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February 24, 2013, 02:00 PM | #101 |
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Is that like the idea that CCW will never happen in IL?
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February 24, 2013, 02:17 PM | #102 | |
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Quote:
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February 24, 2013, 05:39 PM | #103 | |
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I think there is a strong argument for Kachalsky prevailing.
i don't think SCOTUS is going to overturn Moore. Moore says that Heller/McDonald identified the right to self defense as part of the Second Amendment : Quote:
If you just look at "good cause" in light of the Moore decision - "good cause" fails. We know that it's not only people who work in dangerous professions - like the owner of a jewelry store or a diamond courier, who get robbed and killed, and people don't get warnings before they are raped or mugged. A small percentage of people become aware of the danger before being attacked, and they are able to do things like get orders of protection or a restraining order, but that is small percentage of crime victims. The second amendment confers the right to bear arms for self defense outside of the home. No American has to show just cause to exercise a constitutional right, and no one can be denied a constitutional right pending the showing of their need for it. If you don't believe that logic has anything to do with it - which I am sometimes inclined to believe when I read some of the nonsense that Judge Sue Myerscough or Judge Ann Claire Williams has written, then you just hope that the 5-4 majority votes along traditional lines (not counting Obamacare). |
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February 24, 2013, 06:08 PM | #104 | |
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I completely concur with your assessment. Excellent post Luger
For those of you who don't frequent Calguns.net, here is another analysis posted by Gene Hoffman, Chairman of the Calguns Foundation of the inter-play between Moore and Kachalsky, with an obvious emphasis of the effects on California: Quote:
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February 24, 2013, 06:48 PM | #105 | |
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You cannot license a RIGHT...that has already been through the courts, long ago. If you require a license it is no longer a right, but a privilage. |
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February 24, 2013, 07:52 PM | #106 | |
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There is a difference between regulation; time, place and manner restrictions or fairly administered licensing schemes, and the complete denial or arbitrary rationing of a fundamental right. Last edited by maestro pistolero; February 24, 2013 at 07:58 PM. |
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February 25, 2013, 09:14 AM | #107 | |
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Kachalsky v. Cacase - NY Carry - Cert Filed
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If I want to have an organized rally at the court house, I need a permit. This would be more like a gun show than individual carry. If I want to stand at the courthouse, or anywhere else, and talk, I don't need a permit. This would be individual carry. I also don't need any manner of government permit to exercise my right to free speech in any ordinary, every day context.... Talking to wife and kids, coworkers, strangers in line at grocery store, letters to the editor, etc. This would be the same as owning a gun. So, yeah, you want to get 200 people together on state land for a skeet shoot or 200 at the courthouse for a rally? You need a permit. You want to go about your ordinary day talking to people, or carrying your gun? No regulation warranted. |
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February 25, 2013, 03:07 PM | #108 |
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Excellent analogy.
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March 15, 2013, 07:09 AM | #110 | |
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Well, the state got off to a great start. I see two problems just in their opening paragraph:
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Secondly, by acknowledging that the process is not the same for all residents of the state, the State is admitting that the process is either arbitrary and capricious, or that some citizens/residents of NY state are deprived of due process. I haven't waded through the entire 25 pages yet. I'm sure it becomes more laughable from here. |
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March 15, 2013, 08:51 AM | #111 |
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I read through a good chunk of it. Their case really centers around "No, Heller and McDonald" does NOT mean we have to issue concealed carry licenses to everyone who wants one, as it was solely ruling against a TOTAL ban, and " we think you should wait for these other cases to solve the issue for you".
I have feeling that New York's concealed carry license scheme is going to hold up until it gets to SCOTUS. I'm more optimistic about New Jersey atm, but we'll see how it all plays out. I'd caution anyone here to not get overly optimistic. There have been more than one case people thought was a slam dunk that we lost. Last edited by NJgunowner; March 15, 2013 at 08:56 AM. |
March 15, 2013, 11:26 AM | #112 | |
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Oh, there's no doubt whatsoever that the process is arbitrary and capricious. For purposes of this discussion, the NY permit system has two permits categories, Restricted and Unrestricted. Unrestricted is what we'd call a "Concealed Carry Permit". Cortland County used to have a Judge Mullen, who wouldn't issue Unrestricted permits to anyone, ever. Change of judges and, Voila!, now they hand them out like candy. Tompkins County permit office employees will tell an applicant straight to their face, "We don't give out Unrestricted permits." Broome County used to never issue them, then a new judge came in and he started carefully issuing them under certain circumstances, more according to the laws language, such as business owners handling large amounts of cash. My understanding is that he now issues them to almost anyone who applies, who aren't prohibited. Every county is different. You could live 100 feet from a county line where they'd issue you an Unrestricted permit in a few weeks but in your county you can't get one at all and even a Restricted permit takes 6 months.... and the whole situation might flip-flop at the next election. It is the very definition of arbitrary and capricious.
