SCOTUS Cert Petition for Carry filed - Kachalsky || Cert DENIED 4/15

[sholling]

Originally Posted by Gray Peterson

He would have the choice to either go to the District Court of his location, or go to the district courts that ordered the injunctions in the first place. He wouldn't go to the 7th Circuits. Habeas writs are essentially on a emergency rocket docket, to be issued by what's called the "Duty Judge", which circulates on a weekly basis.

This is way over my head but this post on TFL explains in legalese how writs may not be the panacea we'd hoped. I'm curious about your thoughts.

http://thefiringline.com/forums/show...&postcount=475

[Southwest Chuck]

Looks like Gura filed for enbanc on Woollard instead of cert. Doesn't want all his eggs in one basket, I assume?
Gura files for en banc in Woollard

[wildhawker]

700-800 permits is your measure of "putting their money where their mouth is?" Talk about a cheap date!

-Brandon

Originally Posted by ASTMedic

Ok you got me on the "all" part. However I would say that here in NorCal the word "most" would apply to the amount of LEO who would NOT back bad gun laws not the opposite. Yes metro areas are an exception but north of Sac you will be hard pressed to find LEO who aren't on our side. I work closely with and have family who are local LEO and have never heard one say they would support such laws. My local sheriff has 700 active CCW permits right now and the neighboring county has about 800 last I heard. To me that's putting their money where their mouth is.

[Gray Peterson]

Originally Posted by sholling

This is way over my head but this post on TFL explains in legalese how writs may not be the panacea we'd hoped. I'm curious about your thoughts.

http://thefiringline.com/forums/show...&postcount=475

Except the 7th Circuit believes that it's faithfully applying SCOTUS precedent in Heller & McDonald in it's holdings, and said that the Kachalsky court was wrong...

[kcbrown]

Originally Posted by IVC

Predicting outcome is different than understanding the causes of such outcomes. Consequently, one can be a pessimist and still have a good correlation of predictions and outcomes.

That's possible, of course, but someone who is a pessimist and who doesn't understand the causes of outcomes will inevitably wind up having a correctness rate approaching that of the relative rate of bad versus good outcomes in general.

I like to think that the rate of correct predictions on my part is well above that level. But that could merely be sheer hubris on my part...

Originally Posted by PhalSe

Pessimism doesn't require either correctness or incorrectness. You can be pessimistic and right or pessimistic and wrong.

While that's true as far as it goes, neither pessimism nor optimism is of any use if one doesn't make predictions based on them. In general, I've found that people use their own outlooks on the world as inputs into their predictions.

Here's how I see it (and you can feel free to disagree with me): pessimism means that one's view of the world is worse than the world actually is. Optimism means that one's view of the world is better than the world actually is. But for one to be pessimistic or optimistic by those definitions means that one must either incorrectly predict outcomes with a bias towards whatever viewpoint one holds, or one must intentionally ignore facts and events in the real world which go against one's viewpoint.

I didn't mean to imply you were wrong in general, just that it is likely wrong to be pessimistic about SCOTUS granting cert for Kachalsky.

Oh, on that I am in general agreement. I think it's reasonably likely that cert will be granted for it. However, I will not be entirely surprised if it is not granted.


Oh, and I completely agree that this is the right case at the right time. No doubt about it. Others actually seem to disagree with that (!!), e.g., Tincon, but I don't believe those people really understand the political situation, which is such that we simply cannot afford to wait.

[kcbrown]

Originally Posted by Gray Peterson

Except the 7th Circuit believes that it's faithfully applying SCOTUS precedent in Heller & McDonald in it's holdings, and said that the Kachalsky court was wrong...

Can there really be any more of a direct split than that, when one circuit flatly states that another circuit is fundamentally wrong?

If SCOTUS doesn't grant cert to Kachalsky, then I cannot fathom them ever taking a carry case with their current composition.

[kcbrown]

Originally Posted by curtisfong

I don't think even kc could have predicted that IL courts would rule the 7th has no jurisdiction over them.

If I had known that the circuit courts did not have jurisprudential precedence over state courts within the same circuit, then I would have predicted that. So my lack of prediction here is due to lack of knowledge more than anything else.

Of course, this means the California state courts are going to claim the same thing with respect to 9th circuit rulings. What remains to be seen is what the executive branches actually do.

