Jackson v. San Fran - Updated

[Sean Michel n Assoc]

On May 17, 2012, attorneys for the National Rifle Association, the San Francisco Veteran Police Officers Association, and several San Francisco gun owners filed a Motion for Judgment on the Pleadings in their legal challenge to San Francisco’s "locked-storage" law, as well as the City’s prohibition on the sale of "hollow-point" ammunition and all ammunition that does not "serve a sporting purpose." That brief is available here: http://michellawyers.com/wp-content/uploads/2010/12/Jackson_Conformed-Motion-for-Partial-Judgment-On-The-Pleadings.pdf

The lawsuit, Jackson v. City and County of San Francisco, was filed as a test case in May of 2009, before the McDonald v. Chicago decision in 2010, and in the wake of the 9th Circuit’s May 2, 2011 confirmation in Nordyke v. King that the Second Amendment is "incorporated", i.e., that it protects against infringements by state and local governments.

The motion asserts that the City has not raised a viable defense, and asks the Court to issue an injunction preventing enforcement and to declare the ordinances unconstitutional. At minimum, the motion will serve to narrow the issues, and to prevent the City from misdirecting the litigation with irrelevant distractions.

The Jackson case was strategically designed to, potentially, be the first case to address the "standard of review" applicable to Second Amendment challenges. The case is legally "cleaner" than many of the Second Amendment cases currently being litigated, as it does not raise issues about public carry, "sensitive places" where a firearm may or may not be possessed, or other issues that might make it easier for a court to water down Second Amendment protections.

The case was, unfortunately, stayed pending resolution of the McDonald case, which ultimately decided the "incorporation" issue at the Supreme Court level. The case was then delayed by multiple rounds of obstructionist preliminary motions filed by the City, including motions seeking to tie the case to a similar problematic case filed by a rogue attorney, who essentially cut and pasted from the Jackson case.

The NRA’s attorneys at Michel & Associates, P.C. have successfully defended against each of the City’s preliminary motions, and even secured an important published "standing" ruling that clarifies the rights of future litigants in the Ninth Circuit to bring Second Amendment challenges to unconstitutional restrictions on the right to keep and bear arms. That ruling is available here: http://michellawyers.com/wp-content/uploads/2010/12/Jackson-v.-City-and-County-of-San-Francisco-F.Supp_.2d-2011.pdf

The NRA’s early litigation efforts in the Jackson case also forced the City to abandon its policy of outright banning the discharge of firearms, even in self-defense. Initially, the lawsuit included a challenge to the City’s ordinance completely prohibiting firearm discharges which had been in place for nearly 75years. Facing this legal challenge, the City amended its ordinance and it now allows for discharges in lawful self-defense and defense of others, as well as all other circumstances allowed for under state and federal law.

While Jackson was delayed, a panel for the 9th Circuit adopted a framework for Second Amendment challenges in Nordyke that would afford heightened scrutiny only to gun control laws that impose a "substantial burden" on the right to arms. That opinion has since been set aside, however, and the District Court is now free to adopt its own standard of review in the Jackson case, possibly when it rules on the pending motion.

In addition to providing an ideal framework for the Court to address the standard of review issue, the Jackson case is also aimed at developing Second Amendment jurisprudence regarding protections for arms that are in "common use," and the right to commercially transact in firearms and ammunition. Rulings on these issues could pave the way for future legal challenges by establishing important "building block" rulings in less controversial settings.

[CowTowner]

As a California ex-patriot, my best wishes for success go with you into court.
I hope to see the day in my lifetime, where I can carry my concealed firearm in that state legally. And loaded with proper SD ammo (hollow points) as well.
Good Luck with the Good Fight!

[Al Norris]

Thank you Sean for that update.

I have just recapped the docket (http://www.archive.org/download/gov.uscourts.cand.215014/gov.uscourts.cand.215014.docket.html and downloaded the City/Counties response.

I've also included this thread as the TFL Thread URL in the cases thread.

