Peņa v. Cid (Handgun Roster) **CERT DENIED 6-15-2020**

[kcbrown]

That's probably the closest to reality that the judge could get, but I believe that microstamping makes that somewhat of a stretch because *no semi auto* handgun can be added to the roster - a categorical ban with the only escape clause being the grandfathered handguns. This in turn makes the "safety" argument difficult since allegedly "unsafe" handguns remain on the roster.

And when there exist no handguns on the roster as a result, then, and only then, would the court (in the circumstances you asked me to comment on) decide in our favor.

You seem to presume here that courts have to make their decision on the basis of possible futures. They don't, and the proof of that is in the dismissal of OOIDA v Lindley for lack of "standing", on the basis that the (not merely likely, but inevitable) injury in question had not happened yet.

If courts can dismiss for lack of standing due to the question in front of them being one of a certain future rather than an actual present, then they can (and, when they wish to, will) most certainly ignore possible futures when considering cases before them.

However, you are probably right that *if* she is going to uphold the roster, she will use *precisely* the method you describe.

Yep. That's the big "if". Everything hinges on it. In any case, my entire point is that, as illustrated, the court can decide against us, so because such a thing is possible, it automatically comes down to whether or not it wants to. That is a strictly matter of preference and of politics, not law.

[kcbrown]

The battle for "arms" is just beginning, where the lower courts are stumbling all over in trying to define what arms are and aren't, what types of sales and registration burdens can and cannot be had, etc. Since Pena is in this last category, I wouldn't read too much into what the lower courts are doing - it went that way for *every* other type of battle we fought and eventually won.

Well, sort of. Heller was won at the appellate court level, but it was lost at the district level. If by "lower courts" here you're limiting yourself to the district courts, then I must agree.

[kcbrown]

We are fighting on several unrelated fronts.

The battle for "keep" was won, so we are in the cleanup phase where violations on "possession in the home" are being cleaned up, such as striking down of the various S.F. ordinances.

And how well is that cleanup action going? We lost Jackson v SF.

[arrix]

IANAL, but doesn't the roster go against the Sherman Anti-Trust Act?

[wildhawker]

And how well is that cleanup action going? We lost Jackson v SF.

SCOTUS or bust.

[taperxz]

SCOTUS or bust.

Great, now you have opened up the dialogue with KC on how the SC acts and will act on 2A cases. Something he claims they are now done with.LOL

[kcbrown]

Great, now you have opened up the dialogue with KC on how the SC acts and will act on 2A cases. Something he claims they are now done with.LOL

I'm pretty sure he's fully aware of my current thinking on SCOTUS.

Even if I'm not entirely right on SCOTUS, it should be plain to all by now that SCOTUS cannot be relied upon to right the ship.

That means we must concentrate on winning at the appellate level. We should, for our purposes, presume that the appeals courts, and not SCOTUS, are the "courts of last resort".

[wildhawker]

I'm pretty sure he's fully aware of my current thinking on SCOTUS.

Even if I'm not entirely right on SCOTUS, it should be plain to all by now that SCOTUS cannot be relied upon to right the ship.

That means we must concentrate on winning at the appellate level. We should, for our purposes, presume that the appeals courts, and not SCOTUS, are the "courts of last resort".

For your consideration: "What Does Noel Canning Have To Do With The Second Amendment?"

http://www.firearmspolicy.org/2014/06/what-does-noel-canning-have-to-do-with-the-second-amendment/

-Brandon

[IVC]

And how well is that cleanup action going? We lost Jackson v SF.

Here are two important facts that are often ignored when talking about Jackson: (1) The "lock" requirement has an exception for handguns carried on one's person, and (2) It's the *sale* of hollow point ammunition that is prohibited, not possession or use (yet).

Thus, Jackson is not a "keep" case. It's much more along the lines of the "third front" - battle to determine what "arms" are and what types of restrictions can be put on sale, shape and look of firearms.

[kcbrown]

Here are two important facts that are often ignored when talking about Jackson: (1) The "lock" requirement has an exception for handguns carried on one's person,

Hence, it's strictly about "keep", not "bear"...

and (2) It's the *sale* of hollow point ammunition that is prohibited, not possession or use (yet).

One cannot possess that which one cannot first acquire. So is it expected that the hollow point ammunition will simply magically appear out of the aether?

Thus, Jackson is not a "keep" case.

No, it is a "keep" case. It's just not a case about bans on "keep".

