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Old April 15, 2013, 08:36 PM   #176
Frank Ettin
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Quote:
Originally Posted by smoking357
...See if you have a lawyer friend who can explain in more detail the consequences of not receiving Supreme Court review. See if this friend can explain Shepardizing, and the treatment Kachalsky willreceive....
I am a lawyer. You obviously are not.
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Old April 15, 2013, 08:49 PM   #177
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Originally Posted by 2ndsupporter
Frank. Frankly, you don't live here. Had to unload 3 rounds from each 10 round nanny mag today. If I get caught with 7 rounds in my 10 round nanny mag the penalty is worse than incest among other heinous crimes.

This WAS a loss.
It was a disappointing result. But even if things are over for this case, there are still cases open.

Jim March in post 159, speedrrracer in post 162 and press1280 in post 166 provide some useful perspective.
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Old April 15, 2013, 08:57 PM   #178
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Quote:
See if this friend can explain Shepardizing,
I'll explain. Shepardizing is the single best argument for using electronic databases, like WestLaw and Lexis/Nexis, for legal research.

Sure, I was hoping Kachalsky would get cert, but on retrospect, it may be a good thing it didn't. Emotions and politics are running high right now about Newtown and various gun control measures. While the Supreme Court justices are supposed to be immune to both, they are human beings and can't help but be effected. So, maybe a "cool down" period will be helpful. I'm a "glass half full" type of guy.
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Old April 15, 2013, 09:19 PM   #179
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Quote:
Originally Posted by KyJim
I'll explain. Shepardizing is the single best argument for using electronic databases, like WestLaw and Lexis/Nexis, for legal research...
You've got that right. I can't remember the last time I actually had to look in Shepard's with all the information much more conveniently available electronically.

Quote:
Originally Posted by smoking357
...and the treatment Kachalsky will receive...
And while I'm back here, I might as well explain that because the Supreme Court declined to hear Kachalsky it remains the law in the Second Circuit. Of course, if the Supreme Court had heard the case and upheld the Second Circuit, it would be the law nationally. But now it is not.

Oh, and I guess I should comment on this --
Quote:
Originally Posted by smoking357
...By the way, the Supreme Court opinion was fortunately not authored,...
When the Supreme Court denies certiorari it doesn't issue an opinion -- merely an order.
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Old April 15, 2013, 10:09 PM   #180
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Denying cert doesn't give this case any extra authority as it is well established that lower courts are not to draw any inference from a denial of cert.

I'm a little disappointed that cert was denied but there will be other opportunities.
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Old April 15, 2013, 10:41 PM   #181
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Quote:
Originally Posted by Frank Ettin
And while I'm back here, I might as well explain that because the Supreme Court declined to hear Kachalsky it remains the law in the Second Circuit.
Very good. Actually, it becomes settled law in the 2nd and persuasive authority in all other circuits. This case is now fair game for any other circuit to incorporate into its own jurisprudence.

If gun rights attorneys are dumb enough to bring cases in unfavorable circuits, look for judges to hold: "as sister circuits have contemplated similar cases and have concluded 'Kachalsky,' we find that the facts and circumstances of this case are similar enough that such rationale ought to control here. Accordingly, we adopt and apply the Kachalsky rationale in the instant matter."

Poof! In a couple sentences, Kachalsky becomes law in another circuit. Don't let that happen. Stop bringing gun cases.
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Old April 15, 2013, 10:50 PM   #182
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And you are who, to tell everyone else to stop bringing cases?

Or, are you here just to stir the pot?
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Old April 15, 2013, 11:45 PM   #183
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Quote:
Originally Posted by smoking357
...Actually, it becomes settled law in the 2nd and persuasive authority in all other circuits....
What's the difference between "settled law" and "law"?

And as for whether Kachalsky is persuasive authority in another circuit, it is up to the justices in that other circuit to decide if considering a case in which Kachalsky is cited.

You continue to demonstrate that you don't know what you are talking about. So you continually reinforce my view that there's no reason to take you seriously.
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Last edited by Frank Ettin; April 15, 2013 at 11:51 PM.
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Old April 15, 2013, 11:58 PM   #184
maestro pistolero
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Quote:
Stop bringing gun cases.
Now that's funny right there. We should lay back and take it like good little subjects.
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Old April 16, 2013, 05:30 AM   #185
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Come on guys, read what he wrote.

"If gun rights attorneys are dumb enough to bring cases in unfavorable circuits,"

He obviously meant we need to pick our battles so as not to let this setback gain further strength. Bring cases in more favorable regions, don't challenge this exact issue in an unfavorable circuit or you can expect to have this latest case reinforced.
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Old April 16, 2013, 06:16 AM   #186
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Quote:
Originally Posted by smoking357
If gun rights attorneys are dumb enough to bring cases in unfavorable circuits, . . .
Aren't unfavorable circuits the very places most badly in need of having their laws challenged? Do States like Arizona and Wyoming have statutes that need to be overturned?
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Old April 16, 2013, 08:28 AM   #187
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No Spats.

AZ is in the CA9... We know how they will rule on anything, um, gun. Sorry for you folks in CA (CA9), we can't fight there.

WY? That's the CA10... We know they aren't friendly. See Peterson.

Hmm .... Come to think of it, there isn't a single 2A friendly circuit to be found (CA7 was an aberration, yes?)!

