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Old July 27, 2018, 12:10 PM   #26
Aguila Blanca
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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.
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Old 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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Old July 27, 2018, 12:24 PM   #28
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Originally Posted by Glenn E Meyer
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.
You genuinely thought someone claimed that? Who?

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If they win behaviorally, an Internet analysis that they have conceded the argument is useless.
I'm glad you didn't write that analysis on the internet.
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Old 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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Old July 27, 2018, 12:43 PM   #30
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Originally Posted by Aguila Blanca
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.
I don't discount your immediate concern, but Bart's observation is an exercise of foresight.

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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Old July 27, 2018, 01:24 PM   #31
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Originally Posted by Glenn E Meyer
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.
That you do not find utility in a thought may not reflect primarily on the thought. The Heller decision is composed of thoughts, argument and analysis on paper, as is the the body of constitutional law. Marbury, Wickard, Loving and Heart of Atlanta all share those components. Shut yourself off from understanding those ideas, and you hobble yourself analytically. It's also a strikingly anti-intellectual stance to take in a forum devoted to law and civil rights, the defense of which has been carried out with ideas written.

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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Old 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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Old July 27, 2018, 02:54 PM   #33
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Originally Posted by Glenn E Meyer
You can pursue this line of argument all you want.
Outstanding.

Quote:
Originally Posted by Glenn E Meyer
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.
Really? Only a day ago you thought the that the text of Heller was important enough to assert that it demonstrated Scalia's insufficient clarity of analysis and that you don't "buy into excusing" Scalia for what others have written. You don't even need to use "search"; it's on the prior page.

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:
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You still are welcome to use the search function for past debates.
Thanks.

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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Old 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:

Quote:
Like most rights, the right secured by the Second Amendment is not unlimited. [Here I must respectfully disagree with Mr. Scalia. As I have posted in other discussions, the Second Amendment is the only one of the rights enumerated in the Bill of Rights that expressly says it is unlimited. To regulate is to infringe, and the Second Amendment does not say the RKBA shall not be "unreasonably" infringed.] From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. See, e.g., Sheldon, in 5 Blume 346; Rawle 123; Pomeroy 152–153; Abbott 333. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. See, e.g., State v. Chandler, 5 La. Ann., at 489–490; Nunn v. State, 1 Ga., at 251; see generally 2 Kent *340, n. 2; The American Students’ Blackstone 84, n. 11 (G. Chase ed. 1884). [This question has been addressed by multiple state courts and they seem to agree that if a legislature chooses to prohibit concealed carry, then necessarily open carry must be allowed. It was precisely this that led rather directly to Ohio's adoption of a concealed carry statute about a decade ago.] Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment, nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.
A careful reading of this tells us that Mr. Scalia did not say that all existing firearms laws are even "presumptively" lawful. He assigned this only to those laws addressing "the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings." Using this to try to justify a virtually complete de facto ban, such as encountered in Hawaii and New Jersey, is simply intellectual dishonesty. But, Glenn is correct -- as long as anti-gun judges are willing to check their intellectual honesty at the door and continue to misconstrue Heller, we are basically screwed unless/until we can get a Supreme Court that will interpret and apply the Second Amendment correctly (which is to say, of course, the way we think it should be interpreted. )

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Old 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.
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Old July 27, 2018, 09:45 PM   #36
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Originally Posted by Bartholomew Roberts
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.*
I still think the language is vexatious, by definition, since it has been vexing us almost from the day it was released. Nonetheless, I recognize why he wrote it -- he needed to write something that would keep (or get) Kennedy on the pro-2A side. It did that, but in retrospect one has to wonder if there might not have been a better way to express it.
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Old 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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Old July 28, 2018, 07:11 AM   #38
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Quote:
Originally Posted by AB
Quote:
Originally Posted by BR
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.*
I still think the language is vexatious, by definition, since it has been vexing us almost from the day it was released. Nonetheless, I recognize why he wrote it -- he needed to write something that would keep (or get) Kennedy on the pro-2A side. It did that, but in retrospect one has to wonder if there might not have been a better way to express it.
Emphasis added. Unless I am remembering oral argument incorrectly, Paul Clemente indicated that if Heller's claim were so broad that it would include NFA items, then the government would oppose recognition of the individual right. It was an argument suggested by Ginsburg and Breyer and made explicitly by DC counsel that granting Heller an individual right would necessarily invalidate firearms regulation generally, not just the one before the court. They raised the specter of legalized machine guns and (heaven forfend) armor piercing bullets!

