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Old June 6, 2011, 07:00 PM   #176
krucam
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Al must be busy...he posted this at MD Shooters but hasn't got it placed here yet.

Today, our friend Gray Peterson filed his Complaint on his Appeal in Peterson v LaCabe. The case is now called Peterson v. Garcia to reflect changes in the Denver Sheriff Dept and CO Dept Public Safety (?).
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Old June 6, 2011, 07:02 PM   #177
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Lots of updates today.

First we have Peterson v. Garcia, initial appellate brief (attached). Note: I see Krucam beat me by 2 minutes!!

In Enos v. Holder (Lautenberg), the feds have filed a supplemental brief.

In Schrader v. Holder (ban for misdemeanor crime - not DV), Schrader has filed an amended brief. Nothing more than putting in what the DOJ complained about.

Quote:
1. Plaintiff Jefferson Wayne Schrader is a natural person and citizen of the State of Georgia and of the United States. Mr. Schrader presently intends to purchase and possess a handgun and long gun for self-defense within his own home, but is prevented from doing so by defendants' active enforcement of unconstitutional policies complained of in this action.
In Kwong v. Bloomberg (NYC licensing fees), some misc. filings and a scheduling order (appears to be fast tracked - this is good and what we want). Docket.

In Benson v. Chicago (NRA), Chicago is stalling by asking for yet another extension for discovery. Docket. See pdf filing #126. For a really brief and entertaining read (only 4 pages), see plaintiffs filing #129, protesting that this "need" for more time is all of Chicago's own making.

The only thing I've had time to read is the protest by Benson's attorneys, above. But there you have it!
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Old June 6, 2011, 10:07 PM   #178
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Al Norris, are any of these cases dealing with the constitutionality of licensing requirements for concealed carry?
Thank you.
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Old June 7, 2011, 12:04 AM   #179
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Oh yeah.

Besides Peterson? Several of the cases are dealing with discretionary (may issue) carry. just off the top of my head (without looking back to the first 2 posts in this thread), we have: Peruta (CA); Richards (CA); Palmer (D.C.); Wollard (MD); Kalchasky (NY); and Muller (NJ).

One thing to remember, is that while the surface issue is licensed carry, the actual issue is a right to carry outside the home. Once that is established, then the licensing issues will fall into place.

None of these lawsuits are aimed at the district court level, and therefore, not at the districts themselves. The idea is to fail at this level fast, get to the appellate courts, and if necessary, to the Supreme Court... Which is what all these cases are aimed at.

If you read any of the briefs in light of the above, it makes much more sense as to the type and manner of the plaintiffs arguments. It is all aimed at building a record for the higher courts.

This is the difference in civil rights litigation and criminal defense.

Go back and read the Williams (MD) cert. This is a criminal case that Stephan Halbrook has turned into a civil rights case. Rightly so! If not for the oppressive laws of MD, Mr. Williams would never have been charged and convicted for carrying his new gun from his girlfriends house to his own, in his backpack.

The playbook for this style of civil rights litigation was written 50+ years ago by the NAACP. That's what we're seeing in 2A litigation, today.
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Old June 7, 2011, 02:36 AM   #180
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And once bear is established outside the home, nationwide reciprocity will not be far behind. In the same way that fundamental rights don't cease to exist past my doorstep, they don't end at any state line. Get ready to suck it up CA, NY, NJ, HI, and a few others.

Then, good luck enforcing a 10 round mag limit for visitors from the 47 states that never heard of such a thing, but who will be entitled to carry nationwide.
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Old June 7, 2011, 08:30 AM   #181
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Quote:
Originally Posted by maestro pistolero
And once bear is established outside the home, nationwide reciprocity will not be far behind.
Yeah, but I have my concerns about nationwide reciprocity. Once that happens, heavier federal regulation may not be far behind that.
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Old June 7, 2011, 08:36 AM   #182
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Thanks for the reply. It may take me a while to digest all that, but I'll get there. Next question, has any particular degree of scrutiny been established yet for 2nd Amendment case at the appellate level? There seems to be a lot of drift and evasion on the part of the courts when it comes to scrutiny. Of course, there are a whole lot of local and state gun laws that cannot possibly survive strict scrutiny.
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Old June 7, 2011, 12:36 PM   #183
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Quote:
Yeah, but I have my concerns about nationwide reciprocity. Once that happens, heavier federal regulation may not be far behind that.
I understand your concern. But if it emanates from the courts as a civil right, rather than coming from the congress, it's another critter altogether.

