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Old December 12th, 2010, 12:31 PM #1511
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APPEAL!!!
Pretty much what I expect of all the lower courts in any liberal, anti-gun district. But, a loss at this level is only the loss of a battle, not the war!
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Old December 12th, 2010, 06:27 PM #1512
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But Peruta is not the best to use as a challenge because there are secondary issues involved
Agreed regarding Peruta, still disappointed...

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All of these cases will result in a trip to the supreme court, and realistically few would result in a change until that happened....

But so far it appears the lower courts are not going to do anything not explicitly scripted by the supreme court....

I will say Peruta has one huge silver lining: in the judges initial reply to the defendants motion to dismisss, she laid out a world in which we are pretty much guaranteed the things we are seeking. Much disappointment exists in her actual ruling, because so much promise existed in the early stages..

Fast forward past the MTD and we're in a place where she just could not find the right in Heller or McDonald. It is there, but not flagged as plainly as we need it. The irony here is that most rights previously recognized came from less enumerated dicta...but no bother....

My point is that this court defined the outcome of these cases today, even though it could not deliver it...

Read the "assumed truths" and realize those are reasonable under our expectations of supreme court action. Then read the results of those truths. That is us in two more years.
Patrick is absolutely correct here. The District AND Circuit levels of the Federal Court system will not and can not go against the Justices nor should they be. They will convey the law, explore boundaries, but rarely create or define it.

McDonald, on the way to SCOTUS had to go through the IL District and 7th Circuit Court of Appeals, and it lost both rounds. Most of you know this, but what is enlightening is the 7th Circuit's Opinion while rejecting McDonald.

http://www.chicagoguncase.com/wp-con...t_decision.pdf

From that disappointing opinion that ended up well:
(Remember, this is all 7th Circuit in their McDonald denial Opinion)

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The Supreme Court has rebuffed requests to apply the second amendment to the states. See United States v. Cruikshank, 92 U.S. 542 (1876); Presser v. Illinois, 116 U.S. 252 (1886); Miller v. Texas, 153 U.S. 535 (1894). The district judge thought that only the Supreme Court may change course. 2008 U.S. Dist. LEXIS 98134 (N.D. Ill. Dec. 4, 2008).
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Cruikshank, Presser, and Miller rejected arguments that depended on the privileges and immunities clause of the fourteenth amendment. The Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873), holds that the privileges and immunities clause does not apply the Bill of Rights, en bloc, to the states. Plaintiffs respond in two ways: first they contend that Slaughter-House Cases was wrongly decided; second, recognizing that we must apply that decision even if we think it mistaken, plaintiffs contend that we may use the Court’s “selective incorporation” approach to the second amendment. Cruikshank, Presser, and Miller did not consider that possibility, which had yet to be devised when those decisions were rendered.
The 7th Circuit, referencing 9th Circuit dicta in Nordyke:
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Another court of appeals has concluded that Cruikshank, Presser, and Miller still control even though their reasoning is obsolete.
Finally:
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Repeatedly, in decisions that no one thinks fossilized, the Justices have directed trial and appellate judges to implement the Supreme Court’s holdings even if the reasoning in later opinions has undermined their rationale. “If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989).
I'm afraid we're going to be stuck with "in the home" through the District and Circuit Courts...at least one of the Circuits need to grow a pair, and we'll have a guaranteed ticket to the Supreme Court.

I know, Patience my ass, I wanna kill something....
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Old December 13th, 2010, 08:48 AM #1513
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Mark,

Awesome look back at McDonald. It would be great to see a court change direction prior to the supreme court, if only for the psychological value. But like you suggest, we should be ready for a hard ride to the top.

The great thing?

If all these cases continue to claim restrictions are valid based on "in the home" it will be easier to knock them all down eventually. I do note that they are not making the same mistake the MD state courts did in saying "if 2A were incorporated fundamentally this decision would be different." So far defendants and courts are not leaving open such easy doors. There will be more fights.

We have a few state cases potentially percolating. Wonder how far we are from those being filed?
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Old December 13th, 2010, 12:29 PM #1514
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Quote:
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Mark,

Awesome look back at McDonald. It would be great to see a court change direction prior to the supreme court, if only for the psychological value. But like you suggest, we should be ready for a hard ride to the top.

The great thing?

If all these cases continue to claim restrictions are valid based on "in the home" it will be easier to knock them all down eventually. I do note that they are not making the same mistake the MD state courts did in saying "if 2A were incorporated fundamentally this decision would be different." So far defendants and courts are not leaving open such easy doors. There will be more fights.

