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National 2nd Amend. Political & Legal Discussion Discuss national gun rights and 2A related political topics here. All advice given is NOT legal counsel.

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  #1921  
Old 01-16-2020, 6:34 AM
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Not sure if anyone's posted this yet.

Going by the calendar posted at: https://www.supremecourt.gov/ it looks like SCOTUS is on break from Jan 28 until Feb 20.

Not sure how CJ Robert's presiding 6 days per week at the Senate impeachment trial of Trump will affect SCOTUS' schedule.

May 01 through June 29, inclusive, look like the best bet for releasing 2nd A case opinions, esp M Non-Argument and Th Conference days in June, with June 29 the best of all bets.

So, back to sleep until Feb 20 and then hang on, esp after April 30, until July 01.

Of course, SCOTUS can do what it wants when it wants, so this is all JMO
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  #1922  
Old 01-16-2020, 9:23 AM
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Not sure if anyone's posted this yet.

Going by the calendar posted at: https://www.supremecourt.gov/ it looks like SCOTUS is on break from Jan 28 until Feb 20.

Not sure how CJ Robert's presiding 6 days per week at the Senate impeachment trial of Trump will affect SCOTUS' schedule.

May 01 through June 29, inclusive, look like the best bet for releasing 2nd A case opinions, esp M Non-Argument and Th Conference days in June, with June 29 the best of all bets.

So, back to sleep until Feb 20 and then hang on, esp after April 30, until July 01.

Of course, SCOTUS can do what it wants when it wants, so this is all JMO
I don't see any chance of us seeing this decision until June if it is on the merits. If no other gun rights case is granted cert this Friday then NYSRPA is likely going to be on the merits.

I really hate having to be so patient with this garbage. We can lose our gun rights overnight thanks to emergency sessions of legislatures or executive fiat from these gun grabbers. Then we have to litigate for seven god damn years just to claw back what was ours. It's so ****ing ridiculous.
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  #1923  
Old 01-16-2020, 1:41 PM
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Then we have to litigate for seven god damn years just to claw back what was ours. It's so ****ing ridiculous.

Only seven? Wish it was that short.
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  #1924  
Old 01-16-2020, 5:18 PM
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Only seven? Wish it was that short.
That is how long it has taken NYSRPA, it took Heller 5 years to go from filed to having a majority opinion published.
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  #1925  
Old 01-16-2020, 5:24 PM
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If only the gun were a cake....
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  #1926  
Old 01-17-2020, 3:58 AM
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That is how long it has taken NYSRPA, it took Heller 5 years to go from filed to having a majority opinion published.
PeŮa v. Cid is over ten years and running.
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  #1927  
Old 01-17-2020, 4:37 AM
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PeŮa v. Cid is over ten years and running.
An absolute absurdity. The courts simply do not care about us or our rights. I grow more and more impatient every day for NYSRPA to finally give us some solid ground to work with. Heller has been a disgusting failure not only for it's poor wording but also for the fact the courts have not held it up for what it was; a recognition that modern individuals have a right to keep and bear arms and that right is not some bastard child of constitution. Just about every circuit court in the country has used Heller as a justification for their infringement of our rights. Looking at Virginia, I hope it has become clear to Roberts that there is only one road to appeasing these animals, and it is civil war.
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  #1928  
Old 01-17-2020, 12:34 PM
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PeŮa v. Cid is over ten years and running.
I started working on what became PeŮa v. Cid shortly after I got the April 2006 American Rifleman, which has the XD45 Bitone on the front cover. So call it 14 years ago. Has there ever in the US been a longer timeline for a civil rights case?

The USSC term happens to end on my birthday this year. It would be a great present if victory were delivered on that day.
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  #1929  
Old 01-17-2020, 1:39 PM
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I started working on what became PeŮa v. Cid shortly after I got the April 2006 American Rifleman, which has the XD45 Bitone on the front cover. So call it 14 years ago. Has there ever in the US been a longer timeline for a civil rights case?

The USSC term happens to end on my birthday this year. It would be a great present if victory were delivered on that day.
How many years was it from the enactment of the 14th Amendment until the end of Jim Crow with the passing of the Civil Rights Act? Just shy of 100 years, I think that that is "just a might" longer. I suggest that you buy a lot of popcorn.
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  #1930  
Old 01-17-2020, 3:21 PM
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Well everyone it appears that SCOTUS has granted the last certs of this session and none of them involve gun rights. It appears NYSRPA Or Bust is the conservatives plan here. I think that is a very good sign of things to come. Fingers crossed.

