulfilled when it comes to the less predictable. Yes. We got presumed 'originalists;' but, we still have no way of knowing how they will rule on specific issues and, frankly, there has already been some 'disappointment' from the Right on some of the decisions. Will they be a Scalia, Thomas, Alito or will they be a Roberts/Souter? We simply don't know, but need to remember that there were great HOPES assigned to Justices such as Roberts/Souter as well.

Quote:
Originally Posted by IVC
9th cannot know anything that we don't know. It would be a conspiracy theory of massive proportions to believe/assume/suggest/consider some secret way in which the justices would communicate with the 9th, and especially the justices who are originalists communicating to the activists on the 9th... Just not the case.
That's simply an assumption and a patently bad one. While there are a few lawyers among the "we" on this site, I'm not aware of any judges who sit on the 9th. Likewise, to assume that there are no 'behind the scenes' communications within the system is an unwise hypothesis to be 'testing.' Even SCOTUS has noted that, behind the scenes, there is a lot more 'communication' among the Justices than the public is (and even the clerks are, sometimes) made aware of. (If you'll recall, we always suspected that there was a reason for the compromise language Scalia included in Heller, but it took the public years to be apprised of the details behind the 'negotiations' to get Kennedy on board.)

Certainly, there are legal limitations and, just as certainly, there are practical ones. But, it doesn't take conspiracy theories or assumptions to know (not simply deduce) that Judicial Communication is real. In fact, as an example, the Florida Courts have an FAQ regarding just that... Judicial Communication.

There's also the language used in decisions, speeches, articles, etc. It's no 'secret' that judges/Justices embed 'communication' to other courts within such outlets and even within the questions asked during orals. In other words, while it may not be code speak or directives, the 'message' is clearly out there, often well before a case is appealed to SCOTUS. In fact, that's often why a dissent is written; i.e., to 'telegraph' to attorneys and judges where the potential 'weaknesses' in a winning case might be found. The reality is that even you recognize it as such given...

Quote:
Originally Posted by IVC
The best hope 9th can have is to avoid circuit split and make it less appealing to SCOTUS, but we DO know that there is appetite on SCOTUS to take 2A cases since we've seen *written* dissents to the denial of 2A certs.
Oh... You conspiracy theorist you.

I agree that the 9th's 'best hope' is to avoid a circuit split in that it would, as I said earlier, make it less likely SCOTUS would take up an appeal unless there is a clear majority who disagrees. Given the 'politics' that goes on behind-the-scenes at SCOTUS regarding what cases are taken and the outcome of the decision, we still don't know what the eventual outcome would be. We don't even know where the 'new' Justices actually stand. We've made inferences and we make guesses, but we simply don't know. We have a pretty good idea where Thomas and Alito stand or, at least, if they are consistent, then we think we do. But, like Scalia with Heller, compromises may have to be made to get a semblance of the 'good' decision we HOPE for.

With that said, I also agree with curtisfong...

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Originally Posted by curtisfong View Post
I agree, despite my posting history of pessimism.

1) you can't win if you don't play
2) we've never had a better shot at this than now
It's something I've been extremely critical of over the years. While there is legitimacy in patience and waiting for the 'right time' and/or alignment of Justices, there is a point where you could wait... forever... for that timing to come to fruition, all while watching the lower courts and the various legislatures erode a fundamental right to nothing. In fact, this was one of the criticisms brought against the NRA in relation to Heller by no less than Alan Gura himself...

Quote:
Gura says the NRA had feared an adverse Second Amendment ruling and had earlier filed suit challenging the D.C. handgun ban on different rationales. The organization sought to consolidate both suits, which Gura interpreted as an attempt to thwart his Second Amendment arguments. He called the NRA suit “sham litigation” in 2003 court papers.

