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Old July 25, 2017, 12:23 PM   #1
Mike Irwin
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Federal appeals court overturns DC's "Good Reason" restriction

Very refreshing news.

Would have been better had it been 3-0.

http://www.foxnews.com/us/2017/07/25...t-grounds.html

I lived in DC proper during the early 1990s when crime was pretty high. I'd be lying if I said I ever saw this day coming.
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Old July 25, 2017, 01:07 PM   #2
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This is helpful and a move in the right direction. The court's analysis of why the standard "scrutiny" tiers don't apply to what amounts to a total ban, is pure gold. There is some very quotable material in there.

What's the circuit split now? D.C. and the 7th Circuit say "may issue" is unconstitutional and the 2nd, 4th and 9th circuits say it is fine? Eventually, the Supreme Court has to answer this question. I'm glad Justice Gorsuch is sitting on that bench.
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Old July 25, 2017, 02:08 PM   #3
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Wow, only 124 permit holders? Yea, I can't see that strict of a restriction going under the radar.
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Old July 25, 2017, 02:47 PM   #4
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Great news. But, it will be interesting to see how D.C. will go about circumventing the court's ruling...
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Old July 25, 2017, 03:09 PM   #5
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So glad for the Citizens in DC.
Congress needs to take away the City's charter and put it under a Congressional appointed Manager. DC is a horrible example for our Republic's seat of Government.
And The House and the resident and thee Party needs to kick Obstructionist " I hold the Power" Speaker Ryan to the curb.
He stopped the process, the vote on National Reciprocity, with "some Members have concerns."
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Old July 25, 2017, 06:46 PM   #6
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I think things look bad since it is likely to get overturned en banc. And for any SCOTUS prior to replacement of ginsburg or Kennedy. Forcing it to SCOTUS before that would be a net loss, perhaps the worst loss nationally since heller as it will embolden any shall issue states that get Dem legislatures to try to change to may issue sooner than they might otherwise.

En banc looks bad and SCOTUS does as well, this would have been better later in Trump's term when there would have been time to affect appeals and scotus make-up.

Sorry to be glass half empty on this, but that is the way I see it.
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Old July 25, 2017, 07:03 PM   #7
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Here is the ruling in Wrenn v DC.
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Old July 26, 2017, 12:06 AM   #8
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Can you say en-banc . Been here been hurt by that here in CA with the Peruta case . It will be interesting to see if an en-banc IS NOT called and this ruling is appealed to the SCOTUS . What will they do then since they refused to hear CA good cause case that basically challenged the restrictiveness of San Diego's good cause interpretation . Now they have another case involving good cause or good reason but this time they would be deciding on a clear split amongst lower federal courts . I don't see how they can kick the can any further down the street on this one .
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Old July 26, 2017, 09:40 AM   #9
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They may be getting pressure not to appeal. Look what happened in Heller when it went all the way up. I recall there was pressure not to appeal Heller which they ignored.

Then again it's not money coming out of their own pocket.
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Old July 26, 2017, 10:50 AM   #10
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Appealing can go either way yeah right . How ever letting it stand will leave that clear split in the courts and it would "seem" the SCOTUS will have to address it in the near future . So not appealing "may" be just as good allowing a better case to get there .

There is a open carry case in CA at the 9th circuit now . Which might be the right case because it does not have anything to do with concealed carry . The fact the 9th ruled in Peruta concealed carry was not protected means they put them selves in a corner on open carry . IMHO if they were to rule open carry was not protected either completely destroying the right to bear arms as described in Heller . The SCOTUS would again need to hear the case .
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Old July 26, 2017, 11:14 AM   #11
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Originally Posted by Metal god
There is a open carry case in CA at the 9th circuit now . Which might be the right case because it does not have anything to do with concealed carry . The fact the 9th ruled in Peruta concealed carry was not protected means they put them selves in a corner on open carry . IMHO if they were to rule open carry was not protected either completely destroying the right to bear arms as described in Heller . The SCOTUS would again need to hear the case .
I think a lot of it will depend upon California's open carry law. Does the law completely prohibit open carry everywhere or merely restricts it? If it restricts it, then the 9th can just say they are reasonable restrictions.
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Old July 26, 2017, 12:28 PM   #12
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Circuit Judge Henderson's dissenting view can be narrowed down in it's entirety: namely her 2nd footnote.