[sholling]

Originally Posted by ASTMedic

Ok you got me on the "all" part. However I would say that here in NorCal the word "most" would apply to the amount of LEO who would NOT back bad gun laws not the opposite. Yes metro areas are an exception but north of Sac you will be hard pressed to find LEO who aren't on our side. I work closely with and have family who are local LEO and have never heard one say they would support such laws. My local sheriff has 700 active CCW permits right now and the neighboring county has about 800 last I heard. To me that's putting their money where their mouth is.

Just because your local sheriff will issue permits a bit easier than some others does not mean that he or she will not enforce gun laws but you can roll the dice if you like. Most LEOs will enforce whatever draconian laws that Sacramento passes and most judges will rubber stamp the constitutionality of those laws until overruled by higher courts.

Originally Posted by Gray Peterson

Except the 7th Circuit believes that it's faithfully applying SCOTUS precedent in Heller & McDonald in it's holdings, and said that the Kachalsky court was wrong...

Thank you for setting that straight.

[ASTMedic]

Originally Posted by wildhawker

700-800 permits is your measure of "putting their money where their mouth is?" Talk about a cheap date!

-Brandon

Could be SF??

In a county with 72,578 (2011) I'm feeling ok with those numbers. We're shall issue so I'm sure those numbers are growing at a good rate these days. Also my county has more than a few people that would clearly not be eligible for a CCW. Sure it could be better but anyone who wants one and is clean can get one in about 2 months with just self defense as good cause. Better than other places.

[ASTMedic]

Originally Posted by sholling

Just because your local sheriff will issue permits a bit easier than some others does not mean that he or she will not enforce gun laws but you can roll the dice if you like. Most LEOs will enforce whatever draconian laws that Sacramento passes, and most judges will rubber stamp the constitutionality of those laws until overruled by higher courts.

He's shall issue so it's not just "easier than others". No BS in the CCW process here. Across the river all they want listed for good cause is personal protection. To the point they will have you add it if you don't state it.

At this point in the game I'm glad he had the balls to post a letter stating he doesn't support further 2A restrictions publicly. That more than a few counties can say. When we get to the next point in this battle we'll reassess as needed. I don't think that will be an issue though. He is a good friend to some of my family and thus far been a man of his word.

We need to stop saying how LEO will just follow orders. It's no different than when people make generalized statements about "gun guys". I'm going to give them the chance to prove their worth. I'm always ready if things don't go as planned though.

[curtisfong]

Originally Posted by kcbrown

If I had known that the circuit courts did not have jurisprudential precedence over state courts within the same circuit, then I would have predicted that. So my lack of prediction here is due to lack of knowledge more than anything else.

Of course, this means the California state courts are going to claim the same thing with respect to 9th circuit rulings. What remains to be seen is what the executive branches actually do.

The difference is that the IL court of appeals actually cited IL supreme court case law (People v Stansberry):

The question thus presented is whether the Pugh case has any binding effect on this court when the issue has not been passed on by the United States Supreme Court. We find the question to be an elusive one though it is discussed generally in an annotation in 147 A.L.R. 857 and in 21 C.J.S. Courts, sec. 206. These references indicate a lack of unanimity among the several States with the majority favoring the rule that such decisions should have no binding effect until the issue is considered and determined by the Supreme Court. This would appear to be the most logical conclusion, for oftentimes there is a conflict between decisions of the various Federal courts on constitutional matters and until finally determined by the United States Supreme Court there can be no definitive ruling by which a State court can be bound. (See: Lawrence v. Woods (7th cir.), 432 F.2d 1072, (8 Cr. Law Rptr. 2084.) For instance, on the question first posed in this opinion some lower Federal courts have held that a defendant is not entitled to inquire behind a search warrant and the affidavit supporting it, (Kenney v. United States (D.C. cir.), 157 F.2d 442; United States v. Gianaris (D.C.D.C.) 25 F.R.D. 194) whereas the contrary view is expressed in United States v. Suarez (2d cir.), 380 F.2d 713; United States v. Gillette (2d cir.), 383 F.2d 843; United States v. Roth (7th cir.), 391 F.2d 507. And the United States Supreme Court has not yet ruled upon the question. (Rugendorf v. United States,376 U.S. 528, 11 L.Ed.2d 887, 84 S.Ct. 825.) Under such circumstances decisions of the lower Federal courts can be held to be no more than persuasive and certainly not binding on State courts.