“The NRA was adamant about not wanting the Supreme Court to hear the case, but we went ahead anyway,” Gura told the legal newspaper.
Quote:
Originally Posted by IVC
This is an expected outcome, we've been en-banced before and it's pretty effective. The only thing we don't know at this time is what happens at SCOTUS, for we do know that if we lose (luck of the panel draw at this time) we WILL file for a writ of certiorari. And if we win, do you think the other side will request the SCOTUS review? I doubt it. And that's why this is not just a fool's hope.
We're not even certain what will happen with the en banc in the 9th. We don't even know the composition of the en banc panel, yet. (At least I haven't heard/seen it.) As I said, there's a lot of HOPE out there and there's nothing intrinsically wrong with being optimistic... until... that optimism turns into certainty without a concrete basis for that certainty to rest upon and we do not have such a foundation... yet.

Put another way, it's not about being a pessimist so much as being a realist.
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Old 02-28-2021, 9:00 PM
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No, cannot.

The platform of the Republican party is pro-RKBA and the history of the party has always been pro-liberty. If you want to call it "liberal" in the traditional sense, then by all means I am a liberal who believes in personal civil liberties and human rights. All rights for all people.

And so do other Republicans.
You clearly are ignorant when it comes to history.

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Old 02-28-2021, 9:37 PM
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You clearly are ignorant when it comes to history.

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Well, then you can write what you mean so we can put it into correct historical context. Otherwise it sounds like Bill Clinton calling Brett Cavanaugh a sexual predator...
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Old 02-28-2021, 9:43 PM
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It's something I've been extremely critical of over the years. While there is legitimacy in patience and waiting for the 'right time' and/or alignment of Justices, there is a point where you could wait... forever... for that timing to come to fruition, all while watching the lower courts and the various legislatures erode a fundamental right to nothing.
As opposed to doing what?

If we cannot win legislative battle in CA and we cannot wait for the courts, what do you suggest the impatient among us do?
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Old 02-28-2021, 10:33 PM
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As opposed to doing what?

If we cannot win legislative battle in CA and we cannot wait for the courts, what do you suggest the impatient among us do?
I suggest what I just suggested... be cautious not to put too much faith in the less predictable aspects. In placing too much faith/optimism in what you hope will happen, you risk exactly the type of frustration, disenchantment, and disenfranchisement we saw leading up to the Georgia runoff where people were being encouraged not to participate as their 'only means' of effectively protesting. Whether such actually cost us the election and, thus, the Senate, will remain a debate for the ages; but, there is no debate that it did cost us something.

It's kinda like...

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Originally Posted by aBrowningfan View Post
+1. The way you put points on the board is by turning 1 - 2 yards into 10 yards and then 10 yards into a touchdown. We got the 10 yard gain (20 yards, counting the 3-judge panel ruling). Now it is time for the touchdown.
That's ONE possibility. There are numerous others. Is it still first down? Did they change the composition of the defense? What are the potential plays? Who is hurt? Who has the 'hot hand' today? What is the defense 'giving' you today and what aren't they? Where are you at on the field? How much time is left in the game? What is the score? How many timeouts are remaining?

In this case, it's not, yet, time for the touchdown. We got a first down with Benitez. We got another with the 3-judge panel. Now, the defense has changed and we're only on our own 40-yard line. We're likely, though not guaranteed, to not move the ball with the en banc panel and could lose yardage. That doesn't mean you immediately go for the Hail Mary. Your next play is to keep moving the ball down the field, if you can. If it becomes third/fourth down and long, your goal is to get another first down; i.e., get SCOTUS to grant cert. THEN you keep moving the ball down the field and that could involve any number of plays and potential outcomes, including settling for a field goal rather than a touchdown or, finally, moving the ball over the goal line.

In essence and in fact, that's what Heller and McDonald were. They weren't the final score, game over. They were scores and the other side is also putting points on the board and our defense hasn't been overly successful in keeping them from doing so. Even if we only achieve a field goal, it can keep us in the game and set us up for a 'win' with future scores. The trick is in not getting too far behind so that it doesn't matter since we couldn't possibly score enough to win in the time remaining.

