Goodbye Sykes v. McGinness

[Patrick]

Originally Posted by Al Norris

That was kinda my point. As a federal judge (district, circuit or Justice), he would be effectively stifled. Not saying he would accept an appointment, but one never knows....

He would. Nobody turns that kind of job down.

Remember, he is a libertarian at heart. While he is focusing on these civil rights cases, he has a heavy interest in influencing things towards a more libertarian bend. Look to his arguments in McDonald...the whole PoI argument of the 14th. He had an easy shot using Due Process but wanted to use the gun issue to re-invigorate the liberty-minded approach.

Thurgood Marshall won 29 cases in front of the Supreme Court before being appointed to the bench.

[jpk1md]

Originally Posted by Patrick

Thurgood Marshall won 29 cases in front of the Supreme Court before being appointed to the bench.

There is a component of the above that simply indicates that a significant portion of the cases he argued were cases that a majority of the bench agreed with to begin with.

Seriously, do any of us hold any illusions that most justices don't already know where they are going to come down on an issue like ObamaCare or 2A before they ever hear an argument for/against?

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.

[krucam]

Originally Posted by jpk1md

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.

Anything to back up said belief given the hundreds of cases per term at the Supreme Court?

[Patrick]

Originally Posted by jpk1md

There is a component of the above that simply indicates that a significant portion of the cases he argued were cases that a majority of the bench agreed with to begin with.

Seriously, do any of us hold any illusions that most justices don't already know where they are going to come down on an issue like ObamaCare or 2A before they ever hear an argument for/against?

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.

Maybe. But then you get decisions like Casey and Lawrence from a supposedly "socially conservative" Supreme Court.

I agree there are known differences in the Supreme Court and you can sometimes peg an expectation (Heller). But even in McDonald there was question whether the justice split could have been different with a more healthy dose of PoI.

So I wouldn't call it a dog and pony. But plaintiffs must analyze not only the law and the case at hand, but also those who will judge it. Is this a 'failure'? Only the extent we expect humans to not be involved.

[Spot77]

Originally Posted by krucam

Anything to back up said belief given the hundreds of cases per term at the Supreme Court?

I think what he means is that SCOTUS appointees are well vetted prior to nomination, and that virtually every case that comes before them has already had the vote tally accurately predicted.

[Al Norris]

Patrick, being the libertarian that he is, I also think he would take a judicial appointment. He would see it as a better means to move law towards those ideals.

My "random" thought was that if he makes much more of a PITA of himself on the 2A front, both sides of the political spectrum might see an appointment (even with a confirmed libertarian bias), as the better of the two "evils."

OK then. Enough of this threadjack!

What I'm really seeing with this brief, is a real attempt at overcoming the nonsensical opinion in Peruta: That unloaded open carry meets the qualifications of a functional firearm, for self defense purposes (see FN #2 @ pg 17 of the pdf).

[Patrick]

Yeah, he dispenses with the Unloaded Open Carry fairly swiftly. I think he is waiting to see if the state/county comes back with that as a defense before he digs into more detail. This is just the opening argument.

If the county/state tries to use UOC, they are dumb. Heller was pretty clear on that one and even the DC Council said it would not pass the laugh test back when they were crafting their post-Heller bans regulations.

[yellowfin]

Further the point we haven't had a president in the last 3/4 century who would appoint someone like Mr. Gura to the bench. I'd love to see it but we've had, in reverse order:

The O-hole (Stalin-level socialist/anti American, 2 anti gun SCOTUS judges)

Bush II (Rino, barrel import ban by executive order)

Clinton (rabid gun grabber and nanny stater, '94 AWB, Russia and China import ban, tons of bad judges appointed)

Bush I (anti gun Rino, personally ordered '89 ban, Connecticut liberal in a TX disguise)

Reagan (part time gun banner, signed '67 Mulford Act in CA which was what turned CA into the anti gun state, pushed Fuddism which effectively created the whole liberal urban anti gun culture)

Carter (flaming liberal, put BAD anti gun judges on bench, totally degraded American masculine identity)

Ford (did nothing for us, didn't really have time to)

Nixon (Rino, appointed bad judges)

Johnson (GCA '68, very bad judges)

Kennedy (could have done something, was pro-gun but was killed before able to do anything)

Eisenhower (did nothing, probably could have repealed NFA)

FDR (vetoed repeal of Sullivan Law, NFA, slew of bad judges who made all kinds of bad SCOTUS decisions... essentially Satan incarnate)


Anyone have a solution for this problem? Last time we were only offered McCain, another gun hater. People were tossing around the idea of Romney, who signed Massachusetts' AWB. We either get Rinos, far left D's, or Perots (no chance in hell of winning 3rd party). What in the fork has happened to us here?

