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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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  #681  
Old 02-24-2013, 6:46 PM
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Originally Posted by kcbrown View Post
No, but you can at least point me to the specific rules you believe are relevant, and I can go read them for myself.

Please do so.
Yeah, look right next to the rule that says the Supreme Court gets to declare laws unconstitutional.
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  #682  
Old 02-24-2013, 6:52 PM
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Originally Posted by wolfwood View Post
First off, If for some reason anyone has issue with how this case was done I don't get why Gray is the one that is being blamed. He is the client.
I quite agree, as long as he didn't ignore the advice of the various lawyers that were consulted on the case. I have no reason to believe that he did.


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Second, if you are going after a law then you are basically saying the law is unconstitutional or otherwise invalid so you are in theory striking the law off the books every time that you attack a law facially. In reality a judge is giving the legislature instructions to rewrite it to be alright.
The question is which law to go after.

Gray had two possible things he could have gone after:
  1. The law and/or its implementation that prevents him from getting a license to carry in an environment where many other people, including those in some other states, can carry on a shall-issue basis.
  2. The law requiring a permit to carry.


Going after the first, which is what Gray did, allows for many possible arguments, most (if not all) of which were made. Furthermore, it leaves untouched the power of the government to regulate carry through the issuance of permits.

Going after the second requires arguing that the government does not have the legitimate power to regulate carry through a permit system. Who here thinks that argument will prevail?


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The relief is just a fiction for saying this is how you think it needs to be rewritten to be alright. If you ask it to be rewritten in a way that would not make it alright then the court does not need to listen to you.
But the relief Gray sought would have made it alright. It is not on that basis that the court ruled against him. It ruled against him because the relief he sought would have given him, as a side effect, the ability to carry concealed throughout the state, and the court conflated that side effect with what was actually being sought.
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  #683  
Old 02-24-2013, 6:52 PM
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Originally Posted by kcbrown View Post
Yes. And then he can come back with followup litigation addressing the other side of the issue.

It's slower, but he's already given the court the option to grant him the other option, and the court refused to do so. That fact now backs them into a corner.
Politics do play into this, as you well know. So what if its slower. If his rights are truly infringed his lawyer tells him what needs to be done.


None of this is rocket science. Its an ego issue and i can look at past posts and see how CGF was supportive but not "all in" with this case. Its an ego issue just like gay marriage. (which i am not opposed to)

If you don't think this is the case and the plaintiff wasn't using their personal sexual preference to sway this case, your not looking into it very hard.
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  #684  
Old 02-24-2013, 6:53 PM
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Originally Posted by Tincon View Post
Yeah, look right next to the rule that says the Supreme Court gets to declare laws unconstitutional.
What, you're saying the rule in question is to be found in Marbury v Madison?
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  #685  
Old 02-24-2013, 6:56 PM
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What, you're saying the rule in question is to be found in Marbury v Madison?
Getting warmer. Is Marbury v Madison a rule?
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  #686  
Old 02-24-2013, 7:00 PM
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Originally Posted by bussda View Post
In Denver, to carry openly or concealed, a permit is required. Peterson sought a permit. How can a court require addressing manner of carry before addressing the issuance of a permit to carry?
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Originally Posted by taperxz View Post
They really can't. However if you don't address both sides of the issue the court can say. "you didn't address both sides of the issue Mr. Petersen" You lose!
Faulty reasoning. Issuance of a permit to carry and method of carry are different issues. How are they different sides of an issue?


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Originally Posted by moleculo View Post
He specifically sought a permit to conceal carry and thus, the court made its ruling.
If not issued a permit to carry, open or concealed, how is manner of carry important if you cannot legally carry?
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  #687  
Old 02-24-2013, 7:00 PM
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Fair enough. "Tossed". "Dismissed" for ripeness or standing...Semantics.
No, it's not. The reason for dismissal matters, a lot.

By dismissing for lack of ripeness, the court essentially said that a challenge to a law cannot be brought until the law is already in a position to bring harm. Which means that, essentially, one has to risk being harmed in order to challenge a law.

Is it really your belief that the court was correct on that?
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  #688  
Old 02-24-2013, 7:04 PM
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Originally Posted by kcbrown View Post
No, it's not. The reason for dismissal matters, a lot.

By dismissing for lack of ripeness, the court essentially said that a challenge to a law cannot be brought until the law is already in a position to bring harm. Which means that, essentially, one has to risk being harmed in order to challenge a law.

