The 9th Circuit rules in our favor!
- Thread starter Rastoff
- Start date
OP
Rastoff
US Veteran
I don't know what's going to happen. I can't even speculate.
It's my understanding that in order to appeal a court decision, there must either be new evidence or that court must have made a mistake in the proceeding, i.e. a mistake in law. So far, all the 2A cases that have been ruled on and appealed, here in CA, have had neither new evidence or proceeding issues. Therefore, if the 9th circuit were doing their job correctly, they would have refused to accept these appeals.
Our system of justice is broken when the judges make decisions based on political motive rather than law.
It's my understanding that in order to appeal a court decision, there must either be new evidence or that court must have made a mistake in the proceeding, i.e. a mistake in law. So far, all the 2A cases that have been ruled on and appealed, here in CA, have had neither new evidence or proceeding issues. Therefore, if the 9th circuit were doing their job correctly, they would have refused to accept these appeals.
Our system of justice is broken when the judges make decisions based on political motive rather than law.
Right now, the Ninth Circuit is 24 judges appointed by Carter, Clinton, Obama, and 24 judges appointed by Nixon, Reagan, Bush I, Bush II, Trump. We have a tie.
However, a number of those have taken senior status, which means they cannot sit en banc, and without them, judges who can sit en banc appointed by Dems =15, by Reps = 13, with 1 vacancy.
However, to keep an en banc hearing from becoming too unwieldy, the court provides for a limited en banc review by the Chief Judge and a panel of 10 randomly selected judges.
The Chief Judge is a Clinton appointee, so it's back to a crapshoot. Cross fingers and toes, folks.
However, a number of those have taken senior status, which means they cannot sit en banc, and without them, judges who can sit en banc appointed by Dems =15, by Reps = 13, with 1 vacancy.
However, to keep an en banc hearing from becoming too unwieldy, the court provides for a limited en banc review by the Chief Judge and a panel of 10 randomly selected judges.
The Chief Judge is a Clinton appointee, so it's back to a crapshoot. Cross fingers and toes, folks.
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bushmaster1313
Member
Not quite.
Appeals are decided as a matter of law. A single appeal is a matter of right.
There are two basic grounds to win an appeal:
1) Error of law. When an appeal is won on the basis of an error of law, the appeals court finds that the lower court made an error interpreting or applying the law. For example. A district court could find that a law did or did not violate the Constitution. On appeal the appeals court would take a fresh look at the law, and determine whether it did or did not violate the Constitution. This is called de novo review.
2) Clear error of fact. When there is no error of law, and the Judge or jury at the trial makes a factual determination based on the evidence at trial, the judgment of the trial court will survive appeal unless the court of appeals finds as a matter of law that no reasonable judge or jury could decide the facts the way it did on the evidence that was before the court. This is sometimes called a clear error of fact. For example, the murder defendant might have had a good motive, but all of the evidence puts the defendant far away from the scene of the crime at the time of the murder, he is convicted anyways.
Second Amendment cases are almost always decided as a matter of law. The question is usually: Does this gun control law violate the Constitution? Such a question is always allowed a single appeal as a matter of right. The Supreme Court does not have to agree to decide an appeal from a court of appeals. The Supreme Court declines to hear almost all of the cases it is asked to decide.
Pop
When thee is new evidence, such as when DNA evidence is found which shows that the crime was committed by someone other than the defendant, the issue is whether the trial should be reopened. If the trial is not reopened, the person convicted can appeal on the ground that as a matter of law the trial court made a mistake in not reopening the trial.
The above is a simplification designed to get across the basic differences between an error of law a mistake of fact and new evidence.
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Thanks for the clarification. So, how would/could this proceed for the CA law that limits magazine capacity? Would the basic question of limiting a magazines capacity be an “error of law” or the limit of 10 be a mistake of fact, as in why 10 and not 9 or 11?
bushmaster1313
Member
I think the appeal is about questions of law:
Does the Constitution protect magazines?
What level of protection does the Constitution provide?
Does the magazine ban go beyond what the Constitution allows?
It’s all very clear to me.
Yes, it’s all very clear. Clearly these are efforts to restrict firearm ownership.
gwpercle
Member
The Zombies can't be far behind !
Gary
OP
Rastoff
US Veteran
[My snip for brevity. You can read the original in post #43.]
Thank you for that explanation.
The thing that frustrates me is that it seems the rulings in these cases are based on feelings or political bent rather than law. For example: In the case over the 10 day waiting period, the judge at the district court ruled that the state hadn't provided sufficient evidence that the waiting period had reduced crime which was the main purpose for the law. He stated clearly in his brief that there was no correlation whatsoever to waiting 10 days and reducing crime. Kamala Harris appealed it. The 9th circuit upheld the ruling.
