Kachalsky - CA2 Decision is out - Loss

[yellowfin]

An interesting question is whether they'll rule strongly enough to minimize the nullification of the ruling by deliberate noncompliance of the lower courts following it.

[kcbrown]

An interesting question is whether they'll rule strongly enough to minimize the nullification of the ruling by deliberate noncompliance of the lower courts following it.

There is no such kind of ruling, short of one in which they directly threaten the lower court judges with jail or something. I am unaware of any case in the history of the Court in which they issue such a ruling against lower court judges (but that isn't necessarily saying much, as my knowledge of SCOTUS cases in general is so far from encyclopedic that it might be regarded as laughably vacant).

[yellowfin]

They could make such a ruling by stating the possible rebuttals, excuses, and sidesteps and thoroughly squash them explicitly one by one. They might be in the habit of issuing airtight rulings but it can be done if they're willing and thinking ahead.

[yellowfin]

Might not be, that is.

[Window_Seat]

It doesn't necessarily have to be a Kachalsky RVR (reverse vacate remand), it could be any one of six other U.S. Court of Appeals cases that go to SCOTUS on certiorari. Remember, these cases are designed for SCOTUS.

Erik.

[yellowfin]

Well, it might not have to be one vs. another in theory, but I concur with kc's conclusion that the worst offending states will need to be told specifically THIS MEANS YOU AND NO FURTHER SCREWING AROUND, I DON'T CARE IF YOU DON'T LIKE IT, ISSUE THE DAMN PERMITS TODAY. I just hope they see this situation for what it is and no more of this "nothing in this shall cast doubt on longstanding..." nonsense.

[SilverTauron]

I hate to be Mr. Pessimist,but it must be said all the same:attaching concealed carry to the 2nd Amendment as a fundamental right just ain't gonna fly.Our culture is to regressive for a lower court to do anything different than observe the status quo.That norm is this:basically,you can own a gun AT HOME as an exercise of your 2nd Amendment rights,but once you cross the property line you're in the public domain,where Big Government has the " duty" to ensure public safety at the expense of individual rights if the same government deems it necessary.

Since public safety is a "government prerogative" ,it can regulate gun use and possession all the way up to a complete CCW ban if it feels the need. If a total prohibition akin to Illinois' passes legal muster, then naturally discretionary issue becomes immune to legal challenge. Equal rights and treatment under the law becomes an irrelevant canard when carrying in public is a government issued privilege instead of a codified right as gun ownership at home is.

[stix213]

Frankly, I'm very surprised they issued an opinion this "early". This means we can appeal to SCOTUS immediately. And this is an Alan Gura case, so it is well-targeted.

Now, that said, it should be clear to all of you by now that the lower courts are going to continue to use the Supreme Court as the effective "court of first resort" and act, merely, as delaying and expense-adding mechanisms for getting a real decision (see Osterweil v Bartlett). Even after the Supreme Court weighs in on the issue of public carry, you can expect cases that are the same as this one in all the ways that matter to have to go to SCOTUS for resolution. SCOTUS will be forced to rule on the merits of all those cases, as was the case in NAACP v Alabama.


Regardless, it is very heartening that the 2nd Circuit gave us the "loss" and thus give us the opportunity to appeal to SCOTUS for a ruling. A certain quote comes to mind on this. What was it? Ah, yes: "please, please don't throw me into that briar patch!".

So does this mean Kachalsky just jumped to the head of the pack and could even go before SCOTUS this session if we (Gura, etc) act quickly?

Do I detect a small amount of uncharacteristic optimism in your post KC?

On all the other similar cases that will continue to be kicked up to SCOTUS after a "bear arms" decision, wouldn't SCOTUS likely just quickly reverse & remand those rather than basically hearing the same case over again?

I hate to be Mr. Pessimist,but it must be said all the same:attaching concealed carry to the 2nd Amendment as a fundamental right just ain't gonna fly.Our culture is to regressive for a lower court to do anything different than observe the status quo.That norm is this:basically,you can own a gun AT HOME as an exercise of your 2nd Amendment rights,but once you cross the property line you're in the public domain,where Big Government has the " duty" to ensure public safety at the expense of individual rights if the same government deems it necessary.

Since public safety is a "government prerogative" ,it can regulate gun use and possession all the way up to a complete CCW ban if it feels the need. If a total prohibition akin to Illinois' passes legal muster, then naturally discretionary issue becomes immune to legal challenge. Equal rights and treatment under the law becomes an irrelevant canard when carrying in public is a government issued privilege instead of a codified right as gun ownership at home is.

Then what exactly does "bear arms" refer to? I believe SCOTUS will say banning concealed carry is just fine...... as long as alternative forms of carry for all law abiding people are available.

[OleCuss]

I hate to be Mr. Pessimist,but it must be said all the same:attaching concealed carry to the 2nd Amendment as a fundamental right just ain't gonna fly.Our culture is to regressive for a lower court to do anything different than observe the status quo.That norm is this:basically,you can own a gun AT HOME as an exercise of your 2nd Amendment rights,but once you cross the property line you're in the public domain,where Big Government has the " duty" to ensure public safety at the expense of individual rights if the same government deems it necessary.

Since public safety is a "government prerogative" ,it can regulate gun use and possession all the way up to a complete CCW ban if it feels the need. If a total prohibition akin to Illinois' passes legal muster, then naturally discretionary issue becomes immune to legal challenge. Equal rights and treatment under the law becomes an irrelevant canard when carrying in public is a government issued privilege instead of a codified right as gun ownership at home is.

