Wrenn PI Granted (DC Shall Issue)

[press1280]

I think we should stop calling it a "virtual ban" and just call it a ban. I think its only fair to give them the opportunity to explain how it isn't.

I can't think of a single reason why they would even try.

I like to think of it as the government acting as gatekeeper to our rights. They can ALWAYS find a reason to deny (or even approve). Footnote from an Indiana case sums it up perfectly: Any ordinary citizen applying for license could be "factually" denied a permit because no one had actually threatened him. Thus, he would have no "need" to defend himself. Similarly, if threatened, the permit could be denied on the basis that the official police agencies were capable of handling the matter so that he had no "need" to defend himself.

 

[kcbrown]

here you go

Exactly as expected.

The opposition understands game theory very well. Very well indeed. Their actions have been completely consistent with it (for instance, Madigan's refusal to petition for cert was the correct game theoretical move).

Next up: the court will grant en banc review, because we simply haven't the votes on the court to prevent it and the opposition doesn't give a crap about rules (they're more "guidelines" than actual rules). Absent delaying action on the part of the judges on our side, you will then see the court move with lightning speed to reverse the decision, because that is the correct game theoretical move (since the opposition knows we will petition for cert, and thus the opposition's best move is to dispense with the case while the Supreme Court is refusing all 2A firearm cases). The only thing that could prevent that is a correct game theoretical move on the part of the judges on our side, which is to stretch out the amount of time they take to write a dissent to monumental lengths. If I were them, I'd stretch it out to the point where Trump gets another nominee onto the Supreme Court.


Absent another Supreme Court nomination from Trump, the Supreme Court will deny cert no matter the outcome here.



No matter what, this is entirely a results-oriented political fight. Any belief to the contrary is akin to a belief in Santa Claus.

 

[press1280]

I really hate the en banc deal because it's SCOTUS' job to resolve circuit splits, not the circuits themselves. If the circuits simply follow each other, than what's SCOTUS' job?

 

[frogman68]

I really hate the en banc deal because it's SCOTUS' job to resolve circuit splits, not the circuits themselves. If the circuits simply follow each other, than what's SCOTUS' job?

This is why I think a suit should be filed in Texas saying carrying outside the home is not covered by the Constitution. It will get laughed at by the court then the 5th will come out and say it's covered. we need to use the liberals strategy of court picking to get a split.

 

[press1280]

Not sure how I missed it but saw this while looking through the DC Circuit rules: The Court sitting en banc consists of all active judges, plus any senior judges of the Court who were
members of the original panel and wish to participate. When the Court sits en banc with an even number
of judges, and the result is an evenly divided vote, the Court will enter a judgment affirming the order or
judgment under review, and it may publish the en banc Court's divided views.
What's weird is it seems senior judges on the original panel may ask for an en banc vote, but do not actually vote whether to hear en banc: The Clerk’s Office transmits a vote sheet and the petition for rehearing en banc electronically to all
members of the original panel, including a senior judge of this Court, and to all other active judges of this
Court. A vote may be requested by an active judge of the Court, or by any member of the panel. If no judge
asks for a vote within a specified time, and none requests more time to consider the matter, the Clerk will
enter an order denying the petition.
If a judge calls for a vote on the petition for rehearing en banc, the Clerk’s Office transmits electronically
to the full Court a new vote sheet, along with any response to the petition ordered by the Court. The
question now is whether there should be a rehearing en banc. On this question only active judges of the
Court may vote, and a majority of all active judges who are not recused must approve rehearing en banc in
order for it to be granted.
This is important because Judge Williams (Pro 2A majority) is a senior judge and cannot participate in the vote to decide whether to go en banc (he can call for a vote but no reason to undermine his own opinion). However, he CAN participate in the en banc proceedings (if he chooses to do so). It'll be a numbers game after that. Assuming Trump can fill the Janice Rodgers Brown seat (she retires next week) in time for the en banc proceedings, that means it'll be 12 judges sitting. To overturn the original ruling, the antis will need 7 votes (6-6 ties will revert back to the original ruling). That'll mean all Dem nominees will need to vote to rehear; any 1 defection seals defeat for DC, assuming all others do not vote to rehear. Also note Henderson is a GOP nominee who is an anti but Patricia Millet (Obama nominee) has been strong on 2A cases, so it's an even trade IMO.

 

[DC-W]

This is why I think a suit should be filed in Texas saying carrying outside the home is not covered by the Constitution. It will get laughed at by the court then the 5th will come out and say it's covered. we need to use the liberals strategy of court picking to get a split.

