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Old February 15, 2014, 09:56 AM   #101
gc70
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The current circuit split largely boils down to differing interpretations of the "core" right in the Second Amendement and ensuing determinations about levels of scrutiny.

The Peruta decision is based on the "core" Second Amendment right being one of using arms for self-defense and that right containing two components: to "keep" and to "bear" arms.

Quote:
(p15) Finally, both Heller and McDonald identify the “core component” of the right as self-defense, which necessarily “take[s] place wherever [a] person happens to be,” whether in a back alley or on the back deck.
The word "core" is only used twice in the majority decision in Heller:

Quote:
(p58) This makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional.

(p62) We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. [referring to Breyer's dissent]
The decisions in the 2CA, 3CA, and 4CA all rely on a perverted expression of the "core" right as articulated in Breyer's dissenting opinion in Heller.

Quote:
The majority does, however, point to one type of confrontation that counts, for it describes the Amendment as “elevat[ing] above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” Ante, at 63. What is its basis for finding that to be the core of the Second Amendment right?
From the 2CA decision in Kachalsky v City of Westchester

Quote:
Heller explains that the “core” protection of the Second Amendment is the “right of law-abiding, responsible citizens to use arms in defense of hearth and home.”
From the 4CA decision in Woollard v Gallagher:

Quote:
(p16) We now know, in the wake of the Supreme Court’s decision in District of Columbia v. Heller, that the Second Amendment guarantees the right of individuals to keep and bear arms for the purpose of self-defense. See 554 U.S. 570, 592 (2008). Heller, however, was principally concerned with the "core protection" of the Second Amendment: "the right of law-abiding, responsible citizens to use arms in defense of hearth and home."

(p20) In Masciandaro, we announced that intermediate scrutiny applies "to laws that burden [any] right to keep and bear arms outside of the home." See 638 F.3d at 470-71 (explaining that "we assume that any law that would burden the ‘fundamental,’ core right of self-defense in the home by a law-abiding citizen would be subject to strict scrutiny.
From the 3CA decision in Drake v Filco:

Quote:
For these reasons, we decline to definitively declare that the individual right to bear arms for the purpose of self-defense extends beyond the home, the “core” of the right as identified by Heller.

Last edited by gc70; February 15, 2014 at 10:05 AM. Reason: personal spell-checker obviously not working today
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Old February 15, 2014, 10:30 AM   #102
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Yes and in Moore we have Posner saying:

Quote:
To confine the right to be armed to the home is to divorce the Second Amendment from the right of self-defense described in Heller and McDonald this case, like Heller and McDonald is just about self-defense.

The Supreme Court has decided that the amendment confers a right to bear arms for self-defense, which is as important outside the home as inside.

What does it mean to bear arms if there's no right to carry arms in a public place?

You don't bear arms in your house, you don't march around with a gun over your shoulder right?
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Old February 15, 2014, 11:00 AM   #103
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Posner provided an excellent textual, historical, and logical analysis of why the use of firearms for self-defense is not location-dependent. However, Moore did not directly challenge the other Circuits in the way Peruta does. Peruta drives a stake into the heart of the "core" argument that the other Circuits use to avoid analysis and automatically demote anything outside the home to lesser scrutiny and effectively put a gloss on rational basis and call it intermediate scrutiny.
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Old February 15, 2014, 01:21 PM   #104
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It seems both Posner (7CA), O'Scannlain (9CA), and the Heller court use a different scale from many judges for determining when to apply any scrutiny at all.

Scrutiny, it seems, is really only appropriate to employ when a case is far from the core of a right. It's for use when the questions are close, not broad questions like "is self defense outside the home part of the core right?".

Not wanting to really believe that something so terrifying as an armed neighbor could possibly come under constitutional protection, the lower courts seize on a twisted, tortured form of reasoning that amounts to a shell game in which their view of a safe world must win the day.

Self-defense, inside or outside the home IS the core of the right and therefore no scrutiny was necessary to decide it. Scrutiny is a messy, slippery concept for many judges and invites abuse as we have seen in the lower courts. Many judges apparently lack the mental horsepower to know when it is appropriate to employ, and then lack, utterly, the intellectual honesty to properly apply it.

I have so much respect for judges like Posner (reportedly no fan of the 2A) who have the intellectual honestly and brute mental force to see and overcome their own bias and follow the law and reason.

O'Scannlain, I think, is a true 2A believer, but O'Scannlain is every bit the giant that Posner is, and those two voices will carry a lot of weight as these issues percolate up.

