February 13, 2014, 07:19 PM | #76 |
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I believed from listening to orals that this case was the most likely to succeed
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February 13, 2014, 07:38 PM | #77 |
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So, what does this mean for the people of San Diego county right now?
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February 13, 2014, 08:48 PM | #78 | |
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Holy cow, this was not what I expected! I'm still skimming through, but this is a good read.
Michel and Clement deserve a beer on us, as do the folks at the CRPAF who worked with them. The Brady Campaign (who authored a brief in favor of the status quo) is crying sour mangoes over the whole thing: Quote:
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February 13, 2014, 09:00 PM | #79 | |
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Never mind, I answered my own question. San Diego County Sheriff's Department's website says:
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February 13, 2014, 10:22 PM | #80 |
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Of course they won't comment... Until they do!
And they will comment within 14 days by filing for a petition for en banc review. I also suspect that Judge Thomas (he dissented) will call for an en banc review, whether or not San Diego does. An en banc review is not generally granted. But here, the court has stricken an administrative policy of the county. This is on par with striking a law. Because of this, I suspect they will grant the review. Alex Kozinski is the chief Judge of the ninth. I can almost guarantee he will be sitting on the panel. And, he is a friend of the 2A. Over and above all of this, Judge O'Scannlain went to a great deal of pain to set out the reasoning’s for his opinion. This document is precisely meant for the Justices at the Supreme Court. Add to that, Judge O'Scannlain's opinions are taken with as much credit as those of Judge Posner, from the 7th (author of Moore v Madigan). |
February 13, 2014, 11:42 PM | #81 | ||
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February 14, 2014, 12:38 AM | #82 |
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This ruling coming from the 9th Circus!
I'm still doing the Happy Dance. If this stands how many other "California Gun Control Schemes" (paraphrased from dissenting opinion) will go down in smoke with it? Bullet Buttons, mag capacity limits, Micro Stamping??? I see this as the beginning of a reversal of 40 years of poor legislation. And the ramifications are not limited to the 9th Circus. Considering the wide disparity of rulings amongst the Circuit Courts on the specific matter, I have a hard time seeing how the SCOTUS would not review an undertake an appeal at his point. The question is how would that appeal go? Considering the opinions offered in this ruling, I have a lot of hope. |
February 14, 2014, 07:08 AM | #83 | |
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When one avenue is closed, another avenue is pursued with even greater intensity. So actually I would expect their efforts to be directed toward things like Bullet Buttons, mag capacity limits, Micro Stamping, more taxes and paperwork / bureaucracy / "regulation" on guns and ammunition. More fees and paperwork for purchasing and owning a firearm. Illinois has the FOID, Cook County has taxes on firearms and ammunition purchases, New Jersey has its permitting scheme. There is Nassau County / Long Island's $340 residential handgun permit. Until those things get overturned, I would expect them to be used more heavily wherever anti-gunners hold power. |
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February 14, 2014, 07:55 AM | #84 | |
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February 14, 2014, 09:56 AM | #85 | |||
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This ruling explicitly places "bearing arms" under the protective mantle of core constitutional right and (at the very least implicitly) states that Strict Scrutiny is the proper tool for evaluating laws which abridge that right. Quote:
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February 14, 2014, 12:50 PM | #86 |
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I'm still reading through the opinion, but it's a fine piece of work -- detailed and well organized. Judge O'Scannlain did an excellent historical overveiw.
Of course gun control advocates won't give up. Why would any of us expect them to? We didn't give up when we suffered setbacks. This tension between gun control and gun rights will continue indefinitely. But now with this ruling together with an number of others like Judge Posner's opinion in Moore we're developing a strong pro-Second Amendment judicial literature. The reasoning and reviews of past decisions, past commentary and the historical context of the Second Amendment are helping to build the foundation for future arguments in future cases.
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February 14, 2014, 01:11 PM | #87 |
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I agree that stating that self defense or "bearing arms" must be evaluated with strict scrutiny is a huge.