[Al Norris]

The Jackson case has virtually gone under the radar, both here, at CalGunsNet and at MDShooters. The reasons for this are few, but varied.

For my part, I can name 2 reasons. 1)The docket at PACER was not properly reporting the filings and 2)RECAP was not properly updating the Internet Archive when the docket did show movement. Hopefully, that has all been resolved, as not only PACER but RECAP are now working (for this case - there remain problems with RECAP on a few other cases).

I'm extremely thankful to Sean Brady (of Michel & Associates, P.C.) in starting this thread.

The City and County of San Francisco have a Safe Storage law, that while somewhat dissimilar to that of D.C. It is the practical effect that this case hinges on.

In the D.C. case, you may recall, handguns were required to be unloaded and locked (with trigger locks or in a safe) or disassembled. The result of that ordinance was that you could not have immediate access to your defensive firearm, should the it arise that you needed it for self defense.

The Supreme Court in Heller reasoned that part of the 2A rights was to have a ready and operable firearm in case of confrontation where one arguably needs it most, at home. This made that particular ordinance unconstitutional on its face under any level of scrutiny used to define enumerated rights.

The difference in the San Francisco laws are that you can have a ready and operable firearm in your home, but only as long as the firearm was in your immediate possession and control. Otherwise, the firearm must be disabled or locked away.

The practical effect is that unless your firearm is strapped to your side, it must be stored in an approved safe manner. It does not matter if there are children, felons, mentally unstable persons, etc. at home or not. How many of you sleep with a gun strapped on? That is the only manner you can keep the firearm wholly operable, at those times.

Even with the above exception (which is only a very minor step away from Heller), the law in San Francisco City and County have the same practical effect as the law in D.C. that was struck down.

In the MJP, the plaintiffs hammer the defendants with the Heller case, time and time again.

Here, because this is a slight step away, the plaintiffs argue that if any scrutiny is needed to resolve the constitutionality of the ordinance, then strict scrutiny applies.


In part IV of the pleading, the plaintiffs advance the corollary theories that the individual not only has the right to purchase a firearm, but the right to purchase effective self defense ammunition. These corollary rights are assumed to exist for the simple reason that without them, the right to self defense with an operable firearm is meaningless.

San Francisco ordinance Section 613.10(g) bans the sell of any ammunition that does not have a sporting purpose.

Again, the plaintiffs go back to Heller and pound the defendants with the clauses pertaining to "common use." As we all know, modern self defense ammo (hollow points, of one form or another) is much more effective at stopping an aggressor than are FMJ. Less chance of completely penetrating to injure what lies beyond the target and less chance of ricochet.

The plaintiffs make the case that the police themselves use this form of ammunition for the very same reasons it is commonly used and preferred by citizens for their own self defense. It can be no defense to say that residents of SF can go elsewhere to buy their ammo (see Ezell).

Nor can it be a defense to state that public safety requires the use of a more dangerous form of ammo, because the city doesn't want injuries to the victims be greater (does beg the question of just who the City considers the victim to be - the aggressor or the one who must defend themselves from the aggressor).

It is not even a defense to claim sporting purposes (even when left undefined, as the City does here), when self defense and militia duty can not be a "sporting purpose" in any sense of the term.

The plaintiffs again argue that the ordinance fails any form or scrutiny, but if one must be used, then strict scrutiny applies as the ordinance reaches to the core of the right.

Of course, if you have bothered to read the response, the City and County deny everything.

The plaintiffs reply is due on June 21st, if I have my dates correct.

Should the district court deny the MJP, it still serves the purpose of paving the way towards a MSJ, in which the facts (as laid out in the MJP) can be expanded upon and more fully briefed.

[Sean Michel n Assoc]

Thanks Al, it was my pleasure. Solid analysis and overview by the way.