A high court ruling that essentially said your state CCW license is good in all states, would still have the combined strength of all states that issue.
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Old June 7, 2011, 01:03 PM   #184
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Quote:
I understand your concern. But if it emanates from the courts as a civil right, rather than coming from the congress, it's another critter altogether.
But that's not what we're suing for. Reciprocity is a different animal.

The current crop of lawsuits seeks to establish that there is a right to carry. A favorable ruling would mean that, for example, Maryland would have to issue permits, but forcing them to honor other states' permits would be a separate lawsuit.

Getting a ruling like that would likely be a 14th Amendment case more along the lines of McDonald.
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Old June 7, 2011, 01:31 PM   #185
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Quote:
But that's not what we're suing for. Reciprocity is a different animal.

The current crop of lawsuits seeks to establish that there is a right to carry. A favorable ruling would mean that, for example, Maryland would have to issue permits, but forcing them to honor other states' permits would be a separate lawsuit.
I'm quite aware of all that. Not trying to put the cart before the horse.

My point is that it will be a logical next step after bear is protected outside the home. That, once codified by the SCOTUS, that the right will soon be valid irrespective of state boundaries, but subject to some local peculiarities, as long as they don't prevent the exercise of the core right. It will take a case or cases, depending on what guidance we get from SCOTUS as to the scope of 'bear' outside the home.

But, no other fundamental, enumerated, incorporated right, once established (and we're not quite there yet) stops at a state line. That's all I'm saying.
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Old June 7, 2011, 02:01 PM   #186
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Quote:
Originally Posted by maestro pistolero
I understand your concern. But if it emanates from the courts as a civil right, rather than coming from the congress, it's another critter altogether.
In a sense, it is a different critter, but it would a civil right, regardless of whether its statutory, constitutional, or case law. My concern is primarily that if Congress enacts statutes on this, then they'll just go ahead and enact standards to go with it (registration, qualification, etc.). I think I understand what you mean, though: that a series of decisions establishing reciprocity won't (or shouldn't) entail all of the aforementioned standards to go with it.

Quote:
Originally Posted by Tom Servo
The current crop of lawsuits seeks to establish that there is a right to carry. A favorable ruling would mean that, for example, Maryland would have to issue permits, but forcing them to honor other states' permits would be a separate lawsuit.

Getting a ruling like that would likely be a 14th Amendment case more along the lines of McDonald.
Perhaps I'm behind on my 2A research, but I wonder if Full Faith and Credit would be a component to that.
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Old June 7, 2011, 02:10 PM   #187
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Quote:
But, no other fundamental, enumerated, incorporated right, once established (and we're not quite there yet) stops at a state line. That's all I'm saying.
Oh, I understand. I just don't want too many folks to get their hopes up just yet, when the Court is being given a narrow, specific question.

I suppose it's just a knee-jerk reaction on my part. When Heller came down, people were screaming bloody murder that the Court didn't repeal the NFA, enact 50-state shall-issue, and incorporate in the same decision.

Quote:
Perhaps I'm behind on my 2A research, but I wonder if Full Faith and Credit would be a component to that.
It very well could be. We'll have to see what course such a case would take. I imagine it would start by suing a state that refuses to issue permits to out-of-state residents.
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Old June 7, 2011, 04:30 PM   #188
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Go back to thinking about Drivers Licensing. Reciprocity was achieved by individual State actions. This may not be the case with licensed carry. But what drivers licensing has taught us is that it is so entrenched that should any State revoke reciprocity at this time in history, they would be soundly thrashed in court under Right To Travel doctrine. That is part of the Privileges and Immunities of Art. IV, section 2, clause 1.

Now go take a good look at the Peterson case. A ruling in our favor here, opens the door to reciprocity between all States that have carry licenses. In the alternative, the States will have to issue non-resident licenses.
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Old June 13, 2011, 10:16 PM   #189
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Today being the deadline for the filing of amicus briefs in Peterson v. Garcia (was LaCabe), an amicus that represents 20 States that are affected by the laws of Colorado in general and Denver in the specific was filed.

The NRA's Civil Rights Defense Fund also filed a brief in this matter.

There was also an amusing little thing that happened along the way to these filings. Both Peterson and Sutherland (CO AG) gave permission to file to the amici. This is usual and normal. However, the counsel for the Denver Sheriff opposed the amici, which is generally considered "bad form" to most court watchers. The court responded by giving counsel 7 days to file reasons for the opposition to having the amici file.

