En banc Decision in Peruta -- a loss

press1280 · Jun 12, 2016

wolfwood said:
I filed for supplemental briefing in my other carry appeal already Young. Young is on a 12b6 appeal so the standard of review is better than Baker.
I have to talk it over with my co-counsel again for Baker. I am sure we will.

Didn't the district court in Young also hold no 2A outside the home? Whatever happens I want the 9th to either protect open carry or hold the 2A doesn't apply outside your door PERIOD.
But I suspect they'll try to weasel out with "SCOTUS hasn't ruled on it, so neither will we".

wolfwood · Jun 12, 2016

press1280 said:
Didn't the district court in Young also hold no 2A outside the home? Whatever happens I want the 9th to either protect open carry or hold the 2A doesn't apply outside your door PERIOD.
But I suspect they'll try to weasel out with "SCOTUS hasn't ruled on it, so neither will we".

Yes it did. Although that does not matter in Young. Baker is up a preliminary injunction which is reviewed on abuse of discretion. Young is up on a 12b6 appeal which is de novo review. Even if I dont get anything in Baker I still could do well in Young since the review is a lot better for me in Young

Peaceful John · Jun 12, 2016

Maestro Pistolero said:
Hopefully number 9 AND number 8. Not wishing an early demise to anyone, but some are pretty long in the tooth. We need a clear majority.

The Scalia seat is, as we all know, vacant. Kennedy will be 88 at the end of the next President's second term; Ginsberg, 91, and Breyer 86.

I'm guessing the Justices are awaiting the results of the November election. If it's Hillary, they're good to go. They know the next two terms will be a Progressive's wet dream. Alternatively, a Trump presidency means the aging liberals will spend the next eight years of their lives with zero impact. Might as well resign and go fishing. That would allow Trump to nominate young replacements for Scalia, Kennedy, Ginsberg, and Breyer.

At least that's how it looks from here.

Southwest Chuck · Jun 12, 2016

What ever they are, these 9CA judges aren't stupid. Wouldn't it see logical (yea I know, I know) that they (Thomas in particular) already have a strategy mapped out to deal with open carry in the likes of, Nichols, Baker and Young and to ignore Norman? Are they placing all their marbles on no cert request, cert denial, an 8 member SCOTUS, or a HRC Presidency? What do you think their end-game is .... bear doesn't exist outside the home, period?

randian · Jun 12, 2016

Southwest Chuck said:
What ever they are, these 9CA judges aren't stupid. What do you think their end-game is .... bear doesn't exist outside the home, period?

Not stupid, evil. Yes, that's their endgame, and they won't wait for what happens at SCOTUS. They'll take Nichols and gut him.

redeemed.man · Jun 12, 2016

777GSOTB said:
District of Columbia v. Heller, 554 U.S. 570, (2008)

" For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. "

"Likewise, in State v. Chandler, 5La. Ann. 489, 490 (1850), the Louisiana Supreme Court held that citizens had a right to carry arms openly: “This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations.”

"In Nunn v. State, 1Ga. 243, 251 (1846), the Georgia Supreme Court construed the Second Amendment as protecting the “natural right of self-defence” and therefore struck down a ban on carrying pistols openly. Its opinion perfectly captured the way in which the operative clause of the Second Amendment furthers the purpose announced in the prefatory clause, in continuity with the English right:"

"In Nunn v.State, the Georgia Supreme Court struck down a prohibition on carrying pistols openly (even though it upheld a prohibition on carrying concealed weapons). See 1 Ga., at 251. In Andrews v. State, the Tennessee Supreme Court likewise held that a statute that forbade openly carrying a pistol “publicly or privately, without regard to time or place, or circumstances,” 50 Tenn., at 187, violated the state constitutional provision (which the court equated with the Second Amendment). That was so even though the statute did not restrict the carrying of long guns. Ibid."

"Robertson v Baldwin 165 U.S. 275 (1897) " .....the right of the people to keep and bear arms (Art. II) is not infringed by laws prohibiting the carrying of concealed weapons;.." (fifth and thirteenth amendment case)

The dream is over guys, there isn't a right to carry a concealed weapon...It should be obvious by now. The best case going at this point is the Norman v Florida open carry case. The Norman case will need to be appealed to the SCOTUS and most likely to be there before the Nichols case...It all comes down to Trumps nomination for number 9.

