By the end of my lunch hour today, I was only halfway through my reading of the Piszczatoski
reply brief. I knew that by the time I came home from work, Alan Gura's response to MD's Motion to Stay, would be in. It was, so I have stopped reading the other brief to read this one.
The State filed late Friday afternoon (the 27th). That same day, the CA4 ordered Gura to file a response by the next Tuesday (today). So Carl Hansen and Alan Gura had, at most, 4 days to craft a response, assuming they worked all weekend on the response.
Considering Gura had to polish and finish off his reply to the State in the CA4 appeal (Woollard
) and also the appeal at CA3 (Piszczatoski
- even if David Jensen wrote most of it). So Monday was mostly shot. That brings it down to a mere 3 days.
So it does not surprise me that there are some typos and gaffs in this brief. Some are glaring, some are subtle. They are there, nonetheless. Can you find them?
Regardless, it does not detract from the brief.
Arguments based on the supposed general social ills Maryland claims to be associated with firearms have been rejected by the United States Supreme Court. Moreover, the more persuasive research stands staunchly in favor of the right to keep and bear arms. However, the Court need not examine the thousands of pages of social science on the issue.
Simply put, this case is not a constitutional convention. Our roles are not to debate the wisdom of the Second Amendment. The policy decisions embodied therein were made at the time of its enactment. The Court should pay no more heed to hysterical claims of gun violence than countenance arguments about the supposed ill effect of permitting speech protected by the First Amendment.
The Second Amendment is part of the fabric of our constitution and our society. Whether Maryland might prefer to write it out of the constitution based on faulty pseudo-social science is completely irrelevant.
Have you figured out what Gura is doing, yet? How about this one:
This ruling - ending government encroachment upon our constitutional rights - is not the proper subject of a stay. No state is entitled to a reprieve to continue violating the rights of its citizens.
Not yet? Try this one:
The defense opens its argument by seriously misstating the primary issue before the Court. The suggestion is made, at page 8 of the defense brief, that this Honorable Court is asked to decide whether the Second Amendment secures the right to bear arms for an individual who “cannot demonstrate a reasonable self-defense or other justification.” Whether or not an individual can satisfy the government that he or she has substantial justification to exercise a constitutional right falls well short of the point. The issue in this case is whether the government can make such a demand of individuals seeking to exercise their rights in the first instance.
This fundamental distinction reveals the fallacy in the Defendants’ approach to the entire issue. The defense starts from the premise that the Second Amendment does not protect the right to bear arms generally in public (even allowing for reasonable regulation of time, place and manner). All of the defense argument thereafter flows from this fundamental fallacy.
Mistaken as it is in its conclusion, the defense strategy is understandable in that it is the only real avenue available. Unless the defense meets its heavy burden of establishing a high likelihood of success on the merits – which manifestly it cannot - the requested stay should be denied.
For those that aren't getting it: Alan Gura is writing with the tone of a victor who fully expects the States appeal to fail. If you read this opposition brief, you will find this tone, throughout. It is a departure from what we have read before. Here, instead of trying to convince the court of his position, he is writing as one who is in firm control of the outcome.
And why shouldn't he? This is a great vehicle to use to deny the stay.
Now, back to reading the Piszczatoski