Duncan v Berrcerra

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  • delaware_export

    Ultimate Member
    Apr 10, 2018
    3,144
    I don’t know how it’ll work, as I am not a lawyer. But at least one ?brief? I read leaned on cavanaugh’s concurrence in bruen to attempt to avoid the 6/3 opinion.

    the part about “not cast doubt on long standing“… (I believe that’s what his concur said)

    It is going to come down to how the cases get argued. The circuits certainly are not going to see the light, but I don't believe they are going to adopt completely unreasonable arguments either. The courts did not simply defer to the State for no reason, they did it because they perceived the issue as a political issue due to the conflicting evidence that was presented to them.

    SCOTUS still has not really addressed the deference issue because it has not really been argued in a way that resolves the issue. It is not really about deference, it is about when it is appropriate to restrict rights and for what reasons. While Bruen took the previously used reasoning off the table, it did not really provide clear guidance on how to figure it out.

    I think we need to wait and see how the states begin to argue these cases. I do not know how the states are really going to respond.
     

    Texasgrillchef

    Active Member
    Oct 29, 2021
    740
    Dallas, texas
    It is going to come down to how the cases get argued. The circuits certainly are not going to see the light, but I don't believe they are going to adopt completely unreasonable arguments either. The courts did not simply defer to the State for no reason, they did it because they perceived the issue as a political issue due to the conflicting evidence that was presented to them.

    SCOTUS still has not really addressed the deference issue because it has not really been argued in a way that resolves the issue. It is not really about deference, it is about when it is appropriate to restrict rights and for what reasons. While Bruen took the previously used reasoning off the table, it did not really provide clear guidance on how to figure it out.

    I think we need to wait and see how the states begin to argue these cases. I do not know how the states are really going to respond.
    Well there are several of the bump stock Chevron Defference cases still pending a grant with SCOTUS for the next October term. So we shall see about that.

    All the same judges/justices will be used for the 3 judge panel, and the En Banc hearing if granted.

    Except for the En Banc Panel, none of the other judges/justices are going to flip on their ruling. Will their opinion be written differently, now that Bruen has to be considered. absolutely. However Duncan will still win at the District level with Benitez, an Duncan will still win at the 3 judge level.

    Whats at stake is how the En Banc will rule, how they will write their opinion and if they will fall in line to limit the potential damage that an opinion by SCOTUS could created by finding for Duncan. If they find in favor the State. Then they risk a harsher more damaging (to the anti 2A movement) with an opinion and ruling from SCOTUS.

    Looking at history. When a case has been GVR’d and ends back in front of SCOTUS. The original “winner” remains the “winner” and their opinion and or mandate becomes much more severe and direct.

    So what I am saying is this. Duncan will still get their win in District, they will get their win at the 3 judge circuit just like last time.

    It will come down to if an En Banc Hearing is granted again, and if one is. How will they limit the exporsure and damage SCOTUs could cause if SCOTUS gets the last word.

    If The En Banc Panel finds for Duncan, and writes a crappy opinion. California may not appeal to SCOTUS. Then the case is over.

    Remember D.C. in Wrenn V D.C. never appealed to SCOTUS even though D.C. lost. Why? Because NY and CA pressured DC not too because they felt like it would be a huge loss.

    So what will the En Banc Panel actually do again? That’s the question. However we won’t know for another 2 years. Sadly.
     

    Texasgrillchef

    Active Member
    Oct 29, 2021
    740
    Dallas, texas
    I don’t know how it’ll work, as I am not a lawyer. But at least one ?brief? I read leaned on cavanaugh’s concurrence in bruen to attempt to avoid the 6/3 opinion.

    the part about “not cast doubt on long standing“… (I believe that’s what his concur said)

    His opinion can be used as guidance. However it can not be used as precedent, nor is his opinion binding. ONLY Justice Thomas’s opinion is binding.

    If there is an issue or question left un answered or ambiguous by Justice Thomas’s opinion. Then justice Kavanaugh’s opinion can be used to clarify those ambiguous questions or issues.
     

    Crazytrain

    Certified Grump
    MDS Supporter
    Jul 8, 2007
    1,641
    Sparks, MD
    Well there are several of the bump stock Chevron Defference cases still pending a grant with SCOTUS for the next October term. So we shall see about that.

    All the same judges/justices will be used for the 3 judge panel, and the En Banc hearing if granted.

    Except for the En Banc Panel, none of the other judges/justices are going to flip on their ruling. Will their opinion be written differently, now that Bruen has to be considered. absolutely. However Duncan will still win at the District level with Benitez, an Duncan will still win at the 3 judge level.