Quote:
Therefore, within seven calendar days of the date of this order, appellee LaCabe, through counsel, shall file a response to the NRA’s motion for leave to appear as amicus curiae, stating whether or not he consents to the filing of the NRA’s amicus brief. If he does not consent, he shall advise this court of the basis for his opposition.
That should be entertaining!
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Old June 14, 2011, 09:45 PM   #190
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Yesterday, June 13, 2011, the 9th Circuit ordered a response (from Alameda County) to the Nordyke petition for rehearing and petition for en banc review. That response is due 21 days from the June 13 order.

Before anyone makes any kind of inference, let me just say that the only thing this really means is that the petition was not summarily denied.
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Old June 21, 2011, 02:13 AM   #191
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It was a quiet week. Calm before the storm?
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Old June 21, 2011, 10:33 AM   #192
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Yesterday, in Lane v. Holder (interstate handgun transfer ban), Alan Gura/SAF filed a Motion for Preliminary Injunction.

If you remember, residents of D.C. must go out of the District; Find an actual FFL; Select their handgun and pay for it; Have the handgun sent to an in-District Authorized Dealer (FFL); Visit the police and obtain a firearms registration application; Go back to the Authorized Dealer to complete the application; Visit the police and have them authorize the transfer; Go back to the Dealer, presenting the police authorization and retrieve their handgun (after paying the Dealer his fee of $125 per transfer); Submit the firearm to the police for ballistic testing; Complete the registration and take the firearm home.

Charles Sykes was the only authorized FFL in D.C. He has lost his lease and is no longer in business according to the BATFE.

Because of the Federal (18, U.S.C. § 922(b)(3) and 27 CFR § 478.99) and local laws, residents of D.C. are now barred from obtaining any handguns.
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Old June 23, 2011, 12:05 PM   #193
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In Schrader v. Holder, plaintiffs had filed a Second Amended Complaint, earlier last month (05-27-2011, item #19). Now the Defendants (U.S. Attorney General's Office) has filed a revised Motion to Dismiss (06-17-2011, item #20).

Generally, the Defendants claim that neither Mr. Schrader nor the SAF have standing to sue. The claim is not an ongoing harm (the last failed NICS check was in 2009) nor is there any immediate threat of prosecution (the letter from the FBI was also in 2009). The Court has no Jurisdiction (the Defendants dispute that "local" means local, it could mean any number of adjacent States).

The MTD continues to stress that Schrader is not a law-abiding citizen, because he admits to the charge (and conviction) of misdemeanor Assault and Battery (in 1968). They use a variety of (career) criminal cases (before and after Heller/McDonald) to prove that Schrader is a crook, blithely failing to acknowledge that Schrader has no other criminal history (once a crook, always a crook).

The tone of their entire argument is laid out in the opening sentence of the Defendants Points and Authorities:

Quote:
Plaintiffs, a United States citizen who appears to reside in Georgia (Mr. Schrader) and an organization that claims to advocate against gun control (Second Amendment Foundation or “SAF”), bring this lawsuit seeking a declaratory judgment pursuant to 28 U.S.C. § 2201 that two federal firearms provisions—18 U.S.C. §§ 921(a)(20)(B) & 922(g)(1)—are unconstitutional.
Clearly, Mr. Schrader only appears to reside in Georgia. Just as clear, the SAF only claims to advocate against gun control. And since local does not truly mean local, this Court has no jurisdiction, even assuming that standing is proven. Over and above all of this, Mr. Schrader is a crook and should be treated as any career felon, thus precluding any right to armed self defense.

This MTD is entirely based on 2 things. 1) Manipulation of the Federal Rules of Civil Procedure (see Wollard). 2) It's the law and the law is constitutional because it's the law.

The Docket is here.

Thanks to Krucam (MDShooters) for the pointers.



A bit of movement in Kwong v. Bloomberg (NYC case to challenge the exhorbitant fees for handgun possession in the home). The Docket is here.

You should see (or see shortly), the original complaint (#1), the Cities answer (#11), the States answer (#12) and the MSJ for the Plaintiff (#14 - attached). What follows is the TOC from the MSJ, just so you can get a feel for the issues and how the plaintiffs are attacking the licensing fees of NYC.


