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National 2nd Amend. Political & Legal Discussion Discuss national gun rights and 2A related political topics here. All advice given is NOT legal counsel.

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  #121  
Old 02-20-2019, 11:51 AM
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Originally Posted by LVSox View Post
Extremely unlikely as a technical matter. Unless NJ amended its laws to eliminate the "justifiable need" requirement, that move would seemingly present a typical case of "likely to reoccur while evading review" that permits a court to consider a case that would otherwise be mooted.
Thank You.

Stuart
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  #122  
Old 02-20-2019, 6:11 PM
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It is not that unusual for the winner in the lower appellate court not to file a response to the petition for cert. at the US Supreme Court. There certainly is no direct prejudice to a party that decides not to oppose the peition at that stage and, I suspect, that has very little or no bearing on whether the Supreme Court decides to take the case. A party may not file an opposition brief to a petition for cert. for several reasons that may revolve around saving money and showing confidence in the lower court opinion. If you don't think there is much of a chance that cert will be granted, why spend the money opposing the petition. If you believe it will be granted, you could try to stop that by replying to the petition or just save your money and put it into your opposition once cert is granted. The reasons that cert. should or should not be granted may not have a lot to do with the real underlying issues - those issues will be briefed once cert is granted. For instance, there may be a perceived split between circuits or other issues that warrant an opposition but if the main argument is just that the lower court got the law wrong, then you may decide to wait and put your time and money into the brief after cert is granted. Given that nearly all petitions for cert. to the US Supreme Court are denied, the odds are greatly in the lower court winner's corner.

Last edited by gunuser17; 02-20-2019 at 6:14 PM..
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  #123  
Old 02-20-2019, 9:17 PM
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Originally Posted by gunuser17 View Post
It is not that unusual for the winner in the lower appellate court not to file a response to the petition for cert. at the US Supreme Court. There certainly is no direct prejudice to a party that decides not to oppose the peition at that stage and, I suspect, that has very little or no bearing on whether the Supreme Court decides to take the case. A party may not file an opposition brief to a petition for cert. for several reasons that may revolve around saving money and showing confidence in the lower court opinion. If you don't think there is much of a chance that cert will be granted, why spend the money opposing the petition. If you believe it will be granted, you could try to stop that by replying to the petition or just save your money and put it into your opposition once cert is granted. The reasons that cert. should or should not be granted may not have a lot to do with the real underlying issues - those issues will be briefed once cert is granted. For instance, there may be a perceived split between circuits or other issues that warrant an opposition but if the main argument is just that the lower court got the law wrong, then you may decide to wait and put your time and money into the brief after cert is granted. Given that nearly all petitions for cert. to the US Supreme Court are denied, the odds are greatly in the lower court winner's corner.
All of that is 100% true with respect to initially responding or not. It’s also 100% irrelevant once the Court requests a response, at which point there is a 100% chance that when the respondent is a state or federal government, it files a response. For all other respondents, it’s only about 99.9%.
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  #124  
Old 02-20-2019, 10:49 PM
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Originally Posted by gunuser17 View Post
It is not that unusual for the winner in the lower appellate court not to file a response to the petition for cert. at the US Supreme Court. There certainly is no direct prejudice to a party that decides not to oppose the peition at that stage and, I suspect, that has very little or no bearing on whether the Supreme Court decides to take the case. A party may not file an opposition brief to a petition for cert. for several reasons that may revolve around saving money and showing confidence in the lower court opinion. If you don't think there is much of a chance that cert will be granted, why spend the money opposing the petition. If you believe it will be granted, you could try to stop that by replying to the petition or just save your money and put it into your opposition once cert is granted. The reasons that cert. should or should not be granted may not have a lot to do with the real underlying issues - those issues will be briefed once cert is granted. For instance, there may be a perceived split between circuits or other issues that warrant an opposition but if the main argument is just that the lower court got the law wrong, then you may decide to wait and put your time and money into the brief after cert is granted. Given that nearly all petitions for cert. to the US Supreme Court are denied, the odds are greatly in the lower court winner's corner.
Sure it happens, but how often does it happen when there's an unavoidable circuit split in play?
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  #125  
Old 02-21-2019, 1:07 PM
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One study several years ago found that when the Supreme Court requests a response to a petition for cert, the likelihood of granting cert was 9 times greater than if no request was made. Unfortunately, where a request for a response was made, cert was still only granted in slightly less than 10% of those cases. Also, as I believe is still the case, all is takes is for one Justice to request a response for the Clerk to enter the order calling for the response. http://www.georgemasonlawreview.org/...2_Wachtell.pdf
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  #126  
Old 02-21-2019, 2:17 PM
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Originally Posted by gunuser17 View Post
One study several years ago found that when the Supreme Court requests a response to a petition for cert, the likelihood of granting cert was 9 times greater than if no request was made. Unfortunately, where a request for a response was made, cert was still only granted in slightly less than 10% of those cases. Also, as I believe is still the case, all is takes is for one Justice to request a response for the Clerk to enter the order calling for the response. http://www.georgemasonlawreview.org/...2_Wachtell.pdf
But almost 17% in paid cases, such as this one.
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  #127  
Old 02-25-2019, 7:35 AM
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So, how does this work?
2/6 - distributed for conference of 2/22
2/19 - response requested due 3/21