Is it really your belief that the court was correct on that?
Actually a court almost wants you to already be harmed in order to challenge the law.
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  #689  
Old 02-24-2013, 7:05 PM
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Originally Posted by bussda View Post
Faulty reasoning. Issuance of a permit to carry and method of carry are different issues. How are they different sides of an issue?



Are you serious or REALLY asking me?
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  #690  
Old 02-24-2013, 7:10 PM
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I am giving up after this. Again I have not read anything other than the decesion

You have a fundamental right to drink bud light and bud light only
The State of Colombia bans the consumption of beer
You ask in your lawsuit to be able to drink beer and plan on it
The Court can rule yes you can drink bud light
If you ask in your lawsuit to be able to drink Coors and plan on drinking Coors if you win the Court can not modify that to let you drink Bud light.
If it does it has issued a advisory opinion and in Federal Courts and most state courts that is not allowed
here the court says that he asked to drink Coors and since you don't have a right to drink Coors you are not saying the law is violating your rights.

Last edited by wolfwood; 02-24-2013 at 7:16 PM..
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  #691  
Old 02-24-2013, 7:10 PM
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Originally Posted by moleculo View Post
Fair enough. "Tossed". "Dismissed" for ripeness or standing...Semantics. The bottom line is that it was done improperly and donations/monies were wasted, which is a recurring theme. Fortunately, the NRA's strategy has (so far) been proven to be the correct one on that issue.
The NRA approach on this has so far been successful - and I believe that it will win in the end. Kudos to the NRA and its lawyers for what they did here.

But may I point out a few things? The NRA case is, I believe, still in litigation and that means there is still a chance of a loss in the case. I think the loss is unlikely, but it is actually a good thing to have the OOIDA case in position to be re-activated if the NRA case should eventually lose.

It may turn out that the money on the OOIDA case was wasted, but until there is a final victory in the NRA case such a judgment is somewhat premature.

This goes to my earlier comments in which I suggested that I am somewhat uncomfortable with having a single litigation strategy developed or coordinated by just one or two individuals.

Having separate but complementary (rather than conflicting) efforts has the advantage of multiple different opportunities for a win.

One would hope for enough cooperation to prevent sabotaging each others' cases, however.

It worked in this case. CGF took one approach and the NRA took another. If the NRA had (or does) fail in its legal approach there is another likely avenue for success. And if the CGF effort hadn't been mooted they would have appealed the disposition of their case and may have gotten the PI before the imposition of the law.

Edit: I should point out that I am actually minimizing the political advantage of having OOIDA ready for re-activation should the NRA case eventually lose. You have to remember JB's veto message in the AB962 replacement law to realize what I mean. As long as AB962 is being litigated JB is not going to sign an AB962-like law. So if the NRA case loses and OOIDA advances the Ammo Ban law is still dead on the political side.
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  #692  
Old 02-24-2013, 7:11 PM
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Faulty reasoning. Issuance of a permit to carry and method of carry are different issues. How are they different sides of an issue?
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Originally Posted by taperxz View Post
Are you serious or REALLY asking me?
The question was asked seeking an answer.
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  #693  
Old 02-24-2013, 7:14 PM
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Originally Posted by kcbrown View Post
No, it's not. The reason for dismissal matters, a lot.

By dismissing for lack of ripeness, the court essentially said that a challenge to a law cannot be brought until the law is already in a position to bring harm. Which means that, essentially, one has to risk being harmed in order to challenge a law.

Is it really your belief that the court was correct on that?
No, it is the same thing. It was dismissed, period. The fact that it was dismissed for one reason vs. another tells us a lot about the validity of the complaint or even the abilities of the plaintiffs' lawyer. I understand exactly what happened and don't need your wanna-be lawyer explanation to enlighten me.

And yes, I believe the court was correct. It doesn't really matter whether you or I believe if the court was correct - the point I was making is that there are some repetitive issues that keep occurring...
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  #694  
Old 02-24-2013, 7:15 PM
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Originally Posted by bussda View Post
The question was asked seeking an answer.
Method of carry and issuing of a permit are separate issues afforded to the states.
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  #695  
Old 02-24-2013, 7:16 PM
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Originally Posted by taperxz View Post
Politics do play into this, as you well know. So what if its slower. If his rights are truly infringed his lawyer tells him what needs to be done.
Were this a typical plaintiff we were talking about, I would agree. However, Gray knowingly litigated this case in the context of other cases, and it could easily be, for all I know, that the way it was litigated was in order to support that context.

