The Firing Line Forums - View Single Post - NJ Carry: Drake v. Filko (Muller v. Maenz)

esqappellate · February 13, 2013, 05:35 PM

FWIW: Here are some of my posts over on Mdshooters on this argument:
____________

THIS exchange starting at minute 56 is most interesting. First Stark pins her down on outside the home. She quivers, dodges but ultimately holds firm. Then he closely questions on whether she concedes the purpose is a "desire to limit the overall number of handguns in public." She denies it (fortunately for her), but then falls back on "public safety." She dodged the questions, but she is nailed by Hardiman with his "inescapable" point. Stark, then points out her "public safety" rationale is just another way of saying fewer guns. Then NJ counsel offered to do a supp. brief. on the rationale or purpose of the bill, viz., more accidents and more misuse. She is not going to finding any legislative finding that persons who can satisfy the standard are less likely to have accidents or misuse the firearm. She is in a corner. The questions are very, very good. At which time Aldisert chimes in on the point whether "justifiable need is without standard." That's a softball from Aldisert -- he is looking for help here, as he is making an argument to his colleagues on the bench, to limit the argument to a vaguenss point so he can rule that it isn't vague, QED. Stark and Hardiman show no sign of buying that limited construction of the claim. This will be an interesting opinion. The panel understands the points, especially Hardiman and Stark. Whether they are willing to go where logic leads is hard to say. The Kachalsky panel understood it too, but ultimately bailed with that very damaging opinion. That Kachalsky's rationale was rejected in Moore is a big help, as it gives this panel something to chew on.

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I heard Aldisert say that Gura is running through open doors on outside the home. Minute 6:03. That suggested to me that he thought that the 2A applies outside the home under existing 3d Circuit precedent. I think Hardiman was alluding to the same point, saying that the 2A applies and thus the court gets to step two (intermediate scrutiny). Gura didn't hear that in the question, but I did. But no one on the bench really disputed Gura's point that the standard, however, strict or clear, acted in such a way to require citizens to get the state's permission first and that it was so strict as to effectively deny many citizens, including these very clients, of access to the right. I heard NO support for the idea that the right is limited to the home -- that dct ruling is dead in the water according to Hardiman. He sees the only issue is whether there is a "sufficient fit" between the restriction and the state interest proffered. The state's proffered interest is public safety. The panel, at least Stark and Hardiman were very skeptical of the State's argument that the purpose was not simply to restrict the exercise of the right. Both referred to the *state's* burden, not Gura's burden, to show the tie between the restriction and the state's interest. We are seeing the influence of Posner's opinion here in Moore. Hardiman makes that point in discussing Kachalsky. Gura could still win even if the court finds that the standard is not vague.

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I think Gura needs to modify the "unbridled discretion" point. As the panel points out, the discretion in NJ is not so much as unbridled (there is a standard of sorts), but that it is so strict and and unconstrained as to effectively limit access to the right. It would be great to have numbers on denials, but that backfires, as the deterrence effect of the standard prevents many from applying at all. The bigger point is the one pushed by Gura, viz., that an individual's right should not be subject to some official's determination of "need" to exercise the right. However strict or lenient the standard is, that point is ultimately the winning argument, as it was in Woollard, IF the panel is willing to go there with that result. Stark led her down that garden path and then crushed her with the park and speech example. Her response is that guns are different. But Stark responded with a reference to the minority of states point and Gura crushed her with Heller's and McDonald's point that the 2A is to be treated no differently than other constitutional rights. Aldisert is clearly uncomfortable with the result -- to him the state may require "an objective need for self defense" under the 2A. Not at all clear how Hardiman and Stark feel (in their gut) about the result. It may turn on their gut rather than their minds. These two guys have the intellect to see the holes in the State's argument. Very impressively so. Whether they possess sufficient judicial courage to strike this NJ statute down is a different question. Kachalsky panel saw the holes too, but they refused to go where the logic leads. That panel proves that if judges don't want to go there, they will try to find a way not to go there, even if that does violence to the law or logic. Posner has the courage, many judges do not.