Sticking with sports analogies, it's often easier in boxing to knock out your opponent in the first round, before they are warmed up, but you train to go the whole 15 rounds (or, 12 rounds these days). Being impatient not only wears you out faster, it presents your opponent with opportunities they might not otherwise have had.

In the end, you pick your battle and you make your stand. If you were to read Patton's Principles: A Handbook For Managers Who Mean It, you'd find a discussion about gathering all the information you can, but that there comes a point where you have to make a decision. It's a contiguous part of a bad plan, violently executed, is better than a perfect plan which is implemented after it's too late.

If you have any intention of winning that battle, you do so from a standpoint of realism. That doesn't mean you throw 'Hope' out the window. It means that you recognize the realities you're up against and work to mitigate them. Part of that is you don't overestimate your own genius/chances while underestimating their's and you don't let impatience dictate your tactics.
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Old 03-01-2021, 8:39 AM
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I suggest what I just suggested... be cautious not to put too much faith in the less predictable aspects.
Right, but people have been quick to tell us what not to do (put faith in the courts), I haven't seen any suggestions for what we should be doing instead.

I see so many posts in these litigation threads saying "It's hopeless, the courts are against our favor, this will not go well," but rarely have I seen any legitimate suggestions for what to do instead. Aside from the occasional keyboard commando that vaguely says "time to exercise our 2A rights", to which I always say "K... you first. I'll be right behind you"
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Old 03-01-2021, 9:32 AM
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If you have any intention of winning that battle, you do so from a standpoint of realism. That doesn't mean you throw 'Hope' out the window. It means that you recognize the realities you're up against and work to mitigate them. Part of that is you don't overestimate your own genius/chances while underestimating their's and you don't let impatience dictate your tactics.
All valid arguments, but they don't answer the question about the alternatives to going through the courts such as they are at the moment, if that's what you're suggesting.

If we accept that we are on the correct track and that we are playing the same and the only game in town against the opponent who is playing the same game, then we have a simplified battlefield where we have to look at reality on the ground and the ways to win the game. Sure we need to look at our flanks to make sure the opponent isn't cheating or trying something that is outside the rules (which we do monitor), but short of that we have to assess what we have in front of us and not be scared to have the positive mindset when we can logically recognize that we are at an advantage.

It doesn't mean the hope is our strategy, it just means that we *realistically* look at the situation, we see the opponent on the ropes and we know that he just threw the last punch (en banc) and that it's a weak punch that cannot knock us out the way it did in Peruta (no viable SCOTUS option at the time) even if the punch lands (we lose en banc), and we also know that we have this powerful hook (new SCOTUS) aimed straight at the opponents head where we know they cannot defend and will be knocked out so badly they can't get back in the ring. So now we are watching whether the opponent pulls back the punch (they lose in en banc) and plays dead so we cannot counterpunch, or we keep brawling until the best possible outcome for us - the complete and total knockout of the opponent.

At a time like this, talking about the possibility that the referee will stop the match after they punch but before we counterpunch, or that there will be some other miraculous interference is NOT realistic. Quite the opposite, no athlete at any remotely successful level ever had such a defeatist attitude - they cannot train and become great if they quit, let alone if they are scared to try because they might succeed.

Yes, there is a question of whether SCOTUS will take the case and, yes, we now have ample evidence that the previous SCOTUS was highly politicized and had abandoned the defense of individual rights in the name of cultural acceptance by the intolerant left, but we fought hard to get both Kavanaugh and Coney-Barrett on the court and if this court gets politicized, it won't be hard-left. Again, realistic assessment is that we are in a *much* better position than the opponent and we just have to keep going, which is exactly what we are doing. As we are going, we also want to assess the situation as-is, realistically and not introduce the unrealistic and scared fear of failure.

