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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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  #1041  
Old 02-14-2019, 7:00 PM
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If I am reading the en banc process right the Ninth did more than that. This week is the week where the en banc court decided the Young 11 judge panel. That is now locked in if I am right. Now the 5 trump appointees will not be part of the random en banc draw because that draw has already happened. So when Young is unstayed we will be left with a unfavorable left leaning panel. This is unfair both to Mr. Young and to the entire Circuit. As you mentioned the transport case is not even on point to deal with carry so it is unclear how that case deserves a sua sponte stay. The worst part is the parties were not allowed to submit their positions on this issue.
With recent events in Young v Hawaii. Seems like an appropriate time to repost #962 of this thread.

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  #1042  
Old 02-14-2019, 7:47 PM
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As far as I know there is no required maximum amount of time between the announcement of the SCOTUS decision in NYSRPA and the time by which the scheduling of the oral arguments in Young must occur. What if, at any time before those orals are scheduled, or even after they are scheduled but before they take place (as is the current circumstance) SCOTUS accepts another case that might possibly peripherally implicate some potential aspect of an issue in Young? Can the Ninth just keep staying Young as long as any 2A case has been granted cert? I'm not gettin' any warm fuzzies from this...
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  #1043  
Old 02-14-2019, 7:49 PM
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With recent events in Young v Hawaii. Seems like an appropriate time to repost #962 of this thread.



Sidney Thomas is from Montana, actually.
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  #1044  
Old 02-14-2019, 7:50 PM
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Originally Posted by surfgeorge View Post
As far as I know there is no required maximum amount of time between the announcement of the SCOTUS decision in NYSRPA and the time by which the scheduling of the oral arguments in Young must occur. What if, at any time before those orals are scheduled, or even after they are scheduled but before they take place (as is the current circumstance) SCOTUS accepts another case that might possibly peripherally implicate some potential aspect of an issue in Young? Can the Ninth just keep staying Young as long as any 2A case has been granted cert? I'm not gettin' any warm fuzzies from this...
In short, yes. It can stay the case for as long as it wants. It could hear argument and not render a decision for as long as it wants.
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  #1045  
Old 02-14-2019, 8:53 PM
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Sidney Thomas is from Montana, actually.
And Obumma is from Kenya/Hawaii. Didn't stop his political corrupt career in Chitcago/DC did it?
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  #1046  
Old 02-14-2019, 8:55 PM
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If I am reading the en banc process right the Ninth did more than that. This week is the week where the en banc court decided the Young 11 judge panel. That is now locked in if I am right. Now the 5 trump appointees will not be part of the random en banc draw because that draw has already happened. So when Young is unstayed we will be left with a unfavorable left leaning panel. This is unfair both to Mr. Young and to the entire Circuit. As you mentioned the transport case is not even on point to deal with carry so it is unclear how that case deserves a sua sponte stay. The worst part is the parties were not allowed to submit their positions on this issue.
I am not surprised, but it is truly stunning.

How is it that the parties are not allowed to submit their respective positions, but the court is asked to to delay to for further briefings to allow more current and complete information about the matter in front of them?
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  #1047  
Old 02-14-2019, 10:00 PM
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Interesting delay tactic. Do they know more than we know?
As I said upthread, it’s not a delay tactic, it’s a “who gets the last word” tactic. They want SCOTUS to speak first and then they want to dance around whatever SCOTUS says to acheive their ends. They think they are better than SCOTUS.
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  #1048  
Old 02-15-2019, 12:29 AM
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As I said upthread, it’s not a delay tactic, it’s a “who gets the last word” tactic. They want SCOTUS to speak first and then they want to dance around whatever SCOTUS says to acheive their ends. They think they are better than SCOTUS.
Assuming they ever render a decision in this case at all.
If the SCOTUS decision is broad, Hawaii goes back and tweaks their laws slightly to “make them consistent with NYSRPA”.
Ok, we are “must issue”, but you may only carry a single shot flintlock on the 3rd Wednesday of the month not within 3 miles of a school. Oh, and you need $1 million in liability insurance and 90 hours of training (and it will take 2 years to write a curriculum and certify trainers).
...and the 9th circuit declares Young moot because the law on which the case is based changed.

