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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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  #4161  
Old 02-23-2018, 2:38 PM
ojisan ojisan is offline
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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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  #4162  
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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  #4163  
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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  #4164  
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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  #4165  
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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  #4166  
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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  #4167  
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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  #4168  
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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  #4169  
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.

Last edited by kcbrown; 02-23-2018 at 11:02 PM..
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  #4170  
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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  #4171  
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 real world laughs at optimism. And here's why.

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  #4172  
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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  #4174  
Old 02-24-2018, 10:40 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.
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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Old 02-25-2018, 8:20 AM
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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".
What you describe here with "choice" is practically the definition of "living constitution" paradigm - an outcome-based application of legal theory in order to reach the predetermined conclusion about constitutionality.

Even FGG's warnings about all these cases not being suitable for the current courts implicitly endorses the concept of "left leaning courts that need to be coerced into making non-ideological decisions." In other words, if there needs to be a warning about how the courts will weasel out of making the most logical decision, then the warning itself represents a much more serious indictment of the current state of our judicial system.
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Old 02-25-2018, 9:13 AM
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Even FGG's warnings about all these cases not being suitable for the current courts implicitly endorses the concept of "left leaning courts that need to be coerced into making non-ideological decisions." In other words, if there needs to be a warning about how the courts will weasel out of making the most logical decision, then the warning itself represents a much more serious indictment of the current state of our judicial system.
Iíll admit I may be suffering from a recency bias, but can someone remind me, notwithstanding decisions that were later overturned en banc, has the Ninth Circuit ever returned a decision that was favorable of the second amendment?
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Old 02-25-2018, 12:09 PM
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Iíll admit I may be suffering from a recency bias, but can someone remind me, notwithstanding decisions that were later overturned en banc, has the Ninth Circuit ever returned a decision that was favorable of the second amendment?
With respect to the 2nd Amendment specifically? Not that I'm aware of.
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Old 02-25-2018, 6:34 PM
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Iíll admit I may be suffering from a recency bias, but can someone remind me, notwithstanding decisions that were later overturned en banc, has the Ninth Circuit ever returned a decision that was favorable of the second amendment?
Tough question. I don't remember all the cases, but Nordyke got very close. To begin with, the 9th circuit decided that the 2A was incorporated against the states, even before McDonald! That was very shocking, and considered a great victory on gun rights. Then, when the supreme court heard McDonald, I think Nordyke got delayed by a year or so, while the Ninth Circuit waited for the supreme court: which eventually got to the same answer on incorporation. In the very last en-banc hearing, the county knew that it was going to lose, so they conceded that gun shows could be held with guns present on county property. That mooted the case. I think Nordyke was a victory for gun rights, but since the case got pulled apart at the last minute, the Nordykes and Don Kilmer were not considered "prevailing party".

I think the reason Nordyke got somewhere was that the parties litigating it (the Nordykes, and the county) were reasonable and goal-oriented, and were represented by excellent attorneys. The Nordykes were trying to preserve their gun-show business, and were rightly worried that if the local government entities that own locations such as fairgrounds can arbitrarily shut gun shows down, their business would fail. But I don't think they were litigating it to prove a point or to further gun rights; the litigation for them was a smart business investment. On the other side, the county wanted to keep guns out of X (for all values of X); and when it saw that continuing the suit would hurt rather than help, they smartly folded (certainly on the advice of their attorneys); it was bad enough for them that they caused the 2A to become incorporated. Contrast this with the laughably bad lawyering that has been demonstrated in the recent gun rights cases in California. The pinnacle of that was the CGF case that was filed by an attorney who had recently lost his license, and then on appeal the new attorneys had to spend all their effort on correcting his mis-statements.

The other crucial difference in Nordyke compared to the long string of gun rights losses: The pro-gun side (in this case TS trade shows = the Nordykes) was interesting in winning. Remember, this was mostly the Nordyke's case; gun rights organizations played a minor part in it, and the CGF was not involved. Most of the gun rights cases today are not interested in winning; they are interested in grandstanding, and they deliberately accept a high chance of losing. That's because to an organization like the CRPA, CGF or SAF a loss in court is actually a good thing: it increases the donations from the community, since the loss is spun as the fight being very hard.
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Old 02-25-2018, 6:57 PM
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Am I the only one who searches just for FGG’s posts in these threads, haha!!