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Old February 16, 2014, 04:47 PM   #105
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The one thing I hated about Con Law was that it seemed to me that selection of the appropriate level of scrutiny was more political than driven by legal dogma or logic. Often, one could reasonably argue that the Court would determine what result it wished to reach, and then selected the "appropriate" level of scrutiny that would achieve that result.

That said, there is always "scrutiny" at some level. Everyone agrees what "strict scrutiny" means, and what "rational basis" scrutiny is. The real fight is deciding what "intermediate scrutiny" means, and what we are seeing in the 2A context is two fold. First, courts are wanting to apply a "sliding scale" approach--which means that there is no definition of what intermediate scrutiny means, rather the level of scrutiny will depend on how important that particular court finds the interest asserted to be. Second, what the Second, Third, and Fourth circuits consider to be is little more--if anything--than "rational basis review in disguise. Under intermediate scrutiny, there is supposed to be some sort of evidentiary showing of a "close fit" between the restriction and the public interest; presumably, therefore, a Legislature that adduced no evidence, and any sate defending a case that submitted no evidence, would lose. But this has not happened, with the east coast courts according amazing deference to Legislative determinations--which is what rational basis review is all about. An excellent discussion of this "foundational' legal conflict is explicated in the Peruta decision, where Justice O'Scanlain deconstructs the forced and faulty logic of the Circuits that have upheld "may issue" laws.
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Old February 16, 2014, 05:49 PM   #106
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I agree with Al that Peruta is far from over. I believe that there is no doubt that Sheriff Gore and the County will seek further review; the have every incentive to do so and no disincentive. It cannot get any worse than it is now, and with several other cases waiting in the wings raising the identical issue that are now pending on appeal in the Ninth (including one challenging LA's essentially identical "justifiable need" standard as applied by Gore), there is an absolute need to seek any and every avenue of reversal.

I assume that Gore will first seek en banc review. Just based on odds, the panel will be weighted towards justices appointed by Democratic presidents, although the panel will be headed up by Chief Justice Koskinski, who is a 2A rights supporter. [Someone else can answer as to whether any of the three justices on the Peruta panel are eligible for selection to an en banc panel. I understand that selection is random.] There may be enough votes for a reversal of O'Scanlain's opinion, although that would certainly be far more political than legal if it were to occur--O'Scanlain's opinion, in my professional opinion, is impeccable in its research and in its reasoning. The dissent tries mightily to narrowly focus the issue solely on concealed carry (and the historic approval of restrictions or bans on such carry) without considering the broader background upon which the law is applied--i.e., the fact that without a CCW, it is impossible, for all practical intents and purposes, to bear arms in California in any incorporated city or town. [Technically, one could argue that the dissent is correct that the appeal was from an action challenging only the good cause requirement for CCW--but during appeal, California enacted laws that banned the carrying of all firearms, loaded or unloaded, in incorporated areas--a fact ignored by the dissent but relied upon by the majority.]

If Gore wins on en banc review, the potential for SCOTUS review is diminished, as there will be no split among the circuits that merits Supreme Court intervention.

On the other hand, if O'Scanlain's decision is affirmed either by denial of en banc review or by a decision on the merits (or in the alternative, if Gore elects to seek review immediately--which is unlikely in my view, as it would be one eliminate one extra shot at reversal), there is a substantial probability of a petition for review being granted. In my view, the Supreme Court has been waiting for the Ninth Circuit to weigh in before granting review to consider the right to bear arms, as it is the only circuit that has a "may issue" "justifiable need" state that has not issued an opinion up to now, and of course, the Ninth is the largest and busiest court, with an effected population of 30 some odd million people.
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Old February 16, 2014, 09:32 PM   #107
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Quote:
Originally Posted by 62coltnavy
If Gore wins on en banc review, the potential for SCOTUS review is diminished, as there will be no split among the circuits that merits Supreme Court intervention.
A split exists between the 7CA and the 2CA, 3CA, and 4CA, regardless of the eventual outcome of Peruta. The 3CA explicitly recognizes the split in Drake.
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Old February 17, 2014, 12:49 PM   #108
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I'm wondering who besides SCOTUS classifies something as a split.

Is there a split when a panel says there is a split in their opinion?

Is there a split when an opinion explicitly declares the decisions of other circuit courts wrong, as is the case with Judge O'Scannlain?
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Old February 17, 2014, 03:41 PM   #109
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Quote:
Originally Posted by 62coltnavy
I believe that there is no doubt that Sheriff Gore and the County will seek further review; the have every incentive to do so and no disincentive.
Chuck Michel mentioned in his interview on Cam & Co (http://www.nranews.com/cam/list/cam-company) that San Diego is more politically diverse than the Democratic bastions of L.A. and SF. (Heck, we just elected a R mayor.) There's a big contingent of past & present military, and the pro-2A, inland counties play a much larger role than in SF or LA. Those pro-2A leanings are reflected in our elected officials -- even high-$$, coastal communities sometimes have very pro-2A representation (Rocky Chavez, Darrell Issa, et al).

