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July 27, 2018, 12:10 PM | #26 |
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Glenn is correct. We know that we're right, but the citizens of Hawaii, New Jersey, and NYC still can't get carry permits so being right doesn't help the situation at hand.
This is why we have to get the conservative Republican vote out in November. Maybe Kavanaugh (or an alternate nominee) will be confirmed before the next Senate is seated but, if the Ds take over the Senate, Trump won't have a chance of getting another SCOTUS justice approved. The Ds are still smarting over Garland, and they want revenge. I'm personally not enthusiastic about Kavanaugh because of his Fourth Amendment track record, but I guess I'd rather have him than anyone the Ds would want. |
July 27, 2018, 12:22 PM | #27 |
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I wonder if when one get to the higher level courts, you become more a political than judicial animal. There's a study out there that analyzed SCOTUS and said politics more than abstract law was a powerful predictor in socially loaded cases.
I read once that once someone became a higher ranked Admiral or General, you became more of a politician as compared to a soldier or sailor. I wonder if it is the same with the higher court levels. Certainly the Senate hearings are all party politics as compared to qualifications. Became intense with Bork's rejection - I've seen stated.
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July 27, 2018, 12:24 PM | #28 | ||
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July 27, 2018, 12:39 PM | #29 |
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The search function knows.
A printed analysis on paper that they have conceded the argument would be equally useless as would be a verbal speech in the town square, if we don't get behavioral change.
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July 27, 2018, 12:43 PM | #30 | |
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If the answer to the questions "Is this constitutional?" can be found by asking a) "What does the COTUS say about this?" or b) "What would be a good public policy result based on my values or my read of current preferences?", I would like the people who feed into the judiciary to possess a culture that favors A. If even the people whose public policy recommendations I oppose also favor method A, there is a whole genre of constitutional nonsense that is less likely to make it into a Sup Ct majority decision. If you are obese, having a salad for lunch doesn't mean you'll be skinny in the evening, but it may contribute to a longer term solution.
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July 27, 2018, 01:24 PM | #31 | |
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It is illustrative that you can identify no one who asserted "judges don't act on biases but only considered application of legal principles and don't cherry pick precedents, phrases, dicta or whatever to justify their biases." I am not accusing you of knowingly offering a strawman.
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July 27, 2018, 01:32 PM | #32 |
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You can pursue this line of argument all you want. I await legislative and court actions that remove the very tight restrictions that exist and have been upheld. That is more important than angels on the head of pin discussion.
You still are welcome to use the search function for past debates.
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July 27, 2018, 02:54 PM | #33 | |||
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Yet, today an observation that even those decisions hostile to the right are not bringing forth any frank critique of Heller, but purporting to rely on it, is useless or "angels on the head of a pin discussion"? That's a hasty retreat. Quote:
You've been on this Scalia crusade for several years. You complained about his "reasonable restriction blather" even though no such thing existed. You appear to have discussed serially your "gut opposition" theory of jurisprudence with no one but me, and at no time have I asserted that "judges don't act on biases but only considered application of legal principles and don't cherry pick precedents, phrases, dicta or whatever to justify their biases."
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July 27, 2018, 06:08 PM | #34 | |
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Scalia did throw in that footnote about existing, longstanding regulations being "presumptively" lawful, and it has turned out to be exceptionally vexatious, because it is being so widely abused by being cited (or referred to without strict citation) out of context. On page 54 and ending on page 55, Scalia wrote this:
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Last edited by Aguila Blanca; July 27, 2018 at 06:13 PM. |
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July 27, 2018, 08:07 PM | #35 |
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This is the point I keep trying to communicate unsuccessfully. Scalia’s prose isn’t vexatious but necessary. If you flip the table over and yell “Second Amendment!”, you won’t get five votes. Based on hindsight, you might get two. You’re coming from a culture that approved the 1968 GCA and 1994 AWB. The justices making these decisions are drawn from that culture, and not from the good ol’ boy segment either.*
So, you need language to get the other justices to vote for you. And to the extent it gives lazy or lemming-like judges an easy out until you can change the culture, that’s great. *All of the current justices graduated from Yale or Harvard. Kavanaugh is a Yale grad as well. You can drag a free MSTN AR-10 Lightweight Ti build through either school and not get any takers; but we’ve managed to find five unicorns and put them on SCOTUS. One of the biggest problems with SCOTUS right now is it poorly reflects America; but it reflects Harvard and Yale grads pretty darn well. |
July 27, 2018, 09:45 PM | #36 | |
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July 27, 2018, 10:05 PM | #37 |
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our biggest problem with these issues is that the courts speak in their own arcane tongue, little known and less understood by those outside the court system.
