Federal Judge Destroys DOJ in Opinion on Bump stocks.

When Heller was argued (2008) the entire 2A was at risk. Justice Kennedy’s vote was critical & questionable. My guess is Gura did what (in his professional judgment) was necessary to get the win, i.e., a 5/4 result.

When Peruta was argued (years later) Heller was controlling law. Gura appears to have argued accordingly . . . winning in the 9th Circuit before a 3 Judge panel, and then losing before the en banc panel which ducked “bear” by holding “no right to carry concealed,” cert was denied.

At any rate, if Gura had lost Heller the battle for the 2A would have been over long ago, or so it seems to me.

Regards
Jack

wjackcooper said:

When Heller was argued (2008) the entire 2A was at risk. Justice Kennedy’s vote was critical & questionable. My guess is Gura did what (in his professional judgment) was necessary to get the win, i.e., a 5/4 result.

When Peruta was argued (years later) Heller was controlling law. Gura appears to have argued accordingly . . . winning in the 9th Circuit before a 3 Judge panel, and then losing before the en banc panel which ducked “bear” by holding “no right to carry concealed,” cert was denied.

At any rate, if Gura had lost Heller the battle for the 2A would have been over long ago, or so it seems to me.

Regards
Jack

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^^This


The context and strategy of appellate argument is always important. Clement and Gura do what they need to do to move the ball forward. Throwing the ball down the field looks great on the highlight reel, but if no one is open it gets intercepted and brought back. Which looks good on the gun prohibitionist highlight reel.

777GSOTB said:

How's this?...And there was no mention of sawed-off shotguns until this point in questioning.

Anthony M. Kennedy
But Just to be clear... and I don't want to misstate your position, but my understanding, I at least inferred that you would consider it reasonable to ban shipment of machine guns and sawed-off shotguns in interstate commerce?

Alan Gura
Yes, Your Honor.

The point is needing a license to exercise a right, period. Gura is all for it, when he should have/be opposing it completely. A state can just as easily issue a " Certificate Of Competence" over that of a license...I didn't see him argue that point. What restrictions are they reluctant to address?...Maybe it's because of the fact that a LICENSE is involved with those restrictions. If the restrictions are not arbitrary and capricious, then they are good to go according to Gura.

Why try and argue concealed carry cases at all, when past state supreme courts have ruled open carry can't be prohibited. That's a no-brainer there, yet every carry case has a participant wanting to conceal carry...Which means, you're just asking to LOSE the case....Not a very smart way to litigate.

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I am not sure I agree that he threw short barreled arms under the bus. Most of the discussion up to that point was about machine guns. I believe answer he gave was in context of this. The pejorative "sawed off" description can be implied to incorporate some kind of criminal intent and not short barrel arms in general. He definitely threw machine guns under the bus. The consequences of which is why we had Kolbe. Had the thought more strategically he should have better addressed this issue.

You also fail to see that short barreled arms can be linked to concealed carry. Better concealment is one reason to have short barreled arms and if there is precedent that concealed carry is not part of the right, it is not that much of a stretch to apply that same reasoning to short barreled arms.

I am not sure I share the same view as you with respect to carry licenses. There are certainly aspects of licensing that does not impinge on the right such as verifying that you are not a criminal or a lunatic. I am not sure I see a difference between a certificate and a license.

I see the concealed carry restrictions as part of the misunderstanding over what is and what is not part of the right. Addressing this issue helps with the understanding, while ignoring it makes other arguments that much harder (short barreled rifles or so called "assault weapons") It also seems to be the better method of carry in today's society.

wjackcooper said:

When Heller was argued (2008) the entire 2A was at risk. Justice Kennedy’s vote was critical & questionable. My guess is Gura did what (in his professional judgment) was necessary to get the win, i.e., a 5/4 result.

When Peruta was argued (years later) Heller was controlling law. Gura appears to have argued accordingly . . . winning in the 9th Circuit before a 3 Judge panel, and then losing before the en banc panel which ducked “bear” by holding “no right to carry concealed,” cert was denied.

At any rate, if Gura had lost Heller the battle for the 2A would have been over long ago, or so it seems to me.

Regards
Jack

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danb said:

^^This


The context and strategy of appellate argument is always important. Clement and Gura do what they need to do to move the ball forward. Throwing the ball down the field looks great on the highlight reel, but if no one is open it gets intercepted and brought back. Which looks good on the gun prohibitionist highlight reel.

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I am not sure I would agree with either of you. Brown was not the first civil rights case. There were many before it that failed. Most of the lower courts did not follow it afterwards. It took other SCOTUS cases for the lower courts to really accept the outcome. https://en.wikipedia.org/wiki/Brown_v._Board_of_Education

Sound familiar?

The problem I see is that they are not thinking about context or strategy. They put forth the same arguments over and over hoping that SCOTUS will step in and correct the situation. The mounting losses that Gura and Clement have experienced certainly are making the gun prohibitionist highlight reel pretty long.

jcutonilli said:

The problem I see is that they are not thinking about context or strategy. They put forth the same arguments over and over hoping that SCOTUS will step in and correct the situation. The mounting losses that Gura and Clement have experienced certainly are making the gun prohibitionist highlight reel pretty long.