The truth is 1 Supreme Court case isn’t going to matter. States and courts hostile to the 2A will tap dance around any ruling. The only thing that will make a difference is if SCOTUS gets active in smacking down these rulings.
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  #1049  
Old 02-15-2019, 10:19 PM
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On an optimistic note: The SCOTUS justices friendly to 2A will know about this stay, and that might be one more small incentive for them to rule more broadly in NYSRPA... “you want your guidance, here’s your guidance!”
That’s what I think is the only upside as well. Though I think SCOTUS is going to rule more broadly anyway.
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  #1050  
Old 02-16-2019, 6:38 AM
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Assuming they ever render a decision in this case at all.
If the SCOTUS decision is broad, Hawaii goes back and tweaks their laws slightly to “make them consistent with NYSRPA”.
Ok, we are “must issue”, but you may only carry a single shot flintlock on the 3rd Wednesday of the month not within 3 miles of a school. Oh, and you need $1 million in liability insurance and 90 hours of training (and it will take 2 years to write a curriculum and certify trainers).
...and the 9th circuit declares Young moot because the law on which the case is based changed.

The truth is 1 Supreme Court case isn’t going to matter. States and courts hostile to the 2A will tap dance around any ruling. The only thing that will make a difference is if SCOTUS gets active in smacking down these rulings.
This. It still borders on impossible to obtain a permit to purchase a handgun in DC a decade after Heller.
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  #1051  
Old 02-16-2019, 5:45 PM
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This. It still borders on impossible to obtain a permit to purchase a handgun in DC a decade after Heller.
Huh? I don't know about purchasing but I thought the ccw process in dc is fairly easy these days.
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  #1052  
Old 02-16-2019, 5:47 PM
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Originally Posted by surfgeorge View Post
As far as I know there is no required maximum amount of time between the announcement of the SCOTUS decision in NYSRPA and the time by which the scheduling of the oral arguments in Young must occur. What if, at any time before those orals are scheduled, or even after they are scheduled but before they take place (as is the current circumstance) SCOTUS accepts another case that might possibly peripherally implicate some potential aspect of an issue in Young? Can the Ninth just keep staying Young as long as any 2A case has been granted cert? I'm not gettin' any warm fuzzies from this...
Scotus can intervene if the Ninth is abusing this.
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  #1053  
Old 02-16-2019, 11:00 PM
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It's late and I'm tired and I can't remember (and there's not a Wiki page re. Young), but did they ask for cert for it? If CA9 thinks it's close enough to NYSRPA to wait for a decision in it before going en banc, maybe use that as an argument that it should be granted cert.?
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  #1054  
Old 02-17-2019, 7:32 AM
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Huh? I don't know about purchasing but I thought the ccw process in dc is fairly easy these days.
You have to be able to buy it before you can carry it. The Heller case wasn't just about carrying, it was about the fact that even getting a license to purchase was pretty much impossible. Research Emily Miller and how long it took her AFTER the Heller decision.
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  #1055  
Old 02-17-2019, 9:40 AM
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It's late and I'm tired and I can't remember (and there's not a Wiki page re. Young), but did they ask for cert for it? If CA9 thinks it's close enough to NYSRPA to wait for a decision in it before going en banc, maybe use that as an argument that it should be granted cert.?
Cert has not been requested. The panel decision has been vacated. Seeking cert before there is a circuit decision is highly irregular and requires an issue of "imperative public importance." I can make the case that depriving 10s of millions of people of a fundamental civil liberty essential to defense of life is of imperative public importance, but why bother when Rogers v. Grewal and Gould v. Morgan have already petitioned for certiorari?
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  #1056  
Old 02-18-2019, 11:18 PM
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Cert has not been requested. The panel decision has been vacated. Seeking cert before there is a circuit decision is highly irregular and requires an issue of "imperative public importance." I can make the case that depriving 10s of millions of people of a fundamental civil liberty essential to defense of life is of imperative public importance, but why bother when Rogers v. Grewal and Gould v. Morgan have already petitioned for certiorari?
Thanks. If one or both of those cases are granted cert they'll throw a monkey wrench in the Young en banc process....

How would that play out, if we get a decision in one or both of those in our favor after orals in Young en banc? Cut it off at the knees?

