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Old December 6, 2012, 08:13 PM   #51
Librarian
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... there are three different and separate audio streams available from the 9th Circuit's oral arguments this morning:

Edward Peruta, et al. v. County of San Diego, et al. found here: http://www.ca9.uscourts.gov/datastor...6/10-56971.wma (Paul Clement for Appellant)

Christopher Baker v. Louis Kealoha, et al. found here: http://www.ca9.uscourts.gov/datastor...6/12-16258.wma

Adam Richards, et al. v. Ed Prieto, et al. found here: http://www.ca9.uscourts.gov/datastor...6/11-16255.wma (Alan Gura for Appellant)
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Old December 6, 2012, 09:49 PM   #52
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Since Librarian beat me to the punch, there is no longer any need to upload the files. Be warned, this is not a permanent location, therefore you should download these soonest, as the court will move these files in a few days.

Please direct your comments to the proper thread.

Comments on the Peruta case should be made in this thread.

Comments on the Richards case should be made here: http://thefiringline.com/forums/showthread.php?t=451451

Comments on the Baker case should be made here: http://thefiringline.com/forums/showthread.php?t=460887
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Old November 13, 2013, 01:33 AM   #53
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There is a potential that this case, and the two others argued with it in December 2012 (Richards v. Prieto and the Hawaii case) may be decided by the end of the year. There have been developments in other cases that led to this inference. First, there is a case called Nichols v. Governor Brown in which Charles Nichols is challenging California's open carry ban. He filed a motion for preliminary injunction (which was unsurprisingly denied by the trial court) and he appealed to the Ninth circuit. The NRA moved to stay his appeal pending the determination of these other cases, and today that motion was granted over opposition by Nichols and the State--and even though an appeal of a denial of a preliminary injunction is normally accorded some priority. Further, the NRA has a case pending against Sheriff Hutchins (Orange County) and that case was stayed today as well pending these appeals. Finally, the Ninth consolidated a fourth case--a criminal case involving the 2A, setting these up for a grand opinion on the standard of review, an opinion that (as Nordyke v. King was initially designed to do) will control the consideration of the various other case. There is some suggestion that Justice Kosinski, who was bitterly disappointed when Nordyke settled on the eve of its determination, is pushing the agenda.
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Old February 13, 2014, 02:29 PM   #54
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Just saw the news:
Quote:
Ninth Circuit strikes California’s restrictive rule against licensed carry of handguns
http://www.washingtonpost.com/news/v...y-of-handguns/
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Old February 13, 2014, 02:34 PM   #55
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That's a big win. NY has the same "good cause" provision, which is arbitrarily and capriciously applied.
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Old February 13, 2014, 02:52 PM   #56
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Here is the 9th Circuit decision:
http://cdn.ca9.uscourts.gov/datastor...12/1056971.pdf
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Old February 13, 2014, 02:54 PM   #57
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I wonder if Moore influenced the decision.

I think it is good news, so anti-gunners have to pursue things like may-issue, capacity restrictions and micro-stamping as ways to try to snuff out people's ability to exercise the Second Amendment.
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Old February 13, 2014, 02:58 PM   #58
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Doesn't this mean we have a circuit split between CA9 - Peruta and CA4 -Woollard ?
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Old February 13, 2014, 03:15 PM   #59
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Quote:
"Doesn't this mean we have a circuit split between CA9 - Peruta and CA4 -Woollard ?"
The court openly sides with Moore and eviscerates the 3rd, 4th, and 5th circuits for faulty or incomplete inquiry, inconsistency with Heller, etc. They outright announce a split in the text of the ruling.

This ruling is chock-full of useful nuggets that support our view of the right. Kudos to this panel for doing it's job. This is a great day.
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Old February 13, 2014, 03:25 PM   #60
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Oh - hell - yeah.

Holy crap...Cali just went shall-issue.

SO DOES HAWAII by the way! 9th Circuit. So are Guam and Saipan, and wow is THAT gonna get weird .

OK. So...what's next?

I understand that this is a flat order to the lower court rather than "set it for a new trial" so this case is done UNLESS the state appeals it to the full 9th (en banc) or the US Supremes.

Now...if the state appeals to the Supremes, I'd bet they'd take it. There's now a circuit split the size of the grand canyon between this and rulings from NY/NJ/MD. This is actually bigger than Moore (7th Circuit that forced IL to issue) because Moore didn't actually specify whether IL could go shall-issue or may-issue. We got shall-issue in IL politically, not via court action. That's why there were pro-may-issue decisions on the east coast after Moore came out.

What else...California also bans open carry. Is it legal to open-carry in San Francisco(!) right now? I don't know. If, tomorrow, somebody were to walk into the SFPD and try to apply and get denied the blank form, would they then be OK open carrying? Ummmm...dunno. I'm not advising it *yet* but it could come to that if the stonewalling gets crazy enough.

