Re: 9th Circuit rules 922(g)(1) is unconstitutional as applied to nonviolent felon

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A three judge panel decision composed of judges all appointed by Republican presidents. Bea and Smith were appointed by Bush and VanDyke by Trump. This will likely get appealed to a 9th Circuit en banc panel who will likely overturn this decision.
That would all seem to be in step with Bruen. Yet the Government would have us go much further. We are asked to hold that “Congress[] . . . [can] define any . . . crime as a felony and thereby use it as the basis for a § 922(g)(1) conviction.” Phillips, 827 F.3d at 1176 n.5 (emphasis added). This, in our view, “expand” the historical felony category “far too broadly.” Bruen, 597 U.S. at 31. “Put simply, there is no historical basis” for Congress “to effectively declare” that committing “a[ny] crime punishable by imprisonment for a term exceeding one year,” § 922(g)(1), will result in permanent loss of one’s Second Amendment right “simply because” that is how we define a felony today, Bruen, 597 U.S. at 31 (“New York [cannot] . . . declare the island of Manhattan a ‘sensitive place’ simply because it is crowded and protected generally by the New York City Police Department.”); see also Folajtar, 980 F.3d at 912 (Bibas, J., dissenting) (“The majority’s extreme deference gives legislatures unreviewable power to manipulate the Second Amendment by choosing a label.”). To accept the Government’s position would “in effect exempt” from Second Amendment protection entire categories of people whose crimes were misdemeanors or did not exist at the Founding.
Similar in some respects to a PA case where a defendants 2A right to purchase a firearm was blocked because he was convicted of state food stamp fraud. Even though it was a misdemeanor, he could have been sentenced to state prison for over a year hence the feds considered it a felony.
"Everyone is entitled to their own opinion, but not their own facts." - Daniel Patrick Moynihan

Re: 9th Circuit rules 922(g)(1) is unconstitutional as applied to nonviolent felon

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sikacz wrote: Fri May 10, 2024 11:09 am Aaah the 9th hamster wheel of justice.
We win an occasional 3 judge panel at CA9 when luck of the draw sits 3 Republican appointed judges. But any win is always overturned by the en banc panel. It's fucking identity politics lawfare. Heller and Bruen are cherry picked for the one sentence out of dozens of pages that can be read out of context to support "government can do whatever it wants."

Re: 9th Circuit rules 922(g)(1) is unconstitutional as applied to nonviolent felon

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featureless wrote: Fri May 10, 2024 11:25 am
sikacz wrote: Fri May 10, 2024 11:09 am Aaah the 9th hamster wheel of justice.
We win an occasional 3 judge panel at CA9 when luck of the draw sits 3 Republican appointed judges. But any win is always overturned by the en banc panel. It's fucking identity politics lawfare. Heller and Bruen are cherry picked for the one sentence out of dozens of pages that can be read out of context to support "government can do whatever it wants."
It's no different in the circuits packed by Trump, Bush I&II, & Reagan. En Banc decisions follow RWN orthodoxy limiting all sorts of rights that "violate" the Southern Baptist Convention's crazy and sick "morals".
"Even if the bee could explain to the fly why pollen is better than shit, the fly could never understand."

Re: 9th Circuit rules 922(g)(1) is unconstitutional as applied to nonviolent felon

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YankeeTarheel wrote: Fri May 10, 2024 11:45 am
featureless wrote: Fri May 10, 2024 11:25 am
sikacz wrote: Fri May 10, 2024 11:09 am Aaah the 9th hamster wheel of justice.
We win an occasional 3 judge panel at CA9 when luck of the draw sits 3 Republican appointed judges. But any win is always overturned by the en banc panel. It's fucking identity politics lawfare. Heller and Bruen are cherry picked for the one sentence out of dozens of pages that can be read out of context to support "government can do whatever it wants."
It's no different in the circuits packed by Trump, Bush I&II, & Reagan. En Banc decisions follow RWN orthodoxy limiting all sorts of rights that "violate" the Southern Baptist Convention's crazy and sick "morals".
Oh, I totally agree (I just happen to be in CA9). It's identity politics lawfare on both sides. Pretty broken system.

