En banc Decision in Peruta -- a loss

GlocksAndPatriots · May 7, 2017

jcutonilli said:
I think it is really easy to see a link between public safety and gun control because of the natural tendency to ban things that potentially cause harm.

The link between speech and public safety is not readily apparent so the judge would require more substantial evidence to convince them.

The court will strike down parts of gun control laws when the government cannot provide any evidence. You can see this in Heller III. Several of the provisions including the fingerprinting were upheld. The only provisions that were struck down were the ones where DC "has offered no evidence — let alone substantial evidence".

It was not just the 4CA that deferred to the legislature. The district court in Kolbe did it also. I seem to recall reading this in a number of cases, but don't remember the exact cases.

Again, I don't agree. The entire purpose for the 2nd Amendment was to protect arms IN SPITE of the fact that they're dangerous. If the state merely has to claim that a law will lessen the danger, then the 2nd Amendment has no teeth.

jcutonilli · May 8, 2017

GlocksAndPatriots said:
Again, I don't agree. The entire purpose for the 2nd Amendment was to protect arms IN SPITE of the fact that they're dangerous. If the state merely has to claim that a law will lessen the danger, then the 2nd Amendment has no teeth.

What you or I think does not affect how the court will rule on the issue. The court rulings to date suggest that the 2nd Amendment does not really have any teeth. Just look at Peruta, Jackson, Heller II, Woollard, Kolbe or any of the other cases that have limited our rights under the 2A.

The courts are going to make decisions (right or wrong) based on a series of precedents. All of theses cases have presented the argument as an individual right vs public safety. All of the cases have lost in court.

This argument has also lost in the legislatures of MD, CA, NY, NJ, CT, MA. While other legislatures have accepted this arguments, I do not see states such as MD changing their position any time soon. The only way to change the those legislatures, in the near term, is through the courts. The courts are not going to change their opinion on this argument either.

The only way to win in court is to change the argument. I am suggesting that the cases should be argued as public safety vs public safety.

Elliotte · May 8, 2017

press1280 said:
Can that happen?

Yes. GVR, or grant, vacate, & remand, means the Supreme Court grants the cert petition, vacates some or all of the court rulings (in this case the 9th's en banc ruling), and remands the case back to the level the Supreme Court thinks screwed it up, in this case the 9th Circuit at the en banc level.

Often GVR is used when the SC thinks the details of a case haven't been developed enough for the SC to decide or there is new SC precedent that hasn't been addressed in the lower court(s) ruling(s). So the SC sends the case back down and says, "here's new precedent to consider" or "you didn't consider all the facts, try again with all the relevant info".

press1280 · May 8, 2017

Elliotte said:
Yes. GVR, or grant, vacate, & remand, means the Supreme Court grants the cert petition, vacates some or all of the court rulings (in this case the 9th's en banc ruling), and remands the case back to the level the Supreme Court thinks screwed it up, in this case the 9th Circuit at the en banc level.

Often GVR is used when the SC thinks the details of a case haven't been developed enough for the SC to decide or there is new SC precedent that hasn't been addressed in the lower court(s) ruling(s). So the SC sends the case back down and says, "here's new precedent to consider" or "you didn't consider all the facts, try again with all the relevant info".

I was referring more to reinstating the 3 judge panel opinion. I believe this is done in state courts but don't recall SCOTUS ever reinstating a lower court ruling.

esqappellate · May 8, 2017

press1280 said:
I was referring more to reinstating the 3 judge panel opinion. I believe this is done in state courts but don't recall SCOTUS ever reinstating a lower court ruling.

Not done. Of course, if an intervening SCT decision makes plain that the panel was right, then a GVR may have that effect as a practical matter and then the en banc court on remand from the SCT might then reinstate the panel. But a direct order directing an en banc court to adopt a panel decision is not ordered.

jrosenberger · May 8, 2017

Also, it's extremely unlikely that SCOTUS would make such a blockbuster ruling without hearing the case themselves. GVRs are for cases where the ruling below is clearly wrong in light of new SCOTUS precedent and things like that.

Inigoes · May 8, 2017

jrosenberger said:
Also, it's extremely unlikely that SCOTUS would make such a blockbuster ruling without hearing the case themselves. GVRs are for cases where the ruling below is clearly wrong in light of new SCOTUS precedent and things like that.

