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California 2nd Amend. Political Discussion & Activism Discuss gun rights activism and 2A related political topics here. All advice given is NOT legal counsel.

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  #321  
Old 04-04-2013, 3:20 PM
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Originally Posted by safewaysecurity View Post
If court decides this case in our favor then may issue is gone and carry rights are recognized and a clearly and stronger 2A will emerge.
A "win" won't be useful if it's a narrow shall-issue/carry ruling. Plenty of ways to neuter a shall-issue regime (most commonly by having lots of prohibited places, high fees, training requirements, limited times and places to apply, and/or too-frequent renewals), so I expect we will spend many more years in litigation.
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  #322  
Old 04-04-2013, 3:34 PM
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Originally Posted by randian View Post
A "win" won't be useful if it's a narrow shall-issue/carry ruling. Plenty of ways to neuter a shall-issue regime (most commonly by having lots of prohibited places, high fees, training requirements, limited times and places to apply, and/or too-frequent renewals), so I expect we will spend many more years in litigation.
Only initially, but this will be easy to clean up.

If we get a positive ruling, "carry" will be the same as "abortion" except that the red-blue states will be reversed. All tricks that have been tried in the past ended up not working and ended up only affirming the SCOTUS ruling.

Here is a glimpse of what can happen: due to games with sensitive areas, SCOTUS "determines that sensitive areas are only those that have secured perimeter and metal detectors." If the antis keep pushing against SCOTUS, this is what *will* happen.
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  #323  
Old 04-04-2013, 4:05 PM
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Only initially, but this will be easy to clean up.

If we get a positive ruling, "carry" will be the same as "abortion" except that the red-blue states will be reversed. All tricks that have been tried in the past ended up not working and ended up only affirming the SCOTUS ruling.

Here is a glimpse of what can happen: due to games with sensitive areas, SCOTUS "determines that sensitive areas are only those that have secured perimeter and metal detectors." If the antis keep pushing against SCOTUS, this is what *will* happen.
Only if SCOTUS maintains the same progressive/conservative balance it currently has...
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  #324  
Old 04-04-2013, 4:21 PM
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Only initially, but this will be easy to clean up.

All tricks that have been tried in the past ended up not working and ended up only affirming the SCOTUS ruling.
In every civil rights victory in the past, states have tried every trick you can imagine. Poll taxes, grandfather clauses, all kinds of tricks. Courts don't tolerate stuff like that. Lower courts can sort those problems out without needing to go all the way back up to SCOTUS every time.
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  #325  
Old 04-04-2013, 4:33 PM
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Lower courts can sort those problems out without needing to go all the way back up to SCOTUS every time.
Only if they want to. Courts that are inclined to read Heller and McDonald as restrictively as possible (which seems to be most of the Federal judiciary at this point) will be inclined to read SCOTUS next gun case that way too. "Delay and obstruct" will be their watchword, then as now.
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  #326  
Old 04-04-2013, 4:35 PM
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When will we get an update?
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  #327  
Old 04-04-2013, 5:02 PM
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When will we get an update?
When SCOTUS feels like announcing something. IIRC, that's usually FridayMonday mornings after the Friday conferences - see http://www.scotusblog.com

In this case "DISTRIBUTED for Conference of April 12, 2013" so after that.

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  #328  
Old 04-04-2013, 5:13 PM
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15 April is when we can expect to hear the results of next Friday's conference.
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  #329  
Old 04-04-2013, 5:46 PM
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Only if SCOTUS maintains the same progressive/conservative balance it currently has...
Conservatives have been in the majority for quite some time now, yet Roe v. Wade still stands. It might matter in some future case, but not when it comes to legislators going against the current precedent.

Similarly, we are talking about legislators directly challenging Heller and McDonald which are now established law (even Sotomayor said so), not about expanding 2A or any new scope. Remember, we've already won by far the most difficult part. Kachalsky can (should) seal the deal on "bear."