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March 16, 2013, 01:06 AM | #113 |
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Aguila,
You are correct. Applicants must show "good cause", however some counties consider "self defense" to be "good cause". Nassau tells you "no" straight out. Their Chief of Police also says that the 6-month maximum the state gives to issue "starts when the county says it starts". Right now it is up to 14 months to wait for an interview for a permit. Suffolk tells you "no" during your interview. |
March 16, 2013, 06:58 AM | #114 |
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And those cases are difficult because the county will stall and stall, a lawsuit gets filed and all of a sudden the county gets their act together and the case is "mooted".
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March 16, 2013, 10:11 PM | #115 |
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Is a class action permitted in these kinds of cases? i.e. challenging state law in state court?
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March 16, 2013, 10:22 PM | #116 | |
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A class action is a particular form of litigation primarily useful to collect money damages or financial restitution when, based on the same facts, a large group of people have suffered what to each of them is a relatively small economic loss. It is useful because it provides a way to pool a lot of small dollar claims, each of which would be economically impractical to pursue individually. A class action can become viable when the aggregate of the pooled claims reaches a sort of economic critical mass, making the remedy financially feasible. In general the class action form offers no particular strategic or tactical advantage for most RKBA litigation. In fact there are over 70 RKBA cases currently pending in various stages in federal courts around the country. None of them are framed as class actions, and doing so would offer no advantage.
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March 17, 2013, 09:35 AM | #117 | |
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I am thinking in terms of press1280's post
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March 17, 2013, 09:39 AM | #118 |
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Kachalsky v. Cacase - NY Carry - Cert Filed
The Tresmond Law folks, in the Dywinski case, are trying to get it classified as Class Action. I don't know the exact whys and wherefores.
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March 17, 2013, 09:43 AM | #119 | |
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btmj, I'm not sure class action status does what you think it does. Class action cases are just a way to preserve judicial resources in the litigation context. See Frank's post:
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While class actions are useful for preserving resources, there's no reason that a multiple-plaintiff case without class action status cannot go forward. Sometimes the various plaintiffs are dissimilarly situated enough that class action just won't work. It is a declaratory judgment that declares a law unconstitutional and that tells the State, "Stop it!"
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March 18, 2013, 12:59 PM | #120 | |||
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Saw a link to the State's reply Brief for the State Respondents in Opposition in the 2A cases thread and I got to about the first paragraph and came upon
Quote:
Next we have Quote:
Further isn't Posner's opinion going to give them fits? He mentions that much of the Amici curiae were reasonably similar as given to the Supreme Court for the Heller decision that there was no collective or individual right, but merely a guarantee the citizenry would be able to maintain arms to fulfill their legal obligation to participate in the militia. He then extends that point to say the appellees asked him to repudiate the Supreme Court's historical analysis. He quote's the McDonald decision that the Quote:
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March 18, 2013, 01:35 PM | #121 | ||
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March 18, 2013, 04:19 PM | #122 | ||
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Ultimately, in this Court, privileges & immunities is, unfortunately, a losing horse. Gura notes this in some of his discussions, and that's why he framed his arguments as he did, to make P&I a secondary claim. IIRC, only Thomas supports P&I in a meaningful way. Quote:
As for the second part, that's rational basis, and the 2A is beyond that. |
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March 18, 2013, 04:46 PM | #123 |
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Right, but if it can't pass rational basis... if carrying a gun isn't a crime, then outlawing carrying a gun doesn't prevent crime... then how can it pass a heightened scrutiny?
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March 18, 2013, 06:25 PM | #124 | |
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Therefore, what's important isn't to pass or fail rational basis -- it's to identify it, and reject such discussion entirely. Because as we've seen lately, several disingenuous and / or clueless courts are using gussied-up rational basis and calling it heightened scrutiny. |
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March 18, 2013, 07:21 PM | #125 |
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Actually I don't know that it's generally correlated with a decrease in crime. I DO know that its not correlated with an increase in crime, so there's no reason to ban it.
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