Edit: I should add this SHOULD be the last certs of this session, since MLK Day is usually the marker as the last day to add cases. The Supreme Court is free to do whatever they please, as usual.

Last edited by kuug; 01-17-2020 at 3:26 PM..
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  #1931  
Old 01-17-2020, 3:27 PM
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Well everyone it appears that SCOTUS has granted the last certs of this session and none of them involve gun rights. It appears NYSRPA Or Bust is the conservatives plan here. I think that is a very good sign of things to come. Fingers crossed.
How so? NYSR&PA could still get mooted. They could be delaying the announcement due to waiting for dissents to be completed.

I hope I am wrong, but anything is possible. Mag week was a pleasant surprise, but mostly, it has been one disappointment after another.
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  #1932  
Old 01-17-2020, 3:28 PM
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One of the interesting things, behind the scenes, is that when opinions are being written and circulated, it gives justices a chance to be persuaded and change their minds about their initial vote on a case from conference.

Iím not entirely convinced, but seeing the situation in Virginia unfold, I wouldnít be surprised to pick up a liberal or two in concurrence, on reforming the lower courts on 2A, in our favor.

Just a hunch.
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  #1933  
Old 01-17-2020, 3:50 PM
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How so? NYSR&PA could still get mooted. They could be delaying the announcement due to waiting for dissents to be completed.

I hope I am wrong, but anything is possible. Mag week was a pleasant surprise, but mostly, it has been one disappointment after another.
There are currently nine gun related cases being stayed by the supreme court. If the conservatives, more specifically Roberts, felt that NYSRPA was improper to move forward on then they have their pick of the litter to act in their 2019-2020 session. It appears more likely as we draw closer to the end of the session and no new gun rights cases are granted cert that NYSRPA will not be mooted, but will be ruled on the merits in a wide-ranging decision.
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  #1934  
Old 01-17-2020, 4:43 PM
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There are currently nine gun related cases being stayed by the supreme court. If the conservatives, more specifically Roberts, felt that NYSRPA was improper to move forward on then they have their pick of the litter to act in their 2019-2020 session. It appears more likely as we draw closer to the end of the session and no new gun rights cases are granted cert that NYSRPA will not be mooted, but will be ruled on the merits in a wide-ranging decision.
From your lips to God's ear. I have my fingers crossed.
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  #1935  
Old 01-17-2020, 7:01 PM
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There are currently nine gun related cases being stayed by the supreme court. If the conservatives, more specifically Roberts, felt that NYSRPA was improper to move forward on then they have their pick of the litter to act in their 2019-2020 session. It appears more likely as we draw closer to the end of the session and no new gun rights cases are granted cert that NYSRPA will not be mooted, but will be ruled on the merits in a wide-ranging decision.
I agree, the closer we get to the end of the year the more likely it is they will reach the merits of this case. But to say it's going to be a wide ranging decision is 100% speculation.

It only takes 1 justice to ask for a case to be held. For all we know Thomas could want all the 2A cases held pending NYSRPA and none of the other judges have any intention on taking up another 2A case.
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  #1936  
Old 01-18-2020, 2:26 AM
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I agree, the closer we get to the end of the year the more likely it is they will reach the merits of this case. But to say it's going to be a wide ranging decision is 100% speculation.

It only takes 1 justice to ask for a case to be held. For all we know Thomas could want all the 2A cases held pending NYSRPA and none of the other judges have any intention on taking up another 2A case.
Because if it was a decision limited in scope then they would have granted cert to more cases and they would not have dismissed the claim of mootness in October. I'm sure all the conservative justices would agree the premises permit under the previous policy was unconstitutional on it's face. There is no reason for this case to remain except to deal with blatant review evasion and the absurdity of the old policy.

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  #1937  
Old 01-18-2020, 9:11 AM
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Double tap.
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  #1938  
Old 01-18-2020, 9:12 AM
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. . . but will be ruled on the merits in a wide-ranging decision.
Concur.