Over the years, he’s called it right over and over. He’d be a great resource...if only the CGF would stop and listen to him, haha!!
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Old 02-25-2018, 7:12 PM
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Over the years, heís called it right over and over. Heíd be a great resource...if only the CGF would stop and listen to him, haha!!
I'm sure you remember the discussion between FGG and hoffmang (the "manager of lawyers"), where hoffmang first tried to get FGG to help with CGF cases. When FGG declined, hoffmang tried to get FGG in trouble with FGG's employer. Except that hoffmang hadn't bothered to figure out who FGG is in real life, and picked the wrong law firm (CDM) to complain to. After that exchange, it seems unlikely that FGG will be working with the CGF, as currently constituted.
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Old 02-25-2018, 9:12 PM
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I'm sure you remember the discussion between FGG and hoffmang (the "manager of lawyers"), where hoffmang first tried to get FGG to help with CGF cases. When FGG declined, hoffmang tried to get FGG in trouble with FGG's employer. Except that hoffmang hadn't bothered to figure out who FGG is in real life, and picked the wrong law firm (CDM) to complain to. After that exchange, it seems unlikely that FGG will be working with the CGF, as currently constituted.
No, I do not recall ever seeing such a discussion. But I have no problem with FGG declining representation. If your client is not going to follow your advise, it is probably best not to have that person as a client. Also, while the goals of the litigation are the province of the client, the strategy remains the province of the attorney. And while the attorney may agree with the goals, he or she should not let that overrule the attorney's judgment to decide the proper strategy.
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Old 02-26-2018, 11:16 AM
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I'm sure you remember the discussion between FGG and hoffmang (the "manager of lawyers"), where hoffmang first tried to get FGG to help with CGF cases. When FGG declined, hoffmang tried to get FGG in trouble with FGG's employer. Except that hoffmang hadn't bothered to figure out who FGG is in real life, and picked the wrong law firm (CDM) to complain to. After that exchange, it seems unlikely that FGG will be working with the CGF, as currently constituted.
If you've got a link to that discussion, I'd love to read it. Might be quite entertaining.

I hadn't heard anything about the bit about Gene attempting to get FGG in trouble with his employer. Is that discussed anywhere? I'd love to read that, too.
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Old 02-26-2018, 12:30 PM
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I remember.
I so hate to see the in-fighting in our pro-2A groups.
There are many strong personalities who clash needlessly, and this is how it has been as long as I can remember (which is quite a while now).
If only all the groups could get together for a pow-wow and pursue the various issues in a coordinated effort.
The we would only be up against the courts, instead of each other.
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Old 02-26-2018, 12:49 PM
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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.

Now you are getting it. And if you think the Supreme Court is any different, you are a fool.
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Old 02-26-2018, 1:19 PM
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Now you are getting it. And if you think the Supreme Court is any different, you are a fool.
I don't think the Supreme Court is any different in "kind", only perhaps in degree. I've been arguing that the Supreme Court is political for quite some time, and it has been political for at least 150 years.

Honestly, how can anyone possibly think it would be otherwise, when all of the federal court judges get there as a result of being nominated by politicians whose aim is to have their pet laws upheld by the courts?
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Old 02-26-2018, 2:44 PM
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So now that the 9th's ruling on this issue is still standing, there is nothing to prevent it from being used to further the idea that only 1 gun (insert type) + 1 bullet = a right still being exercised?

And you think this is okay?

I think you are misunderstanding FGG's statement. I don't see that he is for nor against what the court is saying. It seems to me that he finds these rulings entirely predictable, based on how the courts view the 2nd Amendment. It's quite obvious, by now, that the courts do not view the 2nd Amendment as a particularly strong right. They are more than happy to limit the right, based on public opinion or the vague "public security" nonsense. So far, he has been right far more often than he is wrong.
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Old 02-26-2018, 3:44 PM
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It seems to me that he finds these rulings entirely predictable, based on how the courts view the 2nd Amendment. It's quite obvious, by now, that the courts do not view the 2nd Amendment as a particularly strong right.
He also finds the "how the courts view the 2nd Amendment" to be a pragmatic, rather than political issue. In other words, to him it's supported in legal theory.

