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Old June 26, 2012, 10:32 PM   #351
Al Norris
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Mostly correct Jim.

The SAF and CGF can appeal their dismissal on standing. There is enough precedent on the other CA cases where they have standing, to do so.

Since the Judge found Scocca to have standing, the other plaintiffs also have standing. This has been cited in case after case, across the nation.

The Judge definitely erred in quoting from the vacated Nordyke decision.

I think we will simply have to wait and see what Don Kilmer decides to do.
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Old June 26, 2012, 11:09 PM   #352
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Federal Rules of Civil Procedure 59 and 60

I have no idea what the state court rules are in the Bluegrass State but in Federal Court any dismissal of a complaint, in whole or in part (with or without prejudice) can be appealed if one follows the proper procedure.

Don Kilmer says he will be filing an Amended Complaint.
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Old June 27, 2012, 07:58 PM   #353
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have no idea what the state court rules are in the Bluegrass State but in Federal Court any dismissal of a complaint, in whole or in part (with or without prejudice) can be appealed if one follows the proper procedure.

Don Kilmer says he will be filing an Amended Complaint.
Not exactly the same as the federal rule. I do point out Federal Rule of Civil Procedure 54(b) which states:
Quote:
(b) Judgment on Multiple Claims or Involving Multiple Parties. When an action presents more than one claim for relief—whether as a claim, counterclaim, crossclaim, or third-party claim—or when multiple parties are involved, the court may direct entry of a final judgment as to one or more, but fewer than all, claims or parties only if the court expressly determines that there is no just reason for delay. Otherwise, any order or other decision, however designated, that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.
http://www.law.cornell.edu/rules/frcp/rule_54. So, it really depends upon how the actual "judgment" is worded. I don't belief the Opinion and Order linked to would be the actual judgment which could be appealed. One could be entered separately.

BTW, the entry or denial of temporary injunctions are handled differently, of course, but I don't think that relief was sought. I could be wrong as I am not intimately familiar with the litigation.
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Old June 27, 2012, 09:28 PM   #354
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Scocca et al v. Smith et al

If Kilmer had wanted to stand by his complaint, FRCP Rules 59 and 60 give him that option. The dismissal with prejudice of his equal protection claim under the California Constitution could have been appealed immediately but he never should have brought that claim in a concealed carry lawsuit.

Here is why.

California used to have a law banning the carrying (or even possession) of handguns by persons not born in the United States which was upheld by the California Supreme Court in 1924. That portion of the law was overturned by the California court on equal protection grounds a half century later. Which, at first glance, might have seemed like a good idea to make the equal protection claim under the California Constitution until one tracks back the two cases cited by the District Court judge in the denial: People v. Yarbrough and Kasler v. Lockyer.

Both track back to the California Supreme Court decision from 1924 (In Re Ramirez) which held; that the Second Amendment was not an individual right, it concerned only militias and applied only to the Federal Government.

The Court in Ramirez relied instead on Nunn v. State (which was cited in Heller) to decide whether or not Ramirez had the right to carry a handgun concealed (he did not) but even though there is a right to openly carry a handgun, Ramirez, as someone who was not born in the US, did not have a right to even possess a handgun let alone carry one.

The Court did remark that had the law prevented Ramirez from carrying a loaded rifle or shotgun then it might be unconstitutional.

So even if the Federal judge hadn't dismissed Kilmer's claim under the California Constitution it would only have hurt his concealed carry case in the long run.

My claims under the California Constitution in my lawsuit were dismissed for entirely different reasons. In a complaint seeking purely declarative and/or prospective injuncitve relief (no monetary damages, even indirectly) the court held that the Eleventh Amendment barred my claim.

Apparently the Judge assigned to me case does not understand Ex Parte Young (1908).
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Old July 20, 2012, 07:46 PM   #355
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The GeorgiaCarry.Org case about the State banning carry in a church has been decided by the 11th Circuit.

See this thread: 11th Circuit Court Upholds Church Carry Ban in GA
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Old July 21, 2012, 12:38 AM   #356
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This is a very bad decision. It is hard to imagine that a judge could ascend to the level of a circuit court of appeals with so little ability to reason. I certainly hope this is appealed.
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Old July 24, 2012, 10:16 AM   #357
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The Stay of the permanent injunction against the State of Maryland has been lifted.

See this TFL Thread for details.
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Old July 25, 2012, 10:20 AM   #358
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An oral hearing has been scheduled in the long overdue Palmer case. See post #2, item #11 in this thread.

