Silvester v. Kamala Harris CA 10 Day Wait

[danb]

Regardless of the outcome, its pretty clear that the case for a 10 day waiting period for someone already possessing a firearm is weak. The question to me is how to attack the unconstitutional law. If Harris looses, the HQL regulatory regime becomes much harder to defend. Even though precedents set in this case won't apply to MD unless its appealed to the Supreme Court, the arguments will be useful to us.

Regardless of the outcome, it builds on the body of law regarding the 2nd amendment which for us is a good thing because it makes future cases easier.

Why would you apply a cooling off period to someone who already owns a gun? If its the "heat of the moment" I doubt I will run out to the gun store.

 

[RightNYer]

<IANAL> It's my understanding that a denial can also mean that the undisputed facts do not support the law cited as the basis for the MSJ. For example, here California argues that under the facts, there is no burden on the 2A right from the 10 day wait requirement, and then takes the position that the regulation is acceptable under rational basis. The judge disagrees that the facts support a legal determination of no burden on the 2A.

If I'm reading right, it looks like the denial even says that there are facts in dispute, but using only the undisputed facts is enough to deny CA's MSJ.

I think the case is being set up for more IS treatment, but the denial of the MSJ at least gives me a little hope that they won't try to pull the "Rational Basis in Intermediate Scrutiny clothing" trick.

Right, but if that were the case, the judge could grant summary judgment to the plaintiffs. He didn't do that.

 

[Tyeraxus]

Only if the plaintiff's MSJ stood on uncontested facts. They're separate motions, and each must stand on their own merits, not just on whether the other side screwed up their brief - one side losing a motion doesn't automatically mean the other side wins.

Example:
Pl: 1+1=2, and 2+2=4, therefore a tomato is a suspension bridge.
Def: 1+1=2 and 2+2=4, therefore a tomato is a P-51 Mustang.

Judge: Denied, denied. Your facts aren't in dispute, but you're both citing poor law that doesn't follow from them.

 

[Benanov]

Yeah, a motion for summary judgement means basically "there's no need to have a trial here, one side is just so wrong that there's no point even arguing about it"

All that's needed to dismiss one of those is that the judge things the both of the parties have some sort of a case and it needs to be hashed out in court.

 

[Norton]

Threads merged

 

[Al Norris]

The docket noted in the earlier post (back on page 1) is now incorrect. The PACER case number was changed. The correct docket may be found here: http://www.archive.org/download/gov.uscourts.caed.233362/gov.uscourts.caed.233362.docket.html

This is only the first challenge. The case has survived this challenge because of the decision in Choven. In that respect, this case may make it past the district court and it will be the State appealing to the 9th.

However, that is supposition at this point.

 

[Brooklyn]

I think this is the biggest win here, not actual the denial of the MTD. Once Strict Scrutiny is applied, judges higher up will have to work damned hard to get it kicked down a notch.

What it is is a call by a lower court to the scouts to stop d..k around.

There is a reason ca wants summary judgement.

This is a body blow if it holds.... and it looks good for is getting Scotus to set a standard of review
.

Thus is from the loopy 9th... right?

 

[Brooklyn]

Geez. Guys, this is not a "case ruling". This is the judge denying summary dismissal against the Calguns suit. That's not a big deal to get in a case like this, and Ammoland is blowing it WAY out of proportion.

Mind you, this is a good thing in general, but let's not go crazy now.

Agree but they could have just denied and said it was important...

They actually put the words strict scrutiny in the decision on a 2a case..

They are telling CA To bring the A game. CA was expecting or at least hoping for the standard " if you say so " level of scrutiny...

In a CA case that is significant...

 

[erwos]

Agree but they could have just denied and said it was important...

They actually put the words strict scrutiny in the decision on a 2a case..

They are telling CA. To bring the A game. CA was expecting or at leat hoping for the standard " if you say so " level of scrutiny...

That's not what was said. You and others are misreading the court order.

The discussion of strict vs intermediate scrutiny appears in the judge's summary of the plaintiff's arguments. That is to say, the judge understands correctly that the plaintiff wants to go for strict scrutiny.