Almost all current attacks on us are technicalities: cosmetic features, capacities, taxes, registration, licenses, etc. Those are really administrative in comparison to "keep" (Heller, McDonald) and "bear" (hopefully Kachalsky).
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  #330  
Old 04-04-2013, 8:41 PM
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Those are really administrative in comparison to "keep" (Heller, McDonald) and "bear" (hopefully Kachalsky).
IVC and others, you really are a calm eye in the storm. Its nice to hear every now and again. Thans
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  #331  
Old 04-04-2013, 8:46 PM
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15 April is when we can expect to hear the results of next Friday's conference.
Forgive my ignorance on what you are saying. I am am not a law student so I am just trying to clarify here...

We will have a ruling on the right to carry by april 15th?
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  #332  
Old 04-04-2013, 9:00 PM
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Forgive my ignorance on what you are saying. I am am not a law student so I am just trying to clarify here...

We will have a ruling on the right to carry by april 15th?
No. On the 15th we find out if SCOTUS agrees to hear the case. If they take the case expect a ruling in June of 2014.
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  #333  
Old 04-04-2013, 9:02 PM
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Ahh, okay.
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  #334  
Old 04-04-2013, 9:44 PM
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No. On the 15th we find out if SCOTUS agrees to hear the case. If they take the case expect a ruling in June of 2014.
For those who haven't had a chance to follow this from the beginning...

The 7th Circuit has ruled IL no-issue unconstitutional in Moore v. Madigan. After they refused an en-banc hearing, the only option left to Madigan is to petition SCOTUS since the appellate process is otherwise complete. This ruling already establishes the "bear" part and is in itself a huge victory for us. It also all but guarantees that SCOTUS will have to take Kachalsky since this ruling is inconsistent with the 2nd Circuit ruling in Kachalsky. In other words, if SCOTUS grants the certiorari we are at the very last step in defining "bear," which has already been clearly implied in Heller. If SCOTUS doesn't grant the cert, we keep the "bear" ruling in the 7th Circuit.

Now, there are other technical details and possibilities, but a simple analysis at this time points to "heads we win, tails they lose." The real question is the scope of the ruling and permissible restrictions, which we won't know until 2014 at the earliest. Let Feinstein waste her time with silly frontal attack that will go nowhere, while we work the flanks with heavy artillery that will set the precedent for a long time to come.
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  #335  
Old 04-04-2013, 9:47 PM
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How do
WE
Keep 'bear' ruling from the 7th
We aren't in the 7th
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  #336  
Old 04-04-2013, 9:51 PM
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The sad thing is IL is in the 7th, but the IL supreme court has declared the 7th's decision isn't binding, citing people v. stansberry.

So much for incorporation.
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  #337  
Old 04-04-2013, 10:02 PM
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How do
WE
Keep 'bear' ruling from the 7th
We aren't in the 7th
It's a high level ruling supporting our position and it stays on the record forever. Besides, those who are in the jurisdiction of the 7th Circuit are also part of "us" - we're in this together.
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  #338  
Old 04-04-2013, 10:04 PM
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The sad thing is IL is in the 7th, but the IL supreme court has declared the 7th's decision isn't binding, citing people v. stansberry.

So much for incorporation.
Another very compelling reason for SCOTUS to take the Kachalsky case. IL Supremes asked for it, and SCOTUS should give it to them, preferably the hard way.
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  #339  
Old 04-04-2013, 10:49 PM
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We should know the following business day, on Monday, April 15th.
Calendar marked!
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  #340  
Old 04-04-2013, 10:58 PM
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  #341  
Old 04-04-2013, 11:06 PM
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In every civil rights victory in the past, states have tried every trick you can imagine. Poll taxes, grandfather clauses, all kinds of tricks. Courts don't tolerate stuff like that. Lower courts can sort those problems out without needing to go all the way back up to SCOTUS every time.
They can if it's a right they like. But this is a right they don't like, as we've seen with our own eyes.

