Kharn
Ultimate Member
David Kopel at Volokh on everything the 9th got wrong, and it's both long and shows the majority was intentionally deceptive in their use of citations.
9th Circuit just ruled that there is “no right” to carry a firearm
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ezracer
Certified Gun Nut
I think SCOTUS would just kick this can down the road !! Dunno.
Deep Thought
Active Member
Riiight.. cuz SCOTUS has a great track record taking 2A cases and upholding 2A rights. I agree with you.
I'm trying to be optimistic but I just don't see it.
A good read. The majority cherry picked passages to try to prove their point yet omits (from the same source) another passage which completely blows up their point.
wjackcooper
Active Member
- Feb 9, 2011
- 689
The majority of the court (aware of adverse 5/4 SC odds) ostensibly used history in support of interest – balancing (100 plus pages) in an attempt to deliver a Heller/McDonald focused knockout blow to the 2A.* Additionally, perhaps for cover, the court then made adverse, debatable rulings on prior restraint and due process companion issues.
Well, the bad news is that they: (1) Woke up. (2) Faked an embrace of the Heller mandated text, history, tradition approach. (3) Mucked up (maybe deliberately) the case with parallel issues. The good news is their text, history and tradition based attempt at a pre-emptive strike on the 2A is so clumsy as to be incoherent.** In the continued absence of any credible reason to the contrary, the odds remain at 5/4 for the 2A in the SC; however, given its concurrent prior restraint and due process issues this case may not be a great vehicle for a cert grant. At any rate, NYR&PA v. Corlett is pending cert.
Progressive judges (in theory) can be honest while manipulating interest-balancing (2A v Safety) via intermediate scrutiny then deferring to politicians in order to restrict the 2A . . . because the process has a subjective foundation, i.e., feelings (not math, or the 2A) rule. Manipulating (i.e., distorting) the historical record in order to “conduct” interest - balancing “anew” is difficult to fairly characterize as other than completely dishonest.*** For those who haven’t noticed, since 2010 the Heller/McDonald text, history and tradition requirement has been most often accurately reflected in dissents. This case is no exception.
For sure, renewed support for a pro 2A organization of your choice can help.
Regards
Jack
* Kavanaugh: 2011, Heller 11, dissent:, “Strict and intermediate scrutiny are balancing tests [2A v. safety] and thus are necessarily encompassed by Heller’s more general rejection of balancing.” Heller 11, p.22, para. 4. (Google: “Kavanaugh’s dissent in Heller” - scroll about one half way down for his opinion)
https://www.cadc.uscourts.gov/internet/opinions.nsf/deca496973477c748525791f004d84f9/$file/10-7036-1333156.pdf
Balancing test: “A subjective test with which a court weighs competing interests, . . . .” https://www.law.cornell.edu/wex/balancing_test
**O’Scannlain: 2021, Young, dissent: “It is utterly baffling for the majority to contend that, merely because the lawful manner of open public carry has historically been regulated in certain respects, we may conclude that the practice of public carry itself is not entitled to constitutional protection.” Young, p.172, para 1.
(Google: Young v. Hawaii) https://cdn.ca9.uscourts.gov/datastore/opinions/2021/03/24/12-17808.pdf
Kopel / Moscary SSRN 3/31/21 “When the Ninth Circuit’s sources are examined in detail, they support the conclusion opposite from the one reached by the court.”
Abstract, para 1. https://papers.ssrn.com/sol3/papers.cfm?abstract id=3817087
*** “The Second Amendment is no different. Like the First, it is the very product of an interest-balancing by the people-which JUSTICE BREYER would now conduct for them anew.” https://www.scotusblog.com/2008/06/heller-quotes-from-the-majority/ (62-63).
Well, the bad news is that they: (1) Woke up. (2) Faked an embrace of the Heller mandated text, history, tradition approach. (3) Mucked up (maybe deliberately) the case with parallel issues. The good news is their text, history and tradition based attempt at a pre-emptive strike on the 2A is so clumsy as to be incoherent.** In the continued absence of any credible reason to the contrary, the odds remain at 5/4 for the 2A in the SC; however, given its concurrent prior restraint and due process issues this case may not be a great vehicle for a cert grant. At any rate, NYR&PA v. Corlett is pending cert.
Progressive judges (in theory) can be honest while manipulating interest-balancing (2A v Safety) via intermediate scrutiny then deferring to politicians in order to restrict the 2A . . . because the process has a subjective foundation, i.e., feelings (not math, or the 2A) rule. Manipulating (i.e., distorting) the historical record in order to “conduct” interest - balancing “anew” is difficult to fairly characterize as other than completely dishonest.*** For those who haven’t noticed, since 2010 the Heller/McDonald text, history and tradition requirement has been most often accurately reflected in dissents. This case is no exception.
For sure, renewed support for a pro 2A organization of your choice can help.
Regards
Jack
* Kavanaugh: 2011, Heller 11, dissent:, “Strict and intermediate scrutiny are balancing tests [2A v. safety] and thus are necessarily encompassed by Heller’s more general rejection of balancing.” Heller 11, p.22, para. 4. (Google: “Kavanaugh’s dissent in Heller” - scroll about one half way down for his opinion)
https://www.cadc.uscourts.gov/internet/opinions.nsf/deca496973477c748525791f004d84f9/$file/10-7036-1333156.pdf
Balancing test: “A subjective test with which a court weighs competing interests, . . . .” https://www.law.cornell.edu/wex/balancing_test
**O’Scannlain: 2021, Young, dissent: “It is utterly baffling for the majority to contend that, merely because the lawful manner of open public carry has historically been regulated in certain respects, we may conclude that the practice of public carry itself is not entitled to constitutional protection.” Young, p.172, para 1.
