Freidman v. Highland Park (AWB)

kcbrown said:

Funny how game theory is exactly what has made it possible for the opposition to win in the courts thus far.


That's true, but you miss my point here. A Constitutional Convention requires massive support. The opposition has been winning precisely because their approach doesn't require that. Otherwise, they would have already done away with the 2nd Amendment.

As long as we keep with the current Constitutional mechanisms, it will be much harder to amend the Constitution than it is to get laws passed. But more importantly, it means that if we manage an Article V Convention and get what we need out of it, reversing that will require another Con Con. Which is to say, the demographic shift required for that is much greater than that which is required to prevent the Convention that we will need.

So you'd better not underestimate the danger posed by a demographic shift. It could easily, and permanently, kill our ability to win liberty without even achieving a national majority.


The demographics I speak of are not just political, but I do see your point. If we can win over those who immigrate here, it will make things much more difficult for the opposition, and perhaps even impossible.


Now this I disagree with, at least with respect to the demographics. I do agree that it's an excellent tool for speaking to those who are already on our side, a way of showing them that the next step is necessary. But for those who aren't on our side yet, how is it that they'll care, when they see the courts siding with them on the issues they care about?

That makes the PR game a very difficult one. How do you go about convincing someone who doesn't already side with you that they should side with you, and that the courts are a barrier to their interests, when the courts have been siding with them on other issues?


OK, will do. And I agree, it's not an impossible bar.

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Heller made it easier to bypass the nonsense about a milita bound right.. Even today a few nuts claim that...but I tell them if they can't accept court rulings.. We are done talking..

Done in front of an 'audience' ..usually one or two is best.... I usually then start working on the audience..

Then I do either ss or due process.. Moderates become even more moderates.. Mild antis become moderates..

You need to remember that most folks parot back what they are told by the talking heads so they can give the right answers.. Many have never ever ever had an original thought.. Plus since all gun owners are undereducated..they can't surviving being one upped..

Heller lets me pants them right out of the gate..and no liberal can oppose due process..

But realise these folks are not the target..they are the foil..the method is out think them in public..thus causing all those who really don't care but just want to have the right answer when teacher calls on them..to actually listen.

Plus its the only time we get free airtime other than a mass shooting..and that tends to put us at a disadvantage

Now most of the time they conceede Heller.. Now we are talking about rights not guns..

This is a big improvement.

wolfwood said:

Its to early to really know. It really goes 9th Circuit has the most and 7th Circuit has maybe a third of the Ninth. Then D.C. has a few. Then all the other Circuits have a couple random cases. At least the Second isn't deciding this. They are the most anti Second Amendment circuit.

We are almost there one way or another. I really think this time next year we will know whether we are screwed or not though. All the carry cases will be decided. All the AWB cases will be decided.

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The rulings are on feelings and not facts.

wolfwood said:

Its to early to really know. It really goes 9th Circuit has the most and 7th Circuit has maybe a third of the Ninth. Then D.C. has a few. Then all the other Circuits have a couple random cases. At least the Second isn't deciding this. They are the most anti Second Amendment circuit.

We are almost there one way or another. I really think this time next year we will know whether we are screwed or not though. All the carry cases will be decided. All the AWB cases will be decided.

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Well, maybe. As I see it, that depends on two things:

1. Whether or not the 9th Circuit is waiting for Wrenn before deciding Peruta (really, that is more an excuse they might use than anything else. Nothing actually prevents them from deciding it now).
2. Whether or not Wrenn has to be litigated at the district level again.

I expect it's more likely than not that Wrenn will end up having to be relitigated from scratch, in which case it won't be until 2018 or so that it winds up being completely decided.

kcbrown said:

Right there with you on this. I've been arguing in favor of an Article V Convention, and how it's really the only way we're going to be able to fix the systemic defects that exist, for some time now. Weirdly, you seemed opposed to me on that, at least initially. But that's in the past. I think we're on the same page now, at least.

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There are no rules for a Con Con once it convenes.

It may be well intentioned, but the product as a result is not a gaurrantee. The 2A could be written off easily enough by the tyrants who are in attendance.

You can be assured, current justices and politicians will be delegates, especially from the Democratic Party who want to eviscerate the 2A.

Inigoes said:

There are no rules for a Con Con once it convenes.

It may be well intentioned, but the product as a result is not a gaurrantee. The 2A could be written off easily enough by the tyrants who are in attendance.