I would gladly accept nationwide unlicensed open carry. Better than what we have now.

BeoBill · Jun 12, 2016

boundlessdyad said:
I would gladly accept nationwide unlicensed open carry. Better than what we have now.

Same here, although I would prefer CC personally. Next year may prove very interesting, depending on the election results.

lowimpactuser · Jun 12, 2016

randian said:
Not stupid, evil. Yes, that's their endgame, and they won't wait for what happens at SCOTUS. They'll take Nichols and gut him.

They play it beautifully, and argue for "dressed up rational basis" against open carry, and "even if strict scrutiny is appropriate, which we do not find, open carry can still be regulated" and copy paste parts of friedman about "feelings" and how open carry is shown to have a very disruptive effect, fear, etc. without mentioning that concealed carry would allow carry without all the fear and panic. They then mention incidents of gun grabs, shooting of the guy in Wal-mart, and other factors about how this is narrowly tailored just to open carry and the problems it presents to public safety.

No, they've got several options open to them now. They can rule all sorts of ways, or even make one ruling that says "if not W, then X; if not X, then Y; if not Y, then Z" or they can leave out "X" and wait for a remand, then substitute "X" reason, and wait for a remand, continuing to take time, en bancs, etc. to make this stretch forever.

Southwest Chuck · Jun 12, 2016

randian said:
Not stupid, evil. They'll take Nichols and gut him.

You're right on both counts, I'm afraid. :sad20:

Peaceful John · Jun 12, 2016

Southwest Chuck said:
What ever they are, these 9CA judges aren't stupid. Wouldn't it see logical (yea I know, I know) that they (Thomas in particular) already have a strategy mapped out to deal with open carry in the likes of, Nichols, Baker and Young and to ignore Norman? Are they placing all their marbles on no cert request, cert denial, an 8 member SCOTUS, or a HRC Presidency? What do you think their end-game is .... bear doesn't exist outside the home, period?

Can I play? I have half-a-hunch that the 9th will, as you suggest, find a way to deny open carry. Concealed carry? Not the Right. Open carry? Sorry, that just can't be done in populated areas. It's unseemly.

Thus the 9th, by trying to play both sides, offers SCOTUS low hanging fruit. Remember what 777GSOTB wrote (Post 148), where he listed four or five quotes from Heller strongly suggesting that open carry is the Right? Those were not dicta, they were part of the opinion. The 9th CA, in their hubris, might be our vehicle. From this perspective, it's important that Mr. Nichols loses at the appellate level to set up the request for certiorari.

I'm hopeful. It's possible some people alive today might, in their dotage, awaken one morning to find one form of bear, but not both, enshrined in law. It'll be a huge step, but afterwards comes the battle for shall not be infringed, and that'll take a long time to work through.

wjackcooper · Jun 13, 2016

At some strategic point the California legislature will likely reenact may issue, unloaded, open carry. When the may issue, unloaded, open carry legislation is ruled on, the 9th, (if Democrats are still in the majority) probably will assign intermediate scrutiny as the proper standard and public safety as its reason during its validation of the legislation. Nothing, as a practical matter, is apt to change.

In any event, anytime a panel majority composed of Democrat judicial appointees makes any ruling that might appear to lead to a favorable result on a Second Amendment issue, caution . . it is probably a trap.

It seems to me the best hope, at this juncture, for the Second Amendment is Hillary’s indictment.

Regards, Jack

Elliotte · Jun 13, 2016

esqappellate said:
That's correct, but Local Rule 35-3 also provides that "In appropriate cases, the Court may order a rehearing by the full court following a hearing or rehearing en banc." That said, I don't recall that the 9th has *ever* had rehearing en banc by the full court since they started using en banc panels. But, I haven't researched it, so it may have happened. It would be a very big deal, if they did.

Found it on wikipedia, https://en.wikipedia.org/wiki/En_banc

It's been requested only 5 times, denied all 5 times so far. I think it would need to come down to an en banc where the minority of the full court was the majority of the 11-judge en banc panel.

eruby · Jun 13, 2016

Elliotte said:
Found it on wikipedia, https://en.wikipedia.org/wiki/En_banc

It's been requested only 5 times, denied all 5 times so far. I think it would need to come down to an en banc where the minority of the full court was the majority of the 11-judge en banc panel.