Just wanted to update this thread by letting everyone know our Reply brief was filed today. You can read it at: http://michellawyers.com/wp-content/uploads/2010/12/Jackson_Conformed-Plaintiffs-Reply-to-Defendants-Opposition-to-Motion-for-Partial-Judgment-on-the-Pleadings-Exhibits-A-1.pdf

And all other filings in this case can be found at: http://michellawyers.com/guncasetracker/jacksonvsf/

[Al Norris]

Just a couple of quotes from the reply:

...if law-abiding adults desire to keep an unlocked firearm in their homes at night, they must sleep with it in a holster attached to their bodies.

and...

The law requires Plaintiffs, under threat of criminal penalty, to choose between locking up their handguns through the night when they are at highest risk for attack, or sleep with their loaded guns strapped to their bodies. (Defs.’ Opp’n 10:2-7.) The “choice” is as false as it is absurd.

In light of Heller, I don't see how any Judge could honestly uphold this statute.

In the ammo ban, the plaintiff makes excellent use of Heller's "in common use" standard, as opposed to the defense trying to turn the claim to one of, "most commonly used."

You can bet that Evan Nappen (NJ2AS attorney) in New Jersey is paying attention to this one.

[Al Norris]

After filing their reply brief, plaintiffs also filed a request for notice (a supplemental authority): Gowder v. Chicago.

http://michellawyers.com/wp-content/uploads/2010/12/Jackson_Conformed-Plaintiffs-Request-for-Judicial-Notice-In-Support-of-Reply-to-Defendants-Opposition-to-Motion-for-Partial-Judgment-on-the-Pleadings.pdf

[Al Norris]

Back on Thursday, July 12th, a hearing was held on the plaintiffs MJP. The Court has taken the matter under advisement.

This means that we now wait for the Judge to issue a finding on this particular matter.

Please note that the URL that Sean gave to the case pleadings (post #5) is no longer valid, as it has been PW protected. The Internet Archive (http://www.archive.org/download/gov.uscourts.cand.215014/gov.uscourts.cand.215014.docket.html) has been updated with the current docket and filings.

[Sean Michel n Assoc]

Al, the Jackson page on our website is no longer password protected. Sorry, staff put a password on it by accident. Here is the link:
http://michellawyers.com/guncasetracker/jacksonvsf/

[Al Norris]

Thanks, Sean.

[Al Norris]

On Aug. 17th, the Judge has denied (http://www.archive.org/download/gov.uscourts.cand.215014/gov.uscourts.cand.215014.134.0.pdf) the plaintiffs motion for Judgment on the pleadings.

On Aug. 30th, the plaintiffs files a Motion for Preliminary Injunction (http://www.archive.org/download/gov.uscourts.cand.215014/gov.uscourts.cand.215014.136.0.pdf). The response is due on Sept. 20th and the reply due on Sept. 27th. The Judge set Oct. 4th as the hearing date for this motion.

[maestro pistolero]

When plucking low-hanging fruit is this tough, you know you are in unfriendly territory. This really could be decided quickly with half a judicial brain.

[CowTowner]

This really could be decided quickly with half a judicial brain.

No disrespect intended, but I would have to modify this to read:

"This really could be decided quickly with half a non-prejudicial judicial brain."

[KyJim]

The denial of the motion for judgment on the pleadings cannot be appealed. When the preliminary injunction is denied, it can be appealed.

[Al Norris]

On Sept. 13th, we have the City and County of San Francisco’s Opposition to Plaintiffs’ Motion For Preliminary Injunction (http://michellawyers.com/wp-content/uploads/2010/12/Jackson_City-and-County-of-San-Franciscos-Opposition-to-Plaintiffs-Motion-For-Preliminary-Injunction.pdf).

Then on the 20th, we have the Plaintiffs’ Reply To Defendants’ Opposition to Motion for Preliminary Injunction (http://michellawyers.com/wp-content/uploads/2010/12/Jackson_Conformed-Plaintiffs-Reply-To-Defendants-Opposition-to-Motion-for-Preliminary-Injunction.pdf).

