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2nd Amend. Litigation Updates & Legal Discussion Discuss California 2A related litigation and legal topics here. All advice given is NOT legal counsel.

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  #4121  
Old 02-22-2018, 8:26 AM
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Thomas' dissent says that people who compare what happened here to what happens in other rights are correct to point out that 2A is treated as an "orphan right." The dissent also affirms that even at the top, there is no agreement on how/why this is happening and that it is indeed a game of personal politics.

Sure one can predict that *unfriendly* courts will rule this way and be correct, but isn't this exactly what the "game theory model" is?
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  #4122  
Old 02-22-2018, 8:33 AM
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Originally Posted by FABIO GETS GOOSED!!! View Post
..., so it was necessary to adopt a ridiculous internet persona to deal with that lol.
Well, the clothing in the selfies you use as avatars might be a bit loud, but other than that, how you relax in your spare time is none of our concern...
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  #4123  
Old 02-22-2018, 8:39 AM
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I feel like what’s been going on for years at calguns:

You have/had the optimists/calguns people saying you miss every throw you don’t take a swing at. So this led to a flurry of lawsuits.

You have Fabio and his golden locks and lols pointing out that every bad swing makes the strike box bigger and bigger.

And you have Kcbrown pointing out whether a strike was called out or not could be predicted pretty regularly by whether the umpire was appointed by a republican or democrat, and the whole game needs to be revamped.
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  #4124  
Old 02-22-2018, 8:59 AM
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The dissent also affirms that even at the top, there is no agreement on how/why this is happening and that it is indeed a game of personal politics.

Sure one can predict that *unfriendly* courts will rule this way and be correct, but isn't this exactly what the "game theory model" is?
In case this was directed towards me, I don't always predict losses. ; )
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  #4125  
Old 02-22-2018, 9:25 AM
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Originally Posted by FABIO GETS GOOSED!!! View Post
In case this was directed towards me, I don't always predict losses. ; )
I think that you succinctly pointed it out when you said, why would the court be particularly concerned that a person who not only has a firearm for self protection but is authorized to carry it in public is delayed a few days in getting another gun? To me this summed it up perfectly. To me, Thomas looked beyond this and felt that it is well past time to make the circuits follow the court’s precedents. Of course he is right. But the reality is that 4 liberals on the court do not care because they have there own agenda and I presume that the other more conservative members think that there are more important issues for them to address, despite the fact that to us this is a most important issue.
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  #4126  
Old 02-22-2018, 3:17 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
You want two-tone?
Yes, I want two-tone. As the originator of the two-tone discussion with the Cal DOJ a decade ago, I remain amazed that the court ruled as it did.

Having worked a bit where tracking the origin of parts was important, and the engineering change order process was important, I recognized that if the DOJ could argue that a change of surface treatment of slide was a disqualifying feature for sale, the road to perdition was open.

Keep in mind the DOJ tells us we can buy a side of a different color, and assemble it to make our own gun, and the result is "not unsafe". They still take this position. How is this rational behavior by government, or good law?

We all know that Kamelatoe did exactly what I predicted. She declared that a change in firing pin metallurgy knocks a gun off the list. This precisely the death-by-1000-cuts that was easy to foresee in the bitone argument I had with the DOJ. Expect more of the same.

What happens when the manufacturers buy new equipment, or hire new people? Is that a change to the gun that disqualifies it? If the equipment moves and is reconfigured? What if the equipment that makes a gun part is turned off over the weekend?

So yes, I still want two-tone. So much so that I bought two when I moved out of CA.
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  #4127  
Old 02-22-2018, 6:21 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
I feel like i'm in the twilight zone lol. What I actually did do was sound the alarm bell, 7 years ago, that this was a weak, ill-considered case (as their flagship cases typically are) that would result in a weak standard of review thereby doing more harm than good. And that is exactly what happened. Not sure whether you were around back then or before then but the same bozos whose failed litigation strategy is causing actual harm would dogpile anyone who didn't drink the koolaid, so it was necessary to adopt a ridiculous internet persona to deal with that lol.

Today, I agree, what you were actually doing years ago was justifiably sounding the alarm bell. You were accurately pointing out legal weaknesses and errors.

