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2nd Amend. Litigation Updates & Legal Discussion Discuss California 2A related litigation and legal topics here. All advice given is NOT legal counsel.

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  #481  
Old 10-18-2020, 6:57 PM
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i can easily see a court hostile to the right adopting the very arguments mrrabbit is making to scuttle both Rupp and Miller (the contemporary one).

Or similar contortions. It isn't beyond the realm of possibility. For that reason, it behooves all of us to take him seriously. I know I do, even if I disagree with much of what he says. I certainly agree more often with him than I ever did with FGG.
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  #482  
Old 10-18-2020, 8:06 PM
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Originally Posted by CandG View Post
I can't see what rabbit has been jabbering about
Heller, something, open carry something, Nichols is the ish something something.

Sums it up?
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  #483  
Old 10-19-2020, 10:07 AM
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Originally Posted by readysetgo View Post
Heller, something, open carry something, Nichols is the ish something something.

Sums it up?
Yep. And if you don't believe him, you have to read Heller. Better.
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  #484  
Old 10-19-2020, 4:56 PM
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Even more curious is the contention that criminals set the stage for how a right is interpreted. SCOTUS and Scalia really screwed the pooch here.
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  #485  
Old 10-19-2020, 8:43 PM
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Even more curious is the contention that criminals set the stage for how a right is interpreted. SCOTUS and Scalia really screwed the pooch here.
The shift in what constitutes the central component of the right plus watering it down with all of that stuff seems to be the price that had to be paid in order to get Kennedy (and in retrospect, perhaps Roberts as well) to recognize an individual RKBA. I think Scalia did the best he could with the circumstances he was given.
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  #486  
Old 10-19-2020, 9:05 PM
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Originally Posted by bigstick61 View Post
The shift in what constitutes the central component of the right plus watering it down with all of that stuff seems to be the price that had to be paid in order to get Kennedy (and in retrospect, perhaps Roberts as well) to recognize an individual RKBA. I think Scalia did the best he could with the circumstances he was given.
I agree. I also suspect all of this was to get "militia" disconnected from the right.

What is annoying is that people hostile to the right cite all of those compromises as something Scalia "believed" which to me is likely totally inaccurate.

He was handcuffed to Roberts and Kennedy, as you rightly observe.
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  #487  
Old 10-19-2020, 11:36 PM
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Default Does the case the Bullet Button rule that you cannot take it off?

Does this case effect the Bullet Button rule that you cannot take it off if purchased in that era of law?
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  #488  
Old 10-19-2020, 11:37 PM
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No.
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  #489  
Old 10-20-2020, 12:02 AM
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Originally Posted by curtisfong View Post
I agree. I also suspect all of this was to get "militia" disconnected from the right.

What is annoying is that people hostile to the right cite all of those compromises as something Scalia "believed" which to me is likely totally inaccurate.

He was handcuffed to Roberts and Kennedy, as you rightly observe.
It's a double-edged sword. It works both for us and against us. The proper meaning of the Constitutional protection of the right to arms is that the militia purpose is a minimum purpose of the protection, not the only purpose. Which is to say, the weapons that are necessary for the militia to serve its purpose are the minimum that are protected by the 2nd Amendment, but the founders and the founding generation knew that arms serve a critically important role in more than just the militia's purposes, and so knew that all weapons needed protection. This is why there is no qualifier in the 2nd Amendment as to what arms are protected.

"Disconnecting" the right prevents courts from interpreting the protection as being only for military weaponry (like what Miller seemed to be attempting). But the way some would read Heller (like mrrabbit here) would render the prefatory clause null and void, and that is forbidden by Marbury v Madison:

Quote:
Originally Posted by Marbury v. Madison, 5 US 137 at 174
It cannot be presumed that any clause in the constitution is intended to be without effect; and, therefore, such a construction is inadmissible, unless the words require it.
Now, the way Scalia in Heller "disconnected" the two was actually very clever. Read this very carefully:

Quote:
Originally Posted by District of Columbia v Heller, 554 US 570, 128 S. Ct. 2783 at 2817
It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment's ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.
It may be objected. That if weapons like the M-16 may be banned.