(bold is my own)

I am not enough of a legal scholar to know if a parallel exists from the CA supreme court. But I agree if such a thing were possible, every court lower than the 9th would claim no jurisdiction (if, hypothetically, the 9th ever ruled in favor of a 2A plaintiff or defendant, which they never will).

[nullman]

Originally Posted by curtisfong

I am not enough of a legal scholar to know if a parallel exists from the CA supreme court. But I agree if such a thing were possible, every court lower than the 9th would claim no jurisdiction

If this is true, in Illinois or here in CA, what is the point of the Circuit Courts then? Nothing more than a gateway to SCOTUS?

Nick

[Mulay El Raisuli]

Originally Posted by ziegenbock

Gene or Gray,

Are we looking at a Nunn opinion or perhaps a hybrid that will also state that some form of concealed carry must be permitted?

I know they are asking for the license, but is Gura also looking to get "no permit" needed for "LOC" bases upon case history used by the USSC in heller?

I certainly hope that this is at least his 'fallback' position.

Originally Posted by GaryV

I wouldn't go so far as to say he thinks such regulation is actually acceptable (though he may), but he's smart enough not to try to fight those battles all at once. Just as the only real thing he was trying to get the court to say in Heller was that owning a gun is a fundamental individual right protected by the 2nd Amendment, I think his only goal here is to have them say the same about public carry, and leave the details for later. Get your foot in the door and then worry about how to pry it the rest of the way open later, once you have some leverage.

I think GaryV is saying the same thing with different words. nicki also.

Originally Posted by nicki

Alan Gura is the "best attorney" to bring a "carry case" in front of the US Supreme Court in the country and the reason why he is the best attorney is because he has had the "court battleground" experience with this issue in almost every federal jurisdiction in this country.

In hindsight, Alan Gura tried some bold moves in the "MacDonald case", while Alan Gura ultimately won the case for incorporation, he lost in his attempt to overturn the "Slaughterhouse cases" and bring the "privileges and immunities" clause of the 14th amendment back from the dead.

Alan lost that because the so called 4 liberal justices wouldn't vote to expand "civil rights" if that included expanding gun rights.

Had they set aside their prejudices against guns, they would have undone rulings that set the stage for Jim Crow post civil war. Of course the second amendment would have had a 9-0 ruling in MacDonald if they did that.

My gut tells me that Alan is going just for any kind of "carry" with "functional common arms" and he isn't going to get hung up on "open or concealed".

The "open carry" argument is something the other side has actually used in arguments to retain the current CCW laws.

The Supreme Court ultimately could do the following:

Tell New York that they have to allow at least one form of unrestricted carry of functional common arms( loaded, standard ammunition capacities) and that they can regulate or even ban the other.

The could possibly rule that a state has to allow some form of unlicensed carry and if they choose to license the other, that the policy can't be discriminatory.

Justices Kagan, Scalia and Sotomayor are from New York, so this could be very interesting. I think Justice Gingsburg also could be from New York as well.

Nicki

The Kachalsky panel did indeed use the 'open carry' argument (quoting Heller as they did so). They were correct to do so, in my opinion. While I would be happy with "Shall Issue" being the Right, I wouldn't mind unlicensed LOC as the Right either. Yes, CCW could (and no doubt, would) be regulated, that doesn't mean that CCW would be banned. Again, I think the Ohio experience would repeat itself in NY, with the part in bold as the way it would end up.


The Raisuli

[Mulay El Raisuli]

Originally Posted by kcbrown

Can there really be any more of a direct split than that, when one circuit flatly states that another circuit is fundamentally wrong?

If SCOTUS doesn't grant cert to Kachalsky, then I cannot fathom them ever taking a carry case with their current composition.

I agree entirely with this. If a pissing contest between the Circuits doesn't get SCOTUS attention, then I can't imagine what would either.


