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Old April 8, 2011, 07:09 PM   #151
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Krucam, over at MDShooters found & the posted the docket (from PACER) for Kwong v. Bloomberg.

Added that link to the ever expanding data.
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Old April 10, 2011, 11:46 AM   #152
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Back on March 21, in Bonidy v. USPS, the district court granted the Motion to Dismiss (MTD) by the defendant, USPS. This was done with a stipulation that the Plaintiffs could file a second amended complaint.

That was filed, last week and can be read here (item #15 on the docket).

Last time, the Bonidy's had only a single complaint that included both the interior of the Post Office and the parking lot. This time, they have separated the two areas. The parking lot comprises one complaint and the interior comprises the second complaint.

Because of the nature of the parking lot being the only place that the public can park, during the winter months, they may win that aspect. I believe the court will still rule that the interior is still a "sensitive place."
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Old April 15, 2011, 01:48 PM   #153
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In the D.C. Circuit Court of Appeals, Dearth v. Holder has been reversed and remanded back to the District Court. The panels decision is here.

Quote:
GINSBURG, Circuit Judge: Plaintiffs Stephen Dearth and the Second Amendment Foundation, Inc. (SAF), seeking declaratory and injunctive relief, claim that portions of 18 U.S.C. § 922 and related regulations are unconstitutional because they prevent Dearth from purchasing a firearm. The district court dismissed the suit for lack of standing. Because we conclude Dearth does have standing, we reverse the judgment of the district court and remand the case to the district court for further proceedings.
The opinion is a brief 8 pages where Judge Ginsburg (not Justice Ginsberg) lays it all out. Expect the District Court to apply the 2A two-step and/or 2A Containment. It will be back to the Circuit regardless of who wins at the District level.
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Old April 15, 2011, 09:50 PM   #154
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Not much attention has been paid to the civil rights lawsuit by Georgia Carry against the State of Georgia, concerning Georgia's ban of firearms in churches. Georgia Carry lost at the District level (final dismissal was on Jan. 25, 2011). Appellants filed notice of appeal on Jan. 26 and their brief was filed back on Mar. 14th.

The brief is 29 PDF pages and may be read here. This case hinges on both 1st and 2nd amendment issues.


In another case that wasn't followed (much) by 2A enthusiasts, was Hall v. Garcia. This was a pro se case that tied to get the 1000 foot school zone law in CA overturned. On Mar. 16, 2011, Judge Seeborg granted the defendant his MJP (#21 on the docket). You can read it here.

Bad cases make bad caselaw. Such was this case. Because this gentleman (who is not an attorney), decided he couldn't wait while other cases got lined up, it will now be harder to challenge GFSZ's.

I RECAPed the docket and the Court's Opinion on the MJP. It should be viewable shortly. It doesn't appear that Mr. Hall will be filing an appeal. Which leaves this at the District level and not the Circuit level.
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Old April 20, 2011, 10:15 PM   #155
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Some updating on Chicago v. Benson is in order.

A Supplemental Brief by Defendants in Support of their MTD was submitted on 3/24. The Illinois Association of Firearms Retailers filed a a Memorandum in Opposition to Defendants MTD on 3/29.

There is a curious docket entry:
Quote:
2011-04-14 116 0 MINUTE entry before Honorable Edmond E. Chang: With regard to the stipulation 115 and proposed order, in light of potential privilege and work product issues, the Court finds good cause for the proposed order's entry. The parties should e-mail the proposed order in Wordperfect format as required by Judge Chang's website (see the link on proposed orders). Mailed notice (slb, ) (Entered: 04/14/2011)
I wasn't aware that anyone still used WordPerfect. But after Googling, I see that the US DOJ is still a major user. Ah Well!
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Old April 21, 2011, 06:01 AM   #156
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I recall in the late 90's and early 2000's an issue with MS Word not providing the correct word count causing some filings to be rejected due to too many total words in the document.
Perhaps there may still be an issue with this.
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Old April 21, 2011, 11:23 AM   #157
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That could be the problem. I had noticed that word counts in Open Office and Word (when I was still using MS software/OS) were different.
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Old April 21, 2011, 12:31 PM   #158
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I wasn't aware that anyone still used WordPerfect. But after Googling, I see that the US DOJ is still a major user. Ah Well!
A large number of other attorneys still use WordPerfect, including myself. I won't go into nauseating detail but let's just say that in producing paper documents (or the PDF equivalent), WordPerfect is easier to work with and is more intuitive. In addition, very long documents are more stable in WordPefect, especially when using it's master document/subdocument features.