Not necessarily. They prefer control of the populace as well.

See Wilson v State Department.

1A and 2A case. Argued by Alan Gura.

 

[press1280]

This is why I think a suit should be filed in Texas saying carrying outside the home is not covered by the Constitution. It will get laughed at by the court then the 5th will come out and say it's covered. we need to use the liberals strategy of court picking to get a split.

Need to challenge a specific law on the books.

 

[HaveBlue]

Any thoughts on the case where Arizona was enjoined from enforcing immigration law (It may have been an overlapping law passed by the state) because that was determined by the courts to be the exclusive domain of the Federal Government?

On one hand Kansas can't allow 30 round magazines. However, NJ can prohibit their possession them altogether. Where Federal law is silent.

VA can prohibit felons from possessing firearms which is 100% overlap of US Federal law. Overlapping agreement similar to Arizona?

IANAL but I'm anxious to understand what I can.

Thanks!

 

[kcbrown]

Judge Williams (Pro 2A majority) is a senior judge and cannot participate in the vote to decide whether to go en banc (he can call for a vote but no reason to undermine his own opinion). However, he CAN participate in the en banc proceedings (if he chooses to do so). It'll be a numbers game after that. Assuming Trump can fill the Janice Rodgers Brown seat (she retires next week) in time for the en banc proceedings, that means it'll be 12 judges sitting. To overturn the original ruling, the antis will need 7 votes (6-6 ties will revert back to the original ruling). That'll mean all Dem nominees will need to vote to rehear; any 1 defection seals defeat for DC, assuming all others do not vote to rehear. Also note Henderson is a GOP nominee who is an anti but Patricia Millet (Obama nominee) has been strong on 2A cases, so it's an even trade IMO.

Support for the right to arms amongst appellate-level Republican nominees has been around the 50% mark. Conversely, amongst appellate-level Democrat nominees, it's been around 10%, if even that. So even with a straight-down-party-lines vote with Williams in the mix (Henderson and Millett cancel each other), the opposition has this in the bag, and since it's much more likely that one of the Republican nominees will side against us than that one of the Democrat nominees will side in our favor, the odds of a win for us are grim indeed.

The situation isn't quite as bad as it would be in the 9th Circuit, but it's bad enough that I think we can be confident that the decision here will be reversed during en banc proceedings. The opposition has no good reason to refuse en banc here (the worst case for them if they do is that the original decision stands, but that's the same result as not taking it en banc in the first place, so there's absolutely no harm to them whatsoever by taking it en banc), and their "results oriented" nature essentially dictates that they take it under these circumstances. As such, the correct game theoretical move for the opposition is to grant en banc. Thus far, the opposition has followed the correct game theoretical moves quite reliably, so there's little reason to expect a deviation from that here.

The 9th Circuit has shown to everyone that the circuit courts can run roughshod over the usual rules without consequence from the Supreme Court, so there's no disincentive on that front either.

The only disincentive to the opposition is the prospect of the Supreme Court's composition changing before the en banc decision can be appealed. But that is actually of no real consequence either, since there are other carry cases that the Supreme Court can later review even if the opposition manages to decide this one before the Court's composition changes. It's guaranteed that the Supreme Court will deny cert here with its current composition, most especially if the decision is reversed and replaced with one that is a carbon copy of the prior carry case decisions. Peruta proved that an en banc reversal of a pro-carry decision is irrelevant with respect to cert.

Bottom line: the opposition has every reason to grant en banc and no reason at all to oppose it. And the numbers are such that a reversal is very nearly guaranteed.

This one will be a loss for us.

 

[press1280]

From what I've seen most GOP judges do not vote for en banc either way. Even Henderson didn't vote for en banc when she dissented in Parker. Don't know whether she was staying loyal to the "en banc is disfavored" or she was so confident SCOTUS would overturn that she let it go.

 

[kcbrown]

From what I've seen most GOP judges do not vote for en banc either way. Even Henderson didn't vote for en banc when she dissented in Parker. Don't know whether she was staying loyal to the "en banc is disfavored" or she was so confident SCOTUS would overturn that she let it go.

Doesn't matter. The vote for en banc itself is still 6:5 in favor of the opposition even if Millett sides with us and Henderson votes against en banc.



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[frogman68]

Need to challenge a specific law on the books.