So while you're right in that the lower courts can sort through those problems without having to go all the way to SCOTUS every time, you're wrong about the implication that they will. They won't. This stuff will have to go to SCOTUS every time because the lower courts abhor the right and will do everything to ensure that it gets minimum traction.
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  #342  
Old 04-04-2013, 11:17 PM
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Conservatives have been in the majority for quite some time now, yet Roe v. Wade still stands. It might matter in some future case, but not when it comes to legislators going against the current precedent.
That's because conservatives tend to be very observant of stare decisis, to the point that they tend to be reluctant to overturn obviously bad decisions. A perfect example is Slaughterhouse. In that case, the Court claimed that the 14th Amendment's PorI clause did not apply to, e.g., the enumerated rights in the Bill of Rights, a direct contravention of the very words of those who wrote the amendment. If any decision deserves to be overturned, it's that one. And yet, the conservative majority on this Court in McDonald, when given the opportunity to reinstate the PorI clause to its rightful place in Constitutional law, refused to do so. Thomas' concurrence is the only artifact of McDonald that gives support to the real meaning of the 14th Amendment's PorI clause.


This will not be the case with a liberal set of justices on the Court. Such a set of justices will be happy to ignore stare decisis if doing so allows them to achieve the utopia they envision themselves being empowered to help create.


Quote:
Similarly, we are talking about legislators directly challenging Heller and McDonald which are now established law (even Sotomayor said so), not about expanding 2A or any new scope. Remember, we've already won by far the most difficult part. Kachalsky can (should) seal the deal on "bear."
Sotomayor said so in her confirmation hearings before McDonald was heard. Despite her claim that Heller was established law, she contradicted herself by siding against McDonald. That should make it plain to you that "justices" such as herself will ignore stare decisis if doing so allows them to achieve the outcome they desire.


Quote:
Almost all current attacks on us are technicalities: cosmetic features, capacities, taxes, registration, licenses, etc. Those are really administrative in comparison to "keep" (Heller, McDonald) and "bear" (hopefully Kachalsky).
This is quite incorrect. Those "technicalities" can and will neuter the right if allowed to stand in the proper combination. That makes them more than mere "technicalities".
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  #343  
Old 04-05-2013, 2:15 AM
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Originally Posted by IVC View Post
For those who haven't had a chance to follow this from the beginning...

The 7th Circuit has ruled IL no-issue unconstitutional in Moore v. Madigan. After they refused an en-banc hearing, the only option left to Madigan is to petition SCOTUS since the appellate process is otherwise complete. This ruling already establishes the "bear" part and is in itself a huge victory for us. It also all but guarantees that SCOTUS will have to take Kachalsky since this ruling is inconsistent with the 2nd Circuit ruling in Kachalsky. In other words, if SCOTUS grants the certiorari we are at the very last step in defining "bear," which has already been clearly implied in Heller. If SCOTUS doesn't grant the cert, we keep the "bear" ruling in the 7th Circuit.

Now, there are other technical details and possibilities, but a simple analysis at this time points to "heads we win, tails they lose." The real question is the scope of the ruling and permissible restrictions, which we won't know until 2014 at the earliest. Let Feinstein waste her time with silly frontal attack that will go nowhere, while we work the flanks with heavy artillery that will set the precedent for a long time to come.
Moore was indeed a huge victory for our civil rights! However I have really been speculating about what Madigan (IL-AG) is going to do with Moore. Is she going to let it stand or file for cert?

Now there is more here than meets the eye....Madigan wants to be the next Governor of IL and I am positive part of her decision regarding Moore will be based upon how it will impact her own opportunity to become Governor. She will surely sell out her personal anti-RKBA beliefs if it benefits HER!

At this point, I am inclined to believe Madigan is obsessing over Kachalsky and if cert is denied she will NOT file for cert in Moore because that may possibly be the case SCOTUS really wants in lieu of Kachalsky. So why even provide SCOTUS the opportunity to hear Moore and accept the limited loss (Madigan perspective) in the 7th Circuit. Now God help us if this does in fact happen, arguably our two best "bear" cases would then NOT be heard by SCOTUS.
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  #344  
Old 04-05-2013, 6:45 AM
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Originally Posted by Baja Daze View Post
Moore was indeed a huge victory for our civil rights! However I have really been speculating about what Madigan (IL-AG) is going to do with Moore. Is she going to let it stand or file for cert?

Now there is more here than meets the eye....Madigan wants to be the next Governor of IL and I am positive part of her decision regarding Moore will be based upon how it will impact her own opportunity to become Governor. She will surely sell out her personal anti-RKBA beliefs if it benefits HER!