[Patrick]

If you think of it, Obama has been more gun-friendly than any of the last 5 presidents by virtue of his failing to implement any of his grand schemes.

Because contrary to popular belief, the "thought" doesn't matter. It's the execution. And Obama has done so poorly on anti-gun efforts thus-far that he is beating them all. But he still has time to eek ahead.

I'd laugh my keister off if - after his 4 years in office - the NRA gives Obama his one-term administration a grade "B" for gun rights by virtue of not having done anything against them.

But that implies he won't win reelection, and I doubt he will lose. Still funny when you consider Yellowfin's history post. So far Obama has been all Hope, no Change when it comes to Gun Control.


EDIT: I ignored the Supreme Court. Still funny, to me.

[yellowfin]

I really don't want to find out what would happen with him having a 2nd term, i.e. 4 years with nothing to lose and no reason for restraint. We know exactly what he wants to do--if his choices of staff and judge appointments don't tell you what he really wants, then consider that he was on the board of the Joyce Foundation. This country is playing with a rattlesnake thinking it's a pet boa.

[Inigoes]

Now that Dick Cheney has opened the door to tighter gun restrictions, will President Barack Obama do the same?

That politically dicey question is playing out behind the scenes in the run-up to next week’s State of the Union. In the aftermath of the Tucson shooting of Rep. Gabrielle Giffords and federal Judge John Roll, gun control groups and some Democratic members of Congress are pushing to get the president to directly address the issue of gun violence in his speech to Congress next Tuesday, according to gun control advocates and congressional aides, who asked for anonymity.

Some Democratic party donors are also being urged to weigh in as part of a quiet lobbying effort to prod the president to finally speak out on an issue that he has studiously avoided since taking office, the advocates say.

http://openchannel.msnbc.msn.com/_ne...e-of-the-union

[krucam]

Tick, tick, tick....2 days (Feb 10) until Oral Arguments....

[Gray Peterson]

Originally Posted by krucam

Tick, tick, tick....2 days (Feb 10) until Oral Arguments....

That got delayed until 3/10/2011

[krucam]

Originally Posted by Gray Peterson

That got delayed until 3/10/2011

Thanks Gray...oh, and 'crap'!

[krucam]

Defendants are busy...getting ready for the 3/10 hearing:

02/10/2011 58 MOTION for SUMMARY JUDGMENT by County of Yolo, Ed Prieto. Motion Hearing set for 3/10/2011 at 02:00 PM in Courtroom 7 (MCE) before Judge Morrison C. England Jr.. (Sanders, Serena) (Entered: 02/10/2011)

02/10/2011 59 MEMORANDUM by County of Yolo, Ed Prieto in SUPPORT of 58 MOTION for SUMMARY JUDGMENT. (Attachments: # 1 Appendix)(Sanders, Serena) (Entered: 02/10/2011)

02/10/2011 60 DECLARATION of Undersheriff Thomas Lopez in SUPPORT OF 58 MOTION for SUMMARY JUDGMENT. (Attachments: # 1 Exhibit 1)(Sanders, Serena) (Entered: 02/10/2011)

02/10/2011 61 STATEMENT of Undisputed Facts by Defendants County of Yolo, Ed Prieto re 58 MOTION for SUMMARY JUDGMENT. (Sanders, Serena) (Entered: 02/10/2011)

02/10/2011 62 RESPONSE by County of Yolo, Ed Prieto to 54 AMENDED MOTION for SUMMARY JUDGMENT amending 52 MOTION for SUMMARY JUDGMENTAMENDED MOTION for SUMMARY JUDGMENT amending 52 MOTION for SUMMARY JUDGMENTAMENDED MOTION for SUMMARY JUDGMENT amending 52 MOTION for SUMMARY JUDGMENT. (Sanders, Serena) (Entered: 02/10/2011)

02/10/2011 63 REQUEST for JUDICIAL NOTICE by County of Yolo, Ed Prieto in re 58 Motion for Summary Judgment, 61 Statement, 59 Memorandum in Support of Motion. (Attachments: # 1 Exhibit 1)(Sanders, Serena) (Entered: 02/10/2011)