The held cases range from transport, interstate sales, justifiable need, common use, and four on "bear". The best guess is that the Court will provide a decision on how the 2A is to be interpreted by lower courts. It's hard to think of anything else that would respond to the spectrum of held cases.
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  #1939  
Old 01-18-2020, 9:28 AM
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I agree, the closer we get to the end of the year the more likely it is they will reach the merits of this case. But to say it's going to be a wide ranging decision is 100% speculation.

It only takes 1 justice to ask for a case to be held. For all we know Thomas could want all the 2A cases held pending NYSRPA and none of the other judges have any intention on taking up another 2A case.
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Because if it was a decision limited in scope then they would have granted cert to more cases and they would not have dismissed the claim of mootness in October. I'm sure all the conservative justices would agree the premises permit under the previous policy was unconstitutional on it's face. There is no reason for this case to remain except to deal with blatant review evasion and the absurdity of the old policy.
Depends what is meant as "wide ranging".

I very much doubt SCOTUS will issue a decision explicitly addressing specific 2A concerns such as mag capacity, AW's or the roster.

They will address the case at hand on a narrow issue, the premises permit law and the issue of transporting.

However, I do expect them to include some language harshly critical of the lower court's process in reaching their decision. That language I expect to flesh out what SCOTUS will insist is the proper framework to employ in evaluating the merits of 2A cases. I expect this withering rebuke to dramatically reduce the amount of wiggle room that some lower courts have abused to twist Heller into a meaningless pretzel.

No, we won't see tons of anti-gun laws stricken in the NYSRPA decision but we ARE likely to see SCOTUS lay down the law and call the lower courts on their BS and send virtually ALL the 2A cases being held back down to be re-evaluated using the new framework. In my humble opinion of course.

If correct, that would mean over the next 2-5 years we could see a LOT of improvement in 2A jurisprudence nationwide, even here in the 9th district where a bevy of new appointments have changed the court's make up from solidly left-leaning to a roughly 50-50 balance. We should be seeing a lot of cases receiving a proper legal review instead of the judges deciding what verdict they want and then twisting the law into contortions to make it come out that way.

Having said that, I think there is a small chance SCOTUS may take Pena just because it literally bans acquisition of the pistol SCOTUS ruled as protected in Heller, making it a personal affront to SCOTUS's authority. And an equally small chance they may hold on to Worman due to the iminent threat of a popular uprising in Virginia if action isn't taken soon.
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  #1940  
Old 01-18-2020, 10:04 AM
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Depends what is meant as "wide ranging".

I very much doubt SCOTUS will issue a decision explicitly addressing specific 2A concerns such as mag capacity, AW's or the roster.

They will address the case at hand on a narrow issue, the premises permit law and the issue of transporting.

However, I do expect them to include some language harshly critical of the lower court's process in reaching their decision. That language I expect to flesh out what SCOTUS will insist is the proper framework to employ in evaluating the merits of 2A cases. I expect this withering rebuke to dramatically reduce the amount of wiggle room that some lower courts have abused to twist Heller into a meaningless pretzel.

No, we won't see tons of anti-gun laws stricken in the NYSRPA decision but we ARE likely to see SCOTUS lay down the law and call the lower courts on their BS and send virtually ALL the 2A cases being held back down to be re-evaluated using the new framework. In my humble opinion of course.

If correct, that would mean over the next 2-5 years we could see a LOT of improvement in 2A jurisprudence nationwide, even here in the 9th district where a bevy of new appointments have changed the court's make up from solidly left-leaning to a roughly 50-50 balance. We should be seeing a lot of cases receiving a proper legal review instead of the judges deciding what verdict they want and then twisting the law into contortions to make it come out that way.

Having said that, I think there is a small chance SCOTUS may take Pena just because it literally bans acquisition of the pistol SCOTUS ruled as protected in Heller, making it a personal affront to SCOTUS's authority. And an equally small chance they may hold on to Worman due to the iminent threat of a popular uprising in Virginia if action isn't taken soon.

Something to keep in mind, that's along what you suggested.

It's easier to hold a dozen cases, rule narrowly on one WITH guidelines and clarifications. . .

. . . and then send the other 11 back down to the various courts for a redo.


Than it is for SCOTUS alone to have to vote for cert on all 12, hold orals on all 12, decide on all 12, and write majority opinions on all 12 and entertain minority opinions on all 12.

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  #1941  
Old 01-18-2020, 12:28 PM
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Something to keep in mind, that's along what you suggested.