At this point, I am inclined to believe Madigan is obsessing over Kachalsky and if cert is denied she will NOT file for cert in Moore because that may possibly be the case SCOTUS really wants in lieu of Kachalsky. So why even provide SCOTUS the opportunity to hear Moore and accept the limited loss (Madigan perspective) in the 7th Circuit. Now God help us if this does in fact happen, arguably our two best "bear" cases would then NOT be heard by SCOTUS.

A great analysis. Which is why it frightens me so.


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  #345  
Old 04-05-2013, 8:15 AM
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I have really been speculating about what Madigan (IL-AG) is going to do with Moore.
She's not going to do a damn thing. The IL Supreme Court ruled that they don't have to listen to the 7th.
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  #346  
Old 04-05-2013, 8:40 AM
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She's not going to do a damn thing. The IL Supreme Court ruled that they don't have to listen to the 7th.
Humm..... I'm not seeing Posner lying down on that one. If any CA Judge has the balls to hold them (or Illinois) accountable, it would be him. Time will tell.. Get out the popcorn, This might turn into a real show if they continue to openly defy the 7th. This is one of the reasons why Kalchalsky is so important, IMO
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  #347  
Old 04-05-2013, 8:58 AM
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Originally Posted by kcbrown View Post
Sotomayor said so in her confirmation hearings before McDonald was heard. Despite her claim that Heller was established law, she contradicted herself by siding against McDonald. That should make it plain to you that "justices" such as herself will ignore stare decisis if doing so allows them to achieve the outcome they desire.
It was a tongue-in-cheek comment as far as Sotomayor goes.

Still, our judicial system operates pretty well once the legal questions are settled and everybody gets on the same page. The lower courts' reluctance to rule in our favor is much more a reflection of the incomplete 2A framework than their desire to rewrite the law from the bottom up. After all, these are low level bureaucrats and innovation is to them a foreign concept.
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Old 04-05-2013, 9:09 AM
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This is quite incorrect. Those "technicalities" can and will neuter the right if allowed to stand in the proper combination. That makes them more than mere "technicalities".
We already have a confirmed individual right, in common use/lawful purposes language, incorporation against the states and are now (hopefully) about to get meaningful carry.

We also have all the precedents when legislators try to bypass civil rights they don't like (from segregation era) and when they try to bypass SCOTUS rulings they don't like and their constituents don't support (Roe v. Wade). So, all this polling in CA about what people want and legislators pretending that they are respecting 2A is very old news as far as obstructionism goes.

The "technicalities" we are being attacked on are already addressed in Heller. They don't require much of new analysis or any paradigm shift to be addressed. Unlike the decades of research and hard work that went into defining 2A as an individual right, the cosmetics and taxes are really small potatoes in the big picture.
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  #349  
Old 04-05-2013, 9:22 AM
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She's not going to do a damn thing. The IL Supreme Court ruled that they don't have to listen to the 7th.
Mostly correct. It was an IL appellate court. The Illinois Supreme Court has not yet addressed the issue following Moore v. Madigan. Here's a link to the appellate court's decision, which did indeed say that Illinois is not bound by the 7th Circuit's interpretation of the Second Amendment. I'm looking forward to what the Federal District Court's order is going to look like once the 7th's stay on the issuance of an injunction expires. I would not want to be the person ignoring an injunction issued by a federal judge.
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Old 04-05-2013, 9:55 AM
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kuku: I stand corrected. Thanks for the clarification.
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  #351  
Old 04-05-2013, 10:02 AM
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I would not want to be the person ignoring an injunction issued by a federal judge.
Unless that judge sends the marshals out, which I see as a very low probability event, why should the person ignoring them care?
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  #352  
Old 04-05-2013, 10:28 AM
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Originally Posted by IVC View Post
We already have a confirmed individual right, in common use/lawful purposes language, incorporation against the states and are now (hopefully) about to get meaningful carry.

We also have all the precedents when legislators try to bypass civil rights they don't like (from segregation era) and when they try to bypass SCOTUS rulings they don't like and their constituents don't support (Roe v. Wade). So, all this polling in CA about what people want and legislators pretending that they are respecting 2A is very old news as far as obstructionism goes.