You can be assured, current justices and politicians will be delegates, especially from the Democratic Party who want to eviscerate the 2A.

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The work of any such convention will still need to be ratified by the states. Most likely they will try to do kill the 2a as you say..... But our odds are better than letting congress propose the amendment which is likely within 50 years or so.

My goal for such a convention is to expel certain states from the union.. Since it will come at a time when the bankrupt states..( mostly blue ) will be begging for money from the solvent states.( mostly red ) , I think we can achieve that end.

Yes MD is one of them.. The cancer must be purged.

I'm too disgusted to fully absorb the dialog here, but I will get to it.

I suppose should be long past my current astonishment at the willingness of the court to ignore it's own precedent and allow a landmark ruling to be laid to ridicule by the lower courts. Even the judicial integrity of the court is cast aside when it comes to their hatred of this most fundamental right.

Absolutely disgraceful and bereft of intellectual integrity, the judiciary, as an institution, is a far bigger loser than we are.

I've officially lost all faith in our government. It is just sickening.

kcbrown said:

Well, maybe. As I see it, that depends on two things:

1. Whether or not the 9th Circuit is waiting for Wrenn before deciding Peruta (really, that is more an excuse they might use than anything else. Nothing actually prevents them from deciding it now).
2. Whether or not Wrenn has to be litigated at the district level again.

I expect it's more likely than not that Wrenn will end up having to be relitigated from scratch, in which case it won't be until 2018 or so that it winds up being completely decided.

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Of course there are the sleeper cases. The Tyler 6th Circuit case will go to the Supreme Court if it is not overturned en banc and then there are the two felon in possession cases in the 3rd circuit that already won at the district court level.

Brooklyn said:

The work of any such convention will still need to be ratified by the states. Most likely they will try to do kill the 2a as you say..... But our odds are better than letting congress propose the amendment which is likely within 50 years or so.

My goal for such a convention is to expel certain states from the union.. Since it will come at a time when the bankrupt states..( mostly blue ) will be begging for money from the solvent states.( mostly red ) , I think we can achieve that end.

Yes MD is one of them.. The cancer must be purged.

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Please read the Federalist Paper #10 written by James Madison.

The U.S. Constitution may not be perfect, but a new constitutional convention will probably make it worse.

Federalist 10:

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By a faction, I understand a number of citizens, whether amounting to a majority or a minority of the whole, who are united and actuated by some common impulse of passion, or of interest, adversed to the rights of other citizens, or to the permanent and aggregate interests of the community.

There are two methods of curing the mischiefs of faction: the one, by removing its causes; the other, by controlling its effects.
There are again two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests.

It could never be more truly said than of the first remedy, that it was worse than the disease. Liberty is to faction what air is to fire, an aliment without which it instantly expires. But it could not be less folly to abolish liberty, which is essential to political life, because it nourishes faction, than it would be to wish the annihilation of air, which is essential to animal life, because it imparts to fire its destructive agency.
The second expedient is as impracticable as the first would be unwise. As long as the reason of man continues fallible, and he is at liberty to exercise it, different opinions will be formed. As long as the connection subsists between his reason and his self-love, his opinions and his passions will have a reciprocal influence on each other; and the former will be objects to which the latter will attach themselves. The diversity in the faculties of men, from which the rights of property originate, is not less an insuperable obstacle to a uniformity of interests. The protection of these faculties is the first object of government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results; and from the influence of these on the sentiments and views of the respective proprietors, ensues a division of the society into different interests and parties.

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wolfwood said:

We are almost there one way or another. I really think this time next year we will know whether we are screwed or not though. All the carry cases will be decided. All the AWB cases will be decided.

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There will be more cases after the current ones have been decided, and then more after those. I'm pretty sure of that.

What I'm less sure of is whether the Court is temporarily done with the 2A or simply awaiting a sufficiently narrow carry case. We have "keep" through Heller and McDonald. The next necessary step is "carry". Caetano is a source of hope. If that is successful, the dimensions ("infringed") can be argued. Our side has, I think, tried to argue ahead of itself.

As a sidebar, WW, you are winning a remarkable number of 2A cases, both large and small. The other day I heard an advertisement referring to "the best lawyer nobody has ever heard of", and I had no doubt who that advertisement was really referencing. I hope you get the wider recognition you deserve.

Brooklyn said:

The work of any such convention will still need to be ratified by the states. Most likely they will try to do kill the 2a as you say..... But our odds are better than letting congress propose the amendment which is likely within 50 years or so.