Turns out you were correct about the Courts and how the State would use the system of law against our cause and almost all on CalGuns are today shocked, surprised and disappointed that your predictions came true.

Then, I was part of the crowd that was incensed by what seemed at that time to be your incessant heckling and jeering.

I jumped in on the dogpiling with great outrage and resentment. I drank the Gene Hoffman Koolaid in great droughts.

With hindsight, your adopting a ridiculous internet persona only fed the Koolaid drinkers outrage. Actually, the frequent use of the laugh emoji was so damned annoying, pissed me off as much as anything else you said.

We thought you were only there to torment and troll us. Few suspected your opinions were based on your experience and training.

With hindsight, we were then irrationally swept along by the conviction that ours was a Great and Noble Cause and we would right the terrible wrongs imposed on California. We were powerful, united, marching shoulder to shoulder, storming the Bastille, releasing the victims of the regime from their cells.

Ours leaders were strong and knew where they were going and how to get there and we loved them. Hung on their words. Despise any who would question their leadership and power.

And we donated lots of money to CalGuns Foundation.

And you were the one standing in our way, saying "No, no, no you're doing it all wrong, this won't work at all, turn back you fools!" and we wanted to trample you into a bloody mud puddle in our road.


I'm sorry about that. Humbly Beg Your Pardon.


As a favor, please stop using that damn laugh emoji.

Maybe you should change your handle to Cassandra?
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  #4128  
Old 02-22-2018, 10:34 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
I feel like i'm in the twilight zone lol. What I actually did do was sound the alarm bell, 7 years ago, that this was a weak, ill-considered case (as their flagship cases typically are) that would result in a weak standard of review thereby doing more harm than good. And that is exactly what happened. Not sure whether you were around back then or before then but the same bozos whose failed litigation strategy is causing actual harm would dogpile anyone who didn't drink the koolaid, so it was necessary to adopt a ridiculous internet persona to deal with that lol.
I've been on this forum a long time, lurking and trying to make the best of murky and nebulous legal argument as a non-lawyer, far longer than 7 years.

But you avoid the question I am really asking. I am not asking about the merits of the strategies employed by the progenitors of these lawsuits, their potential harm or good, or the nature of the very real koolaid.

I ask, what would you do?
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  #4129  
Old 02-22-2018, 10:49 PM
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I've been on this forum a long time, lurking and trying to make the best of murky and nebulous legal argument as a non-lawyer, far longer than 7 years.

But you avoid the question I am really asking. I am not asking about the merits of the strategies employed by the progenitors of these lawsuits, their potential harm or good, or the nature of the very real koolaid.

I ask, what would you do?
Therein lies the genius of always taking the "this case sucks, it's doomed" position. Not only is it a correct prediction more often than not, by default for a number of different reasons, but even in the rare event that you're wrong you can just say, "I've never been more happy to be wrong," or, "It would've won faster and easier if their case didn't suck," and people will raise their glasses to you for a toast and then forget all about it. Win-win. The optimists are the ones who take all the heat from an incorrect prediction, and are, again by default, wrong more frequently. The pessimistic route is always the safest and most rewarding.

It's a lot like stock market predictions. Nobody ever really gets upset at the guy who predicts a crash that never materializes. He was just "cautious", but whatever, we're all rich now. But the guy who doesn't predict an actual crash is the worst investor ever and hated by anyone who listened.

It's just human psychology that has nothing to do with prediction capabilities, rather it's simply knowing how to exploit a basic human response behavior to best achieve commendations from your peers.

"But FGG always nails his predictions!" And so has anyone else here who has a flawless record of pessimism. An awesome talent that won't get hired for very many birthday parties so it gets used on internet forums instead.
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  #4130  
Old 02-23-2018, 5:24 AM
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Check your facts on "always" predict losses. Also the Silvester prediction like others was a little more nuanced than a simple "lose" but nice try poo pooing.
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  #4131  
Old 02-23-2018, 7:48 AM
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Therein lies the genius of always taking the "this case sucks, it's doomed" position. Not only is it a correct prediction more often than not, by default for a number of different reasons, but even in the rare event that you're wrong you can just say, "I've never been more happy to be wrong," or, "It would've won faster and easier if their case didn't suck," and people will raise their glasses to you for a toast and then forget all about it. Win-win. The optimists are the ones who take all the heat from an incorrect prediction, and are, again by default, wrong more frequently. The pessimistic route is always the safest and most rewarding.
This is pretty much what I've been thinking while reading this thread. FGG did mention something else tho, some of these cases are making new precedent. The court has to wiggle, contort, and double over in order to pop out with rational basis review. The more times they do this the more and more 2A cases will get rational basis.