The "technicalities" we are being attacked on are already addressed in Heller. They don't require much of new analysis or any paradigm shift to be addressed. Unlike the decades of research and hard work that went into defining 2A as an individual right, the cosmetics and taxes are really small potatoes in the big picture.
We have a confirmed enumerated individual right that so far may require the permission of local and/or the state government to exercise in your own home which is pretty much the definition of the difference between a privilege and a right. For example in Washington DC (the home of Heller), Chicago (the home of McDonald) and in New York you still have to jump through hoops and delays that you would never have to jump through to speak in your own home or have an abortion at the clinic of your choice. It's also an enumerated right subject to special taxation (NFA tax stamps plus the 11% excise tax on guns and ammo) which is the equivalent to placing an excise tax on political books and magazines or on abortions and birth control. And we still have waiting/cooling off periods that would never be acceptable for speech or morning after pills or abortion yet the lower courts can be counted on to uphold those laws even if we get strict scrutiny. We have expanding firearms registration for what types numbers of arms you own that we would never accept for how many and what kind of abortions a woman has had. The bottom line is that even if we get a win and strict scrutiny it's going to take at least 2 more trips up to the US Supreme Count before the lower courts start to take the 2nd Amendment (the red headed step child of of the Bill of Rights) seriously.
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Old 04-05-2013, 10:47 AM
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The bottom line is that even if we get a win and strict scrutiny it's going to take at least 2 more trips up to the US Supreme Count before the lower courts start to take the 2nd Amendment (the red headed step child of of the Bill of Rights) seriously.
Agreed, but I still stand by assertion that the lower courts act the way they act primarily due to the lack of established framework and not so much out of their free will.

The trips to SCOTUS are required precisely in order to provide the required guidance. Remember, there was a recent court case where the appellate court stated something along the lines: "If the Supreme Court intended the right to arms to extend outside the home they should say so." Is it a cynical defiance, or a genuine call for guidance?

Kachalsky should clarify that particular issue. Keep our fingers crossed.
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Old 04-05-2013, 11:05 AM
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We already have a confirmed individual right, in common use/lawful purposes language, incorporation against the states and are now (hopefully) about to get meaningful carry.

We also have all the precedents when legislators try to bypass civil rights they don't like (from segregation era) and when they try to bypass SCOTUS rulings they don't like and their constituents don't support (Roe v. Wade). So, all this polling in CA about what people want and legislators pretending that they are respecting 2A is very old news as far as obstructionism goes.
Remember the 2nd Circuit's refusal to import 1st Amendment jurisprudence into the sphere of the 2nd Amendment?

You presume here that the lower courts are going to faithfully apply prior civil rights jurisprudence to 2nd Amendment cases.

They won't. Instead, they will refuse to do so, just as the 2nd Circuit explicitly did. They will hand us loss after loss, insisting that if the Supreme Court means for such jurisprudence to apply, it will, in the words of the MD supreme court, "have to say so more plainly".


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The "technicalities" we are being attacked on are already addressed in Heller. They don't require much of new analysis or any paradigm shift to be addressed. Unlike the decades of research and hard work that went into defining 2A as an individual right, the cosmetics and taxes are really small potatoes in the big picture.
Cosmetics, taxes, and other smaller issues can and will combine to neuter the right. That makes them more than "small potatoes".

Honestly, you really aren't looking at this with the proper amount of skepticism.
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Old 04-05-2013, 11:17 AM
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Agreed, but I still stand by assertion that the lower courts act the way they act primarily due to the lack of established framework and not so much out of their free will.
Of course they act the way they do out of their own free will. Or did you not read Kozinski's dissent in Silveira v Lockyer?

To refresh your memory:

Quote:
Originally Posted by Kozinski's dissent in Silveira v Lockyer
When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases —or even the white spaces between lines of constitutional text. See, e.g., Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir. 1996) (en banc), rev’d sub nom. Washington v. Glucksberg, 521 U.S. 702 (1997). But, as the panel amply demonstrates, when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.

That is a direct admission, by an appellate court judge no less, that the courts rule in whatever fashion they wish to. And the pattern of the court rulings to date should make it plain that this is precisely what they are doing. The 7th Circuit is the only appellate court to break from that pattern (Posner penned the 7th Circuit ruling against McDonald, and yet also penned their decision in Moore).


