Young Opening Brief Filed

Steel Hunter · Sep 25, 2020

esqappellate said:
Folks shouldn't put too much stock in this oral argument. Notice that Judge O'Scannlain, the author of the panel opinion, had no questions for either side. The greatest risk at oral argument is that you concede away the case. It is extremely hard to win a case at oral argument. It is really easy to lose a case at oral argument. Neither side lost their case at the argument. Neither side won their case at the argument. The arguments made in the briefs thus matter. Young's briefs are quite good. So wait and see. It will be a closely divided en banc decision.

Thank you for providing the expert opinion and your insight into this. I watched the argument and wasn't really sure what to take away from it other than that the one judge clearly doesn't like this new fangled technology stuff.

esqappellate · Sep 25, 2020

Steel Hunter said:
Thank you for providing the expert opinion and your insight into this. I watched the argument and wasn't really sure what to take away from it other than that the one judge clearly doesn't like this new fangled technology stuff.

None of these judges are good with the tech. Rather amusing to watch, really.

esqappellate · Sep 25, 2020

jcutonilli said:
I should clarify my statements.

All of these 2A cases generally boil down to public safety vs the right. SCOTUS has not clearly delineated how to make that determination. This gives the judge much more leeway in making a decisions.

Based on the oral arguments, I see this case being decided on whether the court feels there is some kind of historical precedent in these good-cause laws or whether the right takes precedence. If the good-cause precedent wins, what you have said does not matter. It only matters if they feel the right takes precedence.

It certainly is ultimately up to the judge. The less leeway you give them the more likely they are to decide in your favor.

Truer words were never spoken. And that is exactly how Young's briefs were written.

Inigoes · Sep 26, 2020

So far, so good

Nothing bad for our side from the court watchers.

https://www.courthousenews.com/right-to-carry-gun-in-public-debated-at-ninth-circuit/amp/

press1280 · Sep 26, 2020

Inigoes said:
So far, so good

Nothing bad for our side from the court watchers.

https://www.courthousenews.com/right-to-carry-gun-in-public-debated-at-ninth-circuit/amp/

The attorney also cited 30 states that had restrictions on openly carrying firearms in the early 20th century to support Hawaii’s argument that these laws are longstanding, a factor the Supreme Court in Heller said should be considered when determining the constitutionality of gun restrictions.

I'm curious what 30 states he's referring to and what exactly he means by "restrictions"; is he saying open carry was banned, required a license, or merely you couldn't open carry in every place at every time?

I find it likely it's the latter which is extremely misleading to the court. It's the typical strawman argument the antis use time and time again. They'll say (as in this case) that plaintiff wants to open carry in public with zero time and place and manner restrictions which is simply false. I believe Hawaii still has off limits places and restrictions even if someone has the "theoretical" permit in hand.

wjackcooper · Sep 26, 2020

delaware_export said:
@jcutonilli... my apologies.

every time you say "the cases are not argued properly" i think... he's full of it.

well, i am coming around to your way of thinking. agree with @press1280.

that was painful.

i wrote up post and deleted it. better that way. hoping the 9th sees through this, but thinking they'll defer to the other districts and the state of hawaii.

For sure, some here do not believe the likes of Paul Clement, Allen Grau, Stephen Halbrook, John Sweeney, Charles Cooper, and Erin Murphy among others have a clue as to how to frame and argue a 2A case.

Don’t forget Mr. Beck prevailed before the original panel (two Republicans for, one against). Briefs and oral arguments in “gun rights cases” have between zero and no positive influence on the ultimate decisions of Democrat Judicial appointees. This case was decided in early 2019 when the panel was drawn.*

The only variable … will Barrett’s appointment change the way some Democrat judges play their cards?

Regards
Jack

*In our updated dataset, the party of the appointing president is now predictive of judge votes in civil gun rights cases.
https://charlestonlaw.edu/wp-content/uploads/2019/09/10_Judicial-Ideology-Emerges.pdf page 317

jcutonilli · Sep 26, 2020

wjackcooper said:
For sure, some here do not believe the likes of Paul Clement, Allen Grau, Stephen Halbrook, John Sweeney, Charles Cooper, and Erin Murphy among others have a clue as to how to frame and argue a 2A case.

Don’t forget Mr. Beck prevailed before the original panel (two Republicans for, one Democrat against). Briefs and oral arguments in “gun rights cases” have between zero and no positive influence on the ultimate decisions of Democrat Judicial appointees. This case was decided in early 2019 when the panel was drawn.*

The only variable … will Barrett’s appointment change the way some Democrat judges play their cards?

Regards
Jack

*In our updated dataset, the party of the appointing president is now predictive of judge votes in civil gun rights cases.
https://charlestonlaw.edu/wp-content/uploads/2019/09/10_Judicial-Ideology-Emerges.pdf page 317

It is not a belief. It is a fact that none of these attorneys* have brought a 2A case to SCOTUS that overturns the lower court decision. I do not make the determination of which cases SCOTUS takes. SCOTUS does and they have determined that all of the cases that they have brought do not warrant overturning the lower court decision.