If. Scalia is describing a hypothetical. Read literally, the above stands for nothing more than the proposition that the Court hasn't decided the issue of protection of military arms. And it may be that if one combines Heller's claim that the scope of the right is that which was understood at its adoption with Marbury v Madison's command that no clause of the Constitution shall ever be read to have no effect unless the words themselves demand it (and they do not here), one would be able to successfully argue that military arms are indeed protected by the 2nd Amendment because, firstly, the founding generation understood that to be the case and, secondly, because doing so preserves the original understanding of the purpose and meaning of the prefatory clause.

Of course, the argument would have to be raised first.
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  #490  
Old 10-20-2020, 12:41 AM
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Judge Hurwitz brought up the same line of questioning, kcbrown, and attempted to correct (although he may have actually misquoted it, to be fair) the State’s lawyer.
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  #491  
Old 10-20-2020, 9:49 AM
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Originally Posted by VISIONTEST View Post
Does this case effect the Bullet Button rule that you cannot take it off if purchased in that era of law?
It almost certainly would eliminate the bullet button regulations, if/when this case (and/or Miller) is totally finished, with all appeals exhausted, and with a victorious outcome for us.

Until that might happen, there's no change to the bullet button regulations or the enforcement of said regulations.
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  #492  
Old 02-03-2021, 9:50 PM
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Now that it's been almost four months since the oral arguments, I'm wondering how close we potentially might be to a decision. What is the average time from oral arguments to a decision on a case by panels in the 9th Circuit?
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  #493  
Old 02-03-2021, 10:03 PM
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Originally Posted by bigstick61 View Post
Now that it's been almost four months since the oral arguments, I'm wondering how close we potentially might be to a decision. What is the average time from oral arguments to a decision on a case by panels in the 9th Circuit?
The time period is highly variable by case. For a while, they were coming down real fast, like 3-4 weeks.

But of the four published cases that were issued yesterday, here is the time breakdown:

Case 1 - 3 months
Case 2 - 1 year, 11 months
Case 3 - 2 years, 2 months
Case 4 - 2 months
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  #494  
Old 02-03-2021, 11:08 PM
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Damn, that's a long time for some of those.

If we got a ruling one way or another, both before and after the trial has concluded for Miller, would this case have implications for that one?
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  #495  
Old 02-03-2021, 11:16 PM
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Originally Posted by bigstick61 View Post
Now that it's been almost four months since the oral arguments, I'm wondering how close we potentially might be to a decision. What is the average time from oral arguments to a decision on a case by panels in the 9th Circuit?
A few weeks for a gay marriage case, a few years for a gun case.
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  #496  
Old 02-04-2021, 7:45 AM
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Originally Posted by bigstick61 View Post
Damn, that's a long time for some of those.

If we got a ruling one way or another, both before and after the trial has concluded for Miller, would this case have implications for that one?
While IANAL and I'm not totally familiar with the differences between the two cases, my guess is that yes, it would have implications. While a 9C ruling in Rupp would likely not affect the lower court's ruling in Miller, it could have a substantial impact on how the the 9C decides Miller later, as they would need to (or at least, they're supposed to) make a ruling in Miller that is consistent with prior cases decided in their court.

That's the problem with having multiple CA 2A organizations that don't get along with each other. They keep filing substantively similar or identical lawsuits without really consulting each other, often causing one or both organizations to waste a lot of time and money.
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  #497  
Old 02-04-2021, 1:55 PM
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When it comes to the Second Amendement, anyone who has faith in the American court system is fooling themselves.
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  #498  
Old 02-04-2021, 7:20 PM
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Originally Posted by johnireland View Post
When it comes to the Second Amendement, anyone who has faith in the American court system is fooling themselves.
If you've got some other realistic options we can pursue, we're all ears.

And before you say what you're about to say, remember I said "realistic."
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  #499  
Old 02-04-2021, 8:26 PM
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I don't think you mean "realistic"...I think you are trying to say is "peaceful." My only reply is to say that the tactics of the Left seem to be more effective than the tactics of the Right. Make of it what you will.
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Old 02-04-2021, 8:59 PM
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If you've got some other realistic options we can pursue, we're all ears.