It's easier to hold a dozen cases, rule narrowly on one WITH guidelines and clarifications. . .

. . . and then send the other 11 back down to the various courts for a redo.


Than it is for SCOTUS alone to have to vote for cert on all 12, hold orals on all 12, decide on all 12, and write majority opinions on all 12 and entertain minority opinions on all 12.

=8-)
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  #1942  
Old 01-18-2020, 1:00 PM
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Depends what is meant as "wide ranging".

I very much doubt SCOTUS will issue a decision explicitly addressing specific 2A concerns such as mag capacity, AW's or the roster.

They will address the case at hand on a narrow issue, the premises permit law and the issue of transporting.

However, I do expect them to include some language harshly critical of the lower court's process in reaching their decision. That language I expect to flesh out what SCOTUS will insist is the proper framework to employ in evaluating the merits of 2A cases. I expect this withering rebuke to dramatically reduce the amount of wiggle room that some lower courts have abused to twist Heller into a meaningless pretzel.

No, we won't see tons of anti-gun laws stricken in the NYSRPA decision but we ARE likely to see SCOTUS lay down the law and call the lower courts on their BS and send virtually ALL the 2A cases being held back down to be re-evaluated using the new framework. In my humble opinion of course.

If correct, that would mean over the next 2-5 years we could see a LOT of improvement in 2A jurisprudence nationwide, even here in the 9th district where a bevy of new appointments have changed the court's make up from solidly left-leaning to a roughly 50-50 balance. We should be seeing a lot of cases receiving a proper legal review instead of the judges deciding what verdict they want and then twisting the law into contortions to make it come out that way.

Having said that, I think there is a small chance SCOTUS may take Pena just because it literally bans acquisition of the pistol SCOTUS ruled as protected in Heller, making it a personal affront to SCOTUS's authority. And an equally small chance they may hold on to Worman due to the iminent threat of a popular uprising in Virginia if action isn't taken soon.
That's almost precisely what I am predicting. I believe we'll get the new standard for 2a cases. With that in place, SCOTUS will send the 9+ cases back down to the lower courts to be ruled on by the new standard to reduce activist nonsense and their own caseload.

Last edited by kuug; 01-18-2020 at 1:12 PM..
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  #1943  
Old 01-18-2020, 2:45 PM
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That's almost precisely what I am predicting. I believe we'll get the new standard for 2a cases. With that in place, SCOTUS will send the 9+ cases back down to the lower courts to be ruled on by the new standard to reduce activist nonsense and their own caseload.
I really hope this will be true. because this option does make the most logical sense.
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  #1944  
Old 01-18-2020, 5:21 PM
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That's almost precisely what I am predicting. I believe we'll get the new standard for 2a cases. With that in place, SCOTUS will send the 9+ cases back down to the lower courts to be ruled on by the new standard to reduce activist nonsense and their own caseload.
The problem is that, as we have already seen, unless the standard is extremely explicit, lower courts will just ignore it in favor of their own feelings.
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  #1945  
Old 01-18-2020, 7:40 PM
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The problem is that, as we have already seen, unless the standard is extremely explicit, lower courts will just ignore it in favor of their own feelings.
That's because of the language in Heller. Too many phrases and clauses saying things like longstanding regulations are not in question or dangerous and unusual weapons are ok to ban. The activist leftist judges have taken those vague phrases to mean all gun control on bearing is ok and all gun control on gun bans are ok. Even going beyond bans of semiautomatic rifles, the handgun that was used by Heller in his DC lawsuit is banned in California and the 9th circuit actually OK'd that in Pena v Horan. Now that Kennedy is gone, and as long as Roberts doesn't go squishy on us, I expect those issues to get ironed out by a standard for 2a in NYSRPA.
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Old 01-18-2020, 8:56 PM
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The problem is that, as we have already seen, unless the standard is extremely explicit, lower courts will just ignore it in favor of their own feelings.
As I've said before, SCOTUS doesn't have an enforcement mechanism.

If the momentum of the "system" is one way on an issue, and SCOTUS rules the other way - the "system" will continue to act the way it does thinking it can do so with impunity.

Here is one area where I agree with Charles Nichols - the qualified immunity bull**** needs to go - and restoration of citizen prosecution needs to be restored such that if a DA refuses to take a case or act, a citizen can call the grand jury and make an argument for an indictment and proceedings.