02/10/2011 64 APPLICATION for APPLICATION OF BRADY CENTER TO PREVENT GUN VIOLENCE TO FILE BRIEF AS AMICUS CURIAE by Brady Center to Prevent Gun Violence. Attorney Dixon, Megan added. (Dixon, Megan) (Entered: 02/10/2011)

The Defendants County of Yolo filed a counter-MSJ to Plaintiff MSJ, #58 on the Docket. #59 Memorandum in Support of 58 MSJ:

A. THE RIGHT TO CARRY CONCEALED WEAPONS IS NOT WITHIN THE AMBIT OF SECOND AMENDMENT PROTECTIONS..............6
B. CALIFORNIA’S STATUTORY FRAMEWORK DOES NOT CREATE AN ABSOLUTE BAN ON CARRYING FIREARMS THAT COULD ARGUABLY BRING SHERIFF PRIETO’S POLICY INTO THE PURVIEW OF THE SECOND AMENDMENT.......11
C. THE PLAINTIFFS’ CHALLENGE FAILS BECAUSE EVEN IF THE SECOND AMENDMENT APPLIES, SHERIFF PRIETO’S GOOD CAUSE POLICY MEETS THE INTERMEDIATE STANDARD OF SCRUTINY......14
D. PLAINTIFFS’ FACIAL CHALLENGE TO PENAL CODE SECTION 12050 NECESSARILY FAILS......17
E. SHERIFF PRIETO’S CONCEALED WEAPON PERMITTING POLICY DOES NOT VIOLATE PLAINTIFFS’ RIGHT TO EQUAL PROTECTION...............19

You'll also notice the Brady's are knocking at the door (64) as well.

#59 Memorandum in Support of 58 MSJ is Here.

[Gray Peterson]

Wow, Brady's really get around. I wonder what's keeping them from my case.....

[krucam]

Originally Posted by Gray Peterson

Wow, Brady's really get around. I wonder what's keeping them from my case.....

Quiet in Woollard as well

We'll just borrow Steve Halbrook's response in Heller II...I wonder "IF" the Brady's will clean up their canned brief after that...guess we'll find out in a few days. I'm hesitant wasting my dollars & "sense" at Pacer with them...

[krucam]

Plaintiff Reply Brief was filed yesterday, as the Oral Arguments near (3/10): http://www.archive.org/download/gov....91626.65.0.pdf

PRELIMINARY STATEMENT
Defendants are correct in claiming that the Second Amendment “does not grant” people the right to carry “concealed” firearms in public for self-defense. Def. Br. at 1. The Second Amendment, like the First or Fourth, does not “grant” any rights – it secures rights that the people believe to be inherent and pre-existing their creation of the government. District of Columbia v. Heller, 128 S. Ct. 2783, 2797 (2008). Accordingly, the Second Amendment right to bear arms is secured against Defendants, regardless of Defendants’ opinion about the value of this activity.

Kilmer and Gura do a great job dismissing "in the home". Hansel/Gura will need to hone this argument as MD looks like they'll finally respond in Woollard and we ALL KNOW what their argument is going to be...

And, another MD tidbit in the CA case:

Neither Yarbrough nor Williams v. State, __ A.3d __, 2011 Md. LEXIS 1 (Jan. 5, 2011) offered any actual reasoning for limiting the Second Amendment to the home as an interpretive, historical matter. Indeed, the Maryland Court of Appeals’ statement that “if the Supreme Court . . . meant its holding to extend beyond home possession, it will need to say so more plainly,” Williams, 2011 Md. LEXIS 1 at *30, is practically defiant of the Supreme Court, announcing a policy of out-and-out resistance. The Supreme Court probably does not expect its intervention will be required in each and every Second Amendment case.

• at least three circuits hold that First Amendment frameworks are applicable in Second Amendment cases.
• And indeed, Heller demonstrates that it is quite possible to strike down laws that violate the Second Amendment without resort to a means-ends standard of review. Washington, D.C.’s handgun ban failed the common use test for protected arms, while that city’s functional firearms ban was in literal conflict with a core guarantee of the right. If a means-ends standard of review were critical to every Second Amendment analysis, Heller would have employed one.
• Dismisses the Brady's in short order...