Quote:
07/23/2012 MOTION SCHEDULING NOTICE as to 6[RECAP] MOTION for Summary Judgment ; 5[RECAP] MOTION for Summary Judgment, 34[RECAP] MOTION to Strike 33[RECAP] Supplemental Memorandum,. Motion Hearing set for 8/27/2012 10:00 AM in a courtroom to be determined at a later date before Judge Frederick J. Scullin Jr.. (Scullin, Frederick) (Entered: 07/23/2012)

07/25/2012 RESCHEDULING NOTICE TIME CHANGE ONLY re: 6[RECAP] MOTION for Summary Judgment, 5[RECAP] MOTION for Summary Judgment, 34[RECAP] MOTION to Strike 33[RECAP] Supplemental Memorandum. Motion Hearing remains set for 8/27/2012 and the time is changed to 03:30 PM before Judge Frederick J. Scullin Jr.. (Scullin, Frederick) (Entered: 07/25/2012)
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Old August 16, 2012, 09:48 AM   #359
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Busy time For Alan Gura this coming October.

Schrader will be argued on October 10th, at the D.C. Circuit.
Lane will be argued on October 23rd, 4th Circuit.
Woollard will be argued on October 24th, also 4th Circuit.

Many of us had thought that the 7th Circuit would be releasing the decision on the Moore/Sheppard cases by close of the session, August 8th. It didn't happen.

But not to be discouraged, the 7th Circuit is still releasing decisions!

There were 5 decisions released on the 8th; 5 on the 9th; 5 on the 10th; 1 on the 13th; 5 on the 14th; 1 on the 15th and 2 today, the 16th. These decisions are both criminal and civil decisions, so there is still plenty of hope that our case(s) may be decided fairly soon.
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Old August 18, 2012, 03:23 PM   #360
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Third Appeal against LASD- last of the District level cases in Central district of CA:
http://www.jonbirdt.com/images/opening_brief.pdf
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Old August 18, 2012, 06:47 PM   #361
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Good luck, Mr Birdt.

FYI, in item IV of in the table of contents, 'district' is mis-spelled.

Please consider becoming part of the larger strategy in CA before you create yet more averse precedent that can be cited by our opponents. For example: YOUR LATEST BOONDOGGLE You've been warned repeatedly that this would be the result. NOW will you listen?

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Old August 21, 2012, 08:49 PM   #362
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Facial versus As Applied versus no challenge

The SAF/CalGuns concealed carry case (Richards v Prieto) is a Facial challenge, it will lose. The NRA/CRPA concealed carry case does not challenge the constitutionality of any California statute, it will lose.

Given nearly 200 years of precedents upholding prohibitions on concealed carry there is no way a Facial challenge will win. Not challenging the constitutionality of any California statute means no case in controversy for the courts to hear.

Jon Birdt's three lawsuits are all As-Applied challenges which happens to be the only type of challenge which can win.

And Birdt only needs to win one of his cases.
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Old August 21, 2012, 09:14 PM   #363
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Maestro,
I would not consider the ruling to be a boondoggle and I would consider the appeal- you need to read the supporting evidence- if you haven't- as getting us much closer to a victory. I am not concerned with who gets there first, or who gets credit, I just want my damn permit. I am not signing up clients or filing any other suits, there was a very specific reason for the timing and filing of the three suits, and I think a strategy that played out well.
Hopefully the pundits are right and someone else will get there first, but if they, don't I have several spare magazines ready to fire instead of waiting to reload. I approached the NRA and Calguns and both said they were not interested in suing Los Angeles at that time. I didn't agree with their rational and now, if you look at what I have accomplished, there are three solid appellate briefs on file with the 9th Circuit, supported by evidence and experts.
The rulings in Los Angeles are no worse than Richards or Peruta, and much better than Scocca and Nordyke. But what I think you should look at are the briefs and the supporting evidence for all of the cases, which ones have supporting discovery evidence or expert declarations the appellate court cna review? My concern is that Richards and Peruta may be lacking in all (not that it would have stopped me from filing if they had, but it certainly encouraged me to make sure we had a fully developed record, including discovery and depositions, but I don't need permission or donations to spend my own money). Richards and Peruta are also based upon old law (open carry) and while the Court reviews it de novo, it is not uncommon for them to remand to develop a more complete record and then re-consider the issue given the change in law. My three cases don't have that problem.
There is nothing I have done that has set us back, yet the personal attacks continue from calguns, whereas, in the 9th Circuit many have suggested Nordyke was mishandled and set us back several years and calguns famously and falsely claims that they made Sacramento go shall issue.
So my request is, please, dont make it personal, it is what it is and there are several competent lawyers pursuing several strategies and none that hurt another, if anything, the significant harm was done to all of by Nordyke, but forward we move to restore our rights.
If there was a group to coordinate with I would do that. The NRA legal counsel and counsel for Calguns have been kept abreast at every stage of the litigation and the NRA even assisted me with some discovery, so please, don't believe everything you read on the internet (and more importantly what you aren't told or what is censored because it would harm donations).
I have posted all of the briefs and supporting evidence on my website if you are interested in reading it.
Jon

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Old August 21, 2012, 11:27 PM   #364
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Thanks for a thoughtful and responsive post.
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Old August 22, 2012, 09:53 AM   #365
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August 22nd.

