Drake v. Jerejian (NJ CCW) [cert denied 5/5]

[prometa]

If cases are held pending another case, is there (a) a statement that the case is held, (b) a break conferences the case is distributed for (i.e. it stops being distributed for a period of time, or (c) it just gets relisted many more times than the average case?

Wild speculation, but I would guess that if the Justices were holding Drake for Peruta, they'd only hold until a petition for en banc were decided. If en banc is denied, they'll grant Drake. If en banc is granted, they will deny Drake, wait for the ruling in Peruta to be decided, then grant Peruta. The only reason to follow that chain of events would be a fear that an en banc opinion on Peruta would be released almost simultaneously with a SCOTUS opinion on Drake, making things nothing but more confusing. The problem with that scenario is it creates a race condition as mentioned earlier in the thread: 9CA and SCOTUS could both end up waiting for each other. SCOTUS could just grant Drake and one party to Peruta could motion for a stay pending the Drake ruling (or the panel in Peruta could issue a stay sua sponte), resolving the issue of simultaneous release of conflicting opinions. And that's a lot faster than waiting for motions to intervene and petitions for en banc to be heard.

I still tend to guess mystery Justices 5 and 6 are reading the case more closely and trying to understand in detail both the circuit split and the issues at hand. It's easy to imagine a Justice not actively involved in firearms needing more time to come up to speed on the case once 4 other justices say "this is the appropriate vehicle--this is the one"

[wireless]

If cases are held pending another case, is there (a) a statement that the case is held, (b) a break conferences the case is distributed for (i.e. it stops being distributed for a period of time, or (c) it just gets relisted many more times than the average case?

Wild speculation, but I would guess that if the Justices were holding Drake for Peruta, they'd only hold until a petition for en banc were decided. If en banc is denied, they'll grant Drake. If en banc is granted, they will deny Drake, wait for the ruling in Peruta to be decided, then grant Peruta. The only reason to follow that chain of events would be a fear that an en banc opinion on Peruta would be released almost simultaneously with a SCOTUS opinion on Drake, making things nothing but more confusing. The problem with that scenario is it creates a race condition as mentioned earlier in the thread: 9CA and SCOTUS could both end up waiting for each other. SCOTUS could just grant Drake and one party to Peruta could motion for a stay pending the Drake ruling (or the panel in Peruta could issue a stay sua sponte), resolving the issue of simultaneous release of conflicting opinions. And that's a lot faster than waiting for motions to intervene and petitions for en banc to be heard.

I still tend to guess mystery Justices 5 and 6 are reading the case more closely and trying to understand in detail both the circuit split and the issues at hand. It's easy to imagine a Justice not actively involved in firearms needing more time to come up to speed on the case once 4 other justices say "this is the appropriate vehicle--this is the one"

I think this is the most logical reason for this being pushed two weeks. I believe justices 5/6 will come to the same conclusion as us once they do enough research. Ruling that carry is constitutional is a big deal. Regardless if the evidence shows it helping society, millions of people walking around with loaded weapons on public has some enherint danger.

Keep in mind that most justices don't spend their free time on pro 2a forums soaking up the truth. They are busy people with their own legal passions.

[Peaceful John]

If en banc is granted, they will deny Drake, wait for the ruling in Peruta to be decided, then grant Peruta.

Madigan. There is no certainty that Peruta will be appealed.

[ryan_j]

Madigan. There is no certainty that Peruta will be appealed.

Moore is gone. Can't appeal that one.

[Tincon]

I think this is the most logical reason for this being pushed two weeks. I believe justices 5/6 will come to the same conclusion as us once they do enough research. Ruling that carry is constitutional is a big deal. Regardless if the evidence shows it helping society, millions of people walking around with loaded weapons on public has some enherint danger.

Doesn't make sense, don't need a majority to grant cert.

[chuckdc]

nah... They're doing it just to give Calguns people fits.