The judge, however, does not choose a standard at this time. On page 8 of the court order, it says:

It is unnecessary for the Court to determine at this time which scrutiny to apply because, even under the lesser “intermediate scrutiny,” summary judgment is not appropriate.

That is to say, intermediate scrutiny could still be applied by the judge. I guess you could argue that not considering rational basis is a nice thing to see, but given how often we've seen rational basis paraded around as intermediate scrutiny, I'm not holding my breath.

 

[annihilation-time]

More waiting.

 

[Brooklyn]

That's not what was said. You and others are misreading the court order.

The discussion of strict vs intermediate scrutiny appears in the judge's summary of the plaintiff's arguments. That is to say, the judge understands correctly that the plaintiff wants to go for strict scrutiny.

The judge, however, does not choose a standard at this time. On page 8 of the court order, it says:


That is to say, intermediate scrutiny could still be applied by the judge. I guess you could argue that not considering rational basis is a nice thing to see, but given how often we've seen rational basis paraded around as intermediate scrutiny, I'm not holding my breath.

I am going from the press release. Maybe cal guns is playing it cute.

In an order issued today by Senior Federal District Judge Anthony Ishii, defendant California Attorney General Kamala Harris’ Motion to Dismiss our Second and Fourteenth Amendment lawsuit challenging the state’s 10-day waiting period (ban) as unconstitutional was denied outright. Said the Court:
The WPL as applied against those who have previously purchased firearms or who possess
certain state licenses is the equivalent of a prior restraint, and thus should be analyzed under strict
scrutiny. However, under either strict scrutiny or intermediate scrutiny, the [10-day waiting period] fails. In terms
of strict scrutiny, Harris has not shown that the law is effective either in reducing gun violence or
in keeping firearms out of the hands of unqualified purchasers where the government has already
issued that purchaser a License To Carry or a Certificate Of Eligibility

I will look at the full decision later..

In any case its not bad news..

I would not expect the court to chose a standard. SS is being considered to me that's good and it tells CA that they need to show why SS should not apply....

Interesting briefs ahead imho.

 

[erwos]

The court said that, but it was part of the rehash of the plaintiff's arguments. Calguns is being cute or misleading by implying that the judge buys into this thinking.

 

[Brooklyn]

The court said that, but it was part of the rehash of the plaintiff's arguments. Calguns is being cute or misleading by implying that the judge buys into this thinking.

Got it.. thanks for the fact check...

It still not bad news....just not good news...

 

[Hopalong]

The court said that, but it was part of the rehash of the plaintiff's arguments. Calguns is being cute or misleading by implying that the judge buys into this thinking.

Thanks for that catch. Another possibility is that they misinterpreted the order honestly. They're pretty smart over there, but nobody's perfect.

Agree with Brooklyn: it's not good news, but it's still encouraging that the judge was even considering strict scrutiny as an option.

 

[montoya32]

Decision is in. Wait period is a burden!
http://gunssavelives.net/news/court-ruling-waiting-periods-are-burdens-on-second-amendment-rights/

 

[teratos]

Decision is in. Wait period is a burden!
http://gunssavelives.net/news/court-ruling-waiting-periods-are-burdens-on-second-amendment-rights/

 

[jrwhitt]

Not the decision. Just that that the case will move to trial and all MSJ's dismissed


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[Tyeraxus]

Decision is in. Wait period is a burden!
http://gunssavelives.net/news/court-ruling-waiting-periods-are-burdens-on-second-amendment-rights/

Not a decision, this is delayed reporting of the denial of the state's motion that we've been talking about. The judge merely agreed with the plaintiff that, since the State called a waiting period a minimal burden, they admitted that it is a burden and as such, rational basis (which the state wanted to apply) is not allowed per SCOTUS.

 

[OrbitalEllipses]

Bump for news: http://www.thetruthaboutguns.com/20.../california-10-day-waiting-period-ivalidated/

 

[Inigoes]

Bump for news: http://www.thetruthaboutguns.com/20.../california-10-day-waiting-period-ivalidated/

The ruling itself:

http://ia700803.us.archive.org/13/items/gov.uscourts.caed.233362/gov.uscourts.caed.233362.106.0.pdf

I think this bodes well for any rejection of a Peruta en banc review.