Today oral arguments will be held in Kachalsky, 2nd Circuit.

The States reply brief is also due in Woollard, 4th Circuit.
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Old August 26, 2012, 04:40 PM   #366
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Nichols v. Brown & Scocca et al v. Smith et al

What is the reason both of these cases are marked in red? Both are very much alive. My First Amended Complaint was filed back on May 30th and Scocca's was filed on August 6th.
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Old August 27, 2012, 01:33 PM   #367
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In Scocca v. Smith (post #4, item #51), the #9 MTD was granted with a stipuklation that the plaintiffs may file an ammeded complaint. Granting the MTD with leave to file an amended complaint. This effectiviely ended the case, until the amended complaint was filed. Hence the "red" case marker.

Because this was a CA case, I had expected the folks at CalGuns Foundation to keep the docket updated. That was not the case. The docket has been recapped along with the decision and the amended complaint, filed Aug. 6th.

Currently, the defendants have until Sept. 17th to file their answer to the amended complaint.



I have recapped the docket in the Nichols case (post #5, item #66). I have not recapped any of the filings.

Charles, if you want to have folks read your the filings in your case, you would do well to recap them yourself. It has not been established in any circuit court, that the RKBA extends to the public space (outside the home). Yes, there are several appeals in the 1st, 2nd, 3rd, 4th, 7th, and 9th Circuits that address this issue. Therefore, as others have advised you, your case is premature and lacking in merit.

I have chosen not to spend the money to recap what I feel is a meritless case. You feel differently and that is certainly your call.
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Old August 27, 2012, 02:40 PM   #368
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The First Amended Complaint in Scocca was filed last week.

As for the Ninth Circuit not finding that the Second Amendment extends outside of the home they have had plenty of opportunities to say that it doesn't including US v Vongxay and Nordyke v King where that argument was explicitly made. In Vongxay, that was the central point of his argument. Last time I checked, Vongxay is still in jail and the Nordykes will be holding their gun shows in public, and in a government building at that.

You might also want to take a look at the numerous unpublished opinions on the Second Amendment by the 9th Circuit Court of Appeals. They are all applying historical context in their decision making.

As for my case being "meritless" as you call it, it is the only case in the 9th Circuit which is arguing that the US Supreme Court meant what it said in Heller and McDonald.

Regardless, the 9th Circuit Court of Appeals will shortly have the chance to see who has the better argument.
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Old August 27, 2012, 06:54 PM   #369
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The first amended complaint in Scocca was filed on August 6th. That was 3 weeks ago. It can be found, here.

Why did I know that you would bring up Vonxay?

US v. Vongxay, 09-10072

Quote:
Argued 01/12/2010
Submitted 01/12/2010
Decided 02/09/2010
Published 02/09/2010

Summary: Defendant's conviction for being a felon in possession of a firearm is affirmed where: 1) 18 U.S.C. section 922(g)(1) does not violate defendant's Second Amendment right to bear arms; 2) section 922(g)(1) did not violate the equal protection guarantee of the Fifth Amendment; and 3) for purposes of a claim that he was unconstitutionally searched, defendant's act of raising his hands to his head constituted implied consent to search.
As for Nordyke, there was always the possibility (IIRC, since about 2006) that the court would do exactly what it did. At this moment in time, Nordyke means nothing in the overall scheme of 2A litigation. It turns out that the case was a "Hail Mary" play.

Unpublished opinions carry less weight than memorandums of law. Memorandums carry less weight than published opinions. Unpublished opinions may be citable, but like memorandums, they are not persuasive. Fact is, an unpublished opinion, memorandum or even a published opinion is not binding, even to a court within the same district.
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Old August 27, 2012, 07:39 PM   #370
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State v. Chandler, 5La. Ann. 489, 490 (1850)

Here in the 9th Circuit and in California, unpublished opinions can only be cited before the US Supreme Court. Perhaps your state and Federal Circuit is different, I can't say.

Anyone who thinks Scalia is going to reverse what he said about concealed carry should read a couple of his books: "Reading Law: The Interpretation of Legal Texts" and "A Matter of Interpretation: Federal Courts and the Law."