The response is due after the conference.
Will the conference be delayed? Will it just keep getting realisted? Will they just decide without the response?
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  #128  
Old 02-25-2019, 7:54 AM
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Originally Posted by LVSox View Post
But almost 17% in paid cases, such as this one.
Well, with Kennedy out and Kavanaugh in, we do know they have the votes needed for cert.
So, I think it’s more a question of “is this the right vehicle” and “are they willing to take 2 gun control cases at the same time”.
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  #129  
Old 02-25-2019, 8:06 AM
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Originally Posted by Phiremin View Post
So, how does this work?
2/6 - distributed for conference of 2/22
2/19 - response requested due 3/21

The response is due after the conference.
Will the conference be delayed? Will it just keep getting realisted? Will they just decide without the response?
I think they can either relist or hold. We may not see any updates or even a relist until after the response is received.
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  #130  
Old 02-25-2019, 11:18 AM
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Rogers is not listed on the Court's list of orders issued in connection with the 2/22 conference (ie, it was neither denied nor relisted). I have not been able to find the Court's procedures regarding Calls for Response, but it appears that Rogers will be recirculated for a future conference after the response is filed.
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  #131  
Old 02-25-2019, 12:09 PM
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Quote:
Originally Posted by Phiremin View Post
So, how does this work?
2/6 - distributed for conference of 2/22
2/19 - response requested due 3/21

The response is due after the conference.
Will the conference be delayed? Will it just keep getting realisted? Will they just decide without the response?
I am assuming SCOTUS won't do anything with it until a conference sometime after the Response is received, so unless they file it early, we've got 3 1/2 weeks of waiting. My guess is between 2/6 (when they posted it was to be discussed on the 2/22) and 2/19 (when they requested the Response), they looked it over briefly, realized they want to have a Response before deciding re. cert and so requested it. I assume the 2/22 date for conference was cancelled when they asked for a Response. The initial conference date will be rescheduled later.
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Last edited by Paladin; 02-25-2019 at 12:16 PM..
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  #132  
Old 02-25-2019, 3:21 PM
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FIFY. :P

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Originally Posted by Paladin View Post
I am assuming SCOTUS won't do anything with it until a conference sometime after the Response is received, so unless they file it early, we've got 3 1/2 weeks of waiting. My guess is between 2/6 (when they posted it was to be discussed on the 2/22) and 2/19 (when they requested the Response), they looked it over briefly, realized they want to have a Response before DENYING re. cert and so requested it. I assume the 2/22 date for conference was cancelled when they asked for a Response. The initial conference date will be rescheduled later.
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  #133  
Old 02-25-2019, 9:40 PM
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Originally Posted by Phiremin View Post
So, how does this work?
2/6 - distributed for conference of 2/22
2/19 - response requested due 3/21

The response is due after the conference.
Will the conference be delayed? Will it just keep getting realisted? Will they just decide without the response?
When a response is requested, the initial conference date is mooted.

Assuming the State doesn’t request an extension and files its response on March 21, the reply brief will be filed on or around April 4, and the case file will be distributed on April 10 for consideration at the April 26 conference.
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  #134  
Old 03-07-2019, 9:02 PM
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Feb 19 2019 Response Requested. (Due March 21, 2019)
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  #135  
Old 03-12-2019, 8:07 PM
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So much for that....

The state wants a 30 day extension until April 19 to submit Response.