However, that doesn't really matter, because if the court is so corrupt enough to contort like that, they will do that regardless of how strong the case is .. They know the Supreme Court will not take the case.
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  #4132  
Old 02-23-2018, 7:59 AM
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Originally Posted by FABIO GETS GOOSED!!! View Post
Check your facts on "always" predict losses. Also the Silvester prediction like others was a little more nuanced than a simple "lose" but nice try poo pooing.
All of your arguments were based on legal theories and not on the courts being a divided political body. Yet, the pattern we see at the appellate level and above shows that half the judges and justices see it completely opposite from the way you see it.

Under these circumstances, getting predictions correctly is indeed a "game theory" that KC has been pushing - you get about the same predictive power whether you look at ideological leanings of the individuals making decisions (the KC model), or if you formulate the theory they are going to use to support those leanings (your model).

KC's model is simpler, and, I would argue, better. It addresses the *causal* part of the decisions, while you are just finding the *correlation* between ideology and the types of rulings.

As an example, look at Peruta. The first panel issued a strongly worded and legally sound decision. Then they were overruled by a larger panel that actually *changed* the question in the complaint in order to reach a very narrow, albeit the opposite decision. The initial panel is consistent with CA-7 and D.C., while the latter is consistent with the rest of the circuits.

Do you really believe that the split here is because of the "nuances of the legal theory," or is it simply about who gets to decide the case? If it's about the legal theory, boy do we have a lot of incompetent judges and justices littering our legal system. Either way, it paints a bleak picture of our judicial branch - incompetence or ideology. Pick your poison.
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  #4133  
Old 02-23-2018, 8:07 AM
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why would the court be particularly concerned that a person who not only has a firearm for self protection but is authorized to carry it in public is delayed a few days in getting another gun? To me this summed it up perfectly.
Wait a second here , how is that not an undo burden ? The burden lies in the government making a person wait for something there is no need to make them wait for . At what point did it become OK for the government to come in and say , You can't take possession of your new car , home , glasses or butt plug because you already have one of those . Since you already own one of those things we the government now can say when you can have the next one ?? If ten days is ok why not 20 days . I'm sure the CA legislature will now find all kinds of things to run background checks on that will take even longer to conclude . By default they will need to extend the 10 day waiting period . You can take that to the bank .
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Old 02-23-2018, 8:07 AM
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allow the existence, occurrence, or practice of (something that one does not necessarily like or agree with) without interference.

Anyone else find it sad that those who preach tolerance CAN'T allow the existence, occurrence, or practice of (something that they do not necessarily like or agree with) without interference.

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  #4135  
Old 02-23-2018, 9:02 AM
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Do you really believe that the split here is because of the "nuances of the legal theory," or is it simply about who gets to decide the case? If it's about the legal theory, boy do we have a lot of incompetent judges and justices littering our legal system. Either way, it paints a bleak picture of our judicial branch - incompetence or ideology. Pick your poison.
You are presenting a false dichotomy that makes incorrect assumptions both about how I make predictions and how legal disputes are decided.
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Old 02-23-2018, 10:02 AM
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However, that doesn't really matter, because if the court is so corrupt enough to contort like that, they will do that regardless of how strong the case is .. They know the Supreme Court will not take the case.
This is exactly my point.

The district court followed the rule of law and struck down the waiting period because the state failed to show any proof the premise was valid. This ruling was just because it limits how the government can limit the people.

The 9th then ignored that rule and overturned the district court. Their basis for their ruling was not based on law, but feelings. They said they believe the state's position that it might reduce crime even though the state failed to bring any proof.

Then the SCOUTUS, by refusing to hear the case, backs up what the 9th did.


