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Old March 1, 2014, 03:33 PM   #226
Al Norris
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Yesterday, the mandate was stayed pending a decision of rehearing the case, en banc. Instead of uploading the file, I'll just quote it, as it is very short:

Quote:
Before: O’SCANNLAIN, THOMAS, and CALLAHAN, Circuit Judges.

The Brady Campaign to Prevent Gun Violence’s Motion to Extend Time for Filing a Petition for Rehearing En Banc and Stay the Issuance of the Mandate, and Proposed Intervenor State of California’s Motion to Extend Time to File a Petition for Rehearing En Banc and Stay Issuance of the Mandate, both filed with this Court on February 27, 2014, are GRANTED. Any proposed petitions for rehearing filed with this Court by February 27, 2014 will be considered timely if this Court grants the petitioners’ concurrently filed motions to intervene. This order does not extend the time for filing petitions for rehearing for any petitioner who did not move to intervene by February 27, 2014.

Submission with respect to the pending motions to intervene is deferred pending further order of the Court. Issuance of the mandate is stayed pending further order of the Court.
So, anything that was filed on the 27th was OK. Filing after Thursday date will be considered as being filed in an untimely manner (it will be rejected). The issuance of the mandate is now stayed until the whole court decides what it is going to do.
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Old March 1, 2014, 04:33 PM   #227
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Looking at what little you've quoted it's not nearly as compelling as the Texas study. They broke down the rate of 21+ holders, and non-holders, males, and females, and types of crimes that would result in the revocation of a Texas CHL.
The TX data is easy to get to. Given what some think of the people in the state, the stats are...compelling.

Mr. Norris, I saw a comment in another blog that Peruta does not become effective until the time has run for an appeal to SCOTUS.

I thought this incorrect. I thought that if the en banc clock runs out with no action, Peruta then applies...unless and until someone files with SCOTUS (within the 90 day period).

Please advise.
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Old March 1, 2014, 07:13 PM   #228
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Money and power.

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I've come to the conclusion that the gun control lobby has transitioned to delay mode. They believe they are likely to lose many/most of these cases and when they do they take the route that creates the longest delay. When they can delay no further they will simply make a minor change in the law and reset the game.
Absolutely correct, until WE stop playing the "elect the incumbent" game over and over again. However, in California, with the rules they have for voting "rights", they have the ability, like Chicago, to stack the deck illegally with no worries about being caught or prosecuted IF caught.
Every time we try to protect VOTING rights we end up in the same dilemma, fighting it all the way up to SCOTUS because it might "infringe" on the power of the Federal Government.
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Old March 2, 2014, 06:36 PM   #229
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Is there a way for CA AG Kamala Harris to appeal the case to the Supreme Court if there either isn't an en banc hearing or the decision of the en banc court reaffirms Peruta?

I didn't think there was a way for someone who wasn't party to the original lawsuit to ask for an en banc hearing... but she obviously did, so now I'm wondering if there is some other possible legal maneuver that the defendants could use to appeal to SCOTUS.

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Old March 2, 2014, 10:13 PM   #230
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Is there a way for CA AG Kamala Harris to appeal the case to the Supreme Court if there either isn't an en banc hearing or the decision of the en banc court reaffirms Peruta?

I didn't think there was a way for someone who wasn't party to the original lawsuit to ask for an en back hearing... but she obviously did, so now I'm wondering if there is some other possible legal maneuver that the defendants could use to appeal to SCOTUS.
Actually, her position as a party in Peruta is up in the air. She has filed a motion to intervene which, if granted, would make her a party. If granted and the court denies rehearing en banc or agrees with the three judge panel, she could then appeal to the Supreme Court.
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Old March 3, 2014, 12:10 AM   #231
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Quote:
I thought this incorrect. I thought that if the en banc clock runs out with no action, Peruta then applies...unless and until someone files with SCOTUS (within the 90 day period).
If I understand this correctly, the Peruta opinion became 'good law' on Feb 13, when it was issued. Last Friday, the direction to the lower court - to issue an opinion conforming to the Feb 13 opinion - was stayed.

If it should be taken en banc, then the Feb 13 document becomes an 'un-opinion'. Rehearing will result in a new opinion, 'over-writing' the previous one, though it should be possible for the larger panel to say 'we affirm the opinion issued Feb 13'.

If not taken en banc, it might still be accepted for certiorari, and part of the petition for that might be a request for a stay of the opinion, which may or may not be granted.
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Old March 3, 2014, 01:02 AM   #232
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This is why I think that the Motion to Intervene will be granted and the Petition for en banc will be denied.

That allows the AG to petition for cert. It's a fast track to the Supreme Court.

Should things happen in this manner, fast enough, Drake may well be held until the Court decides what it will do with Peruta.