KCBrown was correct in one thing (and it's not his pessimism) - the court shunned 2A the way activist courts would, albeit at the cost of losing credibility as an unbiased judicial branch and reducing the third branch of government to just another political body, exactly the opposite of what Roberts wanted. Oh, well. We obliged by playing the same political game and replaced Scalia/Kennedy/RBG with Gorsuch/Kavanaug/ACB. Voila, we can play the same game, we did and now it's time to see how it all works out after we won the most difficult and significant early rounds - the courts (not to mention CA-9 changes by Trump refusing to seek approval of CA senators).

Even in sports, I'm sure you're aware, mindset is the central piece of training athletes past the intermediate performance levels. I don't want to get into it, but top coaches would laugh and pity the poor guy who's scared to win and thus cannot advance out of mediocrity - anyone can bow the head, throw in the towel and lose even as they are realistically winning.
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Old 03-01-2021, 10:20 AM
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Right, but people have been quick to tell us what not to do (put faith in the courts), I haven't seen any suggestions for what we should be doing instead.

I see so many posts in these litigation threads saying "It's hopeless, the courts are against our favor, this will not go well," but rarely have I seen any legitimate suggestions for what to do instead. Aside from the occasional keyboard commando that vaguely says "time to exercise our 2A rights", to which I always say "K... you first. I'll be right behind you"
Exactly. That's why I said in the rest of the paragraph...

Quote:
Originally Posted by TrappedinCalifornia
...In placing too much faith/optimism in what you hope will happen, you risk exactly the type of frustration, disenchantment, and disenfranchisement we saw leading up to the Georgia runoff where people were being encouraged not to participate as their 'only means' of effectively protesting. Whether such actually cost us the election and, thus, the Senate, will remain a debate for the ages; but, there is no debate that it did cost us something...
People want something to be done; but, lacking the knowledge regarding how the System works, they don't know exactly what that is. Instead, they try to be optimistic and, too often, they become certain that this or that is true and when it turns out differently, they become discouraged, when turns into a different kind of 'certainty' that the System doesn't work, it's turned against us, etc.

It's why we have to be careful to remain committed to the protection of our rights, but to temper that commitment with the reality that we aren't always going to, sticking with the earlier sports analogies, score or win by knockout. One of the keys is the fact that this 'game' is never-ending in that we will NEVER achieve complete, total, and 'unreversible' victory. As Reagan warned...



The problem we have at the moment is that we risk falling far enough 'behind' that the downward spiral will require something major to halt, let alone reverse. Some reference it as a 'tipping point;' but, I think we've passed that, needing to climb out of the hole that's been and continues to be dug for us before we can talk about ascending to... well, not necessarily Heaven/Utopia, but somewhere in between where fundamental rights are 'balanced' and 'prioritized' to a point where, as SCOTUS said in 1943...

Quote:
The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.
In other words, a less intrusive Government where those occupying the positions of power, once again, view fundamental rights as just that... rights. ... rather than 'privileges' which are subject to the generational whims and political machinations. This is where SCOTUS has drifted from their mandate. While the Court has never been completely apolitical, it is currently as polarized as the country intellectually and philosophically as regards the interpretation of the Constitution.

When it comes to the issues in Duncan, as presented in the OP...

Quote:
The lawsuit, titled Duncan v. Becerra, challenges California’s ban on possession of these standard capacity magazines because the law violates the Second Amendment, due process clause, and takings clause of the United States Constitution.
...there are three fundamental rights involved and "public safety" is the fig leaf being used to infringe upon those rights. We know it has nothing to do with "public safety" in that the arguments being foisted upon us in that guise do nothing for the enhancement of the public's safety. Worse. The laws being passed are so confusing as to be creating criminals out of those honestly attempting to comply with the laws.