ETA: I guess that if Rogers or Gould is granted cert, CA9 will update Young en banc saying it is stayed for not only the NYSRPA decision, but also their decision/s.
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  #1057  
Old 02-19-2019, 12:52 AM
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So, not a legalese speaker/reader here. So for those like me:

What do the latest rulings/decisions actually mean?

Does the current standing of this case, and/or its prospective outcome, actually help us, or hurt us?

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  #1058  
Old 02-19-2019, 6:10 AM
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Originally Posted by SonofWWIIDI View Post
So, not a legalese speaker/reader here. So for those like me:

What do the latest rulings/decisions actually mean?

Does the current standing of this case, and/or its prospective outcome, actually help us, or hurt us?

The current standing of the case doesn't help us. The 9th circuit revoked all the helpful language we got out of the case and the law and policies in Hawaii remain in effect for now.

It's hard to say there is a prospective outcome right now in Young. Basically this isn't the case to watch for the time being. The case in New York that the Supreme Court has agreed to hear is where the action is now at, and how they write their decision in that case will shape the 9th circuit's next move here.

The 9th circuit wants the status quo (no carry) so this case will have to go to SCOTUS for it to help us. How tight of a corner they end up tiled into after the New York case will determine how long that takes.
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  #1059  
Old 02-19-2019, 8:52 AM
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Originally Posted by Paladin View Post
Thanks. If one or both of those cases are granted cert they'll throw a monkey wrench in the Young en banc process....

How would that play out, if we get a decision in one or both of those in our favor after orals in Young en banc? Cut it off at the knees?

ETA: I guess that if Rogers or Gould is granted cert, CA9 will update Young en banc saying it is stayed for not only the NYSRPA decision, but also their decision/s.
Gould has another month or two to file for cert. Rogers is at conference at the end of the week but Scotus will likely ask for NJ to file a response, which will add another month or two.
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  #1060  
Old 02-19-2019, 9:41 AM
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If I am reading the en banc process right the Ninth did more than that. This week is the week where the en banc court decided the Young 11 judge panel. That is now locked in if I am right. Now the 5 trump appointees will not be part of the random en banc draw because that draw has already happened. So when Young is unstayed we will be left with a unfavorable left leaning panel. This is unfair both to Mr. Young and to the entire Circuit. As you mentioned the transport case is not even on point to deal with carry so it is unclear how that case deserves a sua sponte stay. The worst part is the parties were not allowed to submit their positions on this issue.
In case I forget, once the panel is publicly known, we'll need to check their ages for any males >70 yo and any females >75 to figure out the likelihood of them "leaving" the panel before it even starts considering Young.
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  #1061  
Old 02-19-2019, 9:59 AM
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Who knows, we might get lucky and NYSRPA's favorable ruling may moot Young altogether. E.g. permit not necessary to OC / can't be banned. Hey, I can dream

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  #1062  
Old 02-19-2019, 10:46 AM
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Originally Posted by SonofWWIIDI View Post
So, not a legalese speaker/reader here. So for those like me:

What do the latest rulings/decisions actually mean?

Does the current standing of this case, and/or its prospective outcome, actually help us, or hurt us?

Champu's response to your question is good, especially the comment that the 9th Circuit wants the status quo to be no carriage until after NYSRPA. There's nothing inherently wrong about staying the en banc process until after NYSRPA is decided. It makes sense from a viewpoint of judicial economy to the extent the two cases involve similar issues.

What is really interesting to me, is what SCOTUS is going to do on Friday in Rogers. If the Court asks NJ to file a response, that is very good news as it suggests the Court is willing to consider granting cert to a second 2d Amendment case for next term.

