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Old November 20, 2011, 07:37 AM   #51
American Made
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I was just reading over the Governments "dismiss" motion ... what a sick joke!

From their point of view:


"Under 18 U.S.C. § 922(g)(9), it is unlawful for any person convicted of a misdemeanor crime of domestic violence to possess a firearm. However, the definition of the term “misdemeanor crime of domestic violence” includes the following exception:
A person shall not be considered to have been convicted of such an offense for purposes of this chapter if the conviction has been expunged or set aside, or is an offense for which the person has been pardoned or has had civil rights restored (if the law of the applicable jurisdiction provides for the loss of civil rights under such an offense) unless the pardon, expungement, or restoration of civil rights, expressly provides that the person may not ship, transport, possess, or receive firearms."

Here comes the double talk:

"The test for whether one’s civil rights have been restored is whether the individual has lost and regained his right to vote, to sit on a jury, and to hold
public office."

"In California, as in most states, a conviction for a misdemeanor does not result in the loss of civil rights."

"Because plaintiffs cannot allege that their civil rights were taken
away, they cannot allege that they have had their civil rights restored within the meaning of 18 U.S.C. § 921(a)(33)(B)(ii)."

????

If they never lost their civil rights...then what are we doing here????

This whole law is unconstitutional! What is wrong with these courts?

Read it yourself http://madison-society.org/laws/032-1%20MTD%20PaA.pdf
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Old November 20, 2011, 01:34 PM   #52
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American Made, it is not "double-talk."

Their argument is that there is no civil right when considering the right to keep and bear arms. It is merely yet another twist of the Heller decision.

We have seen this in most of the cases we are following on 2A litigation.

Have you looked at the first 4 posts in the Current 2A Cases thread? This case is #39 on the hit parade (post #3) (Regardless, that thread has all the relevant 2A cases listed and cataloged).

You will find a link to the Internet Archives case docket, a link to the Justia Summary and a link to this very thread.

At the docket, you will find document #32.1, which is the download-able PDF file that you linked to. That document was made available back on 10-03, when it was filed. It was reported both here and within the 2A cases thread.

On 10-13, you will see a stipulated proposed order for continuance (#33) and on 10-19, the Judge accepted the proposed order (#35). In that order, the next item of business will be the plaintiffs filing of their Opposition to the MTD, due on 01-11-2012 and the defendants reply due on 01-18-2012.

Additionally, the plaintiffs will file a cross-motion (an MSJ) on 12-14-2011 with a response on 01-11-2012 and reply due on 01-18-2012.

A hearing on 01-25-2012 will be held to hear all current motions.
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Old November 20, 2011, 09:04 PM   #53
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Don Kilmer on Tom Greshem's Gun Talk. The subject is this case, Enos v Holder. http://guntalk.libsyn.com/webpage/gu...1-11-06-part-b

Here is the link to donate to this fight.
http://www.madison-society.org/laws/litigation.htm
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Old December 14, 2011, 06:33 PM   #54
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According to documents filed 12/13/2011 the MSJ from the plantiffs has been delayed until the 19th.
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Old December 21, 2011, 12:44 AM   #55
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Update

Enos MSJ
Declaration of Enos in Support of MSJ

http://calguns.net/calgunforum/showt...417935&page=11
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Old December 21, 2011, 09:03 AM   #56
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I fixed the links to the documents in the above post.

What Don Kilmer is telling the court is that while the Lautenberg Amendment may very well be constitutional, it is the US Governments interpretation of the means to restore the disability that is flawed as well as the lifetime ban for such a misdemeanor, when clear and convincing evidence shows that someone convicted of this crime can be rehabilitated and therefore attain the status of a "Law Abiding Citizen."
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Old January 12, 2012, 12:54 PM   #57
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Yesterday, the defendants filed their brief in opposition to plaintiffs MSJ. You can read it here.

My take on the brief:

Quote:
1. The Only Proper Defendant Under 18 U.S.C. § 925A Is The United States
Which is true if you are trying to overturn the law in question. However, if you are trying trying to overturn the DOJ's interpretation of the law, then the defendants are the proper defendants.

