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Thread: McKay v. Hutchens Preliminary Injunction denied again - Peruta ramifications

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    Thumbs up McKay v. Hutchens Preliminary Injunction denied again - Peruta ramifications

    It would seem that not every 9th Circuit Court of Appeals judge thinks that the Peruta decision will survive.

    The NRA/CRPA filed a motion to lift the stay on the CCW case out of Orange County and to issue a memorandum opinion granting the preliminary injunction. Keep in mind that the threshold for a preliminary injunction is "likelihood of success" which is a far lower hurdle than prevailing on a motion for summary judgment or judgment on the pleadings.

    Here is the Federal Docket entry:

    04/23/2014 67 Filed order (HARRY PREGERSON, KIM MCLANE WARDLAW and RICHARD C. TALLMAN) Appellants’ Motion for Relief from Stay and Request for Issuance of Memorandum Opinion is DENIED. Judge Tallman would grant the motion because, in light of Peruta v. Cnty. of San Diego, 742 F.3d 1144 (9th Cir. 2014), Plaintiffs-Appellants satisfy the factors articulated in Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008), and are entitled to a preliminary injunction.

    Also, in Jackson v. San Francisco which was decided six weeks after the Peruta decision, the three judge panel in that case reiterated the admonition in the Heller decision that concealed carry can be banned.

    More recently, citing that same admonition, two district court judges issued orders in two separate cases denying a TRO and a Preliminary Injunction in CCW cases challenging the policies of the San Bernardino and Ventura County Sheriffs.

    The same three judge panel that issued the Peruta decision has deferred consideration of the en banc petitions in two other cases Richards v. Prieto and Baker v. Kealoha.

    Two other CCW cases pending in the 9th CCA have been stayed pending Peruta.

    And as I'm sure I mentioned in another post, the en banc petition has been denied for US v. Chovan. Chovan was published last November. It is the case which established the framework for evaluating Second Amendment cases which the Peruta Court was bound by but chose to ignore.

    Charles Nichols – President of California Right To Carry
    http://CaliforniaRightToCarry.org

    "[A] right to carry arms openly: "This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations."" District of Columbia v. Heller, 128 S. Ct. 2783 - Supreme Court (2008) at 2809.

    "Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues." District of Columbia v. Heller, 128 S. Ct. 2783 - Supreme Court (2008) at 2816.

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    I have serious questions about those who "fight" for OC Rights, yet at the same time condone the issuing of State "permits" for CC.


    "Shall not be infringed" seems to even confuse OC activists. I will not ask for PERMISSION from the "State" to keep and bear arms however I choose.

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    AK, AR, AZ, VT, WY, call it Constitutional Carry for a reason, the other 45 States are in VIOLATION of it.

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    Quote Originally Posted by Jeff. State View Post
    I have serious questions about those who "fight" for OC Rights, yet at the same time condone the issuing of State "permits" for CC.


    "Shall not be infringed" seems to even confuse OC activists. I will not ask for PERMISSION from the "State" to keep and bear arms however I choose.
    Jeff understands .... too bad other people who claim not to be antis don't.

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    Thumbs up

    Quote Originally Posted by Jeff. State View Post
    I have serious questions about those who "fight" for OC Rights, yet at the same time condone the issuing of State "permits" for CC.


    "Shall not be infringed" seems to even confuse OC activists. I will not ask for PERMISSION from the "State" to keep and bear arms however I choose.
    None of the major so called gun-rights groups supports Open Carry. The NRA and SAF in conjunction with state organizations have filed Federal lawsuits in which they fought to preserve bans on Open Carry and fought to preserve the permit requirements for concealed concealed carry. In California, it was the NRA through its official state organization that brought Peruta v. San Diego and the SAF with the CalGuns Foundation as a co-plaintiff that brought Richards v. Prieto.

    "Shall not be infringed" is confusing to most people who haven't a clue as to how incorporation of the Bill of Rights against state and local government works. Which is odd given the public availability of the Heller and McDonald decisions and oral arguments, particularly the latter in which incorporation was the central topic.

    With the exception of a few Federal judges who think that neither the Heller nor McDonald decision is binding upon them, Heller and McDonald provided most of the answers to Constitutional Carry versus Open Carry versus Concealed Carry.