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  #1947  
Old 01-18-2020, 8:59 PM
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That's because of the language in Heller. Too many phrases and clauses saying things like longstanding regulations are not in question or dangerous and unusual weapons are ok to ban. The activist leftist judges have taken those vague phrases to mean all gun control on bearing is ok and all gun control on gun bans are ok. Even going beyond bans of semiautomatic rifles, the handgun that was used by Heller in his DC lawsuit is banned in California and the 9th circuit actually OK'd that in Pena v Horan. Now that Kennedy is gone, and as long as Roberts doesn't go squishy on us, I expect those issues to get ironed out by a standard for 2a in NYSRPA.
Heller is fine until you get to the "traveling" or "on a journey" test.

It's language is both general and of the overview type AND categorical with example specifics - much like the Constitution itself.

See my previous post as to what the real problem is.

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  #1948  
Old 01-18-2020, 11:43 PM
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Something to keep in mind, that's along what you suggested.



It's easier to hold a dozen cases, rule narrowly on one WITH guidelines and clarifications. . .



. . . and then send the other 11 back down to the various courts for a redo.





Than it is for SCOTUS alone to have to vote for cert on all 12, hold orals on all 12, decide on all 12, and write majority opinions on all 12 and entertain minority opinions on all 12.



=8-)


If thatís what the Court does then it means they havenít learned a damned thing from NAACP v Alabama. Cases that are remanded get decided by the same panel that decided them previously. That case proves that itís actually less work in the long run for the Court to decide the case on its merits immediately instead of repeatedly sending it down to the same people who already decided the case in bad faith.

The approach you speak of might work properly if the appealed decision was an end banc one in the 9th Circuit. What I donít know is whether the followup en banc proceedings would also involve the same people or if the selection process would have to be re-done. For any other situation, itíll just be NAACP v Alabama all over again, but this time itíll involve many more cases, which means at least some of them will probably be dropped on the floor by SCOTUS, which means we lose.

No, SCOTUS would be morons to merely remand for reconsideration in light of the above. We already know exactly how that will play out in the general case. And so should they.



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  #1949  
Old 01-19-2020, 3:54 AM
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SCOTUS is not going to hear/consider all of the held cases in the same manner as they are/have NYSRPA. It's be awesome if they did, but I cannot see it.

So I quite agree with the idea that they will likely rule on NYSRPA and then effectively tell the lower courts that the held cases have been reversed and remanded whilst directing them to rule in accordance with the opinion rendered in NYSRPA.

It will not be perfectly effective and SCOTUS will know and welcome that.

I obviously cannot speak for SCOTUS seeing as how I have no connections and haven't even visited a law school so you should probably view the following as grossly uninformed. I've just been watching them for a while.

As best I can tell the SCOTUS views the Appeals courts as the venue for trying out the various interpretations of Constitutional issues. The non-SCOTUS courts are to refine the ideas/approaches and if those courts appear to be getting it grossly wrong then they'll step in with a case and use it to correct the misconception.

SCOTUS may give lip service to the idea that justice delayed is justice denied but the reality is quite different. I'm guessing they sort of view this as being the purview of the lower courts and if the lower (non-SCOTUS) courts have ruled then justice is not (or no longer) being delayed. So there is seldom a great urgency to protect our rights.

So if SCOTUS remands and the lower courts issue new opinions which are at least somewhat different than what was envisioned by the SCOTUS? They'll have a tendency to view that as delightful! This will mean that the boundaries of their ruling in NYSRPA are being explored and once the Appeals courts have done their thing then SCOTUS will consider hearing one or two cases and tune things up.

If it takes another 5-10 years to get back to SCOTUS that will not necessarily be viewed by that institution as a big deal. There may be individual justices who will see this as a very big problem but the view by the institution in general will not likely be the same.

However, a remand to an appeals court with a grossly unacceptable resultant decision might result in a request for cert and the cert might be granted sooner rather than later. I favor the idea that this could, indeed, happen in a place like the 9th Circus.

Where the 9th has held a case after seating the en banc panel so that the fascists could hopefully shape it after an NYSRPA ruling to be as restrictive of liberty as possible? It is possible that SCOTUS will view this as especially reprehensible and it could be that if the opinion out of the 9th is particularly despicable that SCOTUS would happily grant cert and reverse the decision.