There are far reaching implications here. Because the 9th made a ruling and the SCOTUS refused to weigh in, it sets a precedent. That precedent is, a court may rule in favor of the state even when the state has failed to meet its burden of proof. This precedent does NOT apply only to gun related cases.

If this doesn't terrify you, you're not paying attention. The 9th has shown that they will do what they want regardless of what the law says and the SCOTUS has backed them up. Where can we get justice if not the courts? People, our system has failed.
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  #4137  
Old 02-23-2018, 10:41 AM
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The district court followed the rule of law and struck down the waiting period because the state failed to show any proof the premise was valid. This ruling was just because it limits how the government can limit the people. The 9th then ignored that rule and overturned the district court. Their basis for their ruling was not based on law, but feelings. They said they believe the state's position that it might reduce crime even though the state failed to bring any proof.

Then the SCOTUS, by refusing to hear the case, backs up what the 9th did. There are far reaching implications here. Because the 9th made a ruling and the SCOTUS refused to weigh in, it sets a precedent. That precedent is, a court may rule in favor of the state even when the state has failed to meet its burden of proof. This precedent does NOT apply only to gun related cases. If this doesn't terrify you, you're not paying attention. The 9th has shown that they will do what they want regardless of what the law says and the SCOTUS has backed them up. Where can we get justice if not the courts? People, our system has failed.
The Ninth Circuit is a self-licking ice cream cone of upholding firearm restrictions. The bad precedent doesn't really matter to firearms rights if they're willing to make up one-off arguments to uphold everything anyway. They ignore their own precedent from cases concerning other rights (as detailed in the amicus briefs supporting petition for cert in this case) so there's no reason to believe they would apply precedent from a firearm case to a question of another right. Nor, frankly, is there any reason to believe that just because SCOTUS denied cert in a firearm case that they would do the same if another right was in question and the same shenanigans took place at the circuit level. Further still, I would imagine if a lower-level court tried to apply Ninth Circuit firearm logic to another right (as they're technically supposed to) the Ninth Circuit would step in and put a band-aid on it with more hand-waving.
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Old 02-23-2018, 10:41 AM
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You are presenting a false dichotomy that makes incorrect assumptions both about how I make predictions and how legal disputes are decided.
How does a dichotomy make assumptions? Do people really take you seriously around here?
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Old 02-23-2018, 10:48 AM
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How does a dichotomy make assumptions? Do people really take you seriously around here?
?

There's nothing wrong with his statement here. A false dichotomy is overstating mutual exclusivity of two things, or discounting other potentially valid options by omission rather than explicitly doing so. Both of those errors involve making assumptions.
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Old 02-23-2018, 11:07 AM
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?

There's nothing wrong with his statement here. A false dichotomy is overstating mutual exclusivity of two things, or discounting other potentially valid options by omission rather than explicitly doing so. Both of those errors involve making assumptions.
I think the usage nazi was pointing out that a dichotomy cannot itself make assumptions, so even though the point I am making is patently obvious I should not be taken seriously because I made a usage error. What a dufus lol.
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Old 02-23-2018, 11:28 AM
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Which case is the "Doe" case that "Mountain Lion" said was a win?
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  #4142  
Old 02-23-2018, 1:25 PM
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You are presenting a false dichotomy that makes incorrect assumptions both about how I make predictions and how legal disputes are decided.
My bad. I thought you used legal arguments to make predictions...
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Old 02-23-2018, 1:40 PM
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How does a dichotomy make assumptions? Do people really take you seriously around here?
Actually people do. Fabio, no matter how unpopular his opinions are, has been straight up and to the point so much that most don't quite understand what his actual position is.

I don't like his correct opinions either but its hard to look and say he was wrong when he wasn't.

He just enjoys trolling people who think he doesn't know anything. Who wouldn't enjoy that?
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Old 02-23-2018, 1:43 PM
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All of your arguments were based on legal theories and not on the courts being a divided political body. Yet, the pattern we see at the appellate level and above shows that half the judges and justices see it completely opposite from the way you see it.

Under these circumstances, getting predictions correctly is indeed a "game theory" that KC has been pushing - you get about the same predictive power whether you look at ideological leanings of the individuals making decisions (the KC model), or if you formulate the theory they are going to use to support those leanings (your model).