That was the basis for Benitez's ruling and, in reality, is our strongest argument; i.e., the laws don't do what was claimed as their intent and are, in fact, causing harm. It was the very thought process which provided us "Freedom Week" or, as Kestryll analyzed it earlier in this thread...

Quote:
Originally Posted by Kestryll View Post
...Judge B made excessive efforts to protect citizens who acted lawfully after the summary judgement by making it clear that their actions in the intervening time between the SJ and the stay would NOT make them subject to criminal prosecution.
He went further by extending the window between the two ruling to almost exactly one week, allowing those who hadn't yet had a chance to purchase in a lawful manner to do so and to allow businesses to prepare for the onset of the stay...

...Based on all of this it seems clear his intent was to both protect those who had acted lawfully during the week and to give a 'grace period' to those buying, selling, manufacturing or importing prior to stopping all activity...
Such rulings are why we are advised to have faith in the courts. Unfortunately, the courts have become akin to SCOTUS in terms of their polarization. It's precisely what we now see in the 9th, with Trump appointing a sufficient number of 'Conservative' judges to give us a 'fighting chance' based on, theoretically, the luck of the draw. It's how we got the decision with the 3-judge panel. It's also why I said in an earlier post...

Quote:
Originally Posted by TrappedinCalifornia
...A year ago, The Los Angeles Times attempted to assess the situation... Trump has flipped the 9th Circuit — and some new judges are causing a ‘shock wave’ If you read the piece, it's almost all the same speculation we've gone through. However, the one passage seems to speak to our present situation...

Quote:
Still, with Democratic nominees heavily outnumbering Republicans, there were usually enough votes to overturn conservative decisions by three-judge panels.

Smith predicts the full effect of the Trump appointees won’t be seen until 2021, when they will be carrying full caseloads.

But even now, Democratic appointees are likely to be more reluctant to ask for 11-judge panels to review conservative decisions because the larger en banc panels, chosen randomly, might be dominated by Republicans, judges said.
The problem and the source of our frustration is that fundamental rights should not be subject to "a roll of the dice;" which is why SCOTUS declared what it did in 1943. What's the alternative to putting your faith in the courts? We all know the four boxes... soap box, ballot box, jury box, cartridge box. Despite the frustration, disenchantment, and disenfranchisement many feel, we still have the first three available to us; at least to one degree or another. It's also why there is a growing push back on the Big Tech censorship, investigations into the voting irregularities, and lawsuits such as Duncan vs. Becerra.

For now, we have to learn to play the 'game' better. We've underestimated the extent of the indoctrination that's been going on in schools over the last 4 or 5 decades, and that includes legal schools. We've overestimated the power of our own arguments; i.e., while we have history, logic, and original intent on our side, their effect has been blunted by the 'new ways of thinking' lawyers, judges, and even the People have been inculcated with. Again, sticking with the sports analogies, we need to get beyond simply getting the return serve over the net and add some authority and placement to the return.

Fortunately, we've been provided road maps by people such as Thomas, Alito, and Benitez. You don't try to fit it on a 'bumper sticker.' You take great pains to point out the inherent illogic, the lack of historical foundation, and the absurdity of the arguments being presented; creating a case where the anti-civil rights proponents have to rely on...

Quote:
Originally Posted by mshill View Post
No problem is too serious for the 9th to overcome with a simple specious argument... "because we said so!"
...and other 'questionable' machinations to 'win.' However, in 'winning,' they are sowing the seeds of their own defeat in that, at some point, the machinations become so egregious and the impacts become so untenable that the other boxes - soap and ballot - regain a new level of power to check the jury box. It also becomes obvious, even to the most apolitical, that those boxes are not to be used lightly or easily dismissed when it comes to what they are used to obtain; the latter being precisely what Trump was getting at in his CPAC speech. Note what CNN said this morning... Trump unleashes new threat to American democracy

Quote:
Donald Trump has no remorse about the deadly violence he incited with his lies about a stolen election in his uprising against the US Congress...
Are you going to believe what "they" are telling you or are you going to believe your own, "lying" eyes? I mean, just yesterday... Reported antifa rioters smash windows and vandalize businesses in downtown Portland over Biden's immigration policies It seems to me that the "violence" wasn't promoted by Trump and while the supposed insurrection was, in fact, a 'riot,' it did not represent the core of 'our side's' methods. Meanwhile, the violence from those on the Left was being encouraged and is being catered to by those now in power.