I just don't see how it affects those courts that have been evaluating 2A cases on a rational basis and then have been saying that they used "scrutiny" The disconnect with those judges isn't that they don't know what strict scrutiny or intermediate scrutiny is, or what Jensen referred to as "near strict" scrutiny. Those judges are deciding cases on a rational basis and declaring that it passes muster for scrutiny. Just looking at what gets regulated and to what extent, I think between Peruta and Moore we can say that government can deny OC or CC but they can't deny both. I think the same principle applies to handguns and long arms. Judges Davis and King mentioned that Woollard could walk down the street with a shotgun if he chose to do so.. We may be entering a realm of thinking that says government only has to allow citizens some means of defending themselves, either CC or OC, but once that is provided for in some form, then other areas can be regulated. So theoretically a state could regulate the heck out of rifles and shotguns if they'd already provided for the right of self defense in the area of handguns. Judges may not apply strict scrutiny to things like Micro-Stamping, mag-caps and bullet buttons because they can say right off the bat that these issues are not self defense / RTKBA issues since the state has already met the requirements to provide citizens with some means of bearing arms. They can say that the right to bear arms has already been met with the state's CC or OC laws therefor Micro-Stamping is not a "right to bear arms" issue at all. I certainly hope I'm wrong, but the two issues that I see Peruta affecting most strongly are may issue and fees like in Kwong, Micro-Stamping and mag caps - not so much. That reminds me the deadline date to file for cert in Kwong was 2 weeks ago right? |
February 14, 2014, 02:14 PM | #88 | |
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Well, that's true but that's a lot like saying that the antibiotic I got for my cold isn't going to do anything for the ant infestation at my house. That's because they are unrelated. One of the more frustrating parts of these cases for me is how narrowly the questions are asked and answered. I wish it weren't so but it is. The courts only address the exact, specific question and generally nothing else. This one actually goes farther than most, at least as many as I've read, in that it mentions other questions and concepts but says things like "We're not here to answer that..." Even so, it would seem that the mere mention of the unanswered question in the context would indicate that they believe it would require the same sort of scrutiny. We need specific cases to address those other questions. Yeah, it sucks, but it is what it is. The 7 round loaded mag limit portion of the NY (un)SAFE Act has already been struck down. Assuming that decision holds, the next question would be how the 10 round limit is any better, since it is also arbitrary and is not the "standard" magazine for most guns. SCOTUS has already declared a "common use" standard for bans. It can not be logically claimed that standard capacity magazines are not "common use" when the only reason lower capacity mags even exist (in many cases) is to satisfy state requirements against the standard mags. Ultimately, I think it would/should be argued that the mag limit is actually a ban on the firearms themselves, since they can not be imported to the state with their "standard" magazine so any gun for which he company doesn't make a specific NY (or CA) model is banned, which should fail the common use ban test.
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February 14, 2014, 02:22 PM | #89 | |
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There can be no doubt that some regulation of the rights described by the Second Amendment will be sustained by the courts. Second Amendment jurisprudence is still in its infancy, so the scope and extent of permissible regulation of rights described by the Second Amendment is still unclear.
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February 14, 2014, 04:33 PM | #90 | |
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According to Akhil Reed Amar, the 14th Amendment added a "personal civil right to self defense" element to the 2nd but did NOT destroy the original "political right of milita service" meaning of the 2nd. So a right to handguns can exist side-by-side with a right to modern type rifles (semi-auto or otherwise). See also Amar's 2000 book "The Bill Of Rights" for the whole story. That book was one of the main triggers behind the prepwork for what became the Heller case.
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February 14, 2014, 05:18 PM | #91 |
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For anyone who doesn't have time to trudge through all 127 pages, read this article, which came out today: Ninth Circuit Peruta ruling reveals faults with other circuit opinions
It analyses yesterday's 9th Circuit CoA victory in Peruta v. San Diego, in which Judge O’Scannlain's ruling and 127-pg majority opinion contradicted and flat-out shamed three previous CoA rulings (Drake in CoA 2, Wollard in CoA 3, & Kachalsky in CoA 4), and really thew down the gauntlet for the SCOTUS to take-up Drake v. Jerejian. Good news methinks. EDIT: Correction from Al Norris: Kachalsky was CA2; Woollard was CA4; and Drake is CA3 Last edited by lake393; February 15, 2014 at 12:30 AM. |
February 14, 2014, 05:28 PM | #92 | ||
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February 14, 2014, 08:17 PM | #93 |
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Just a clarification, lake393: Kachalsky was CA2; Woollard was CA4; and Drake is CA3.
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February 14, 2014, 10:04 PM | #94 | |||
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February 15, 2014, 12:29 AM | #95 |
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Al Norris, thanks for the correction Apologies for getting those switched up.
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February 15, 2014, 01:16 AM | #96 |
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With as many cases as we are following, mistakes are quite easy to make. Lord knows I'm often at fault!
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February 15, 2014, 02:08 AM | #97 | ||||
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Are you sure Tom? Every time they mentioned Scrutiny the did the same dance the Supreme Court did in Heller. i.e. We didn't use scrutiny because it wouldn't pass any scrutiny so scrutiny doesn't matter.
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And for those wondering about what effect this would have on other regulations as far as carry laws, gun bans, feature bans and so on: Quote:
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February 15, 2014, 07:09 AM | #98 | |||
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The 2CA approach in Drake starts with the premise that bearing arms is an ancillary function of the Second Amendment that can potentially be denied with appropriate justification. Quote:
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February 15, 2014, 07:45 AM | #99 | |
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So today is Heller's tomorrow, and now we're talking about whether or not those other "presumptively" lawful regulations are, in fact, lawful. |
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February 15, 2014, 09:25 AM | #100 | |
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