[after posting this, I really expect KCBrown (from CalGuns.net) to come along and tell me how wrong I am]
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Old March 3, 2014, 02:41 AM   #233
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If granted status as an intervening party for the purposes of her en banc request, and if Peruta is upheld, I wonder if there any chance AG Harris would decline to file for cert. (ala Moore/Madigan)

As much as I would like to see Peruta's decision applied to the entire country, I'm not sure it's worth betting the bank on it. The 9th is a huge circuit. That's a LOT of folks who have waited a long time for the restoration of their rights. Part of me just wants to keep the win and let another case come along to spread the love nationwide. I realize that strategy is of little comfort to our friends in NJ, MD, NY, etc.

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Old March 3, 2014, 03:14 AM   #234
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maestro pistolero, some part of me wants to agree with you, especially being in San Diego, but I'm pretty certain that the SCOTUS would uphold the right to bear arms outside of the home. In light of that, I guess I can wait a couple years to get a CCW in CA if it helps out the whole country. Then again, I'll have moved to a free state by then.
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Old March 3, 2014, 12:33 PM   #235
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Anti's revving up.

Summary of briefs filed against Peruta and urging en banc:

02/27/2014 121 Filed (ECF) Amici Curiae California Peace Officers Association and California Police Chiefs Association petition for rehearing en banc (from 02/13/2014 opinion). Date of service: 02/27/2014. [8996109]--[COURT UPDATE: Attached searchable version of petition. Resent NDA. 02/27/2014 by RY] (PRC)
02/27/2014 122 Submitted (ECF) Intervenor brief for review and filed Motion to intervene. Submitted by State of California. Date of service: 02/27/2014. [8996638] (GDB)
02/27/2014 123 Submitted (ECF) Intervenor brief for review and filed Motion to intervene. Submitted by Brady Center to Prevent Gun Violence. Date of service: 02/27/2014. [8996736] (NRO)
02/27/2014 124 Filed (ECF) Amicus Curiae Legal Community Against Violence petition for rehearing en banc (from 02/13/2014 opinion). Date of service: 02/27/2014. [8996737] (SJF)

http://onlygunsandmoney.blogspot.com...of-peruta.html

I thought this is relevant because of the two petitions to be granted standing. As said before, if the standing to intervene is granted and en banc denied, then those with standing can go to SCOTUS, which can put a hold on any permits filed under Peruta. The 9th clearly decided to accept these briefs, so they are all runners.

Question: Does a petition for en banc create standing to file for cert in the same way a petition for intervention does, also?
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Old March 3, 2014, 02:40 PM   #236
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My prediction, as posted at Maryland Shooters:

Quote:
I think they reluctantly grant State AG Kamala Harris status as an intervenor, scold her for the procedural blunder of refusing to be a party then whining about the result, then deny the en banc review just to cover their bases.

It IS the state AG, after all. Everybody knows this issue is about as ripe as it can get, and will not be resolved short of SCOTUS intervention.

Neither the AG's nor the Brady's brief add anything to the case besides a little foot stomping, and parroting of the dissent. The public safety objection is tired, weak, unsubstantiated and largely irrelevant, especially in the absence of any credible data that gun licensees create an elevated threat to the public.

The noose tightens . . . .
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Old March 3, 2014, 04:22 PM   #237
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I bet Harris gets something out of this as a political sop to the "liberal" constituencies.

She ought to be hoisted on her own petard, IMO, because in fact her dog is NOT in this fight. The CA AG doesn't enforce any laws about carry permits, and doesn't write them.

Ms. Harris should learn to be more careful in her thinking. She isn't, especially when it comes to the engineering and manufacturing implications of microstamping. She has spent no time at either trade, but she "knows it's feasible". Too clever by half.
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Old March 3, 2014, 10:59 PM   #238
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I'm at the point where I have bookmarked the 9th Circuit's Peruta page - http://www.ca9.uscourts.gov/content/..._id=0000000722

Such a soap opera! I can't wait for the next installment!

(Nothing new there by 8 PM Pacific on Monday March 3)
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Old March 4, 2014, 09:41 AM   #239
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Quote:
This is why I think that the Motion to Intervene will be granted and the Petition for en banc will be denied.

That allows the AG to petition for cert. It's a fast track to the Supreme Court.
And that's why I HOPE so. Regardless of whether you're the dog, or the pony in this show, I have to imagine you want to get an answer one way or the other. O'Scannlain appears to have a great deal of respect for the process, judging from his opinion and his answer to why he wants the 9th split. I wouldn't be surprised if he cares less about what the answer is, than he does about getting an unequivocal answer all the courts can follow- from the way he was tearing into sister courts.
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Old March 4, 2014, 12:08 PM   #240
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And that's why I HOPE so. Regardless of whether you're the dog, or the pony in this show, I have to imagine you want to get an answer one way or the other. O'Scannlain appears to have a great deal of respect for the process, judging from his opinion and his answer to why he wants the 9th split. I wouldn't be surprised if he cares less about what the answer is, than he does about getting an unequivocal answer all the courts can follow- from the way he was tearing into sister courts.
Yes, you make a good point. I would rather Peruta stand, eviscerate "good cause" and get a permit. I guess a year later, the remaining states and circuits still on "may" or functional "no" issue will look at the sillier.