Filed with the reply, we have the Declaration of Massad Ayoob In Support of Plaintiffs’ Reply To Defendants’ Opposition to Motion for Preliminary Injunction (http://michellawyers.com/wp-content/uploads/2010/12/Jackson_Conformed-Declaration-of-Massad-Ayoob.pdf).

[Al Norris]

On 10-09-2012, a hearing was held on the MPI. While we are waiting for the results, Michel & Assoc. have made a transcript of the hearing available: Motion for Preliminary Injunction Hearing Transcript for October 9, 2012 (http://michellawyers.com/wp-content/uploads/2010/12/Jackson_Motion-for-Preliminary-Injunction-Hearing-Transcript_October-9-2012.pdf)

[62coltnavy]

That was a very lame argument, amounting to, "plaintiff expects to lose, so rule against us so we can appeal." Not persuasive. I like Ayoob's declaration though.

[Al Norris]

Monday, the court in Jackson v. San Francisco denied a preliminary injunctioon.

Jackson-MPI Denied (http://michellawyers.com/wp-content/uploads/2010/12/Jackson-v.-San-Franscisco_Order-Denying-Plaintiffs-Motion-for-Preliminary-Injunction.pdf)

In denying, Judge Seeborg said this about the ammo restriction:

Even assuming a constitutional right to possess and use the particular types of ammunition within the ambit of section 613.10(g) could be found, plaintiffs simply have not shown that prohibiting sales of such ammunition within City limits imposes a substantial burden on their ability to acquire it.

In this, the Judge ignores what the CA7 said in Ezell and essentially agrees with the IL district Judge - People can go elsewhere to obtain their ammo (or get training at a firing range).

Since the CA9 has given no recognition to Ezell, in Nordyke (the only case that the Judge can cite), the Judge is possibly correct, at this point in litigation.

As for the storage requirements, Judge Seeborg says:

Plaintiffs have offered only the possibility that in a very narrow range of circumstances, the delay inherent in rendering a handgun operable or in retrieving it from a locked container theoretically could impair a person’s ability to employ it successfully in self-defense. Even assuming this rises to the level of a “substantial” burden, however, thereby triggering some heightened degree of scrutiny, plaintiffs have not shown the regulation to be overreaching or improper in any way, or that it fails to serve a legitimate governmental interest. Indeed, as noted in Heller itself, nothing in its analysis “suggest[s] the invalidity of laws regulating the storage of firearms to prevent accidents.” 554 U.S. at 632.

This ignores the Heller Courts pronouncement on the storage laws of D.C. completely (that law was found to be unconstitutional and is very close - almost identical - to the law being challenged in San Francisco). Here, it is clear that Judge Seeborg is selectively reading Heller.

Expect Michel & Assoc. will appeal this ruling (62coltnavy gets gets the prize).

[Al Norris]

A small update.

As expected, the MPI was denied and the plaintiffs have appealed.

A bit of stipulated motion for a different briefing schedule that the one the court proposed and we now have:

Initial briefing on February 7th, response on March 7th and a reply (if any) on March 20th.

Full details at Michel & Assoc. Gun Case Tracker (http://michellawyers.com/guncasetracker/jacksonvsf/).

[Al Norris]

A late update. As noted, on Feb. 7th, the Appellants’ Opening Brief (http://michellawyers.com/guncasetracker/jacksonvsf/jackson-appeal__conformed-appellants-opening-brief/) was due.

