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2nd Amend. Litigation Updates & Legal Discussion Discuss California 2A related litigation and legal topics here. All advice given is NOT legal counsel.

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  #441  
Old 07-31-2018, 12:59 PM
mrrabbit mrrabbit is offline
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Originally Posted by Chewy65 View Post
Isn't the Cal Supreme bound by the ruling of a 9th Circuit panel on a federal question?
Believe so...

As to the abilty to toss a case to a state's Supreme Court, it has to be on an issue related to state laws, policy NOR on something the state has already conceded...or something like that.

My guess is, Nichols has already addressed this "potential mine"
in the CA9 minefield in his briefs/filings/FRAPs.

=8-)
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  #442  
Old 07-31-2018, 1:15 PM
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Originally Posted by mrrabbit View Post
Believe so...

As to the abilty to toss a case to a state's Supreme Court, it has to be on an issue related to state laws, policy NOR on something the state has already conceded...or something like that.

My guess is, Nichols has already addressed this "potential mine"
in the CA9 minefield in his briefs/filings/FRAPs.

=8-)
Wrong answer. The California Supreme Court is bound only by decision of the SCOTUS. Here is a classic example: under decisions of the California Supreme Court, the County Sheriffs are state actors, and hence immune from liability under the 11th Amendment for civil rights clams asserted under 42 USC section 1983. The Ninth Circuit, to the contrary, has always held that sheriffs are not state actors but local actors who have no such immunity. On the other hand, the Ninth Circuit is bound by decisions of the California Supreme Court as to issues of state law.
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  #443  
Old 07-31-2018, 1:21 PM
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Originally Posted by mrrabbit View Post
From my post in Young v. Hawaii thread:

Something of note, which I'm going to cross post in Nichols v. Brown Update thread as well:

A CA9 panel can avoid a binding precedent from another panel by requesting the California State Supreme Court take up their case on Cert.

It's a thorny issue, and questionable - AND has been done before - but an activist judge or panel in the Nichols case can toss it to the California State Supreme Court in an attempt to dodge the Young v. Hawaii Panel decision.

=8-P
I sure hope you are not an attorney, since you are wrong yet again. The Ninth can ONLY send a case to the California Supreme Court to decide issues of STATE law. Last I checked, the Second Amendment raises issues solely under the US Constitution, and thus the question as to whether there is a [I]federal[I] right to carry outside the home (imposed on the states by McDonald) is a uniquely federal question. In Young, the first issue, the existence of a right, is a federal question, the second issue was whether the Hawaii law contravened the second amendment right, a question of applying the federal right to state law.
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  #444  
Old 07-31-2018, 1:27 PM
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Originally Posted by TruOil View Post
I sure hope you are not an attorney, since you are wrong yet again. The Ninth can ONLY send a case to the California Supreme Court to decide issues of STATE law. Last I checked, the Second Amendment raises issues solely under the US Constitution, and thus the question as to whether there is a [I]federal[I] right to carry outside the home (imposed on the states by McDonald) is a uniquely federal question. In Young, the first issue, the existence of a right, is a federal question, the second issue was whether the Hawaii law contravened the second amendment right, a question of applying the federal right to state law.
PAY ATTENTION!

ESPECIALLY AFTER QUOTING A PREVIOUS POST!

=8-|
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  #445  
Old 07-31-2018, 1:28 PM
TruOil TruOil is offline
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Originally Posted by mrrabbit View Post
They are bound.

It's not a statement of what they'll do, it's a rule of what's expected. Sure they can go "rogue". We never said otherwise.

=8-|
Actually you said very specifically that another panel IS BOUND, and that someone else posted a citation to the rule.....Still waiting for that citation....But from this response, I gather you agree that no such written "rule" exists. Which is of course why all the other ccw cases that were stayed were not dismissed until after the en banc Peruta decision--because no other panel was "bound" to follow Peruta I even if that other panel disagreed with the decision.
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  #446  
Old 07-31-2018, 1:30 PM
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Originally Posted by TruOil View Post
Actually you said very specifically that another panel IS BOUND, and that someone else posted a citation to the rule.....Still waiting for that citation....But from this response, I gather you agree that no such written "rule" exists. Which is of course why all the other ccw cases that were stayed were not dismissed until after the en banc Peruta decision--because no other panel was "bound" to follow Peruta I even if that other panel disagreed with the decision.
And again...

PAY ATTENTION!

(Hint: You're in two threads on the same subject.)