And before you say what you're about to say, remember I said "realistic."
There is no realistic option. Either we just keep slugging it out in the courts or ignore the laws and deal with the fallout.
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Old 02-05-2021, 6:31 AM
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There is no realistic option. Either we just keep slugging it out in the courts or ignore the laws and deal with the fallout.
I think a lot of people opt do both at the same time
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Old 02-05-2021, 7:52 AM
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While IANAL and I'm not totally familiar with the differences between the two cases, my guess is that yes, it would have implications. While a 9C ruling in Rupp would likely not affect the lower court's ruling in Miller, it could have a substantial impact on how the the 9C decides Miller later, as they would need to (or at least, they're supposed to) make a ruling in Miller that is consistent with prior cases decided in their court.

That's the problem with having multiple CA 2A organizations that don't get along with each other. They keep filing substantively similar or identical lawsuits without really consulting each other, often causing one or both organizations to waste a lot of time and money.
^^^^ this is the problem. One thinks they are better than the other when the end goal is the same.
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  #503  
Old 02-05-2021, 11:34 AM
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Old 02-25-2021, 4:04 PM
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Filed order (ANDREW D. HURWITZ, DANIEL A. BRESS and PATRICK J. BUMATAY) This appeal shall be held in abeyance pending the resolution of en banc proceedings and issuance of the mandate in Duncan v. Becerra, Docket No. 19-55376. Submission of this case is vacated until further order of the Court. Judge Bumatay dissents from this order.
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  #505  
Old 02-25-2021, 5:28 PM
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The more they delay, the harder they'll fall.

These cases going to SCOTUS will be an easy win for our side and will close the door for the most significant portion of the anti-gun agenda - the AWB and magazine restrictions.
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Old 02-25-2021, 5:38 PM
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What does Duncan have to do with Rupp ?
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Old 02-25-2021, 9:57 PM
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What does Duncan have to do with Rupp ?


But it's par for the course. Remember when almost every 2a case in the entire country got put on hold for a few months while everyone waited to see if SCOTUS would grant cert to that little case in NY that had almost nothing to do with any of the rest of them (and ultimately proved to be totally anticlimactic for everyone on both sides)?

Same thing happened when Peruta went en banc... all the rest of the 2a cases in the 9CA jurisdiction got put on the backburner for like 2 years, even cases that had nothing to do with concealed carry.
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  #508  
Old 02-26-2021, 6:35 AM
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The more they delay, the harder they'll fall.

These cases going to SCOTUS will be an easy win for our side and will close the door for the most significant portion of the anti-gun agenda - the AWB and magazine restrictions.
What possible basis do you have to say this? Haven't seen any profiles in courage on this court yet, but definitely some punting.
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Old 02-26-2021, 9:43 AM
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What possible basis do you have to say this? Haven't seen any profiles in courage on this court yet, but definitely some punting.
I know it's frustrating and everyone is tired of hearing this, but it's still possible that they've been punting because they're waiting for the right case, and they haven't felt that any of the ones that came before them so far in the last year haven't been that.

I would've thought Pena was a good one, but maybe they knew something I didn't.

They know which cases are probably heading their way in the near future, which does afford them some ability to be selective and wait for the right one to come along.
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  #510  
Old 02-26-2021, 2:09 PM
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Originally Posted by CandG View Post


But it's par for the course. Remember when almost every 2a case in the entire country got put on hold for a few months while everyone waited to see if SCOTUS would grant cert to that little case in NY that had almost nothing to do with any of the rest of them (and ultimately proved to be totally anticlimactic for everyone on both sides)?

Same thing happened when Peruta went en banc... all the rest of the 2a cases in the 9CA jurisdiction got put on the backburner for like 2 years, even cases that had nothing to do with concealed carry.
As 2A cases progress through District courts subject to Ninth Circuit review, through the Ninth circuit itself, or to the Supreme court having originated anywhere, all subordinate 2A cases logically grind to a halt because what still remains at issue here is whether the second amendment disallows anything besides a total ban on possession of all handguns whatsoever (i.e. only the exact law at issue in Heller.)
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Old 02-26-2021, 2:33 PM
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I would've thought Pena was a good one, but maybe they knew something I didn't.
Pena happened during the reign of RBG.