At the rate felons are being released, the sooner I can carry the happier I will be. I'd love a win at SCOTUS and that is the moral thing to do, but...
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Old March 4, 2014, 12:08 PM   #241
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We should remember that sometimes a US Supreme Court loss turns into a win.

In Kelo we got screwed on the entire issue of local governments taking property away from one private owner and gifting it to another at gunpoint. We got laws passed in many states in response banning that crap.

Either way we need an answer so we can start fighting back, either legislatively or in the courts.
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Old March 4, 2014, 12:51 PM   #242
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Right now we have a clear win in Peruta. I think it would be good if the SC did not hear the case, but instead let it stand as is, with appropriate language. Let a win stay a win.

Drake is the one we want them to hear. Drake is a loss right now. Let the SC hear (overturn) a loss, not a win.
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Old March 4, 2014, 12:54 PM   #243
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We got laws passed in many states in response banning that crap.
Yes, but not in all. A Supreme Court finding that there's really no right to carry outside the home would be a setback either way.

First off, in states like New Jersey, New York, California, and others, you might see every form of carry permit issuance taken off the table. At best, they'd keep their existing system with little incentive to change.

More permissive states probably would probably just keep doing what they're doing.

Second, it would be a step back to boxing in and reducing the scope of the RKBA. A loss here could leave us with the Heller dicta that the right essentially applies to a single, registered handgun for home defense and that's it. Future 2A litigation would be untenable for a very long time.
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Old March 4, 2014, 01:20 PM   #244
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Right now we have a clear win in Peruta. I think it would be good if the SC did not hear the case, but instead let it stand as is, with appropriate language. Let a win stay a win.

Drake is the one we want them to hear. Drake is a loss right now. Let the SC hear (overturn) a loss, not a win.
A) You're assuming a Peruta loss and a Drake win at the same time in your argument. If Peruta would fall at SCOTUS, so would Drake.

B) If Drake falls, Peruta would be all but nullified as well- so even if they heard Drake, and upheld our loss there, our win in Peruta is on very thin ice. Even if the window for challenging Peruta had passed and no avenue of appeal was there to re-open it, the next similar case would overturn the Peruta opinion.

C) You're forgetting one of the first and most common observations about Peruta- namely it's importance as a Circuit split. Peruta was considered/speculated (here at least) to be the nail in the coffin encapsulating SCOTUS reluctance to decide carry outside the home. With a nearly 1:1 split concerning half the country it was predicted SCOTUS wouldn't be able to leave Drake and the rest alone anymore.

Ergo: Even IF Peruta is "left as a win", it's not likely to be left alone. Leaving Peruta as a win, means Drake, and possibly Peruta and others will likely be heard. Even if it is Drake alone, the repercussions for Peruta, Moore, Woolard?, and others are still there.

I could be wrong, and if I am I'm sure one of the pros on here will point out where, but that's the gist I'm getting. IF Peruta stands, the Drake is almost assured Cert. IF Drake gets Cert, Peruta, Moore, Woolard, and other carry cases are all going to be affected by the decision. If that's the case, I want Peruta in there anyway. I want O'Scannlain's opinion with it's near plagiaristic citing and imitation of the Heller decision in front of the Court that wrote Heller.
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Old March 4, 2014, 02:15 PM   #245
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Quote:
Originally Posted by motorhead0922
Drake is the one we want them to hear. Drake is a loss right now. Let the SC hear (overturn) a loss, not a win.
I think it's less about which case is a win and which a loss, and more about, "Which is the best case, the most likely case to give us the SCOTUS result affirming carry as a right?"

If both cases are equal in that regard, then perhaps having them hear a loss is better, for the reason you mention.

I do agree with JimDandy when he said, in effect, "I want as much of O'Scanns opinion in front of SCOTUS as we can get."
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Old March 4, 2014, 04:24 PM   #246
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Quote:
I do agree with JimDandy when he said, in effect, "I want as much of O'Scanns opinion in front of SCOTUS as we can get."
Yes.
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Old March 5, 2014, 11:56 PM   #247
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New order today - http://michellawyers.com/wp-content/...-Intervene.pdf

Peruta team to respond to CA AG, Brady, CPOA filings, by March 26.
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Old March 6, 2014, 10:37 AM   #248
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What are the chances that Gore throws Harris under the bus for not getting involved in the first place, opposing her attempt to intervene after he surrendered?
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Old March 6, 2014, 11:14 AM   #249
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Quote:
Originally Posted by JimDandy
What are the chances that Gore throws Harris under the bus for not getting involved in the first place, opposing her attempt to intervene after he surrendered?
How would he do this?
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Old March 6, 2014, 11:21 AM   #250
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By saying what others have already been saying. She has repeatedly backed out of these sorts of cases in the past, and is only trying to intervene in this one after the fact, when it was a loss. That, as she's said in the past, she doesn't set the policy or pass the laws, so its not within her job description. The sort of thing you can see earlier in the thread where people have speculated about the slap on the wrist she might get from the judges themselves.
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