In that sense, far too many are pounding the cartridge box and we haven't reached that point... yet. It's the very reason they are attempting to take the boxes away. They are scared of the power of the People via those boxes. Which is why they are attempting to hide behind "public safety" in that if they can turn those boxes into 'scary things' rather than 'tools to safeguard the People's rights,' then it becomes far easier to take the boxes away.
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Old 03-01-2021, 11:47 AM
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I fear our trust in SCOTUS is misplaced. They rejected all the election related cases, and I've seen it speculated that the agenda of Roberts was to make sure Trump is not the president. We know Thomas, Alito, and Gorsuch all dissented in all these election related cases. That means Kavanaugh and ACB must have voted not to take those cases.

I think this relates to the gun issues, because I suspect Roberts also has an agenda against gun rights, and if Kavanaugh and ACB are just doing Roberts bidding then I don't know what hope any gun rights issues have in that court.
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Old 03-01-2021, 11:50 AM
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All valid arguments, but they don't answer the question about the alternatives to going through the courts such as they are at the moment, if that's what you're suggesting.
The courts are ONE method. In California, we are being forced into a position of relying on some form of national 'trump card.' In the sense of the sports metaphors, we're being forced to play the ball where it currently lays. Unfortunately, too many are still hoping for a ruling that it's a man-made hazard and we can take a drop.

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Originally Posted by IVC View Post
If we accept that we are on the correct track and that we are playing the same and the only game in town against the opponent who is playing the same game, then we have a simplified battlefield where we have to look at reality on the ground and the ways to win the game. Sure we need to look at our flanks to make sure the opponent isn't cheating or trying something that is outside the rules (which we do monitor), but short of that we have to assess what we have in front of us and not be scared to have the positive mindset when we can logically recognize that we are at an advantage.
As I said, there's nothing intrinsically wrong with being optimistic. The problems start when that optimism turns into certainty without a concrete basis for that certainty of our own strategies, tactics, and positions. For example...

Quote:
Originally Posted by IVC View Post
It doesn't mean the hope is our strategy, it just means that we *realistically* look at the situation, we see the opponent on the ropes and we know that he just threw the last punch (en banc) and that it's a weak punch that cannot knock us out the way it did in Peruta (no viable SCOTUS option at the time) even if the punch lands (we lose en banc), and we also know that we have this powerful hook (new SCOTUS) aimed straight at the opponents head where we know they cannot defend and will be knocked out so badly they can't get back in the ring.
That's the optimistic view, but not the realistic one. First, it's not their 'last punch;' either against so-called 'assault weapons/magazines' or in this case. Second, assuming en banc is being or will be used to negate our 'wins' to this point in the case, it's not a 'weak punch.' Why? We don't know that we currently have a viable SCOTUS option. We HOPE we do given that we choose to interpret the current makeup as more 2nd Amendment friendly. Thus, if the en banc 'punch' lands, the reality is that we are hopeful that the 'new' constituency on SCOTUS will vote to hear the case and we are hopeful it will deliver an haymaker that will end THIS fight, for now.

But, just like Heller, even if we "get the decision," how that decision is framed, how the lower courts apply it, and whether SCOTUS shows some determination in defending their own rulings will dictate not only whether we have a rematch, but how that rematch is likely to go. THAT is reality in that is how the System works. For now, we have a SCOTUS which has avoided the overt misinterpretation/misapplication of Heller; something Scalia, Thomas, and Alito have openly lamented. We don't KNOW how the new members of SCOTUS are going to rule.