In the interim, yesterday, 4 amici briefs, in support of the plaintiffs-appellants were filed:

Brief Amicus Curiae of The Law Enforcement Alliance of America In Support of Plaintiffs-Appellants And In Support of Reversal (http://michellawyers.com/guncasetracker/jacksonvsf/jackson-v-san-francisco_-amicus-brief-for-leaa/)
Brief Amicus Curiae of Center for Constitutional Jurisprudence In Support of Plaintiff-Appellant (http://michellawyers.com/guncasetracker/jacksonvsf/jackson_center-for-constitutional-jurisprudence-amicus-brief/)
Brief of Amici Curiae California Rifle and Pistol Association Foundation and Independence Institute In Support of Plaintiffs-Appellants and In Support of Reversal (http://michellawyers.com/guncasetracker/jacksonvsf/jackson_crpa-independence-institutes-amicus-brief/)
Brief of Amici Curiae FFLGuard LLC and Gun Owners of California, Inc. In Support of Appellants (http://michellawyers.com/guncasetracker/jacksonvsf/jackson_conformed-brief-of-amici-curiae-fflguard-llc-and-gun-owners-of-california-inc-in-support-of-appellantsf/)

Very good reads.

[Al Norris]

Thursday, the City of SF filed its opposition brief at the 9th Circuit.

http://michellawyers.com/wp-content/uploads/2010/12/Jackson-v.-San-Francisco_Brief-of-Appellees-City-and-County-of-San-Francisco-and-Its-Mayor-and-Chief-of-Police.pdf

It is interesting to note 2 things. 1) The city calls for rational basis to test the law (something the Supreme Court said was off the table) or at most, a watered down version of intermediate scrutiny. And 2) The City contorts the Heller decision to say keeping a locked handgun is perfectly within the parameters of the Heller decision, and therefore, constitutional.

[maestro pistolero]

Nothing could be further from the truth. As we know, Heller invalidated the DC trigger lock law on the basis that the a functional firearm must be available for immediate use for self defense. Requiring the firearm to be disassembled was also struck for the same reason.

[speedrrracer]

They'll get slapped down on the storage thing (maybe not by a district court, but if it goes to SCOTUS for sure) but the ammo thing who knows.

In 2011, San Francisco adopted findings in support of its Ammunition
Ordinance. S.F. Police Code § 613.9.5. The findings state that enhanced-lethality ammunition is more likely to seriously wound or kill a person who is hit by it than conventional ammunition.


Ummm, this is a fact because we say it's a fact? Even if their findings are correct, that's rational basis.

And no sporting purpose? Heck, my components supplier had hollow-points on special, was the same price as my regular bullets, so I've been shooting USPSA for the last 4 months with hollow-points.
I can assure the gun prohibitionists of the Bay Area that they serve the sporting purpose just fine.

Also in the sporting purpose vein, hollow points are said to be slightly more accurate in certain situations due to beneficial aerodynamics caused by the hollow point. That would accentuate their desirability in the sporting world, if it weren't for their (normally) higher prices.

But all this is arguing rational basis crap. I don't care if we win the rational basis argument, the state has to prove it meets (at least) intermediate scrutiny.

[Glenn E. Meyer]

Enhanced lethality - huh? Am I missing something? If a 9 expands to a diameter the size of an 45 FMJ - which is enhanced? Expansion or absolute value of diameter in your tushy or noggin?

[Al Norris]

I just deleted 7 off topic posts.

If I can believe what I just read, over at CalGuns.net (and I have no reason not to believe it), SanFran just passed a ban on possession of hollow-point ammo. Along with a reporting requirement for the purchase of 500 rounds (or more) of ammo.

All that needs to be done is for the Mayor to sign the bills.

The workload at Michel & Assoc. just got heavier.

[Al Norris]

In the appeals, the Appellants/Plaintiffs have just filed their Reply brief (http://michellawyers.com/wp-content/uploads/2013/04/Jackson_Conformed-Appellants-Reply-Brief.pdf).

Briefing is complete and we should have a date for orals, soon.

I don't know who actually wrote that brief, but it was a damn fine piece of writing. It covered every aspect of the case in meticulous detail. It was a pleasure to read the many ways a gentleman can call his opponent, a jackass... without ever having to use a vulgar phrase!

[62coltnavy]

Facing threatened litigation, the City (I think through the Police Chief )has "clarified" that the ban is to be strictly construed to ban only the specific Black Talon ammunition identified and exact copies of that ammo. so it is a moot issue.
As to the Jackson appeal, the ninth is the busiest circuit in the country. I would not expect orals any time before fall at the VERY earliest. It could easily be a year, even more.