    Whats at stake is how the En Banc will rule, how they will write their opinion and if they will fall in line to limit the potential damage that an opinion by SCOTUS could created by finding for Duncan. If they find in favor the State. Then they risk a harsher more damaging (to the anti 2A movement) with an opinion and ruling from SCOTUS.

    Looking at history. When a case has been GVR’d and ends back in front of SCOTUS. The original “winner” remains the “winner” and their opinion and or mandate becomes much more severe and direct.

    So what I am saying is this. Duncan will still get their win in District, they will get their win at the 3 judge circuit just like last time.

    It will come down to if an En Banc Hearing is granted again, and if one is. How will they limit the exporsure and damage SCOTUs could cause if SCOTUS gets the last word.

    If The En Banc Panel finds for Duncan, and writes a crappy opinion. California may not appeal to SCOTUS. Then the case is over.

    Remember D.C. in Wrenn V D.C. never appealed to SCOTUS even though D.C. lost. Why? Because NY and CA pressured DC not too because they felt like it would be a huge loss.

    So what will the En Banc Panel actually do again? That’s the question. However we won’t know for another 2 years. Sadly.


    But will California gunnies have to wait the full two years to exercise their rights? What reason would Benitez stay his ruling? It's not like California is likely to win on appeal.
     

    delaware_export

    Ultimate Member
    Apr 10, 2018
    3,144
    Reference Hawaii and stun guns. also 9th circus. They had to wait appx 6 years. soooo… two years …. would be an improvement, I am sad to say. the possibility of activists judges and such. Hope I am wrong


    But will California gunnies have to wait the full two years to exercise their rights? What reason would Benitez stay his ruling? It's not like California is likely to win on appeal.
     

    Allen65

    Ultimate Member
    MDS Supporter
    Jun 29, 2013
    7,063
    Anne Arundel County
    Reference Hawaii and stun guns. also 9th circus. They had to wait appx 6 years. soooo… two years …. would be an improvement, I am sad to say. the possibility of activists judges and such. Hope I am wrong
    With the current post-Buren environment, the most active thing an anti-2A activist judge can do is be, well, inactive. Grant every motion for delay for filing briefs, schedule hearings as far into the future as calendars will allow, take an inordinately long time to write and promulgate decisions, never, ever, grant a TRO enjoining enforcement of a law no matter how clearly it's in violation of Bruen guidance.

    Delay keeps the infringing laws on the books indefinitely, and there is hope in the anti-2A community that if they can delay long enough to keep appeals away from SCOTUS, they can run out the clock until there's enough personnel turnover at the top to create an anti-Bruen majority on the Court. And they have Dobbs to demonstrate how well that long-term strategy works.
     

    Boxcab

    MSI EM
    MDS Supporter
    Feb 22, 2007
    7,867
    AA County
    With the current post-Buren environment, the most active thing an anti-2A activist judge can do is be, well, inactive. Grant every motion for delay for filing briefs, schedule hearings as far into the future as calendars will allow, take an inordinately long time to write and promulgate decisions, never, ever, grant a TRO enjoining enforcement of a law no matter how clearly it's in violation of Bruen guidance.

    Delay keeps the infringing laws on the books indefinitely, and there is hope in the anti-2A community that if they can delay long enough to keep appeals away from SCOTUS, they can run out the clock until there's enough personnel turnover at the top to create an anti-Bruen majority on the Court. And they have Dobbs to demonstrate how well that long-term strategy works.

    Not granting a TRO should allow you to apply for relief at the next higher court. It is a way to force them to move. If you get a TRO granted, the State will not want to drag their feet. It's a dance, we can now lead with the new tools provided by the Supremes.





    .



    Sent from my SM-G781U using Tapatalk
     

    Texasgrillchef

    Active Member
    Oct 29, 2021
    740
    Dallas, texas
    Not granting a TRO should allow you to apply for relief at the next higher court. It is a way to force them to move. If you get a TRO granted, the State will not want to drag their feet. It's a dance, we can now lead with the new tools provided by the Supremes.





    .



    Sent from my SM-G781U using Tapatalk
    If a TRO o a preliminary Injunction is issued, the state can request an emergency stay from the th circuit
     

    pcfixer

    Ultimate Member
    May 24, 2009
    5,948
    Marylandstan
    Did Bruen re-write it... or reiterate it...?
    Finally, Shall Not Be Infringed. 2nd Amendment "Unqualified Command"!