Third, there are various, possible outcomes, from utter loss to utter victory to somewhere in between. Optimism over the possible outcome is what gets us into and keeps us in the fight. Realism is what allows us to fight effectively.

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Originally Posted by IVC View Post
So now we are watching whether the opponent pulls back the punch (they lose in en banc) and plays dead so we cannot counterpunch, or we keep brawling until the best possible outcome for us - the complete and total knockout of the opponent.
The analogy here is the "rope-a-dope." It's not that they pull their punches so much as they allow us to 'wear ourselves out' by continuing to throw punches ("brawl") which don't land effectively. Such has actually been part of the strategy they've been using since Sandy Hook and Parkland; i.e., attacking on multiple fronts to drain our resources while they simply lean on the ropes and let us flail away.

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Originally Posted by IVC View Post
At a time like this, talking about the possibility that the referee will stop the match after they punch but before we counterpunch, or that there will be some other miraculous interference is NOT realistic. Quite the opposite, no athlete at any remotely successful level ever had such a defeatist attitude - they cannot train and become great if they quit, let alone if they are scared to try because they might succeed.
The "rope-a-dope" was a controversial tactic for that very reason. Ali introduced it in 1974 as an 'exaggerated' version of 'getting on your bicycle.' A generation before, the referee WOULD HAVE stopped the fight, warned Ali that he had to fight, then, if he didn't, would have called the fight in that Ali would have been viewed as not defending or being unable to defend himself. Today, it is defended as a legitimate strategy if done 'correctly;' i.e., there was more to it than simply leaning on the ropes until your opponent was tired. In fact, even Foreman is noted as claiming...

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They call it the rope-a-dope. Well, I'm the dope. Ali just laid on the rope and I, like a dope, kept punching until I got tired. But he was probably the most smart fighter I've ever gotten into the ring with.
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Originally Posted by IVC View Post
Yes, there is a question of whether SCOTUS will take the case and, yes, we now have ample evidence that the previous SCOTUS was highly politicized and had abandoned the defense of individual rights in the name of cultural acceptance by the intolerant left, but we fought hard to get both Kavanaugh and Coney-Barrett on the court and if this court gets politicized, it won't be hard-left. Again, realistic assessment is that we are in a *much* better position than the opponent and we just have to keep going, which is exactly what we are doing. As we are going, we also want to assess the situation as-is, realistically and not introduce the unrealistic and scared fear of failure.
Right now, that's the HOPEFUL assessment. We are waiting to see how realistic that assessment is. We currently have very limited evidence in relation to Coney-Barrett and how she'd rule on a 2nd Amendment case, let alone how she'd rule on specifics. We only have marginally more evidence in relation to Kavanaugh.

We definitely have to keep going and, in this case, Benitez and the 3-judge panel have provided us with HOPE, not to mention a solid case to present SCOTUS if it goes that far. Yes. We are in a potentially better position than WE were; but, we don't know how much better. It's not the 'fear of failure' that should stop us. It's a recognition of the very real potential for a less than optimum outcome (from our perspective) we should be prepared for.

That's the realistic approach. You don't think one move ahead. You think 5 moves ahead, anticipating the possibilities and being ready to act on them.

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Originally Posted by IVC View Post
KCBrown was correct in one thing (and it's not his pessimism) - the court shunned 2A the way activist courts would, albeit at the cost of losing credibility as an unbiased judicial branch and reducing the third branch of government to just another political body, exactly the opposite of what Roberts wanted. Oh, well. We obliged by playing the same political game and replaced Scalia/Kennedy/RBG with Gorsuch/Kavanaug/ACB. Voila, we can play the same game, we did and now it's time to see how it all works out after we won the most difficult and significant early rounds - the courts (not to mention CA-9 changes by Trump refusing to seek approval of CA senators).
We didn't play 'the same game' so much as we played the game at a different level than we previously had. So did the Left, particularly with Kavanaugh. Remember, pretenses aside, SCOTUS has never been a completely apolitical entity. Today, it's not simply about politics, but about interpretation of existing law based on philosophical interpretation. The credibility of SCOTUS has always been based on reasoned decisions which could be viewed as based within legal arguments understandable to the common man; even if the technical details are a bit obscure and the decision was disagreed with, the decision would make a certain level of 'sense.'