The Raisuli

[TeddyBallgame]

everytime I read some of these 2nd Amendment related threads/replies, I get more anxious...so many intelligent people (its evident) with so many different theories and figurative outcomes

it's like trying to thread a needle with 20/100 vision...very hard for a common guy like me to know what to expect

seems like even with all the right things on our side, so much can go wrong...that's depressing

I guess it's like watching all these people getting away with violent crimes, and, back out on the street by Christmas...its almost like you can get away with murder now, someone is gonna buy into that sad sob story

[curtisfong]

Originally Posted by nullman

If this is true, in Illinois or here in CA, what is the point of the Circuit Courts then? Nothing more than a gateway to SCOTUS?

Nick

If I were as cynical and pessimistic as kc (hi kc!), I'd say it was WORSE than that. It gives the state court of appeals the unilateral power to simply block a plaintiff wishing to go up the chain if that plaintiff wins at the circuit court level.

That is to say, if a plaintiff wins at the circuit court level, the loser at the circuit court would have to appeal to bring it to the SCOTUS.. but why should the loser appeal if the court of appeals says the decision for the winner isn't binding?

[randian]

Originally Posted by curtisfong

That is to say, if a plaintiff wins at the circuit court level, the loser at the circuit court would have to appeal to bring it to the SCOTUS.. but why should the loser appeal if the court of appeals says the decision for the winner isn't binding?

I think the state court will end up saying more than that. Eventually, I believe they're going to rule that the circuit court is binding, but only on a case-by-case basis. In other words, pro-gun = not binding, anti-gun = binding.

If the circuit court isn't binding, then what's the point of having it? It would be an interesting case for SCOTUS. Are they willing to throw away their inferior court's authority and rule that they are in fact nonbinding?

[sholling]

Originally Posted by ASTMedic

We need to stop saying how LEO will just follow orders. It's no different than when people make generalized statements about "gun guys". I'm going to give them the chance to prove their worth. I'm always ready if things don't go as planned though.

So you're removed the bullet button from your feature-rich AR15 and inserted a 30rd mag because you fee safe that your sheriff won't allow you to be arrested at the range for violating the CA AWB? That's what the next few years in California are going to be all about. The legislature will be working hard to ban all semiautomatic rifles and limiting access to ammo and most LEOs will enforce those laws. But hey feel free to roll the dice and see if you become an instant felon.

[ASTMedic]

Originally Posted by sholling

So you're removed the bullet button from your feature-rich AR15 and inserted a 30rd mag because you fee safe that your sheriff won't allow you to be arrested at the range for violating the CA AWB? That's what the next few years in California are going to be all about. The legislature will be working hard to ban all semiautomatic rifles and limiting access to ammo and most LEOs will enforce those laws. But hey feel free to roll the dice and see if you become an instant felon.

You talk as if I'm sitting here on my thumbs doing nothing to fight these proposed laws. Or that I should condemn my local LEO because these laws are being proposed in the legislature?

Some on this forum are making a straw enemy out of LEO. Why? What's the point? The problem is the legislature at this point in time not the LEO in my county and many others. Vilifying my local sheriff isn't going to do me any good, especially since he hasn't done a single thing to go after my guns. He even went so far as to state just the opposite publicly. Why spit in the face of someone who may very well be willing to stand next to me and fight? Just because they won't let me run willy nilly with any gun I want at the range? That's the proof that they are anti 2A? What should they be doing to prove their worth then?

So what makes more sense here, cutting off your feet the moment you find out your a diabetic for fear of having to possibly amputate them later in life or waiting and seeing if that time ever comes??

We see all these posts of support on the forum when someone starts a thread about an out of state LEO who stands up for the 2A but when the same is done here its just lip service? Why can those be trusted but not ones in Cali? By your example we clearly can't trust those either since they don't push for any person to be able to buy full auto guns in Walmart. I just don't get it......

*cough**cough*
http://www.denverpost.com/breakingne...k-new-gun-laws

Also I don't have an AR, I have a Mini 14. Never got into the AR.

[sholling]

Originally Posted by ASTMedic

You talk as if I'm sitting here on my thumbs doing nothing to fight these proposed laws. Or that I should condemn my local LEO because these laws are being proposed in the legislature?

Hey you're the one that started in that LEOs won't be a problem if these laws are passed. Please tell that to the people that have been prosecuted for AWB violations and concealed carry violations. There are three types at fault here 1) the legislature and governor that pass laws that violate the rights of Americans, 2) LEOs looking for an easy felony or gun arrest to puff their performance review and don't give a darn about your rights or mine, 3) judges that let all of the above get away with trampling on the 2nd Amendment. I simply stated a fact and then you painted yourself into a corner because your local sheriff allows you to do what 99% of us can't - but the fact remains that it wouldn't be a bright idea to commit an AWB violation in his presence or the presence of his deputies.