I think that as the SCOTUS is currently constituted that you are wrong. There was obvious interest last session in taking a case to clean things up. The cases, however, were criminal and not clean.

The "Heller 5" seems likely to take a case and to issue a ruling which will be more consistent with the proper exercise of our rights than the circuit courts have been willing to allow. It won't be as good as I would like, but it is difficult to read Heller 1 and McDonald without thinking that they wanted a more robust right to be recognized.

[IVC]

Equal rights and treatment under the law becomes an irrelevant canard when carrying in public is a government issued privilege instead of a codified right as gun ownership at home is.

Not really. If it worked that way, there would still be segregation in some parts of the deep south. Equal protection is 14A and is independent of any 2A argument.

If the rest of your argument is to stand, the state would have to ban carry completely, or allow similar people to carry regardless of their political connections.

[SilverTauron]

The "Heller 5" seems likely to take a case and to issue a ruling which will be more consistent with the proper exercise of our rights than the circuit courts have been willing to allow. It won't be as good as I would like, but it is difficult to read Heller 1 and McDonald without thinking that they wanted a more robust right to be recognized.

"Robust" is in the eye of the beholder. The "Heller 5" may be interested in taking a carry case so as to clarify what the " well regulated" portion of the 2nd Amendment precisely means. This can be anything from carry open & concealed being an absolute civil right, to concealed carry being a government issued privilege subject to unlimited regulation at State, local, and Federal levels in the name of public security.

Then what exactly does "bear arms" refer to? I believe SCOTUS will say banning concealed carry is just fine...... as long as alternative forms of carry for all law abiding people are available.

I doubt they care about alternative forms of anything. Like it or not the judicial precedent is that public safety is a government prerogative-and few things are more relevant to public safety than the carrying of personal weapons. A consistent ruling is also impossible because of cultural differences between the states; a ruling of absolute carry rights will royally offend millions of urban people and force the rewrite of a metric sh-t ton of gun regulations.

By comparison, a ruling that A) states can determine the matter at their discretion or B) carry nationwide is an activity subject to regulation without limit due to the "well regulated militia" clause maintains the status quo, upsets fewer people,and clarifies the issue .

Its relevant to note that culturally speaking VERY few people actually want carry to be considered a civil right in the same manner that gun ownership period is; the theme being that while a rifle over the fireplace is kosher, that same gun owner better ask permission from SOMEONE before walking out the door with a pistol. Heck, many gun owners believe CCW shouldn't even be an option without a state mandated training process-and a SCOTUS ruling for absolute carry rights would render such regs unconstitutional.

[SilverTauron]

Not really. If it worked that way, there would still be segregation in some parts of the deep south. Equal protection is 14A and is independent of any 2A argument. .

Good point , and this is true in the subject of civil rights law.

However,I direct you to the current situation at the University of Colorado where gun owners very much are "segregated" from the rest of the student body by being compelled to stay in a separate dormitory.

Another example are weapons permits in NYC. Wealthy people and politically connected residents can obtain CCW permits quite easily, while the average New Yorker has no chance in he-l of ever getting one.

Where firearms are concerned, it would seem "equal protection" is all but lip service.

If the rest of your argument is to stand, the state would have to ban carry completely, or allow similar people to carry regardless of their political connections.

A simple way out of this conundrum would be to punt it back as a states rights issue. Put simply SCOTUS says its a state's right to decide how its residents define the right to keep and bear arms, and that's that. Places which respect the RKBA will of course continue as usual, while repressive regimes in NJ and California will hit the gas pedal on IL-style CCW bans. Note carefully that in Illinois politicians are deputized as "reserve officers" so as to dodge the state carry prohibition.

[IVC]

Its relevant to note that culturally speaking VERY few people actually want carry to be considered a civil right in the same manner that gun ownership period is; the theme being that while a rifle over the fireplace is kosher, that same gun owner better ask permission from SOMEONE before walking out the door with a pistol.

The point of civil rights is that it doesn't matter what people think.

Arguably more important consequence of 2A being a recognized civil right is that those who tend to support and talk about civil rights the most also tend to hate guns and the gun culture the most. The same irony as when Google complains China is restricting them, while at the same time arbitrarily restricting gun sales themselves.

It's just a matter of time before this hypocrisy becomes too obvious to those who have "cultural unacceptance" of concepts they don't like, while pretending to be civil rights activists and open to all ideas.

[IVC]

However,I direct you to the current situation at the University of Colorado where gun owners very much are "segregated" from the rest of the student body by being compelled to stay in a separate dormitory.

Patience. This is an extremely new development and it has already received a lot of attention precisely for the "segregation" aspect. It takes time to untangle a big mess.

Note carefully that in Illinois politicians are deputized as "reserve officers" so as to dodge the state carry prohibition.

Heh. Look at the Ajax thread about "reserve officers" in Montana as a way to use LEOSA and carry in all 50 states. Funny how humans always find a way to get around an injustice, even if they pretend publicly to support it...

[AyatollahGondola]

A member of the "right" wrote this terrible opinion, despite indicating at oral argument that he agreed with us.

The higher a person achieves in appointed or elected position, the less significant their personal past affiliations and stated beliefs become. Even the great messiah obama himself has disappointed his many followers and supporters at "people" level by enabling big banks and finance institutions, furthering the war(s), and signing bills into law like NDAA. And his wishy washy words on gay marriage. Gun rights too for that matter.
The power at the top at this point, although limited in size, is positioned like a great lever.