Quote:
Mar 12 2019 Letter Request for Extension of Gurbir Grewal, et al. submitted.
From: https://www.supremecourt.gov/search....ic/18-824.html

Letter Request at:
https://www.supremecourt.gov/DocketP...%203-12-19.pdf
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  #136  
Old 03-18-2019, 10:21 AM
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The request for extension is granted. The state's response is due to be filed on April 19:

Quote:
Mar 15 2019
Motion to extend the time to file a response is granted and the time is extended to and including April 19, 2019, for all respondents.
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  #137  
Old 05-03-2019, 9:35 AM
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https://www.supremecourt.gov/DocketP...t.%20Reply.pdf

Rogers' reply is in so briefing is complete. No conference date has been set as of yet but it should be soon; that is, unless SCOTUS decides to hold this until NYSRPA has been decided.
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  #138  
Old 05-07-2019, 9:44 AM
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Distributed for conference of 5/23/2019.

Best case, of course, they take the case.
A not so bad outcome would be a quick denial with no comment as this would suggest they are looking at a broad outcome in NYSRPA v NYC.
Worst case is a bunch of re-listings a dissent from denial, as it would say SCOTUS isn’t going to clarify a right to carry unless we get another conservative justice.
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  #139  
Old 05-07-2019, 11:01 AM
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Originally Posted by Phiremin View Post
Distributed for conference of 5/23/2019.

Best case, of course, they take the case.
A not so bad outcome would be a quick denial with no comment as this would suggest they are looking at a broad outcome in NYSRPA v NYC.
Worst case is a bunch of re-listings a dissent from denial, as it would say SCOTUS isn’t going to clarify a right to carry unless we get another conservative justice.
The rule of 4. https://en.wikipedia.org/wiki/Rule_of_four There are 5 Republican appointees to the S.Ct., who will purportedly vote for certiorari and rule in favor of broad armament.

Last edited by sarabellum; 05-07-2019 at 11:04 AM..
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  #140  
Old 05-07-2019, 11:34 AM
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Originally Posted by Phiremin View Post
Distributed for conference of 5/23/2019.
The first day for orders after the 23rd is the 28th, at ~6:30 - 6:45 am our time.

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  #141  
Old 05-07-2019, 12:31 PM
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Originally Posted by sarabellum View Post
The rule of 4. https://en.wikipedia.org/wiki/Rule_of_four There are 5 Republican appointees to the S.Ct., who will purportedly vote for certiorari and rule in favor of broad armament.
Yes, 4 for cert, but 5 needed for a majority opinion.
There have been 5 republican appointees for years, but no 2A cases taken. This suggests both Roberts and Kennedy were “no’s”. Many have argued that these were “strategic denials” meant to protect the 2A if Kennedy joined with the liberals, but I don’t buy that. The impassioned dissents from denial we have seen suggest to me that we simply couldn’t get to 4 votes.
So, while they have 4 votes today for cert, it’s not totally clear they have a 5th vote for a majority opinion on anything really “disruptive” like “must issue carry”.
I think Roberts is only willing to go so far.
I guess we’ll soon find out.

Last edited by Phiremin; 05-07-2019 at 12:34 PM..
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  #142  
Old 05-07-2019, 5:00 PM
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Originally Posted by Phiremin View Post
Yes, 4 for cert, but 5 needed for a majority opinion.
There have been 5 republican appointees for years, but no 2A cases taken. This suggests both Roberts and Kennedy were “no’s”. Many have argued that these were “strategic denials” meant to protect the 2A if Kennedy joined with the liberals, but I don’t buy that. The impassioned dissents from denial we have seen suggest to me that we simply couldn’t get to 4 votes.
So, while they have 4 votes today for cert, it’s not totally clear they have a 5th vote for a majority opinion on anything really “disruptive” like “must issue carry”.
I think Roberts is only willing to go so far.
I guess we’ll soon find out.
That is a good insight and cause for skepticism.
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  #143  
Old 05-09-2019, 6:52 PM
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I think this case will get held similar to the Pena case, and the Mance case. I'm very curios to see what happens.
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  #144  
Old 05-20-2019, 9:59 AM
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The first day for orders after the 23rd is the 28th, at ~6:30 - 6:45 am our time.

1 week to go!

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  #145  
Old 05-22-2019, 5:00 AM
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1 week to go!

If it gets held we should know earlier then that. It just won't get relisted, or basically nothing will happen. It will go into limbo land.
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  #146  
Old 05-22-2019, 10:48 PM
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Originally Posted by Phiremin View Post
Distributed for conference of 5/23/2019.
Anyone have any spies among the SCOTUS clerks?

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  #147  
Old 05-23-2019, 1:16 PM
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Anyone have any spies among the SCOTUS clerks?

Unlike the rest of DC, Scotus doesn't leak.
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  #148  
Old 05-23-2019, 1:31 PM
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Unlike the rest of DC, Scotus doesn't leak.