    "": When the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct. The government must then justify its regulation by demonstrating that it is consistent with the Nation’s historical tradition of firearm regulation.
    Only then may a court conclude that the individual’s conduct falls outside the Second Amendment’s “unqualified command.” Konigsberg, 366 U""
     

    lazarus

    Ultimate Member
    Jun 23, 2015
    13,678
    Except that sort relief from SCOTUS is extraordinarily rare. And an application for emergency relief goes to the "circuit justice", which for 9CA is Justice Elena Kagan. Good luck with that.
    The whole court can choose to hear TROs. It has happened plenty of times. SCOTUS has stepped in several times on various immigration/border related things.

    A couple of the justices are strongly against the shadow docket practice, but it hasn't stopped the court from doing it numerous times.

    I agree it IS rare. But I think the court is going to be wielding that if the lower courts don't act on some of those 2A cases that are more extreme. With these GVR'd cases I don't think any court is going to step in with TROs. However, for example NY's new "can't carry anywhere" law, if the district court doesn't issue a TRO, and the circuit doesn't, I'd bet that SCOTUS does. It is directly against the Bruen ruling.
     

    motorcoachdoug

    Ultimate Member
    MDS Supporter
    That could be what 9CA wants is SCOTUS to issue the TRO that way they can say to CA hey do not blame us we did not issue the TRO against your anti 2A laws even if we do agree with you in private and the government of krazy komi CA say say to the little people its the big out of touch federal government that pushed this upon you not us thus once again laying a snow job of lies and dishonesty upon the people of CA.
     

    Texasgrillchef

    Active Member
    Oct 29, 2021
    740
    Dallas, texas
    The whole court can choose to hear TROs. It has happened plenty of times. SCOTUS has stepped in several times on various immigration/border related things.

    A couple of the justices are strongly against the shadow docket practice, but it hasn't stopped the court from doing it numerous times.

    I agree it IS rare. But I think the court is going to be wielding that if the lower courts don't act on some of those 2A cases that are more extreme. With these GVR'd cases I don't think any court is going to step in with TROs. However, for example NY's new "can't carry anywhere" law, if the district court doesn't issue a TRO, and the circuit doesn't, I'd bet that SCOTUS does. It is directly against the Bruen ruling.

    The higher Circuit courts, En Banc Panels and even SCOTUS are going to treat the 4 GVR’d cases a little differently then any new cases filed after Bruen. Or even cases similar to the GVR’d one filed before Bruen.

    Such as the Miller v Bonta, and the NY case.

    If one of the GVR’d cases end back up in front of SCOTUS they won’t be very happy. In which case, looking at history, the case will get a PC grant, followed by a mandate, telling the Circuit court exactly how to rule. Some PC cases even get an opinion. So an opinion may even be released.

    It is very hard to say with any of the four GVR’d cases exactly what the Circuit courts will do. With they gran an En Banc hearing or will they deny and leave it to the 3 judge panel. Will either or both rule how they should in favor of Bruen, or will they rule against?

    If they rule in our favor with Bruen, and cower to the fact of what SCOTUS said and even could do. What will the State do? will They drop it or risk taking it back to SCOTUS by filing a Petition? They know they will loose. Then it will become nationwide law at that point. Remember Wrenn v DC. DC was pressured not to petition SCOTUS.

    Yet if we loose at the circuit level, with or without an En Banc hearing. We all know we will file that petition. Which a SCOTUS will PC in our favor, and then goes national.

    The anti 2A group, doesn’t want any of these 4 GVR’d cases to go national.

    So it is my belief, IMHO, that the Circuit court will rule in our favor. That an En Banc hearing won’t be granted, and the State will NOT file a Petition for cert with SCOTUS.

    Even if an En Banc panel hear is granted. I still think the En Banc will find in our favor.

    Yes, you do make a good point that they could push it to SCOTUS to blame them for the ruling. However… That Would make the ruling effective nationwide in all courts. Do they really want that? No I don’t.
    We would love for Duncan to become a national precedent. However I don’t think it will and it will only become a 9th Circuit precedent.
     

    Allen65

    Ultimate Member
    MDS Supporter
    Jun 29, 2013
    7,063
    Anne Arundel County
    Even if an En Banc panel hear is granted. I still think the En Banc will find in our favor.

    Yes, you do make a good point that they could push it to SCOTUS to blame them for the ruling. However… That Would make the ruling effective nationwide in all courts. Do they really want that? No I don’t.
    We would love for Duncan to become a national precedent. However I don’t think it will and it will only become a 9th Circuit precedent.
    That presumes their motives are in support of the common good, at least in their hoplophobic world views. Based on reading prior decisions, I think there's an awful lot of "If something bad happens, I don't want to be responsible" line of thinking. In that case, finding in favor of the law and letting SCOTUS do the final takedown allows 9CA to avoid feeling responsible for what they think the results will be.

    Even if Duncan doesn't become national precedent, it will be persuasive in other circuits.
     
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