I know that if I were the plaintiff, I would be doing my litigation in the way that would maximize the overall outcome in the context of the other cases being brought, even if doing so meant taking a loss at the circuit level. I would, of course, have to be willing to take it to SCOTUS if need be. That's because my focus would not be solely on this case, but on maximizing the protection of the right.


All of that assumes, of course, that this case was not litigated in such a way as to maximize the chance of an immediate win. Frankly, given the situation and the facts, I'm not convinced of that the way you are. I'm willing to be swayed in that direction, but that requires information that Tincon appears to be reluctant to divulge.


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None of this is rocket science. Its an ego issue and i can look at past posts and see how CGF was supportive but not "all in" with this case. Its an ego issue just like gay marriage. (which i am not opposed to)

If you don't think this is the case and the plaintiff wasn't using their personal sexual preference to sway this case, your not looking into it very hard.
I'm sorry, but I refuse to go there. Proper judgment of people requires an enormous amount of in-depth information that I've learned, through experience, that one rarely has.
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  #696  
Old 02-24-2013, 7:18 PM
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Originally Posted by moleculo View Post
No, it is the same thing. It was dismissed, period. The fact that it was dismissed for one reason vs. another tells us a lot about the validity of the complaint or even the abilities of the plaintiffs' lawyer. I understand exactly what happened and don't need your wanna-be lawyer explanation to enlighten me.

And yes, I believe the court was correct. It doesn't really matter whether you or I believe if the court was correct - the point I was making is that there are some repetitive issues that keep occurring...
If you believe the court was correct then, well, there's not much more to say on this.
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  #697  
Old 02-24-2013, 7:22 PM
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Originally Posted by kcbrown View Post
Were this a typical plaintiff we were talking about, I would agree. However, Gray knowingly litigated this case in the context of other cases, and it could easily be, for all I know, that the way it was litigated was in order to support that context.

I know that if I were the plaintiff, I would be doing my litigation in the way that would maximize the overall outcome in the context of the other cases being brought, even if doing so meant taking a loss at the circuit level. I would, of course, have to be willing to take it to SCOTUS if need be. That's because my focus would not be solely on this case, but on maximizing the protection of the right.


All of that assumes, of course, that this case was not litigated in such a way as to maximize the chance of an immediate win. Frankly, given the situation and the facts, I'm not convinced of that the way you are. I'm willing to be swayed in that direction, but that requires information that Tincon appears to be reluctant to divulge.




I'm sorry, but I refuse to go there. Proper judgment of people requires an enormous amount of in-depth information that I've learned, through experience, that one rarely has.
KC, you believe what you want! You are a good calgunner and an asset to this community. I disagree with you graciously based on what i know and have been exposed to.
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  #698  
Old 02-24-2013, 7:25 PM
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Originally Posted by moleculo View Post
No, it is the same thing. It was dismissed, period. The fact that it was dismissed for one reason vs. another tells us a lot about the validity of the complaint or even the abilities of the plaintiffs' lawyer. I understand exactly what happened and don't need your wanna-be lawyer explanation to enlighten me.

And yes, I believe the court was correct. It doesn't really matter whether you or I believe if the court was correct - the point I was making is that there are some repetitive issues that keep occurring...
Important to remember that problems with standing issues can be rather difficult. CGF is not the only litigant to run into problems with that - and others will as well.

I can remember one time when CGF folk were being chastised for a standing issue and being told that a different kind of plaintiff would have been far preferable. The thing is, when you thought about it a little it was clear that the preferred litigant would clearly not have had standing in such a case.

Having legal credentials and opposing CGF's approach to standing does not necessarily mean that you are even as good at standing issues as is CGF.

My observation has been that in RKBA civil rights litigation you have to be absolutely meticulous about standing as it is one of the courts' favorite ways of killing your case - and they will be creative in finding ways to do this. Alan Gura learned this the hard way (which is why the case is Heller).

I suspect the lesson on standing is still being learned.
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  #699  
Old 02-24-2013, 7:28 PM
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Guys, read the 10th Circuit's opinion. Including the dissent, it's less than 15,000 words and mostly written in plain English [emphasis added and footnotes removed]:

Quote:
SECTION III.A.1

In District of Columbia v. Heller, 554 U.S. 570 (2008), the Supreme Court held “that the Second Amendment conferred an individual right to keep and bear arms.” Id. at 595. And in McDonald v. City of Chicago, 130 S. Ct. 3020 (2010), the Court concluded that “the Second Amendment right is fully applicable to the States.” Id. at 3026. Nevertheless, the Court has provided precious little guidance with respect to the standard by which restrictions on the possession of firearms should be assessed.

