9th Circuit Calif. Assault Weapons Ban - Petition for Panel Rehearing En Banc

Attorney for Appellant | Dec 15, 2002 | Gary W. Gorski, Esq.

[Atlas Sneezed]

[some formal matter and personal contact information is omitted for brevity]

[Atlas Sneezed]

Notice how Bellesisles, cited in the panel's opinion, is thoroughly skewered!

[Robert357]

Please remember that the 9th Circuit is the most overturned appeals court in the land because it has historically been ultra-liberal. It is my hope that now that Republicans control the house and senate and the whitehouse, that conservative judges can be appointed to all federal courts so that things balance out.

I don't hold out much hope that the 9th Ciruit Court will consider what the Constitution really says as opposed to what they would like it to say.

[IronJack]

The gist of the Court's decision seems to be that the appellants lack standing to bring the case, since rights under the Second Amendment vest entirely in some collective entity variously described as "a well-regulated militia", "the State", or "the government." Since the appellants do not assert any agency on behalf of any of those entities, they have no legal presence in this matter and the Court is not obligated to hear their arguments.

By ruling so, the Court is not obligated to overturn their arguments or rule on their validity. They can cast a ruling -- and defy the ruling precedent -- without ever considering the "evidence." It is a clear distortion of jurisprudence to waylay the Truth before it even has a chance to speak. That this Court would establish a ruling of this magnitude by such underhanded means speaks volumes about the Court's lack of ethics and their embarrassing absence of courage. It demonstrates clearly that they are ruled not by conscience or reason, and that this is a purely political decision.

[Vic3O3]

ping

[harpseal]

The above brief is the logical next step for getting this case before the US Supreme Court. If the Ninth Circuit refuses an en-banc hearing or upholds the original ruling of the three judge pannel then the way is clear. In fact then the appelants have no other judicial recourse.

Stay well - Stay safe - Stay armed - Yorktown

[humblegunner]

EEEEvil assault weapon ping.

[Abundy]

And if the panel refuses to hear this appeal the ONLY issue going up to SCOTUS will be whether the Second Amendment is an individual right....which means SCOTUS might actually take it...

[harpseal]

Please correct me if I am wrong. If the Supreme Court of the USA took up this case I believe they could rule that the Second does guarantee an individual right without making any ruling on the actual merits of the assault weapons ban thereby avoiding any direct overturning of that ban by just remanding it back to the lower court. Further if there were multiple concurring opinions in say a 7-2 decision it could be unclear that such a ban is truly unconstitutional thereby avoiding the crucial issue but seeming to address it. Hey an amicus brief to the Supreme Court could even cite Charles Scummy, I mean Schummer, stating he believed the Second applied to individual rights.

Given that the court does not like to make some of the really difficult decisions I think that if my view of what they could rule then such would be why they just might take this case.

Stay well - Stay safe - Stay armed - Yorktown

[wcbtinman]

I don't mean to ask for an epic reply, but what could the ripple effect of a USSC decision that upholds an individual right be?

Could such a decision eventually get to a re-visit of the Miller case?

[harpseal]

If initially the court merely remanded the case back to the district court for a ruling on the merits by declaring that standing existed because the Second guaranteed an individual right to keep and bear arms then there would be a relatively long delay IMHO before the NFA would be sucessfully challenged but it would eventually work its way back up I think.

Stay well - Stay safe - Stay armed - Yorktown

[Atlas Sneezed]

"If the Supreme Court of the USA took up this case I believe they could rule that the Second does guarantee an individual right without making any ruling on the actual merits of the assault weapons ban thereby avoiding any direct overturning of that ban by just remanding it back to the lower court."

I believe that there is a good chance they could rule that there is an individual right to bear arms, but the 9th did not need to deny this to find the California ban permissible.

[Atlas Sneezed]

"I don't mean to ask for an epic reply, but what could the ripple effect of a USSC decision that upholds an individual right be?"

It SHOULD mean that the GCA 68, 1986 machine gun freeze, and the assault weapon ban and others are illegally denying us the right to keep and bear arms of military utility. However, even the sainted conservatives on SCOTUS managed to tolerate roadblocks and stopping of random people without suspicion, to put them in jail fo being at 0.08BAC, simply because (paraphrasing) "drunk driving is a serious problem."

Don't hold out hope.

BLOAT!

[harpseal]

I absolutely do agree that is what it should mean but unfortunately I think the courts will be very slow to enforce this right. The Supreme court by accident or design is know for crypticvally stating what the Constitution says without making the hard decisions at first. This dates from Marbury vs Madison when the court ruled a law unconstitutional knowing the Jefferson admin would go along with that ruling.

Stay well - Stay safe - stay armed - Yorktown

[William Terrell]

That this Court would establish a ruling of this magnitude by such underhanded means speaks volumes about the Court's lack of ethics and their embarrassing absence of courage.

Actually, it speaks more so than you would expect about any human being that knows how to read, write and breathe. Sometimes I think they are acting out "The Devil's Advocate" by Taylor Caldwell.

[copycat]

Perhaps they stepped in it this time?

BTTT...

[Abundy]

Harpseal - Yes, that's why this is such a great case for us. SCOTUS only has to rule on whether the plaintiff's had standing - which turns on whether the Second Amendment protects an individual right. They can rule on the standing issue without touching the AWBan. Leave it to the Ninth Circus to miss the consequences of their assinine ruling. Had they allowed the suit to proceed and then ruled the AWBan constitutional, SCOTUS would have had plenty 'o wiggle room to avoid the underlying and most important issue. The Ninth Circus has basically forced the issue that no one wants to rule on.

wcb - Many, many cases and gun laws are predicated on the misreading of Miller. (the gov's brief conceded the Second Amendment protected an individual right - but no one ever cites that. Hell, I didn't know it until I read the Emerson opinion and some of the footnotes - that doesn't appear in the actual opinion)

Imagine all the lawsuits regarding these stupid laws once SCOTUS rules the right individual....

There will be litigation regarding the nature of the right - fundamental or not?

The next issue will be level of judicial review of gun laws - strict scrutiny or rational basis.

There is plenty of case law from litigation of the other enumerated rights, as well as ample historical evidence regarding the Framer's intent and their belief that it is a fundamental right. That means a strict scrutiny review, which means 95% (a guess) of the gun laws won't survive review.

"Liberal" Justices will be looking for a way to ignore their statements in other fundamental right cases and precedent set out in land mark cases like Griswold and Roe, while conservative justices will be looking for a way to allow all these "crime fighting" laws to stand. (Can you tell I'm pretty pissed at Scalia and Rhenquist right now?) But in the end, if they don't rule that the Second Amendment is a fundamental, individual right that requires a strict scrutiny review they will be skewered by Con Law experts from both sides of the political spectrum. (Liberals will be worried that conservatives will use such a ruling to re-examine Roe and it's progeny; Conservatives [real ones] will see this as a sell-out to big government. If Ann Coulter's head doesn't explode of such a ruling she'll have field day citing quotes from each Justice in prior cases that directly contradict any other ruling on this issue.)

Which is why no one wants to touch this issue....

Made that explanation as short as I could - the issues are just too damn involved. Everyone but Second Amendment Activists are afraid of a Ruling on this Issue, just for different reasons. (2A activists expect SCOTUS to avoid the issue and ultimately rule against them, so anything else is a victory.)

[MileHi]

BUMP for a thoughtful post.

Oh, and Happy New Year!

[Travis McGee]

I think SCOTUS will rule that individual Americans have the right to own flintlock rifles, but beyond that the various states may determine what they may own.

Just kidding. Sort of.

[Travis McGee]

Bang!