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Old September 24, 2011, 04:18 PM   #26
Al Norris
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The Appellees (defendants) filed their response yesterday.

The overall theme was that if the court should decide in favor of the Appellants (plaintiffs), then CA would return to the days of Tombstone and Dodge City. Lots of very inaccurate (read Hollywood) history in this brief.

Those of you that know your history should get a kick out of this.

Consider this from page 10 of the PDF:

Quote:
As California purportedly bars the open carrying of loaded pistols, Plaintiffs’ “right” to carry a concealed weapon is given a delayed and indirect constitutional birth, much as Aphrodite sprang from the sea without any identifiable parent.
Alan Gura is going to have fun with this!
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Old September 24, 2011, 05:25 PM   #27
maestro pistolero
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Quote:
Indeed, if speed of firing is the constitutional criterion,
then citizens must also have a right to generally have the gun cocked
and the trigger safety off, so as to save precious time. By Plaintiffs’
own definition, an uncocked gun is “inoperable” as incapable of
immediate shooting, as is one with an external safety device engaged
Speed of firing is absolutely part of the constitutional criterion. I would agree with that statement and plaintiff's 'own definition', and so does the Heller decision. Remember the court said a gun must be ready for 'immediate use for self defense' in the process of invalidating the trigger-lock ordinance. Unloaded doesn't even come close to clearing the constitutional bar.

Many guns in the mainstream of common use have no external safety, unless one views a trigger mechanism as an external safety. For example, garden variety double action revolvers.

To argue that it is constitutional to require a safety be engaged on a handgun would be to argue that the carrying of the one pistol that's in the most common use by police agencies and citizens could be banned.

The uncontroverted safest way to carry a 1911 ready for defense is cocked and locked, unless one thinks lowering the hammer manually on a live round is a safe practice. Indeed, unless a 1911 is cocked, the safety cannot even be engaged.

This argument fails totally. Otherwise Glocks, 1911s, and double-action revolvers would all be found unconstitutional to carry in ready condition for self-defense.
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Old September 24, 2011, 11:08 PM   #28
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There's so much amusing stuff in there... but this kills me...

Quote:
Moreover, the notion that an unloaded gun is a
useless gun, such that the Second Amendment necessarily entails the
right to bear be of loaded arms, is unsupported by any facts or
common sense
How exactly does one make the argument that an unloaded gun is generally useful?
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Old September 25, 2011, 06:33 AM   #29
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Quote:
How exactly does one make the argument that an unloaded gun is generally useful?
Why that one is easy to answer! It makes an excellent throwing weapon with multiple points of possible contact.
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Old September 25, 2011, 12:02 PM   #30
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Quote:
Moreover, the notion that an unloaded gun is a
useless gun, such that the Second Amendment necessarily entails the
right to bear be of loaded arms, is unsupported by any facts or
common sense
This is torture of both the English language and of logic. In reality, any suggestion that an unloaded gun is NOT useless for what the SCOTUS has determined is a fundamental right to be armed for self defense is what is unsupported by facts or common sense.

"Excuse me, Mr. Mugger, Sir, please stand by whilst I load my California-legal handgun so that I might shoot thee. Be patient, I'll only be a moment ..."
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Old September 25, 2011, 12:32 PM   #31
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Quote:
Moreover, the notion that an unloaded gun is a
useless gun, such that the Second Amendment necessarily entails the
right to bear be of loaded arms, is unsupported by any facts or
common sense
I see. THAT explains why CA cops carry unloaded guns while on duty...they're just as effective as loaded guns! Who woulda thunk!

Is this going to become known as the "Barney Fife argument"?
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Old September 25, 2011, 01:21 PM   #32
Bartholomew Roberts
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Quote:
Quote:
Moreover, the notion that an unloaded gun is a
useless gun, such that the Second Amendment necessarily entails the
right to bear be of loaded arms, is unsupported by any facts or
common sense
I know some judge's law clerk who didn't read Heller very well!
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Old September 25, 2011, 01:33 PM   #33
maestro pistolero
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This ought to be like shooting fish in a bucket. But at the root of opposition to carry by citizens HAS to be an underlying fundamental belief that we either don't really have the right to self-defense (which necessarily includes the means to accomplish it), or that we can't be trusted with the right.