(Google: Young v. Hawaii) https://cdn.ca9.uscourts.gov/datastore/opinions/2021/03/24/12-17808.pdf
Kopel / Moscary SSRN 3/31/21 “When the Ninth Circuit’s sources are examined in detail, they support the conclusion opposite from the one reached by the court.”
Abstract, para 1. https://papers.ssrn.com/sol3/papers.cfm?abstract id=3817087
*** “The Second Amendment is no different. Like the First, it is the very product of an interest-balancing by the people-which JUSTICE BREYER would now conduct for them anew.” https://www.scotusblog.com/2008/06/heller-quotes-from-the-majority/ (62-63).
That was before the current makeup of the SCOTUS. Even if Roberts decides to jump further into the cesspool of leftist activism, there are enough real originalists on the bench to override his BS. Say what you will about Trump (because he was a complete sleazeball of a president that makes Slick Willy look tame), but his picks for the SCOTUS were one of the best and longest-lasting decisions his 4 years gave us. Thomas has been champing at the bit to address the 2A and staunch the bleeding, cauterize the wound, and send the socialist traitors packing with an affirmation of our individual rights.
It's ok. We're doing much better with the current administration.
mranaya
Task Force Sunny, 2009
Still holding it's "Nutty 9th" title.
https://reason.com/volokh/2021/04/10/breaking-scotus-grants-injunction-in-tandon-v-newsom/
There are more than a few interesting tid bits in this. Most interesting was the comment about Roberts not having control over the direction of the court
There also was some theorizing That Robert might retire before anyone else.
The approach and structure of the analysis was a shot across the bow. I don’t think they’ll transfer that whole approach into the second amendment the boy sure wish they would cut and paste that and make life really easy for a lot of court cases
IMHO I think roberts may have been the log jamb and the other 5 are pissed about cases being passed up, becoming moot during litigation and circuit courts watering down fair analysis of complaints. There is a lot of very visible infighting and realignment in those opinions. She’d some light on what we may be seeing soon
There are more than a few interesting tid bits in this. Most interesting was the comment about Roberts not having control over the direction of the court
There also was some theorizing That Robert might retire before anyone else.
The approach and structure of the analysis was a shot across the bow. I don’t think they’ll transfer that whole approach into the second amendment the boy sure wish they would cut and paste that and make life really easy for a lot of court cases
IMHO I think roberts may have been the log jamb and the other 5 are pissed about cases being passed up, becoming moot during litigation and circuit courts watering down fair analysis of complaints. There is a lot of very visible infighting and realignment in those opinions. She’d some light on what we may be seeing soon
Roberts retiring now would be bad. While he certainly doesn't appear to be terribly friendly to the Constitution in my view, doubtless whoever would end up replacing him would be far more hostile. Better the devil we know...
Yes. I'll take him a dozen times over compared to the Leftist Witch Queen that President Obama By Proxy would use President Harris By Name to install.
- Nov 11, 2009
- 30,908
Roberts will do what he's told.
.
.
Kharn
Ultimate Member
One tidbit from the covid ruling:
"And fourth, although Califor-nia officials changed the challenged policy shortly after this application was filed, the previous restrictions remain in place until April 15th, and officials with a track record of "moving the goalposts" retain authority to reinstate those heightened restrictions at any time"
Will the five have just as little sympathy for the next attempt to moot a firearms case?
"And fourth, although Califor-nia officials changed the challenged policy shortly after this application was filed, the previous restrictions remain in place until April 15th, and officials with a track record of "moving the goalposts" retain authority to reinstate those heightened restrictions at any time"
Will the five have just as little sympathy for the next attempt to moot a firearms case?
1A related case for the 9th circuit. The conservative 5 overturned, and Chief Justice Roberts joined the liberal wing.
https://www.courthousenews.com/us-s...iction-on-in-home-religious-gatherings/?amp=1
https://www.courthousenews.com/us-s...iction-on-in-home-religious-gatherings/?amp=1
whistlersmother
Peace through strength
And yet the court allowed Nevada to shut down churches and keep casinos open.
This court has become a laughing stock.
And once again the 9CA shows itself to be the ugly ba$ard Child of the appetite circuit, with most of the justices sitting on the bench has shown,once again,they have drunk
the far left wing liberal demorats kool aid and or decided they do not want to be the ones to stand up to the government of crazy kali and let SCOTUS overrule them, thus saying to the government of kali, hey do not blame us for getting your orders smacked down hard, thus showing once again they are lacking the intestinal fortitude to do what is right and all of them need to be removed..
the far left wing liberal demorats kool aid and or decided they do not want to be the ones to stand up to the government of crazy kali and let SCOTUS overrule them, thus saying to the government of kali, hey do not blame us for getting your orders smacked down hard, thus showing once again they are lacking the intestinal fortitude to do what is right and all of them need to be removed..
One of the problems CA9 keeps having is their zeal to en banc 3 judge panels' opinions willy nilly. In many of the other circuits it is very rare to do so, even to the point where statistics show a greater possibility of a cert grant by SCOTUS then an en banc grant by that circuit.
The activists on that court are dead set against allowing certain precedents to stand.
The activists on that court are dead set against allowing certain precedents to stand.
Malachi.2.15
Active Member
- Jan 27, 2011
- 979
I was just going to post the same thing. It looks like Roberts had given up the pretenses and shown himself to be full left.
He has at least on the religious-covid restrictions issue. He's pretty much been in line with the libs on this, as they've ruled several times on essentially the same issue.
It seems he's a 50/50 vote right now on major issues.
What might happen next?
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