The paper does not say what you think it does. All the paper does is correlate the outcome of the case with the political affiliation of the judge. The paper does not demonstrate causation however. There is nothing in this paper to suggest that all possible arguments were tried and failed or even a range of arguments were tried and failed.

There are lots of variables that have not been explored including proposing different arguments that better address the issues raised by the court.

* the NRA technically did not bring the case in McDonald v Chicago

press1280 · Sep 26, 2020

jcutonilli said:
It is not a belief. It is a fact that none of these attorneys* have brought a 2A case to SCOTUS that overturns the lower court decision. I do not make the determination of which cases SCOTUS takes. SCOTUS does and they have determined that all of the cases that they have brought do not warrant overturning the lower court decision.

The paper does not say what you think it does. All the paper does is correlate the outcome of the case with the political affiliation of the judge. The paper does not demonstrate causation however. There is nothing in this paper to suggest that all possible arguments were tried and failed or even a range of arguments were tried and failed.

There are lots of variables that have not been explored including proposing different arguments that better address the issues raised by the court.

* the NRA technically did not bring the case in McDonald v Chicago

Ummm... didn’t Alan Gura get us Heller and McDonald?

jcutonilli · Sep 26, 2020

press1280 said:
Ummm... didn’t Alan Gura get us Heller and McDonald?

He was not on the list, but Gura has not had a 2A case reach SCOTUS since McDonald. He is not really doing any better since then.

press1280 · Sep 27, 2020

jcutonilli said:
He was not on the list, but Gura has not had a 2A case reach SCOTUS since McDonald. He is not really doing any better since then.

Well I guess you're technically right since some guy named Allen Grau was on the previous post and he's never won a case in his life :lol:

Only 2 cases since McDonald have "reached" SCOTUS since, Caetano and NYSRPA.

Gura also won Moore v Madigan. This is a very big precedent not only because IL is now shall issue, but all other circuits are trying their hardest to distance themselves from it to avoid the appearance of a split. And, although eventually the CA CCW cases failed to make precedent in CA9, he was still able to get Sacramento to go virtual shall issue. IMO, he's done more than anyone else to advance 2A rights. I suspect the reason he's been somewhat quiet lately is that SAF may be in financial trouble and is very hesitant to file additional lawsuits and Gura isn't in the pro bono business.

Allen65 · Sep 27, 2020

press1280 said:
I suspect the reason he's been somewhat quiet lately is that SAF may be in financial trouble and is very hesitant to file additional lawsuits and Gura isn't in the pro bono business.

I helped fix that this morning, sent in another donation to SAF.

jcutonilli · Sep 27, 2020

press1280 said:
Well I guess you're technically right since some guy named Allen Grau was on the previous post and he's never won a case in his life

Only 2 cases since McDonald have "reached" SCOTUS since, Caetano and NYSRPA.

Gura also won Moore v Madigan. This is a very big precedent not only because IL is now shall issue, but all other circuits are trying their hardest to distance themselves from it to avoid the appearance of a split. And, although eventually the CA CCW cases failed to make precedent in CA9, he was still able to get Sacramento to go virtual shall issue. IMO, he's done more than anyone else to advance 2A rights. I suspect the reason he's been somewhat quiet lately is that SAF may be in financial trouble and is very hesitant to file additional lawsuits and Gura isn't in the pro bono business.

Caetano was brought by a public defender, who was not on the list
NYSRPA was not resolved on the merits.

Gura also won Wrenn. It is not that there have not been any victories. It is just that all these lawyers present a case that usually get overturned, but are not strong enough for SCOTUS to step in and resolve.

Is SAF in financial trouble or are they litigated out? There certainly have been a lot of losses across the various circuits. The remaining circuits generally do not have states that create infringing laws. What is left to litigate that does not already have an unfavorable precedent?

Allen65 · Sep 27, 2020

jcutonilli said:
Is SAF in financial trouble or are they litigated out? There certainly have been a lot of losses across the various circuits. The remaining circuits generally do not have states that create infringing laws. What is left to litigate that does not already have an unfavorable precedent?

If Dems win the Senate and Harris, er, Biden, wins the WH, we'll have a new Federal AWB to litigate some time in 2021. The House Dems have the bill queued up and ready to go forward. :sad20:

wjackcooper · Sep 27, 2020

jcutonilli said:
It is not a belief. It is a fact that none of these attorneys* have brought a 2A case to SCOTUS that overturns the lower court decision. I do not make the determination of which cases SCOTUS takes. SCOTUS does and they have determined that all of the cases that they have brought do not warrant overturning the lower court decision.

The paper does not say what you think it does. All the paper does is correlate the outcome of the case with the political affiliation of the judge. The paper does not demonstrate causation however. There is nothing in this paper to suggest that all possible arguments were tried and failed or even a range of arguments were tried and failed.

There are lots of variables that have not been explored including proposing different arguments that better address the issues raised by the court.