Will this panel in Paruta stay the decision to allow for appeals to en banc or Supremes? Ah...probably...but who knows?

Holy...crap.

Oh wow, one more question: there's another case just like Peruta still pending - Gura's case out of Yolo County, right? The one that used to include Sacramento until they folded? Well is that moot? One three-judge panel can't override another, right? That was my understanding...
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Old February 13, 2014, 03:26 PM   #61
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It's actually astonishing that this comes from the 9th.

I haven't had time to read the whole thing yet but it really blows my mind.

Whole sections could be written by an Originalist.

Quote:
In short, the meaning of the Second Amendment is a matter not merely of
abstract dictionary definitions but also of historical practice.
Quote:
It begins with the pre-ratification “historical background
of the Second Amendment,” since “the Second Amendment . . . codified a preexisting
right.” Heller, 554 U.S. at 592 (emphasis omitted). Next, it turns to
whatever sources shed light on the “public understanding [of the Second
Amendment] in the period after its enactment or ratification,” see id. at 605–10,
such as nineteenth-century judicial interpretations and legal commentary.
Quote:
To arrive at
the original understanding of the right, “we are guided by the principle that ‘[t]he
Constitution was written to be understood by the voters; its words and phrases
were used in their normal and ordinary as distinguished from technical meaning,”
unless evidence suggests that the language was used idiomatically.
Quote:
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.”
To be sure, those are mostly quotes taken by the 9th from the Heller decision but the idea that the 9th would take them so simply and directly, given their rather extremist past decisions is... remarkable.
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Old February 13, 2014, 03:29 PM   #62
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Quote:
Doesn't this mean we have a circuit split between CA9 - Peruta and CA4 -Woollard ?
Basically 7th and 9th versus 2nd, 3rd, and 4th, at least on general approach. However, let's wait to see if there is an en banc decision and its results before we get too happy.
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Old February 13, 2014, 03:37 PM   #63
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Quote:
Basically 7th and 9th versus 2nd, 3rd, and 4th, at least on general approach.
Close. Moore in the 7th was pro-carry-in-some-form but didn't slam the door shut on may-issue the way the 9th just did . We got shall-issue because of the political wrangling after the Moore decision came down.

To a degree, the 9th is standing alone against the cases from New Jersey, New York and Maryland (Woolard).
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Old February 13, 2014, 03:57 PM   #64
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Quote:
Close.
I was referring more to the fact they both recognized the 2A applied outside the home, not the exact holdings. That's why I qualified it by referring to their "general approach." Hopefully, the Supremes will take a case and then rule favorably on carry outside the home.
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Old February 13, 2014, 04:26 PM   #65
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Wow, there are a lot of useful bits in this ruling that support the 2A. I'm very eager to learn whether or not the state will be taking this to the next level.
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Old February 13, 2014, 05:04 PM   #66
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I just had a four letter word moment reading the first footnote.
Quote:
(3) he faces
immediate, grave danger provided that the weapon is only carried in “the brief
interval” between the time law enforcement officials are notified of the danger and
the time they arrive on the scene (where the fleeing victim would obtain a gun
during that interval is apparently left to Providence). I
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Old February 13, 2014, 05:28 PM   #67
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Richards v Prieto is a similar case, also at 9th Circuit. Docket from RECAP: http://ia600408.us.archive.org/4/ite...26.docket.html

Oral arguments were Dec 6, 2012.
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Old February 13, 2014, 05:42 PM   #68
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I wonder if Moore influenced the decision.

To answer my own question, from the opinion:

Quote:
Speakers of the English language will all agree: “bearing a weapon inside the home” does not exhaust this definition of “carry.” For one thing, the very risk occasioning such carriage, “confrontation,” is “not limited to the home.” Moore v. Madigan, 702 F.3d 933, 936 (7th Cir. 2012). One needn’t point to statistics to recognize that the prospect of conflict—at least, the sort of conflict for which one would wish to be “armed and ready”—is just as menacing (and likely more so) beyond the front porch as it is in the living room. For that reason, “[t]o speak of ‘bearing’ arms within one’s home would at all times have been an awkward usage.” Id. To be sure, the idea of carrying a gun “in the clothing or in a pocket, for the purpose . . . of being armed and ready,” does not exactly conjure up images of father stuffing a six-shooter in his pajama’s pocket before heading downstairs to start the morning’s coffee, or mother concealing a handgun in her coat before stepping outside to retrieve the mail.