We have a few state cases potentially percolating. Wonder how far we are from those being filed?
So...what would that mean? State cases filled for relief would obviously be the fastest way that this gets turned, but to me, it would seem that the federal rulings would be the most lasting. Correct?

Obviously, a left leaning court going back on it's "if 2a were incorporated fundamentally, this decision would be different" would not surprise me. Meaning, MD appeals court and MD Court of Special Appeals would contradict itself quite easily.

Just an interesting thought that we could lose at the Fed District and Circuit levels, but then potentially win @ MD's highest level while waiting on a SCOTUS ruling?
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Old December 13th, 2010, 01:58 PM #1515
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A federal supreme court win is the big prize we are looking for. These cases are filed in lots of jurisdictions for a few good reasons, one of which is almost surely to prevent one state court from overturning their restrictions and then stopping progression of cases into the higher federal system. So even if MD state courts went our way, the overall movement still has NY/NJ/CA etc. to work with. No chance in hell they will all go our way, so something is going to make its way up high soon.

MD has enough of a caveat in Heller/McDonald to not overturn their laws and still maintain a straight face. All of this "in the home" language from Scalia is all they need. So the state court can claim quite easily that the fundamental protection they claimed they needed to overturn "good and substantial" was limited by Heller to "in the home", hence not applicable.

Only the USSC is going to fix this for good. I hope Scalia gets a chance to re-write the majority opinion and fix the mess the courts are making of his original opinion. He said "most acute in the home", not "only in the home". So far courts take this as a sign they can give lower scrutiny to rights exercised outside the home. They don't see self defense as fundamental outside your doorstep.

Let's hope the current Supreme Court does not agree with them.
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Old December 13th, 2010, 02:47 PM #1516
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Quote:
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A federal supreme court win is the big prize we are looking for. These cases are filed in lots of jurisdictions for a few good reasons, one of which is almost surely to prevent one state court from overturning their restrictions and then stopping progression of cases into the higher federal system. So even if MD state courts went our way, the overall movement still has NY/NJ/CA etc. to work with. No chance in hell they will all go our way, so something is going to make its way up high soon.

MD has enough of a caveat in Heller/McDonald to not overturn their laws and still maintain a straight face. All of this "in the home" language from Scalia is all they need. So the state court can claim quite easily that the fundamental protection they claimed they needed to overturn "good and substantial" was limited by Heller to "in the home", hence not applicable.

Only the USSC is going to fix this for good. I hope Scalia gets a chance to re-write the majority opinion and fix the mess the courts are making of his original opinion. He said "most acute in the home", not "only in the home". So far courts take this as a sign they can give lower scrutiny to rights exercised outside the home. They don't see self defense as fundamental outside your doorstep.

Let's hope the current Supreme Court does not agree with them.
Maintaining the health of the current majority, my guess, like most others, is they will not go against their own dicta from the prior cases.

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Old December 13th, 2010, 02:55 PM #1517
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I wouldn't bet an entire farm on it. Scalia left wiggle room for a reason. I still say it's better than 50/50 we're interpreting things correctly, but little would surprise me.

To be sure, you can read these cases (and supporting references) and draw a pretty good picture of where you think the justices will go. Drawing a picture that is restrictive is possible, but much harder. So on balance, it seems that the decisions are heavy on the side of expansive protection for the exercise of 2A. But we're all technically reading tea leaves.

If we (collectively, many people nationwide) are reading these cases correctly, I just don't see the USSC backing away from the big question. Even Adam Winkler (avowed anti-gun legal professor) acknowledges that we are probably looking at shall-issue being required.

But I don't think we're looking at direct attacks on NFA (Miller) and GCA and FOPA being too successful. parts, maybe. But not facially. MGs will require congressional action.
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Old December 13th, 2010, 08:11 PM #1518
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I still say 7-10 years away IF ever in MD, lest the legislature changes.

Sorry to be the bearer of bad news but I am a realist.

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Old December 13th, 2010, 08:17 PM #1519
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If you assume a loss of these cases at the Supreme Court, I tend to agree with you. But if we are going to win, it will be sometime in/before 2013. The changes will roll soon after. Too much delay and you will be able to sue MD for punitive damages for violating a civil right.

So it's either 2-3 years or never.
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Old December 13th, 2010, 08:43 PM #1520
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Barring a court change, the legislature will only grow more liberal if the Montgomery County Federal job growth is not stymied. So our odds may be worse in 7-10 years.
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