If you think that nothing has changed with ACB replacing RBG (and Kavanaugh replacing Kennedy), then you won't understand why the left has been losing their mind during these confirmations and why they want to try to stack the court. And if you're depressed that we might lose and that we're still in a bad position, you just need to look at how depressed the other side is and what they think is coming. To them.
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Old 02-26-2021, 2:40 PM
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As 2A cases progress through District courts subject to Ninth Circuit review, through the Ninth circuit itself, or to the Supreme court having originated anywhere, all subordinate 2A cases logically grind to a halt because what still remains at issue here is whether the second amendment disallows anything besides a total ban on possession of all handguns whatsoever (i.e. only the exact law at issue in Heller.)
QFT

This is it.

To make matters worse add "primarily in the home" which, until SCOTUS says otherwise, means "exclusively in the home".
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  #513  
Old 02-26-2021, 3:01 PM
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Pena happened during the rain of RBG.

If you think that nothing has changed with ACB replacing RBG (and Kavanaugh replacing Kennedy), then you won't understand why the left has been losing their mind during these confirmations and why they want to try to stack the court. And if you're depressed that we might lose and that we're still in a bad position, you just need to look at how depressed the other side is and what they think is coming. To them.
Don't know if you meant that for me or not, but either way I agree
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Old 02-27-2021, 6:30 AM
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Pena happened during the reign of RBG.

If you think that nothing has changed with ACB replacing RBG (and Kavanaugh replacing Kennedy), then you won't understand why the left has been losing their mind during these confirmations and why they want to try to stack the court. And if you're depressed that we might lose and that we're still in a bad position, you just need to look at how depressed the other side is and what they think is coming. To them.
Please. Those new justices aren't coming to save us, if their pusillanimous response to the Trump election suits are any indication. They are running scared and keeping their heads down due to the Dems' court-packing threats.
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Old 02-27-2021, 7:04 AM
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Please. Those new justices aren't coming to save us, if their pusillanimous response to the Trump election suits are any indication. They are running scared and keeping their heads down due to the Dems' court-packing threats.
Very accurate.
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Old 07-06-2021, 5:45 PM
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Dear Client:

You probably heard about the ruling in Miller v. Bonta, where Judge Roger Benitez issued a 94-page opinion on June 4, 2021 that declared unconstitutional California’s laws banning common “assault weapons” (like the AR-15). Judge Benitez’s ruling in Miller is a much-publicized federal court decision, and it may have left you wondering where your case stands now or how your Second Amendment rights are affected as a result.

Significantly, the ruling in Miller has no effect on your case whatsoever. It also has no immediate impact on any California law. For one, Judge Benitez’s ruling includes an automatic 30-day stay of his order. This gives the state time to appeal to the Ninth Circuit, which the Attorney General has already promised to do. And nothing will change as a result of Miller until the Ninth Circuit rules on that appeal.

Once the state appeals Miller to the Ninth Circuit, it is almost certain that Judge Benetiz ruling will be stayed until the case is resolved. it will then take at least a year for a final ruling if there are no extended delays (there will be). The Miller appeal will almost certainly be stayed at the Ninth Circuit because the court has pending rulings in other important Second Amendment cases—like Duncan (challenge to magazine capacity limits), Rhode (challenge to ammunition sales bans and background checks), and Rupp (challenge to California’s “assault weapon” ban)—that are already on appeal at the Ninth Circuit. So, an extended delay is likely. You can see the court filings in those cases Here and Here [laura insert links to back pages.]

Second Amendment law in the Ninth Circuit is facing a logjam right now due to cases like yours that are poised to have a profound impact on current and future firearms litigation. We know that the Duncan case will be heard by an en banc panel at the Ninth Circuit on June 22. Because Duncan could have a tremendous impact on Second Amendment law in the Ninth Circuit, other Second Amendment cases at the appeal stage have been “stayed” or “held in abeyance” pending the resolution of the Duncan en banc rehearing. That is the situation with Rupp, Rhode, and probably Miller too.