=8-(
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  #447  
Old 07-31-2018, 1:45 PM
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Originally Posted by TruOil View Post
Actually you said very specifically that another panel IS BOUND, and that someone else posted a citation to the rule.....Still waiting for that citation....But from this response, I gather you agree that no such written "rule" exists.
Why wait for someone else to do the research you should have done before you said Michel was "clearly wrong"? lol. Do a Lexis search for "law of the circuit rule" and case name "Parker" then report back. Or just go to the ninth circuit opinion page and find the US v Parker opinion from 2011 and cut and paste the paragraph about the "law of the circuit rule." Don't be lazy.
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  #448  
Old 07-31-2018, 3:42 PM
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Originally Posted by TruOil View Post
I sure hope you are not an attorney, since you are wrong yet again. The Ninth can ONLY send a case to the California Supreme Court to decide issues of STATE law. Last I checked, the Second Amendment raises issues solely under the US Constitution, and thus the question as to whether there is a [I]federal[I] right to carry outside the home (imposed on the states by McDonald) is a uniquely federal question. In Young, the first issue, the existence of a right, is a federal question, the second issue was whether the Hawaii law contravened the second amendment right, a question of applying the federal right to state law.
Prohibition on open carry is a state law, last I looked.
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  #449  
Old 07-31-2018, 3:51 PM
spalterego spalterego is offline
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Prohibition on open carry is a state law, last I looked.
Yes, but whether that state law violates the 2nd Amendment is a question of federal law.
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  #450  
Old 07-31-2018, 6:44 PM
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Is it?
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  #451  
Old 07-31-2018, 7:52 PM
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Originally Posted by TruOil View Post
Wrong answer. The California Supreme Court is bound only by decision of the SCOTUS. Here is a classic example: under decisions of the California Supreme Court, the County Sheriffs are state actors, and hence immune from liability under the 11th Amendment for civil rights clams asserted under 42 USC section 1983. The Ninth Circuit, to the contrary, has always held that sheriffs are not state actors but local actors who have no such immunity. On the other hand, the Ninth Circuit is bound by decisions of the California Supreme Court as to issues of state law.
You are correct. See "GIMME 5 - WHAT EVERY LAWYER SHOULD KNOW ABOUT STARE DECISIS"


Quote:
State courts applying federal law are
bound by decisions of the U.S. Supreme
Court.
(Elliott v. Albright (1989) 209
Cal.App.3d 1028, 1034.) But they are
not bound by district or circuit court
decisions
- although such rulings are
entitled to "substantial deference." (Yee
v. City of Escondido (1990) 224 Cal.App.3d
1349, 1351.) Finally, federal court decisions
on state law are not binding on
state courts. (Choate v. County of Orange
(2000) 86 Cal.App.4th 312, 327-328.)
Emphasis in bold added.

Last edited by Chewy65; 07-31-2018 at 8:00 PM..
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  #452  
Old 07-31-2018, 10:33 PM
TruOil TruOil is offline
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Originally Posted by FABIO GETS GOOSED!!! View Post
Why wait for someone else to do the research you should have done before you said Michel was "clearly wrong"? lol. Do a Lexis search for "law of the circuit rule" and case name "Parker" then report back. Or just go to the ninth circuit opinion page and find the US v Parker opinion from 2011 and cut and paste the paragraph about the "law of the circuit rule." Don't be lazy.
OK, you are correct, as long as you concede as well that the "rule" is fraught with exceptions, which is what one learns when one follows back the citations.
Any way, the result in Nichols is not a foregone conclusion, since what is actually being appealed is the denial of a temporary injunction. That, as we can certainly all agree, is judged under an abuse of discretion standard. Even if the panel is bound to conclude that the 2A extends beyond the home (which as I recall the State conceded in the Peruta oral argument), what has been gained when Nichols does not challenge any of the restrictions on the right to carry in public? As discussed previously, the California GFSZA and the exclusion of public buildings makes it virtually impossible to carry outside the home except in one's front yard. [Leaving aside that scary and probably wrong Superior Court Appeals panel decision that concluded that an unfenced yard is "quasi public" property where carry can be banned.]
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  #453  
Old 07-31-2018, 11:13 PM
mrrabbit mrrabbit is offline
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I want to thank everyone for actually reading my links, and going through them and picking up the subtle changes that have occurred over the years in the 9th's "version" of Horizontal Stare Decisis.

(You too TruOil . . . =8-) )


In politics, these subtle changes are all too often simply the result of "elitist statists" who are simply determined that things are going to be as "they see fit". I.e., to hell with the rules and us peons.

I've already have had several people contact me privately via my own email server informing that a few cases recent and current are already showing indications that a heavy hand doesn't give a damn about the Cert rules to State Supreme Courts, and who must follow which precedents between the State and Federal level courts. Not going to list them, because one way or another, someone will figure out who is talking to me and who is saying what.

Private emails are private emails...

For the last few days - as an optimist and someone who tries to trust his fellow human being, I was kinda going with the various justices and panels following the rules, recognizing that there is such a thing as overplaying a hand, pushing BUT not undermining their agenda....with some caution of course...

But as many called it, being more pessimistic and less trusting than I, the "heavy hand" doesn't give a damn and appears to be going ahead and risking cert to the Supreme Court . . . as noted by Wolfwood's notice of the other parties request for extension and what appears to be an eye to going En Banc. Assuming I read Wolfwood's update correctly, they are looking to En Banc.

Correct me if I'm wrong...

=8-P
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  #454  
Old 08-01-2018, 3:14 AM
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Originally Posted by CurlyDave View Post
You give them too much credit.

As much as it would ultimately benefit the left, creation of a state-wide shall-issue system is not possible for them. Even if it allows them to put in all sorts of unreasonable delays and disqualifications.
Then these bozos risk having shall-issue carry becoming the law of the land in D.C. and New York City.