Except Ruth, but she wears a diaper


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  #149  
Old 05-23-2019, 1:46 PM
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Remember its NJ so say serious prayer for success...

Lord have mercy!
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  #150  
Old 05-27-2019, 9:21 PM
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The first day for orders after the 23rd is the 28th, at ~6:30 - 6:45 am our time.

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  #151  
Old 05-28-2019, 4:41 AM
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Nothing yet .. I expect no changes, just limbo.

https://www.supremecourt.gov/search....ic/18-824.html
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  #152  
Old 05-28-2019, 5:37 AM
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Not on today's orders list. Give a few days to see if it gets relisted.
My bet is it'll sit for NYSRPA.
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  #153  
Old 05-28-2019, 7:25 AM
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Not on today's orders list. Give a few days to see if it gets relisted.
My bet is it'll sit for NYSRPA.
Looks like it’s being re-listed.
I’m actually mildly surprised. I would have expected a quick denial with NYSRPC on deck.
Of course, the best outcome is they take the case.
The worst outcome (and the outcome we often see with right to carry cases) would be endless re-lists followed by a dissent from denial. This would signal the court is still not ready to support gun rights in any meaningful way and Roberts has basically flipped.
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  #154  
Old 05-28-2019, 1:19 PM
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Looks like it’s being re-listed.
I’m actually mildly surprised. I would have expected a quick denial with NYSRPC on deck.
Of course, the best outcome is they take the case.
The worst outcome (and the outcome we often see with right to carry cases) would be endless re-lists followed by a dissent from denial. This would signal the court is still not ready to support gun rights in any meaningful way and Roberts has basically flipped.
I see the most likely outcome that this case will not be relisted and will be remanded after NYSRPA is handed down.
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  #155  
Old 05-28-2019, 1:54 PM
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^^^ Yup. I expect all 2A cases to hit cert petition will be held in limbo, pending NYSRPA. IMHO, it's not even worth tracking them anymore. NYSRPA's the current bottle-neck, and once it breaches, it'll be a flood of remands under new, pro-2A levels of scrutiny.
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  #156  
Old 05-28-2019, 2:49 PM
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^^^ Yup. I expect all 2A cases to hit cert petition will be held in limbo, pending NYSRPA. IMHO, it's not even worth tracking them anymore. NYSRPA's the current bottle-neck, and once it breaches, it'll be a flood of remands under new, pro-2A levels of scrutiny.
And then Young v. Hawaii will finally start moving again (with the en banc panel that was chosen before the 4 newest 9th Circuit judges were on the bench).
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Old 05-28-2019, 3:51 PM
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If NYSRPA wasn't going to clarify scrutiny, I would expect SCOTUS to deny Rogers. I also think if New York overturning their law was going to keep this out of SCOTUS, then the court wouldn't be holding Rogers and other cases. Overall this is a good sign.
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Old 05-29-2019, 6:48 AM
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^^^ Yup. I expect all 2A cases to hit cert petition will be held in limbo, pending NYSRPA. IMHO, it's not even worth tracking them anymore. NYSRPA's the current bottle-neck, and once it breaches, it'll be a flood of remands under new, pro-2A levels of scrutiny.
I’m not sure they would do that.
We are probably a year away from a decision in NYSRPA. I don’t think the court would want to “signal” a potential outcome as it wants to maintain the appearance of impartiality. Also, at least in a case like Rodgers, it’s not really all that unique.
If the court intends to wait for NYSRPA, the easiest things to do is just deny cert and say nothing.
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  #159  
Old 05-29-2019, 8:23 AM
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I’m not sure they would do that.
[...]
If the court intends to wait for NYSRPA, the easiest things to do is just deny cert and say nothing.
Pena is already being held (as well as one other, I thought). And it's been held in limbo for over a month. So yes, they would do that.
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Old 05-29-2019, 5:19 PM
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Quote:
Originally Posted by tenemae View Post
Pena is already being held (as well as one other, I thought). And it's been held in limbo for over a month. So yes, they would do that.
Pena , Mance, and now Rogers .. It's speculation but it does seems to me they are signalling something.. Thay have not taken cases on 2A in a long time, and now they have one in the pipe, and 3 in the mag.

I don't see it as reasonable that they would hold Rogers, and intend to deny cert (same with Pena, and Mance). It is the four horsemen of the coming anti-gun apocalypse.

Last edited by abinsinia; 05-29-2019 at 6:57 PM..
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