2aHawaii
General Topics => Legal and Activism => Topic started by: punaperson on April 18, 2014, 09:27:55 AM
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Today's (April 18, 2014) decision on whether to take Drake will be announced Monday morning, April 21.
Read more about it, including links to all the "friend of the court" briefs, here:
http://www.scotusblog.com/case-files/cases/drake-v-jerejian/ (http://www.scotusblog.com/case-files/cases/drake-v-jerejian/)
Summary: "Issue: (1) Whether the Second Amendment secures a right to carry handguns outside the home for self-defense; and (2) whether state officials violate the Second Amendment by requiring that individuals wishing to exercise their right to carry a handgun for self-defense first prove a “justifiable need” for doing so."
At issue is the New Jersey requirement that applicants for concealed carry must meet (and almost never do) the "justifiable need" standard. If the Supreme Court takes the case, and decides for the plaintiffs that such a requirement is unconstitutional, it might make a much longer wait for ultimate decisions in Peruta and Baker unnecessary, as the California "good cause" and Hawaii "exceptional case" requirements are essentially the same (though attorneys for those states might argue otherwise). The Court could clearly state the claim of "self-defense" is sufficient cause for "shall issue" of some kind of carry (open and/or concealed). On the other hand, the Court could decide against the self-defense standard, which they seem to have already affirmed, though vaguely, in McDonald, in which case we'd be pretty much screwed forever. Or they could issue another decision that is vague enough that the lower courts will pretty much interpret any way they chose and we'll be in for many more years of waiting for the courts to come to some definitive conclusion.
Or a miracle could happen and the Hawaii legislature and/or Police Chiefs could decide that "You know what, you DO have a right to carry for self-defense. We have been enforcing an unconstitutional law. We'll start issuing those "licenses" right away." :rofl:
Here is the essence of the New Jersey position as stated by their Attorney General: "John J. Hoffman, acting attorney general of New Jersey, said in a brief that the San Diego law is materially different from New Jersey’s and that the 3rd Circuit appeals court has already concluded “that New Jersey’s justifiable need standard is a longstanding, presumptively lawful regulation that operates as an exception to the Second Amendment.” [My emphasis] [from: http://www.washingtontimes.com/news/2014/apr/17/supreme-court-weighs-appeal-to-concealed-carry-gun/#ixzz2zGclo5pq (http://www.washingtontimes.com/news/2014/apr/17/supreme-court-weighs-appeal-to-concealed-carry-gun/#ixzz2zGclo5pq)]
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We will find out on monday. Cross your fingers!
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I just read lead attorney Alan Gura's final response ("only" 14 pages) in the case from the Scotusblog address above. Most of the arguments apply to the Hawaii laws and how they are "interpreted" and/or "enforced" by our issuing authorities, aka police chiefs. Here is his brief conclusion:
CONCLUSION
Were this Court to allow the opinion below
to stand, it would strongly signal that Heller and
McDonald are not serious, binding opinions. The
Second Amendment right is “fundamental,” but it can
only be exercised if the state agrees it’s a good idea;
can be overridden by modern “legislative judgments”
backed by nothing; sets out rules that are wholly
swallowed by the fact that guns have always been
regulated or by “longstanding” laws enacted at any
time; and is wholly respected by practices disabling
99.98% of the population from exercising the “rights”
it secures.
This is simply not how rights function under our
Constitution.
* * * * * * *
I suppose that for Hawaii we'd have to adjust that percentage denied our ability to exercise our right from New Jersey's 99.98% to Hawaii's 99.9999%. Or maybe it's 100%. Does it really matter at this point?
I was researching other states and how many people have CCW permits in those states that issue them (how would anyone know how many people are carrying concealed in "constitutional carry" states?) and saw that in Florida 6.2% of the population has been issued CCW permits. For the Big Island (where I live), with a population of 186,738 (2011) that would translate into 11,578 licensees on our one island alone. Instead, we have none. Zero. We have a LONG way to go! Another POSSIBLE step forward Monday... stay tuned!
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Update:
Today (Monday, April 21) the results of the April 18 Conference were announced. Drake was not accepted. However, Drake was also not rejected. Guess we'll have to wait at least until after the next conference, scheduled for next Friday, April 25. I had read a comment from attorney Alan Gura stating that sometimes such decisions are carried over until further discussion at the next conference. I wouldn't think that such a postponement would be a good sign for those of us hoping that SCOTUS will hear the case.