[curtisfong]

Originally Posted by randian

I think the state court will end up saying more than that. Eventually, I believe they're going to rule that the circuit court is binding, but only on a case-by-case basis. In other words, pro-gun = not binding, anti-gun = binding.

If the circuit court isn't binding, then what's the point of having it? It would be an interesting case for SCOTUS. Are they willing to throw away their inferior court's authority and rule that they are in fact nonbinding?

Agreed 100% on both points.

[ASTMedic]

Originally Posted by sholling

Hey you're the one that started in that LEOs won't be a problem if these laws are passed. Please tell that to the people that have been prosecuted for AWB violations and concealed carry violations. There are three types at fault here 1) the legislature and governor that pass laws that violate the rights of Americans, 2) LEOs looking for an easy felony or gun arrest to puff their performance review and don't give a darn about your rights or mine, 3) judges that let all of the above get away with trampling on the 2nd Amendment. I simply stated a fact and then you painted yourself into a corner because your local sheriff allows you to do what 99% of us can't - but the fact remains that it wouldn't be a bright idea to commit an AWB violation in his presence or the presence of his deputies.

What I'm pointing out is that there are some on here that label EVERY LEO as being anti 2A just for being LEO and state they will support these proposed laws with out question. What I'm stating is that people need to stop making generalized statements like this. Not sure where you see me painting myself into a corner but that's you're interpretation to make.

Making it sound as if these LEO will just enforce these laws with out question is unfair and, as I linked above, not always the case.

Clearly people like this have no intention of seeing it the way I do so its at an impasse. I'll continue to do it my way and they can do it the way they want to. I'll let this thread get back on track now.

[kcbrown]

Originally Posted by ASTMedic

What I'm pointing out is that there are some on here that label EVERY LEO as being anti 2A just for being LEO and state they will support these proposed laws with out question. What I'm stating is that people need to stop making generalized statements like this. Not sure where you see me painting myself into a corner but that's you're interpretation to make.

There's being pro-2A in principle, and then there's being pro-2A in practice.

If the vast majority of LEOs were strongly pro-2A in practice, then the anti-2A laws would rarely have any teeth here in California.

What we know (or, at least, have been told fairly consistently) is that the vast majority of LEOs are pro-2A in principle, and that they're pro-2A in practice to the degree they believe they can be without making significant sacrifices.


However, we know that they'll enforce the laws even if they don't like them, at least when they believe they have no other reasonable choice, because they did that with open carry. Which is to say, even if the person carrying a firearm was legally doing so, LEOs would still make contact and perform an "e-check" on the person carrying, which is not something they were obligated to do as far as I know (corrections welcome). Most of those were done quite professionally, even when the carrier was rather belligerent, but not all of them.

Making it sound as if these LEO will just enforce these laws with out question is unfair and, as I linked above, not always the case.

It doesn't have to always be the case. It has to be the case with a high enough probability. And while the majority of LEOs may support the 2nd Amendment, I expect their beliefs about it are as wide ranging as that of the general population. Again, there's a big difference between being pro-2A in principle and being pro-2A in practice. The latter requires much stronger convictions in the face of an anti-2A political environment (especially when that environment includes the management you answer to).


With luck, we won't have to find out just how strong the average LEO's 2A convictions really are, because that is something we'll soon discover if the appropriate court cases don't get the appropriate traction.

[ASTMedic]

Originally Posted by kcbrown

There's being pro-2A in principle, and then there's being pro-2A in practice.

If the vast majority of LEOs were pro-2A in practice, then the anti-2A laws would rarely have any teeth here in California.

What we know (or, at least, have been told fairly consistently) is that the vast majority of LEOs are pro-2A in principle, and that they're pro-2A in practice to the degree they believe they can be without making significant sacrifices.


However, we know that they'll enforce the laws even if they don't like them, at least when they believe they have no other reasonable choice, because they did that with open carry. Which is to say, even if the person carrying a firearm was legally doing so, LEOs would still make contact and perform an "e-check" on the person carrying, which is not something they were obligated to do as far as I know (corrections welcome). Most of those were done quite professionally, even when the carrier was rather belligerent, but not all of them.