Back East, they really don't care if someone carries in Oxnard. Seeing someone carry on Seventh Avenue or M Street is a very different matter.

Cases are decided politically. The law and legal methodology are used as a veneer for the desired outcome.
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  #455  
Old 08-01-2018, 7:23 AM
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OK, you are correct, as long as you concede as well that the "rule" is fraught with exceptions, which is what one learns when one follows back the citations.
Oh, now that you've done the research (with some help) there actually is a rule but it's "fraught" with exceptions, is that right? lol you're incorrigible. Has an en banc panel overruled Young? Has the Supreme Court overruled Young? Is there intervening controlling authority casting doubt on Young? Under which "exception" specifically would Young's salient holding not be binding on another panel?
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  #456  
Old 08-01-2018, 1:40 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
Oh, now that you've done the research (with some help) there actually is a rule but it's "fraught" with exceptions, is that right? lol you're incorrigible. Has an en banc panel overruled Young? Has the Supreme Court overruled Young? Is there intervening controlling authority casting doubt on Young? Under which "exception" specifically would Young's salient holding not be binding on another panel?
As you already know, the case you cited is not published, and therefore only persuasive authority. The case IT cites isn't controlling either, as it merely cites the "rule" without analysis or discussion. When you finally get back to the case the latter cites, you find a morass which says that the "rule" is subject to exception. As an attorney, you are fully aware that a court will "distinguish" any case it finds contrary to its view, or find some reason to avoid it.
As a separate matter, the only justification for the rule is to have "stability" in the law. In other words, the court attempts to write its decisions "in stone," no matter how ridiculous or outdated a decision has become. I am sure you know as well that California state courts follow no such rule, except as to decisions of higher courts, and there are innumerable opinions where Division X of the First District Court of Appeal will disagree with an opinion of Division Y of the same court. If it were not for disagreements between districts or divisions, the law could not evolve. And which it is why attorneys cannot be sanctioned for arguing that a law or precedent should be overturned or change.

I didn't follow it any further back than that.
Yes, Young is the only case on point in the circuit. But it is also true that it isn't final as to that court, and is subject to reversal by en banc or cert proceedings. Are you suggesting that it is binding notwithstanding its lack of finality? Or instead, shouldn't it be treated as no more than persuasive authority until finality?
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  #457  
Old 08-01-2018, 1:44 PM
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Then these bozos risk having shall-issue carry becoming the law of the land in D.C. and New York City.

Back East, they really don't care if someone carries in Oxnard. Seeing someone carry on Seventh Avenue or M Street is a very different matter.

Cases are decided politically. The law and legal methodology are used as a veneer for the desired outcome.
That will only happen if cert is granted and the case decided in favor of open carry. A Ninth Circuit en ban ruling is not effective outside the circuit. But that doens't mean that it will be "shall issue" either, only that carry will be on an open basis, not limited to one class (guards) of citizens. And it could be open unloaded, though we haven't gotten there yet, since neither Young nor Nichols raises the issue.
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  #458  
Old 08-01-2018, 2:55 PM
TruOil TruOil is offline
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Originally Posted by FABIO GETS GOOSED!!! View Post
Oh, now that you've done the research (with some help) there actually is a rule but it's "fraught" with exceptions, is that right? lol you're incorrigible. Has an en banc panel overruled Young? Has the Supreme Court overruled Young? Is there intervening controlling authority casting doubt on Young? Under which "exception" specifically would Young's salient holding not be binding on another panel?
As you already know, the case you cited is not published, and therefore only persuasive authority. The case IT cites isn't controlling either, as it merely cites the "rule" without analysis or discussion. When you finally get back to the case the latter cites, you find a morass which says that the "rule" is subject to exception. As an attorney, you are fully aware that a court will "distinguish" any case it finds contrary to its view, or find some reason to avoid it.
As a separate matter, the only justification for the rule is to have "stability" in the law. In other words, the court attempts to write its decisions "in stone," no matter how ridiculous or outdated a decision has become. I am sure you know as well that California state courts follow no such rule, except as to decisions of higher courts, and there are innumerable opinions where Division X of the First District Court of Appeal will disagree with an opinion of Division Y of the same court. If it were not for disagreements between districts or divisions, the law could not evolve. And which it is why attorneys cannot be sanctioned for arguing that a law or precedent should be overturned or change.

I didn't follow it any further back than that.
Yes, Young is the only case on point in the circuit. But it is also true that it isn't final as to that court, and is subject to reversal by en banc or cert proceedings. Are you suggesting that it is binding notwithstanding its lack of finality? Or instead, shouldn't it be treated as no more than persuasive authority until finality?
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  #459  
Old 08-01-2018, 3:10 PM
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As you already know, the case you cited is not published, and therefore only persuasive authority.
No I already did not not know that, as the case I cited is in published. Are you really that clueless or is something else going on lol. What are you saying, that it's not a rule?

So, which of the 3 exceptions to the law of the circuit rule that I mentioned applies? Please don't dodge this like a weasel again.