That political diversity means, according to Mr Michel, that it's not a guarantee San Diego will go forward with the appeal (although I, too, personally believe they will). He also mentioned that an anti group, such as a coalition formed from LA & SF types, or one of the Bloomberg fronts, could say to San Diego, "Hey, we'll fund this show, all you have to do is appeal."

Also,if San Diego appeals, then doesn't it open the door to SCOTUS (Peruta loses the appeal, then Peruta files for cert)? If this goes to SCOTUS and the Heller 5 still live, there's a risk for the entire nation to have all their may-issue schemes swept away by one decision. Many feel that antis from across the nation will pressure San Diego not to appeal precisely to avoid that risk (it should be noted those same people tend to believe that risk what why Moore was never held out for cert).

Last edited by speedrrracer; February 17, 2014 at 03:48 PM.
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Old February 17, 2014, 06:34 PM   #110
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Dave Hardy has some thoughts on the roadmap here. If there's an en banc hearing and they uphold the ruling, it'll create a circuit split. If the panel overturns it, there's no real split, but we can still appeal. I don't know how likely the Supreme Court is to hear it given that they've ignored two other carry cases.

If the county decides to do nothing and nobody calls for a rehearing, the ruling stands in the 9th Circuit, but the matter doesn't go further.
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Old February 17, 2014, 06:47 PM   #111
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There is no "split" between the Seventh and the Second third and fourth circuits, or at least not a very strong one. The fact of the matter is that Moore was not further appealed, and because of a legislative change, the Seventh never issued its mandate. Further, however you characterize that "split," it has not been enough to date to lead to a grant of cert.

In my opinion, SCOTUS was waiting on the Ninth to rule before taking another case--it wanted all the players in states that have "may issue" laws to have weighted in, and now they all have. Further, O'Scanlain made the existence of a split perfectly clear, when he called out the other circuits for their flawed reasoning and incorrect conclusions. I believe that if cert is sought on this opinion right now, SCOTUS will almost certainly grant cert. Or, if en banc is sought but the decision is affirmed, again cert. will likely be granted, as this is the first of several cases from the Ninth likely to have the same result.

This of course all changes if an en banc panel reverses, and then it is anyone's guess as to what SCOTUS will do, in that all "may issue" jurisdictions (Illinois is now shall issue) will have agreed with each other, leaving no conflict for the court to resolve.

Speed Racer, I don't see why anti-gun groups would push not to appeal, since a reversal will strongly discourage a grant of cert. If they win, then all states having "may issue" laws will have had their schemes affirmed in every circuit. Moreover, even if they do not appeal, the circuit split will continue to exist, such that cases from other circuits (one is pending cert review now) are more likely to be accepted in order to resolve the split.

I think we have reached the point with Peruta that it is all in or nothing.

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Old February 17, 2014, 09:05 PM   #112
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Quote:
I'm wondering who besides SCOTUS classifies something as a split.

Is there a split when a panel says there is a split in their opinion?
No. Happens all the time, even within SCOTUS.

Quote:
Is there a split when an opinion explicitly declares the decisions of other circuit courts wrong, as is the case with Judge O'Scannlain?
Depends. A split is when the majority opinion of two or more Courts differ. This results in having different versions of the law within different districts. Then it's up to SCOTUS to resolve the differences.
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Old February 17, 2014, 10:13 PM   #113
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Quote:
Originally Posted by 62coltnavy
There is no "split" between the Seventh and the Second third and fourth circuits, or at least not a very strong one.
Eugene Volokh, David Kopel, and Lyle Denniston (SCOTUSblog) all think there is a 7-9 vs 2-3-4 circuit split.

Quote:
Originally Posted by 62coltnavy
The fact of the matter is that Moore was not further appealed, and because of a legislative change, the Seventh never issued its mandate.
From Case #44, Moore V Madigan, of the Current 2A Cases thread here on TFL:
  • 07-09-2013 - Mandate is issued by the CA7. Illinois Legislature overrides an amendatory veto and a carry law is in place.
  • 07-09-2013 - Madigan files an MTD on mootness grounds.
  • 10-09-2013 - MTD denied as Judge Meyerscough has ruled the case is not moot on the grounds that the relief requested has not been applied.