My goal for such a convention is to expel certain states from the union.. Since it will come at a time when the bankrupt states..( mostly blue ) will be begging for money from the solvent states.( mostly red ) , I think we can achieve that end.

Yes MD is one of them.. The cancer must be purged.

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If you do things right in the resulting Convention, the blue states won't need to be purged. Liberty will be restored as an automatic byproduct of a Convention done right, regardless of the desires of the blue states.

Thank you Brother. I've been trying to represent Hawaii and take cases on the mainland that no one else will take such as my stuff against the ATF. I am litigating my first FOIA case against them in D.C. right now for David Hardy.

Hawaii and the ATF on the mainland do some pretty outrageous stuff that makes the infringement so extreme that I think the courts are willing to at least consider upholding the Constitution. Also I do not need much to live on since I am single and my only hobby is Brazilian jiu jitsu so I can live off the 1988 fees I collect which means I can represent clients without money.

Inigoes said:

There are no rules for a Con Con once it convenes.

It may be well intentioned, but the product as a result is not a gaurrantee. The 2A could be written off easily enough by the tyrants who are in attendance.

You can be assured, current justices and politicians will be delegates, especially from the Democratic Party who want to eviscerate the 2A.

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Convention of the States can be done as they describe and proscribe. Remember, some states chose not to send any delegates.

Not to mention the ratification conventions.

kcbrown said:

If you do things right in the resulting Convention, the blue states won't need to be purged. Liberty will be restored as an automatic byproduct of a Convention done right, regardless of the desires of the blue states.

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Start hardline..make them prove they are worthy.

Make it clear that liberty is non negotiable..

You will never regret pressing your advantage.. but you must never bluff.. never .

pcfixer said:

Please read the Federalist Paper #10 written by James Madison.

The U.S. Constitution may not be perfect, but a new constitutional convention will probably make it worse.

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At the time weak states needed to join togther to get a viable currency and to hold against foreign threats.

Now stupid economic policies by business hostle states whose corupt administration of government threatens liberty itself as well as the very existence of the republic.

Recall also that the proposed charter was to take full force amoung those states ratifying at a certain threashold thus creating the risk of non ratifying states,being abandoned to thier own devices in the face of the very risk which made union imperative.


We will set the terms under which we will allow these states to remain in.the union. And let there own self interests make our arguments.

The claim that we can do no.better suggests that nothing has been learned in over 200 years...and in.any case is belied by our own experience.
Having violated the charter with impunity...and grown the Fed without effective limit ....while creating an imperial presidency...long in the making mind you..our leaders have provided proof enough that the imperfect constitutional has in fact failed to achieve the objectives of the founding generation.

We must now decide how best to oragnise and control the powers of government to achieve these ends or forever lose the chace to do so peacefully..

If we truely can do no better ..liberty should die..we are unworthy.

There is a fair amount of history with convention of the states.... including details of historical practice.

Some recent historical analysis that gets past eh hype of a run away convention that many throw around.
https://www.washingtonpost.com/news...itutions-convention-for-proposing-amendments/

Details on article V
https://www.washingtonpost.com/news...-amendments-convention-into-the-constitution/


A run away convention is an impossibility, as you are not discussing nor would the states ratify or support a wholesale re-write of the constitution. this debate grows old .... guys run around all over our forums "we need to do something our rights are being taken away" .... Then follow up with "I cant believe the courts are revolting against such a clearly written right" .... "What else do we do?" ....."Try some more court cases" .... "Maybe some legislative action that has even less force and that the courts can read out of existence" ... "Maybe congress will toss us a bone" .... "Nah the president will veto it" .....

How many states have gone shall issue or con carry?
43

How many state legislatures?
State Houses Rep 36 - Dem 14 State senate Republican 33-16
Governors Rep 31 Dem 18 Ind 1

The numbers do not support the argument that the con con could run away and ratify a whole new document or any amendment stripping your second amendment rights.. It does though show that the legislatures that are pro-2nd amendment are dominate to within 5 of actually ratifying something if it came down the pipe such as a an amendment proposal protecting the individual right. and of those blue states some are swingers that have strong 2nd amendment roots. Its a divisive issue that many dont want to be on the wrong side of an risk loosing more seats.


My opinion is the courts have bailed on us. reading Scalia's and Thomas's dissent makes clear to the lower courts courts what the ruling intent was with McDonald and Heller. Yet i expect the lower courts to continue to flaunt things much like they did with other civil rights battles with scattered rulings a draconian laws left standing as SCOTUS stayed idle.