Since they can't or won't admit that, every argument that descends from those two beliefs is going to be disingenuous, inherently flawed, lacking in logic, and will be incongruent with very simple facts:

1. Just as a car needs to be running in order to move, a gun needs to be loaded and ready for immediate use for self defense.

2. The need for self defense is inherently impossible to predict.

3. Any self defense must necessarily take place in the immediate vicinity of the person defending him or herself. That will usually be outside the home.

There is not one aspect of these simple physical realities that can't be fully understood and comprehended by the average 1st grader. But when ideology and political leanings are driving the bus, any pretense of logic or impartiality is left at the curb. There is no shame, and no honor in abusing judicial discretion to any extent to arrive at any per-determined conclusion whatsoever. It is a disgrace to the legal profession and the judiciary.

The very idea that the government should defend ITSELF from it's own constitutional restrictions is itself an outrage. It can never be in the best interest of the republic to abuse the judicial system to inflict injury on the foundation of the government, the constitution.

Last edited by maestro pistolero; September 25, 2011 at 01:38 PM.
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Old October 25, 2011, 10:54 PM   #34
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Today in Richards v. Prieto, Alan Gura has filed their reply to the defendants response (we've been waiting for this since they asked for an extension after the signing of AB 144).

http://www.hoffmang.com/firearms/ric...2011-10-25.pdf

This is a terrific rebuttal in light of the passage of AB 144 - the ban on Unloaded Open Carry.

Quote:
Defendants invoke figures ranging from Aphrodite to Procustes to Johnny Ringo, persistently tempting the line between clever and flip. Yet the answers to the questions posed by this litigation have always been found not in the mythology of Ancient Greece or the Wild West, but in the pages of the United States and Federal Reporter series, and California’s Penal Code. To these texts, California’s government added another since the filing of Defendants’ brief. By Defendants’ logic, this new legal text mandates reversal. Indeed, had more time remained in the briefing schedule, Plaintiffs could have moved for summary reversal.4

4 See Ninth Cir. R. 3-6(a) (summary disposition “[a]t any time prior to the completion of briefing in a civil appeal if the court determines: (a) that . . . recent legislation requires reversal or vacation of the judgment or . . . a remand for additional proceedings. . .”).
This case is now on a much stronger foothold than it's "sister" case, Peruta.
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Old October 26, 2011, 10:32 PM   #35
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If ones personal preference for a self defense handgun is a single action revolver then UOC is going to be a tough sell!!
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Old January 24, 2012, 06:29 AM   #36
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Now they want to ban the carrying of unloaded long guns.
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Old January 24, 2012, 08:47 AM   #37
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Judge Morrison Englands ruling will likely stand. Heller was not a resounding win for us: Four justices watered down their opinion on the Second Amendment in order to get a fifth justice on board.


http://judgepedia.org/index.php/Morrison_England
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Old February 20, 2014, 01:02 PM   #38
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Remembering that this case is at the 9th Circuit, awaiting a decision, last Thursday 13 Feb., both the plaintiffs and the Defendants filed opposing 28J supplemental letters.

See doc #68 and #69 at the docket: 11-16255 CA9 Docket
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Old February 20, 2014, 01:16 PM   #39
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Sorry, the link is broken. goes to a Page Not Found.