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You dont get to where Clement and Gura are without thinking about context and strategy. Even high school debate teams do that, lol.


I look forward to your amicus brief! It will be great, the best ever, so great that you will be granted 20 minutes of argument time. I really do look forward to it.

wjackcooper said:

When Heller was argued (2008) the entire 2A was at risk. Justice Kennedy’s vote was critical & questionable. My guess is Gura did what (in his professional judgment) was necessary to get the win, i.e., a 5/4 result.

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Sawed-off shotguns, along with machine guns had NOTHING to do with the case. Heller didn't want to keep any of those types of weapons for self-defense. What REALLY happened there was, smarty pants Gura, blew the argument(I've already mentioned what that argument is), and at the expense of MILLIONS of gun owners.

wjackcooper said:

When Peruta was argued (years later) Heller was controlling law. Gura appears to have argued accordingly . . . winning in the 9th Circuit before a 3 Judge panel, and then losing before the en banc panel which ducked “bear” by holding “no right to carry concealed,” cert was denied.

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Yes, Heller was controlling and they indirectly indicate that concealed carry can be prohibited, but also indirectly indicate that open carry cannot be prohibited...Are you saying the more logical strategy is to litigate for concealed carry then? There isn't a single person out there who, if footing the bill themselves for such a case, would adhere to such reasoning...PERIOD. Also, lets not forget that, that argument has lost all the way to the SCOTUS...SEVERAL times. More of the same are at their door today, awaiting their demise, AGAIN.

wjackcooper said:

At any rate, if Gura had lost Heller the battle for the 2A would have been over long ago, or so it seems to me.

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I doubt very much that his position on weapons not even involved with the case, would have caused the court to rule differently. Heller wanted a handgun for self-defense, not machine guns and sawed-off shotguns.

jcutonilli said:

You also fail to see that short barreled arms can be linked to concealed carry. Better concealment is one reason to have short barreled arms and if there is precedent that concealed carry is not part of the right, it is not that much of a stretch to apply that same reasoning to short barreled arms.

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That's a ridiculous argument...You should take a look at handgun barrel lengths and a handguns OAL in general...Like the type the Heller case was all about. Also, a shotgun that was 30" long in OAL, but has the barrel "sawed-off" to a barrel length of 17 1/2", is now a 29 1/2" long in OAL, sawed-off shotgun. Yes, that is so very concealable. I can walk into a gunshop and buy a Keltec KSG shotgun that's 26" in OAL, without paying a $200 tax and waiting 1yr, but I would have to do just that, with the 29 1/2" OAL sawed-off shotgun....Like I said, Gura blew it, and at the expense of MILLIONS of gun owners.

777GSOTB said:

Sawed-off shotguns, along with machine guns had NOTHING to do with the case. Heller didn't want to keep any of those types of weapons for self-defense. What REALLY happened there was, smarty pants Gura, blew the argument(I've already mentioned what that argument is), and at the expense of MILLIONS of gun owners.

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No. Roll back the clock to late 80s and early 90s when Republicans voted for machine gun bans. Kennedy is of that era.

The prospect of unregulated machine guns would have scared the shit out of Kennedy. And that was before a madman lit up Las Vegas.

Gura did what he needed to do win Kennedys vote.

Anyone who thinks that they will live long enough to see the court strike down machine gun regulations needs to put the crack pipe down.

danb said:

No. Roll back the clock to late 80s and early 90s when Republicans voted for machine gun bans. Kennedy is of that era.

The prospect of unregulated machine guns would have scared the shit out of Kennedy.

Gura did what he needed to do win Kennedys vote.


Anyone who thinks that they will live long enough to see the court strike down machine gun regulations needs to put the crack pipe down.

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At this point, it will take an act of Congress to strike down the NFA or even parts of it.

I doubt that will ever happen now, unless we get a landslide of Constitutionalist in Congress...

danb said:

You dont get to where Clement and Gura are without thinking about context and strategy. Even high school debate teams do that, lol.


I look forward to your amicus brief! It will be great, the best ever, so great that you will be granted 20 minutes of argument time. I really do look forward to it.

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Are you comparing Clement and Gura to high school debate teams?

Maybe you can elaborate more on the strategies they are using.

777GSOTB said:

That's a ridiculous argument...You should take a look at handgun barrel lengths and a handguns OAL in general...Like the type the Heller case was all about. Also, a shotgun that was 30" long in OAL, but has the barrel "sawed-off" to a barrel length of 17 1/2", is now a 29 1/2" long in OAL, sawed-off shotgun. Yes, that is so very concealable. I can walk into a gunshop and buy a Keltec KSG shotgun that's 26" in OAL, without paying a $200 tax and waiting 1yr, but I would have to do just that, with the 29 1/2" OAL sawed-off shotgun....Like I said, Gura blew it, and at the expense of MILLIONS of gun owners.

