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July 24, 2018, 02:28 PM | #1 |
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Small win for us - Young v Hawaii - CCA9
Or not so small . . . This will probably reach SOTUS at some point.
Excerpt below 07/24/2018, 01:25pm Open carry of guns allowed by Second Amendment, appeals court rules ByAssociated Press LOS ANGELES — A federal appeals court has ruled that the Second Amendment provides the right to openly carry a gun in public for self-defense. (edited title for clarity - Al)
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Simple as ABC . . . Always Be Carrying Last edited by Al Norris; July 24, 2018 at 11:58 PM. Reason: Title Change |
July 24, 2018, 02:34 PM | #2 |
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That’s the Ninth Circuit (who is on a pro-Second tear lately) reversing the Hawaiian district court in Young v. Hawaii: http://cdn.ca9.uscourts.gov/datastor...4/12-17808.pdf
I’ll be interested to see how the inevitable en banc review goes; but interesting. |
July 24, 2018, 08:09 PM | #3 | ||
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Ah, yes -- and the dissent predictably relies on the standard misinterpretation of Heller- to maintain that the right to keep and bear arms applies only in the home.
From the opening statements: Quote:
Quote:
Last edited by Aguila Blanca; July 25, 2018 at 09:29 AM. Reason: typo |
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July 25, 2018, 10:34 AM | #4 |
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Apparently the 9th C. read the constitution and saw the word "bear" in the 2nd ammendment, then looked it up in the dictionary and discovered "bear" means "carry" not left at home.
Which is fine. My question is, why cant we take this further? If the 2nd Amendment means we can "bear" arms, why do we need a Carry Permit. Doesnt that make the 2nd Amendment our carry permit, according the the 9ths Ruling.
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July 25, 2018, 10:52 AM | #5 | ||||
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Quote:
Quote:
Earlier in the dissent, Clifton writes, Quote:
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July 25, 2018, 11:00 AM | #6 |
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But, if the USSC gets the case, and upholds the 9ths position, wouldnt that modify Heller eliminating the need for carry permits?
I'm no lawyer of course, but I can read and thats the way I read the 2nd. Who knows maybe the SHALL NOT INFRINGE just might kick in the way things are going.
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Kraig Stuart CPT USAR Ret USAMU Sniper School Distinguished Rifle Badge 1071 |
July 25, 2018, 12:28 PM | #7 | |
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The other variable is that just because the court decides this case doesn't mean that the losing party just gives up. Recall that DC and Chicago resisted Heller for years. Even if you see Hawaii lose this case, will a legislator come up with a "shall issue" scheme with an onerously broad background check?
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July 25, 2018, 01:24 PM | #8 |
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I don't think I have a good grasp on the mechanics around this decision.
I think what happened here is nothing more than a court in Hawaii being told to repeat their trial, but with some helpful guidance from the 9th. If that is true, then no carry laws have been declared unconstitutional across the entire 9th, because that would mean this case is still happening, and so no conclusions can be drawn. But there's so much news floating around about how open carry is now protected by the 2A according to the 9th that I'm left wondering: what, if anything, does this decision mean for laws across the entire 9th? Mulford Act implicated? I want to say no, nothing is implicated yet, but I don't understand where this decision fits into the "flow" of a case's life in the judicial system. It doesn't seem as though the 9th has actually considered open carry, there was just some broad verbiage in this case that some have run with (run too far?)... |
July 25, 2018, 05:23 PM | #9 |
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I have nothing to add, but I do appreciate those that take out time to help explain some of this legal stuff.
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July 25, 2018, 07:30 PM | #10 |
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The plaintiff sued Hawaii saying that their requirement for good cause to carry a handgun violated his Second Amendment rights. His suit was dismissed because the lower court said the Second Amendment doesn’t protect the right to carry a handgun outside the home and even if it did, the Hawaii law would meet intermediate scrutiny.
The Ninth Circuit 3-judge panel said the lower court was wrong on the law and that the Second Amendment does protect a right to carry a handgun openly outside the home for self-defense. The court, having corrected the lower court on the law, sent it back to the lower court to decide now that they’ve clarified the law. This ruling is likely to be appealed to the full Ninth Circuit now. However, it is precedent in the Ninth Circuit until overruled. |
July 25, 2018, 10:57 PM | #11 | ||||
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But the liberal, anti-gun judges don't want to look at those other, existing "presumptively lawful" laws, so they instead adopt the fiction that Heller has already declared them lawful. Quote:
This case was brought under federal law, but it's the same question. If I understood it correctly, Young's argument is that since Hawaii requires a permit to carry concealed but won't issue a permit except under "exceptional" circumstances, then he has a right to carry and the only way that right can be exercised is to carry openly. Quote:
Last edited by Aguila Blanca; July 25, 2018 at 11:14 PM. Reason: Added cite |
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July 26, 2018, 06:17 AM | #12 |
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Wasn't the DC gun ban about 30-40 years old when SCOTUS overturned it?
How long is "longstanding" anyway? |
July 26, 2018, 07:48 AM | #13 |
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If you’ve read Scalia’s books on textualism, you understand he meant “longstanding” to refer to the types of restrictions and traditions that existed when the founders wrote the Second. That’s not how it is being interpreted always which speaks either to judges who have no interest in what their bosses think about textualism or judges who are deliberately misapplying it.