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The trips to SCOTUS are required precisely in order to provide the required guidance.
Normally that would be true. The problem here is that the Supreme Court has already provided much of the required guidance and the lower courts are refusing to listen. As Gura notes quite succinctly, the lower courts are limiting Heller to its facts. This is not something lower courts do accidentally.


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Remember, there was a recent court case where the appellate court stated something along the lines: "If the Supreme Court intended the right to arms to extend outside the home they should say so." Is it a cynical defiance, or a genuine call for guidance?
Since Heller discusses the right in the context of public locations (government buildings, schools, etc.), it is quite plain to anyone with a functioning neuron between his ears that Heller all but outright says that the right applies to more than just the home. So it quite clearly is cynical defiance.
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Old 04-05-2013, 12:02 PM
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Unless that judge sends the marshals out, which I see as a very low probability event, why should the person ignoring them care?
Worst case scenario? http://en.wikipedia.org/wiki/Little_Rock_Nine

I agree, unlikely (please note that this is an understatement). More likely, would be referring any attorney who prosecuted such cases to the state bar or revoking the attorney's permission to practice law before federal courts in the 7th Circuit.

In any event, these types of conflicts and lack of clarity are precisely why the existence of conflicting judicial interpretations is a useful predictor of whether the Supreme Court will hear an issue.

Edited to add: Oh yeah, civil liability via a 1983 action.

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Old 04-05-2013, 12:24 PM
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More likely, would be referring any attorney who prosecuted such cases to the state bar or revoking the attorney's permission to practice law before federal courts in the 7th Circuit.
I can't see the state bar in any of the suspect states invoking any meaningful discipline. They'd more likely pin a medal on the offending attorney instead. Revoking permission to practice is useless when the AG can have a lackey in his office appear in his stead.
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Oh yeah, civil liability via a 1983 action.
Does that create personal liability? Public officials are notoriously lacking in scruples when they know the taxpayers will be paying the price for it.
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Old 04-05-2013, 12:31 PM
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Agreed, but I still stand by assertion that the lower courts act the way they act primarily due to the lack of established framework and not so much out of their free will.

The trips to SCOTUS are required precisely in order to provide the required guidance. Remember, there was a recent court case where the appellate court stated something along the lines: "If the Supreme Court intended the right to arms to extend outside the home they should say so." Is it a cynical defiance, or a genuine call for guidance?

Kachalsky should clarify that particular issue. Keep our fingers crossed.
You have every right to stand by anything you wish. It just doesn't change the reality of the judicial revolt that's been taking place. We don't pay these supposedly learned judges to refuse to follow pretty clear precedent that an enumerated right is subject to protection under strict scrutiny. We also don't pay them to call rational basis intermediate scrutiny and grasp at any straw or just refuse to rule so rights may continue to be violated. We have a Washington DC case that has been sitting waiting for a decision for 3 years and rulings in the 2nd Circus that have little more than wagging their middle finger at SCOTUS. No this will take two to four to perhaps as many as a dozen trips up the ladder before the most stubborn judges give in and accept the 2nd Amendment is a right to be enjoyed without by commoners.
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Old 04-05-2013, 12:34 PM
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Honestly, you really aren't looking at this with the proper amount of skepticism.
I don't have to since you provide more than your fair share of skepticism...
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Old 04-05-2013, 12:36 PM
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I can't see the state bar in any of the suspect states invoking any meaningful discipline. They'd more likely pin a medal on the offending attorney instead. Revoking permission to practice is useless when the AG can have a lackey in his office appear in his stead.

Does that create personal liability? Public officials are notoriously lacking in scruples when they know the taxpayers will be paying the price for it.
Yes, section 1983 actions expose public officials to personal liability unless they can claim qualified immunity. Qualified immunity exists when a right has not been clearly established. The 7th Circuit has clearly stated that Illinois' statute violates the Second Amendment. Federal courts in the 7th Circuit are bound by the decision in Moore. I do not know if this issue has been previously considered in the context of other civil rights -- I assume it has.

AG could run out of attorneys licensed to practice in Federal court if IL continues to enforce the law.

I don't know what's going to happen, but it sure is interesting to watch.
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