[dakota.potts]

Maybe I'm immature, but I got a chuckle out of the fact that one of their precedent cases is the United States vs. The Playboy Entertainment Group. It's a 1st amendment case so it makes some sense but still made me curious enough to look it up.

Seriously, though, how can they look at the Heller decisions, and cite Heller, while ruling exactly the opposite?

[sholling]

If I can believe what I just read, over at CalGuns.net (and I have no reason not to believe it), SanFran just passed a ban on possession of hollow-point ammo. Along with a reporting requirement for the purchase of 500 rounds (or more) of ammo.
Al I could be wrong but I thought they just banned long out of production Black Talons thinking that all JHPs were somehow Black Talons. Either way state preemption applies.

[Al Norris]

I haven't read the text of the ordinance, so I'm only going on what I've heard or read....

The Police Chief has interpreted the ordinance to mean what has been reported. Such an interpretation carries no legal weight. A succeeding Chief could very well have a different interpretation.

[maestro pistolero]

Al I could be wrong but I thought they just banned long out of production Black Talons thinking that all JHPs were somehow Black Talons.The language included identical or similar JHPs as I recall.

[Sean Michel n Assoc]

Oral arguments have been set in this case for October 7, 2013 @ 9:00 in San Francisco.

For those that aren't familiar, this case seeks to confirm protections for hollow-point ammunition (and protections for ammunition generally), as well as the right to have a firearm unlocked in one's home regardless of whether it is being "carried." The case also addresses the still unresolved standard of review issue, and presents the court with an opportunity to address the issue in a case that involves core conduct, law-abiding citizens, protected arms, and an "in the home" setting. For those with a grasp of the standard of review issue, or for those who would like to read up on it, the opening and reply briefs may be of interest.

All filings in the case to date, including several important amicus briefs, can be viewed here:http://michellawyers.com/guncasetracker/jacksonvsanfran/

[Patriot86]

I will have an eye on this case, if it ends up going to the SCOTUS this could help with some pesky new "safe storage" laws that were just passed in the Chicago area.

[4V50 Gary]

San Francisco will spend a million dollars to defend itself. What a waste of taxpayer money. Fix the potholes first! Pay off some bonds first! PC has a very heavy price and the poor taxpayer has to bear the burden.

[Patriot86]

I agree with you Gary but this is what cities do big and small.

The small village where I grew up spent 20+ years and millions of dollars fighting the widening of a major road that goes through the center of town from 1 lane in each direction to 2. The road is finally getting widened but it took that long legal fight over something as stupid as a road. The payoff for that is lowering the speed limit to 30MPH(from 35) so the locals can write more speeding tickets.

NYC is wasting tax dollars fighting over big gulps...the list goes on

[rwilson452]

One must always remember they are spending other peoples money. That is what they do and enjoy doing it.

[natman]

San Francisco will spend a million dollars to defend itself. What a waste of taxpayer money. Fix the potholes first! Pay off some bonds first! PC has a very heavy price and the poor taxpayer has to bear the burden.

They don't care. SF put a proposition (Prop H) on the ballot in 2005 to ban handguns. They KNEW it wouldn't stand up because it conflicted with state preemption laws. A nearly identical proposition had been previously overturned on those grounds. After it passed, the NRA took it to court, just like everyone knew they would. The NRA won on state premption grounds, just like everyone knew they would. Then SF appealed it. And lost, just like everyone knew they would.

San Francisco squandered nearly a million dollars, including $380,000 to the NRA for legal costs, on a proposition everyone knew would be overturned.

But at least they "made a statement".:rolleyes:

[Al Norris]

Today, orals (at the 9th Circuit) were heard in this case. You may listen here: http://www.ca9.uscourts.gov/media/view.php?pk_id=0000011334

[Jim March]

Wait...what the heck happened to Chuck? I've heard him speak lots of times but not that recently...ye Gods :(. Did he survive throat cancer or something?

