En banc Decision in Peruta -- a loss

Blacksmith101 · Jun 19, 2017

doublins said:
Man, if for nothing else, I can't wait for SCOTUS to decide one way or another on this case, just because MDS' self-appointed constitutional lawyers have been particularly active this past week. Wading through pages of bickering and nit-picking is labor-intensive! 9:30 can't come fast enough!

+1000
I just wish the Lawyers who want to debate how many angels can dance on the head of a pin would start their own thread and leave the case specific threads for things actually pertaining to the cases. That way we could still get our legal education and have uncluttered access to case information.

kcbrown · Jun 19, 2017

jcutonilli said:
I believe the 2A was always about individuals.

If that's the case, then why did Heller have to explicitly hold that the right which is protected is an individual one?

Heller was specifically about disconnecting the right from the militia.

Yes, it certainly did that, to the point that the prefatory clause can now only be used to restrict the right further.

I can't tell you the specifics of when the court raises issues sua sponte. The Court tends not to raise issues by themselves, but it does happen. See Kolbe 4th circuit en banc raising an issue that was not really addressed. Normally you loose the ability to appeal an issue if you have not raised it at the initial trial. Miller is an example. The latest per curiam (Jenkins v Hutton) also talks to this issue.

My question isn't about the lower courts raising issues. It's about whether or not they're bound by Supreme Court precedent when said precedent isn't explicitly raised by either party.

GlocksAndPatriots · Jun 19, 2017

jcutonilli said:
I am aware that many people here believe that the judges are the problem. I remember sitting in the court room waiting for the Court to grant the temporary restraining order in Kolbe. I was shocked to find out that it was denied. Once I did the research, I found that, while I disagree with the Courts decision in Kolbe (district level), it is not unreasonable given how courts decide cases. If you look at all the cases that I listed, you will find, with minor exceptions, they present essentially the same argument. SCOTUS has passed on all most all of them.

There are so many losses because the plaintiffs bring the same loosing argument and expect different results. SCOTUS is not going to be more deferential because they made the rules.

I am tired of loosing and am willing to debate anyone as to why in hopes to inform more people why there are so many losses.

I don't expect different results. But to think that we have lost because of the quality of the arguments, versus the fact that the judges are acting in bad faith is pure naivety.

CrueChief · Jun 19, 2017

Blacksmith101 said:
+1000
I just wish the Lawyers who want to debate how many angels can dance on the head of a pin would start their own thread and leave the case specific threads for things actually pertaining to the cases. That way we could still get our legal education and have uncluttered access to case information.

Couldn't agree more. :sad20:

ironpony · Jun 19, 2017

Does Peruta present a similar argument to the previous loses ? We may already have our answer then. Shew, I'll be in the reloading section.

GlocksAndPatriots · Jun 19, 2017

ironpony said:
Does Peruta present a similar argument to the previous loses ? We may already have our answer then. Shew, I'll be in the reloading section.

Yes, although the amicus briefs were better this time.

Inigoes · Jun 19, 2017

ironpony said:
Does Peruta present a similar argument to the previous loses ? We may already have our answer then. Shew, I'll be in the reloading section.

I would argue the participant behavior is extraordinary in this case.

The state stepping in, after it vehemently denied that no state laws were/are affected.
The en banc court went rogue, and answered a question that was not asked.

fightinbluhen51 · Jun 19, 2017

danb said:
Before first amendment principles were firmly established, all sorts of censorship and government pressure was permitted. First amendment doctrine as we know it was not really developed until the late 1920s. I am sure that there were a lot of appellate losses over that period.

Past performance is no guarantee of future results. There are so many losses currently primarily because 2nd Amendment law is really only in its infancy. What really matters at this point is the quality and persuasiveness of the dissents.

Do you listen to Andrew Klavan's podcast?

danb · Jun 19, 2017

fightinbluhen51 said:
Do you listen to Andrew Klavan's podcast?

I have not..

fightinbluhen51 · Jun 19, 2017

danb said:
I have not..

He had on the lawyer that was instrumental in winning both the Pentagon Papers & the Citizens United cases @ SCOTUS. Forgive me I don't know what episode it was or I'd reference here.

Basically laid out the 1A jurisprudence and how it didn't develop until the 1900s; noting that w/ Lincoln suspending habeas corpus and other federal laws against disparaging war efforts during WW1, cases didn't proceed until the 20th century.