KC's model is simpler, and, I would argue, better. It addresses the *causal* part of the decisions, while you are just finding the *correlation* between ideology and the types of rulings.

As an example, look at Peruta. The first panel issued a strongly worded and legally sound decision. Then they were overruled by a larger panel that actually *changed* the question in the complaint in order to reach a very narrow, albeit the opposite decision. The initial panel is consistent with CA-7 and D.C., while the latter is consistent with the rest of the circuits.

Do you really believe that the split here is because of the "nuances of the legal theory," or is it simply about who gets to decide the case? If it's about the legal theory, boy do we have a lot of incompetent judges and justices littering our legal system. Either way, it paints a bleak picture of our judicial branch - incompetence or ideology. Pick your poison.
Using both would not exactly be intellectually dishonest.
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Old 02-23-2018, 2:01 PM
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Which case is the "Doe" case that "Mountain Lion" said was a win?
It's on the same page as this one, about 5 or 6 threads down:
http://calguns.net/calgunforum/showthread.php?t=1307058
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Old 02-23-2018, 2:38 PM
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Thanx for the courtesy of the reply.
"Doe versus xxxx" is not a good google search term.

An oddity for sure...this is a CGF win on a "trivial" matter.
(Imagine that!)
Congratulations to CGF.
(And it's kinda odd that this would be used as an example of the courts doing the right thing, given the CGF-is-always-going-to-loose bashing here).

Without knocking any of the CGF efforts, I suspect this win will turn into a loss as the days go by, just like Peruta and so many others.

The courts have repeatedly and completely eroded their veil of fairness under law.
It will take much more than a win here to reassure the citizenry that the courts are even worth going to.
That's not good.
The courts and .gov rule by consent of the people.
When the people loose faith in this system, the system will loose power and be replaced, one way or another.
It is in the court's best interest to make fair and unbiased judgements, for only this way will they have the support and confidence of the people.
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Old 02-23-2018, 3:17 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
You are presenting a false dichotomy that makes incorrect assumptions both about how I make predictions and how legal disputes are decided.
Incorrect? How??

His statement was pretty vague as far as what you do. It was that you predict outcomes on the basis of "legal theories", and not on the basis of "the courts being a divided political body". In what way is that materially incorrect? For it to be incorrect, you would indeed have to be making predictions of court outcomes on the basis of courts being a "divided political body", or not ever on the basis of "legal theories". Otherwise, what he's saying you base your predictions on may be incomplete, but it cannot be incorrect.

I see no assumptions that IVC's making at all. There is nothing implicit in anything he said. His statement might be incomplete as noted above, but where have you made any predictions about court outcomes on the basis of anything like the courts being a "politically divided body"? I know of none.

And finally, nothing in what he said even hints at the ways courts actually make decisions. He only talks about the outcomes and the means that are used to predict those outcomes, not about how courts actually make decisions.
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Old 02-23-2018, 6:13 PM
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Shouldn't we change the title of the thread to Second Waiting Period is Constitutional now ?

And this is why we are really losing or 2A rights , to busy in fighting , eating our own , and not paying attention to when somebody tries to send cases in the direction that may be a better chance of winning .

With someone with the track record of FGG , why doesn't anyone listen to what he has to say ? You don't like it , but , hey , he has been right more than the people in the know have been .

And I don't think he is getting paid for his advice , maybe he should . Then maybe you'll listen.

/close thread
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Old 02-23-2018, 6:42 PM
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This is why I stopped giving to FPC and CGF.
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Old 02-23-2018, 8:12 PM
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I ask, what would you do?
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Originally Posted by FABIO GETS GOOSED!!! View Post
Check your facts on "always" predict losses. Also the Silvester prediction like others was a little more nuanced than a simple "lose" but nice try poo pooing.
Quite telling, that you can't even answer a very simple question instead of playing the heckler.
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Old 02-23-2018, 8:57 PM
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Quite telling, that you can't even answer a very simple question instead of playing the heckler.
Yeah he spends more time contriving a nuanced cryptic response...afterall he's a legend in his own mind, you know...than would be necessary for a straightforward response. Very strange. Oh wait, I forgot, he has better things to do with his time.
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Old 02-23-2018, 9:09 PM
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The simple question was already anawered, in this thread among other places. It's not me not answering a simple question, it's you not paying attention and expecting me to repeat myself lol.
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Old 02-23-2018, 10:39 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
The simple question was already anawered, in this thread among other places. It's not me not answering a simple question, it's you not paying attention and expecting me to repeat myself lol.
I just went over every message you have posted to this thread. You did offer some suggestions as to how plaintiffs could have proceeded (e.g., find a plaintiff whose handgun had been stolen). Not many, but some.