KC has about the same predictive power and uses a much simpler model that simply says: "courts don't like 2A."

Both happened to be right quite a bit for quite a long time. FGG doesn't like KC's model, though. It undermines his field.
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Old 02-26-2018, 4:08 PM
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He also finds the "how the courts view the 2nd Amendment" to be a pragmatic, rather than political issue. In other words, to him it's supported in legal theory.

KC has about the same predictive power and uses a much simpler model that simply says: "courts don't like 2A."

Both happened to be right quite a bit for quite a long time. FGG doesn't like KC's model, though. It undermines his field.
I get that part. Either way, we are losing. Doesn't really matter which "model" applies. The courts have decided as long as we have something, it satisfies the right and I doubt that will change any time soon.
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Old 02-26-2018, 5:28 PM
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He also finds the "how the courts view the 2nd Amendment" to be a pragmatic, rather than political issue. In other words, to him it's supported in legal theory.

KC has about the same predictive power and uses a much simpler model that simply says: "courts don't like 2A."

Both happened to be right quite a bit for quite a long time. FGG doesn't like KC's model, though. It undermines his field.
It's worse than that. FGG's view is demonstrably wrong as a complete explanation. If it were complete, then there would be no substantial statistical difference between the judges' support of the right on the basis of nominating political party -- the support would statistically be roughly the same.

But it's not. It's massively different. My model is a little more complicated than merely that courts don't like the 2nd Amendment. It says that individual judges don't like the 2nd Amendment, and that there is a strong correlation (which turns out to be near certainty as regards Democrat-nominated judges) between the nominating party of the judge and the degree of support of the right on the part of that judge. When you throw multiple judges into the mix, the combination you get will greatly bear on the outcome. And finally, it posits a causal relationship between the nominating party and the judge's performance. That causal relationship is based on the notion that politicians will nominate judges for the purpose of upholding their pet laws. There is a chain of (statistical) causality that starts with the way judges are nominated and ends with the decisions that those judges make on the bench.

FGG's "pragmatic" view would, if it were a complete explanation, predict that there is no statistical relationship between the outcomes generated by the courts and the nominating party of who sits on the bench. But that relationship is there, even if it is not a certain one. If it weren't, then we would have lost Wrenn, Ezell, and Moore for exactly the same reasons that we've lost all the others, and Peruta would have been lost at the panel level rather than at the en banc level. His "pragmatic" approach may explain what "reasoning" judges will use to squash the right to arms when they choose to do so. But it does nothing to tell us whether they will choose to use that "reasoning" in the first place.
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Old 02-26-2018, 5:42 PM
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I get that part. Either way, we are losing. Doesn't really matter which "model" applies. The courts have decided as long as we have something, it satisfies the right and I doubt that will change any time soon.
Yes, it does matter which "model" applies. The models are predictive and posit a cause behind the results. It is mandatory to understand the nature of the actual cause before any changes can be made to change the outcome. Fail to identify the actual cause and you'll change the wrong thing, which will likely have no effect or, worse, actually make things worse.

If the "model" I propose is correct, then the way to change the outcome is by ensuring that "activist" judges that support the 2nd Amendment are nominated to the bench (they need to be "activist" judges because they need to be willing to overturn precedent in order to support the 2nd Amendment), most especially the Supreme Court.

The thing is, we already know that. The "model" I'm using shows why we know that. When all is said and done, anyone who disagrees with my "model" must also fundamentally disagree with the notion that "elections have consequences" as regards judicial outcomes. The two are inextricably linked.
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Old 02-26-2018, 10:08 PM
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If you've got a link to that discussion, I'd love to read it. Might be quite entertaining.
It's spread over multiple threads. For several months, hoffmang was seriously stalking FGG. Finding it all would be a lot of work; FGG seems to have about 3000 posts here, and hoffmang has way more. It would take a few hours of detective work. If I find a spare evening sometime, I'll dig around, but don't hold your breath waiting for it, unless you enjoy turning blue.
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Old 02-26-2018, 11:24 PM
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It's spread over multiple threads. For several months, hoffmang was seriously stalking FGG. Finding it all would be a lot of work; FGG seems to have about 3000 posts here, and hoffmang has way more. It would take a few hours of detective work. If I find a spare evening sometime, I'll dig around, but don't hold your breath waiting for it, unless you enjoy turning blue.