Quote:
Although I assume that the Second Amendment extends to some extent beyond the home, I am certain the core Second Amendment right does not.
In her world view, self-defense [with a firearm] only occurs within the home.
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Old July 26, 2017, 01:56 PM   #13
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IIRC...

... California bans open carry completely; except while hunting.
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Old July 26, 2017, 02:20 PM   #14
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... California bans open carry completely; except while hunting.
It is my understanding that California allows open carry while hunting, fishing and outdoor sports - but I could be wrong. Then they all but outlaw concealed carry. One or the other could be considered unlawful but together they certainly are unlawful.
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Old July 26, 2017, 04:33 PM   #15
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Quote:
Originally Posted by Al Norris
Circuit Judge Henderson's dissenting view can be narrowed down in it's entirety: namely her 2nd footnote.
Quote:
Although I assume that the Second Amendment extends to some extent beyond the home, I am certain the core Second Amendment right does not.
In her world view, self-defense [with a firearm] only occurs within the home.
In the memorable words of Bugs J. Bunny, "Eh ... what a maroon!"

Such misguided and ill-informed certainty should be directed to matters other than interpreting laws. Nowhere in any version of the Second Amendment that I have seen do the words "in the home" appear. Which makes it a complete mystery how she can be "certain" that the RKBA does not extend beyond the home.
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Old July 27, 2017, 12:51 PM   #16
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Although I assume that the Second Amendment extends to some extent beyond the home, I am certain the core Second Amendment right does not.
What is the difference between the Second Amendment and the core Second Amendment right and how does it matter regarding it being a right?
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Old July 27, 2017, 01:10 PM   #17
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ATN,
That's a question for a lawyer or judge to answer. It is their job to define actions according to law and in most lower courts the rights of individuals only matters if it doesn't conflict with the laws in that jurisdiction.
Case in point; a man used a paring knife to defend himself against two men who had followed him and approached him after he fell. He was charged with carrying a dangerous weapon because there is a law against carrying a fixed blade knife.
Another case a man was shot and killed by the police for carrying a fixed blade knife and not dropping it on command. The man was a wood carver and the "knife" he was carrying was a carving tool with a 1 inch blade. Again, it is against the law to carry a fixed blade knife. This second man was very old and partially deaf. The officer was found to have reacted within the limits of his duty and training. He felt the man was a danger to the public.

The laws and our rights are constantly at odds with each other. Most cops would not have felt they were in any danger from the old wood carver and would have recognized the "knife" as a tool of his trade. There are a few cops that feel it is more important to enforce the letter of the law rather than the purpose of the law.
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Old July 27, 2017, 01:50 PM   #18
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Originally Posted by ATN082268
What is the difference between the Second Amendment and the core Second Amendment right and how does it matter regarding it being a right?
Once again, a judge is latching onto language from either Heller or McDonald and taking it out of context. I don't remember which decision it was (might even have been both), but I do remember that the language of the decision said something about "core right."

The problem is the context. We have to remember (and keep reminding judges) that the Heller decision did NOT say the RKBA was limited to in the home. The case before the court specifically asked about keeping a fully functional firearm in the home, so that's what the court ruled on. And Justice Scalia made that point with his regrettable reference to other "presumptively lawful" regulations. What he meant was," We're not discussing other regulations today, so for now we'll presume they are legal until they have their own day in court." Now, lower court judges are twisting that and claiming that "The Supreme Court said all the other regulations are lawful, so I don't have to look at them."
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Old July 29, 2017, 09:40 PM   #19
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The "in the home only" thing is a ridiculous distortion of Heller.

The argument is: because the Heller case was about one gun in the home only, that's all the second amendment can ever be about.

It's such a ridiculous argument that it really should come with a "so neener, neener, neener" at the end.

The Heller majority said that the "core lawful purpose" of the second amendment was self-defense and that the need for this was most acute within the home. How can something be most acute in one place and not exist anywhere else?

