Jackson v. SF (Ammo Ban; Locked Storage Reqts.): Cert DENIED 6/8/15

[kcbrown]

All I can say is they better be saving their powder for the mother of all slap-downs, and that better be reason for this denial. That happy event (should it occur) better foreclose all the fact patterns of every outrageous 2A cert denial of the past 5 years, starting perhaps with Woollard and certainly including Kachalsksy.

If not, I cannot imagine what besides the sharpening of pitchforks would remain in the constitutional playbook.

There is no "powder" to save. The members of the Court could have taken a carry case any time they were presented with one. What has changed between then and now?

Not a goddamned thing, that's what.

[LostInSpace]

Unless we get some respite from these kinds of decisions by SCOTUS this state will be, if it isn't already, a lost cause.

It has been clear for a while that SCOTUS will only do so much for the 2nd amendment. It will certainly allow a lot of regulation. Just look at the process and the cost of getting a permit to keep a handgun in one's home in NYC and the fact that no one is going to "save" New York residents from the system that exists there. There is a process to get a handgun, so handguns are not banned, so everything is OK. Even if SCOTUS were to rule for shall issue carry, NYC would still be able to have a very burdensome and expensive process for getting such a carry permit.

This means that once CA has a governor who will not veto the abolition of state preemption, at least some major cities will likely end up with rather more stringent regulations of firearms than is currently the case. SCOTUS was never going to protect CA from that possibility. Even if pigs fly some day and SCOTUS rules for shall issue carry, CA will be able to have regulations for getting a carry permit that are as onerous as its political system can deliver.

[kcbrown]

It's too bad your model blinds you to both legal and historical realities.

If my model "blinds" me to legal and historical "realities", then how is it that I have correctly predicted every single cert denial of a civil 2A case to date, save for NRA v BATFE (didn't see that one coming because I didn't realize at the time that we were dealing with was a wholesale withdrawal from the 2nd Amendment) and Kachalsky (which was the first).

A blind model is an incorrect model. An incorrect model makes incorrect predictions.

[wildhawker]

If my model "blinds" me to legal and historical "realities", then how is it that I have correctly predicted every single cert denial to date, save for NRA v BATFE (didn't see that one coming because I didn't realize at the time that we were dealing with was a wholesale withdrawal from the 2nd Amendment).

A blind model is an incorrect model. An incorrect model makes incorrect predictions.

I mean: your statement was wrong. Perhaps if you'd spend the time you'd take to write another post that doesn't matter and read a link I posted not long ago you'd learn something relevant.

[Libertarian71]

I think we can impute merits and intention at this point. There's no way the SF law doesn't run contrary to Heller etc.

The SCOTUS is taking pissant cases while standing by and watching lower courts rule directly contrary to them on the 2A. KC is correct, in my opinion.

A denial of certiorari is not an expression by the Supreme Court of the merits of the case, as the media often claims. The Supreme Court did not "uphold" or "let stand" the lower court decision. It simply declined to review the decision. This is a pet peeve of mine. Read more on this point here: http://www.washingtonpost.com/news/v...on-the-merits/

As Justice Frankfurter explained: "Inasmuch, therefore, as all that a denial of a petition for a writ of certiorari means is that fewer than four members of the Court thought it should be granted, this Court has rigorously insisted that such a denial carries with it no implication whatever regarding the Court's views on the merits of a case which it has declined to review. The Court has said this again and again; again and again the admonition has to be repeated. . . . The one thing that can be said with certainty about the Court's denial of Maryland's petition in this case is that it does not remotely imply approval or disapproval of what was said by the Court of Appeals of Maryland." Maryland v. Baltimore Radio Show, 338 U.S. 912, 917-19 (1950).

[Mulay El Raisuli]

No. A right that everyone agrees with, and which would not be a right absent that condition, is not a right at all. It is a privilege that everyone agrees with, as it is subject to the whims of the majority.

A right is only a right when it is exercisable despite the objections of the majority.

No, as rights go, this one is finished at the federal level. I warned you guys, but you Just. Wouldn't. Listen. Even now we still have some (e.g. IVC) who simply refuse to accept the reality that is right in front of them.

There's a small chance that you are wrong. Nichols says that SCOTUS will not grant cert unless there's a Circuit Split. And that would fit the facts.

But this is a VERY small chance.

I just hope it's not too late to put an Article V Convention into motion, because as of now, that it the only way we're going to get this as a Real Nationally-recognized Right. Everything else requires some kind of Pollyannaish sequence of events that only happens in movies. One can argue that the success of such a Convention would qualify on those terms as well, but absent that there are only two options remaining: acquiescence, or civil war.

Ignore this warning at the peril of your own liberties, gentlemen.

