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Old September 8, 2012, 09:55 PM   #51
jonbirdt
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Probably low, I think they are going to do things in steps and build on the issue. Once the eight pending cases have opinions you will see an en banc review and he will write the opinion.
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Old September 9, 2012, 10:47 PM   #52
hermannr
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Ok all you lawyers, help me here. The judge said:
Quote:
The City & County of Honolulu is not subject to 5th Amendment. The Fifth Amendment applies to the federal government, not a municipality.
I thought that McDonald put an end to that kind of argument???? (that is, the 14th ammendment makes the whole Bill of Rights apply to the states too...yes, it only addressed the 2nd specifically, but by inference?)
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Old September 10, 2012, 08:53 AM   #53
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Over the last century SCOTUS has been selectively 'incorporating' the Bill of Rights to apply against the States (and hence municipalities formed under those states).
Ripped from Wikipedia:
-------
Amendment V
Right to indictment by a grand jury
This right has been held not to be incorporated against the states. See Hurtado v. California, 110 U.S. 516 (1884).

Protection against double jeopardy
This right has been incorporated against the states. See Benton v. Maryland, 395 U.S. 784 (1969).

Constitutional privilege against self-incrimination
This right has been incorporated against the states. See Malloy v. Hogan, 378 U.S. 1 (1964).
A note about the Miranda warnings: The text of the Fifth Amendment does not require that the police, before interrogating a suspect whom they have in custody, give him or her the now-famous Miranda warnings. Nevertheless, the Court has held that these warnings are a necessary prophylactic device, and thus required by the Fifth Amendment by police who interrogate any criminal suspect in custody, regardless of whether he or she is ultimately prosecuted in state or federal court.

Protection against taking of private property without just compensation
This right has been incorporated against the states. See Chicago, Burlington & Quincy Railroad Co. v. City of Chicago, 166 U.S. 226 (1897).
------------
So in the main the 5th does in the main apply as a restriction on the powers of the City & County of Honolulu.

The McDonald Vs Chicago decision incorporated the 2nd Amendment as a restriction on the powers of the States and the municipalities formed within them.
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Old September 10, 2012, 09:02 AM   #54
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Just to add, the Privileges and Immunities clause of the 14th amendment appears to be intended to apply the bill of rights as restrictions on the states.
The 19th century post war Supreme Court was just as political as the current one and ruled that it did not.
'Incorporation' is the method by which the 20th & 21 st century SCOTUS justices twist the due process clause to selectively apply bits of the Bill of Rights as restrictions on the States, without having to overrule its old decisions.
Read the McDonald oral arguments, I think it is Justice Scalia who refers to the Gura's Privileges and Immunity argument (that it should be revisited) as the darling of the law professoriate, or words to that effect.
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Old September 10, 2012, 10:58 AM   #55
maestro pistolero
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Scalia refers to the incorporation doctrine as one to which "Even I have acquiesced". Justice Thomas in his concurring but separate opinion, did, in fact, use the privileges or immunities clause to incorporate the 2nd amendment.
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Old September 10, 2012, 11:21 AM   #56
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Well in this case, what the judge is saying about the 5th Amendment "due process" piece is that it's NOT incorporated against the states, but only because the 14th Amendment's "due process" component clearly is. And that's probably correct, if meaningless. So basically he threw out their 5th Amendment claim on that ground, but then found a completely different way to ignore the 14th Amendment equivalent piece.
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Old September 10, 2012, 11:42 AM   #57
Tom Servo
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Quote:
Justice Thomas in his concurring but separate opinion, did, in fact, use the privileges or immunities clause to incorporate the 2nd amendment.
Yep, but he was the only Justice, out of nine, who did.

Technically, McDonald was an 8-1 loss along the original argument.
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Old September 10, 2012, 12:14 PM   #58
maestro pistolero
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That's true. But the only vote count that matters is the one that decided the case. And among the reasoning used was Thomas' incorporation via "P or I". I am very happy to at least have it part of the record, for what it's worth.
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Old September 12, 2012, 09:26 PM   #59
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The Fifth Amendment initially applied only to the federal government, including the Due Process Clause of the Fifth. Most of the Fifth Amendment has been incorporated and is applicable to the states and their political subdivisions through the Due Process Clause of the Fourteenth Amendment. So, most of the jurisprudence talking about due process under the 5th is incorporated in the 14th. The requirement that a grand jury return an indictment (5th amend.) has not been incorporated via the 14th.