Quote:
2. Plaintiffs Have Not Had Their “Civil Rights Restored” Within The Meaning of 18 U.S.C. § 921(a)(33)(B)(ii)

The test for whether one’s civil rights have been restored is whether the individual has lost and regained his right to vote, to sit on a jury, and to hold public office. See United States v. Andaverde, 64 F.3d 1305, 1309 (9th Cir. 1995) (stating that in considering whether an individual’s civil rights have been restored, “the Ninth Circuit considers whether the felon has been restored the right to vote, sit on a jury, and hold public office.”) ...
The brief goes on to quote several other pre-Heller cases, as to what constitutes "civil rights."

Here the defendants are regurgitating the same defense that they (successfully) used earlier at the district court: The RKBA is not a civil right.

Quote:
3. Plaintiffs’ Claim That They Were Not Convicted Of Misdemeanor Crimes Of Domestic Violence Because They Did Not Knowingly and Intelligently Waive Their Right To A Jury Trial Lacks Merit
This is another method that the Defendants have used to downplay the post-Heller/McDonald rulings. The loss of the ability to possess firearms is a mere "collateral consequence" and not the loss of a fundamental right that the plaintiffs contend it is.

All in all, the entire brief is a distillation of the defense arguments previously made at the district court. They were successful earlier, why not now?

The differences between this case and the Skoien and Smith cases (cited as binding precedent by the defense), is that these plaintiffs have not repeated the offenses and are not before the court as criminal defendants.

This gives lie to the Court in Smith, which said: In Congress’s judgment and as demonstrated by social scientists, domestic violence misdemeanants are prone to repeated acts of intrafamily violence. Past domestic violence is an indicator of future crimes of violence, and Congress legislated with that trend in mind. As these plaintiffs have shown no proclivity to repeat the offense(s) they were convicted of.

The plaintiffs have a tough fight to separate their non-criminal action from the weight of precedence in the form of prior criminal cases.
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Old January 12, 2012, 11:23 PM   #58
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Hello Al. I posted some questions in the calguns thread http://www.calguns.net/calgunforum/s...d.php?t=417935 but you answered them here before I asked.

Thank you for your help.
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Old January 15, 2012, 12:36 AM   #59
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A mere 4 hours after the Government filed their latest brief, Don Kilmer filed the plaintiffs Opposition to the Defendants MTD.

Shame that RECAP appears to be messed up at the moment. As Don's Opposition to the Defendants MTD was really good. We should have been seeing Docket item #50: (http://www.archive.org/download/gov.uscourts.caed.215824/gov.uscourts.caed.215824.50.pdf) by now. But the docket wasn't updated nor was the pdf properly placed in the archive.

Indeed, my reading of that brief showed that Don called them on every thing I was inwardly screaming at them!

An observation, if I may. The recent ruling in Rehlander (1st CCA) should be of some small benefit, unless I have misread what the court said.
Attached Files
File Type: pdf gov.uscourts.caed.215824.50.0.pdf (284.1 KB, 11 views)
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Old February 29, 2012, 11:00 PM   #60
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The government was granted the motion to dismiss. Gun rights are not civil rights.
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Old March 2, 2012, 09:03 AM   #61
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Yesterday, the Federal District Court granted the defendants Motion To Dismiss. http://www.archive.org/download/gov....15824.63.0.pdf

The government has argued all along that the RKBA are not civil rights, as defined in the code. The Judge merely agreed.

The appeal was filed within hours of the decision.
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Old March 3, 2012, 03:38 PM   #62
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I know an individual who was convicted of four counts of aggravated assault, a felony. After ser ving his time, he was abole to go to court and ask for restoration of his civil rights. which was granted. Not only is she allowed to buy firearms, he has applied for and received a CCW permit.
I know the man and there are aspects of his case that smell so bad it would make a vulture puke but that's neihter here nor there.
Whatever happened to the thought that once a man did his time, that he's paid his debt to society. Or is it better to punish him until the day he dies?
If my wife and I should happen to have a shouting match, I could damn well end up in jail if the neighbors complained. We do have our differences every once in a while as probably every one of us here. Seems to me we are all at risk should the unthinkable happen.
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Old March 5, 2012, 11:40 AM   #63
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could it be that in our lifetimes (say 20 years) the 2A may be recognized as a civil right (as it is and should be recognized by the judicial system)
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Old March 6, 2012, 12:22 AM   #64
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It's about time this was addressed.