It isn't too late. But we do need the the Red states to accept the reality that giving some power is the ONLY way to save the union.


The Raisuli

[PSLguy]

I've long since given up following their laws.

Never will again, nor will my children.

Let them pass their laws.

[kcbrown]

Does that mean that one should no longer appeal any 2nd Amendment cases to SCOTUS? Does it mean one should not pursue any in the first place? How serious is the danger of getting an actual precedent-setting SCOTUS ruling against us and should one fear the consequences?

That is actually a very good question.

The evidence so far is that SCOTUS is simply unwilling to grant cert to a case, not that it is willing to go out of its way to reverse itself or to uphold a limit on the right. My hypothesis is predicated upon the notion that one or more of the Heller 5 got cold feet from Sandy Hook, but is unwilling to commit to actually burying the right. I figured it was Kennedy who got cold feet. It might be someone else, and might be someone else in addition, at that. Regardless, for issues of this magnitude, the Court isn't going to grant cert unless the count to five has already been done.

That can, of course, change. It will change if we get a change of composition of the Court. The next election is going to be the election that decides that.

My own general outlook is such that I consider you more or less an optimist,

!!!

and yet logic demands that if one takes a viewpoint as definitive as yours, one has to explore all the ramifications. And one also has to explore in depth how one may be wrong.

Absolutely.

Well, as hope goes, the only hope, and a faint one at that, that I can see is that the SF ordinance that led to Jackson can be seen as just regulation in the end. So you carry it in a holster, so you buy yourself a small case that can be opened quickly and put your assembled and loaded handgun in it while asleep. You can still defend yourself, so it ain't nothing but regulation. The fact that only two justices wanted cert points to that, since it seems unlikely we have fully lost three Heller justices. The problem is, if this is indeed just regulation, how is it anything more than regulation to ban a few "assault weapons" or limit the magazine capacity? Those are, after all, technical details and there are plenty of other guns out there one can buy.

Now, may issue carry outside the home is pretty much a ban for common folks, so one might say that it would not be the case of mere regulation and so SCOTUS might just throw the 2nd Amendment at the offenders on this issue. The problem is, it would take some serious political nerve to rule for shall issue carry in NY and DC. Does this SCOTUS really have that kind of nerve, even leaving aside the most-important issue of whether enough justices believe in shall issue carry in NYC even in principle? And do enough of them actually believe in it in principle?

The problem is that if they're not willing to take a case for the purpose of insisting that a firearm be accessible in the home for immediate confrontation, as Heller said, then what reason is there to believe that the Court would be willing to insist on backing the right outside the home?

Which is to say, if the Court isn't even willing to wet its little toe, why should we believe that it will be willing to dive into the water?

Worse, even if it were willing to dive in, why should we then expect it to give any carry case beyond that initial one anything other than the same treatment it has been giving all 2A cases to date?

But then, entirely shutting down 2nd Amendment-based litigation seems like quite a choice to make, so perhaps there are some good arguments against that step.

I'm not really arguing that we should be shutting down 2A based litigation. We can't know what can be protected until we try. I mean, look at Palmer, and look at Peruta. It's all in the luck of the draw! My model for the lower courts is precisely that what you get is dependent almost solely on who you get. And you can't know that going into it.

You can know your odds, however. As regards the 9th Circuit, my model says those odds are vanishingly small. If you don't get an unfavorable 3-judge panel, you'll almost certainly get an unfavorable en banc one. Jackson proves that the 9th Circuit is willing to kill the right in its crib, and Peruta proves that the 9th Circuit is willing to do whatever it takes to kill it. But if we somehow got both a favorable 3-judge panel and a favorable en banc panel (based on nominating party, odds of the latter are in the 2% range, and odds of the former are in the 22% range, so you're looking at a maximum chance of about 0.5% of winning both).

Against those odds, is it worth continuing? Given the costs, and the existence (joke that it may be) of stare decisis, perhaps not. But that depends largely on what alternatives remain, and whether or not continued litigation efforts help or hinder those alternatives. A real argument could be made that continued litigation will shine an ever brighter light on the corruption that is quite obviously rampant throughout the judiciary, and that doing so could well aid in making the next step, an Article V Convention, possible.


My message here is mainly with respect to expectations, and next steps. I've said for some time now that preparations need to be made for an Article V Convention, because there is no logical way for us to win in the judiciary with a Supreme Court that refuses to back its own decisions with swift and decisive action. It is my hope that this latest denial of cert makes such crystal clear.

Civil war is the last thing I want to see. But failure to win through an Article V Convention makes that the only thing left on the table.