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:
Originally Posted by 44AMP
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.
Emphasis added. That is not gratifying. There was a bit of a brushback in Caetano, but we all hope circumstance brings a more full throated correction.
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Old July 28, 2018, 11:20 AM   #39
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Originally Posted by 44 AMP
the courts speak in their own arcane tongue, little known and less understood by those outside the court system.
Sadly, that "arcane tongue" is no more than "high" education... I have a friend that owns a high-school (he says 9th grade but it doesn't say that anywhere) grade English Literature text book dated late 1800s... has the feel of a 2nd year college course in 2018.

Dumbing down the populace is a big part of the equation, and no accident.
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Old July 29, 2018, 03:02 AM   #40
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This ruling is likely to be appealed to the full Ninth Circuit now. However, it is precedent in the Ninth Circuit until overruled.
One would think there's an appeal coming but I don't think so . Not because Hawaii has given up but because it will take longer to get to the SCOTUS . Think about it , if they let it go back down to the lower court . It will take some time to work through that process and who ever looses there will appeal back to the 9th . A 3 judge panel will then rule again on the new-ish case and that will then be appealed either to the SCOTUS or en-banc .

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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Old July 29, 2018, 09:38 AM   #41
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Originally Posted by Metal God
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 .
If they rule that open carry is also not protected, then they will be moving from "regulation" [of the mode of carry) to outright prohibition of all modes of carry. I would like to hope that would be a tough sell.
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Old July 29, 2018, 12:15 PM   #42
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If they rule that open carry is also not protected, then they will be moving from "regulation" [of the mode of carry) to outright prohibition of all modes of carry. I would like to hope that would be a tough sell.
I'd hope it a hard sell as well . Why can't they just say using "good cause" for both open and concealed is good enough ? I think the one issue with that is the fact Hawaii uses the good cause scheme but has not issued a carry license in years or so few it might as well be none . So how can the court think good cause is acceptable if Hawaii thinks not one person in there jurisdiction has good cause ?

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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Old 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?
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Old 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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Old 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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Old July 30, 2018, 05:47 AM   #46
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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 ? . . . .

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 . . . .
A few quick points on appellate cases:
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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Old July 30, 2018, 09:38 PM   #47
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Quote:
Originally Posted by Metal God
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
Heller seemed to say such laws were constitutional:

Quote:
nothing in our opinion should be taken to cast doubt on longstanding prohibitions...forbidding the carrying of firearms in sensitive places such as schools and government buildings,
but I don't know if that tells us anything about liability. Laws allowing us to build new homes are probably not going to run afoul of the constitution, but if the homes are built negligently, there can still be liability, right? So maybe the devil would have to be in the details, and we can't make a sweeping statement about liability in all possible situations?

Quote:
Originally Posted by Spats McGee
1. The 9th Circuit's decision is binding precedent on all lower courts within the 9th Circuit.
Can I ask you if you know if, once final, and assuming it's not oveturned en banc, it will be binding on other 3-judge panels within the 9th? So not lower, not on en banc panels which I suppose are "higher", but at the same level?

I may have been led to the answer over on CalGuns, which might be:

Quote:
Originally Posted by USA V. HOBERT PARKER, JR.
Only the en banc court can overturn a prior panel precedent. See Miranda B. v. Kitzhaber, 328 F.3d 1181, 1186 (9th Cir. 2003) (per curiam) (“[W]here a panel confronts an issue germane to the eventual resolution of the case, and resolves it after reasoned consideration in a published opinion, that ruling becomes the law of the circuit, regardless of whether doing so is necessary in some strict logical sense.”) (internal quotations omitted); Hart v. Massanari, 266 F.3d 1155, 1171 (9th Cir. 2001) (“Once a panel resolves an issue in a precedential opinion, the matter is deemed resolved, unless overruled by the court itself sitting en banc, or by the Supreme Court . . . . [A] later three-judge panel considering a case that is controlled by the rule announced in an earlier panel’s opinion has no choice but to apply the earlier adopted rule; it may not any more disregard the earlier panel’s opinion than it may disregard a ruling of the Supreme Court.”).

[6] The law of the circuit rule, of course, has an important exception: a panel may disagree with the circuit precedent when intervening Supreme Court decisions have undercut the theory or reasoning underlying the prior circuit precedent in such a way that the cases are clearly irreconcilable. Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc)
of course, that is itself an opinion in a case, so I'm not sure if it holds any real weight.

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Old 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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Old August 1, 2018, 06:13 PM   #49
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Originally Posted by Metal God
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 .
That's interesting in its own right. If true, it shows that the eastern "elites" like Bloomberg know they're in the wrong, and fear having their cherished anti-gun laws held up to the light of day (i.e. SCOTUS review).

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.

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Old November 8, 2018, 10:36 PM   #50
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the en banc response was filed

https://www.scribd.com/document/3926...yxrcvrwPGVjcTg
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