LAWS AT ISSUE
A) Under State Law, Private Citizens Need Licenses to Possess Handguns in Their Homes
B) Article 400 of the Penal Law Governs Handgun Licenses Throughout All of New York State
C) State Law Limits Localities from Imposing a License Fee of More than $10, But Exempts New York City Residents
D) The $340 Fee is Not Calculated to Defray Administrative Costs
E) New York City’s $340 Fee Far Exceeds the Fees of Other Jurisdictions
POINT I: THE RIGHT TO KEEP AND BEAR ARMS IS A FUNDAMENTAL CIVIL RIGHT AND APPLIES “MOST NOTABLY” IN THE HOME
A) The Second Amendment Protects a Personal Right to Keep Firearms, Including Handguns
B) The Right to Keep and Bear Arms is a Fundamental Constitutional Right
C) The Right to Keep and Bear Arms has its Zenith in the Home
D) Familiar Principles of Constitutional Review Supply the Rules of Scrutiny
POINT II: NEW YORK CITY’S $340 FEE IS PROHIBITIVE AND DOES NOT SERVE TO DEFRAY ADMINISTRATIVE COSTS
A) Qualified Individuals are Entitled to Obtain Licenses
B) The City Can Only Impose a Nominal Fee that Serves to Defray Attendant Administrative Cost
C) The City’s $340 Fee is Inherently Prohibitive
D) The City’s $340 Fee is Not a Permissible License Fee
POINT III: PENAL LAW § 400.00(14) DENIES EQUAL PROTECTION OF THE LAW TO RESIDENTS OF NEW YORK CITY
A) The Scope, Severity, and Purpose of the Burden Determine the Level of Scrutiny
B) The Equal Protection Clause Invalidates § 400(14)’s Disparate Burden
The opening paragraph sums it up quite nicely:

Quote:
New York City’s $340 fee for a 3-year “Residence Premises” handgun license far exceeds the fee charged by any other U.S. jurisdiction for comparable licensure. Even within the State of New York, most other residents pay no more than $10 for a handgun license – but State law exempts residents of New York City from this protection, instead authorizing the City to impose fees without limit. The only apparent purpose for this disparate State-law treatment is to permit the City to use prohibitive license fees to discourage people from exercising their constitutional right to keep and bear arms. However, the purpose of suppressing the exercise of a constitutional right is no legitimate purpose at all. New York City’s $340 fee is unconstitutionally excessive in its own right, and the New York State law that exempts City residents from its protection against prohibitive fees violates the Equal Protection Clause.
As we all should know, Mayor Bloomberg attempted to get the fees realigned after the decision in McDonald but the City Council refused. So now we have this case.

The MSJ is written very well and attacks not only the cities fees, but through the Equal Protection Clause of the 14th, the States exemption of the City to its otherwise "reasonable" fee structure.

It will be interesting to see how the responses go.
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Old June 26, 2011, 10:41 AM   #194
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It was such a small thing, I utterly missed it! The day after the Court ordered LaCabe (Garcia) to explain why they opposed the amicus, they (LaCabe/Garcia) filed their brief.

It's a small enough answer that I'm going to post it here, verbatim:
Quote:
RESPONSE OF ALVIN LACABE IN OPPOSITION TO THE NRA'S MOTION
FOR LEAVE TO APPEAR AS AMICUS CURIAE

Alvin LaCabe, through counsel, files this response in opposition to the motion filed by the NRA for leave to appear as amicus curiae, on the following grounds:

1. Appellee LaCabe recognizes that this Court has discretion to grant or deny a request from a private organization to appear as an amicus curiae. However, the fact that the Court has such discretion does not mean that all parties must automatically consent, nor does it mean that the Court should automatically grant such a request without considering the advantages and disadvantages of an amicus curiae brief in this lawsuit.

2. LaCabe asks this Court to consider the position taken by the 7th Circuit, which "will deny permission to file an amicus brief that essentially duplicates a party's brief." Voices for Choices, et. al., v. Illinois Bell Telephone Co., et. al., 339 F.3d 542, 544 (7th Cir. 2003); National Organization for Women, Inc. v. Scheidler, 223 F.3d 615, 616 (7th Cir. 2000). The reasons for this policy are: 1) federal appellate courts have heavy caseloads and therefore need to minimize extraneous reading; 2) amicus briefs, often solicited by parties, may be used as an end run around court-imposed limitations on the length of parties' briefs; 3) the time and other resources required for the preparation and study of, and response to, amicus briefs drives up the cost of litigation, and 4) the filing of an amicus brief is often an attempt to inject interest group politics into the federal appeals process. Id.

3. The filing of an amicus brief should be granted when 1) the interests of the amicus curiae are not represented (or not adequately represented) by the existing parties; 2) when the would-be amicus has a direct interest in another case and the case in which he seeks to file an amicus brief may, by operation of stare decisis or res judicata, materially affect that interest, or 3) when the amicus has a unique perspective, or information, that can assist the court of appeals beyond what the parties are able to do. National Org. for Women, at 616.