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Originally Posted by TruOil View Post
Are you suggesting that it is binding notwithstanding its lack of finality? Or instead, shouldn't it be treated as no more than persuasive authority until finality?
I'm not suggesting it's binding, it is binding, right now. Although your research skills appear to be less than zero you may want to double check that for yourself, it shouldn't take more than 10 seconds to find the answer.
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  #460  
Old 08-01-2018, 10:49 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
Why wait for someone else to do the research you should have done before you said Michel was "clearly wrong"? lol. Do a Lexis search for "law of the circuit rule" and case name "Parker" then report back. Or just go to the ninth circuit opinion page and find the US v Parker opinion from 2011 and cut and paste the paragraph about the "law of the circuit rule." Don't be lazy.
The case you refer to above indirectly, but ultimately, leads to a 9th Circuit en banc decision (which thus really is binding on 3 judge panels in the 9th Circuit, but not of course on en banc panels): US v. Johnson, 256 F. 3d 895. To wit:

Quote:
Originally Posted by US v. Johnson, 256 F. 3d 895
We hold, instead, that where a panel confronts an issue germane to the eventual resolution of the case, and resolves it after reasoned consideration in a published opinion, that ruling becomes the law of the circuit, regardless of whether doing so is necessary in some strict logical sense.
Judges are, of course, adept at figuring out ways to insist that prior precedent doesn't apply to the case they're deciding so as to enable them to decide in a different manner, but that's true irrespective of the nature of precedent.
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  #461  
Old 08-12-2018, 4:15 PM
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I think we have very different interpretations of what the panel is trying to accomplish.

The appeal was from an order dismissing Young's action. Really, the only issue before the 9th Circuit was whether the 2d Amendment protects a preexisting right to carry outside the home. If it does, then Young properly alleged a claim.

The panel answered that simple question very early in the opinion: Yes, the 2d Amendment protects the preexisting right to carry outside the home.

The rest of the opinion is meant to limit the District Court's ability to reach a decision that Hawaii's regulatory scheme does not infringe the rights protected by the 2d Amendment. The panel considered many arguments endorsed by other courts and said, "Nope, the Hawaii statute is incompatible with the 2d Amendment under this argument too."

It should be emphasized that Mr Young is the FIRST litigant to get a Ruling to that effect from any Federal Court. A feat that none of the Right People were capable of achieving, because they insisted on ignoring the actual words of Heller. Making this the busting of the dam that has been holding up "and bear" throughout the country.


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Originally Posted by mrrabbit View Post
From the founding of this nation onward, with the exception of one or two cases (state or appellate), bans on concealed carry were upheld.

As to intent, there are several cases where even where the charge was for carrying concealed - where it was established beyond a doubt that it was accidental or in the context of a journey - the conviction could be tossed or remanded.

What is also clear from the cases (state and appellate) open OR concealed carry - was that carry was in the context of private AND public.

In other words, Heller v. DC having cited or referenced most if not all of these case established in 2008 the following:

1. It's an individual right.
2. Keep = own.
2a. Ownership of various arms commonly held.
3. Bear = carry = carry on or about the person - public and private.
4. Bans on concealed carry may be upheld.
5. Bans on open carry do no pass constitutional muster.

CA9 in the Peruta En Banc decision cherry picked #4 . . .

. . . and ran with that declaring "there is no right to concealed carry."

Ignoring all else of course from Heller v. DC.

Now we have CA9 panel for Young basically affirming what CA9 En Banc panel avoided . . .

1, 2, 3 and 5.

But we can't do anything right now, cause they remanded the District court for a "fix".

We're waiting on the CA9 panel for Nichol's - they're bound by the Young decision - but there's nothing stopping his panel from playing "politics".

And of course there's nothing stopping the activist judges in CA9 from playing politics as well and preempting what is in play now with an en banc move.

I'll add this. I'm an islander...from a different island. But island politics are brutal. Paradise to visitors - not to the people living there who are not in the "big club" as George Carlin would say.

The chief and district court judges in question are in the big club. And right now I feel kinda sorry for them because every chamber of commerce officer in Hawaii is hammering them right now, every senator, senior bureaucrat, union head and the governor himself is hammering them right now. Hotel and resort owners, other chiefs and sheriffs...they're piling on as well.

They want the fix to be the status quo or a run around that results in the same. Watching their behavior audio, visual or in writing is going to be real world exercise in witnessing virtual signalling and projection allowing any shrewd observer to analyze who these people really are, what they're about and what they think of us peons.

=8-P

I'll have to take your word how bad 'island politics' are.

But even allowing for that, there's now a Ruling that decisively states that "outside the home" is protected by the 2A. That's a HUGE advance in the fight for the 2A. Since I agree completely that #5 is correct, I don't see how even the most rabid Grabber can prevent unlicensed LOC from becoming the Law of the Land.


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Originally Posted by TruOil View Post
OK, you are correct, as long as you concede as well that the "rule" is fraught with exceptions, which is what one learns when one follows back the citations.
Any way, the result in Nichols is not a foregone conclusion, since what is actually being appealed is the denial of a temporary injunction. That, as we can certainly all agree, is judged under an abuse of discretion standard. Even if the panel is bound to conclude that the 2A extends beyond the home (which as I recall the State conceded in the Peruta oral argument), what has been gained when Nichols does not challenge any of the restrictions on the right to carry in public? As discussed previously, the California GFSZA and the exclusion of public buildings makes it virtually impossible to carry outside the home except in one's front yard. [Leaving aside that scary and probably wrong Superior Court Appeals panel decision that concluded that an unfenced yard is "quasi public" property where carry can be banned.]