That sounds like it's more trouble than it's worth. No worries. It's interesting, and more than a little troubling (Gene's always been full of hubris, but this here is on an entirely different level altogether), to hear that it happened at all.
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Old 02-27-2018, 6:49 AM
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Yes, it does matter which "model" applies. The models are predictive and posit a cause behind the results. It is mandatory to understand the nature of the actual cause before any changes can be made to change the outcome. Fail to identify the actual cause and you'll change the wrong thing, which will likely have no effect or, worse, actually make things worse.
Absolutely. The bulk of the Ninth Circuit dislikes the second amendment enough that they will very likely overturn any victory we might get if we happen to draw two or more republican judges. So any case brought forward has to be done so under the assumption that it is, in no uncertain terms, going to lose in the Ninth.

The Supreme Court doesnít like lower courtsí disobedience, but they are still somewhat ďends orientedĒ so their willingness to hear a case is a function of whether they give a crap about the plaintiffís situation.

So how do we win? Craft a case to get as pathetic a plaintiff as possible to lose as ridiculously and in defiance of SCOTUS precedence as possible in the Ninth, and petition for cert.
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Old 02-27-2018, 8:01 AM
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Yes, it does matter which "model" applies. The models are predictive and posit a cause behind the results. It is mandatory to understand the nature of the actual cause before any changes can be made to change the outcome. Fail to identify the actual cause and you'll change the wrong thing, which will likely have no effect or, worse, actually make things worse.
We know what the cause is. We know that judges are anti gun and will do what ever it takes to rule against us. We also know that gun rights are not held in high regard. Access to any firearm will legally satisfy the right. It doesnít matter how bad someone wants a new Glock. The on roster Glock still works just fine. Having access to any on roster handgun will legally satisfy the right. If you want to take down the handgun roster, we have to wait until every single model on the roster is removed. McDonald didnít win by asking for a certain handgun. He won by asking for any handgun.

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If the "model" I propose is correct, then the way to change the outcome is by ensuring that "activist" judges that support the 2nd Amendment are nominated to the bench (they need to be "activist" judges because they need to be willing to overturn precedent in order to support the 2nd Amendment), most especially the Supreme Court.
Thatís one way, yes. We also have to understand that gun rights are not viewed the same as gay rights or black civil rights. Even a neutral judge will probably not see banning magazines over 10 rounds as an infringement, because we have access to 10 round mags, and that satisfies the right.

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The thing is, we already know that. The "model" I'm using shows why we know that. When all is said and done, anyone who disagrees with my "model" must also fundamentally disagree with the notion that "elections have consequences" as regards judicial outcomes. The two are inextricably linked.
I donít disagree with you that elections have consequences. I disagree that those consequences are the only roadblock to fully fleshed out gun rights.
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Old 02-27-2018, 3:58 PM
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We know what the cause is. We know that judges are anti gun and will do what ever it takes to rule against us.
Not all are, but enough are, and those that are have proven themselves to be willing to dispense with all precedent, logic, etc., in order to impose their own views onto the fabric of law.


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We also know that gun rights are not held in high regard. Access to any firearm will legally satisfy the right.
For the anti-gun judges, it's worse than that. Since "may issue" permits for carry are sufficient in their eyes to "satisfy the right", obviously "may issue" permits for ownership are also going to be acceptable, and on exactly the same basis. It is only because there isn't a current locality with such a law that we haven't seen such a decision yet. But with the way California and the other anti-right-to-life areas are going, we almost certainly will.


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That’s one way, yes. We also have to understand that gun rights are not viewed the same as gay rights or black civil rights. Even a neutral judge will probably not see banning magazines over 10 rounds as an infringement, because we have access to 10 round mags, and that satisfies the right.
I would argue that such a judge is not a "neutral" judge, because such a judge would not insist that the availability of pen and paper is sufficient to "satisfy the right" and, therefore, computer-based communications can legitimately be forbidden. Likewise, such a judge would recoil in horror at a law which limited the amount of ink one could possess in a pen to no more than that which is sufficient to write 10 pages of text with.