The court knows clearly what it said, and what it meant, but other people take the court's words and use them for their own ends. And the court does not correct them. Indeed, the court is under no compulsion to do so, until and unless a case involving those issues comes before it, and they deign to hear it. In the Miller case, the High Court made a very narrow ruling about a sawed off shotgun. In fact they didn't even rule it illegal, they stated "we have been shown no evidence" and therefore agreed with the govt's position. The Govt, took that ruling and ran with it, stating that they won the case and EVERY portion of the 1934 NFA was constitutional. That court, and no succeeding court ever corrected the govt's interpretation. We are seeing the same thing with Heller. What was actually written in the decision, and what some people are saying was decided are two distinctly different things. But don't expect the Court to fix that, they will tell you, and rightly so, that its not THEIR job! As I understand the Hawaii ruling, the higher court simply said the lower court did not correctly interpret the law, go back and do it over.... That's not a "win". it is, however, not a total loss, either.
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July 28, 2018, 07:11 AM | #38 | |||
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So, advocates of reading an individual right out of the constitution saw a fear of crazy people walking out of an asylum to the machine gun store as an excellent prudential argument against the right. The majority opinion took that argument away from the minority. It is both correct (a case about a fellow having a right to an assembled pistol in his home resolves that specific question, but not every question), and it was politically necessary (those people who wouldn't take a free MSTN AR-10 Lightweight Ti aren't going to give insane people machine guns). Aguila, I'd suggest that there are no magic way to convey that one is letting all other restrictions but DC's stand without communicating that you are letting them stand. As necessary as that signal was to the establishment of the individual right, it marks the beginning of the fight, not its conclusion. Quote:
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July 28, 2018, 11:20 AM | #39 | |
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Dumbing down the populace is a big part of the equation, and no accident.
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July 29, 2018, 03:02 AM | #40 | |
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I followed the Peruta case closely where the 9th en-banc panel ruled the right to carry concealed outside the home was not protected under the second amendment . Interestingly enough the 3 judge panel decision that prompted the en-banc to be called was authored by the same judge that authored this Hawaii decision . So the 9th has already ruled concealed carry is not protected in Peruta . So the judge in this case took that as precedent and ruled If conceal carry is not protected outside the home then open carry must be . This brings up the question if the en-banc panel rules open carry is not protected either . That leaves a clear split between the DC circuit and the 9th circuit which the SCOTUS in theory must resolve .
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July 29, 2018, 09:38 AM | #41 | |
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July 29, 2018, 12:15 PM | #42 | |
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Another thing I've not followed to close is Trumps appointments to the 9th . Has there been any and how pro gun have they been ? It's my understanding the en-banc panel is chosen randomly from the pool of judges at the 9th . If are side has a few more judges to pick from , maybe it won't be a forgone conclusion that we will end up with a hostel panel ??
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July 29, 2018, 02:35 PM | #43 |
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In this case we got a friendly (or at least sympathetic) panel that ruled the way we think they should have ruled. The question is whether orr not that will stand if the state of Hawaii appeals for an en banc hearing.
Question for the lawyers -- is an en banc hearing based on the record of the panel hearing, or is it de novo? |
July 29, 2018, 06:49 PM | #44 |
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Just got to thinking ( that's never good ) . If they let this case go back . does that mean this opinion is now precedent to all lower courts ? Once it goes back down this specific ruling can no longer be appealed correct ?