The law was unconstitutional on its face because it was an ex post facto law. Why this hasn't been addressed before now is a curiosity.
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Gun Control: The premise that a woman found in an alley, raped and strangled with her own pantyhose, is morally superior to allowing that same woman to defend her life with a firearm.

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Old March 6, 2012, 12:33 AM   #65
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Quote:
Originally Posted by Al Norris View Post
Oh, did I forget to mention that § 925 is not being funded? Get your application for relief of firearms disability, fill it out and send it in (with the required fee) and after a couple or three weeks, it will be returned to you (along with your uncashed check). A nice letter will accompany the return telling you that the program is not being funded by the Congress, so they can't even reject the application. It is merely returned.

The upshot of this, is that the Courts have already ruled that since the application was not denied, you don't have a claim before the court.
The case was UNITED STATES v. BEAN 537 U.S. 71 (2002).

I addressed this HERE literally years ago and got ZERO response from the members of this board. I still haven't found anyone willing to carry this thing forward. There is just no interest.

I originally addressed it HERE. Note the number of responses -- zero -- even though 92 members read the thread.
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Gun Control: The premise that a woman found in an alley, raped and strangled with her own pantyhose, is morally superior to allowing that same woman to defend her life with a firearm.

"Science is built up with facts, as a house is with stones. But a collection of facts is no more a science than a heap of stones is a house." - Jules Henri Poincare

"Three thousand people died on Sept. 11 because eight pilots were killed"
-- former Northwest Airlines pilot Stephen Luckey
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Old May 13, 2012, 03:51 PM   #66
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Quote:
05/11/2012 9 Filed clerk order (Deputy Clerk: LBS):Appellants' unopposed motion for a extension of time to file the opening brief is granted. The opening brief is due July 9, 2012; the answering brief is due August 8, 2012; and the optional reply brief is due within 14 days after service of the answering brief. Appellants are reminded that a motion for an extension of time should be accompanied by a declaration stating that the court reporter is not in default with regard to any designated transcripts. See 9th Cir. R. 31-2.2(b)(7). [8175482] (LBS)
We now have the schedule of briefing for Enos:

Opening Brief: 07-09-2012
Response Brief: 08-08-2012
Reply Brief: 08-22-2012
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Old May 27, 2012, 09:05 PM   #67
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What goes around ...

Randy "Duke" Cunningham was a member of Congress when the defunding of the ATF's ability to restore rights occurred. Now it comes around to bite him.

SOURCE

Quote:
Imprisoned ex-congressman Cunningham wants gun rights restored upon release

Published May 27, 2012

Associated Press

U-T San Diego reports Saturday Cunningham made the plea in a letter to a federal judge earlier this month.

...

The judge replied that he had no power to help Cunningham.
BINGO!! ... and neither does anyone else.
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Gun Control: The premise that a woman found in an alley, raped and strangled with her own pantyhose, is morally superior to allowing that same woman to defend her life with a firearm.

"Science is built up with facts, as a house is with stones. But a collection of facts is no more a science than a heap of stones is a house." - Jules Henri Poincare

"Three thousand people died on Sept. 11 because eight pilots were killed"
-- former Northwest Airlines pilot Stephen Luckey

Last edited by Al Norris; May 27, 2012 at 09:42 PM. Reason: reformatteed quote
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Old May 28, 2012, 02:03 PM   #68
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Quote:
The government has argued all along that the RKBA are not civil rights, as defined in the code. The Judge merely agreed.
The right does not need to be defined in the civil code, the right is defined in the ultimate law of the land... Someone needs to send him a copy of the Bill of Rights. Shameful - and the very thing people point at as being the illness in our system...

I know Im not a lawyer but this is just plain wrong...
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Old July 10, 2012, 10:26 AM   #69
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Plaintiffs/Appellants filed their opening brief, yesterday morning (attached).

You may recall that the Fed.Gov has said that if 1) the right to vote, (2) the right to sit on a jury, and (3) the right to hold public office was not restored, then no rights were violated. This, regardless of Heller/McDonald that stated that the "right to keep and bear arms" was a fundamental right.

Since, in their view, no rights were lost, none can be restored.