    1. Neither Heller nor McDonald involved cases where a permit requirement was challenged. The Heller decision said it was not deciding that question. There is no precedent in which a permit is required for an individual to exercise a fundamental, enumerated right but until such a case makes it to SCOTUS one can assume that the lower courts are going to infer that permit requirements are Constitutional.

    2. Federal laws are subject to the scope of the Second Amendment as it was understood by the Framers in 1791. Which is why the courts have been sitting on Palmer v. DC for nearly five years now. In 1791, there were no prohibitions on the carrying of concealed weapons. There were serious penalties for using concealed weapons but that is not at issue in that case.

    3. State laws are subject to the scope of the Second Amendment as it was understood when the 14th Amendment was adopted in 1868. Which means that state and local laws which prohibit concealed carry, excepting only travelers while on a journey, are Constitutional. I suppose someone who lives in a state which had no prohibitions on concealed carry in 1868 could make the argument that prohibitions on concealed carry in his state are not presumptively lawful but that argument cannot be made here in California. From 1863 to 1870, California had a statewide blanket concealed carry ban for everyone, everywhere, excepting only travelers while actually on a journey. "We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller." McDonald v. City of Chicago, Ill., 130 S. Ct. 3020 - Supreme Court (2010) at 3050.

    It is, of course, foolish to fight for concealed carry in the courts when the courts won't even recognize the right to carry a firearm on one's own private residential property. Which exposes another ramification of the Peruta decision. Want to carry a loaded firearm on your own property? Then you will need a government issued permission slip. Mine is the only Second Amendment case in the 9th Circuit which seeks to vindicate the right of an individual to carry a loaded, modern firearm on his own private, residential property as well as in non-sensitive public places without a government issued permission slip.

    My Open Carry lawsuit is the only one which argues that the Supreme Court meant exactly what it said in the Heller and McDonald decisions, nothing more and nothing less. Whom do you think will eventually prevail, the one (me) who wholeheartedly argued that SCOTUS is right or the ones (NRA, SAF, CRPA, CalGuns, etc) who argued that SCOTUS is wrong?

    Charles Nichols – President of California Right To Carry
    http://CaliforniaRightToCarry.org


    "[A] right to carry arms openly: "This is the right guaranteed by the Constitution of the United States, and which is calculated to incite men to a manly and noble defence of themselves, if necessary, and of their country, without any tendency to secret advantages and unmanly assassinations."" District of Columbia v. Heller, 128 S. Ct. 2783 - Supreme Court (2008) at 2809.

    "Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues." District of Columbia v. Heller, 128 S. Ct. 2783 - Supreme Court (2008) at 2816.

    "We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller." McDonald v. City of Chicago, Ill., 130 S. Ct. 3020 - Supreme Court (2010) at 3050.

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    McKay v. Hutchens Lost - 9th Circuit Concealed Carry Appeal

    What more can I say. You play stupid games and you win stupid prizes.

    McKay v. Hutchens went down in flames.
    Concealed carry is of no use to me, I don't carry a purse.

    Charles Nichols – President of California Right To Carry
    http://CaliforniaRightToCarry.org

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    good heavens, how many threads you going to use to tell the same story ~

    http://vb.opencarry.org/forums/showt...in-slow-motion

    http://vb.opencarry.org/forums/showt...and-open-carry

    ipse
    Last edited by solus; 09-15-2016 at 07:12 PM.
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    No en banc petition filed

    The deadline to file an en banc petition has now come and gone. This appeal is dead.

    http://blog.californiarighttocarry.org/?page_id=1971

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    Concealed carry is of no use to me, I don't carry a purse.

    Charles Nichols – President of California Right To Carry
    http://CaliforniaRightToCarry.org

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    Quote Originally Posted by Jeff. State View Post
    AK, AR, AZ, VT, WY, call it Constitutional Carry for a reason, the other 45 States are in VIOLATION of it.
    Yes your right, here is a new decision on our gun rights
    This was the decision on the Sept 28 of 2016

    http://www.mvariety.com/cnmi/cnmi-ne...constitutional
    Last edited by Robin47; 10-02-2016 at 02:49 PM.