Yes, the PRK did concede to "outside the home" in Peruta. Which I'm sure mattered to the panel that heard Young. But Mr Nichols has indeed challenged some of the restrictions in re LOC. Too tired to look up all of the challenges, but he does challenge the licensing requirement. As for the GFSZ, his thinking is that he felt it better to keep his case 'lean & mean' (my words). IOW, limited to the ONE issue. Because after all, nothing can be done until "outside the home" is established as a Protected Right.

But, the GFSZ is only barely hanging in there as it is. Now that "and bear" is finally recognized as a Protected Right, the GFSZ will fall like over ripe fruit. All we need is for someone to make a challenge. Which I expect to happen the day after SCOTUS affirms either Young or Nichols.


Quote:
Originally Posted by TruOil View Post
That will only happen if cert is granted and the case decided in favor of open carry. A Ninth Circuit en ban ruling is not effective outside the circuit. But that doens't mean that it will be "shall issue" either, only that carry will be on an open basis, not limited to one class (guards) of citizens. And it could be open unloaded, though we haven't gotten there yet, since neither Young nor Nichols raises the issue.

True, whatever the 9th Circus decides won't be binding outside the Circus. But there's a real good chance that cert will be granted. The issue of "outside the home" is a HUGE one for both sides. This case (or Nichols) is going to SCOTUS. Mark my words.

Mr Nichols, unlike Mr Young, does challenge the licensing requirement. After all, no other Protected Right can be licensed. That might work. It should work. But, certain that politics will rear its ugly head, but less certain that it will succeed, there is a possibility that the 9th will allow this Protected Right to require one. So, we might end up with a "Shall Issue" license for LOC. I don't see that lasting once it gets to SCOTUS, though.

As for UOC, neither Mr Young or Mr Nichols raised the issue because neither had to. If "and bear" is the Protected Right," something that is done to be "ready for confrontation," unloaded, by its very definition, cannot be imposed.


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Old 08-12-2018, 4:41 PM
speedrrracer speedrrracer is offline
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Originally Posted by Mulay El Raisuli View Post
Mr Nichols, unlike Mr Young, does challenge the licensing requirement. After all, no other Protected Right can be licensed.
Based on what? You have to register to vote, and voting is a right, at least according to the 15A. There nothing that says a shall-issue license (or call it "registration" if you want) is unconstitutional. I hope Nichols wins, but I don't see where it says no right can be licensed.

The battle will come down to how much they can make you do / pay / wait before letting you "register" / giving your license. Right now they make you fill out a form in order to register to vote. Doesn't say they can't make you fill out a form and submit to a picture. Or fill out a form, submit to a picture and take a quick test. Or fill out a form, submit to a picture and take a quick test, and pay a modest processing fee. And wait 3 months. And etc, etc.

So it's all about where the line will get drawn, and a bunch of originalists are NOT going to let themselves get drawn into being forced to decide if a 100 question test is bad, but a 50 question test is OK. No way. So I don't see how the state won't have pretty wide latitude, but I'd welcome any reasoned opinions which give me hope.

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As for UOC, neither Mr Young or Mr Nichols raised the issue because neither had to. If "and bear" is the Protected Right," something that is done to be "ready for confrontation," unloaded, by its very definition, cannot be imposed.
This is a pretty straightforward reading of Heller, and I agree it's a case that should be easily won.
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  #463  
Old 08-13-2018, 7:52 AM
ritter ritter is offline
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Originally Posted by Mulay El Raisuli View Post
It should be emphasized that Mr Young is the FIRST litigant to get a Ruling to that effect from any Federal Court. A feat that none of the Right People were capable of achieving, because they insisted on ignoring the actual words of Heller. Making this the busting of the dam that has been holding up "and bear" throughout the country.
This is from Wrenn v DC (DC Circuit, 2017). Young was not the first (or maybe DC Circuit is not federal?), and the DC Circuit did a very good job of incorporating Heller into their ruling.

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At the Second Amendment’s core lies the right of responsible
citizens to carry firearms for personal self-defense beyond the
home, subject to longstanding restrictions. These traditional
limits include, for instance, licensing requirements, but not
bans on carrying in urban areas like D.C. or bans on carrying
absent a special need for self-defense. In fact, the
Amendment’s core at a minimum shields the typically situated
citizen’s ability to carry common arms generally. The District’s
good-reason law is necessarily a total ban on exercises of that
constitutional right for most D.C. residents. That’s enough to
sink this law under Heller I.
Amazingly, DC did not appeal.
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Old 08-13-2018, 9:41 AM
CCWFacts CCWFacts is offline
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Originally Posted by Mulay El Raisuli View Post
no other Protected Right can be licensed.
That's factually wrong and leads me to not take seriously any other arguments you're making, and fits nicely with Mr. Nichols legal ideas. Many enumerated, protected rights require licenses.