What does Peruta (which I'm guessing is the subject of the 28J letter?) do to this case? Other than either make it very easy for a pro-2A judge to find for, or an anti-2A judge to drag his feet until after at least en banc is settled?
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Old February 20, 2014, 01:37 PM   #40
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Amazing what happens when you place a "," instead of a "." between the word, "docket" and "html!" Fixed.
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Old February 20, 2014, 02:05 PM   #41
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The reply is hilarious. Because the majority of the county is wilderness, and the open carry ban doesn't apply there, the Peruta finding of a right to self defense outside the home is met as long as people stay way the heck out of town and never re-enter an incorporated area.
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Old March 5, 2014, 01:12 PM   #42
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On CalGuns they're saying Richards has been reversed and remanded

Here's the pdf they uploaded over there
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Old March 5, 2014, 02:36 PM   #43
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Good stuff!
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Old March 5, 2014, 04:38 PM   #44
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Good, but not really that important because it's the same three judges as decided Peruta and with no new reasoning or facts added. Peruta is what matters, esp. whether or not it gets taken up en banc and whether or not it influences the Supremes to take Drake.
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Old March 6, 2014, 09:31 AM   #45
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Jim, this is important, because Judge Thomas, who wrote the dissent in Peruta, reluctantly agrees that the case was decided correctly:

Quote:
I agree that, if unaltered by an en banc panel or by the Supreme Court, Peruta v. County of San Diego, No. 10-56971,— F.3d—, 2014 WL 555862 (Feb. 13, 2014), requires reversing and remanding in this case. Peruta and this case were argued and submitted on the same date. Absent Peruta, I would hold that the Yolo County’s “good cause” requirement is constitutional because carrying concealed weapons in public is not conduct protected by the Second Amendment. See United States v. Chester, 628 F.3d 673, 680 (4th Cir. 2010). I also would have held, in the alternative, that even if the good cause requirement implicated the Second Amendment, the policy survives intermediate scrutiny.

Therefore, I concur in the judgment.
The opinion is also unpublished and cannot therefore be cited within the 9th Circuit.
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Old March 6, 2014, 10:11 AM   #46
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Thomas is only saying here "well if Peruta stands, this stands, but I still say Peruta is wrong". So no, there's no new analysis or...well, anything.

I expect the Hawaiian variant of this to be the same.
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Old March 6, 2014, 10:18 AM   #47
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The 2nd Amendment Foundation has a statement on the verdict here.
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Old March 6, 2014, 10:42 AM   #48
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When he says
Quote:
I would hold that the Yolo County’s “good cause” requirement is constitutional because carrying concealed weapons in public is not conduct protected by the Second Amendment.
isn't that something of a half-truth analysis of Peruta already? Peruta didn't find that carrying concealed is protected, so much as some form of carry is protected. Like the right to travel is protected, but the "right" to fly, to drive, or travel via some other method specifically, isn't protected?
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Old March 6, 2014, 12:08 PM   #49
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Thomas agued in dissent in Peruta that the majority erred in looking beyond the specific question presented, which was a challenge to the good cause requirement of the concealed carry law. Looking solely at concealed carry, Thomas concluded, based on a long history of cases upholding concealed carry bans, that concealed carry was not within the scope of the Second Amendment--as had the eastern circuits in Kachalsky, Drake and Woolard.

The majority did look at that law more globally, found a right to carry outside the home, and concluded that carry for self defense had to be allowed in one form or another; California having effectively banned urban open carry, concealed carry had to be allowed, and a discretionary system of issuance that had the effect of banning most people from exercising the right was unconstitutional.

In Richards, and contrary to what Al says, Thomas did not concede that the majority was correct, only that under principles of stare decisis the outcome was determined by Peruta. In his concurrence, though, he made the point that he believed that Peruta was wrongly decided, and essentially invited en banc review.
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Old March 6, 2014, 12:24 PM   #50
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Which is why I stated that Judge Thomas "reluctantly agreed." <-- Note the term I used. I did not say he "conceded." You named it: stare decisis.

Not being an attorney affords me the leeway to put legalese into a manner in which the non-legal mind (and the majority of the people), can understand.

You want to take issue with that? Certify my entry into the Bar, and I will go all legalese on everyone. As many of my posts will attest, I'm quite capable of that.
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