Also, Rupp is not only ahead of Miller in the Ninth Circuit, but it also challenges the same laws, involves the same legal issues, and has already been argued. So, while it is heartening to read Judge Benitez’s wonderful decision in Miller, Miller will likely have little impact and will be caught up in the bottleneck of cases already backed up at the Ninth Circuit.

Lastly, there is a good chance that the Ninth Circuit will stay Duncan after it conducts the en banc oral argument because it knows that the Supreme Court will hear New York State Rifle & Pistol Association, Inc. v. Corlett this year, with a decision likely next June. In Corlett, the Supreme Court will likely reset the legal test that courts apply to Second Amendment questions. The current composition of the Supreme Court makes a pro-Second Amendment decision look very possible. CRPA is doing everything it can to make it happen.

If the Ninth Circuit stays Duncan, then all the cases that are being stayed pending Duncan will essentially remain stayed as well until the Supreme Court issues its Corlett decision. So, for now, we anticipate a fairly long stay. As we patiently await what unfolds in the Supreme Court, we can be cautiously optimistic about what’s in store on the horizon for firearm jurisprudence in California.

It is an exciting time to join in the fight for firearm rights, and ll of us at Michel & Associates thank you for being a part of the effort that may finally change the course of Second Amendment law in California.

If you would like to know more about the effect that Miller has on other cases, please read the CRPA article here. If you have any further questions, please do not hesitate to contact us.

https://crpa.org/news/blogs/californ...or-gun-owners/

Thank you for getting involved!

--Chuck
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It's easy to be a keyboard warrior, you would melt like wax in front of me, you wouldn't be able to move your lips.
Member: Patron member NRA, lifetime member SAF, CRPA

Last edited by Steve1968LS2; 07-06-2021 at 5:48 PM..
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Old 11-30-2021, 4:12 PM
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Paladin Paladin is offline
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Filed order (ANDREW D. HURWITZ, DANIEL A. BRESS and PATRICK J. BUMATAY) This appeal shall be held in abeyance pending the resolution of en banc proceedings and issuance of the mandate in Duncan v. Becerra, Docket No. 19-55376. Submission of this case is vacated until further order of the Court. Judge Bumatay dissents from this order.


ETA: my guess is Rupp won’t move until Duncan appeal to SCOTUS is finalized.

Last edited by Paladin; 11-30-2021 at 9:25 PM..
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Old 12-06-2021, 3:31 PM
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Filed order (ANDREW D. HURWITZ, DANIEL A. BRESS and PATRICK J. BUMATAY): The panel unanimously believes that resolution of this appeal may be impacted by any opinion of the Supreme Court in N.Y. State Rifle & Pistol ***’n v. Bruen, No. 20-843. Any party may file a letter no greater than 3 pages within 15 days of this order informing the Court of its position on whether this appeal should be held in further abeyance pending the issuance of a decision in N.Y. State Rifle.
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Old 12-07-2021, 9:48 PM
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Originally Posted by FirearmFino View Post
Filed order (ANDREW D. HURWITZ, DANIEL A. BRESS and PATRICK J. BUMATAY): The panel unanimously believes that resolution of this appeal may be impacted by any opinion of the Supreme Court in N.Y. State Rifle & Pistol ***’n v. Bruen, No. 20-843. Any party may file a letter no greater than 3 pages within 15 days of this order informing the Court of its position on whether this appeal should be held in further abeyance pending the issuance of a decision in N.Y. State Rifle.
This should have been the outcome in the Duncan case, but CA9 arrogance ruled the day. There is a reason why CA9 is the most over-ruled circuit in the nation.
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Old 12-16-2021, 11:26 AM
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Filed order (ANDREW D. HURWITZ, DANIEL A. BRESS and PATRICK J. BUMATAY): This appeal shall be held in further abeyance pending the issuance of a decision by the Supreme Court of the United States in N.Y. State Rifle & Pistol ***’n v. Bruen, No. 20-843. The Court will issue any orders concerning additional briefing or argument after the Supreme Court issues its decision.
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