By the logic used by smoking357, we should indeed not file anywhere. Just let the probable unconstitutional laws role on. Like Maestro implies, we should just suck it up and take whatever the legislatures dish out.

smoking357? If you are indeed an attorney, I'm glad you aren't mine. I would fire you for incompetence.

ETA:
Quote:
Originally Posted by Musketeer
He obviously meant we need to pick our battles so as not to let this setback gain further strength. Bring cases in more favorable regions, don't challenge this exact issue in an unfavorable circuit or you can expect to have this latest case reinforced.
That's not however, what smokin357 wrote. S/He explicitly wrote we should stop filing cases. Unless we had a favorable circuit. As we don't have such, what else might we do?
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Old April 16, 2013, 08:31 AM   #188
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Correct, Al. Perhaps I should have said "unfavorable States" rather than "unfavorable Circuits." My point is that our litigation has to occur where the Cases and Controversies occur.
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Old April 16, 2013, 08:36 AM   #189
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Yes Spats.

In order to win, we have to fight where the battles take us. That is, in every case, unfriendly districts and unfriendly circuits.
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Old April 16, 2013, 08:41 AM   #190
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Plus, it's hard to say we've lost anything by losing a case...
The case was confronting a loss we'd already sustained, and the cases try to overturn them. Try it makes it closer to codified to have an official ruling, but it already was codified somewhere or it wouldn't be in the courts to begin with...
We have to stand united, not just give up on CA, CT, CO, IL, MD or NY...
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Old April 16, 2013, 09:39 AM   #191
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Does this mean that SCOTUS will never hear Kachalski? Can Gura ever re-apply for cert?

Can SCOTUS reverse their decision in the future? Like lets say when Gura does file for cert in Woollard... can SCOTUS decide then that they want to hear Kachalski too?
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Old April 16, 2013, 09:46 AM   #192
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Quote:
Originally Posted by Al Norris
...Hmm .... Come to think of it, there isn't a single 2A friendly circuit to be found (CA7 was an aberration, yes?)!...
It's hard to say categorically that a Circuit is, or is not, Second Amendment friendly. Recall a few years ago in Nordyke the Ninth Circuit was the first to find the Second Amendment applicable to the States.
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Old April 16, 2013, 10:09 AM   #193
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That's right, Frank. And do I recall correctly that same panel discussing (gasp) the anti-tyranny purpose to the second amendment?
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Old April 16, 2013, 11:32 AM   #194
Al Norris
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Quote:
Originally Posted by Frank
It's hard to say categorically that a Circuit is, or is not, Second Amendment friendly. Recall a few years ago in Nordyke the Ninth Circuit was the first to find the Second Amendment applicable to the States.
Yes Frank, I recall that. This was the same panel that ruled that heightened scrutiny need not apply unless the right was substantially burdened, was it not?
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Old April 16, 2013, 11:37 AM   #195
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Quote:
Does this mean that SCOTUS will never hear Kachalski? Can Gura ever re-apply for cert?
He would have to do so on other bases than raised in his previous motion for cert. Picking the bones of Kachalski just to scratch out some previously unargued (and more than likely discarded) issue for cert doesn't seem to be a good use of Gura's time to me.
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Old April 16, 2013, 12:14 PM   #196
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Quote:
Does this mean that SCOTUS will never hear Kachalski?
Most likely. That's why we have Woollard and Moore as backups.

As for bad cases making bad caselaw, there is something of a point. Gura warned us about that. We've seen some dunderheaded lawsuits brought by individuals and local organizations that have done this.

However, Gura's won for us in the Supreme Court twice. I'm inclined to trust his judgment on this.
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Old April 16, 2013, 01:25 PM   #197
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IL Attorney General Lisa Madigan does seem emboldened

http://watchdog.org/79931/lisa-madig...ncealed-carry/

My take on it is that the Illinois anti gun politicians will now try to use "may issue" as a way to prevent people from carrying... If Woollard doesn't prevail, I think people in Illinois will see the current ban replaced with "shall not" issue. I guess it all depends on how they duke it out in the legislature, but the IL AG sure seems encouraged by cert denial of Kachalski.

It also seems to me that she may not appeal Moore now. If they can, in effect, re-create the current ban via a "may issue" system that actually issues to no one, why appeal Moore?
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Old April 16, 2013, 01:44 PM   #198
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My take on it is that the Illinois anti gun politicians will now try to use "may issue" as a way to prevent people from carrying.
They can imitate the progressive bastions of CA, use CA's template.

Bleh.
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Old April 16, 2013, 01:47 PM   #199
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They can imitate the progressive bastions of CA, use CA's template.
Yeah, have people in CA brought this situation to court?
Seems like CA and NY would spawn tons of cases...
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Old April 16, 2013, 03:11 PM   #200
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Quote:
My take on it is that the Illinois anti gun politicians will now try to use "may issue" as a way to prevent people from carrying...
They can't. Again: "may issue" is NOT going to happen in IL. Reason being, there are too many pro-RKBA IL legicritters believe it or not.

So, the ONLY things that can happen via the legislature is strong shall-issue or "Vermont carry" if they can't make a deal and the 7th Circuit's order shooting down all IL anti-carry laws happens as is scheduled to happen in July.

Madigan therefore is sitting on a very bad hand. She can appeal to the US Supremes and likely hand us gunnies a powerful win, or she lets the 7th Circuit ruling stand in which case we get either strong shall-issue or Vermont Carry in a matter of months.
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