If so I may want to take back everything I just wrote in my last post . There's no way the anti's want this to become binding precedent so they'll need to appeal now correct ??? The en-banc as far as I know is based on the record it does not start over . I say this because during the Peruta en-banc one of the lawyers on are side brought up a great point but one of the judges stopped him because it was never brought up before and not part of the record . See 24:40 thru 29:30 specifically at 28:00 https://www.youtube.com/watch?v=anKfVru1des
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July 29, 2018, 11:41 PM | #45 |
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What happens when we actually get the right to carry outside the home and must enter a gun free zone like schools and federal/state buildings like DMV or SS office . Now with federal buildings they generally have security to protect me because they are requiring me to be unarmed even though I have a right to carry for self defense outside my home . What about other areas where there is little to no security and yet I can not properly defend my self do to it being a gun free zone .
Some of these gun free zones we all have to enter at some point in our lives . Maybe not every day but every day people do have to enter these gun free zones . If a person is required to be unarmed . I say unarmed because often these gun free zones are also knife free and pretty much any other traditional weapon free zones . Should they be required to have reasonable security at/in any gun free zone . God forbid something happens but at some point it will to someone . If it is found to be constitutional to carry for self defense and a person is injured/shot in a gun free zone . Who is liable and or picking up the check for that persons hospital bill or family income ? It seems to me you can't have all three . Right to carry for self defense , gun free zones and the company , government or who ever that implements the gun free zone not reasonably responsible for everyone's safety in those zones ?????
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If Jesus had a gun , he'd probably still be alive ! I almost always write my posts regardless of content in a jovial manor and intent . If that's not how you took it , please try again . Last edited by Metal god; July 29, 2018 at 11:47 PM. |
July 30, 2018, 05:47 AM | #46 | |
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1. The 9th Circuit's decision is binding precedent on all lower courts within the 9th Circuit. It is persuasive (but not binding) on other circuits. 2. As a general rule, if an issue isn't raised "below" (at the trial court level), you can't raise it on appeal. There are a few exceptions to this, like jurisdiction. I'd have to go do some research this again, but I'm pretty sure that jurisdiction can be raised at any time here in the 8th Circuit. 3. Generally (again), you only get to raise an issue on appeal once. If you raise an issue and get an adverse ruling from the trial judge, you can raise that as a point on appeal.
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July 30, 2018, 09:38 PM | #47 | ||||
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I may have been led to the answer over on CalGuns, which might be: Quote:
Last edited by vicGT; July 31, 2018 at 06:57 PM. |
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August 1, 2018, 01:30 PM | #48 |
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UPDATE
Hawaii ask for an extension to file an appeal . They want to bring in outside counsel but that must be approved by there city council . https://www.scribd.com/document/3851...-Motion-County There are some interesting conversations going on about if they even should appeal . There are some states back east that would not like to see this go to the SCOTUS because they may end up having to pass a shall issue statute like DC had to do . The theory is Bloomberg and the like may push Hawaii to drop any appeal . The fly in the ointment is the 9th and whether they will call for en-banc on there own like they did in Peruta .
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If Jesus had a gun , he'd probably still be alive ! I almost always write my posts regardless of content in a jovial manor and intent . If that's not how you took it , please try again . Last edited by Metal god; August 1, 2018 at 01:36 PM. |
August 1, 2018, 06:13 PM | #49 | |
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Obviously, that would change in a heartbeat if they were able to stack the SCOTUS with anti-gun, anti-Constitution, "living document" justices. [Edit to add] It appears that, by declaring that they ["the County"] require a significant extension of time in which to research the important facts pertaining to the case, counsel for the County essentially acknowledge that they failed to prepare properly for the first hearing. This suggests that they thought the case was a walk-over, and only now that they've lost are they beginning to take it seriously. So now they require an extension, and outside assistance, to perform the work they should have performed prior to the first hearing. Last edited by Aguila Blanca; August 1, 2018 at 06:22 PM. |
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November 8, 2018, 10:36 PM | #50 |
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