While technically, the judge was correct that the 5th doesn't directly apply to Honolulu, most of it is applicable through the 14th. I don't know exactly the context so this may not be a real issue anyway.
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Old October 9, 2012, 03:53 PM   #60
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Notice of Docket Activity

The following transaction was entered on 10/09/2012 at 12:54:50 PM PDT and filed on 10/09/2012
Case Name: Christopher Baker v. Louis Kealoha, et al
Case Number: 12-16258
Document(s): Document(s)

Docket Text:
Notice of Oral Argument on Thursday, December 6, 2012 - 9:00 AM - Courtroom 1, 3rd Floor - James R. Browning US Courthouse - San Francisco, CA. Please return ACKNOWLEDGMENT OF HEARING NOTICE form to: SAN FRANCISCO Office. Please open attached documents to view details about your case. [8352270] (RB)
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Old March 20, 2014, 03:39 PM   #61
Luger_carbine
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CA9 rules in Baker v Kealoha

This is where I happened to pull the decision from:

http://www.scribd.com/doc/213562890/...aloha-Decesion

I think after Peruta this was a foregone conclusions, but a still a good read.


Quote:
we concluded that the Second Amendment provides a responsible, law-abiding citizen with a right to carry an operable handgun outside the home for the purpose of self-defense.
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Old March 20, 2014, 05:11 PM   #62
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Actually, I was reading a published opinion from the 9th on DNA collection (I hadn't yet checked the unpublished opinions), when I received a call from Maestro Pistolero about the Baker case.

So I went to the unpublished section, and lo and behold, there it was! An 8 page decision that remands the case back to the district court in Hawaii for further proceedings in light of Peruta.

Besides the link given by Luger_Carbine, the CA9 decision may be found here: http://cdn.ca9.uscourts.gov/datastor...0/12-16258.pdf

This is a 3 for 3 win.... But! The dissent by Judge Thomas is accurate and may well be cause for a rehearing. We will have to see.

Having said that, I really don't think Judge O'Scannlain would have released Richards and Baker if he thought there was much chance of Peruta going en banc. Although, it has been suggested that he is simply trying to "stack the deck," as it were.
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Old March 21, 2014, 01:09 PM   #63
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Quote:
Having said that, I really don't think Judge O'Scannlain would have released Richards and Baker if he thought there was much chance of Peruta going en banc. Although, it has been suggested that he is simply trying to "stack the deck," as it were.
That sounds right. If so, they can approve Ms. Harris to go to SCOTUS and still keep their "progressive credentials". At least for the delay it would give some authorities, such as Lost Angles City and County.
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Old March 21, 2014, 02:40 PM   #64
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Chuck Michel seems to think en banc is highly likely. Maybe I'm misinterpreting what I heard?

http://www.nranews.com/cam/video/chu...and-co-feature
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Old March 21, 2014, 06:01 PM   #65
KyJim
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Quote:
Chuck Michel seems to think en banc is highly likely.
It sounds to me like he begrudgingly thinks this may happen because, if not granted in this case, then one of the other cases will come up (Hawaii's for example) and request en banc.
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Old March 21, 2014, 07:17 PM   #66
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I agree with what Al said about O'Scannilion stacking the deck. Seems to me these opinions are released just in time for SCOTUS to absorb it before Drake goes to conference (which should be within a month). I think he knows en banc will be a huge headache for the 9th. Can they just grant en banc in Peruta and tell Baker no?
O'Scannilion wants this to be a big cluster if the 9th opts for en banc and he's putting all his chips forward for SCOTUS to take Drake.
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Old March 22, 2014, 07:29 PM   #67
SilverBulletZ06
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Press you know this for fact or just supposition?
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Old March 24, 2014, 05:14 AM   #68
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Rampant speculation on my part
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Old March 25, 2014, 08:21 PM   #69
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Quote:
Actually, I was reading a published opinion from the 9th on DNA collection (I hadn't yet checked the unpublished opinions), when I received a call from Maestro Pistolero about the Baker case.

So I went to the unpublished section, and lo and behold, there it was! An 8 page decision that remands the case back to the district court in Hawaii for further proceedings in light of Peruta.

Besides the link given by Luger_Carbine, the CA9 decision may be found here: http://cdn.ca9.uscourts.gov/datastor...0/12-16258.pdf

This is a 3 for 3 win.... But! The dissent by Judge Thomas is accurate and may well be cause for a rehearing. We will have to see.
You are right about the dissent. The Baker PI win is a result of not knowing enough about the law on my part to know better and the lower court Judge being in reality being on our side.
The district court has already filed the notice of unconstitutionality the Ninth said needed to be filed with the State on remand. As the time to ask for en banc is not over yet I hope he knows something we don't.
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Old March 27, 2014, 06:23 AM   #70
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To open carry you must be a licensed guard or detective, and then only "when the need urgency exists."
It's a sad day when you learn that your childhood hero, Magnum P.I., was a criminal.

More power to the Plaintiffs - kick their butts!
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