Since decisions like Roe v. Wade, decisions have become progressively less about 'reason' and more about philosophical interpretation. As such, we have seen a polarization on the Court. Heller is a good example and it is something I've warned about. There are, essentially, two disparate interpretations of the 2nd Amendment. The majority view is the one which makes historical, rational, and common sense. The minority view is the one which the anti-civil rights proponents, be it Hillary, Biden, Beto, Newsom, et al., believe in and support.

As such, they are able to claim they 'support' the 2nd Amendment. It's why our cries that they don't fall on deaf ears and don't carry the weight we think they do. A more accurate statement would be that they 'support' their interpretation of the 2nd Amendment, an interpretation which is, in many respects, the polar opposite of our interpretation. Our interpretation was the majority view (mostly) in Heller; but, it was the narrowest of margins. The reality is that while those interpretations are deductive premises, there are various degrees of applications which result from those premises. Which leads us to...

Quote:
Originally Posted by IVC View Post
Even in sports, I'm sure you're aware, mindset is the central piece of training athletes past the intermediate performance levels. I don't want to get into it, but top coaches would laugh and pity the poor guy who's scared to win and thus cannot advance out of mediocrity - anyone can bow the head, throw in the towel and lose even as they are realistically winning.
It's not about being 'scared to win' or 'throwing in the towel.' Be careful not to conflate a 'realistic appraisal' with defeatism and mediocrity. As I just said, optimism over the possible outcome is what gets us into and keeps us in the fight. Realism is what allows us to fight effectively. In the end, 'winning' is relative to expectation. Set your expectations unrealistically high and you are virtually guaranteed to be disappointed to one degree or another. Set your expectations too low and you're forced to evaluate the question: "Why even fight?"

Perhaps the best analogy is the first Rocky. Mickey trains him to win, but Rocky decides he can't win, so he changes the metric to... 'Nobody's ever gone the distance with Creed. When that bell rings and I'm still standing, then I'll know I weren't a loser.' That was a realistic appraisal of where he was at versus the champion. By the end of the fight, in Rocky II, he realized that he actually had a chance, but wasn't training to win. The same with Rocky III. It took Adrian to screw his head on straight and give him the optimism to train properly and fight to win. In Rocky IV, he didn't know if he could win, but wanted to and trained appropriately. It became a battle over who wanted it more; where, by Rocky Balboa, he realized that it was about taking hits and continuing to move forward. Even if you can't, realistically, 'win,' you stand no chance if you don't take the hits and keep moving forward.

It's similar to what they explored in an episode of Star Trek: The Next Generation. Data lost the first match and spent the bulk of the episode attempting to ascertain what was 'wrong' with him; allowing self-doubt to take hold. By the end of the episode, he had learned that a 'balance' was what to play for...



By achieving said balance, he was able to cause his opponent to withdraw from the contest. In that sense, it is, perhaps, more applicable to what we are discussing than the sports analogies. The Great Experiment is whether a country can effectively exist which balances a favoring of individual rights with the necessities of Government for the whole. Thus, a certain amount of 'compromise' is necessary in terms of both the individual rights and the powers of Government. The location of that balance point will move occasionally, but should always favor individual rights; but, a 'tension' will always remain. A 'stalemate' which favors the individual, if you will, has always been the realistic outcome the Founders hoped to achieve. What cases such as Duncan vs. Becerra are doing is measuring how realistically we are still pursuing that hope.
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