Re: 9th Circuit rules 922(g)(1) is unconstitutional as applied to nonviolent felon

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featureless wrote: Fri May 10, 2024 11:50 am
YankeeTarheel wrote: Fri May 10, 2024 11:45 am
featureless wrote: Fri May 10, 2024 11:25 am
sikacz wrote: Fri May 10, 2024 11:09 am Aaah the 9th hamster wheel of justice.
We win an occasional 3 judge panel at CA9 when luck of the draw sits 3 Republican appointed judges. But any win is always overturned by the en banc panel. It's fucking identity politics lawfare. Heller and Bruen are cherry picked for the one sentence out of dozens of pages that can be read out of context to support "government can do whatever it wants."
It's no different in the circuits packed by Trump, Bush I&II, & Reagan. En Banc decisions follow RWN orthodoxy limiting all sorts of rights that "violate" the Southern Baptist Convention's crazy and sick "morals".
Oh, I totally agree (I just happen to be in CA9). It's identity politics lawfare on both sides. Pretty broken system.
Just in most cases, the Law, Facts, and Morality are much more substantial on the Left side...But of course, with notable exceptions, like AWB and mag limits, and barring adults from alcohol.
"Even if the bee could explain to the fly why pollen is better than shit, the fly could never understand."

Re: 9th Circuit rules 922(g)(1) is unconstitutional as applied to nonviolent felon

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There have been some decent 2A decisions from the 3rd and 4th Circuits, they don't seem to be packed with ideologues for either political party.

3rd Circuit - Philadelphia
https://ballotpedia.org/United_States_C ... rd_Circuit

4th Circuit - Richmond
https://ballotpedia.org/United_States_C ... th_Circuit

The 2nd Circuit in NYC and the 7th Circuit in Chicago are like the 9th Circuit.
"Everyone is entitled to their own opinion, but not their own facts." - Daniel Patrick Moynihan

Re: 9th Circuit rules 922(g)(1) is unconstitutional as applied to nonviolent felon

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featureless wrote: Fri May 10, 2024 11:25 am
sikacz wrote: Fri May 10, 2024 11:09 am Aaah the 9th hamster wheel of justice.
We win an occasional 3 judge panel at CA9 when luck of the draw sits 3 Republican appointed judges. But any win is always overturned by the en banc panel. It's fucking identity politics lawfare. Heller and Bruen are cherry picked for the one sentence out of dozens of pages that can be read out of context to support "government can do whatever it wants."
It’s a pretty screwed up legal system. I’m not any happier about republican activist judges that rule on limiting the rights of minorities. Civil liberties are getting restricted regardless of the party. I don’t see a hopeful solution. Party affiliation and party dogma shouldn’t color legal cases.
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Re: 9th Circuit rules 922(g)(1) is unconstitutional as applied to nonviolent felon

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sikacz wrote: Fri May 10, 2024 4:46 pm
featureless wrote: Fri May 10, 2024 11:25 am
sikacz wrote: Fri May 10, 2024 11:09 am Aaah the 9th hamster wheel of justice.
We win an occasional 3 judge panel at CA9 when luck of the draw sits 3 Republican appointed judges. But any win is always overturned by the en banc panel. It's fucking identity politics lawfare. Heller and Bruen are cherry picked for the one sentence out of dozens of pages that can be read out of context to support "government can do whatever it wants."
It’s a pretty screwed up legal system. I’m not any happier about republican activist judges that rule on limiting the rights of minorities. Civil liberties are getting restricted regardless of the party. I don’t see a hopeful solution. Party affiliation and party dogma shouldn’t color legal cases.
Same here, the problem is federal and state politicians nominate partisan lawyers and ideologues who are the same on the bench. Electing judges is no answer. The Senate filibuster helped keep extremists off the federal bench, but that's gone so each party nominates lawyers supported by special interests and the federal bench has become very partisan.
"Everyone is entitled to their own opinion, but not their own facts." - Daniel Patrick Moynihan

Re: 9th Circuit rules 922(g)(1) is unconstitutional as applied to nonviolent felon

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featureless wrote: Tue May 14, 2024 3:36 pm Bonta has filed for en banc review.

Twit thread on it and how CA9 en banc kills every 2A win. https://twitter.com/MorosKostas/status/ ... 2_uhQ&s=19

Great find featureless ! I'm going to paste it here in case someone has a problem with Twitter/X.
If the Ninth Circuit grants en banc and vacates Duarte, their streak of overturning ALL Second Amendment wins will grow even longer. Bruen has done nothing to affect that streak so far. You'd think they'd let one or two gun rights wins stand, just so they can point to those as token examples of them not being biased. But they apparently have had absolutely no shame.

En banc review is rarely granted even though the parties in over 800 decided appeals a year petition for it. Only around ten cases a year get it. But "somehow" all Second Amendment panel wins get en banc, without exception. No Second Amendment loss has ever gotten en banc review, of course. What a coincidence!