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July 26, 2018, 08:25 AM | #14 | |||
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Quote:
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July 26, 2018, 08:55 AM | #15 |
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That Scalia's prose is so easily and/or deliberately (malaciously) misapplied says that he did not clearly analyze the consequences of said prose. You can say that others should have or would have to decipher it but he laid the ground work for unintended consequences. I don't by into excusing him because others exploit something he could have prevented or explained better.
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July 26, 2018, 10:34 AM | #16 | |||
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Quote:
I would not assume that it is easy to publicly misconstrue a Sup Ct decision as badly as Clifton has. Quote:
Quote:
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July 26, 2018, 12:38 PM | #17 | |||
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What Clifton did was to conflate two separate statements out of Heller. You are correct -- it is sleight of hand. It's not just "crude" sleight of hand, it's downright scurrilous.
Quote:
Quote:
Justice Scalia's intentions with regard to Second Amendment questions beyond the scope of the Heller case were clearly set forth on page 66: Quote:
https://www.supremecourt.gov/opinions/07pdf/07-290.pdf |
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July 26, 2018, 11:55 PM | #18 |
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I need a clarification. AB quoted justice Scalia regarding Bryer's 'questions beyond the scope of the Heller case' (the last quote above) that included
"one should not expect it to clarify the entire field, any more than Reynolds v. United States, 98 U.S. 145 (1879), our first in-depth Free Exercise Clause case, left that area in a state of utter certainty. it almost seems to be a typo where I would have thought Justice Scalia would have written "in a state of utter uncertainty" to fit the rest of the sentence. Unless it is so obvious (to those that know) that Reynolds v. United States left it so 'uncertain' that Justice Scalia wrote that in 'jest'. But that is hard for me to consider. I have the entire Heller decision and confirm that AB quoted it correctly. What I don't have is Reynolds v. United States, 98 U.S. 145 (1879). I'll try and look for it. Maybe I just don't understand the English language well enough.
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July 27, 2018, 05:57 AM | #19 |
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John, I am reading this as consistent with the overall arguments.
Breyer challenges the majority to either justify or invalidate all the other restrictions on arms that weren't before the Court in Heller's case. The majority explains that just as Reynolds didn't settle every last potential question in free exercise, Heller isn't going to settle every last potential challenge to firearms restrictions. We still have free exercise cases well more than a century after Reynolds, and we may still have 2d Am. cases a century after Heller (40 watt plasma rifle bans maybe).
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July 27, 2018, 09:01 AM | #20 |
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There is an aspect to this I don’t think I’ve ever explained sufficiently, although I’ve tried.
Judges are going to apply results-oriented logic in determining judicial outcomes. They shouldn’t; but they are people and they occasionally get trapped in their biases (see Dredd Scott, Korematsu, etc). Scalia has written three books on how he analyzes legal disputes textually. Indeed, even the lefties on the court now use textualism routinely, although they still reach different results. As that suggests, it is possible, though difficult, to support gun control laws using textualism and several courts have done so at least partially. To the extent courts are ruling “that law stands because Scalia said presumptively lawful” they are doing us a favor by passing the buck without doing any legal analysis. It is certainly frustrating now; but a judge who does that was never going to be the guy who overturns a federal gun control law. By hanging his hat on Scalia’s dicta instead of doing the hard work of justifying it via textualism, he makes it that much easier for future generations of pro-Second people to overturn it. However, the first step there is creating a culture that isn’t as overwhelmingly ignorant on Second Amendment issues and the technology surrounding them as our current culture is. If we can’t succeed there, then judicial decisions won’t save us. |
July 27, 2018, 10:51 AM | #21 |
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It is nice to assume that future judges will come from a pro-Second population. I thought it was previously claimed by some 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.
Some day the shining genius of Scalia will win the day despite all the misinterpretations that have followed his prose. If I had hired him to write a piece of legal wisdom that could be so constantly misinterpreted, I might reinterpret his genius based on the behavioral outcomes from the use of his product. Of course, that is not the way to look at it. It's not his fault that this happened.
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July 27, 2018, 11:36 AM | #22 | |
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Quote:
If your critics need to misquote text or misconstrue it to get to their result, they've conceded the argument.
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July 27, 2018, 12:02 PM | #23 |
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Well, we have the remember that the SCOTUS majority opinion in Heller was wrong.
Hillary told is that, so it must be true. [Sarcasm, Sheldon.] |
July 27, 2018, 12:03 PM | #24 |
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When the state bans are overturned, pistol purchases are made easier in places like NY and the like - then we might have a win.
If misinterpretation and misquoted text carry the day, we don't. If they win behaviorally, an Internet analysis that they have conceded the argument is useless. I'm sure the denizens of CA, NY or MA are happy with Internet opinion as compared to a change in their abilities to have various items. Do we think right minded legal scholars and legislators will spring full blown from the forehead of the God of Gun Rights (who gave us this God given right) in the future and accept that the past precedents were based on biased misinterpretations and misquotes. If your law firm produced a document and 4 of the partners said it was stupid and folks continually misinterpreted you but won the day with those misinterpretations, I'd put that in your performance review. Maybe the Hawaii decision is a predictor of this? I wait for change that actually frees up gun rights as compared to discussion as to whether some analysis is brilliant.
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July 27, 2018, 12:10 PM | #25 | |
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We’re unlikely to see better Second Amendment jurisprudence if most judges are ignorant on the subject though. As far as bias goes, that’s certainly the ideal - and most of the judges I’ve met work hard to meet that ideal. Still, judges are people. You work as a lawyer for a decade or so arguing the law means what your client wants it to mean and then you become a judge and are immediately possessed of Solomonic restraint? Probably not. |
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