It doesn't have to always be the case. It has to be the case with a high enough probability. And while the majority of LEOs may support the 2nd Amendment, I expect their beliefs about it are as wide ranging as that of the general population. Again, there's a big difference between being pro-2A in principle and being pro-2A in practice. The latter requires much stronger convictions in the face of an anti-2A political environment.


With luck, we won't have to find out just how strong the average LEO's 2A convictions really are, because that is something we'll soon discover if the appropriate court cases don't get the appropriate traction.

Thanks for laying out an argument.

I agree that's there is a huge difference between words and actions, and yes we've yet to see if the will truly back up those words.

It just bugs me to see people cast out and write off LEO and military just because of the job they chose to do. I think it's truly selling those people short of what they are capable of. They may share the same feelings on the situation we do. I see no logical reason to draw lines before there is any reason to.

Sure they could also side with the laws passed and then that will change things.

We are going into uncharted territory if this all goes south. So really who knows what people are going to do.

[kcbrown]

Originally Posted by ASTMedic

Sure they could also side with the laws passed and then that will change things.

We are going into uncharted territory if this all goes south. So really who knows what people are going to do.

Agreed, although history is something of a guide here, and it is of no comfort. Historically, LEOs have been more than willing to enforce draconian laws, to round up, imprison, and even execute those who violated those draconian laws. Now, much of that history is from other countries and one might be tempted to disregard it because of that. I must urge great caution if one is tempted to do so, for both history and psychological experimentation (e.g., the Stanford prison experiment and the Milgram experiment) have shown that those who are tasked with imposing the will of a perceived superior upon others will go to quite significant lengths to do so.

As I've said elsewhere, it is no accident that tyranny has ruled the vast majority of the planet for the vast majority of recorded history, and it would be recklessness of the highest order to ignore that fact when considering what is likely to happen should the courts allow the government to pull us all into the dark abyss of tyranny. I do not make my predictions of where we are likely to be headed lightly.

[EM2]

Originally Posted by kcbrown

Agreed, although history is something of a guide here, and it is of no comfort. Historically, LEOs have been more than willing to enforce draconian laws, to round up, imprison, and even execute those who violated those draconian laws. Now, much of that history is from other countries and one might be tempted to disregard it because of that. I must urge great caution if one is tempted to do so, for both history and psychological experimentation (e.g., the Stanford prison experiment and the Milgram experiment) have shown that those who are tasked with imposing the will of a perceived superior upon others will go to quite significant lengths to do so.

As I've said elsewhere, it is no accident that tyranny has ruled the vast majority of the planet for the vast majority of recorded history, and it would be recklessness of the highest order to ignore that fact when considering what is likely to happen should the courts allow the government to pull us all into the dark abyss of tyranny. I do not make my predictions of where we are likely to be headed lightly.

Not so far from home as many would like to believe.

Japanese American internment


Ruby Ridge Idaho



Waco Texas



Gun confiscation after Katrina

[ASTMedic]

Originally Posted by kcbrown

Agreed, although history is something of a guide here, and it is of no comfort. Historically, LEOs have been more than willing to enforce draconian laws, to round up, imprison, and even execute those who violated those draconian laws. Now, much of that history is from other countries and one might be tempted to disregard it because of that. I must urge great caution if one is tempted to do so, for both history and psychological experimentation (e.g., the Stanford prison experiment and the Milgram experiment) have shown that those who are tasked with imposing the will of a perceived superior upon others will go to quite significant lengths to do so.

As I've said elsewhere, it is no accident that tyranny has ruled the vast majority of the planet for the vast majority of recorded history, and it would be recklessness of the highest order to ignore that fact when considering what is likely to happen should the courts allow the government to pull us all into the dark abyss of tyranny. I do not make my predictions of where we are likely to be headed lightly.

Again I fully agree. Those lessons are why I will keep a very close eye on them.

One question that I would ask (yet really has no answer) about our potential situations is since most LEO and military have family/close friends that are the very people they would have to turn on. Wouldn't that throw a bit of a wrench in the standard history model? Many of the times in history where these things have happened it was one class/race/etc pitted on another. In this case gun owners are tightly woven into the lives of these people that would be tasked to go after gun owners. Yes the people handing down these laws could/would find it easy but getting the people on the ground to follow through would be harder. However if people were willing to line up thousands and march them to their death the human mind clearly can be convinced of just about anything.