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    Quote Originally Posted by Robin47 View Post
    Yes your right, here is a new decision on our gun rights
    This was the decision on the Sept 28 of 2016

    http://www.mvariety.com/cnmi/cnmi-ne...constitutional

    I couldn't get that link to open, but found the article anyway at this longer address:

    http://www.mvariety.com/cnmi/cnmi-news/local/89615-us-court-1-000-tax-on-handguns-unconstitutional
    Necessity is the plea for every infringement of human freedom. It is the argument of tyrants; it is the creed of slaves.

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    "If ye love wealth greater than liberty, the tranquility of servitude greater than the animating contest for freedom, go home from us in peace. We seek not your counsel, nor your arms. Crouch down and lick the hand that feeds you; May your chains set lightly upon you, and may posterity forget that ye were our countrymen."

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    Quote Originally Posted by gutshot View Post
    I couldn't get that link to open, but found the article anyway at this longer address:

    http://www.mvariety.com/cnmi/cnmi-news/local/89615-us-court-1-000-tax-on-handguns-unconstitutional
    Yeah thanks for the help, Kentucky is a good state

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    Smile Cert Petition due on January 5, 2017

    Update by Charles Nichols, President of California Right To Carry – December 29, 2016 – The Plaintiffs have decided to appeal the denial of their preliminary injunction and so I am moving this case from the dead list. Justice Kennedy gave them one extension of time to file their cert petition and denied their request for another extension of time. It will be interesting to see if they actually file a cert petition and more interesting to see what their cert petition and the brief in opposition have to say.

    No. 16A526
    Title:
    Dorothy McKay, et al., Applicants
    v.
    Sandra Hutchens, Individually and In Her Official Capacity as Sheriff of Orange County, California, et al.
    Docketed: November 23, 2016
    Lower Ct: United States Court of Appeals for the Ninth Circuit
    Case Nos.: (12-57049)

    ~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
    Nov 23 2016 Application (16A526) to extend the time to file a petition for a writ of certiorari from December 6, 2016 to January 5, 2017, submitted to Justice Kennedy.
    Nov 29 2016 Application (16A526) granted by Justice Kennedy extending the time to file until January 5, 2017.
    Dec 21 2016 Application (16A526) to extend further the time from January 5, 2017 to February 4, 2017, submitted to Justice Kennedy.
    Dec 22 2016 Application (16A526) denied by Justice Kennedy.
    http://blog.californiarighttocarry.org/?page_id=1971
    Last edited by Grapeshot; 12-29-2016 at 11:26 PM. Reason: rule #19
    Concealed carry is of no use to me, I don't carry a purse.

    Charles Nichols – President of California Right To Carry
    http://CaliforniaRightToCarry.org

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    It appears that no cert petition was filed in McKay v. Hutchens

    Many cert petitions were filed in January 5, 2017. According to the SCOTUS docket search results today, McKay v. Hutchens was not among them.
    Concealed carry is of no use to me, I don't carry a purse.

    Charles Nichols – President of California Right To Carry
    http://CaliforniaRightToCarry.org

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    Quote Originally Posted by California Right To Carry View Post
    Many cert petitions were filed in January 5, 2017. According to the SCOTUS docket search results today, McKay v. Hutchens was not among them.
    Many petitions have been filed throughout the years that have actually advanced the cause of the rights guaranteed by the Second Amendment. Yours is not among them!

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    Quote Originally Posted by California Right To Carry View Post
    Many cert petitions were filed in January 5, 2017. According to the SCOTUS docket search results today, McKay v. Hutchens was not among them.
    Well I wish you the best in this fight, but here in Kalifornia the Senate back in 2011 voted 28-8 to exempt itself
    from Kalifornia gun laws.
    Check it out !

    http://joeforamerica.com/2016/06/cal...rnia-gun-laws/

    I guess it could be a few more years on your case sad but true !
    I really think we have a lack of opencarryers to fight for our God given rights, also
    no Representation.

    Good luck on your Fighting ! Robin47

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    Quote Originally Posted by Robin47 View Post
    Well I wish you the best in this fight...
    I really think we have a lack of opencarryers to fight for our God given rights...
    Good luck on your Fighting ! Robin47
    You will quickly discover that there are very few supporters of Open Carry here, if you haven't already.

    I post frequent updates on my California Open Carry lawsuit at my website.

    Check out my Facebook page as well. Unlike here, it is only for Open Carry advocates.
    Concealed carry is of no use to me, I don't carry a purse.

    Charles Nichols – President of California Right To Carry
    http://CaliforniaRightToCarry.org

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