4. The criteria articulated by the 7th Circuit for the filing of an amicus curiae brief are not present here. A review of the NRA' s proposed brief reveals that it duplicates the legal arguments presented by Appellant Peterson. Moreover, the interests of the NRA and Appellant are identical. Peterson has brought a facial challenge to the constitutionality of a state statute that requires residency within the state as a condition to the issuance of a concealed handgun permit. By seeking a declaration that the residency requirement is unconstitutional, Peterson represents not only his own interests, but the interests of all non-residents who would like to obtain a concealed handgun permit in Colorado. The NRA has not demonstrated that it offers any unique perspective, arguments, facts, data, or theories that are not to be found in the parties' briefs.

5. While Appellee LaCabe will certainly defer to the Court's judgment on this matter, nevertheless, on behalf of the City and County of Denver, Appellee asks the Court to consider whether the filing of an amicus brief by a political interest group whose arguments and interests are the same as Appellant's would actually assist the Court in deciding the legal issues presented in this lawsuit.

Submitted this 14th day of June, 2011.
The response to the SAF/CalGuns brief was even more brief: LaCabe/Garcia merely stated that they oppose the SAF brief on the same grounds they opposed the NRA brief.

While the opposition may be legally correct (in why they are opposing the filings by the amici), what it does (to my non-lawyer mind), is to tell the Court that you oppose the amici simply because you couldn't find your own amici to file (hmmmm... Did they even attempt to find an amicus? This is why tactics play an important part in the overall strategy of court cases).

The Court answered by immediately entering the amici briefs as filed.

This is akin to saying, "What type of cheese do you want with your whine?"
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Old June 30, 2011, 01:29 PM   #195
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Another Petition for Certiorari before the SCOTUS

Cloudigy Law, PLLC., a boutique law firm in Virginia, dealing with various Intellectual Property rights litigation and counseling, has announced that the case they argued (and lost) at the 4th Circuit, have filed for certiorari. See United States v. Masciandaro, 638 F.3d 458 (4th Cir. 2011).

A copy of the petition for cert can be obtained at the announcement link, above.

Matt Levy and his two associates are representing Mr. Masciandaro pro bono, working with the Office of the Federal Public Defenders. This announcement was made just this morning over at MDShooters. The petition was filed on June 22, 2011.

Quote:
QUESTIONS PRESENTED
  1. Does the Second Amendment to the United States Constitution protect a right to possess and carry a firearm for self-defense outside the home?
  2. If there is a Second Amendment right to possess and carry a firearm for self-defense outside the home, is it constitutional to prohibit law-abiding citizens’ possession and carrying of loaded weapons in motor vehicles while on National Park Service land?
This is an even cleaner case than the Williams case.

The cert petition is very well written and exposes what the lower courts are doing to emasculate the right to keep and bear arms for self defense. They even point out the blatant use of the 2A 2-Step; Deferential Reasonableness Tests (rational basis); Interest Balancing (calling it intermediate scrutiny), all chipping away at any 2A protections we may have.

If the Supreme Court had any doubts about the Williams cert, this new cert petition wipes it away.

I feel it is all but guaranteed that the Court will take one or both cases.
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Old June 30, 2011, 10:49 PM   #196
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Ironic how the defendant is pleading the right to possess a loaded handgun for self defense when it was in the trunk of his car, useless in any confrontation.

They'll probably throw the case out based on lack of intent to possess as evidenced by the fact it was not readily accessible by the defendant.

If it does hear the case, SCOTUS may rule that in addition to the right to keep a loaded handgun in the home for self defense, the right is hereby extended to apply to possession in National Parks.

But only to guns in trunks. SUV's are out, as are motorcycles. Scooters have trunks, they're in. Pickups, in a toolbox or under a bed cover.

Somebody said this would take years...
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Old July 1, 2011, 08:10 AM   #197
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Under the law that Mr. Masciandaro was convicted of, possession of a loaded firearm in a vehicle within Park Service lands, was possession, regardless of where the firearm was actually located.

His intent plays no part in his conviction.
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Old July 6, 2011, 03:38 PM   #198
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The 7th Circuit decision on Ezell v. Chicago is out. You can read it here.

Join in the discussion by reading this thread.
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Old July 7, 2011, 08:07 PM   #199
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Today, in the case of Moore v. Madigan, an SAF sponsored lawsuit against Illinois and its prohibition of any form of lawful carry, attorney David Jensen has filed for a preliminary injunction against IL to prevent enforcement of its prohibitions.

Discussion thread is here.
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Old July 8, 2011, 07:36 PM   #200
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The decision on the Defendants MTD, on Enos v. Holder, is in. Read about it in this thread.

Mixed results but the suit is still alive.
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