Don Kilmer posits this, about the breadth of the governments position:

Quote:
This tautology is not unlike the argument between the Queen and Alice over when jam can be served:
“You couldn't have it if you did want it,” the Queen said. “The rule is, jam tomorrow and jam yesterday – but never jam today.”

“It must come sometimes to 'jam today,'” Alice objected.

“No, it can't,” said the Queen. “It's jam every other day: today isn't any other day, you know.”

Through the Looking-Glass (5.16-18)
By Lewis Carroll
An entertaining read and a good brief.
Attached Files
File Type: pdf CA9 Enos 10-PltfApelllant Opening Brief.pdf (322.8 KB, 14 views)
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Old July 10, 2012, 11:04 PM   #70
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Let's look at some more quotes from the brief.

Pages 3&4:
Quote:
The controversy before this Court is caused by the federal government’s untenable interpretation of the LAUTENBERG AMENDMENT’S restoration of rights provisions which goes something like this:
  • The SECOND AMENDMENT rights suspended by the LAUTENBERG AMENDMENT can only be restored if the state misdemeanor conviction suspends civil rights and then the jurisdiction restores those civil rights.
  • The only civil rights recognized by federal law that can be suspended and thus restored is (somewhat arbitrarily) limited to: (1) the right to vote, (2) the right to sit on a jury, and (3) the right to hold public office.
  • Therefore unless the domestic violence misdemeanant lost: (1) the right to vote, (2) the right to sit on a jury, and (3) the right to hold public office – as result of an MCDV conviction; no civil rights were lost, ergo – there are no rights to restore.
  • Therefore the federal government need not honor ANY restoration of rights procedure by any state where a conviction for a MCVD does not result in the loss of: (1) the right to vote, (2) the right to sit on a jury, and (3) the right to hold public office
  • This result begs the question. Since no state suspends these rights upon a misdemeanor conviction for domestic violence – except while the misdemeanant is actually incarcerated (and in most states {including California} not even then) the LAUTENBERG restoration of rights provision that relies upon state restoration of civil rights procedures is rendered a dead letter by the government’s interpretation.
Don goes into the "Alice" dialog at this point.

The main arguments begin on page 18. However, pages 18-22 contain the preliminary arguments of this entire case (of which there are 4). It is much too much to quote here, but it should be required reading for those watching this case. These points really highlight what the law requires and the absurd manner in which the Fed.Gov is interpreting the law.

Page 25:
Quote:
The plain language of 18 U.S.C. § 921(a)(33)(B)(ii) contemplates some state law procedure for restoration of any civil rights forfeited under state law by a MCDV conviction. Appellee-Defendants keep veering off into familiar pre-Heller/McDonald territory with their mantra that a conviction must result in the loss of the right to vote, to hold public office and to sit on a jury – and that only restoration of those rights resurrects the ‘right to keep and bear arms’ – while ignoring that the ‘right to keep and bear arms’ are also civil rights.
Page 26:
Quote:
Defendants would have this Court interpret the LAUTENBERG AMENDMENT as imposing a federal mandate requiring that states revoke the right to vote, hold public office or sit on a jury for any MCDV conviction in order to give any effect to the statute’s restoration provision. That interpretation would bring into serious doubt the constitutionality of the LAUTENBERG AMENDMENT.
In short, the main arguments, are that in order to avoid assessing the constitutionality of the statutes, the court should have simply followed CA law as to the restoration of rights, not the convoluted reasoning of the Fed.Gov.

In part IV of the brief (the shortest part), should the court recognize that there is no method of restoring the 2A rights, Don writes (pages 32-34):
Quote:
The Supreme Court in District of Columbia v. Heller, 554 U.S. 570 (2008) gave assurances that “[N]othing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.” Heller at 626-27.

As noted earlier, the LAUTENBERG AMENDMENT is a recent creature of statute having been attached to an appropriations bill during the 104th Congress in September of 1996. Therefore it is not a longstanding doctrine of American jurisprudence that a MCDV should disqualify someone from exercising a fundamental, enumerated right under our Constitution.

It is only the federal government’s insistence on an obtuse reading of 18 U.S.C. § 921(a)(33) et seq., that propels this Court toward a constitutional analysis of the LAUTENBERG AMENDMENT in light of District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. Chicago 561 US ___, 130 S Ct 3020 (2010).

