Goodbye Sykes v. McGinness

krucam · Mar 6, 2011

Defendants Sheriff Prieto/County of Yolo replied 3/3/ in response to their MSJ.

http://ia600408.us.archive.org/4/items/gov.uscourts.caed.191626/gov.uscourts.caed.191626.67.0.pdf

Funny how the Defendants still think an unloaded open carry (UOC) policy qualifies. and that:
EVEN IF THE SECOND AMENDMENT EXTENDS BEYOND THE HOME, IT DOES NOT EXTEND SO FAR AS TO INCLUDE PUBLIC CARRY OF LOADED CONCEALED WEAPONS.

Plaintiffs need only to prove that UOC doesn't qualify as a functional firearm, right up there with a trigger-lock, for the purpose of self defense and this ones over...

EL1227 · Mar 6, 2011

jpk1md said:
I for one am of the belief that most of these big cases are little more than a dog and pony show that were determined when said justices were appointed.

Yep, and I still call our airport BWI ... if you get my drift. :innocent0

EL1227 · Mar 6, 2011

Patrick said:
CA is a few years ahead of MD when it comes to these cases.

Maryland ... California in Miniature.

You name it; from 2A issues, to gay marraige, to sanctuary states, to $B budget shortfalls ... as CA goes, so goes MD.

krucam · Mar 11, 2011

The Oral Arguments were held yesterday and fingers/toes are crossed...positive vibes coming from the Left Coast. A few excerpts were in the Woollard thread, but I'll copy/paste shamelessly here

From the Calguns discussion, particularly from Gene Hoffman who was there:

Note that the judge explicitly asked Gura if restricting carry to inside the home was a permissible TPM regulation and he quoted several occurrences of the phrase “inside the home” from the Heller decision as support. Gura's response re: Heller was his case and he only challenged in-the-home regulations seemed persuasive.

Also from Calguns was a Twitter feed in miniature (since arguments lasted 30 minutes, we'll really need some transcripts):

H/T to Calguns' bigtoe416
BTW, AG=Alan Gura, not Attorney General

Here's the entire twitter coverage:

In session.
Oral argument starts with a question from Judge England regarding the interpretation of Heller. How does an ability to carry come out?
AG asserts no right to bear in Yolo.
Judge England asks why the County doesn't allow the right to bear by allowing the right to keep.
Judge seems focused on the concealed nature of carry in California.
Are you arguing that a local agency can't regulate?
AG They can, but the process has to be compliant with constitutional safeguards.
Asking Yolo: does Heller hold a right to carry a concealed weapon? No.
Yolo: Concealed regulations are constitutional, but that means that the ban on loaded open carry is unconstitutional.
Is it possible that Prieto is applying the law in an unconstitutional manner?
AG: Sacramento can apply this statute Constitutionally?
Yolo has distinct from Sacramento...
Edit "has distinct problems from Sacramento" they have less officers and more crime apparently.
Yolo, first amendment framework doesn't apply, AG: courts are using the 1A, McDonald held that the 2A is not an inferior right
One thing Yolo has in common with Sacramento and all Counties is that the 14A and the 2A applies
J. England says, not a right to have any firearm, any place.
AG: we don't disagree
J England, isn't an entire ban on concealed be considered a reasonable regulation. Loughner - what if there were 5 CCWers there?
AG: the state made a decision to not allow loaded open carry. Prieto is bound by that.
J England: It only held in the home. AG that's my case and we only challenged in the home
AG we concede you can ban concealed carry. We concede you can require permits. However, that assumes loaded open carry.
Yolo: No court has held that there isn't a fundamental right to carry a concealed weapon.
AG: Once there is a license regime it has to be constitutional.
Yolo: Peruta should show our policy is legit.
Judge England: Southern district isn't binding. I have a 12050 permit from Sacramento County. This case will be decided on it's merits.
Case submitted.

Have to like that 1) The case will be decided on the merits, and 2) The Judge (England) in the case has a CCW. We shall see...

Kharn · Mar 12, 2011

What does TPM mean? They keep using it on Calguns, but I can't find a definition,

krucam · Mar 12, 2011

Kharn said:
What does TPM mean? They keep using it on Calguns, but I can't find a definition,

Time, Place, Manner re Carry Restrictions...

ezliving · May 13, 2011

NOTICE OF NEWLY DECIDED AUTHORITY

http://ia600408.us.archive.org/4/items/gov.uscourts.caed.191626/gov.uscourts.caed.191626.71.0.pdf

Dogabutila · May 13, 2011

ezliving said:
NOTICE OF NEWLY DECIDED AUTHORITY

http://ia600408.us.archive.org/4/items/gov.uscourts.caed.191626/gov.uscourts.caed.191626.71.0.pdf

^

For all you lazy people, that pretty much says this:

Dear Yolo,

You lose.

Love,
Alan.

krucam · May 13, 2011

That was a short, yet sweet read.

"And under Nordyke, the various crime and safety related concerns asserted in defense of the challenged practices are largely, if not completely, irrelevant."

Crime Statistics, Safety 'Concerns'...see 'ya....no longer compelling enough.

Patrick · May 13, 2011

I'm waiting for the defense to respond. It'll say something like: "Maybe, but Nordyke also says that the determination of whether guns impact crime and the other issues are relevant to the law are best made by the legislature. So yeah...we agree. No need to study it. We voted. You lost."