For example, the right to assemble is in the first amendment. Many / most municipalities require assembly permits. That permit is shall-issue and must be impartial, but it is required.

Some municipalities require photography permits. Photography is a 1A protected activity, and yet it can require a permit, even if it's non-commercial.

Churches require all the usual occupancy permits, plus business permits, tax filings, etc. They have no exemption from all that just because it's a 1A activity.
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  #465  
Old 08-13-2018, 10:10 AM
press1280 press1280 is offline
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This is from Wrenn v DC (DC Circuit, 2017). Young was not the first (or maybe DC Circuit is not federal?), and the DC Circuit did a very good job of incorporating Heller into their ruling.



Amazingly, DC did not appeal.
There was Wrenn and Moore before, and to a lesser degree Norman in FL.
Young (as it stands now) sets not just a split but a 3 way split.
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  #466  
Old 08-13-2018, 12:52 PM
TruOil TruOil is offline
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There was Wrenn and Moore before, and to a lesser degree Norman in FL.
Young (as it stands now) sets not just a split but a 3 way split.
New York and California allegedly leaned heavily on DC to not seek SCOTUS review, fearing national "shall issue" CCW. The dissimilarity there is that it was not an open carry case, and HI's concealed carry law was not directly in issue, probably because after Peruta, as the Young court specifically noted, the result was preordained. Technically, then, Young doesn't create a split, since it and the other cases recognize a right to "bear."
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  #467  
Old 08-13-2018, 1:44 PM
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Technically, then, Young doesn't create a split, since it and the other cases recognize a right to "bear."
True currently, until en banc reversal. Then we'll charge ahead with CA9 acknowledging there may/may not be a right to carry (as they did in Peruta) but that right is not concealed (Peruta) or open (Young after full panel "correction"). It will be an interesting, if stomach turning, read, I'm sure. Here's hoping the current decision somehow stands.
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Old 08-13-2018, 3:24 PM
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Originally Posted by TruOil View Post
New York and California allegedly leaned heavily on DC to not seek SCOTUS review, fearing national "shall issue" CCW. The dissimilarity there is that it was not an open carry case, and HI's concealed carry law was not directly in issue, probably because after Peruta, as the Young court specifically noted, the result was preordained. Technically, then, Young doesn't create a split, since it and the other cases recognize a right to "bear."
It doesn't set the original split but now we have a court that says OC is the right, while Norman and Wrenn say it can be concealed over open, while CA 2-4 basically say the right can be with held from the general public, if it's a right at all.
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Old 08-13-2018, 3:28 PM
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True currently, until en banc reversal. Then we'll charge ahead with CA9 acknowledging there may/may not be a right to carry (as they did in Peruta) but that right is not concealed (Peruta) or open (Young after full panel "correction"). It will be an interesting, if stomach turning, read, I'm sure. Here's hoping the current decision somehow stands.
The new tactic will be that it's just a regulation, even if 99.99 percent of the populace is ineligible. The judges have been very cautious to not come out and say the right doesn't extend past the front door. Legal gymnastics at its worst.
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Old 08-13-2018, 3:59 PM
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The new tactic will be that it's just a regulation, even if 99.99 percent of the populace is ineligible. The judges have been very cautious to not come out and say the right doesn't extend past the front door. Legal gymnastics at its worst.
I am assuming the worst, i.e., that they will recognize the right but conclude that the right is subject to "reasonable regulation" in the public interest, thereby upholding the ban on open carry since open carry scares the muggles, and more guns = more gun crime, therefore, limiting the carrying of guns in urban areas is a "compelling state interest" that passes (what passes for) intermediate scrutiny in the Ninth Circuit. The last thing the court wants to do is to suggest that the GFSZA under either federal or state law is unconstitutional.
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Old 08-13-2018, 4:39 PM
speedrrracer speedrrracer is offline
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I am assuming ... that they will recognize the right...[snip]
A compelling next step, but that's when Young goes OCing down the street, comes into a GFSZ, gets arrested, and we are right back here for Young 2.

And if I'm the antis, that's what I'm trying to avoid, because that puts us in the position to kill them with a 1000 cuts. Young 2: GFSZ, Young 3: LOC, Young 4: reasonable requirements for licensing, etc, etc, and eventually they'll have lost everything there is to lose. They don't want to lose, they want to win.

I personally can't see any way out for them if they open the door even a crack and acknowledge the right. 1000 cuts later, we'll have total victory.
But to have SCOTUS deny cert or get lucky and get Roberts on their side if cert is granted, is a path which gives them a chance at victory. I think they deny the right and go that way. We can argue the odds, but the chance for victory does exist.

Even if they lose before SCOTUS, it will be a very narrow ruling, does anyone dispute that? So they can then go right back to your tactic, but they had two free chances at winning. Why wouldn't they go that way? Because "New York"? Sure, it's not impossible, but it makes zero sense. Is "fall on your sword to save the haoles in NYC from the horrors of OC for a few years until they lose some case and end up with OC anyways" the best counterargument anyone can make?
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  #472  
Old 08-13-2018, 4:50 PM
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This is from Wrenn v DC (DC Circuit, 2017). Young was not the first (or maybe DC Circuit is not federal?), and the DC Circuit did a very good job of incorporating Heller into their ruling.