[Bhart356]

I find it hard to believe the Supreme Court is waiting for Peruta. If anything it is the opposite. There is scant reason why Ninth Circuit Panel has delayed a decision on the AG's Petition for Intervention. Arguments have been submitted and there is a tacit invitation by Michel and Associates to allow her into the case. Instead, the Panel is sitting on the decision. The most plausible explanation is they are waiting to see what happens with Drake. There is no reason for them to go any further until they find out if Drake will be granted certiorari.

Is there a race condition between the Supreme Court's decision to hear Drake and the Ninth CA's further action on Peruta? Again, I find this hard to believe. Judges communicate with one another. Even if they don't, they are capable of the same observations and logic as takes place in this forum. The Supreme Court justices would know the Ninth is waiting to see what will happen with Drake. And the Ninth knows that the Supreme Court knows.

I subscribe to the theory that the Supreme Court is seriously discussing Drake and is trying to frame the question. If I am not mistaken, the framing of the question takes place during Conference. The justices will want an unambiguous question that they can rule for or against. During the process of defining "what is the question" it is inevitable that individual justices are showing some of their cards.

Therefore I believe the game is on to build a majority.

[aBrowningfan]

nah... They're doing it just to give Calguns people fits.

^^^This!

[1JimMarch]

If en banc is granted, they will deny Drake, wait for the ruling in Peruta to be decided, then grant Peruta.

Nope, wait, here's the problem: if they deny Drake and then us gunnies win "all the way" in Peruta in the 9th Circus (en banc or whatever) there is no guarantee that the anti-gunners will appeal to the Supremes. They didn't do so in Moore v. Madigan, which is what somebody was obliquely referring to a few posts back. The grabbers don't want a carry case any time soon, not while the Heller/McDonald blocks are still basically intact and us gunnies win on a predictable 5:4 majority.

Since there's no guarantee of another carry case coming before them (ever?) The Nine Robes In DC are under pressure to decide on Drake. I think they'll take it.

[wireless]

Doesn't make sense, don't need a majority to grant cert.

It makes perfect sense. The 4 want to make sure they have the 5th vote. What doesn't make sense is the four going into this with no idea what the other 5 or possibly 6 will do.

[Bhart356]

Under the right circumstances Kagan will go pro-2A. During her confirmation hearings she was clear:

“...the grounded historical approach adopted in that case (and even in the dissents) would grant no relevance to arguments from comparative law in defining the scope of the Second Amendment right..."

“...there is no question, after Heller, that the Second Amendment guarantees individuals the right to keep and bear arms and that this right, like all others in the Constitution, provides strong although not unlimited protection against government regulation.”

“There is no question, after Heller, that the Second Amendment guarantees Americans ‘the individual right to possess and carry weapons in case of confrontation.”

http://www.examiner.com/article/supreme-court-nominee-finds-no-fault-with-heller-decision

More compelling, Kagan established her academic reputation publishing articles about the First Amendment. The First and Second Amendments are very similar in that they both prevent infringement on natural rights. Although post-Heller Second Amendment case law is in its infancy, there is considerable case history on the First Amendment. Most of this case law errs toward protection of the right.

Post-Heller Second Amendment case law is a veritable blank sheet of paper compared to First Amendment. Wouldn't this be a tempting opportunity for Kagan to put her mark on history? And hasn't the First Amendment given her all the guidance she needs?

[Sleighter]

Tagged for next weeks relisting.

[taperxz]

It makes perfect sense. The 4 want to make sure they have the 5th vote. What doesn't make sense is the four going into this with no idea what the other 5 or possibly 6 will do.

Its probably not that cut and dry. If it was, there would be no reason for oral arguments.

[putput]

John G. RobertsAntonin ScaliaSamuel Anthony AlitoClarence ThomasRuth Bader GinsburgElena KaganAnthony M. KennedyStephen G. BreyerSonia Sotomayor

[speedrrracer]

Under the right circumstances Kagan will go pro-2A. During her confirmation hearings she was clear:[snip]

Means nothing at all. In Sotomayor's senate hearing, she said much the same drivel, then voted against McDonald, even though Heller was already precedent.

Not saying it's physically impossible Kagan is pro-2A, but it seems quite a stretch that an Obama-appointed, liberal, female from NYC is going to vote pro-2A.