You happened to hit on my other love, besides guns.
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Old April 21, 2011, 01:12 PM   #159
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Quote:
Originally Posted by KyJim
Quote:
I wasn't aware that anyone still used WordPerfect. But after Googling, I see that the US DOJ is still a major user. Ah Well!
. . . .
A large number of other attorneys still use WordPerfect, including myself. . . .
I still use it at home and would use it at work, if I could. KyJim has hit the nail on the head. That "Reveal Codes" function rocks! (at least, it does if you're as big a geek about your word processing as I am)
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Old April 21, 2011, 02:00 PM   #160
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[sidetrack]
Back in the late 80's, I used to teach several computer classes. One of them was WordPerfect. So yeah, I remember (vividly) how much better document handling was with Reveal Codes. IIRC, macros were another feature that hasn't been duplicated, as successfully.

Quite frankly, it is still better at editing (especially with styles) than any other processor around. I just didn't know it was still being produced (sigh ... wish the linux version was still in development).

At any rate, I'll opt for LibreOffice (a recent fork of Open Office). Mostly because of the ease it handles documents in all the other formats. Including PDF. WP X5 however, is not enough reason to put the MS OS back on my system.
[/sidetrack]

OK then. does anyone but me think that the D.C. Circuits opinion in Dearth will be a win, not just for citizens living outside the US, but in an equal protection sense, all citizens?
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Old April 21, 2011, 03:11 PM   #161
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Quote:
OK then. does anyone but me think that the D.C. Circuits opinion in Dearth will be a win, not just for citizens living outside the US, but in an equal protection sense, all citizens?
It would seem so. We now have a National Instant Check System. I can't imagine why purchasing a gun outside of one's own state should be an issue at all.

If a person who's not a resident of ANY state can buy a gun, I think state residency would be therefore irrelevant.

Example: I live in say, NY city. Let's say I don't own any guns there because I don't choose to jump through the city's hurdles to own one there, or maybe just don't feel the need.

But while on vacation in say, AZ, I wish to protect my family by concealing a handgun per state law. It is clearly my right to do so in AZ.

Leaving aside, for the moment, what I must do with the gun upon returning to NY to remain compliant, isn't it direct denial of my 2A rights to prevent me from purchasing a handgun in AZ?
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Old April 21, 2011, 05:11 PM   #162
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Leaving aside, for the moment, what I must do with the gun upon returning to NY to remain compliant, isn't it direct denial of my 2A rights to prevent me from purchasing a handgun in AZ?
I would say yes it is. Since the RKBA is an individual right based on the right of self-defense, prohibiting you from purchasing a firearm if legally eligible to do so would be a violation of the 2A. I thought Heller and McDonald clarified that.

{New, never opened box WordPerfect Office 2002 Professional for Windows sitting on my shelf. I'm a Windows Server Admin by trade}
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Old April 21, 2011, 05:18 PM   #163
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Just a thought: Alan Gura repeatedly refers to his field of law as 'strategic civil rights litigation'. You can bet that Dearth is not just about one guy who lives in Canada.
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Old April 22, 2011, 08:46 AM   #164
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Yesterday (04/-21-2011), in Schrader v. Holder, Plaintiffs (SAF/Gura) filed their Brief in Support of their MSJ, opposing Defendants opposition to their MSJ. It's #14 on the docket.

In the Defendants opposition, they made use of the 4th Circuits Coleman Case (United States v. Coleman, 158 F.3d 199 (4th Cir. 1998)), where the Circuit upheld a "Felon in Possession" analogy to misdemeanor crimes punishable by terms of one year or more.

Gura pounds on the idea that the Congress meant to strip a fundamental right from common law misdemeanants, when the historical facts are that common law misdemeanants were never stripped of their rights, as the Defendants claim.
Quote:
The Government’s Attempt To Classify Schrader As A “Convicted Felon” Fails

Alternatively, the government invokes perfectly circular logic to characterize Schrader as a felon, claiming that “[b]ecause Plaintiff Schrader’s admitted crime was subject to a term of imprisonment exceeding one year, which qualifies it as a felony under the definition in federal law, he should be considered to be a convicted felon for purposes of his Second Amendment challenge.” Def. Br. at 25. Thus, the government appears to take the position that the term “felon,” as used in Heller, does not mean “felon” in either the historical or literal sense (it is undisputed that Schrader’s conviction was a misdemeanor under Maryland law), but rather however the federal government chooses to define it. It further offers the proposition that “just because misdemeanants and felons historically lost different types of rights upon conviction does not prevent Congress from properly prohibiting firearm possession by misdemeanants today.” Def. Reply at 32.