I've occasionally seen other such suggestions in other threads as well, so it's not like you haven't tried to provide some sage advice from time to time, though sadly it was likely far too late by the time you gave it (here, at least) -- something that isn't your fault, really, since you're not counsel or co-counsel in these cases. I suspect the main problem is that most of your messages have been (that I've seen) derisive in nature, and that tends to obscure the more advisory ones. It's not really fair to fault you for that, either, since the amount of time it takes for these cases to wend their way through the courts is so long that you'd surely get bored if you couldn't throw barbs in between the helpful messages.


Knowing how things have played out so far, if the clock were wound back to just after McDonald, what cases would you have brought (if you could and didn't have anything better to do) and what laws would you have challenged along the way? And how would you have gone about preventing the laws from becoming "longstanding", since that's precisely what will happen if they aren't successfully challenged?
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Old 02-23-2018, 10:48 PM
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FGG complains that cases like this set horrible precedents as regards scrutiny. That may be so.

I contend that the very nature of scrutiny is such that it doesn't matter: http://calguns.net/calgunforum/showp...postcount=1186

This is so because the nature of the right involves that which is inherently dangerous from the start, and thus it inherently runs afoul of "public safety". And since "public safety" is a "compelling government interest", it follows that it is the laws infringing upon the right, and not the right, that will almost always win under the methods of scrutiny, even "strict" scrutiny.

People here often argue that what we need is strict scrutiny, when strict scrutiny would allow for complete destruction of the right (i.e., the least restrictive means) for the purpose of preventing overthrow of the government (surely a compelling government interest if there ever was one).


FGG never did answer my question in the end, so I ask it of him again: if, as the above suggests, the choice can easily be (and thus must eventually be) between scrutiny and adherence to the Constitution, why do you insist that it must be scrutiny (which is not involved at all until it is determined that infringement of the right has occurred), and not the Constitution (which commands that the right is not to be infringed), that wins?
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The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional.

The real world laughs at optimism. And here's why.

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Old 02-24-2018, 1:31 PM
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Originally Posted by kcbrown View Post
FGG complains that cases like this set horrible precedents as regards scrutiny. That may be so.

I contend that the very nature of scrutiny is such that it doesn't matter: http://calguns.net/calgunforum/showp...postcount=1186

This is so because the nature of the right involves that which is inherently dangerous from the start, and thus it inherently runs afoul of "public safety". And since "public safety" is a "compelling government interest", it follows that it is the laws infringing upon the right, and not the right, that will almost always win under the methods of scrutiny, even "strict" scrutiny.

People here often argue that what we need is strict scrutiny, when strict scrutiny would allow for complete destruction of the right (i.e., the least restrictive means) for the purpose of preventing overthrow of the government (surely a compelling government interest if there ever was one).


FGG never did answer my question in the end, so I ask it of him again: if, as the above suggests, the choice can easily be (and thus must eventually be) between scrutiny and adherence to the Constitution, why do you insist that it must be scrutiny (which is not involved at all until it is determined that infringement of the right has occurred), and not the Constitution (which commands that the right is not to be infringed), that wins?
Simple. As Heller said: "Like most rights, the right secured by the Second Amendment is not unlimited." Thus, you must do some sort of historical analysis as the Heller court did or you must apply some level of scrutiny, which is what is done with other enumerated rights. It is never as simple as shall not be infringed includes the words "in any manner" as you seem to argue. Otherwise, the Heller Court's statement about not questioning long standing restrictions would be meaningless.
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Old 02-24-2018, 2:43 PM
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Simple. As Heller said: "Like most rights, the right secured by the Second Amendment is not unlimited." Thus, you must do some sort of historical analysis as the Heller court did or you must apply some level of scrutiny, which is what is done with other enumerated rights. It is never as simple as shall not be infringed includes the words "in any manner" as you seem to argue. Otherwise, the Heller Court's statement about not questioning long standing restrictions would be meaningless.
Let me explain my argument. Perhaps after doing so, you'll have a better idea of what I'm attempting to argue here and why.