[maestro pistolero]

NOT impressed with NRA attorney. Heller directly controverts this ordinance with its invalidation of the trigger lock requirement WITHOUT a standard of review. NRA has thus far (1/3 through) missed several opportunities to point that out. The Heller court literally ridiculed the idea that a locked gun could be useful at all for self-defense in the middle of the night.

Also, failing to point out in the discussion of what constitutes an unacceptable delay that life or death in a gunfight usually turns on MILLISECONDS, not SECONDS, was a mistake in my opinion. The justices ask what was an acceptable delay, and the answer should have been flatly ZERO seconds followed by an explanation as to why. The first person to fire his weapon, if only a tenth of a second earlier, is exponentially more likely to survive the fight. This is a critical point, based on nothing more than simple physics, even in a discussion involving substantial burden. There is no greater burden than the loss of ones life or limb.

[maestro pistolero]

I just finished. NRA finally got to Heller's admonition that the right is to a gun for immediate self defense. I would have liked to see a point driven home a bit more: "I would suggest to the the court that the word immediate means nothing if not without any delay". Also there was NO reference to Heller's invalidation of the trigger lock requirement.

We turn finally to the law at issue here. As we have said, the law totally bans handgun possession in the home. It also requires that any lawful firearm in the home be disassembled or bound by a trigger lock at all times, ren- dering it inoperable.

In sum, we hold that the District’s ban on handgun possession in the home violates the Second Amendment, as does its prohibition against rendering any lawful fire- arm in the home operable for the purpose of immediate self-defense.

Rarely is the guidance from SCOTUS more on point than is Heller's guidance vis a vi Jackson. I simply cannot believe this point was not made at orals. The NRA attorney sounds tired, and misses this central relevant point entirely, IMO.

[Al Norris]

Yet the point was made, many times in the pleadings at District and within the appeals filings. I don't know how many more times it needs to be said.

[maestro pistolero]

Understood. But to leave it unsaid at oral argument in the context of serious consideration being given by the court to the subject of whether requiring trigger locks in the home is constitutional is remiss, at best. He could have ended that particular inquiry with a direct quote or two from the holding. There are plenty of unresolved questions in Heller's wake, but this is not one of them.

[KyJim]

I think most appellate judges and appellate lawyers will tell you that it's possible to lose a case on oral argument but it's rare to win a case on oral argument. The vast majority of cases are decided on the briefs.

[62coltnavy]

Absolutely correct. In most cases, oral argument is not scheduled until at least two of the three assigned justices have agreed on a tentative decision, and it is a rare case where they change their minds based on something argued at orals. Where you lose at orals is where you trip over your own feet and make an unfortunate admission that undercuts your case. Such was the case in Nordyke v, King, where the Ninth Circuit was poised to render an important decision that necessarily would have defined the standard of review, but an admission by counsel for the County at oral argument that it would indeed allow gun shows on county property despite the ban mooted the entire case. Five years and hundreds of thousands of dollars wasted, and a slew of other cases delayed pending that decision. For example, the challenge to the California Safe Roster (Pena v. Cid) was stayed pending Nordyke, as were the three cases attacking the "may issue" requirement for CCW.

Not that this matters much--the carry cases were argued last December, and my guess is we will not see any decisions on these cases until the Supreme Court decides the cert petition in Woollard. I suspect that a decision by the Ninth Circuit on the may issue shall issue conundrum would definitely trigger review in Woollard--which is why it won't happen. We'll know soon enough--Woollard is set for conference next week.
[There is also the possibility that if the Woollard petition is granted, the Ninth will stay the cases it has pending, thus avoiding an issue it seems to want to avoid, rather than add its voice to the determination of the issue.]

[Al Norris]

Woollard is set for conference this Friday, Oct. 11th. We will know on Monday the 14th how things went - The decisions at conference are usually handed out in orders the following Monday.