In other words, the government can deprive anyone of a constitutional right by application of a label. If “felons” have no rights, and anyone is a “felon” if Congress says so, a prohibition leveled against any category of people — parking meter violators, the left-handed, etc.— can be bootstrapped into constitutionality. This would be a particularly unsatisfying method for defining the scope of a fundamental constitutional right. But more importantly, it is simply irreconcilable with the Heller opinion itself, which focuses on the historical scope and definition of the right to keep and bear arms, as well as its historic limitations. See Pl. Br. at 29-30.
Gura also argues the type of Scrutiny to be used (Strict), as the law in question strips the core right of lawful possession for self defense from the Plaintiff.

In a separate filing (#15), Gura advises the court of last weeks decision (by the D.C. Circuit) in Dearth v. Holder, which shatters the Defendants position that Plaintiff lacks Standing (the DOJ has used this, successfully, in two prior attempts with this Plaintiff, by claiming that only D.C. is the proper venue. Now they are saying that pursuant to NavGear/Seegars they have no standing. Dearth moots this argument).

And finally, because the Defendants claim that nowhere in the Plaintiffs briefs, does he explicitly say he wants to possess a firearm now (disregarding the failed NICS checks as past injustices not at Bar), Gura motions to file a Second Amended Complaint with those very declarations.

Gura addresses this in the brief (#14), but to be sure the Defendant and the Court understands, the amended complaint spells it out.

The Defendants are naturally opposed to this.

My Opinion: Now that the D.C. Circuit has weighed in on Dearth, I suspect this Court to wait for the Palmer decision from Judge Kennedy. However it turns out, this case will go to the Circuit.
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Old May 3, 2011, 11:38 PM   #165
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On 04-15, in Kachalsky v. Cacace, Gura filed a Notice of Newly Declared Authority (the appellate decision in Dearth v. Holder)....

On 05-02-2011, in Kachalsky v. Cacace, NY filed a similar notice (#76 on the docket) on a NY State case, People v. Hughes. The decision against Hughes was an "In the Home" argument.

Now, if I was an honest judge, which case would I take judicial notice of? A Federal decision in the D.C. Circuit or an NY State appellate case.... Hmmmm...

But I betcha that this NY court disregards the federal case in favor of its own State case. Any takers?
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Old May 4, 2011, 08:46 AM   #166
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"Any takers"?

Not me, Al, I want to keep the few dollars I own...
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Old May 4, 2011, 01:30 PM   #167
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Old May 4, 2011, 03:10 PM   #168
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If there's any silver lining in the Alameda/Nordyke (gun-show ban) case, it may be that the county's no-firearms regulation may be more vulnerable to a straight 2A challenge.

Gun shows may not ultimately be protected by either the 2A, 1A, or 14A, claim (though that is yet to be seen when/if it either goes en banc or is granted cert). But as a straight keep and bear (outside the home), it may yet have merit.

See the SCOTUS Blog's take on it here: Circuit Court bolsters gun rights.

Excerpt from the SCOTUS BLOG article:
Quote:
In an important sequel to the Supreme Court’s two decisions on the right to have a gun, the Ninth Circuit Court has made it easier for gun owners to challenge laws seeking to regulate how that right can be exercised outside the home. Although the ruling may ultimately mean that local governments may take action to limit gun shows, it reached that result after first raising the barrier that gun regulations have to clear in order to withstand a Second Amendment challenge.
But with the other 'bear' cases now in front of it, it seems unlikely that 'Nordyke will be the case that carries the 'carry' ball upfield. Hopefully Williams, will be granted cert, as it is more of a pure 'bear' case.
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Old May 9, 2011, 10:13 PM   #169
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As you may remember, the Nordyke decision came out last Monday (05-02-2011). The defense in Enos v. Holder immediately submitted two Notices of supplemental Authority, citing Nordyke (05-03-2011, #17 on the Docket) and Booker (#18 on the Docket), a criminal case from the 2nd Circuit, also filed on Monday the 2nd.