February 13, 2013, 05:35 PM	#61
esqappellate Member Join Date: October 16, 2012 Posts: 69	FWIW: Here are some of my posts over on Mdshooters on this argument: ____________ THIS exchange starting at minute 56 is most interesting. First Stark pins her down on outside the home. She quivers, dodges but ultimately holds firm. Then he closely questions on whether she concedes the purpose is a "desire to limit the overall number of handguns in public." She denies it (fortunately for her), but then falls back on "public safety." She dodged the questions, but she is nailed by Hardiman with his "inescapable" point. Stark, then points out her "public safety" rationale is just another way of saying fewer guns. Then NJ counsel offered to do a supp. brief. on the rationale or purpose of the bill, viz., more accidents and more misuse. She is not going to finding any legislative finding that persons who can satisfy the standard are less likely to have accidents or misuse the firearm. She is in a corner. The questions are very, very good. At which time Aldisert chimes in on the point whether "justifiable need is without standard." That's a softball from Aldisert -- he is looking for help here, as he is making an argument to his colleagues on the bench, to limit the argument to a vaguenss point so he can rule that it isn't vague, QED. Stark and Hardiman show no sign of buying that limited construction of the claim. This will be an interesting opinion. The panel understands the points, especially Hardiman and Stark. Whether they are willing to go where logic leads is hard to say. The Kachalsky panel understood it too, but ultimately bailed with that very damaging opinion. That Kachalsky's rationale was rejected in Moore is a big help, as it gives this panel something to chew on. _____________ I heard Aldisert say that Gura is running through open doors on outside the home. Minute 6:03. That suggested to me that he thought that the 2A applies outside the home under existing 3d Circuit precedent. I think Hardiman was alluding to the same point, saying that the 2A applies and thus the court gets to step two (intermediate scrutiny). Gura didn't hear that in the question, but I did. But no one on the bench really disputed Gura's point that the standard, however, strict or clear, acted in such a way to require citizens to get the state's permission first and that it was so strict as to effectively deny many citizens, including these very clients, of access to the right. I heard NO support for the idea that the right is limited to the home -- that dct ruling is dead in the water according to Hardiman. He sees the only issue is whether there is a "sufficient fit" between the restriction and the state interest proffered. The state's proffered interest is public safety. The panel, at least Stark and Hardiman were very skeptical of the State's argument that the purpose was not simply to restrict the exercise of the right. Both referred to the state's burden, not Gura's burden, to show the tie between the restriction and the state's interest. We are seeing the influence of Posner's opinion here in Moore. Hardiman makes that point in discussing Kachalsky. Gura could still win even if the court finds that the standard is not vague. ______________ I think Gura needs to modify the "unbridled discretion" point. As the panel points out, the discretion in NJ is not so much as unbridled (there is a standard of sorts), but that it is so strict and and unconstrained as to effectively limit access to the right. It would be great to have numbers on denials, but that backfires, as the deterrence effect of the standard prevents many from applying at all. The bigger point is the one pushed by Gura, viz., that an individual's right should not be subject to some official's determination of "need" to exercise the right. However strict or lenient the standard is, that point is ultimately the winning argument, as it was in Woollard, IF the panel is willing to go there with that result. Stark led her down that garden path and then crushed her with the park and speech example. Her response is that guns are different. But Stark responded with a reference to the minority of states point and Gura crushed her with Heller's and McDonald's point that the 2A is to be treated no differently than other constitutional rights. Aldisert is clearly uncomfortable with the result -- to him the state may require "an objective need for self defense" under the 2A. Not at all clear how Hardiman and Stark feel (in their gut) about the result. It may turn on their gut rather than their minds. These two guys have the intellect to see the holes in the State's argument. Very impressively so. Whether they possess sufficient judicial courage to strike this NJ statute down is a different question. Kachalsky panel saw the holes too, but they refused to go where the logic leads. That panel proves that if judges don't want to go there, they will try to find a way not to go there, even if that does violence to the law or logic. Posner has the courage, many judges do not.