Or something like that.

The entire discussion over heightened scrutiny for core 2A activities is a slight of hand meant to kill the right piecemeal. Heller didn't do that, and neither should these courts.

"Categorical" is the word of the day.

krucam · May 16, 2011

Sykes v McGinness, Richards v Prieto...is done/over in the District Court. Today, the Judge rules that since one can carry an Unloaded Open Carry in CA, there was no need for Concealed Loaded Carry. Sounds a lot like Peruta.

Opinion: http://www.archive.org/download/gov.uscourts.caed.191626/gov.uscourts.caed.191626.72.0.pdf

It is a very painful read. They misread Heller, follow that up with a misread of McDonald and then take the 9th Ckt's Nordyke for the coup de grace.

Sucks, no "huge" surprise....this case now moves UP. SAF and CGF are behind this one, I'm sure they'll lick their wounds do fine in Circuit...albeit the 9th....I'm still sure they'll do fine! :innocent0

They have already Appealed: http://www.archive.org/download/gov.uscourts.caed.191626/gov.uscourts.caed.191626.74.0.pdf

Hopefully Woollard or Williams beats this Carry case to One First St...

Patrick · May 16, 2011

The court dismissed public bearing as non-core in three sentences and a footnote. No analysis other than using dicta to analyze a fundamental right. Then they said that even if a right existed, Nordyke's "Substantial Burden" test could be used to get rid of the complaint because unloaded open carry is possible. And because of that, rational basis review applies.

The Court also decided to intentionally avoid First Amendment comparisons:

The Court sees no reason to analogize rights under the Second Amendment to those under the First, as plenty of case authority exists to provide a clear framework of analysis to facial challenges, without poaching precedent from another Amendment’s framework.

The judge then dismisses the Equal Protection claim by asserting that everyone really is equal, because every gets evaluated the same way.

For what it is worth, this judge has a concealed carry permit issued by the county. He is more equal than the rest of us.

Bense · May 17, 2011

krucam said:
Sykes v McGinness, Richards v Prieto...is done/over in the District Court. Today, the Judge rules that since one can carry an Unloaded Open Carry in CA, there was no need for Concealed Loaded Carry.

How does what the California Assembly just passed affect this? Or will it not pass their Senate?

http://townhall.com/news/us/2011/05/16/calif_assembly_bans_open_carry_of_unloaded_guns

krucam · May 17, 2011

Bense said:
How does what the California Assembly just passed affect this? Or will it not pass their Senate?

http://townhall.com/news/us/2011/05/16/calif_assembly_bans_open_carry_of_unloaded_guns

Yeah, the timing was was a little strange with CA's Assembly and the Federal District Court (in Sacramento at that) yesterday. The two are exclusive of one another. I wouldn't be surprised to see SAF or CGF file a suit if that bill gets through Senate and Gov Brown signs it...we'll see...

krucam · May 17, 2011

Josh Blackman's read:

http://joshblackman.com/blog/?p=7002

Bense · May 17, 2011

Thanks Mark !

I appreciate all of the explanations that you and Patrick provide.

Bense

Patrick · May 17, 2011

krucam said:
Yeah, the timing was was a little strange with CA's Assembly and the Federal District Court (in Sacramento at that) yesterday. The two are exclusive of one another. I wouldn't be surprised to see SAF or CGF file a suit if that bill gets through Senate and Gov Brown signs it...we'll see...

Both Peruta and Richards use unloaded open carry to some extent. This judge was careful to not hinge the anti-gun argument on it, though. He said the right does not exist in any form, but that if it did, UOC would suffice.

If the CA legislature passed a ban on UOC, this ruling would still stand in its current form because UOC remedies no wrong - because there is no right, at all.

CA is full of fun.

Trapper · May 17, 2011

This part of the decision really burns-my-buns:

Though the right to keep and bear arms for self-defense is a fundamental right, “that right is more appropriately analyzed under the Second Amendment. Id. (citing Albright v. Oliver, 510 U.S. 266, 273 (1994) (“Where a particular amendment provides an explicit textual source of constitutional protection against a particular sort of government behavior, that Amendment, not the more generalized notion of substantive due process, must be the guide for analyzing those claims.” (internal citations omitted))).

Analysis of anything under the second dictates the inclusion of the key phrase "shall not be infringed", how can these people sleep at night after clearly, in their own words, subverting the constitution?

john_bud · May 17, 2011

Trapper said:
how can these people sleep at night after clearly, in their own words, subverting the constitution?

Liberals sleep well at night knowing that only rapist's, murderers, kidnappers, drug dealers, et al are safely armed and protected against their victimsn and the victims are all safely unarmed.

Don't underestimate the liberal progressive socialist zeal to "liberate" us from liberty.

ezliving · May 18, 2011

Will judge’s anti-concealed carry ruling lead to Catch-22 for CA gun owners?

Continue reading on Examiner.com: Will judge’s anti-concealed carry ruling lead to Catch-22 for CA gun owners? - National gun rights | Examiner.com http://www.examiner.com/gun-rights-...catch-22-for-california-gun-own#ixzz1MgHkJXoo

I sure hope Maryland doesn't get to keep may-issue and "good and substantial" because Gansler claimed we can carry long guns.

Goodbye Sykes v. McGinness

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