Instead, it brings to mind scenes such as a woman toting a small handgun in her purse as she walks through a dangerous neighborhood, or a night-shift worker carrying a handgun in his coat as he travels to and from his job site.
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Old February 13, 2014, 05:47 PM   #69
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Had a mildly ironic thought: If open carry activists contributed to the the open carry ban then they had a hand in this decision as well, because the court found that the fact that open carry is banned means that the State's preferred method of satisfying the right, licensed concealed carry, cannot be denied for self defense (absent prohibiting factors).

I am also observing that it is the overreach of anti-gun zealots (banning unloaded open carry, for example) that is once again their downfall. True believers are so convinced of their correctness that, in their mind, no restriction on 2A rights could possibly go too far. Until it does!
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Old February 13, 2014, 05:48 PM   #70
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I'm pretty much speechless. Amazing.

The court analyzes the historical cases used by the "wrong" circuits when they relied on pre-Heller interpretations of the 2nd Amendment, and then it ends with this little gem: "And with these cases off the table, the remaining cases speak with one voice: states may not destroy the right to bear arms in public under the guise of regulating it."
Wow. So right.
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Old February 13, 2014, 05:49 PM   #71
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I wonder if San Diego's new mayor will have a role in determining whether the city requests an en banc hearing.
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Old February 13, 2014, 06:00 PM   #72
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It is amazing to me that Judge O'Scannlain reads Heller "the need for the right is “most acute” in the home" and concludes

Quote:
thus implying that the right exists outside the home, though the need is not always as “acute.”
Judges Davis, King, Myerscough and Stiehl read the same opinion and say, in effect "gee we think maybe this means the right doesn't exist outside of the home at all, we don't know and can't figure it out so we're going to force SCOTUS to rule on a gun case again...
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Old February 13, 2014, 06:54 PM   #73
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I think I'm in love.

Quote:
To reason by
analogy, it is as though San Diego County banned all political speech, but
exempted from this restriction particular people (like current or former political
figures), particular places (like private property), and particular situations (like the
week before an election). Although these exceptions might preserve small pockets
of freedom, they would do little to prevent destruction of the right to free speech as
a whole.
An analogous comparison of bearing arms to speech. They put the second amendment on equal footing as the first.

And I really have to wonder if Alan Gura didn't ghost write this opinion with the earlier quote and....
Quote:
the
question is whether it allows the typical responsible, law-abiding citizen to bear
arms in public for the lawful purpose of self-defense. The answer to the latter question is a resounding “no.”
Resounding?

And another barb about where one would acquire arms one wasn't allowed to carry until after a confrontation already happened that I can't find again right now.

Ad here's another one...
Quote:
(clarifying that in actuality “New
Jersey . . . provided no evidence at all to support its proffered justification . . .”).
I'm starting to get the feeling the opinion is actually angry. Especially with the shots being taken at the other three circuits for not doing their job.

More love
Quote:
t it is not the role of this Court [or ours] to pronounce the
Second Amendment extinct.” Id. at 636. Nor may we relegate the bearing
of arms to a “second-class right, subject to an entirely different body of rules
than the other Bill of Rights guarantees that we have held to be incorporated
into the Due Process Clause.

Last edited by JimDandy; February 13, 2014 at 07:03 PM.
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Old February 13, 2014, 07:04 PM   #74
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I'm only at pg 42 of the decision, but I had to peak at the news to see if I was correct on where the decision was going.

I suspect that tomorrow, Richards and Baker will be reversed and remanded for a decision that is consistent with this opinion.

I also suspect that San Diego will petition for en banc. As KyJim says, that will put everything back on hold. Yet I rather doubt that an en banc decision will be any different. So far, this opinion is most excellently reasoned and written!

This was not the expected result. Those of us that were watching intently, suspected that this would go against us. For all the reasons that this is the CA9.

I am now more hopeful that the SCOTUS will take Drake v Filko, to settle this (now very) wide split within the circuits.
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Old February 13, 2014, 07:10 PM   #75
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Wow - an entire 13-page section of the decision is devoted to why the decisions in the 2nd, 3rd, and 4th Circuits were wrong, with O'Scannlain essentially calling their authors out for being lazy or timid.

Quote:
with Drake, 724 F.3d at 431 (noting that the court was “not inclined to address [text, history, tradition and precedent] by engaging in a round of full-blown historical analysis” and relying on the Second Circuit’s conclusion that “[h]istory and tradition do not speak with one voice” (quoting Kachalsky, 701 F.3d at 91)); Woollard, 712 F.3d at 874–76 (declining to “impart a definitive ruling” regarding the scope of the Second Amendment right), and Kachalsky, 701 F.3d at 91 (refusing to look at “highly ambiguous history and tradition to determine the meaning of the Amendment”).
The decision is longer and more detailed than necessary to simply reach and support the conclusion, suggesting that O'Scannlain was consciously writing for future consumption by the Supreme Court.

Last edited by gc70; February 13, 2014 at 07:18 PM.
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