The one that says LTC can now open carry too. Get concealed and open carry in the courts so SCOTUS would have to rule

 

[kcbrown]

The one that says LTC can now open carry too. Get concealed and open carry in the courts so SCOTUS would have to rule

That was already attempted. See Woollard v Gallagher. The Supreme Court denied cert.

Seriously, you guys should realize by now that the Supreme Court doesn't have to do anything, and neither do the lower courts. They are a ruling oligarchy now, and we operate at their pleasure. All that matters now is the political balance on the courts. Even actual adherence to the meaning and intent of the Constitution is now a matter of preference.

 

[frogman68]

That was already attempted. See Woollard v Gallagher. The Supreme Court denied cert.

Seriously, you guys should realize by now that the Supreme Court doesn't have to do anything, and neither do the lower courts. They are a ruling oligarchy now, and we operate at their pleasure. All that matters now is the political balance on the courts. Even actual adherence to the meaning and intent of the Constitution is now a matter of preference.

I was saying to contest the Texas law so it gets to a friendlier appeals court like the left does

 

[kcbrown]

I was saying to contest the Texas law so it gets to a friendlier appeals court like the left does

All you'd wind up with is a circuit split at best. Supreme Court would still deny cert with its current composition. What, then, would you achieve?

It's a reasonable play once we have a Supreme Court that actually cares, but that's not this one. Best to hold that case in reserve for the point in time where it really can go all the way to the top. Sadly, that isn't now.

 

[press1280]

I was saying to contest the Texas law so it gets to a friendlier appeals court like the left does

That then becomes more of a licensing case than what we're dealing with here which is a ban/restrictive may issue. IMO that's a much more difficult case since the TX permit is not illusory like the DC permit.

The only circuit not ruling on may-issue specifically is CA1. Non-resident and OC ban cases could be filed in several states, but the NRA and SAF just wont touch them for whatever reason. Several of these states have decent Supreme Courts which likely we could get a win in.

 

[press1280]

All you'd wind up with is a circuit split at best. Supreme Court would still deny cert with its current composition. What, then, would you achieve?

It's a reasonable play once we have a Supreme Court that actually cares, but that's not this one. Best to hold that case in reserve for the point in time where it really can go all the way to the top. Sadly, that isn't now.

What you'd achieve is a split that could get deeper just as a wobbler or anti justice is replaced with a pro 2A justice; IOW the issue is extremely ripe and they jump on it immediately.
What you may not be factoring in is that some justice (or justices) may want more courts to weigh in on the issue before they do, not necessarily that they agree with the previous bad opinions or flat out don't care.

 

[press1280]

Doesn't matter. The vote for en banc itself is still 6:5 in favor of the opposition even if Millett sides with us and Henderson votes against en banc.



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Actually 7-4 if everyone votes party lines (apart from Henderson/Millett). 6 needed total for a grant.

Another interesting tidbit from the DC Circuit rules is how they are somewhat contradictory.
(a) When Hearing or Rehearing En Banc May Be Ordered. A majority of the circuit judges who are
in regular active service and who are not disqualified may order that an appeal or other proceeding be
heard or reheard by the court of appeals en banc. An en banc hearing or rehearing is not favored and
ordinarily will not be ordered unless:
(1) en banc consideration is necessary to secure or maintain uniformity of the court's decisions; or
(2) the proceeding involves a question of exceptional importance.

So, by that section it means the CA2-4 (and somewhat Peruta) shouldn't necessarily factor in to an en banc grant.

Yet, the next section says: (b) Petition for Hearing or Rehearing En Banc. A party may petition for a hearing or rehearing en
banc.
(1) The petition must begin with a statement that either:
(A) the panel decision conflicts with a decision of the United States Supreme Court or of the court
to which the petition is addressed (with citation to the conflicting case or cases) and consideration by the
full court is therefore necessary to secure and maintain uniformity of the court's decisions; or
(B) the proceeding involves one or more questions of exceptional importance, each of which must
be concisely stated; for example, a petition may assert that a proceeding presents a question of
exceptional importance if it involves an issue on which the panel decision conflicts with the authoritative
decisions of other United States Courts of Appeals that have addressed the issue.

So I guess the "exceptional importance" automatically qualifies in the case of a circuit split?

 

[Ack Ack]

Wouldn't the best indicator of how each judge will vote be how they voted for en banc in Heller? At least for those still serving.

 

[DC-W]

Wouldn't the best indicator of how each judge will vote be how they voted for en banc in Heller? At least for those still serving.

And who replaced those who are no longer serving, I wonder...