But then Harris appealed it again asking for an en banc ruling. At this point, based on what you pointed out as the two reasons, there was no basis for the 9th circuit to take up the case in en banc unless they were just doing it based on feeling rather than law, right? Of course they over turned it in en banc.
bushmaster1313
Member
When the full court hears the appeal en banc they are not reviewing what the three judge appeal panel found. Rather, they hear the appeal of the district judge again.
But you are on to something. Originalist Judges want to decide cases based on what the Constitution means and Activist Judges decide cases based on what they want the Constitution to mean.
Judges are appointed and confirmed by elected officials. ]
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Yes. By those of the ruling class who want their police forces to have the "upper hand." Pay attention, if you please.
smoothshooter
Member
Don’t be popping the champagne corks just yet.
This is FAR from over. Whatever else you can say about them, the Dems are not quitters like Rebumblican politicians are.
Do not be surprised if the Dem prosecutors in CA simply ignore any adverse rulings against them and continue to enforce the ban, just to force gun owners to bankrupt themselves on court costs and attorney’s fees.
This is FAR from over. Whatever else you can say about them, the Dems are not quitters like Rebumblican politicians are.
Do not be surprised if the Dem prosecutors in CA simply ignore any adverse rulings against them and continue to enforce the ban, just to force gun owners to bankrupt themselves on court costs and attorney’s fees.
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You got that right but it goes a lot deeper. That's the critical problem with our entire governmental system underlying every political policy, congressional law, candidate qualification for office, and judicial decision. We have people in government positions, at all levels elected or not that swear to uphold the constitution but flagrantly do not! When was even just one removed from a position or an office, or impeached for not upholding their pledge???
Sure there are grey areas that may require scholarly debate and analysis to determine constitutionality of particular issues. But many policies, decisions, laws, etc., exist that are clear egregious affronts to the constitution.
If I had one suggestion/complaint I could make to our founding fathers, it would be that we have no quality control dept., i.e., a "constitutionality clearing house". It should not depend on which party is in power. "Activism" by definition is an affront to the constitution unless properly done thru the amendment process. But which it never is because it knowingly wouldn't succeed 99% of the time, and for good reason!
As it stands we are at the mercy of the initiative of politicians, (almost an oxymoron and certainly not a high point in the swamp of Washington), and if it happens, litigation on both sides is paid for by taxpayers. Or we're dependent on private citizens/organizations to fund extremely costly litigation, again taxpayers fund the government opposition. And even in that case, settlement decisions again fall prey to a mixed bag of originalist and activist attorneys general and judges! Folks, we're in a no win situation any way we look at it.
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Lot’s of truth right there. ^^^^^^^^^
smoothshooter
Member
I am puzzled as tom why the gun laws in CA cause angst with so many people. The situation can’t be nearly as bad as some would have us believe.
Not sure if you’re serious or joking. Yes, it’s absolutely as bad as folks say.
It's actually worse once the strategy is understood. All of it is part of a piecemeal attack on 2nd amendment rights. None of it has anything to do with the usual "claims" of public safety! And as bad as that is, it's highly contagious to other blue states.
For the record, there is presently no legal affect on jurisdictions outside the 9th Circuit. When the various Circuits have significantly different opinions that's when the SCOTUS takes a case.
I do think they'll have a complete de novo review by the entire 9th Circuit. I can't imagine that they'll sit back and let this stand so it's far from over.
As for the SCOTUS, if and when they ever decide to take up this case the real issue will be does Chief Justice Roberts have the legal cojones to rule properly in accord with the clear language of the Constitution or will he find another way to waffle out of it? Time will tell............
I do think they'll have a complete de novo review by the entire 9th Circuit. I can't imagine that they'll sit back and let this stand so it's far from over.
As for the SCOTUS, if and when they ever decide to take up this case the real issue will be does Chief Justice Roberts have the legal cojones to rule properly in accord with the clear language of the Constitution or will he find another way to waffle out of it? Time will tell............
Perhaps you currently do not live in or near California and think your state will never go down the road that California chose. Here in Virginia, it seemed the overwhelming attitude was that it would not happen here. Last November's state elections ushered in a Democrat majority in both houses of our legislature and we already had a very liberal, Democrat governor, lieutenant governor, and attorney general. In one legislative session we went from having preemption laws that forbade localities instituting their own gun laws, no restrictions on how many firearms you could buy in a 30 day period, and the ability to sell and trade firearms without a FFL, and whole list of freedoms and liberties related to firearms ownership. All of that disappeared within a 2-month period. So if you think it is a California problem and does not affect you, you may soon be in for a sad surprise.