Amazingly, DC did not appeal.
That isn't amazing at all; The last time the District appealed a case and lost we got Heller. I would bet that there was significant pressure applied to DC not to appeal.
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  #473  
Old 08-14-2018, 7:43 AM
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Originally Posted by TruOil View Post
I am assuming the worst, i.e., that they will recognize the right but conclude that the right is subject to "reasonable regulation" in the public interest, thereby upholding the ban on open carry since open carry scares the muggles, and more guns = more gun crime, therefore, limiting the carrying of guns in urban areas is a "compelling state interest" that passes (what passes for) intermediate scrutiny in the Ninth Circuit. The last thing the court wants to do is to suggest that the GFSZA under either federal or state law is unconstitutional.
So essentially the 9th would be saying no right to conceal, that open carry is the right but it scares people so we can allow rationing via may issue.
It's lame, but then again I wouldn't be the least bit surprised if they use that excuse.
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Old 08-14-2018, 3:16 PM
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So essentially the 9th would be saying no right to conceal, that open carry is the right but it scares people so we can allow rationing via may issue.
It's lame, but then again I wouldn't be the least bit surprised if they use that excuse.
Yes it is lame, but the Ninth is not impressed with Judge O'Scannlain's opinion that the Second is of equal status with all of our other constitutional rights, but a lesser right that must be limited in any way possible. The only thing I can say about the circuit is that it is consistent in that regard. It will take a very hard slap down from SCOTUS to change that, and even if there is some relief from the high court, I would anticipate that the Ninth will continue to get as close to disregarding SCOTUS authority on the second amendment right as it can without actually crossing the line to outright disobedience.
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  #475  
Old 08-15-2018, 9:04 AM
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Yes it is lame, but the Ninth is not impressed with Judge O'Scannlain's opinion that the Second is of equal status with all of our other constitutional rights, but a lesser right that must be limited in any way possible. The only thing I can say about the circuit is that it is consistent in that regard. It will take a very hard slap down from SCOTUS to change that, and even if there is some relief from the high court, I would anticipate that the Ninth will continue to get as close to disregarding SCOTUS authority on the second amendment right as it can without actually crossing the line to outright disobedience.
What do you think the consequences would be of outright disobedience?

I think the consequences would be nothing at all. The only question, then, is whether the 9th Circuit is willing to test that proposition.
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  #476  
Old 08-15-2018, 10:41 AM
speedrrracer speedrrracer is offline
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What do you think the consequences would be of outright disobedience?

I think the consequences would be nothing at all. The only question, then, is whether the 9th Circuit is willing to test that proposition.
There would never be "outright" disobedience, imo. They will always take some cover, because let's be honest, there is simply no shortage of weasel room.

They can just always uphold every single anti-2A law by saying "presumptively lawful" over and over again. And the fiction will necessarily continue that the 9th just made an honest mistake, even though everyone knows they did no such thing. "Ooops, sorry, we mis-interpreted what you said, thanks to SCOTUS for correcting us"

Even if SCOTUS stops remanding back to the 9th, and flat-out overturns the law in question, the 9th is not in this alone -- they know that next session, the morons in the CA legislature will just vomit up some similar nonsense, and the wheel goes round and round. It's the combination of the legislature and the 9th that yields no need for outright disobedience.

Actual "outright" disobedience, by my definition, is where the 9th finds some spine they never had, stands up and says, "We refuse to submit to the authority of SCOTUS / Congress / the Executive branch, we will not acknowledge XYZ" and it will simply never happen. First, we know that judges like O'Scannlain and Ikuta would never join into such nonsense, so while the rest of the 9th went on strike, those two would hold down the fort, perhaps others as well.

This division gives the political cover needed for action from above, and the 9th knows this, therefore they would never choose such a path.
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Old 08-15-2018, 1:10 PM
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I agree with speedracer. Just look a the SF storage ordinance upheld by the Ninth that requires any loaded gun to be on your person, but otherwise unloaded and under lock and key. The decision authorized a law that came as close to the Heller facts as it could without requiring unloaded firearms at all times, and further not requiring that guns be disassembled and the ammo kept in a separate room. I have little doubt that the Ninth will continue down this path, strictly and narrowly construing Heller and McDonald to allow as many invasions of the right as possible without actually violating the strictures of those cases. Unfortunately, to get a majority, both opinions have some weasel room. This is why the ninth gets away with a sliding scale analysis of "intermediate scrutiny" specifically rejected by the Heller majority, and why its version of "intermediate scrutiny" differs not at all, fundamentally, from a "reasonable basis" analysis, irrespective of the words mouthed int he opinions. Unless and until the SCOTUS lays down some hard and fast rules for analyzing 2A cases, this kind of lip service will continue. Sadly, I think that hard and fast rules are not likely to emanate from the High Court any time soon.
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Old 08-15-2018, 1:20 PM
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There is nothing that can be done judicially about the Second Amendment being an inferior right. There is nothing to disobey. Heller provides the tools for eviscerating the Second Amendment.