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Update:
Today (Monday, April 21) the results of the April 18 Conference were announced. Drake was not accepted. However, Drake was also not rejected. Guess we'll have to wait at least until after the next conference, scheduled for next Friday, April 25. I had read a comment from attorney Alan Gura stating that sometimes such decisions are carried over until further discussion at the next conference. I wouldn't think that such a postponement would be a good sign for those of us hoping that SCOTUS will hear the case.
It's been redistributed for conference on April 25th. More waiting. The only good thing is that all the other cases were pretty much rejected at the 1st go.
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It's been redistributed for conference on April 25th. More waiting. The only good thing is that all the other cases were pretty much rejected at the 1st go.
I wish these proceedings were public rather than secret. Why would the court, or any other public body doing public business want the public to not know exactly how they conduct business? It almost makes one wonder what they might have to hide...
By the way, I read the dissent in Drake by judge Hardiman. He really poked some serious holes the reasoning by the two judges who wrote the decision supporting the New Jersey "justifiable need" standard. It's 40 pages, but the part re "reasonable fit" is especially good (where is any evidence that the "public safety interest" is served by issuing licenses to carry in public to people with a "justifiable need" as opposed to people who want to exercise the right for self-defense? Those people are less likely to use their firearm criminally or accidentally? Oh, that's right, there is absolutely no evidence whatsoever, therefore there is absolutely no rationale for the "justifiable need" as justification for the "public safety interest". Next.).
http://digitalcommons.law.villanova.edu/cgi/viewcontent.cgi?article=1436&context=thirdcircuit_2013 (http://digitalcommons.law.villanova.edu/cgi/viewcontent.cgi?article=1436&context=thirdcircuit_2013)
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Thanks for the updates Puna and Chris ! :shaka:
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"Or a miracle could happen and the Hawaii legislature and/or Police Chiefs could decide that "You know what, you DO have a right to carry for self-defense. We have been enforcing an unconstitutional law. We'll start issuing those "licenses" right away." :rofl:"
It's nice to dream...
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Just listened to Breitbart News Senior Legal Analyst Ken Klukowski on today's NRA News show... his interview is at 2 hours, 21 minute mark into the show.
Best to listen to it to get the details, but he says:
1. Any guess as to why they postponed a decision after the first conference is pure speculation, but he did mention two possibilities, as well as going over the mechanism of how cases are dealt with at conferences.
2. One possibility is that 1 to 3 justices want to take the case but are 1. undecided and want to reconsider with more time and discussion, or 2. are trying to convince a fourth justice to vote to take it (need 4 votes to take a case).
3. They voted to deny taking the case, but one or more justices are so adamant that the case ought to be heard that they are writing a dissent and want the week to write it. He says that happens roughly 10 times per year on the 8000 cases that ask to be heard.
4. He repeats his previous comments that he believes it's possible that the court doesn't want to hear this case because the counsel for Drake are "bombastic", "over reach", and "are known for presenting bizarre legal theories", and the justices that favor a positive ruling don't want to have to deal with a poorly presented (or not optimally presented) case.
5. He thinks the best case, and his "choice" if he had one, is Peruta, with Paul Clement as lead counsel. [That'd likely be at least a year away, if not more.]
6. He has some comments re the Hawaii case, but I will not repeat those.
I'd urge anyone interested in this to actually listen to the audio or watch the video as my summary may not be completely accurate.
http://www.nranews.com/cam (http://www.nranews.com/cam) click on "latest shows" on lower left... Klukowski segment is toward the end of today's (Monday April 21) guest list.
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Today's (Monday, April 28) order re Drake v. Jerejian:
Apr 28 2014 DISTRIBUTED for Conference of May 2, 2014.
I'll be curious to hear the legal commentators discussing how frequently any cases are redistributed to conference twice, or what that might mean is going on. Maybe just more of the same, as above. Whatever the reason as to another postponement, all we can do is wait.
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Today's (Monday, April 28) order re Drake v. Jerejian:
Apr 28 2014 DISTRIBUTED for Conference of May 2, 2014.
I'll be curious to hear the legal commentators discussing how frequently any cases are redistributed to conference twice, or what that might mean is going on. Maybe just more of the same, as above. Whatever the reason as to another postponement, all we can do is wait.
Few thoughts floating around are:
1.) They are trying to frame the question to get votes on board.
2.) it's being denied and someone is dissenting
3.) They are going to grant, vacate, and remand
4.) The world is coming to an end.
I think everything above is speculation except for #4. :shake:
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Few thoughts floating around are:
1.) They are trying to frame the question to get votes on board.
2.) it's being denied and someone is dissenting
3.) They are going to grant, vacate, and remand
4.) The world is coming to an end.