This case would fit that distinction, just like Cateano.

krucam · May 8, 2017

On deck again for Thursday, May 11th Conference...

https://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/16-894.htm

Mar 8 2017 DISTRIBUTED for Conference of March 24, 2017.
Mar 23 2017 Rescheduled.
Mar 27 2017 DISTRIBUTED for Conference of March 31, 2017.
Mar 30 2017 Rescheduled.
Apr 10 2017 DISTRIBUTED for Conference of April 13, 2017.
Apr 12 2017 Rescheduled.
Apr 17 2017 DISTRIBUTED for Conference of April 21, 2017.
Apr 20 2017 Rescheduled.
Apr 24 2017 DISTRIBUTED for Conference of April 28, 2017.
May 8 2017 DISTRIBUTED for Conference of May 11, 2017.

esqappellate · May 8, 2017

krucam said:
On deck again for Thursday, May 11th Conference...

https://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/16-894.htm

Bingo...

danb · May 8, 2017

It looks to me as though there are about a dozen or so cases relisted/rescheduled from the Apr 28th conference. That is about twice as many as usual. I am not sure that Gorsuch is caught up, but it certainly seems like not.

It won't surprise me to see this relisted a few more times.

esqappellate · May 8, 2017

danb said:
It looks to me as though there are about a dozen or so cases relisted/rescheduled from the Apr 28th conference. That is about twice as many as usual. I am not sure that Gorsuch is caught up, but it certainly seems like not.

It won't surprise me to see this relisted a few more times.

Agreed. And Binderup too, as it is also set for May 11 Conference.

GlocksAndPatriots · May 8, 2017

jcutonilli said:
What you or I think does not affect how the court will rule on the issue. The court rulings to date suggest that the 2nd Amendment does not really have any teeth. Just look at Peruta, Jackson, Heller II, Woollard, Kolbe or any of the other cases that have limited our rights under the 2A.

The courts are going to make decisions (right or wrong) based on a series of precedents. All of theses cases have presented the argument as an individual right vs public safety. All of the cases have lost in court.

This argument has also lost in the legislatures of MD, CA, NY, NJ, CT, MA. While other legislatures have accepted this arguments, I do not see states such as MD changing their position any time soon. The only way to change the those legislatures, in the near term, is through the courts. The courts are not going to change their opinion on this argument either.

The only way to win in court is to change the argument. I am suggesting that the cases should be argued as public safety vs public safety.

My point is that the judges are using bad faith. It's not because we used the wrong argument. It's because they don't want to come to the result that any good faith interpretation would lead to.

jcutonilli · May 8, 2017

GlocksAndPatriots said:
My point is that the judges are using bad faith. It's not because we used the wrong argument. It's because they don't want to come to the result that any good faith interpretation would lead to.

Everyone seems to blame the judges, but judges generally don't use bad faith. They are doing exactly what you have acknowledged.

GlocksAndPatriots said:
Right, everyone agrees that individual rights can be curtailed for public safety concerns to some extent

There is simply a difference of opinion about what that means. Their opinion matters, yours and mine does not.

What baffles me is that you and all of the lawyers that brought the cases don't want to acknowledge that the individual right actually provides the public's safety and that the government does not really provide public safety. That would completely undermine the governments argument.

press1280 · May 8, 2017

jcutonilli said:
Everyone seems to blame the judges, but judges generally don't use bad faith. They are doing exactly what you have acknowledged.
There is simply a difference of opinion about what that means. Their opinion matters, yours and mine does not.

What baffles me is that you and all of the lawyers that brought the cases don't want to acknowledge that the individual right actually provides the public's safety and that the government does not really provide public safety. That would completely undermine the governments argument.

It's an interesting argument to make, but at the same time, isn't it the government's burden to prove otherwise under any form of heightened scrutiny?

jcutonilli · May 8, 2017

press1280 said:
It's an interesting argument to make, but at the same time, isn't it the government's burden to prove otherwise under any form of heightened scrutiny?

Yes the government is required to prove it. When they don't provide any evidence, the law or the portion of the law that they don't prove gets struct down. See Heller III.

The problem is that it does not appear to be very difficult for the government to prove things as Heller III or any of the other cases demonstrate.

Elliotte · May 8, 2017

press1280 said:
I was referring more to reinstating the 3 judge panel opinion. I believe this is done in state courts but don't recall SCOTUS ever reinstating a lower court ruling.

Ah, gotcha. Although, by GVR'ing it back to the pre-en banc level aren't they reinstating the panel ruling? While they may not say the panel ruling is correct, by not GVR'ing it as well, they're at least saying the panel ruling followed procedures correctly, but the en banc didn't in this case.

Inigoes · May 9, 2017

Sheriff Gore is back

http://www.sandiegouniontribune.com/opinion/commentary/

krucam · May 9, 2017

Inigoes said:
Sheriff Gore is back

http://www.sandiegouniontribune.com/opinion/commentary/

He totally omitted the 3 judge panel decision at CA9....

Elliotte · May 9, 2017

Better link http://www.sandiegouniontribune.com...-concealed-carry-law-utak-20170504-story.html

krucam · May 9, 2017

Will results of a Thursday Conference come out Friday or the typical Monday?

En banc Decision in Peruta -- a loss

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