Or one can read the "condensed version" by reading the Heller decision where Scalia tap danced around United States v. Cruikshank, Presser v. Illinois and United States v. Miller.

1868 is the relevant year for Scalia and there was nothing in the McDonald decision written by Alito or in the concurrences by Scalia and Thomas which gave the slightest hint that what the court said in Heller about concealed carry was said in jest.

So where are the 5 votes going to come from to give you "shall issue" concealed carry assuming the court even grants cert? The Supreme Court has had ample opportunity to hear a concealed carry case in the four years since Heller and has denied cert in every case.

Which brings us full circle. Which case is more likely to win? Mine, which argues that the Supreme Court meant exactly what it said or the NRA/SAF cases which argue that the Heller Court was just joshing everyone when it said:

"Likewise, in State v. Chandler, 5La. Ann. 489, 490 (1850), the Louisiana Supreme Court held that citizens had a right to carry arms openly: “This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.”"
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Old August 27, 2012, 08:06 PM   #371
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Quote:
Originally Posted by Charles Nichols
...Which case is more likely to win? Mine, which argues that the Supreme Court meant exactly what it said or the NRA/SAF cases which argue that the Heller Court was just joshing everyone when it said:

"Likewise, in State v. Chandler, 5La. Ann. 489, 490 (1850), the Louisiana Supreme Court held that citizens had a right to carry arms openly: “This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.”"
I don't see anywhere in any of the NRA/SAF carry case papers where it's suggested that the Court was "joshing" when it thus cited Chandler.

And it's also clear that the reason the Court thus cited Chandler, together with Nunn and some other cases, in Heller was to support the conclusion that historically courts have seen the Second Amendment as describing an individual right, but one subject to some restrictions.

Here is the full text of the second citation of Nunn and Chandler from the majority opinion in Heller (pp 38 - 40, emphasis added, footnoted omitted):
Quote:
...Many early 19th-century state cases indicated that the Second Amendment right to bear arms was an individual right unconnected to militia service, though subject to certain restrictions. A Virginia case in 1824 holding that the Constitution did not extend to free blacks explained that “numerous restrictions imposed on [blacks] in our Statute Book, many of which are inconsistent with the letter and spirit of the Constitution, both of this State and of the United States as respects the free whites, demonstrate, that, here, those instruments have not been considered to extend equally to both classes of our population. We will only instance the restriction upon the migration of free blacks into this State, and upon their right to bear arms.” Aldridge v. Commonwealth, 2 Va. Cas. 447, 449 (Gen. Ct.). The claim was obviously not that blacks were prevented from carrying guns in the militia....See also Waters v. State, 1 Gill 302, 309 (Md. 1843) (because free blacks were treated as a “dangerous population,” “laws have been passed to prevent their migration into this State; to make it unlawful for them to bear arms; to guard even their religious assemblages with peculiar watchfulness”). An 1829 decision by the Supreme Court of Michigan said: “The constitution of the United States also grants to the citizen the right to keep and bear arms. But the grant of this privilege cannot be construed into the right in him who keeps a gun to destroy his neighbor. No rights are intended to be granted by the constitution for an unlawful or unjustifiable purpose.” United States v. Sheldon, in 5 Transactions of the Supreme Court of the Territory of Michigan 337, 346 (W. Blume ed. 1940) (hereinafter Blume). It is not possible to read this as discussing anything other than an individual right unconnected to militia service. If it did have to do with militia service, the limitation upon it would not be any “unlawful or unjustifiable purpose,” but any nonmilitary purpose whatsoever.

In Nunn v. State, 1 Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second Amendment as protecting the “natural right of self-defence” and therefore struck down a ban on carrying pistols openly. Its opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announcedin the prefatory clause, in continuity with the English right:
“The right of the whole people, old and young, men, women and boys, and not militia only, to keep and bear arms of every description, and not such merely as are used by the militia, shall not be infringed, curtailed, or broken in upon, in the smallest degree; and all this for the important end to be attained: the rearing up and qualifying a well-regulated militia, so vitally necessary to the security of a free State. Our opinion is, that any law, State or Federal, is repugnant to the Constitution, and void, which contravenes this right, originally belonging to our forefathers, trampled under foot by Charles I. and his two wicked sons and successors, re-established by the revolution of 1688, conveyed to this land of liberty by the colonists, and finally incorporated conspicuously in our
own Magna Charta!”
Likewise, in State v. Chandler, 5 La. Ann. 489, 490 (1850), the Louisiana Supreme Court held that citizens had a right to carry arms openly: “This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.”...
Note also in the foregoing that the Court cites a Virginia case, Aldridge v. Commonwealth, and a Maryland case, Waters v. State, each of which (1) holds that the Second Amendment describes an individual right; and (2) sustains law barring Black from possession firearms. Is the Court citing those case to suggest that such a limitation would be acceptable today?