In Heller, the Court determined that the challenged statute, which completely barred possession of handguns in the home and required that any lawful firearm be kept in an inoperable condition, failed “[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights.” 554 U.S. at 628. The Court rejected application of rational-basis scrutiny, but declined to select another standard. Id. at 628-29 & n.27.

However, the Court stressed that its opinion should not be read to “cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms,” which the Court identified as “presumptively lawful regulatory measures.” Id. at 626-27 & n.26.

In United States v. Reese, 627 F.3d 792 (10th Cir. 2010), this court adopted a “two-pronged approach” to Second Amendment claims. First, we “ask whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee.” Id. at 800. If the law does not impose a burden, it is constitutional. If it does, then the court “must evaluate the law under some form of means-end scrutiny.” Id. at 801.

We proceed to analyze Peterson’s Second Amendment claim under this two-step approach. Our task is complicated, however, by the somewhat unusual posture of Peterson’s claim. Peterson argues that strict scrutiny is appropriate because he is “completely disarmed” while in Denver. That alleged complete disarmament results from the confluence of two enactments: the state statute that requires CHL applicants to be legal residents of Colorado, Colo. Rev. Stat. § 18-12-203, and the Denver ordinance that requires a CHL for most forms of open carry, Denver Rev. Mun. Code § 38-117(a), (b), & (f).

Peterson has repeatedly expressed, however, that he is not challenging the Denver ordinance. After Suthers advocated for the constitutionality of the Denver ordinance in his motion for summary judgment, Peterson clarified that he was not arguing that the ordinance is unconstitutional, but that it is Colorado’s “refusal to allow Plaintiff to obtain a CHL that is unconstitutional.” Claiming that Suthers was attempting a “back door attack of Denver’s ban on open carry of firearms,” Peterson stated that “this case is not the proper vehicle for his attack.”

In light of Peterson’s explicit statement that “this case is not the proper vehicle” for an attack on the validity of the Denver ordinance, Peterson has clearly waived any such challenge. See United States v. Zubia-Torres, 550 F.3d 1202, 1206 (10th Cir. 2008) (an issue is waived, rather than forfeited, when a party “deliberately considered the unraised issue and made an intentional decision to forego it”). Because the district court accepted Peterson’s formulation of the case in ruling on the parties’ cross-motions for summary judgment, Peterson cannot be heard to complain of any alleged error he himself invited. See United States v. DeBerry, 430 F.3d 1294, 1302 (10th Cir. 2005) (“[T]he invited-error doctrine precludes a party from arguing that the district court erred in adopting a proposition that the party had urged the district court to adopt.”). We see no reason that a plaintiff could not challenge both the statute and the ordinance in the same suit, but Peterson has made a conscious decision not to challenge the constitutionality of the Denver ordinance.

Accordingly, we must conduct our two-step Second Amendment analysis based on the effects of the state statute rather than the combined effects of the statute and the ordinance. As we held in Reese, “a reviewing court first asks whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee.” 627 F.3d at 800 (quotation and alteration omitted, emphasis added). This case demonstrates the need for such an analytical framework. Peterson seeks a ruling that Colorado may not restrict CHLs to residents of the state. If he succeeds in this challenge, he would be free to obtain a CHL and carry a concealed weapon throughout the state. By contrast, had Peterson challenged the Denver ordinance, he may have obtained a ruling that allows him to carry a firearm openly while maintaining the state’s restrictions on concealed carry. The specific constitutional challenge thus delineates the proper form of relief and clarifies the particular Second Amendment restriction that is before us. Because only the Colorado statute has been challenged, and thus only the statute is at issue in the case at bar, we must look to the effect of that statute in conducting our Second Amendment assessment.

SECTION III.A.2

Colorado requires that “a sheriff shall issue a permit to carry a concealed handgun to an applicant who,” inter alia, “[i]s a legal resident of the state of Colorado.” Colo. Rev. Stat. § 18-12-203(1)(a). This residency requirement bars non-Coloradoans from carrying concealed firearms in most places. But see Colo. Rev. Stat. § 18-12-105(2)(a) & (b) (exempting from the CHL licensure requirement possession in an individual’s “own dwelling or place of business or on property owned or under his or her control” or “in a private automobile or other private means of conveyance”). It does not affect the ability of non-residents to openly carry firearms in the state (however, as discussed above, an unchallenged ordinance, Denver Rev. Mun. Code § 38-117(a), (b), & (f), imposes such restrictions in Denver).

