Too many judges in rehab at the same time?
En banc Decision in Peruta -- a loss
- Thread starter esqappellate
- Start date
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Too many judges in rehab at the same time?
JPG
Ultimate Member
Where are all the gun using Lawyers that want to become judges? With all the lawyers in the country and cases going against the 2A in parts of the country, you would think that some would want to become "activist judges" that actually follow the Constitution for a change.
Could Clement keep all their names/voices straight, or would he stick with "Your Honor" for the entire argument?
Peruta should definitely ask for the whole court to hear his case. It would give O'Scannlain, Kozinski, etc, a chance to dissent from the denial of rehearing and call out every single fallacy in the opinion. Plus it could take a few months to write the dissents and get us closer to having a 9th Justice.
ETA: Apparently the 9th tried 15-member en bancs so it would be more than half the active judges, and switched back to 11-member panels due to logistical issues. Source
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.
I'm not sure, probably Esq could speak to that.
My thought is that the law schools are taught by older people who grew up in a time of a "collective rights" 2A and may not be letting go so easily. The younger ones though seem to get it more than the older ones. From what I can see the Bush 43 nominees are much more likely to rule with us than Reagan nominees.
The law is full of a bunch of humanities majors. People that did not have to study math, formal logic or empiricism have inherently suspect minds that are prone to being turned to liberal ideology. Remember an open mind is like a fortress with its gates unbarred and unguarded
One thing I just noticed (although at this point doesn't mean much to the opinion) is that Judge Silverman who dissented was a Clinton appointee. So I guess that makes maybe the 3rd or 4th Dem nominee to side with us nationwide?
Also it appears Harry Pregerson, who was on this panel has now moved to Senior Status.
Also it appears Harry Pregerson, who was on this panel has now moved to Senior Status.
This is no different than politicians that routinely hide under the blanket of Government sanctioned, taxpayer funded, armed protection, while simultaneously striving to strip us plebeians of the right, er privilege. As long as their status as an illustrious arbiter of the law or officer of the court provides them with the good and oh so substantial reason to carry in the eyes of the ruling class, they could give two shits about the constitutionally enumerated rights of us commoners.
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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.
" 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'm still alive in Baker because we asked for open or concealed carry. I've got Young fully briefed and we asked for open or concealed as well as long arm carry. So this could go real well for me but realistically the Ninth will find a way to rule against us.
esqappellate
President, MSI
- Feb 12, 2012
- 7,408
Since the state sought rehearing en banc, the most likely result in your case is a remand to the district court for further proceedings consistent with the en banc Peruta decision. Except that makes no sense at all, since your basic argument ithat the Open Carry ban is unconstitutional was not addressed by the en banc court and the panel decision has been vacated, when means they can't use that anymore. One thing for you to consider now is a filing with the court suggesting what they should do in your case. I expect that Peruta plaintiffs will seek cert. If they ask for a stay of mandate pending a cert petition (not automatic), that would be likely be granted and your case would remain in limbo until the mandate issues in Peruta. You may wish to touch base with Clement and see what their plans are.
Alternatively, you can ask to file supplemental briefs in Baker addressing the one issue expressly left open by the en banc court, viz., the ban on open carry and seek reargument on that issue. That's probably what I would do in your shoes. A 28j is limited to 350 words and that's not enough to make the argument. And if I recall, the district court in your case expressly ruled that the 2A doesn't apply at all outside the home, so your appeal from that issue with respect to open carry is still pending. The irony is that the anti gunners hate open carry even more than they hate concealed carry. If they had to allow it, they would enact concealed carry legislation, which probably would be modeled on NY's or NJ's (or MD's). So, the end game looks hard, but that's a future fight (and who knows how the law will look then). This is not for the faint at heart.
esqappellate
President, MSI
- Feb 12, 2012
- 7,408
Well, I guess that makes me the exception, as I studied math, formal logic, a lot of science before ever going to law school. But my bent has always been libertarian and they always have been an odd lot.
BTW, there are plenty of conservative lawyers out there who are committed to the rule of law and a bunch are judges. There are likewise plenty of liberal lawyers who see judgeships as a means to their dream of a socialist nirvana. Judgeships is NOT an elective position in the federal courts (although lots of folks *want* to be judges, few ever have the real opportunity. So, it boils down to elections (to the Senate and to the Presidency), which do matter intensively when it comes to judges. Conservative Presidents have lots of really excellent people to pick from when it comes to judges. Trump's list, for example, is quite good (although I would have added a few more names).
A tangled web indeed. Yea I would say do whatever it takes to keep this from going back down to the District Court. The District Court essentially looked at both arguments (open & concealed) and made their ruling. They're upheld by the en banc opinion for the CC half of the equation. The other hopefully goes back to the same 3 judge panel. But who decides THAT now?
Peaceful John
Active Member
- May 31, 2011
- 239
Where's the "Like" button?
Edit: Couldn't find the Robertson v. Baldwin quote regarding "in not infringed by laws prohibiting the carrying of concealed weapons" in Heller. Could you help?
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jcutonilli
Ultimate Member
- Mar 28, 2013
- 2,474
You made the same mistake that the 9CA made, reading the text without actually understanding the rational behind the decision. It is evident in State v. Chandler you listed. "without any tendency to secret advantages and unmanly assassinations.” The reasoning behind the the ban on concealed carry has to do with the historical perception that it lacked honor and only led to criminal intents. In today's society we do not have that same concept of honor and it does not lead solely to criminal intent.
Peruta was very badly argued because it did not raise these issues and demonstrate why concealed carry can actually enhance public safety. Given the lack of argument the courts went with a textual reading. Please do not make the same mistake due to you ignorance of the issue.
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.
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.[/QUOTE]
I would suggest that the NICHOLS case is in a better position. Although NORMAN is closer to SCOTUS, NICHOLS is in the 9th CCA system and the lower courts are in a tight box if they try to rule that bans on OC are allowed while 9th CCA has already ruled that bans on CC are allowed. How does the lower court leave any meaning for the 2A once it has effectively outlawed OC and CC?
I would suggest that the NICHOLS case is in a better position. Although NORMAN is closer to SCOTUS, NICHOLS is in the 9th CCA system and the lower courts are in a tight box if they try to rule that bans on OC are allowed while 9th CCA has already ruled that bans on CC are allowed. How does the lower court leave any meaning for the 2A once it has effectively outlawed OC and CC?
Kharn
Ultimate Member
The problem is Nichols. He isn't an experienced SC litigator by any stretch of the imagination, and the SC seems to have preferred advocates who they listen to a bit more than others. Clement is definitely on the preferred list.
Maestro Pistolero
Active Member
- Mar 20, 2012
- 876
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.
If Nichols gets to the Supreme Court he will be given two options either get a lawyer or be assigned one by the Court. You are not allowed to go before the Court pro se.