I think everything above is speculation except for #4. :shake:
Chris, you gotta take off the rose-colored glasses... ;) :shaka:
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Looks like another week again. Last delay?
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Looks like another week again. Last delay?
From the comments section of the TTAG article (http://www.thetruthaboutguns.com/2014/04/robert-farago/breaking-supreme-court-shuns-justifiable-need-concealed-carry-case/#comments (http://www.thetruthaboutguns.com/2014/04/robert-farago/breaking-supreme-court-shuns-justifiable-need-concealed-carry-case/#comments)) about this:
"They’ve already relisted Drake for conference once before, and as an article on SCOTUSBLOG (http://www.scotusblog.com/2014/04/relist-watch-what-does-the-courts-relist-streak-mean/ (http://www.scotusblog.com/2014/04/relist-watch-what-does-the-courts-relist-streak-mean/)) reported last week, that’s becoming more common for cases that they ultimately accept. Don’t be surprised if this case isn’t relisted for conference again . . . ."
If you like reading endless speculation about what this second re-listing means, there are LOTS of speculative comments to the article, some of which I had not heard before... I certainly "like" the idea (aka "rumor"/"pure speculation"/"fantasy") that Scalia is trying to round up a SIXTH positive vote... and that he has taken Kagan shooting at least several times...
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Looks like another week again. Last delay?
They showed us a case that was relisted 23 times... :P I cried.
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May 5 2014 Petition DENIED.
Well, that sucks!
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Petition for what?
The petition to be heard by the Supreme Court. This should at least make Peruta start moving.
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Damn sorry NJ. At least the 9th ciruit still has a chance. Hopefully we can get a win and set precedent. Maybe scotus would take it since there are a number of similiar cases. Idk, would you rather have a lower court ruling saying yes, or waiting to see if scotus will take or not and say yes or no...
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Damn sorry NJ. At least the 9th ciruit still has a chance. Hopefully we can get a win and set precedent. Maybe scotus would take it since there are a number of similiar cases. Idk, would you rather have a lower court ruling saying yes, or waiting to see if scotus will take or not and say yes or no...
We have currently won in the 9th Circuit. We are now fighting to keep it that way.
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We have currently won in the 9th Circuit. We are now fighting to keep it that way.
Sucks for NJ, but we are still in the fight!
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That's terrible news. The decision not to hear Drake in the Supreme Court makes me think that the Supreme Court is leaning against shall-issue carry.
If we are lucky, we can maintain our victory in the 9th Circuit. But with conflicting rulings by region, the Supreme Court will be forced to eventually take the issue up. And if they rule against shall-issue carry, it will open up the door for no-issue carry.
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For those who may like to speculate or wonder about what the SCOTUS denial of cert for Drake might mean or not mean, there are currently 200 comments (many "back and forth") covering a wide range of opinions on the CalGuns website thread.
Comments re denial of cert for Drake start on this page at comment #1230, about 3/4 of the way down the page:
http://www.calguns.net/calgunforum/showthread.php?t=850949&page=31 (http://www.calguns.net/calgunforum/showthread.php?t=850949&page=31)
Also, Ken Klukowski was on NRA News on May 5, stating that he is "relieved" that they denied Drake. He stresses several times that he is "speculating", but seems to think Peruta is the right case for SCOTUS.
http://www.nranews.com/cam/list/cam-company (http://www.nranews.com/cam/list/cam-company)
Also, Chuck Michel, whose firm is litigating Peruta, in a 9 minute interview on NRA News on the Sportman's Channel about the Drake denial, and Peruta:
http://www.nranews.com/cam/video/chuck-michel-court-passes-on-drake-may-want-a-california-case/list/sportsman-channel-videos (http://www.nranews.com/cam/video/chuck-michel-court-passes-on-drake-may-want-a-california-case/list/sportsman-channel-videos)
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Column by Ken Klukowski re Drake denial, why Peruta is better for SCOTUS, etc.
http://www.breitbart.com/Big-Government/2014/05/14/Second-Amendment-Drama-at-the-Supreme-Court-and-2016-Election (http://www.breitbart.com/Big-Government/2014/05/14/Second-Amendment-Drama-at-the-Supreme-Court-and-2016-Election)
Opening paragraph:
Many gun owners were disappointed when the Supreme Court declined on May 5 to take Drake v. Jerejian, but they shouldn’t be. Drake was an important case but also had significant problems, and there are more promising cases elsewhere in the country. The best is Peruta v. County of San Diego in California, which may be before the Supreme Court within a year.