Accordingly, to determine “whether the challenged law imposes a burden on conduct falling within the scope of the Second Amendment’s guarantee,” Reese, 627 F.3d at 800, we first ask whether the Second Amendment provides the right to carry a concealed firearm. We conclude that it does not...

[analysis of text, history and tradition of concealed carry prohibitions omitted]

Given the dicta in Robertson, 165 U.S. at 281-82, and the Supreme Court’s admonition in Heller that “nothing in our opinion should be taken to cast doubt on longstanding prohibitions,” 554 U.S. at 626, we conclude that Peterson’s Second Amendment claim fails at step one of our two-step analysis: the Second Amendment does not confer a right to carry concealed weapons.

Peterson does not convincingly argue otherwise. In his reply brief, Peterson contends that he “does not assert a Second Amendment right to carry a concealed weapon,” but rather challenges the prohibition because it deprives him of “any meaningful opportunity” to bear arms in the City of Denver. (Emphasis omitted.) However, for the reasons set forth in Section III.A.1, supra, we reject that characterization of Peterson’s Second Amendment claim. Peterson has affirmatively waived any challenge to the Denver ordinance’s restriction on the open carrying of firearms. And because we conclude that the concealed carrying of firearms falls outside the scope of the Second Amendment’s guarantee, Peterson’s Second Amendment claim was properly subject to summary judgment.
Peterson's right to travel and Privileges and Immunities claims fail, too, because he only asserts a right to carry a concealed weapon.
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  #700  
Old 02-24-2013, 7:28 PM
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KC, you believe what you want! You are a good calgunner and an asset to this community. I disagree with you graciously based on what i know and have been exposed to.
Thanks. And fair enough. We all form our own opinions based on our own experiences.

It may be that your assessment of things here is correct. In my interactions with the people in question, I've not seen what you've seen. Or, at least, I certainly can't come to the same conclusions you have based on what I've seen.

Am I being hoodwinked? Perhaps. But you know how skeptical I generally tend to be. What I have seen forms a consistent picture that is different from the one you paint, and if there's anything I'm good at, spotting inconsistencies is one of them.
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  #701  
Old 02-24-2013, 7:32 PM
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Originally Posted by OleCuss View Post
Important to remember that problems with standing issues can be rather difficult. CGF is not the only litigant to run into problems with that - and others will as well.

I can remember one time when CGF folk were being chastised for a standing issue and being told that a different kind of plaintiff would have been far preferable. The thing is, when you thought about it a little it was clear that the preferred litigant would clearly not have had standing in such a case.

Having legal credentials and opposing CGF's approach to standing does not necessarily mean that you are even as good at standing issues as is CGF.

My observation has been that in RKBA civil rights litigation you have to be absolutely meticulous about standing as it is one of the courts' favorite ways of killing your case - and they will be creative in finding ways to do this. Alan Gura learned this the hard way (which is why the case is Heller).

I suspect the lesson on standing is still being learned.
I post here as a no body. I sit here conveying my thoughts through a prominent Judge who also reads this thread. NO! they won't register or post here and i am not articulate enough to convey their thoughts through my fingers. I am smart enough to understand their words though.

To put it best, left turns and rights turns do matter when finding the right address. Some of the "right people" don't know how to read a google map but certainly know how to do online payment processing
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  #702  
Old 02-24-2013, 7:36 PM
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They really can't. However if you don't address both sides of the issue the court can say. "you didn't address both sides of the issue Mr. Petersen" You lose!
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Originally Posted by bussda View Post
Faulty reasoning. Issuance of a permit to carry and method of carry are different issues. How are they different sides of an issue?
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Originally Posted by taperxz View Post
Method of carry and issuing of a permit are separate issues afforded to the states.
Thank you for clarifying the issue. Two different issues are the different sides of the same issue.

BTW, that makes no sense. So I will have suspend belief in logic and rational thought to understand the court's decision.

Thank you!
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  #703  
Old 02-24-2013, 7:37 PM
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Originally Posted by navyinrwanda View Post
Guys, read the 10th Circuit's opinion. Including the dissent, it's less than 15,000 words and mostly written in plain English [emphasis added and footnotes removed]:

Quote:

We see no reason that a plaintiff could not challenge both the statute and the ordinance in the same suit, but Peterson has made a conscious decision not to challenge the constitutionality of the Denver ordinance.
Yes, this is the crux of the matter, and the very thing that nobody here seems to be willing to deal with head on: how does one challenge the Constitutionality of the Denver ordinance without arguing that the government does not have the legitimate power to regulate carry through a permit system? Remember, for state residents, the permits in question are shall issue, so the argument to overturn the ordinance must somehow argue that shall issue permit systems do not satisfy the right.