CJ Roberts has a strong desire to preserve/promote the legitimacy of SCOTUS. I'm afraid he will try to obstruct efforts to consider multiple 2d Amendment cases during any given term because anti-civil liberty advocates will perceive this as moving too fast.
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  #1063  
Old 02-19-2019, 12:24 PM
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Champu's response to your question is good, especially the comment that the 9th Circuit wants the status quo to be no carriage until after NYSRPA. There's nothing inherently wrong about staying the en banc process until after NYSRPA is decided. It makes sense from a viewpoint of judicial economy to the extent the two cases involve similar issues.
True, but how common is it for an 11 judge en banc panel to be selected immediately before staying the en banc appeal?
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  #1064  
Old 02-19-2019, 12:43 PM
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Here is a debate between Dr. Halbrook and the Council for the Defendants (i.e., Massachusetts) about Gould v. Morgan.

https://www.youtube.com/watch?v=MmuN-En_1Pw

At the end, Council for the Defendants states they do not want this case to get cert and (also including his views throughout) that clearly the right exists outside but the question is regulation. They also talk about how Kavanaugh, in another DC case argued by Halbrook, dissented on the ruling (registration and semi-autos) by adding that strict scrutiny is not going to help them (Dr. Halbrook argued for strict!!!) and then Kav went on to history, text, and tradition.

They also talk about "long-standing" which might be bad news bears if it means anything ~ 100 years which Council for Defense argues.
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  #1065  
Old 02-19-2019, 12:44 PM
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True, but how common is it for an 11 judge en banc panel to be selected immediately before staying the en banc appeal?
En bancs are rare. Staying en banc proceedings is rare.

Your concern, that the Ninth Circuit gamed the selection process for the en banc court, is a different concern than the stay itself and my comment was not intended to minimize that concern.

The Ninth Circuit, if it believes SCOTUS' decision in NYSRPA may help resolve Young, had two options after SCOTUS granted cert in NYSRPA:
1) Issue an order staying the petition for en banc review pending the decision from SCOTUS; or
2) Grant the petition for en banc reconsideration and then stay the en banc proceedings.

Both options would have stopped further proceedings in Young (i.e., the case would not be remanded to the district court). There are two main differences between those two options. If option 1 had been chosen, the Ninth Circuit could have denied or granted the petition for en banc review after it had a chance to review the NYSRPA opinion. Choosing option 2 changes the pool of judges eligible for participation on the en banc court. You can draw your own conclusions about why option 2 was chosen.
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Old 02-20-2019, 1:41 AM
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The current standing of the case doesn't help us. The 9th circuit revoked all the helpful language we got out of the case and the law and policies in Hawaii remain in effect for now.

It's hard to say there is a prospective outcome right now in Young. Basically this isn't the case to watch for the time being. The case in New York that the Supreme Court has agreed to hear is where the action is now at, and how they write their decision in that case will shape the 9th circuit's next move here.

The 9th circuit wants the status quo (no carry) so this case will have to go to SCOTUS for it to help us. How tight of a corner they end up tiled into after the New York case will determine how long that takes.
Thanks!
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  #1067  
Old 02-20-2019, 7:29 AM
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Originally Posted by Kukuforguns View Post
Champu's response to your question is good, especially the comment that the 9th Circuit wants the status quo to be no carriage until after NYSRPA. There's nothing inherently wrong about staying the en banc process until after NYSRPA is decided. It makes sense from a viewpoint of judicial economy to the extent the two cases involve similar issues.

What is really interesting to me, is what SCOTUS is going to do on Friday in Rogers. If the Court asks NJ to file a response, that is very good news as it suggests the Court is willing to consider granting cert to a second 2d Amendment case for next term.

CJ Roberts has a strong desire to preserve/promote the legitimacy of SCOTUS. I'm afraid he will try to obstruct efforts to consider multiple 2d Amendment cases during any given term because anti-civil liberty advocates will perceive this as moving too fast.
The Court requested a response in Rogers v. Grewal yesterday. Such a request can be made by just one Justice, and I’d not be surprised if CT made the request so the petition would be fully briefed before being discussed at conference.
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Old 02-20-2019, 7:43 AM
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I have to believe the SCOTUS is watching this. I hope they make a ruling that will address this issue and others.
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Old 02-20-2019, 7:49 AM
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The Court requested a response in Rogers v. Grewal yesterday. Such a request can be made by just one Justice, and I’d not be surprised if CT made the request so the petition would be fully briefed before being discussed at conference.
Where did you hear about the request for briefing?