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You certainly have made a ridiculous argument. I have not claimed that every short barreled arm is concealable nor have I said that concealment was the only reason people choose short barreled arms.

teratos said:

One thing we are missing from the 19th century when they banned concealed carry.....open carry was permissible. They thought carrying concealed meant you were up to no good. Or possibly black.

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Bold added by me.

Let's not forget that the vast majority of conceal carry laws came about in the southern US as a way to prevent potential lynching victims from being able to reasonably defend themselves from their attackers. All prohibitive gun laws have racist roots.

777GSOTB said:

Sawed-off shotguns, along with machine guns had NOTHING to do with the case. Heller didn't want to keep any of those types of weapons for self-defense. What REALLY happened there was, smarty pants Gura, blew the argument(I've already mentioned what that argument is), and at the expense of MILLIONS of gun owners.



Yes, Heller was controlling and they indirectly indicate that concealed carry can be prohibited, but also indirectly indicate that open carry cannot be prohibited...Are you saying the more logical strategy is to litigate for concealed carry then? There isn't a single person out there who, if footing the bill themselves for such a case, would adhere to such reasoning...PERIOD. Also, lets not forget that, that argument has lost all the way to the SCOTUS...SEVERAL times. More of the same are at their door today, awaiting their demise, AGAIN.



I doubt very much that his position on weapons not even involved with the case, would have caused the court to rule differently. Heller wanted a handgun for self-defense, not machine guns and sawed-off shotguns.

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To be fair, no one (Gura, exc.) has made the argument that concealed carry IS the right. Their argument in Kachalsky and the CA case (which forced Sacramento to go virtual shall-issue) was that the state had chosen their preferred method of carry but subjected it to a "need" standard. Thomas and Gorsuch dissented and wanted to hear Peruta which applied the same logic.
We did see the Norman case in FL (yes, open carry!) lose all the way and get denied cert. In fact we saw case after case after case lose and get denied cert (save Caetano) until Kavanaugh got on the court.
This tells me it's all about numbers and not that they want an absolutely clean open carry case. The cases in conference now are excellent in that those states legally speaking don't differentiate between open and concealed carry.

press1280 said:

To be fair, no one (Gura, exc.) has made the argument that concealed carry IS the right. Their argument in Kachalsky and the CA case (which forced Sacramento to go virtual shall-issue) was that the state had chosen their preferred method of carry but subjected it to a "need" standard. Thomas and Gorsuch dissented and wanted to hear Peruta which applied the same logic.
We did see the Norman case in FL (yes, open carry!) lose all the way and get denied cert. In fact we saw case after case after case lose and get denied cert (save Caetano) until Kavanaugh got on the court.
This tells me it's all about numbers and not that they want an absolutely clean open carry case. The cases in conference now are excellent in that those states legally speaking don't differentiate between open and concealed carry.

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If the fundamental right secured by the 2nd Amendment, is the open carrying of firearms outside the home, a state can't decide that one would have to apply for a license, pay a fee, and only carry in a concealed fashion. That would in a sense, be equivalent to a state deciding how one can exercise their 1st Amendment right to free speech and the states only method for doing that, requires one to apply for a license and to pay a fee. That's a no-go...See MURDOCK v. COMMONWEALTH OF PENNSYLVANIA, 319 U.S. 105 (1943) " It is a license tax – a flat tax imposed on the exercise of a privilege granted by the Bill of Rights. A state may not impose a charge for the enjoyment of a right granted by the federal constitution."

At the time Peruta was commenced, open carry was allowed also, but there could not be a loaded magazine in the firearm...So, there wasn't a " state preferred method " in that instance. Yet, instead of arguing the unloaded firearm issue not being readily usable for self-defense with open carry, they decided to go the licensed concealed carry route. Again, even though the SCOTUS indicated that concealed carry isn't protected. The court not taking Peruta had nothing to do with Kennedy. Why would he be against a state required license and the carrying of firearms, in a fashion that seems most suitable for these present times? The CORE 2nd Amendment right is self-defense and self-defense isn't reason enough for Peruta to get a license from San Diego county, but we're(SCOTUS, Kennedy) okay with that? I can't believe that. It was the carry method, as the 9th Circus Court most clearly explained.

Norman also had a license to carry under the laws of Florida, so that wasn't a clean cut, open carry case. He essentially waived his right to open carry when he entered into the license agreement with the state. I thought they would over look the license aspect of it, but they didn't.

That's the problem I see with those cases before the court today. There is NO distinction as to how the plaintiffs want to carry. This means, they want a license that allows one to carry either openly or concealed, but concealed carry isn't a protected right and it's a provision of the license. I see them not taking these cases for that reason, otherwise they should have or could have solved the issue with the Norman case and said he had a right to ALSO open carry even though he acquired a license to conceal carry. That actually would have been a cleaner case to consider.

And Caetano illustrates just how it needs to be done...Choose your weapon, don't have a license and carry it for self-defense...She got lucky that concealment wasn't a part of the charge against her though.