The right is not unlimited -- it is limited by its scope. That scope is, per Heller, that which was understood at the time the 2nd Amendment was ratified. The 2nd Amendment states clearly and unequivocally that the right to keep and bear arms shall not be infringed. "Infringe" is defined by Sheridan's A Complete Dictionary of the English Language on page 42 as "To violate, to break laws or contracts; to destroy, to hinder." That dictionary was published in 1797, so it is very much contemporanous with the ratification of the 2nd Amendment and thus, absent other evidence, is a proper reference for the meaning of "infringed" as understood at the time of ratification. As such, to merely hinder the right is to infringe upon it, so to merely hinder the right, much less outright violate it, is impermissible per a plain reading of the 2nd Amendment's commandment.

In order to remain consistent with the original intended meaning of the Constitution (anything else is a subversion of the entire framework: http://calguns.net/calgunforum/showp...3&postcount=78), the only proper approach here is to determine whether the conduct which is forbidden by the law is conduct which was understood to be encompassed by the protected right, and to strike the violating part if it is.

Scrutiny does not do this. What the courts do with respect to scrutiny is to firstly determine whether or not the law in question forbids or hinders conduct that was understood to be encompassed by the protected right and only if it does, to then determine via the chosen method of scrutiny whether or not to let the law stand. Put another way, the use of scrutiny automatically means the court is allowing the infringement to stand if the court allows the law to stand as-is.


This conclusion is inescapable. Scrutiny is not a method of determining the scope of the right -- that is already, per Heller, defined by the understanding at the time of the 2nd Amendment's ratification. Since it cannot inform on the scope of the right, scrutiny can only be used to determine whether or not to allow an infringement to stand.

But the command of the Constitution is clear and unwavering: the right shall not be infringed. Therefore, it inexorably follows that a court which upholds a law by way of scrutiny, after having determined that the law forbids or hinders conduct encompassed by the right, is violating the direct command of the Constitution.


And that's why I ask: why is it scrutiny, and not the Constitution, which wins? Is not the Constitution the supreme law of the land? To insist that it is scrutiny which wins is to insist that the Constitution is subservient to the wishes of the courts, when it is only from the Constitution that the courts have any authorization to do anything at all.


In the end, it comes down to whether the courts are subservient to the Constitution or whether the Constitution is subservient to them. To insist, as many do, that the courts assign the meaning of the Constitution is to insist that the Constitution is subservient to them, as the inescapable logical consequence of that is that the courts can legitimately assign to it a meaning which gives the courts unfettered power (once you give away to an entity the power to assign meaning to the very document from which the entity and the entire government derives its existence, you give it the power to be that government -- you give it unlimited power). The only way the courts can be subservient to the Constitution is for them to be held to the original intended meaning of the Constitution, something that is a fixed (even if not entirely known) point of reference.
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The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional.

The real world laughs at optimism. And here's why.

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Old 02-24-2018, 3:33 PM
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I suspect the main problem is that most of your messages have been (that I've seen) derisive in nature, and that tends to obscure the more advisory ones.
You have to take into account the climate on this site at the time these cases were filed and the qualifications of the people who wanted to lead the charge. Being "derisive in nature" is one thing I don't fault FGG one bit, particularly given the way he (she?) had been treated.

Back to topic at hand, it still remains a mystery as to why the same legal theory worked in CA-9 with Peruta, but it didn't work in CA-7 in Moore, in D.C. in Wrenn and in the early three judge panel in Peruta. Then, we have Silvester in this thread, where it was far from being unanimous. So, if it's just the legal theory, where does the discrepancy come from?
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Old 02-24-2018, 5:58 PM
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You have to take into account the climate on this site at the time these cases were filed and the qualifications of the people who wanted to lead the charge. Being "derisive in nature" is one thing I don't fault FGG one bit, particularly given the way he (she?) had been treated.
I don't necessarily fault him for that. Certainly, it had plenty of entertainment value. And most certainly, his primary target (Gene) was spouting so much overly optimistic BS that FGG had to have found it impossible to resist throwing barbs at. I've no idea who started what first, but that is water long under the bridge by now.