Last edited by gc70; February 17, 2014 at 10:24 PM.
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Old February 18, 2014, 10:22 AM   #114
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I have to assume there is a time limit to file the en banc review . How long do they have before the ruling becomes final and no other coure of action can be taken on this ruling except appeal to higher court ? For that matter how long do they have to appeal to a higher court . I'd think at some point the ruling becomes final and there is nothing anybody can do .
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Old February 18, 2014, 01:43 PM   #115
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Quote:
Originally Posted by 62coltnavy
Speed Racer, I don't see why anti-gun groups would push not to appeal, since a reversal will strongly discourage a grant of cert. If they win, then all states having "may issue" laws will have had their schemes affirmed in every circuit. Moreover, even if they do not appeal, the circuit split will continue to exist, such that cases from other circuits (one is pending cert review now) are more likely to be accepted in order to resolve the split.
It's a risk thing. The Heller 5 live. It's not unreasonable to assume that IF the 9th's interpretation of Heller (as expressed in Peruta) is correct, SCOTUS will therefore affirm Peruta, and that affects much more than just the 9th -- it affects the elite, Northeastern antis who are currently secure in their no-issue schemes, and have decisions from their districts affirming those schemes.

So they are sitting pretty in their domains, and Peruta going to SCOTUS represents a very real risk to the security of their schemes. Why not sacrifice the 9th (temporarily) until Hillary can pack the Court during her terms? Then let some case go through to SCOTUS, and carry gets destroyed forever.

I should add the above is not my belief, and that I have no specific knowledge about it's likelihood, I'm just putting it out there as a possibility.

Quote:
Originally Posted by metal god
I have to assume there is a time limit to file the en banc review . How long do they have before the ruling becomes final and no other coure of action can be taken on this ruling except appeal to higher court ? For that matter how long do they have to appeal to a higher court . I'd think at some point the ruling becomes final and there is nothing anybody can do .
Courtesy of Librarian / mymonkeyman on CalGuns:

Quote:
The Peruta opinion is good law today, and will have effect when its order goes back to the lower court (UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA) for issuing the judgement against San Diego as directed. That time is, IIRC, 7 days (Next Thursday, 2/20).

USDC-SDC is unlikely to be in a big hurry about following that order, given the anticipation of appeal, and the exact wording will take some work anyway.

The county can petition for en banc up until 2 weeks, Feb 27. It can also skip that step and petition for cert to the Supreme Court. OR, if the county does not get around to it, sometime on or before March 6 one of the 9th Circuit judges can request en banc consideration.

Then (per mymonkeyman) the 9th has 21 days to swap internal opinions, and another 14 to actually vote on whether to take the case en banc. That could take us out to April 10.

I believe it to be the case that until the case might be accepted en banc, or the petition for cert to SCOTUS is accepted, the law and ruling would be in effect, in San Diego only, while consideration of acceptance to the next step is going on. So, USDC-SDC may work on the order from Feb 20 until the appeal is accepted, or it may finish the work and tell San Diego 'this is how it has to be' sometime before an appeal might be accepted.
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Old February 18, 2014, 04:03 PM   #116
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Time limits to issue LTC

Correct me if I'm wrong:
After the lower court issues the injunction as directed by the Court of Appeals, San Diego must accept self defense and issue LTC's until such time as the en banc or SCOTUS issues a stay.

Does a stay go into effect automatically if cert for en banc or SCOTUS is requested?

Sounds like there may be a time window to get an LTC.
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Old February 18, 2014, 04:18 PM   #117
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I think this has been answered here:
http://thefiringline.com/forums/show...13#post5773213
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Old February 18, 2014, 04:22 PM   #118
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There isn't. The SD Sheriff's dpt has stated that it is still reviewing and studying the case, and is issuing permtis per their existing rules and regulations.
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Old February 18, 2014, 04:49 PM   #119
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There isn't currently. There MAY be at some future time no one can predict yet. And there's a third option. The Sheriff's office could still refuse to issue between any order and a stay pending en banc or cert. If so, I'd make sure I applied, to have a chance at making the Sheriff's office make a donation to your LTC fund after a Civil rights suit decided in your favor.
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Old February 19, 2014, 08:03 PM   #120
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"Eugene Volokh, David Kopel, and Lyle Denniston (SCOTUSblog) all think there is a 7-9 vs 2-3-4 circuit split."