Put another way, a judge is not neutral if the judge would treat the right to arms with any more deference to the government than he would treat the right to speech.


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I don’t disagree with you that elections have consequences. I disagree that those consequences are the only roadblock to fully fleshed out gun rights.
What other roadblocks exist aside from the judicial system?

Remember that a right isn't really a right unless it can be exercised despite the wishes of the government. If it requires legislation in order to secure a right, then you don't really (at least in practice) have a right on your hands, because legislation is one of the very types of things the right is supposed to be operative against in the first place.

The only branch of government that can secure a right against the government at large (i.e., to make the right a real right) is the judiciary. We're in the mess we're in because the judiciary is formed of people who were nominated by the very people who wish to impose restrictions upon the citizenry in the first place. The judiciary today is a government law rubber stamping machine more than anything else. Frankly, with the way it operates today, we may as well dispense with it altogether for all the good the judiciary has done the citizenry in recent times.
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Old 02-27-2018, 4:54 PM
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For the anti-gun judges, it's worse than that. Since "may issue" permits for carry are sufficient in their eyes to "satisfy the right", obviously "may issue" permits for ownership are also going to be acceptable, and on exactly the same basis.
I don't understand that statement ??

We will never have a "may have/purchase" law to be challenged . It's pretty clear to me any law will be a ban on semi auto center fire rifles with detachable magazines . I doubt very much there is going to be a "may" buy an AR law . so no judge will ever make the decision that may buy is constitutional .
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Old 02-27-2018, 5:45 PM
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I don't understand that statement ??

We will never have a "may have/purchase" law to be challenged . It's pretty clear to me any law will be a ban on semi auto center fire rifles with detachable magazines . I doubt very much there is going to be a "may" buy an AR law . so no judge will ever make the decision that may buy is constitutional .
You may think we won't have such a law to challenge, but I assure you, if the opposition believes that there's even a chance they can get away with such a law, they'll attempt it. They lose nothing by the attempt, which makes it only a matter of time. And I'm not talking about a "may issue" permit to acquire certain types of arms, such as semiautomatic weapons, but rather one to acquire a firearm at all.

For instance, New York City requires that one obtain a permit to merely own a firearm. There are a couple of types of permits, one of which is "premises only". That permit is "shall issue" in nature right now, while the permits that have fewer restrictions on them (which include carry permits) are "may issue". The 2nd Circuit has upheld NYC's restrictions that demand that you cannot even transport your "premises only" weapon between two of your own homes. Read: http://ij.org/wp-content/uploads/2018/02/15-638_opn.pdf

Suppose, then, that one had to supply "good cause" in order to even acquire a permit to own a firearm. As I recall, the law in Heller wasn't such a law -- it was crafted in such a way that there was no discretion to issue, making it a total ban, and the Heller court thus treated it as such. But all of the lower courts, save for the DC appellate court, have ultimately upheld carry prohibitions that demand that one supply "good cause" in order to carry a firearm, which means it's not a stretch in the slightest to expect them to do the same for "may issue" ownership permits.

It's not much of a stretch to imagine that being extended to firearm ownership. That is precisely what I anticipate will happen, and the Supreme Court with its current composition will ignore it, just as it has all others, as long as the legal "reasoning" used by the lower courts to uphold it matches that which they have used to uphold "may issue" carry permits.


My point here is that the same judges that are willing to claim that "may issue" will "satisfy" the right to carry will likely also make the same claim with respect to "may issue" ownership permits. The legal justification ("not a total ban" because it's "available to some" means they can use "intermediate scrutiny", "public safety" means the burden is shifted to the plaintiffs, and "courts aren't in the business of weighing evidence" means the court will defer to the legislature's "weighing of the evidence") is identical.
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Old 02-28-2018, 7:45 AM
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I wish I could disagree with you completely but I can't . As much as I don't see that happening any time soon if ever . It would be silly of me to ignore the fact it could happen some day . Especially with all the young kids now becoming a champion for anti gun laws . It won't be long before they all can vote and that's not even addressing how corrupt are higher education system has become . 25 years from now this nation may look very different including it's bill of rights once all these brain washed youngsters have the power .
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Old 02-28-2018, 8:11 AM
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I thought this case was now over? What could anyone possibly be jabbering about?
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