Now, let's suppose that is exactly what was argued (as it seems to be impossible to avoid) and that the 10th Circuit hands us the win. Everyone's happy now, right? Not so fast. Denver appeals. Now SCOTUS has to weigh in on the Constitutionality of permit systems governing carry. Do you really think Kennedy will get on board with a decision that says that such systems are Unconstitutional?

And just like that, we lose AT THE SUPREME COURT LEVEL.

Is that what you guys really want?
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Old 02-24-2013, 7:54 PM
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I post here as a no body. I sit here conveying my thoughts through a prominent Judge who also reads this thread. NO! they won't register or post here and i am not articulate enough to convey their thoughts through my fingers. I am smart enough to understand their words though.

To put it best, left turns and rights turns do matter when finding the right address. Some of the "right people" don't know how to read a google map but certainly know how to do online payment processing
That's an interesting position to be in! Must be frustrating at times.

I'd note that I'm actually not arguing that Peterson's case was properly prepared or presented. I have repeatedly acknowledged that I haven't the legal acumen to make such a judgment.

I lean toward the idea that Peterson's lawyer is competent and that the case was properly prepared just because they know the case intimately - but I will readily admit that the FGG and NIR critique may be exactly correct.
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Old 02-24-2013, 8:05 PM
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That's an interesting position to be in! Must be frustrating at times.

.
Actually its all empowering in a VERY modest sort of way. Its actually quite fun having this prominent judge educate me.

Especially when all things gets convoluted and your significant other knows more about payment processing than an entire company does and actually created the path for online and cloud payment processing.
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Old 02-24-2013, 8:11 PM
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Yes, this is the crux of the matter, and the very thing that nobody here seems to be willing to deal with head on: how does one challenge the Constitutionality of the Denver ordinance without arguing that the government does not have the legitimate power to regulate carry through a permit system?
Here's a big problem with the posture of this case and so much else I've seen in related litigation out of the West Coast: the primary zeal is to obtain a permit and not the direct exercise of a right unburdened by licenses and permission.

We need to move away from accepting that exercising this right is always tied to state permission.

Quote:
Remember, for state residents, the permits in question are shall issue, so the argument to overturn the ordinance must somehow argue that shall issue permit systems do not satisfy the right.
How would you react to a shall-issue Bible permit? That a permit exists, at all, is offensive to the 2A.

Read NIR's excerpt. The Court is utterly telegraphing where Peterson went wrong and where the next case has a huge hole on the right side of the defensive line that any halfback could walk right through.

Quote:
"By contrast, had Peterson challenged the Denver ordinance, he may have obtained a ruling that allows him to carry a firearm openly while maintaining the state’s restrictions on concealed carry."
What they're saying is that this case came so close to knocking down the Denver preemption on open carry, an outcome that would have given Mr. Peterson the ability for unlicensed open carry in the City of Denver.

I've really, really been thinking about this case the last couple of days, and I have to wonder if this case was about Denver or Colorado, at all. It's been occurring to me that the purpose of this case might have been to get an easy federal court win on the recognition of out-of-state permits that with subsequent litigation in California or the 9th Circuit would force California and all the cities in it to accept permits from other states. Since permits are hard to obtain in California but easy to obtain in Utah, such a legal strategy, if successful, would have made life easier on California gun owners.

Too bad it lost. Also too bad this negative ruling is in the permanent record. Trust me, and I mean trust me, from now until he croaks, Josh Sugarmann and his kind will be using this quote from the case:

"The Second Amendment does not confer a right to carry concealed
weapons."


That single line will be so hurtful to gun owners across the country for decades, perhaps centuries.

Last edited by highbrass; 02-24-2013 at 8:13 PM..
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  #707  
Old 02-24-2013, 8:21 PM
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"The Second Amendment does not confer a right to carry concealed
weapons."
Moore/Madigan gives another circuit split on this issue though
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Old 02-24-2013, 8:29 PM
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Originally Posted by highbrass View Post
from now until he croaks, Josh Sugarmann and his kind will be using this quote from the case:

"The Second Amendment does not confer a right to carry concealed
weapons."