"IF" Means End analysis is appropriate (not that it is), it should be Strict due to the Fundamental (McDonald) nature. Intermediate has proven worthless...I like this quote from the Brief

Indeed, intermediate scrutiny is not a reduced form of strict scrutiny; it is an enhanced version of rational basis review. “‘[I]ntermediate’ scrutiny permits us to evaluate the rationality of the legislative judgment . . . we employ this standard to aid us in determining the rationality of the legislative choice.” Plyler v. Doe, 457 U.S. 202, 217 n.16 (1982). This aid is invoked in “quasi-suspect” cases, City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 442 (1985), where the government’s classifications do not relate to enumerated rights or suspect classes, and would thus trigger only un-enhanced rational basis review in the absence of intermediate scrutiny’s boost. Romer v. Evans, 517 U.S. 620, 631 (1996).

So we have Intermediate not equaling Strict-Lite, it equals "boosted rational"

Vastly exceeding Defendants’ position is their amici, the Brady Center, which rejects even intermediate scrutiny in favor of rational basis review, euphemistically re-styled as “reasonableness.”

These people really make it too easy sometimes...

Gura then ties the Brady's, Reasonableness/Rational and 1A precedence for 2A arguments (citing a 2000 Playboy case) in this one...

Nonetheless, amici advises that its proposed “reasonable regulation” test is distinguished from the rational basis test because the former “does not permit states to prohibit all firearms ownership.” Brady Br. at 15.
In other words, the test is so deferential as to permit any regulation that falls short of a complete prohibition. But the argument does not aid amici. If the Second Amendment protects (as it surely does) the bearing of arms, a licensing system under which virtually any and all applicants may be denied access to the right at the government’s whim “eviscerate[s]” the right, “render[s] it nugatory,” and “results in the effective ‘destruction’” of the right. Id. (citations omitted).
As the Supreme Court recognized in the First Amendment context, “[i]t is of no moment that the statute does not impose a complete prohibition. The distinction between laws burdening and laws banning speech is but a matter of degree.” United States v. Playboy Entm’t Group, 529 U.S. 803, 812 (2000).

Good job Kilmer/Gura. It was a fun 18 page read...
http://www.archive.org/download/gov....91626.65.0.pdf

[Al Norris]

The idea that the Second Amendment must yield to whatever politicians have determined to be in the public interest—that “firearm regulation is best suited for the legislative arena, not the courts,” Brady Br. at 18— is simply a nullification of the constitutional guarantee. Heller made clear that enforcing the Second Amendment, like the enforcement of other enumerated fundamental rights, is very much the business of the courts, and doing so is incompatible with a deferential posture by the judiciary.

As long as the Brady's continue to file such weak amicus briefs, we are going to see more and more attacks on there illogical stance.

Defendants have an interest in reducing gun violence, but they cannot have an interest in minimizing the carrying of guns by law abiding people if law abiding people have a fundamental right to carry a gun. There is no doubt that giving the Sheriff arbitrary discretion to ban the carrying of guns will reduce the carrying of guns, at least by law - abiding people such as the Plaintiffs. But the government simply cannot identify and target a constitutional right as an evil to be suppressed.

Accordingly, Defendants’ policy would fail intermediate scrutiny analysis, even were it the correct test (and it is not), because they have failed to identify any legitimate governmental interest in depriving law-abiding people of the right to bear arms.

The above is one aspect of where the Peruta case failed. That distinction was never made.

The brief also addresses Peruta, inasmuch as that court held that unloaded open carry was an adequate means of self defense:

Respectfully, the Peruta court seriously erred in accepting this rationale. The open carrying of an unloaded handgun is itself a dangerous practice. It is an open invitation to criminals to rob an individual of his or her unloaded and thus indefensible handgun. Nor does it seriously afford an individual time to react to a sudden criminal attack. The right to bear arms is, after all, the right to be “armed and ready for offensive or defensive action in a case of conflict with another person.” Heller, 128 S. Ct. at 2793 (citation omitted) (emphasis added). An individual carrying an unloaded gun is neither armed, nor ready for defensive action.

[Patrick]

Nice summary, Mark.

I will add that Chester made an appearance here, as did Peruta. The SAF is describing Chester as having defined the core of 2A to extend to bearing beyond the home (as it did) and describing Peruta as having determined the same (as it also did). But Gura/Kilmer take exception to Peruta and call it out for failing to qualify unloaded open carry as a functional equivalent to an actual loaded gun.

Peruta is the anti-gun win that they really lost: the judge said that a right to arms exists outside the home. If Peruta had not made that boneheaded move, California might have been an Open Carry state - at least until emergency legislation made them shall-issue CCW. (Of course this assumes the Peruta plaintiff's hadn't also made a bunch of boneheaded moves.)

But still. You get the idea.

EDIT: Al got in before I did. Also a great summary. Thanks.