The minority clearly did not anticipate this silly argument. Stevens said this in dissent, "Given the presumption that most citizens are law abiding, and the reality that the need to defend oneself may suddenly arise in a host of locations outside the home, I fear that the District’s policy choice may well be just the first of an unknown number of dominoes to be knocked off the table."

Why would he say such a thing if he thought they had just restricted 2A rights to the home?

There is other historical evidence. No one likes to talk much about the Dred Scott case because of the ugly racism but there is more to it. Specifically, Chief Justice Taney said that one problem with treating black people as citizens would be:


"It would give to persons of the negro race, who were recognized as citizens in any one State of the Union, the right to enter every other State whenever they pleased, singly or in companies, without pass or passport, and without obstruction, to sojourn there as long as they pleased, to go where they pleased at every hour of the day or night without molestation, unless they committed some violation of law for which a white man would be punished; and it would give them the full liberty of speech in public and in private upon all subjects upon which its own citizens might speak; to hold public meetings upon political affairs, and to keep and carry arms wherever they went."

Wherever they went. Not "in their homes" because the idea of an indoor militia is absurd.

As if more were needed, in 1895 the Supreme Court said that a man could defend himself "while on his premises, outside of his dwelling house" in Beard v US.

I hope the "in the home only" nonsense ends soon but I think the Supreme Court will have to directly settle it, as they unanimously settled the equally ludicrous argument that the second amendment could only apply to weapons technology in existence in 1789 (Caetano).
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Old July 30, 2017, 08:58 AM   #20
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Scalia's scribblings on Heller are, sadly, in my opinion the worst written opinion he ever sat down. He leaves ambiguous the two most fundamental questions that needed to be solved:
1) Do citizens have the right to protect themselves wherever they may be, and
2) Does the 2A protect that right wherever they find themselves

Scalia goes to great length in Heller discussing the common law and historical antecedents and references, which is all well and good, and then punted by so narrowly (and unnecessarily, in my opinion) tailoring Heller around the specifics of that particular case that any lawyer worth a nickel could use it to justify any restriction he/she wanted. Scalia was no fool - he knew what was riding on this decision and that it would be parsed seven ways to Sunday for any opening in which a gap could be exploited to shrink the fundamental 2A right, and he gave them exactly what they asked for. For God's sake, he even invented a notion of some sort of "core" 2A right as a subset of the entirety of 2A rights, basically inviting his opinion to be evaluated in this fashion.

Imagine if landmark rulings like Brown v. Board of Education were litigated in this manner. Outrageous, right? Yet Scalia knew that is exactly how his opinion would be litigated and one can only assume he deliberately wrote it in such a way as to allow it to heppen.

All he needed to do was make clear the answers to those two fundamental questions above.

Last edited by csmsss; July 30, 2017 at 09:09 AM.
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Old July 30, 2017, 10:42 AM   #21
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Originally Posted by csmsss View Post
Scalia's scribblings on Heller are, sadly, in my opinion the worst written opinion he ever sat down. He leaves ambiguous the two most fundamental questions that needed to be solved:
1) Do citizens have the right to protect themselves wherever they may be, and
2) Does the 2A protect that right wherever they find themselves

Scalia goes to great length in Heller discussing the common law and historical antecedents and references, which is all well and good, and then punted by so narrowly (and unnecessarily, in my opinion) tailoring Heller around the specifics of that particular case that any lawyer worth a nickel could use it to justify any restriction he/she wanted. Scalia was no fool - he knew what was riding on this decision and that it would be parsed seven ways to Sunday for any opening in which a gap could be exploited to shrink the fundamental 2A right, and he gave them exactly what they asked for. For God's sake, he even invented a notion of some sort of "core" 2A right as a subset of the entirety of 2A rights, basically inviting his opinion to be evaluated in this fashion.

Imagine if landmark rulings like Brown v. Board of Education were litigated in this manner. Outrageous, right? Yet Scalia knew that is exactly how his opinion would be litigated and one can only assume he deliberately wrote it in such a way as to allow it to heppen.