That single line will be so hurtful to gun owners across the country for decades, perhaps centuries.
I had to check, and they didn't waste any time:

"In a Colorado case in which lawyers for the NRA and Alan Gura for the Second Amendment Foundation faced off against the Brady Center’s legal director and the Colorado Attorney General’s office, the U.S. Court of Appeals for the 10th Circuit unanimously held that the Second Amendment does not provide a right to carry concealed weapons in public, and upheld Colorado’s carry law."

http://bradycampaign.org/media/press/view/1568/
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Old 02-24-2013, 8:31 PM
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Originally Posted by highbrass View Post
.
.
.
Too bad it lost. Also too bad this negative ruling is in the permanent record. Trust me, and I mean trust me, from now until he croaks, Josh Sugarmann and his kind will be using this quote from the case:

"The Second Amendment does not confer a right to carry concealed
weapons."


That single line will be so hurtful to gun owners across the country for decades, perhaps centuries.
Not sure I understand why this is so devastating? I've actually been under the impression (perhaps erroneously) that the legally sophisticated pro-RKBA types have agreed all along that "The Second Amendment does not confer a right to carry concealed weapons".
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Old 02-24-2013, 8:35 PM
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I've really, really been thinking about this case the last couple of days, and I have to wonder if this case was about Denver or Colorado, at all. It's been occurring to me that the purpose of this case might have been to get an easy federal court win on the recognition of out-of-state permits that with subsequent litigation in California or the 9th Circuit would force California and all the cities in it to accept permits from other states. Since permits are hard to obtain in California but easy to obtain in Utah, such a legal strategy, if successful, would have made life easier on California gun owners.
Yes, of course that's what this was about and also why CGF was behind it. You can go back and read old posts on this case and see that they weren't even coy about it.


Quote:
Too bad it lost. Also too bad this negative ruling is in the permanent record. Trust me, and I mean trust me, from now until he croaks, Josh Sugarmann and his kind will be using this quote from the case:

"The Second Amendment does not confer a right to carry concealed
weapons."


That single line will be so hurtful to gun owners across the country for decades, perhaps centuries.
Unfortunately, some us fear that you are right.
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Old 02-24-2013, 8:41 PM
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Here's a big problem with the posture of this case and so much else I've seen in related litigation out of the West Coast: the primary zeal is to obtain a permit and not the direct exercise of a right unburdened by licenses and permission.

We need to move away from accepting that exercising this right is always tied to state permission.
I very much agree with you in principle.

But how are you going to convince the Supreme Court of that?

From Heller:

Quote:
Originally Posted by Heller Decision
nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill
Permit systems are a means by which the government seeks to ensure that only those who are not prohibited can carry.

Not only are you going to have to deal with the above, you're going to be arguing against the jurisprudence in every state that has an enumerated right to keep and bear arms provision and claims to satisfy the right through a shall-issue permit scheme.



Quote:
How would you react to a shall-issue Bible permit? That a permit exists, at all, is offensive to the 2A.
No other enumerated Constitutional right is validly prohibited to felons! I fully agree with you that permits are offensive to enumerated Constitutional rights when their use covers the entire exercise of the right in public (much less entirely). But do you want the right recognized at all by the Supreme Court or not?


Quote:
Read NIR's excerpt. The Court is utterly telegraphing where Peterson went wrong and where the next case has a huge hole on the right side of the defensive line that any halfback could walk right through.

What they're saying is that this case came so close to knocking down the Denver preemption on open carry, an outcome that would have given Mr. Peterson the ability for unlicensed open carry in the City of Denver.
Yes, and that would have given us the win in the 10th Circuit. And then a loss at the Supreme Court. Do you really think we would be able to get Kennedy on board with the notion that the state doesn't have the power to make the effort to ensure, through a permit system, that felons can't carry in public? This is the very same justice that had to be swayed to our side through retention of the "common use" test!

No way. If we go there with the Supreme Court as it's currently composed, we will lose.
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Old 02-24-2013, 8:43 PM
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Yes, of course that's what this was about and also why CGF was behind it. You can go back and read old posts on this case and see that they weren't even coy about it.




Unfortunately, some us fear that you are right.
I wouldn't get this dramatic just yet. The states still have to give you the right to functional fireams whether openly carried or concealed. If the circuit court says that concealed is not a right then OPEN CARRY will be the alternative.
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Old 02-24-2013, 8:45 PM
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how does one challenge the Constitutionality of the Denver ordinance without arguing that the government does not have the legitimate power to regulate carry through a permit system? Remember, for state residents, the permits in question are shall issue, so the argument to overturn the ordinance must somehow argue that shall issue permit systems do not satisfy the right.