* the NRA technically did not bring the case in McDonald v Chicago

Odd,

The second point, if I understand it correctly (correlation – does not prove causation) clearly undermines the above first point, and plainly does not support the above second point where the apparent attempt is to refute the simple empirical evidence which shows what it shows, i.e., Democrat Judges are hostile to the 2A.

Who would have guessed?

Regards
Jack

jcutonilli · Sep 27, 2020

jcutonilli said:
It is not a belief. It is a fact that none of these attorneys* have brought a 2A case to SCOTUS that overturns the lower court decision. I do not make the determination of which cases SCOTUS takes. SCOTUS does and they have determined that all of the cases that they have brought do not warrant overturning the lower court decision.

The paper does not say what you think it does. All the paper does is correlate the outcome of the case with the political affiliation of the judge. The paper does not demonstrate causation however. There is nothing in this paper to suggest that all possible arguments were tried and failed or even a range of arguments were tried and failed.

There are lots of variables that have not been explored including proposing different arguments that better address the issues raised by the court.

* the NRA technically did not bring the case in McDonald v Chicago

wjackcooper said:
Odd,

The second point, if I understand it correctly (correlation – does not prove causation) clearly undermines the above first point, and plainly does not support the above second point where the apparent attempt is to refute the simple empirical evidence which shows what it shows, i.e., Democrat Judges are hostile to the 2A.

Who would have guessed?

Regards
Jack

There is nothing about my second point that undermines by first point. There is nothing but fact in my first point.

All the empirical evidence shows is that there is a correlation between how a judge votes in a 2A case and the political affiliation of the judge. This evidence does not show arguments don't matter or that Democrat Judges are hostile to the 2A. You cannot attach a cause to the data without demonstrating causation.

You may be demonstrating why the other lawyers have not raised this issue. Maybe this is a more difficult thing to understand than I thought.

wjackcooper · Sep 27, 2020

Wow!

Sorry I tried to help you.

Regards
Jack

whistlersmother · Sep 27, 2020

So, if the party of the judge is not causation of how he votes on 2A, and the argument is at issue, wouldn't that mean those that vote for 2A are not as logical, well thought, or educated as those that vote against the 2A due to bad arguments?

Those that are voting against 2A must be able to see the flaw in the arguments. That means the majority if those voting for 2A are easily duped and therefore not to be trusted due to failed logic or failed education?

jcutonilli · Sep 27, 2020

whistlersmother said:
So, if the party of the judge is not causation of how he votes on 2A, and the argument is at issue, wouldn't that mean those that vote for 2A are not as logical, well thought, or educated as those that vote against the 2A due to bad arguments?

Those that are voting against 2A must be able to see the flaw in the arguments. That means the majority if those voting for 2A are easily duped and therefore not to be trusted due to failed logic or failed education?

You cannot say that the party of the judge is not the causation either. All that we do know from the data is that there is a correlation between political party and the vote on 2A issues. It may be true that political party does cause the judge to vote the way they do on 2A issue, but that conclusion cannot be supported by just the correlative data supplied.

If the argument is the issue, then there could be several possible reasons. Your postulation about mental disparity between judges may be possible, but highly unlikely given that other constitutional issues do not see the same political disparity as the 2A. The disparity is really only on the civil 2A cases. The criminal 2A cases do not see the same disparity.

I think each side presents what appears to be a plausible argument. One of the underlying problems is that the case law is not clear as to how to address the right vs public safety issue. If you read Heller one way it supports the governments argument that intermediate scrutiny is appropriate. If you read Heller differently then public safety issues raised don't override the right. The issue is murky enough that the underlying biases (that each of us has) sway the judge to the side more valued by the political party.

What is missing from the arguments is the same question that was asked in this case at the en banc oral argument. How are the judges supposed way the public safety vs right issue when there is no clear answer.

I happen to believe there are two additions that need to be added. You need to make the court understand that the government is really presenting correlations that do not demonstrate causation. You also need to make the court understand that the 2A is really about who provides public safety. The government cannot protect us and that the people themselves need to retain the ability to protect themselves.

press1280 · Sep 28, 2020

jcutonilli said:
Caetano was brought by a public defender, who was not on the list
NYSRPA was not resolved on the merits.

Gura also won Wrenn. It is not that there have not been any victories. It is just that all these lawyers present a case that usually get overturned, but are not strong enough for SCOTUS to step in and resolve.

Is SAF in financial trouble or are they litigated out? There certainly have been a lot of losses across the various circuits. The remaining circuits generally do not have states that create infringing laws. What is left to litigate that does not already have an unfavorable precedent?

There are numerous states where if you find the right plaintiff you would have a complete ban on public carry for non-residents. For whatever reason after the Peterson case a few years ago no one has tried this again.
SC has no unlicensed carry and does not recognize a good number of permits and the license holder must be a resident of that state. So a MD resident is effectively banned from carrying in SC (absent owning property in the state). You'd think that a plaintiff could get a victory in SC's supreme court based on the makeup of the court I presume.

fscwi · Sep 29, 2020

Link below has post game analysis from Young's attorney Charles Nichols.

Young Opening Brief Filed

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