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  #1070  
Old 02-20-2019, 7:52 AM
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https://www.supremecourt.gov/search....ic/18-824.html
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  #1071  
Old 02-20-2019, 7:57 AM
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CJ Roberts has a strong desire to preserve/promote the legitimacy of SCOTUS. I'm afraid he will try to obstruct efforts to consider multiple 2d Amendment cases during any given term because anti-civil liberty advocates will perceive this as moving too fast.
This can go both ways. Another perspective is that his concern with SCOTUS legitimacy has him itchy since so many lower courts are refusing to make an honest read of Heller and McDonald, two cases he signed onto. So it's potentially personal (not that such matters ever play a role...) as well as an opportunity to clarify the sanctity of SCOTUS rulings to lower courts--yes, we mean what we say. Plus, it would be pretty hard to argue that SCOTUS favors hearing 2A cases above others seeing as they've heard only three in ten years or so.
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Old 02-20-2019, 8:24 AM
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CJ Roberts has a strong desire to preserve/promote the legitimacy of SCOTUS. I'm afraid he will try to obstruct efforts to consider multiple 2d Amendment cases during any given term because anti-civil liberty advocates will perceive this as moving too fast.
So the legitimacy of SCOTUS, in the mind of Chief Justice Roberts, hinges on the opinions of anti-civil-liberty advocates?

That should certainly be offensive to the Chief Justice. After all, did those anti-civil-liberty advocates claim the Roberts Courts has been moving too fast on 1A or 4A issues? Because AFAICT, the Roberts Courts have averaged over 3 4A cases per year and almost 4 1A cases per year:



and the 4A cases:

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Old 02-20-2019, 11:45 AM
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So the legitimacy of SCOTUS, in the mind of Chief Justice Roberts, hinges on the opinions of anti-civil-liberty advocates?
Which newspaper do you think is the most influential in the country? I think it is the New York Times, which has a strong animus towards the Second Amendment.

How many networks have a strong animus towards the Second Amendment? CBS, NBC, ABC, CNN? I think they do.
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Old 02-21-2019, 7:35 AM
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On an optimistic note: The SCOTUS justices friendly to 2A will know about this stay, and that might be one more small incentive for them to rule more broadly in NYSRPA... “you want your guidance, here’s your guidance!”
I may be overly optimistic, but I think this as well. Or rather, I was thinking that CA9 might be genuinely anticipating a broad ruling, and is eager to avoid being guided too severely.

It's instructive to read the GOA amicus brief in NYSRPA. It basically responds to every argument raised by NYC in defense of their law by quoting Kavanaugh's previous opinions/dissents in which he all but screams "SHALL. NOT. BE. INFRINGED!" at identical arguments. The GOA guys troll hard.
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Old 02-21-2019, 8:28 AM
speedrrracer speedrrracer is offline
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Which newspaper do you think is the most influential in the country? I think it is the New York Times, which has a strong animus towards the Second Amendment.

How many networks have a strong animus towards the Second Amendment? CBS, NBC, ABC, CNN? I think they do.
No question you are right about these statements, but where is your connection between any media and the Chief Justice? IOW, so what if the NYT is top dog, and has an anti-2A animus (I agree on both counts, btw)? Doesn't mean the Chief Justice gives a rat's arse about their civil rights stance, but maybe you have some information that I don't have.

Since you mentioned some concern on the parts of these entities about "moving too quickly" wrt civil rights opinions from SCOTUS, I thought it would be interesting to see how "quickly" (can't believe we're using that word in the same sentence as SCOTUS or our judicial system in general) SCOTUS moved wrt other enumerated civil rights, and as I think is shown in the graphics, SCOTUS moves at near-light speed when it comes to the 1A and 4A, at least by comparison with the 2A.

Long way of getting to my real question, sorry...

So we can see that the anti-2A media, whining about "moving too quickly" wrt the 2A, would have no leg to stand on, given that they haven't complained about the Court moving too quickly wrt the 1A or 4A. So Roberts giving them credence is based on what? Their claim being easily shown to be arbitrary? If Roberts was truly concerned about the Courts' legitimacy, that would be one thing if the media was shown to be a source of legitimacy, but you mention merely the influence of the media, not their legitimacy, and thus are claiming that Roberts is swayed by a media popularity contest, not by true concerns about legitimacy.