[kcbrown]

I mean: your statement was wrong. Perhaps if you'd spend the time you'd take to write another post that doesn't matter and read a link I posted not long ago you'd learn something relevant.

I presume you refer to the possibility of Congress reasserting a requirement for SCOTUS to take certain cases (e.g., civil rights cases)?

If so, then who, exactly, do you think will be interpreting that law when the inevitable lawsuit regarding that law comes down the pike?

[Drivedabizness]

Jackson DOES NOT only apply to San Francisco.

It is now binding precedent in this Circuit. Look to locales all over CA, OR & WA (just off the top of my head) to begin offering all manner of blatant infringements. Because you can directly burden a 2A right and it really doesn't matter in 9CA.

Don't yell at me - I'm not the one who codified it.

[wildhawker]

Jackson DOES NOT only apply to San Francisco.

It is now binding precedent in this Circuit. Look to locales all over CA, OR & WA (just off the top of my head) to begin offering all manner of blatant infringements. Because you can directly burden a 2A right and it really doesn't matter in 9CA.

Don't yell at me - I'm not the one who codified it.

The facts do -- SF's regulation is pretty unique to SF. You're talking prospective acts, which is pretty reaching in terms of arguing for a grant.

[Sputnik]

It has been clear for a while that SCOTUS will only do so much for the 2nd amendment. It will certainly allow a lot of regulation. Just look at the process and the cost of getting a permit to keep a handgun in one's home in NYC and the fact that no one is going to "save" New York residents from the system that exists there. There is a process to get a handgun, so handguns are not banned, so everything is OK. Even if SCOTUS were to rule for shall issue carry, NYC would still be able to have a very burdensome and expensive process for getting such a carry permit.

This means that once CA has a governor who will not veto the abolition of state preemption, at least some major cities will likely end up with rather more stringent regulations of firearms than is currently the case. SCOTUS was never going to protect CA from that possibility. Even if pigs fly some day and SCOTUS rules for shall issue carry, CA will be able to have regulations for getting a carry permit that are as onerous as its political system can deliver.

Yes, despite my not wanting to believe it I rather think that what you say is true... we will not be protected from our own voters bad choices (ala 0bamacare). The bed is made and we will be sleeping in it as long as the current political climate prevails in CA.

[kcbrown]

The facts do -- SF's regulation is pretty unique to SF. You're talking prospective acts, which is pretty reaching in terms of arguing for a grant.

The dissent lays waste to the claim that the issue isn't "sufficiently ripe", and cites numerous cases where the Court granted cert under circumstances where there was no circuit split. I would have to review those cited cases to see if any of them involve a "unique" law, but it is almost certain that the Court has granted cert to some cases under identical legal circumstances.

In light of that, how is it relevant that SF's regulation is "unique"?

[wildhawker]

The dissent lays waste to the claim that the issue isn't "sufficiently ripe", and cites numerous cases where the Court granted cert under circumstances where there was no circuit split. I would have to review those cited cases to see if any of them involve a "unique" law, but it is almost certain that the Court has granted cert to some cases under identical legal circumstances.

In light of that, how is it relevant that SF's regulation is "unique"?

It's unique enough that perhaps the Heller 5 don't want to burn their political capital on it.

If the Court is as politically motivated as you suggest, then perhaps they're owed some leeway for being politically aware.

[kcbrown]

Jackson v. SF (Ammo Ban; Locked Storage Reqts.): Cert DENIED 6/8/15

It's unique enough that perhaps the Heller 5 don't want to burn their political capital on it.

What "political capital" do you suggest would have been (had they granted cert) expended here? What do you propose is being "saved" for use later?

If the Court is as politically motivated as you suggest, then perhaps they're owed some leeway for being politically aware.

Aware how? As applied here, how is it "politically wise" to refuse to enforce your own fundamental precedent? It's one thing to refrain from granting cert to a case that would break new ground. It's quite another to refuse to hear a case about precedent that you've already set.

In what way can this refusal possibly have any beneficial effects whatsoever as regards 2nd Amendment jurisprudence, unless the Court is so fractured that it would actually reverse its prior holding were it to grant cert?

Political motivation does not automatically translate to political wisdom, most especially when there are no consequences to those who are so motivated when they get things wrong.


Finally, if this is the outcome we can expect from the Court due to insufficient "political capital", then we're screwed, because it means that the Court is quite plainly unwilling to back its own precedent with action due to such being too "politically costly" and, therefore, the right is in effect dead because lower courts will simply run roughshod over it, all the while SCOTUS is unwilling to correct the situation.

No matter the reason, failure of SCOTUS to enforce its own precedent is exactly the same as destruction of the right, for the lower courts have shown themselves to be completely willing to destroy the right in the absence of such enforcement.