You old folks (tongue in cheek) were far better educated in school than us young-in'. Though, I'm guessing you didn't get that education in school much either and was adult personal continuing ed. Just a point of order/interest that I've heard that two times now in as many weeks.

jcutonilli · Jun 19, 2017

kcbrown said:
If that's the case, then why did Heller have to explicitly hold that the right which is protected is an individual one?

My question isn't about the lower courts raising issues. It's about whether or not they're bound by Supreme Court precedent when said precedent isn't explicitly raised by either party.

The prefatory clause causes some confusion as to whether it is an individual one or a collective one. The district court felt it was a collective right as did four of the justices. Explicitly holding that it is an individual one clarifies the issue.

I don't know the specific answer to the court question, but if neither party raises the issue, the only party left is the court raising the issue. This is why I answered the question the way I did.

press1280 · Jun 19, 2017

ironpony said:
Does Peruta present a similar argument to the previous loses ? We may already have our answer then. Shew, I'll be in the reloading section.

Basically the same argument. Only difference now is Norman's ruling creating a split plus the unusual history of this case (en banc, state intervention,exc.).

kcbrown · Jun 19, 2017

jcutonilli said:
The prefatory clause causes some confusion as to whether it is an individual one or a collective one. The district court felt it was a collective right as did four of the justices. Explicitly holding that it is an individual one clarifies the issue.

That's most certainly true. But if clarification was necessary at that point, then it means there was no definitive/consistent treatment of it as an individual right prior to that.

I don't know the specific answer to the court question, but if neither party raises the issue, the only party left is the court raising the issue. This is why I answered the question the way I did.

Hmm ... how might one go about discovering the answer?

Inigoes · Jun 20, 2017

press1280 said:
Basically the same argument. Only difference now is Norman's ruling creating a split plus the unusual history of this case (en banc, state intervention,exc.).

Has Norman even filed for cert? Isn't getting close to the end of the window?

We may only have to wait until Thursday to find out either way.

press1280 · Jun 20, 2017

Inigoes said:
Has Norman even filed for cert? Isn't getting close to the end of the window?

We may only have to wait until Thursday to find out either way.

Norman has another month I think. It got the clock stopped by asking the FL supremes for a rehearing.

Inigoes · Jun 20, 2017

press1280 said:
Norman has another month I think. It got the clock stopped by asking the FL supremes for a rehearing.

There is no incentive for the SCOTUS to wait for Norman then. We will most likely hear about Peruta either Thursday or Monday. I seriously doubt they will hold Peruta over the summer.

danb · Jun 20, 2017

The only reason they would hold Peruta over the summer is if we are getting a PC opinion.

Just to reiterate the stats, Supreme Court tends to be light on grants until the last conference of June. The avg # grants the 4th conference is ~9, the avg number of grants per conference the 7 prior weeks is one or two.

I think that there are a number of cases that stand a decent (>40%) chance of being granted cert. We may get as many as 13 grants on Monday!

777GSOTB · Jun 20, 2017

press1280 said:
Norman has another month I think. It got the clock stopped by asking the FL supremes for a rehearing.

04/13/2017 DISP-REHEARING DY Petitioner's Amended Motion for Rehearing, Reconsideration and Clarification is hereby denied.

Yup,...looks like they have until July 13th.

JC92 · Jun 20, 2017

Inigoes said:
There is no incentive for the SCOTUS to wait for Norman then. We will most likely hear about Peruta either Thursday or Monday. I seriously doubt they will hold Peruta over the summer.

Why wouldn't the opportunity to combine Peruta and Norman be advantageous to SCOTUS? This would allow SCOTUS to address both Open Carry (Norman) and the G&S ruse in CA that is used to dissuade almost everyone from applying in the first place.

Inigoes · Jun 20, 2017

JC92 said:
Why wouldn't the opportunity to combine Peruta and Norman be advantageous to SCOTUS? This would allow SCOTUS to address both Open Carry (Norman) and the G&S ruse in CA that is used to dissuade almost everyone from applying in the first place.

Norman has to petition the court first, which has not been done to date. As pointed out earlier in this thread they have until the middle of July.

En banc Decision in Peruta -- a loss

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