The court held a hearing on the 4th and ordered supplemental briefs from both sides (#19 on the Docket):

Quote:
2011-05-04 19 0 MINUTES (Text Only) for proceedings held before Judge John A. Mendez: MOTION HEARING held on 5/4/2011 re 11 MOTION to DISMISS filed by Robert Mueller, III, Eric Holder, MOTIONS SUBMITTED: Further briefing, limited to 5 pages, to be filed by 5/11/11 and 5/18/11. Order to be prepared by Court in due course. Plaintiffs Counsel D. Kilmer present. Defendants Counsel E. Olsen present. Court Reporter: K. O'Halloran. (Vine, H) (Entered: 05/04/2011)
Donald Kilmer must have been ready for this, as on the 6th, he filed his reply brief (which wasn't due until the 11th, btw). Since the defense brought up both Nordyke and Booker, Mr. Kilmer shows exactly how they can not be used as any kind of defense.

In Nordyke, Kilmer writes:

Quote:
C. Nordyke does not advance the discussion in Enos v. Holder because the federal statutes at issue impose a complete ban on all of the Enos Plaintiffs’ rights associated with the Second Amendment. In other words, 18 U.S.C. §§ 922(d)(9) and 922(g)(9) are not mere “burdens” that make gun ownership/possession more difficult or more expensive, these statutes (1) prevent the lawful transfer of a firearm at the point of sale to any person convicted of misdemeanor crimes of domestic violence, and (2) if found in possession, these misdemeanants are subject to arrest, prosecution and felony conviction. This statutory scheme places the Enos Plaintiffs in the exact same position as the plaintiff in District of Columbia v. Heller, 554 U.S. 570 (2008), wherein the Supreme Court found that a complete ban offends the Second Amendment under any level of scrutiny. Heller at 628 et seq.

D. More to the point, the Enos Plaintiffs are not making a facial constitutional challenge of 18 U.S.C. § 922(d)(9) and/or § 922(g)(9), unless the rights restoration procedures under 18 U.S.C. § 921(a)(33) are definitively interpreted to mean that there is a life time ban on exercising the fundamental rights secured by the Second Amendment.
In regards Booker, Kilmer writes:

Quote:
C. This is a case about the restoration of rights, it is not about the definition of misdemeanor crime of domestic violence – or the initial consequences (loss of gun rights) upon conviction of a misdemeanor crime of domestic violence.
There is more, of course, but Mr. Kilmer makes the defense look rather dumb for bringing notices about cases that do not help them at all. If anything, Nordyke helps the plaintiffs, as in the (paraphrased) words of the Nordyke panel, 18 U.S.C. § 922(d)(9) and/or § 922(g)(9) do much more than "burden" the core right, it bans the right altogether. Booker, on the other hand, is a complete wash. It has no bearing at all.

I can't imagine how the the defense is going to spin these, so I guess we will wait and see, on or about the 18th of May.

This is being funded by the Madison Society. If you have any spare cash (of just about any amount) and think this is a worthy piece of litigation, consider donating to them.
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Old May 14, 2011, 12:23 AM   #170
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Friday the 13th Bonus!

If you have been paying attention, you will know that the IL legislature did not pass the Shall Issue CC bill, last week (it was actually placed on postponed consideration - under normal circumstances, this would effectively kill the bill).

It's Friday the 13th.... A couple of things have happened today.

This morning the SAF have announced that they have filed suit in Illinois over the Ban on Carrying Guns for Self Defense.

The complaint is here: Moore v. Madigan. Filed in the US District Court for Central Illinois. David G. Sigale (2nd seat; McDonald and Ezell) and David D. Jensen, lead counsel (and Counsel in the NJ lawsuit).

Also, the NRA announced they have filed a separate suit in the US District Court for Southern Illinois: Shepard v. Madigan. (if anyone finds the url for the complaint, please post it here).

Don't know how co-ordinated these are, but rumor has it that Gura and the NRA were talking recently.... Anyone want to bet that the legislation is gonna be reconsidered? I actually have no idea, but my inclination is that Cook County/Chicago will oppose (the legislation) at all costs; The State legislators who voted "no" will be able to tell their constituents that they tried, but the damned courts butted in. Win/Win politically.

At any rate, as soon as I can find them on PACER, I will update the main page.



In Richards v. Prieto, Donald Kilmer and Alan Gura filed a Notice of Supplemental Authority. It is a brief 3 pages where Gura uses the Nordyke decision to lock out the county of Yolo, CA. When life hands you lemons, make lemonade!
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Old May 16, 2011, 08:25 PM   #171
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What's Happening Today, Monday May 16th.

First, in Hightower v. Boston, Alan Gura file his opposition to the City of Boston MSJ and reply to Plaintiffs MSJ. This was filed last Thursday, the 12th. Read it here. It's a good read, even if 30 pages long.