Now, let's suppose that is exactly what was argued (as it seems to be impossible to avoid) and that the 10th Circuit hands us the win. Everyone's happy now, right? Not so fast. Denver appeals. Now SCOTUS has to weigh in on the Constitutionality of permit systems governing carry. Do you really think Kennedy will get on board with a decision that says that such systems are Unconstitutional?

And just like that, we lose AT THE SUPREME COURT LEVEL.

Is that what you guys really want?
Exactly what I was wondering.
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Old 02-24-2013, 8:49 PM
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I wouldn't get this dramatic just yet. The states still have to give you the right to functional fireams whether openly carried or concealed. If the circuit court says that concealed is not a right then OPEN CARRY will be the alternative.
If you are referring to the quote, I think it is taking what the court said a little too far.

Currently the 2A and attendant case law do not confer the right to carry concealed or to carry openly.

My interpretation of the 2A and relevant case law (and I'm not a lawyer) is that eventually the states will have to allow either concealed or open carry. I also think it unlikely that the courts will blatantly force a state into one or the other - seems more likely that when the courts say it is an "either-or" situation that they will tell the state that by a date certain they must develop the law and regulation to allow either open or concealed carry (or both should the state so choose).
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Old 02-24-2013, 8:49 PM
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I wouldn't get this dramatic just yet. The states still have to give you the right to functional fireams whether openly carried or concealed. If the circuit court says that concealed is not a right then OPEN CARRY will be the alternative.
Fine by me. Although don't discount FGG's assertion that what we may end up with is UOC if we stay on the course we're on. I'm not sure if he was joking or not, but his predictions shouldn't be taken lightly at this point.
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Old 02-24-2013, 8:55 PM
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If you are referring to the quote, I think it is taking what the court said a little too far.

Currently the 2A and attendant case law do not confer the right to carry concealed or to carry openly.

My interpretation of the 2A and relevant case law (and I'm not a lawyer) is that eventually the states will have to allow either concealed or open carry. I also think it unlikely that the courts will blatantly force a state into one or the other - seems more likely that when the courts say it is an "either-or" situation that they will tell the state that by a date certain they must develop the law and regulation to allow either open or concealed carry (or both should the state so choose).
I agree. Don't forget though, that the damage from the language quoted isn't confined to the court room. The press, the Bradys, and others of their ilk will use this language in the court of public opinion for years to come.
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Old 02-24-2013, 8:55 PM
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Originally Posted by OleCuss View Post
If you are referring to the quote, I think it is taking what the court said a little too far.

Currently the 2A and attendant case law do not confer the right to carry concealed or to carry openly.

My interpretation of the 2A and relevant case law (and I'm not a lawyer) is that eventually the states will have to allow either concealed or open carry. I also think it unlikely that the courts will blatantly force a state into one or the other - seems more likely that when the courts say it is an "either-or" situation that they will tell the state that by a date certain they must develop the law and regulation to allow either open or concealed carry (or both should the state so choose).
I AGREE! In the the 10th, they may now only have open carry on this decision though until it is over turned. Colorado and the corresponding states in the 10th thank Gray Peterson.
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Old 02-24-2013, 8:57 PM
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Fine by me. Although don't discount FGG's assertion that what we may end up with is UOC if we stay on the course we're on. I'm not sure if he was joking or not, but his predictions shouldn't be taken lightly at this point.
What course do you believe can be taken that does not pose that as a danger?
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Old 02-24-2013, 9:04 PM
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Yes, and that would have given us the win in the 10th Circuit. And then a loss at the Supreme Court.
I disagree. If the 10th Circuit struck down Denver's home rule provision, requiring uniform laws across the state, the Supreme Court doesn't touch that.

Anyway, worry about the case in front of you, not what the United States Supreme Court will do with your case once you win at the appellate level. It's hard enough to win any appellate case, much less set up a case to lose at the appellate level because you know you have the Supreme Court win in the bag. Do you know how rare it is for the Supreme Court to accept any case?

Quote:
Do you really think we would be able to get Kennedy on board with the notion that the state doesn't have the power to make the effort to ensure, through a permit system, that felons can't carry in public?
What? Felons already can't carry in public because felons can't own guns in Colorado. They don't need to be denied a permit not to be able to carry.

You guys need to chill out with these cases and your predictions.
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Old 02-24-2013, 9:12 PM
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Very simple. Challenge the Denver ordinance as applied to non-residents of the state only.
And what would the prayer for relief for that look like?
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