This blatantly partisan behavior erodes confidence in the court system, and the Supreme Court needs to pay attention. It would be one thing if it was "win some, lose some", and we had to swallow some losses but also got to keep our wins. Instead it's, "lose some, and if you win some, we'll take extraordinary measures to make sure to reverse that win."

Judge VanDyke's dissent last year in Duncan even revealed that the circuit broke its own rules to grant en banc and reverse Duncan the first time around back in 2020. They missed the deadline, but waived that deadline and did it anyway. That's what we're dealing with.
https://twitter.com/MorosKostas/status/ ... 2_uhQ&s=19


And that's why those of us in California are always complaining about the 9th Circuit, they're totally biased against the 2A and gun owners. The 9th Circuit needs to be broken up, maybe during the next session of Congress. I'd like to see them divide CA between two federal circuits, after all DC has two federal circuit courts. Kostos Moros is an attorney in Chuck Michel's law firm in Long Beach, CA.
"Everyone is entitled to their own opinion, but not their own facts." - Daniel Patrick Moynihan

Re: 9th Circuit rules 922(g)(1) is unconstitutional as applied to nonviolent felon

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Ha! If you think that is some fuck-fuck games, try this:
Hawaii just passed a law to legalize open carry of all weapons except firearms. Why, one might ask? To make make the Teter case on butterfly knives moot. Can't have a a 2A win on knives as it kinda fucks with gun bans. Amazingly, Hawaii also just today asked CA9 to moot Teter. That's New York CCW style fuckery.

Our overlords need some restraint.

Re: 9th Circuit rules 922(g)(1) is unconstitutional as applied to nonviolent felon

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Professor Eugene Volokh of UCLA at Reason Magazine.
Today's U.S. v. Duarte, written by Judge Carlos Bea and joined by Judge Lawrence VanDyke, concludes that the Second Amendment protects some felons (at least after the end of their criminal sentences). The majority begins with the principle that:

[The Supreme Court's decision in] Bruen instructs us to assess all Second Amendment challenges through the dual lenses of text and history. If the Second Amendment's plain text protects the person, his arm, and his proposed course of conduct, it then becomes the Government's burden to prove that the challenged law is consistent with this Nation's historical tradition of firearm regulation.

It reasons, much historical analysis later, that:

A more faithful application of Bruen requires the Government to proffer Founding-era felony analogues that are "distinctly similar" to Duarte's underlying offenses and would have been punishable either with execution, with life in prison, or permanent forfeiture of the offender's estate.

And, the majority concludes, this defendant's particular past convictions—for vandalism, drug possession, evading a peace officer, and being a felon in possession of a firearm—did not qualify.

Judge Milan Smith dissents, concluding that pre-Bruen Ninth Circuit precedent categorically holds that all felons lack Second Amendment rights; the majority and the dissent disagree on whether Bruen overruled that precedent. The dissent, in particular, argues that (1) Bruen "repeatedly limited its definition of the scope of the right to 'law-abiding' citizens, using that phrase no fewer than fourteen times throughout the opinion," (2) "Nothing … in Bruen reflects a retreat from the Court's earlier statement in Heller that 'longstanding prohibitions on the possession of firearms by felons and the mentally ill' are 'presumptively lawful,'" and (3) concurrences in Bruen reaffirmed the Heller view with regard to felons. The panel majority responds, among other things, that "we do not think that the Supreme Court, without any textual or historical analysis of the Second Amendment, intended to decide the constitutional fate of so large a population in so few words and with such little guidance…. [W]e agree with the Third Circuit that Bruen's scattered references to 'law-abiding' and 'responsible' citizens did not implicitly decide the issue in this case." It also takes the view that, "'Simply repeat[ing] Heller's language' about the 'presumptive[] lawful[ness]' of felon firearm bans will no longer do after Bruen," given Bruen's call for a historical analysis, and given that "the historical pedigree of felon firearm bans was never an issue the Heller Court purported to resolve."

The government will very likely petition for rehearing and for en banc review in this case. That review will probably be influenced by the Supreme Court's Rahimi case, which deals with whether people subject to domestic violence restraining orders lose their Second Amendment rights, and which is due to come down from the Court by June 30. The question in Rahimi and the question in this case aren't identical, but they share considerable similarities. Note also that the government has already asked the Supreme Court to consider the Third Circuit's Range case, which reached a similar result. That the petition is being held, pending Rahimi. It seems likely that the Court will instruct the Third Circuit to reconsider the question in light of the Rahimi holding, just as the Ninth Circuit panel (and perhaps the en banc court) will be doing the same.
https://reason.com/volokh/2024/05/09/ni ... nt-rights/
"Everyone is entitled to their own opinion, but not their own facts." - Daniel Patrick Moynihan