If our offensive attack was able to solicit even the effort(s) to push such an amendment... even if it was only proposed and voted on in congress to fail. it would raise further awareness in an already awakening public. if it went Con-con the congressional attempt would lead public awareness and send a message to the SCOTUS that congress is trying to fix things that the SCOTUS should have been addressing.

Any and all efforts are going to raise awareness and push forward the fight. right now it feels we are predominately on defense. I used to not support such because i feared it could run away because thats what id always been told but after reading, listening and researching it over the last 5-6 years and watching the courts flaunt thier ability to deny rights through flawed rulings we need to pursue outside the box attempts to push more momentum in our favor even if if fizzles out of the gate

kcbrown said:

To see the splits, you'd have to read the cert petitions. Even Kachalsky involved splits.

I'll have to go through all of them in order to see if there are any that don't involve splits.

But even if there are some that don't, doesn't Heller qualify as one that didn't? If so, then it is logically inconsistent to insist that 2nd Amendment cases must involve splits when that one didn't.




Actually, yeah, you appear to be right. I stand corrected.

Even so, with a 58% cert grant rate for cases that make it past the first conference, the probability that we'd end up with no cert grants out of 3 is a mere 7.4%. If (as I believe is likely) cert is denied to Caetano, that probability drops to 3.1%.

The "SCOTUS is just doing its normal thing" hypothesis is, really, now just barely alive.




Well, that is almost always the case. Things are, usually, not necessarily how I see them. It's almost always possible that I'm in error.





So riddle me this: if all of the lower courts decide a given issue the same way, does that mean that the Supreme Court will always follow the lead of the lower courts? Or will the Supreme Court correct the lower courts if it believes them to be incorrect?

If the former, then how can you say anything other than that the "Supreme" Court is subservient to the lower courts? If the latter, then what purpose can possibly be served by insisting that all of the lower courts decide the issue when at least one decides it incorrectly?

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The splits you mention certainly are there with regard to the reasoning in each case, but as far as an apples to apples law (may issue for example), they all wind up with the same result.

In many cases SCOTUS does follow the lead of the lower courts and seldom jumps in when a new unexplored area of the law appears. There are numerous splits out there right now (outside of the 2A) which SCOTUS has repeatedly passed on for one reason or another.
SCOTUS, from what I have read and can gather (IANAL) is not really a body that seeks to automatically right every wrong, it's more about keeping the lower court's opinions consistent with one another. That's why cases involving splits get most of the cert grants.

If we ever get to a con-con should we also consider reworking the qualifying criteria for the judiciary including SCOTUS?

Brooklyn said:

Start hardline..make them prove they are worthy.

Make it clear that liberty is non negotiable..

You will never regret pressing your advantage.. but you must never bluff.. never .

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I agree with that as long as that doesn't reduce the chances of the Convention working.

But I don't see how it wouldn't reduce the chances unless all of the other states actually want to see that (the non-free states being kicked out of the union) happen.

There are most certainly circumstances under which this approach will be viable. But those circumstances are not necessarily the only ones under which a Convention is feasible.

Not everyone in the (relatively) free states will be comfortable with splitting the union. So we shouldn't be contemplating anything that would weaken our position with those states.


I do agree with you about starting off at the outset with the notion that liberty is non-negotiable. But like I said, there are things that can be done through a Convention to restore liberty in such a way that the non-free states won't be able to do a thing about it. Liberty is not what will be negotiated here. And the idea of shoving liberty down the throats of the non-free states, rather than simply cutting them loose, has to put a smile on your face.

It is not the Convention itself which will shove liberty down the throats of those states. It is the resulting mechanisms that are put into place that will do that.

pilotguy said:

If we ever get to a con-con should we also consider reworking the qualifying criteria for the judiciary including SCOTUS?

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Nope, not if it will complicate things.

You need a feedback mechanism that is capable of rendering the judiciary's desires irrelevant with respect to protecting liberty, a backstop that will come into play when the judiciary falls over. But I have no problem with part of that feedback mechanism including giving members of the judiciary the boot when they fail to uphold liberty themselves.

The more complicated you make this, the more difficult it will be to get agreement on it, the more difficult it will be to implement, and the more likely it will fail.

Think of this as an engineering problem, not a political one. The political stuff (which is, here, an objective recognition of human nature) has to be accounted for in the engineering requirements for the design. It is not an input into the engineering process.