[prometa]

Originally Posted by randian

I think the state court will end up saying more than that. Eventually, I believe they're going to rule that the circuit court is binding, but only on a case-by-case basis. In other words, pro-gun = not binding, anti-gun = binding.

If the circuit court isn't binding, then what's the point of having it? It would be an interesting case for SCOTUS. Are they willing to throw away their inferior court's authority and rule that they are in fact nonbinding?

Actually, I find some appeal (no pun intended) in the IL court's argument. We've clearly established that the federal Supreme Court is superior to and binding on every state Supreme Court in the nation. On the other hand, federal appeals courts are relatively new and it is not clear they supersede state supreme courts.

The purpose of federal circuit courts, under that argument, is to take appeals from federal district courts and bind decisions against federal districts in the circuit.

When the 9th heard the prop 8 case, they asked the Supreme Court of CA to determine whether the proposition proponents had standing to appeal under CA law, so clearly there are some matters of law for which the circuit court is not binding or has no standing to bind a state court.

On the other hand, with incorporation of the amendments against the states, does the circuit court have authority to determine whether a state law is federally unconstitutional? For IL to thumb its nose at the 7th means that the precedent must be scant, though the typical presumption is that the circuit court ruling is binding on the state, and the issue at hand here is precisely an issue of federally constitutionality of a state law.

Although it may slow down the system, I prefer SCOTUS to be the sole superseding authority of state supreme courts, because that gives the most deference to states' rights. Matters of state law should not be appealable to circuits, in my perfect world.

[ddestruel]

Originally Posted by ASTMedic

Again I fully agree. Those lessons are why I will keep a very close eye on them.

One question that I would ask (yet really has no answer) about our potential situations is since most LEO and military have family/close friends that are the very people they would have to turn on. Wouldn't that throw a bit of a wrench in the standard history model? Many of the times in history where these things have happened it was one class/race/etc pitted on another. In this case gun owners are tightly woven into the lives of these people that would be tasked to go after gun owners. Yes the people handing down these laws could/would find it easy but getting the people on the ground to follow through would be harder. However if people were willing to line up thousands and march them to their death the human mind clearly can be convinced of just about anything.

I have a very dear friend helmar who i hunted with for years who disowned his brother in WWII in Czechoslovakia for that very reason. his brother became an Nazi trooper and Helmar joined the resistance and soon left the country to fight back against the nazis, after the war he moved to the US, he and most of his family have chosen to never associate with his brother again for the things that his brother did to family and friends. and alot had to do with confiscation of weapons and property upon the onset of the occupation.

It wasnt class or race it was survival for his brother who saw it as his duty after the training and indoctorination.


Its a shame that that generation is rapidly aging out and leaving a huge void in public knowledge of those sorts of experiences being passed on

[Gray Peterson]

Originally Posted by prometa

Actually, I find some appeal (no pun intended) in the IL court's argument. We've clearly established that the federal Supreme Court is superior to and binding on every state Supreme Court in the nation. On the other hand, federal appeals courts are relatively new and it is not clear they supersede state supreme courts.

The purpose of federal circuit courts, under that argument, is to take appeals from federal district courts and bind decisions against federal districts in the circuit.

When the 9th heard the prop 8 case, they asked the Supreme Court of CA to determine whether the proposition proponents had standing to appeal under CA law, so clearly there are some matters of law for which the circuit court is not binding or has no standing to bind a state court.

On the other hand, with incorporation of the amendments against the states, does the circuit court have authority to determine whether a state law is federally unconstitutional? For IL to thumb its nose at the 7th means that the precedent must be scant, though the typical presumption is that the circuit court ruling is binding on the state, and the issue at hand here is precisely an issue of federally constitutionality of a state law.

Although it may slow down the system, I prefer SCOTUS to be the sole superseding authority of state supreme courts, because that gives the most deference to states' rights. Matters of state law should not be appealable to circuits, in my perfect world.

I love how people aren't differentiating state judiciary and state enforcement.

[randian]

Originally Posted by prometa

Matters of state law should not be appealable to circuits, in my perfect world.