As you read this, remember that Gura is really writing to the Circuit Court of Appeals. So don't be surprised if the District court denies the Plaintiffs MSJ and grants Boston's MSJ. (there's a pattern here)

In Richards v Prieto (was Sykes v McGinness), Yolo County, the District court did almost exactly what the court in Peruta did. It ruled that the benefit of openly carrying an unloaded firearm was option enough for citizens to defend themselves. The decision is a painful read in how this Judge misreads Heller and McDonald in order to vindicate discretionary carry. Gura and Kilmer immediately appealed to the 9th Circuit.

And finally today, in Williams v MD the Supreme Court has requested that MD respond to the cert petition. More on this, what it means and the timeline in this thread.
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Old May 16, 2011, 11:51 PM   #172
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Prieto and Peruta are amazing to me in that they both rely on the carry of an unloaded weapon as if that would satisfy the Heller requirement that the right include the use of a "functional firearm for immediate use for self defense".

DC's trigger lock and/or disassembly requirement was thus struck. An unloaded firearm is not immediately functional for the core self defense purpose of the right, but then, the court must know that.

Ironically, the CA legislature, by all accounts, is about to ban the very form of carry that the courts are saying make CCW bans constitutional: UOC (unloaded open carry). They apparently have more than enough votes to get it done, and it was barely defeated last term by fluke and luck (well, that and a lot of hard work by incredible CalGuns operatives) but it was a real squeaker.

I can only hope that the more blatantly incorrect and irrational the lower court rulings, the more opportunity there will be for the SCOTUS to set the record straight.

If stupid is supposed to hurt, then the next SCOTUS 2A cases should be excruciating for the lower courts. I've said it before, but I hope Scalia writes the next one. His sharp wit and tongue-lashing are sorely needed here.
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Old May 17, 2011, 10:49 AM   #173
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The docket for Sheppard v. Madigan is now available. The NRA complaint is here.
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Old May 24, 2011, 10:25 AM   #174
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Don Kilmer (CalGuns Foundation) has filed a request for rehearing and/or en banc for Nordyke. The filing can be read here.

The request asks 3 important questions about the decision rendered by the panel, with the first question being a real zinger:

Quote:
(1) To consider the exceptionally important question of why – with respect to the Second Amendment, an enumerated fundamental right – the verb clause “undue burden” is an appropriate substitute for the verb “infringed.” (2) In order to insure uniformity of Ninth Circuit decisions, whether the test in U.S. v. O’Brien, 391 U.S. 367 (1968) used by the Nordyke panel is congruent with this Court’s en banc application of that test as set forth in Berger v. City of Seattle, 569 F.3d 1029 (9th Cir. 2009). And (3), to determine why the original panel treated Nordykes’ equal protection claim like a substantive due process claim.
Chuck Michel (C.D. Michel & Associates) is the lead attorney for the California Rifle and Pistol Association (CRPA). With help from the NRA, the CRPA has filed its appeal in the Peruta (San Diego) case.

Krucam, over at MDShooters has uploaded the Complaint: http://mdshooters.com/attachment.php...0&d=1306240964

This is a huge 143 page PDF, which I haven't had time to fully read. Here are the questions as presented in the appeal:

Quote:
1. Does the Second Amendment right to “bear arms” protect the right to carry a loaded handgun in public in some manner, either openly or concealed?

2. Does allowing restricted open carry of unloaded handguns that may be loaded only after one is faced with “immediate, grave danger” provide a reasonable alternative means to bear arms, one that satisfies the Second Amendment right to be “armed and ready” for action in case of confrontation?

3. Was there undisputed, or any, evidence that openly carrying an unloaded handgun allows one to be “armed and ready” for immediate self-defense, or that reducing the number of law-abiding citizens permitted to carry loaded handguns (by denying them concealed carry permits) reduces crime or otherwise serves an important public purpose?

4. Do the classifications created by County’s concealed weapon permit issuance policies and practices violate the equal protection clause in light of recent Supreme Court authority that confirms the right to bear arms is fundamental?

5. Did the district court err in relying on cases distinguishing between residents and non-residents in granting County’s motion for summary judgment on Plaintiff Peruta’s right to travel, equal protection, and Privileges & Immunities claims, when no determination concerning his residency was ever made?
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Old June 6, 2011, 07:42 AM   #175
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Today, June 6th - A Heads Up!

Gray Peterson is expected to file his 10th Circuit appeal today.

Peterson v. Garcia (was Peterson v. LaCabe) - Challenges CO residency requirement for CCW.

If anyone sees the brief (and a link to it), please post it here.

Thanks.
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