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Yes it is lame, but the Ninth is not impressed with Judge O'Scannlain's opinion that the Second is of equal status with all of our other constitutional rights, but a lesser right that must be limited in any way possible. . . [T]he Ninth will continue to get as close to disregarding SCOTUS authority on the second amendment right as it can without actually crossing the line to outright disobedience.

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Originally Posted by kcbrown View Post
What do you think the consequences would be of outright disobedience?

I think the consequences would be nothing at all. The only question, then, is whether the 9th Circuit is willing to test that proposition.
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Originally Posted by speedrrracer View Post
There would never be "outright" disobedience, imo. They will always take some cover, because let's be honest, there is simply no shortage of weasel room. . .
This set of rules contains exceptions that swallow the 2nd Amendment entirely:
Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-centurycourts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler,5 La. Ann., at 489–90 [(1850)]; Nunn v. State,1 Ga., at251 [(1846)]; see generally2 Kent,[Commentaries on American Law (O. Holmesed., 12th ed. 1873)]*340, n.2; The American Students’ Blackstone 84, n.11 (G. Chase ed.1884).
Id. at 26–27 (emphasis added) (some citations omitted)
District of Columbia v. Heller, 554 U.S. 570 (2008)

Scalia's following rule is so broad that it creates the presumption of expansive regulation right down to the sale of firearms:
Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
Id.

Until such time as a different generation of Supreme Court judges overturns Heller, as being inconsistent with contemporary understanding of personal autonomy and bodily integrity found the 14th Amendment, we are stuck with the presumption that heavy regulation of weapons ownership is valid. No other constitutional amendment with the strict language "abridge" is construed in the same manner. Other amendments with language presumptively favoring the State's invasion of the citizen's right are construed in the opposite manner, e.g. the 4th Amendment. The law libraries are full of volumes of judicial constructions of the constitution. Those judicial decisions are the constitution in our system of law.

Heller, with its above presumptive language, is now the constitution.

Last edited by sarabellum; 08-15-2018 at 1:28 PM..
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  #479  
Old 08-15-2018, 1:55 PM
ritter ritter is offline
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This set of rules contains exceptions that swallow the 2nd Amendment entirely:
Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
Note the "longstanding" part of prohibitions as well as "in" sensitive places, not "near" sensitive places. There are longstanding prohibitions on sale of firearms to felons, etc. When looked at in historical context, that is what the opinion is indicating are permissible, not rosters.

The Supreme Court has already warned judges such as the 9th:

Quote:
We know of no other enumerated constitutional right
whose core protection has been subjected to a freestanding
“interest-balancing” approach. The very enumeration of
the right takes out of the hands of government—even the
Third Branch of Government—the power to decide on a
case-by-case basis whether the right is really worth insist*
ing upon. A constitutional guarantee subject to future
judges’ assessments of its usefulness is no constitutional
guarantee at all. Constitutional rights are enshrined with
the scope they were understood to have when the people
adopted them, whether or not future legislatures or (yes)
even future judges think that scope too broad.
For all the good it will do us...
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Old 08-15-2018, 2:54 PM
sarabellum sarabellum is offline
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Originally Posted by ritter View Post
Note the "longstanding" part of prohibitions as well as "in" sensitive places, not "near" sensitive places. There are longstanding prohibitions on sale of firearms to felons, etc. When looked at in historical context, that is what the opinion is indicating are permissible, not rosters.
The Supreme Court when explaining, "Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on . . ." indicates an expansive power to regulate by the state and federal governments followed by examples listed in the inclusive, "such as," and "or." Id. The reasoning that because rosters of acceptable firearms for sale must not an example provided by District of Columbia v. Heller such a roster must be unconstitutional is not sound reasoning, since the decision indicates that the Court does not list all forms of of arms regulation that could be valid, as they are all presumptively valid as long as they do not completely prohibit arms possession, " . . . nothing in our opinion should be taken to cast doubt on longstanding prohibitions on . . ."

Heller, when viewed closely, is a bitter pill to swallow for folks, who hero worship Scalia.

The language, "We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding 'interest-balancing' approach," is not a rule indicating that regulation of arms possession by the states is unconstitutional, especially in lieu of the above more specific rule (more specific language controls over more general language). Rather, the language you cited was the summary in the conclusion (IRAC) of the reasoning that the core of the Second Amendment is arms possession, "Justice Breyer’s assertion that individual self-defense is merely a 'subsidiary interest' of the right to keep and bear arms, see post, at 36, is profoundly mistaken. He bases that assertion solely upon the prologue—but that can only show that self-defense had little to do with the right’s codification; it was the central component of the right itself." Thereafter, the analysis was whether the DC statute significantly infringed on the right and whether that infringement violated the constitution. The conclusion was that the DC's complete prohibition of arms possession violated the Second Amendment. The " . . .nothing in our opinion should be taken to cast doubt . . ." and "not unlimited right" language means, in the absence of outright prohibition on possession, anything goes.

The expansive language in Heller ratifying regulation by the states is a rule. That rule is now binding on every single lower court in the nation until such time as the Supreme Court reverses Heller.

Last edited by sarabellum; 08-15-2018 at 3:24 PM..
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