Then the anti-gun laws most of us hate would not be appealable at all, because you must appeal to a circuit court before getting to SCOTUS. You cannot go directly from state SC to fed SC. Besides, states pass blatantly unconstitutional law far too often for that not to be appealable.

[Shotgun Man]

Once we find out if cert has been granted, (hopefully, on Monday, 4/15/2013), let us start a new thread.

This thread has become unwieldy.

The pessimism discussion is ridiculous.

[Kharn]

Originally Posted by randian

Then the anti-gun laws most of us hate would not be appealable at all, because you must appeal to a circuit court before getting to SCOTUS. You cannot go directly from state SC to fed SC. Besides, states pass blatantly unconstitutional law far too often for that not to be appealable.

Uh, yes, you can.

[ASTMedic]

Originally Posted by ddestruel

I have a very dear friend helmar who i hunted with for years who disowned his brother in WWII in Czechoslovakia for that very reason. his brother became an Nazi trooper and Helmar joined the resistance and soon left the country to fight back against the nazis, after the war he moved to the US, he and most of his family have chosen to never associate with his brother again for the things that his brother did to family and friends. and alot had to do with confiscation of weapons and property upon the onset of the occupation.

It wasnt class or race it was survival for his brother who saw it as his duty after the training and indoctorination.


Its a shame that that generation is rapidly aging out and leaving a huge void in public knowledge of those sorts of experiences being passed on

Ya like I said the question already has an answer from history.

A lot of that statement is me hoping friends and family of mine wouldn't do that but I acknowledge the reality of human nature. As I've stated with the local sheriff I will still stand by those people who state they are for the 2A. I'll just keep a close eye on them.

[Southwest Chuck]

Originally Posted by randian

Then the anti-gun laws most of us hate would not be appealable at all, because you must appeal to a circuit court before getting to SCOTUS. You cannot go directly from state SC to fed SC. Besides, states pass blatantly unconstitutional law far too often for that not to be appealable.

Originally Posted by Kharn

Uh, yes, you can.

^^^ x's 2

[curtisfong]

Fat lot of good bypassing the appeals court is if your win in that court isn't binding due to some circuit court split argument...

What if there are NO other cases being appealed (out of a state SC to SCOTUS) that address the split?

[Kukuforguns]

The Constitution is the supreme law in the land. No court can apply any law in contravention of the Constitution. This means that all courts (State and Federal) have the jurisdiction and obligation to analyze and rule on the constitutionality of any law before the court. The U.S. Supreme Court is the ultimate arbiter of constitutional law. All other courts are bound by the rulings of the U.S. Supreme Court on the meaning of the Constitution.

Just as state courts are routinely asked to interpret Federal law, Federal courts are frequently required to apply state law. When Federal courts apply state law, the federal court has the jurisdiction and obligation to to analyze and rule on the application of any state law before the court. The supreme court of each state is the ultimate arbiter of the meaning of that state's laws (including state constitutions). All other courts (including the U.S. Supreme Court) are bound by the state supreme court's interpretation of a state law.

For the most part, there are three levels to both state and Federal courts: (1) trial courts; (2) appellate courts; and (3) supreme courts.

State trial courts are bound by decisions regarding state law made by the state appellate courts above them. Federal trial courts are bound by the decisions relating to Federal law made by Federal appellate courts above them.

Federal trial and appellate courts are not bound by decisions of state appellate courts on state issues (such decisions are persuasive and usually followed). Similarly, state trial and appellate courts are not bound by Federal appellate courts on issues of Federal/Constitutional law.

The U.S. Supreme Court considers, among other factors, whether there are inconsistent interpretations when deciding to hear a case. This includes whether state and Federal courts have reached inconsistent conclusions.

And most important, stop speculating until after Monday April 15.

[Kid Stanislaus]

Originally Posted by TeddyBallgame

...its almost like you can get away with murder now.....

Only if you wear a uniform with a police badge and drive a car with flashing lights on the roof and a big insignia on the door!

[Rickrock1]

Get it Got it. A big Thank you

[randian]

Originally Posted by Kharn

Uh, yes, you can.

Er, ok. Then why aren't pro-gun cases that get slapped down at state SC level (as NY's Court of Appeals loves to do) appealed directly to SCOTUS rather than the relevant federal circuit?