Lots of variables in terms of timings and interactions of the courts. But to me it seems very unlikely that SCOTUS will grab all of the held cases and rule on them. It is also likely that most appeals courts will issue a new ruling which is pretty compliant with NYSRPA.

Overall this should be a big win. Not a complete win in all areas, but a big one.
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  #1950  
Old 01-19-2020, 5:00 AM
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If thatís what the Court does then it means they havenít learned a damned thing from NAACP v Alabama. Cases that are remanded get decided by the same panel that decided them previously. That case proves that itís actually less work in the long run for the Court to decide the case on its merits immediately instead of repeatedly sending it down to the same people who already decided the case in bad faith.

The approach you speak of might work properly if the appealed decision was an end banc one in the 9th Circuit. What I donít know is whether the followup en banc proceedings would also involve the same people or if the selection process would have to be re-done. For any other situation, itíll just be NAACP v Alabama all over again, but this time itíll involve many more cases, which means at least some of them will probably be dropped on the floor by SCOTUS, which means we lose.

No, SCOTUS would be morons to merely remand for reconsideration in light of the above. We already know exactly how that will play out in the general case. And so should they.



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Well a lot will depend on exactly how the opinion is worded. The lower courts (Mass Supremes) and governments (antis like NJ and DC) got the message pretty well for stun guns after Caetano.

I suspect a NYSRPA opinion will be more strongly worded than Caetano simply because there's no Kennedy anymore and the court has seen how 10 years of Heller have baffled or been ignored by lower courts.
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  #1951  
Old 01-19-2020, 5:05 AM
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That's almost precisely what I am predicting. I believe we'll get the new standard for 2a cases. With that in place, SCOTUS will send the 9+ cases back down to the lower courts to be ruled on by the new standard to reduce activist nonsense and their own caseload.
I think we HAVE to have a new standard if this reaches the merits. The underlying law was a one-off with application only in NYC; this would have been a big a big waste of time to just take the case to stop a silly transport law.
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  #1952  
Old 01-19-2020, 9:30 AM
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I think we HAVE to have a new standard if this reaches the merits. The underlying law was a one-off with application only in NYC; this would have been a big a big waste of time to just take the case to stop a silly transport law.
Just thought I'd toss this in...

...perhaps not?


Here's why I say this...

In Heller v. DC, the treatment or discussion of traveling with firearms was rather abrupt compared to the other particulars. And upon reading about a 1/2 dozen of the referenced authorities one thing became clear:

One could travel through one city and county in a given state - and be regarded as a traveler, only to cross into another city and county in the same given state and be nabbed for the very same thing with the courts in the State upholding the conviction all the way to the top.

Reading the referenced authorities that involve traveling with a firearm comes across as a "minefield".

SCOTUS used Caetano v. Massachusetts to clarify "does not preclude future firearms", I can see SCOTUS using NYSRPA v NYC to clarify "a traveler can travel with a legally owned firearm to anywhere a legally owned firearm is allowed."

That would be a shot at those attempting to make that which is legal illegal simply on the basis of a change in political jurisdiction.

...this would of course put the Virginia capitol and grounds in the spot light at a later time, same for DC, Chicago and other artificial political jurisdictions created by politicians to set themselves aside as "special" with the rules not applying to them.

It would also be a warning to CA that the may issuance standards that vary to the extremes between counties may be up for examination.

If there's one thing that SCOTUS can be very effective at, it is pointing out the "games" that authorities play with their policies - policies that under examination clearly had nothing to do with public safety, standards, equal treatment under the law - including the exercise of privilege.

I consider my signature (Justice Thomas quote) to be exactly that.

=8-)
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  #1953  
Old 01-19-2020, 8:21 PM
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Well a lot will depend on exactly how the opinion is worded. The lower courts (Mass Supremes) and governments (antis like NJ and DC) got the message pretty well for stun guns after Caetano.

I suspect a NYSRPA opinion will be more strongly worded than Caetano simply because there's no Kennedy anymore and the court has seen how 10 years of Heller have baffled or been ignored by lower courts.
Uh, no it won't depend on how the opinion is worded.

More precisely, the outcome won't depend on how the opinion is worded. The gyrations that the lower court uses in order to achieve that outcome obviously will.