Of course not. The Court said, explicitly, that all those cases, including Nunn and Chandler, were cited to show that (Heller, pg 38):
Quote:
...Many early 19th-century state cases indicated that the Second Amendment right to bear arms was an individual right unconnected to militia service, though subject to certain restrictions....
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Old August 27, 2012, 09:07 PM   #372
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Quote:
Of course not. The Court said, explicitly, that all those cases, including Nunn and Chandler, were cited to show that (Heller, pg 38):
Quote:
...Many early 19th-century state cases indicated that the Second Amendment right to bear arms was an individual right unconnected to militia service, though subject to certain restrictions....
Since 1891 the California Supreme Court has held that concealed carry can be prohibited. Since 1924 the California courts have relied on a California Supreme Court decision which cited Nunn v. State (which was also cited in Heller and McDonald) to uphold convictions for concealed carry. The California Supreme Court held that individuals have the right to openly carry firearms (except for the defendant because he wasn't born in the United States) but even that prohibition extended only to handguns. However, he was free to openly carry a loaded long gun for self-defense. California statutes regulating concealed carry go back to the first legislative acts of 1853.

The California Supreme Court in 1924 (and up until Heller) explicitly stated that the Second Amendment was not an individual right unconnected to the Militia and added that the Second Amendment applied only to the Federal Government.

Of course had you bothered to read either of Scalia's texts I recommended in my previous post you would not have drawn the incorrect inference regarding Nunn and Chandler that you did.

Should you ever bother to read them you will find that Scalia does not believe that the Bill of Rights applied to the states in 1791. According to Scalia, the portions of the Bill of Rights which are incorporated to the states are colored by what the People believed those rights meant when the 14th Amendment was adopted in 1868.

Many states, including California, had prohibitions on the carry of concealed weapons when the 14th Amendment was adopted.

Even St. Gura refers to prohibitions on concealed carry as "presumptively lawful."

There are arguments that could be made under the 14th Amendment in a Second Amendment context to obtain concealed carry but neither the NRA/CRPA nor the SAF/CalGuns are making them. There are also Second Amendment arguments to greatly expand where and when one can carry concealed even in highly restrictive states like California and Illinois which Scalia would embrace. But once again, the so called gun rights groups aren't making them.

Gura is going to have to stand before the 9th Circuit Court of Appeals and win a Facial challenge to California's concealed carry laws which will lose. According to his disciples that is his strategy.

The NRA will stand before the 9th Circuit Court of Appeals where Chuck Michel will have to have a pretty good answer as to where is his case or controversy and hope that the 9th gives him a do over in the District Court?
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Old August 27, 2012, 09:24 PM   #373
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Quote:
Originally Posted by Charles Nichols
...Of course had you bothered to read either of Scalia's texts I recommended in my previous post you would not have drawn the incorrect inference regarding Nunn and Chandler that you did...
[1] Mr. Justice Scalia's texts are not part of the Heller opinion. The Heller opinion stands on its own.

[2] The Heller opinion is not exclusively Mr. Justice Scalia's. It is his together with the four other Justices who joined in it.

Quote:
Originally Posted by Charles Nichols
...Should you ever bother to read them you will find that Scalia does not believe that the Bill of Rights applied to the states in 1791. According to Scalia, the portions of the Bill of Rights which are incorporated to the states are colored by what the People believed those rights meant when the 14th Amendment was adopted in 1868...
Big deal. Everyone knows that the Bill of Rights did not apply to the States. That was made clear in Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833). However, when you read a number of state court cases of the first half (plus) of the 19th Century, state courts weren't always that clear on the point.
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Old August 27, 2012, 11:45 PM   #374
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Quote:
[1] Mr. Justice Scalia's texts are not part of the Heller opinion. The Heller opinion stands on its own.

[2] The Heller opinion is not exclusively Mr. Justice Scalia's. It is his together with the four other Justices who joined in it.
You never did say which of the four justices will make up for the loss of Scalia's vote (assuming any of the concealed carry cases are even granted Cert). Not to mention Justice Thomas who will certainly side with Scalia on this issue.
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Old August 28, 2012, 12:02 AM   #375
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Originally Posted by Charles Nichols
You never did say which of the four justices will make up for the loss of Scalia's vote (assuming any of the concealed carry cases are even granted Cert). Not to mention Justice Thomas who will certainly side with Scalia on this issue.
You're assuming facts not in evidence.
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