Because the trial court dismissed this action pursuant to Defendant-Appellees’ FRCP 12 Motion, they never filed an answer, or submitted evidence that LAUTENBERG serves a compelling or even important state interest. There certainly was no analysis of any means/ends testing to make sure this policy would address that interest.

If this Court pursues a constitutional analysis of LAUTENBERG in the shadow of the SECOND AMENDMENT, it will be required to classify Plaintiff-Appellants as ‘law-abiding’ citizens. Therefore it should adopt (almost) strict scrutiny and require the government to bear the burden of producing evidence that forbidding rehabilitated misdemeanants with a 10-year (or more) history of law-abiding conduct from exercising SECOND AMENDMENT rights serves a compelling government interest, and that the means used (a complete lifetime ban on exercising the right is necessary to achieve that interest. See: U.S. v. Chester (4th Cir. 2010) 628 F.3d 673 and Ezell v. City of Chicago (7th Cir. 2011) 651 F.3d
684.
Don then concludes his arguments with an epic tautology from "Alice's Adventures in Wonderland."
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Old July 10, 2012, 11:39 PM   #71
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I like the Alice in Wonderland quotes (there's another at the end of the brief). I think the statutory language argument is the clearest path to victory here; i.e., Lautenberg itself contemplates regaining the 2A right upon restoration of civil rights and California automatically restores the right to own firearms after ten years.

That does raise a question. On page 10, paragraph 6, the brief states a state judge ruled that each of the plaintiffs "were entitled to have their pleas withdrawn and the case dismissed." If this is the case, I would think there is no conviction which is required by Lautenberg.

IMO, the argument that the original pleas were not voluntarily and intelligently made because Lautenberg had not yet been enacted is a loser. Before Padilla v. Kentucky (cited in the brief), the federal courts were unanimous that lack of knowledge of collateral consequences of a guilty plea, such as losing the right to vote, did not make a guilty plea invalid. The Supreme Court in Padilla emphasized that the "automatic" deportation Padilla faced was virtually unique and limited its opinion to that issue only. The last I looked, all the lower courts (save one) have read Padilla to apply only where one pleads guilty without knowing he or she would face deportation.

I also do not think Lautenberg is a true ex post facto law because a restriction on the 2A right would likely be considered a civil regulation and not a criminal punishment, much like those pleading guilty to sex offenses before sex offender registration statutes were passed. I believe the U.S. Supreme Court case upholding this is Alaska v. Smith (it's late so I'm going to forgo searching for it).
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Old July 11, 2012, 09:47 AM   #72
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Quote:
Originally Posted by KyJim
That does raise a question. On page 10, paragraph 6, the brief states a state judge ruled that each of the plaintiffs "were entitled to have their pleas withdrawn and the case dismissed." If this is the case, I would think there is no conviction which is required by Lautenberg.
You do realize that this is precisely what Mr. Enos did? Still, and yet, the BATFE refuses to allow him to buy or possess any firearm.
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Old July 11, 2012, 11:18 PM   #73
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Quote:
You do realize that this is precisely what Mr. Enos did? Still, and yet, the BATFE refuses to allow him to buy or possess any firearm.
I thought that was what he did but I did not see a separate argument stressing there was no conviction under Lautenberg. Perhaps I missed it in my quick run through or there may be reasons unknown to me why it is not more forcefully stressed. I also do not mean sound over critical. It is a good brief.
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Old July 12, 2012, 10:14 AM   #74
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Point 8, page 11 (pdf page 20):

Quote:
8. Plaintiff-Appellant ENOS has an additional (third) reason he should be free from LAUTENBERG’S prohibition. He not only qualifies for restoration of his rights under the 10-year rule and the defective-waiver rule, but he is the only Plaintiff who applied for – and was granted – relief under California’s specific statutory remedy for judicial restoration of his firearms rights.
IIRC, plaintiff Enos, was the only plaintiff that was granted a refiling under the first MTD, because of this.

Of course, I could be wrong on what I remember as having read.
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Old July 12, 2012, 11:17 AM   #75
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Any blanket law like that is a bad law imo. I think there are more important issues to fight personally like a full repeal of 1968 beepity bleep. I would not imagine that the law will be upheld but that's a strictly non legal scholar personal opinion.
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