Since 1903 there have been over 640 World Series games played.

One of them was a perfect game.

Anything is possible.

Elliotte · Jun 13, 2016

eruby said:
Since 1903 there have been over 640 World Series games played.

One of them was a perfect game.

Anything is possible.

I, for one, am not counting anything out. I realize the chances are very slim, but as my wife complains, I am an eternal optimist. I prefer "hope for the best, prepare for the worst". And like press1280 says below, having the pro-2A judges on the 9th write a bunch of dissents can't hurt the case going forward.

press1280 said:
Agreed, nothing to lose right now. It would be something to see another huge batch of dissents and another 100 pages or so slamming the opinion. It would certainly raise the profile of the case to another level. If it eats up another few months writing the dissents, I'm sure they can ask for additional time with SCOTUS for the cert petition, and by then we'll have a 9th justice or will at least know who the president is. If it's Hillary, it may be prudent to not proceed any further.

DanGuy48 · Jun 13, 2016

IANAL, not even close, so could someone explain to me what the value is of dissenting opinions? I have taken note of them in many cases but it didn't occur to me until the above post, that they might carry any weight. I just sort of viewed it as speaking out against a perceived injustice but it sounds as if it means something more than that. What is the actual importance if the case is already decided the other way?

Maestro Pistolero · Jun 13, 2016

IANAL either, but when and if a decision is revisited, or if there is a split where another circuit or court decides the same issue differently, the information contained in the dissenting opinion can be useful to resolving the conflict.

There may be other more significant reasons of which I am unaware.

Inigoes · Jun 13, 2016

boundlessdyad said:
I would gladly accept nationwide unlicensed open carry. Better than what we have now.

How do you plan on getting to a destination?

Public transportation? Firearms will need to be secured in checked baggage.
Car? Some states claim firearms are considered concealed when in a car.

Horse? good to go

Kharn · Jun 13, 2016

DanGuy48 said:
IANAL, not even close, so could someone explain to me what the value is of dissenting opinions? I have taken note of them in many cases but it didn't occur to me until the above post, that they might carry any weight. I just sort of viewed it as speaking out against a perceived injustice but it sounds as if it means something more than that. What is the actual importance if the case is already decided the other way?

If a higher court overturns, the dissent is usually the starting point for their argument. Plus the dissents let the losing side explain why the higher court needs to grant review and fix the mess.

esqappellate · Jun 13, 2016

DanGuy48 said:
IANAL, not even close, so could someone explain to me what the value is of dissenting opinions? I have taken note of them in many cases but it didn't occur to me until the above post, that they might carry any weight. I just sort of viewed it as speaking out against a perceived injustice but it sounds as if it means something more than that. What is the actual importance if the case is already decided the other way?

Dissents influence other courts, including the Supreme Court. Take a look at the panel decision in Kolbe; it cites the dissents in Drake and Friedman. the SCT often looks to and adopts dissents. Dissents provide an outline for a cert. petition and give any such petition added weight. Dissents have sometimes become a majority when and if the court reconsiders, in the future, the same issue. Famously, compare Mr. Justice HARLAN's dissent in Plessy v. Fergerson with Brown v. Board of Education. Dissents hold the majority's feet to the fire, exposing flaws in reasoning and legal errors. All kinds of good reasons.

redeemed.man · Jun 13, 2016

Inigoes said:
How do you plan on getting to a destination?

Public transportation? Firearms will need to be secured in checked baggage.
Car? Some states claim firearms are considered concealed when in a car.

Horse? good to go

At worst transport under FOPA and arm up when out of the vehicle. Not ideal but better than nothing.

En banc Decision in Peruta -- a loss

The #1 community for Gun Owners of the Northeast

Member Benefits:

Ultimate Member

Ultimate Member

Active Member

A Calguns Interloper.. ;)

Active Member

Ultimate Member

Crank in the Third Row

Member

A Calguns Interloper.. ;)

Active Member

Active Member

Ultimate Member

Confederate Jew

Ultimate Member

Ultimate Member

Active Member

Head'n for the hills

Ultimate Member

President, MSI

Ultimate Member

Users who are viewing this thread

Log in

Forum statistics