All he needed to do was make clear the answers to those two fundamental questions above.
It would have been nice if Heller had addressed those questions, and I agree that SCOTUS does need to address them, but the law Heller was about didn't involve defense outside the home, so it's not surprising that they weren't answered. The Supreme Court has to answer the question posed by the case they are hearing, not issue blanket policies. To quote Heller:

Quote:
But since this case represents this Court’s first in-depth examination of the Second Amendment, one should not expect it to clarify the entire field.
DC v Heller, p63
Heller does refer to self defense as a core protection of the 2nd, but you're going to have to provide citations where it's defined as a subset of anything.

Blaming Scalia isn't called for; there is no limit to how far anti-gun bigots will twist any ruling they don't like to make it say something it doesn't, as recent lower court decisions have proven.
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Old July 30, 2017, 11:40 AM   #22
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It would have been nice if Heller had addressed those questions, and I agree that SCOTUS does need to address them, but the law Heller was about didn't involve defense outside the home, so it's not surprising that they weren't answered. The Supreme Court has to answer the question posed by the case they are hearing, not issue blanket policies. To quote Heller:
No offense, but I think your argument is unconscionable. Either something is a fundamental right or it is not, and if so, it does not solely exist within a specific context. I think it is complete obfuscation to claim that Scalia was bound to speak to 2A only in the home in the Heller ruling - in no other case asserting a fundamental right is the opinion tailored so slosely to the context of the case itself - if anything such opinions are universally broadly tailored in favor of the right, not to its disparagement.
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Old July 30, 2017, 12:11 PM   #23
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Either something is a fundamental right or it is not, and if so, it does not solely exist within a specific context. I think it is complete obfuscation to claim that Scalia was bound to speak to 2A only in the home in the Heller ruling - in no other case asserting a fundamental right is the opinion tailored so slosely to the context of the case itself - if anything such opinions are universally broadly tailored in favor of the right, not to its disparagement.
Well that's not true even a little bit . If that were true why are there so many 1st , 2nd & 4th amendment cases in history . If the judges are supposed to rule on the complete right and everything it encompasses in every case . That would seem to mean we should only need one or two cases to solve all disputes involving any presumed right .

I've read many opinions that only answered the question at hand . In fact I've read arguments in appeals that the judge would shut down because they were not brought up in the original arguments of the case even though they were perfectly valid points .

Not having the judges rule outside the scope of the argument is exactly what you should want . It's either that or you get even more legislating from the bench .

At least that's how I understand it , YMMV but I'll let the lawyers link case after case for you to read where judges only ruled on the arguments at hand and not every aspect of the right there could be .
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Old July 30, 2017, 01:05 PM   #24
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No offense, but I think your argument is unconscionable. Either something is a fundamental right or it is not, and if so, it does not solely exist within a specific context. I think it is complete obfuscation to claim that Scalia was bound to speak to 2A only in the home in the Heller ruling - in no other case asserting a fundamental right is the opinion tailored so slosely to the context of the case itself - if anything such opinions are universally broadly tailored in favor of the right, not to its disparagement.
Courts limit the scope of their decisions all the time. If they didn't they'd hear two or three cases a year while hashing out every detail of the few cases they managed to squeeze in. Just as on any project, you have to manage the scope or it will expand forever and you'll never finish anything.

I think you're confusing "didn't address because it's out of the scope of the case before them" with "disparagement". Just because the decision on a given case doesn't address a certain related aspect of the case doesn't mean that the aspect is approved or denied, it means it wasn't addressed.

The expectation that every aspect of a constitutional amendment is going to be resolved in one case simply isn't realistic. There have been 151 Supreme Court cases involving just the free speech aspects of the 1st amendment, never mind the hundreds involving freedom of the press, religion, etc.

https://en.wikipedia.org/wiki/List_o...irst_Amendment
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Old July 30, 2017, 04:22 PM   #25
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You also have to remember that Heller was a 5-4 decision, and Scalia likely wrote it trying to maintain that critical 5th vote. The case was also narrowly tailored to try to eke out a win. If Gura had gone for the whole enchilada, we probably would have lost, sad to say.
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