Even so, the point is that the signal to noise ratio from FGG was pretty low, with many of his more insightful messages being hidden inside his usual "do your own homework" mantra. More clarity and less attitude would likely have gone a long way towards making his points both more accessible and more obviously valid (they were valid nonetheless, just not obviously so, because he often refused to back them).


Quote:
Back to topic at hand, it still remains a mystery as to why the same legal theory worked in CA-9 with Peruta, but it didn't work in CA-7 in Moore, in D.C. in Wrenn and in the early three judge panel in Peruta. Then, we have Silvester in this thread, where it was far from being unanimous. So, if it's just the legal theory, where does the discrepancy come from?
Well, this quote basically tells it all:

Quote:
Originally Posted by FABIO GETS GOOSED!!! View Post
Nope, guess again lol. The panel decision was correct, until it wasn't.
That can't be true unless the law changed between the times of the two decisions (it didn't) or the decision is the result of the personal preferences of those deciding the case (under the presumption that there is only one correct answer). Since the former didn't happen, the latter must have.

That leaves the question of multiple correct answers (something that FGG's comment automatically dispenses with, since if that were the case then he'd say that both decisions were correct). There cannot be more than one correct answer with respect to the fundamental Constitutional right to arms unless there is absolutely no way to distinguish, on the basis of the original intent behind the 2nd Amendment, between the validity of the two outcomes. Since the two outcomes are diametrically opposed, that clearly cannot be the case either, and that means there is only one correct outcome as measured against the original intent behind the 2nd Amendment. But that must mean that at least one of the cases was decided on the basis of the individual preferences of the judges who were deciding the case, and not the original intent behind the 2nd Amendment. Courts do not have the legitimate power to rewrite the Constitution or to flaunt the intent behind it, but that's precisely what the 9th Circuit has done (and it is most certainly not alone in that).


So the answer is that it's not just the legal theory, it's whether or not the judges deciding the case like the legal theory and/or the outcome it generates. The hash that the 9th Circuit has made of the law, and in particular their clear propensity to ignore well-established precedential legal principles (see Thomas' dissent in the case this thread discusses), makes it clear that it is the outcomes, and not the legal theory, that the 9th Circuit judges are using as the basis of their choice.


FGG argues as if the judges had no choice but to make a hash of things, to set bad precedent as regards applied scrutiny. Of course they had such a choice, if you presume they aren't constrained by the original intent of the Constitution (if you presume they are, then they clearly and intentionally acted against Constitutional intent!). They had a choice because they didn't have to treat "intermediate scrutiny" as if it were rational basis. They could have demanded that the state prove its case just as the district court did. They could have retained the district court's determination of facts. They chose not to. This didn't happen because we brought a weak case -- at most that only made the choice possible. It happened because they wanted it to happen. And that is most especially true if, as FGG says, the "decision was correct, until it wasn't".
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Old 02-24-2018, 10:40 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
The simple question was already anawered, in this thread among other places. It's not me not answering a simple question, it's you not paying attention and expecting me to repeat myself lol.
I've read many things you've written over the years, and I struggle to think of even once where you gone beyond minor technical suggestions in between the bouts of heckling.

As kcbrown gets it:
Quote:
Originally Posted by kcbrown View Post
Knowing how things have played out so far, if the clock were wound back to just after McDonald, what cases would you have brought (if you could and didn't have anything better to do) and what laws would you have challenged along the way? And how would you have gone about preventing the laws from becoming "longstanding", since that's precisely what will happen if they aren't successfully challenged?
I'm asking a question of strategy, not one of tactics.

What would you do, or have "us" do, to address the erosion of a fundamental Constitutional right?
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Old 02-25-2018, 8:00 AM
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Since the former didn't happen, the latter must have.
Cue the "false dichotomy" copout...
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