No doubt there is a split between the 9th and the 2-3-4, but as I said before, the "split as to the 7th is weak for the simple reason that the 7th considered a jurisdiction where there was no carry law in place--Illinois banned all carry of handguns, concealed or openly carried. By contrast the decisions in all of the other courts involved "may issue" jurisdictions and the definition of "good cause" to carry. In short, the issue on Moore was different than the issue in the other cases--related, yes, but different. further, as I recall it, Moore did not raise an issue as to the proper level of scrutiny to be applied; as in Heller, the complete ban failed every level. Not so in the other cases in 2, 3 and 4; and the issue as to not only the proper level of scrutiny but the manner in which that scrutiny should be applied looms large on the legal horizon. This is pretty arcane stuff divorced from the second amendment itself. To state it succinctly, the east coast courts seem to apply an intermediate scrutiny review that reads like "rational basis"; for example, the New Jersey court concluded that if the Legislature said it was in the public interest, the court was for some unknown reason to defer to that legislative judgment, even in the absence of actual evidence. (The dissent in that case explains the issue pretty thoroughly.)

The decisions of 2-3-4 are in direct conflict with the decision of the 9th. And I reiterate--there have been several cases, Woolard among them, that sought review AFTER the decision in Moore, but the petitions were all rejected, an indication that the Supremes did not believe that this issue was yet ripe for review. After Peruta, it is very hard to conclude that the issue is NOT ripe.
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Old February 19, 2014, 08:12 PM   #121
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Quote:
Originally Posted by 62coltnavy
"Eugene Volokh, David Kopel, and Lyle Denniston (SCOTUSblog) all think there is a 7-9 vs 2-3-4 circuit split."

No doubt there is a split between the 9th and the 2-3-4, but as I said before, the "split as to the 7th is weak for the simple reason that the 7th considered a jurisdiction where there was no carry law in place--Illinois banned all carry of handguns, concealed or openly carried. By contrast the decisions in all of the other courts involved "may issue" jurisdictions and the definition of "good cause" to carry. In short, the issue on Moore was different than the issue in the other cases--related, yes, but different....
I'll go along with the well known and widely respected legal scholars, Volokh, Kopel and Denniston, on this.

The underlying and pivotal issue in all the cases is the same: the extension of the rights described by the Second Amendment to include a right to carry (bear) arms outside the home for personal defense.
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Old February 20, 2014, 12:41 AM   #122
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"The underlying and pivotal issue in all the cases is the same: the extension of the rights described by the Second Amendment to include a right to carry (bear) arms outside the home for personal defense."

I disagree. I don't recall which circuit was which, but at least two of the three assumed without deciding that the right extended outside the home. (Woolard and Drake) They instead tackled the issue as to what was the permissible scope of restrictions on the right to carry a concealed weapon, i.e., the propriety of "good cause" for issuance of a license. Moore v. Madigan had no such issue, as all concealed carry was banned. Secondarily, each applied some variant of "intermediate scrutiny" (or at least what they called "intermediate scrutiny"), and again Moore had no such issue because Illinois failed to adduce any evidence establishing even a rational basis for its law.

With this, it is except in the most strained fashion impossible to say that the same [I]legal[I] issues were addressed, and that the cases are in "conflict." I think that partly for this reason, and partly because it wanted to hear from the Ninth first, SCOTUS has not granted cert in any of the cases in which it has been sought. I think that that will change now, unless perhaps Peruta is reversed by an en banc opinion.
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Old February 20, 2014, 12:52 AM   #123
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Originally Posted by 62coltnavy
...I disagree. ...
Yes, I know you do. But you're disagreeing with Volokh, Kopel and Denniston. I know who they are. I know their qualifications.

I don't know who you are, and I have no idea what your qualifications might be.

So I'll side with Volokh, Kopel and Denniston. I have no reason to credit your opinion over their opinions.
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Old February 20, 2014, 02:36 AM   #124
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Quote:
Originally Posted by 62ColtNavy
I disagree. I don't recall which circuit was which, but at least two of the three assumed without deciding that the right extended outside the home. (Woolard and Drake) They instead tackled the issue as to what was the permissible scope of restrictions on the right to carry a concealed weapon, i.e., the propriety of "good cause" for issuance of a license. Moore v. Madigan had no such issue, as all concealed carry was banned. Secondarily, each applied some variant of "intermediate scrutiny" (or at least what they called "intermediate scrutiny"), and again Moore had no such issue because Illinois failed to adduce any evidence establishing even a rational basis for its law.
I'm still waiting for the pivotal case to get us to the most fundamental question: How can a government agency require a license (and a fee) for the exercise of a constitutional right?

How far would any state get if they tried to enact a law requiring a license (and a fee) to publish a book or magazine, or a permit to attend church?
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Old February 20, 2014, 05:31 AM   #125
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^ Isn't that Kwong?

I forget which judge at CA2 brought up equal protection but I thought one of judges did bring it up during orals.

The specific issue of prior restraint wasn't brought up but when you're talking EP, you're pretty close...
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