[kcbrown]

For your consideration: "What Does Noel Canning Have To Do With The Second Amendment?"

http://www.firearmspolicy.org/2014/06/what-does-noel-canning-have-to-do-with-the-second-amendment/

-Brandon

That case should be a dire warning to all here for at least a couple of reasons.

For one, it illustrates the folly of believing that "dicta" is irrelevant. From Scalia's concurrence:

Ignoring our more recent precedent in this area, which is extensive, the majority relies on The Pocket Veto Case, 279 U. S. 655, 689 (1929), for the proposition that when interpreting a constitutional provision “regulating the relationship between Congress and the President,” we must defer to the settled practice of the political branches if the provision is “‘“in any respect of doubtful meaning.”’” Ante, at 7; see ante, at 8, 16, 23, 33. The language the majority quotes from that case was pure dictum. The Pocket Veto Court had to decide whether a bill passed by the House and Senate and presented to the President less than 10 days before the adjournment of the first session of a particular Congress, but neither signed nor vetoed by the President, became a law. Most of the opinion analyzed that issue like any other legal question and concluded that treating the bill as a law would have been inconsistent with the text and structure of the Constitution. Only near the end of the opinion did the Court add that its conclu*sion was “confirmed” by longstanding Presidential practice in which Congress appeared to have acquiesced. 279 U. S., at 688–689. We did not suggest that the case would have come out differently had the longstanding practice been otherwise.

(emphasis mine)


For another, Kennedy joined the majority opinion in that case, not the concurrence. Kennedy here was content to ignore the text, tradition, and history of the Constitution in favor of the more typical handwaving that pervades the judiciary today, and which the majority in this case engages in.


Kennedy is quite clearly unreliable, perhaps to the point that he cannot be relied on to uphold even the Heller-like decision that is Peruta. If you wonder why SCOTUS has refused to grant cert to case after case involving the 2nd Amendment, one need only look at cases like this to understand. It is my view, on the basis of evidence such as this, that neither side believes it can count on his opinion. When Peruta finally makes its way to the Supreme Court, as it surely will, you should not be surprised in the slightest if the Supreme Court denies cert to it regardless of whether or not it had been overturned en banc at that point.

[jar]

Supplemental briefing filed yesterday. Attached is SAF'scaed-03307522334.pdf brief.

[RobertMW]

Supplemental briefing filed yesterday. Attached is SAF's[ATTACH]338547[/ATTACH] brief.

Plain and simple read, briefly restates the facts of why the individual "safety devices" and micro-stamping do not materially further a states cause.

A good independent name to have attached to the case, in my opinion at least. Can't get much more factual than the group that has standardized firearms specs for the last 100 years.

[wireless]

Kennedy is quite clearly unreliable, perhaps to the point that he cannot be relied on to uphold even the Heller-like decision that is Peruta. If you wonder why SCOTUS has refused to grant cert to case after case involving the 2nd Amendment, one need only look at cases like this to understand. It is my view, on the basis of evidence such as this, that neither side believes it can count on his opinion. When Peruta finally makes its way to the Supreme Court, as it surely will, you should not be surprised in the slightest if the Supreme Court denies cert to it regardless of whether or not it had been overturned en banc at that point.

Well if cert only requires four judges the chances it will be taken are likely IMO. If Kennedy is as much as a wild card as you claim, then the anti/pro group of judges will have nothing to lose if their side doesn't come out ahead in the 9th's final ruling. It's that or risk a presidential election and new judges. The current court's make up is the best chance the losing side has.

[kcbrown]

Well if cert only requires four judges the chances it will be taken are likely IMO. If Kennedy is as much as a wild card as you claim, then the anti/pro group of judges will have nothing to lose if their side doesn't come out ahead in the 9th's final ruling. It's that or risk a presidential election and new judges. The current court's make up is the best chance the losing side has.

That doesn't follow at all. For the antis, the 2nd, 3rd, and 4th circuits remain anti-rights strongholds. If their side loses at the Supreme Court, then they lose all of those areas, plus any areas (like the 5th Circuit) that might side with them but which have not yet taken a case on the subject.

And clearly, if the pro-rights side loses, then it will have the effect of eliminating 2nd Amendment protection in public at the federal level, so there is quite a lot to be lost there as well.

No, with Kennedy being such an uncertainty, game theory works in favor of both sides leaving 2nd Amendment cases alone.