Since we have plenty of time before SCOTUS touches another 2A case, let me run a contrary idea up the flagpole, one which, like yours, also hinges on Roberts' concerns about his Courts' legitimacy.

Since, as Roberts maintains, the Court is apolitical, a true threat to the legitimacy of the Court can only come from complaints within the Court itself that the Court was behaving illegitimately, by, in this case, neglecting its duties and disfavoring certain enumerated civil rights.

How could such complaints exist from within the Court itself? As you well know -- dissents to denial of cert from more than one Justice. Who better to judge the legitimacy of the Court than the members of the Court themselves? And we have a growing number of them who have gone public in voicing their concerns. My position is that these complaints are the true bee in Roberts' bonnet WRT to the legitimacy of the Court, not any amount of noise from outside.

So... what if Roberts' concerns about legitimacy are founded in these complaints from his own Associate Justices? If my position here is correct, then he will take steps to address these complaints. But until now, he hasn't had a conservative majority, so granting cert will only lead to further destruction of the 2A. Not saying Roberts wants Constitutional Carry or anything even remotely close to that, but he signed on to Heller, so let's say he is very mildly pro-2A.

NYSRPA would then be a perfect vehicle -- increment the count of 2A cases taken, but not do anything that gets grenade launchers into the hands of babies. And it's also the perfect incremental step -- a case like Caetano, where you can make a broader claim but not have to bear the brunt of the backlash. Modern weapons are protected, re-iterates Caetano, but all it really did was give a taser to an at-risk woman. Still, the fact that we have that stepping stone could be critical to future decisions, right?

So NYSRPA -- 2 dudes in Manhattan can go shooting on their hunting properties in Pennsylvania or whatever. Who cares, right? Media can't cry too much about blood in the streets. But transporting gets protected, maybe as much as the Right exists outside the home.

So then you combine the two harmless decisions, Caetano and NYSRPA, and we get cert to Rogers or etc, and suddenly the 2A protects carrying your modern weapon outside the home.

The Court's legitimacy is addressed, the 2A is in the best position it's been in for a long time, and the media couldn't even whine about the coming checkmate, because it's too abstruse for their readers to grasp...

I admit combining the two decisions is very possibly a Bridge Too Far for Roberts, too much coffee...somebody print a retraction...
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Old 02-21-2019, 9:22 AM
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Not the worst thing that can come out of a case. I think this is ATLEAST better than getting struck down entirely. Hopefully the case vs NYC will yield positive results and we can be affirmed right to carry.
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Old 02-21-2019, 9:49 AM
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Doesn't mean the Chief Justice gives a rat's arse about their civil rights stance, but maybe you have some information that I don't have.
I doubt I have any information you don't have access to obtain. J. Roberts has stated that the legitimacy of the Court is important to him. He (unlike J. Thomas) is believed to read media articles on cases before the Court. It's well-reported that J. Roberts changed his vote on the Affordable Care Act; although the basis for the change being media coverage is largely speculative. I've come to believe that some articles/news segments are aimed at the Court in general or at specific justices. I believe that most MSM outlets would lose their $#!+ if the Court took as many 2d Amendment cases as it does 4th Amendment or 1st Amendment cases. Given those factors, I fear that J. Roberts will want to develop 2d Amendment jurisprudence slowly. It's just an opinion … that I want to be wrong.
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Old 02-28-2019, 8:26 AM
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Motion to lift stay on Young pending SCOTUS decision in NYSRPA DENIED.

See y'all sometime in 2020!
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Old 02-28-2019, 9:34 AM
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Motion to lift stay on Young pending SCOTUS decision in NYSRPA DENIED.

See y'all sometime in 2020!
It's annoying but it makes perfect sense. No one knows what's going to be the result of the NYSPRA case and obviously that case is highly likely to touch on public and "bear" issues which are the same issues as in Young. Makes no sense to go through an en banc when the entire landscape might change during the process.
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Old 02-28-2019, 9:37 AM
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It's annoying but it makes perfect sense. No one knows what's going to be the result of the NYSPRA case and obviously that case is highly likely to touch on public and "bear" issues which are the same issues as in Young. Makes no sense to go through an en banc when the entire landscape might change during the process.
Makes no sense to vacate a judgement by a panel for something that maybe will have some relevance.
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