But make no mistake: the people who issued the original decision have no intention of respecting the right to arms. If they did, the decision they issued wouldn't be based on the "reasoning" they used. Since their decision is a foregone conclusion no matter what the Supreme Court says, it follows that eventually the Supreme Court will have to decide the case on its merits. Any other action on the part of the Court eventually results in a loss for our side for that particular case, period. The lessons from NAACP v Alabama are crystal clear. Why anyone here ascribes anything but malice to these lower courts at this point is completely beyond me.
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  #1954  
Old 01-20-2020, 2:25 AM
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Uh, no it won't depend on how the opinion is worded.

More precisely, the outcome won't depend on how the opinion is worded. The gyrations that the lower court uses in order to achieve that outcome obviously will.

But make no mistake: the people who issued the original decision have no intention of respecting the right to arms. If they did, the decision they issued wouldn't be based on the "reasoning" they used. Since their decision is a foregone conclusion no matter what the Supreme Court says, it follows that eventually the Supreme Court will have to decide the case on its merits. Any other action on the part of the Court eventually results in a loss for our side for that particular case, period. The lessons from NAACP v Alabama are crystal clear. Why anyone here ascribes anything but malice to these lower courts at this point is completely beyond me.
I don't think this is totally realistic either.

Heller and McDonald were just not explicitly expansive in terms of addressing the RKBA. It turns out that was intentional and the way that they managed to achieve 5 votes to recognize the 2A as applying to the states. Justice Kennedy ensured that things were written so that the states could impose all kinds of restrictions - and would not have signed on otherwise.

The Circuit courts figured that out in a hurry and ruled accordingly. The District courts have thus been ruling in accordance with what constitutes guidance from the appeals level.

Now there are some pretty radical changes in place which may (likely will) result in some pretty substantial changes.

1. Kennedy is no longer there. We now have Kavanaugh instead and Kavanaugh appears to have a more expansive opinion of how the right to self-defense applies to the states. It is therefore likely (not guaranteed) that the SCOTUS as currently constituted will issue an opinion which is much more to our liking - and this will modify although not necessarily reverse the behavior of the lower courts.

2. The lower courts just are not the same. There have been a lot of appointments under Trump. Now Trump is not a true Conservative but he has been making appointments which are far more likely to respect the rights of the citizenry than had been true of the average member of the lower courts. Even the 9th Circuit will no longer be a guaranteed anti-liberty vote. Even when you have an en banc panel which is primarily fascist we are likely to find that the conservatives will be just a little bit more influential and the ruling therefore just a little bit better.

The above is likely the reason why SCOTUS was willing to grant cert to NYSRPA. They believe they can now address a 2A case without establishing bad precedent - and have the ruling actually be effective.

It would be incorrect to believe that all will be solved when the decision is handed down in NYSRPA but there is good reason to hope that it will be a substantial move forward for liberty.

I hope that it turns out there is a new and persistent sort of "Heller 5" which has formed and that they will take a number of 2A cases over the next few years in order to fix what the lower courts will do and even more importantly to make the right to self-defense a topic which generally fits into the stare decisis mode.

The long-term problem being that the SCOTUS fascists generally won't accept stare decisis when it comes to the right to self-defense so it will be very important to elect relatively conservative presidents for a long time to come. Seriously, anyone who values their Constitutional rights should never even consider voting for a Demorat candidate in the foreseeable future.
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  #1955  
Old 01-20-2020, 3:16 PM
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If thatís what the Court does then it means they havenít learned a damned thing from NAACP v Alabama. Cases that are remanded get decided by the same panel that decided them previously. That case proves that itís actually less work in the long run for the Court to decide the case on its merits immediately instead of repeatedly sending it down to the same people who already decided the case in bad faith.

The approach you speak of might work properly if the appealed decision was an end banc one in the 9th Circuit. What I donít know is whether the followup en banc proceedings would also involve the same people or if the selection process would have to be re-done. For any other situation, itíll just be NAACP v Alabama all over again, but this time itíll involve many more cases, which means at least some of them will probably be dropped on the floor by SCOTUS, which means we lose.

No, SCOTUS would be morons to merely remand for reconsideration in light of the above. We already know exactly how that will play out in the general case. And so should they.



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I would love it if that was the plan from the justices. I just don't think they will do it. More cases would probably have been granted cert if that was the plan. I just don't see the justices taking NYSRPA, ruling on the merits, then waiting until 2021 to finish up the other 9+ cases they'll have stayed by end of this term.
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