Re: 9th Circuit rules 922(g)(1) is unconstitutional as applied to nonviolent felon

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This will be interesting to watch, and if this is true about the 9th Circuit doing en-banc overturning of all 2A-related case wins, but no reviews of 2A-related case losses, then that's a real concern. I wonder how many brown-skinned people, who have been convicted of nonviolent felonies like, say, possession of a certain quantity of marijuana, that this is affecting.
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Re: 9th Circuit rules 922(g)(1) is unconstitutional as applied to nonviolent felon

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Here is Hawaii's (9th Cir) approach:
Moszkowicz told Hawaii Pubic Radio that "75% of those who initially received medical marijuana denials were later approved after returning with documentation from a doctor or counselor saying they were no longer adversely affected." In light of that pattern, he said, Hawaii County has aligned its policy with those of the other counties and from now on will issue gun permits to residents who were once registered as medical marijuana patients but have not held active cards in the previous year.

That is what passes for enlightened policy in Hawaii, where the combination of gun registration and patient registration highlights the absurdity of assuming that cannabis consumers are ipso facto so dangerous that they cannot be trusted with firearms. Survey data suggest that something like 20 million American gun owners are also marijuana users, making them guilty of a federal felony punishable by up to 15 years in prison. But those cases are rarely prosecuted, mainly because the government generally does not know who owns guns or who uses marijuana. Because Hawaii tracks both kinds of information, its practices underline the injustice of denying people the constitutional right to armed self-defense for arbitrary reasons that have nothing to do with public safety.

The Biden administration has steadfastly defended this policy, despite the president's avowed concern about the "needless barriers" erected by the federal government's "failed approach to marijuana." The government's lawyers liken cannabis consumers, including medical marijuana patients, to "lunatics" and violent criminals. They even argue that marijuana use, which Biden says should not be treated as a crime, excludes someone from "the people" whose "right to keep and bear arms" is protected by the Second Amendment.

In 2016, the U.S. Court of Appeals for the 9th Circuit, which includes Hawaii, upheld the policy of banning gun sales to people who are known to have medical marijuana cards, even if they do not currently consume cannabis. The appeals court reasoned that possessing a medical marijuana card is a good, if imperfect, indicator of illegal drug use, which is in turn associated with violence, "impaired mental states," and "negative interactions with law enforcement officers." The 9th Circuit concluded that there was a "reasonable fit" between the challenged policy and a substantial government objective, which meant it passed "intermediate scrutiny" and was consistent with the Second Amendment.
https://reason.com/2024/05/27/in-hawaii ... own-a-gun/

Buncha votes out there to get, you know.

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Re: 9th Circuit rules 922(g)(1) is unconstitutional as applied to nonviolent felon

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That is what passes for enlightened policy in Hawaii, where the combination of gun registration and patient registration highlights the absurdity of assuming that cannabis consumers are ipso facto so dangerous that they cannot be trusted with firearms. Survey data suggest that something like 20 million American gun owners are also marijuana users, making them guilty of a federal felony punishable by up to 15 years in prison. But those cases are rarely prosecuted, mainly because the government generally does not know who owns guns or who uses marijuana. Because Hawaii tracks both kinds of information, its practices underline the injustice of denying people the constitutional right to armed self-defense for arbitrary reasons that have nothing to do with public safety.
And that, folks, is a great example of why government officials knowing who has the guns, including gun registration schemes, is a bad thing.
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Re: 9th Circuit rules 922(g)(1) is unconstitutional as applied to nonviolent felon

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CowboyT wrote: Wed May 29, 2024 12:10 am
That is what passes for enlightened policy in Hawaii, where the combination of gun registration and patient registration highlights the absurdity of assuming that cannabis consumers are ipso facto so dangerous that they cannot be trusted with firearms. Survey data suggest that something like 20 million American gun owners are also marijuana users, making them guilty of a federal felony punishable by up to 15 years in prison. But those cases are rarely prosecuted, mainly because the government generally does not know who owns guns or who uses marijuana. Because Hawaii tracks both kinds of information, its practices underline the injustice of denying people the constitutional right to armed self-defense for arbitrary reasons that have nothing to do with public safety.
And that, folks, is a great example of why government officials knowing who has the guns, including gun registration schemes, is a bad thing.
Agree. More people should realize that the only reasons actions don’t occur is be cause the government doesn’t know. That said marijuana shouldn’t be on any list. It should be treated like alcohol. I’m not interested in the government having a list of my guns. There’s no guarantee under the current trend that some politicians won’t agree to a ban.
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