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Old May 14, 2012, 10:59 PM   #26
maestro pistolero
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I must have missed this, because I can't believe it would have been left out of the pleadings:

The NICS is hooked up to the federal database, is it not? What is the point of engaging two FFLs in two transactions when one can effectively conduct the sale, the NICS and the transfer?

Since this technology is accessible to everyone now, (and notably didn't exist in it's present ubiquity when these interstate commerce in arms laws came into being) doesn't this requirement now fail even a rational basis test?

Last edited by maestro pistolero; May 14, 2012 at 11:05 PM.
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Old May 14, 2012, 11:00 PM   #27
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Since the District Judge dismissed the case for lack of standing, the "record" forwarded to the Circuit Court consisted of the briefs of the parties and the transcript of the dismissal hearing. Will that limited record help or hurt Gura in the appeal?
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Old May 14, 2012, 11:12 PM   #28
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The appeal is about that dismissal for lack of standing. This, despite everything else that has been mentioned in the appellate briefs.

The CA4 only has to find standing, then send it back to the district court. Gura is hoping that they will also de novo review the injunction. That would be nice, but it isn't necessary to find that, to resolve the appeal.
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Old May 16, 2012, 11:13 PM   #29
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Quote:
KyJim, where did you Dl the complaint from? Here is the original: http://www.archive.org/download/gov....265997.1.0.pdf Here is the first amended complaint: http://www.archive.org/download/gov....265997.8.0.pdf Here is the Docket (where all the public files reside): http://www.archive.org/download/gov....97.docket.html

None of these files are PW protected.
I've been a bit busy so just got back to this. The brief I was referring to is http://thefiringline.com/forums/atta...9&d=1317696638. I can read it now, however. I'm not sure what happened, either some Internet freakiness or some freakiness from my PC. Thanks.
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Old June 12, 2012, 12:59 AM   #30
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Orals tentatively scheduled for 9/18-9/20
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Old June 12, 2012, 10:11 PM   #31
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As NatoRepublic has reported, we're tentatively scheduled for orals. Again.

Quote:
06/08/2012 43 CASE TENTATIVELY CALENDARED for oral argument during the 9/18/12 - 9/21/12 argument session. Notify Clerk's Office of any scheduling conflict by: 06/18/2012 [11-1847] (JLC)
Just before this, the appellee's filed a supplemental authority:

Quote:
06/08/2012 42 SUPPLEMENTAL AUTHORITIES (FRAP 28(j)) by Appellee Eric H. Holder, Jr.. [998871493]. [11-1847] Anisha Dasgupta
The authority cites Nordyle and a criminal case from CA2, DeCastro. The cite misreads the CA2 decision. http://caselaw.findlaw.com/us-2nd-circuit/1602105.html
Attached Files
File Type: pdf 42 Lane CA4 Appellee Supplemental.pdf (39.7 KB, 2 views)
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Old June 13, 2012, 07:15 PM   #32
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The cite misreads the CA2 decision. http://caselaw.findlaw.com/us-2nd-circuit/1602105.html
I don't know. I read the case like the DOJ. See my post here: http://thefiringline.com/forums/show...9&postcount=43
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Old June 13, 2012, 09:27 PM   #33
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This amounts to a double post (the same as I just posted in the Kachalksy thread):

A bit of a quote from the DeCastro decision:

Quote:
The facial constitutionality of § 922(a)(3) is unimpaired by the risk that some state laws governing the sale of firearms may themselves be unconstitutional.
And the closing remarks by Chief Judge Dennis Jacobs:

Quote:
Had Decastro opted to utilize the lawful means by which he could have acquired a handgun in New York and done so, § 922(a)(3) would have played no role in regulating that transaction. By the same token, § 922(a)(3) by its terms did not preclude Decastro from acquiring the handgun in question from the Florida dealer because all that the federal statute effected were minor limitations on the channels through which that handgun was to be shipped from Florida to New York. Even though acquisition is indeed often necessary to effectuate the Second Amendment right to keep and bear arms, any limitations on Decastro's acquisition were those occasioned by his own refusal to comply with New York State's requirements for possessing a handgun, and the federal statute, therefore, played no demonstrable role in precluding Decastro from purchasing a firearm in either state so as to exercise his Second Amendment right. For these reasons, § 922(a)(3), as applied, does not substantially burden Decastro's Second Amendment right to own a firearm in defense of his home and hearth. See District of Columbia v. Heller, 554 U.S. 570, 635, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008).
None of the above is the case with Lane.. The decision in this criminal case is not on point with the civil litigation at bar.
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Old August 16, 2012, 09:34 AM   #34
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Busy time for Alan Gura at the 4th!

Orals in Lane have now been scheduled.

Quote:
08/15/2012 48 CASE CALENDARED for oral argument. Date: 10/23/2012. Registration Time: 8:45 - 9:00. Daily Arguments Begin: 9:30. [11-1847] (JLC)

08/15/2012 49 ORAL ARGUMENT ACKNOWLEDGMENT by Appellants Michelle Lane, Second Amendment Foundation, inc., Amanda Welling and Matthew Welling. Counsel arguing: Alan Gura Opening argument time: 14 minutes Rebuttal argument time: 6 minutes [998916680] [11-1847] Alan Gura

08/15/2012 50 ORAL ARGUMENT ACKNOWLEDGMENT by Appellee W. Steven Flaherty. Counsel arguing: Earle Duncan Getchell, Jr. Answering argument time: To Be Determined [998916995] [11-1847] Earle Getchell
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Old October 25, 2012, 04:37 PM   #35
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Orals for Lane are here: http://coop.ca4.uscourts.gov/OAarchi...7-20121023.mp3
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Old October 25, 2012, 05:36 PM   #36
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Just finished listening. Government attorney did well, but i don't know how she can escape the irrefutable logic that, in an age of instant background checks, and pre-authorized pistol purchases, there can be no rational basis or narrowly tailored government interest in making a consumer use an additional FFL in his or her own state. If one wishes to purchase a firearm for self-defense while 2,000 miles from home, the inability to do so regardless of the ready availability of qualifying background information from law enforcement is CLEARLY an injury that lacks justification.

Al, I look forward, as always to your analysis. Krucam, and Esquapellate (from Maryland Shooters) also provide fascinating insights. This case and Woolard (oral MP3 up tomorrow, IIRC) will provide ample fodder for the weekend reading/listening.

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Old October 26, 2012, 07:27 AM   #37
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I'm going to hold off commenting on this, until after I listen to the arguments, one more time.
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Old October 26, 2012, 07:14 PM   #38
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I see the issue as no different than restricting any other product protected by the Bill of Rights.

Could you imagine if a DC citizen could not purchase a newspaper in Virginia? Or, expect no due process in Virginia?

They are equally repugnant in a free society.
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Old October 26, 2012, 09:30 PM   #39
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After reviewing the audio, I think it fair to say that this panel was quite aware of the implications of doing away with the handgun restrictions of § 922(b)(3).

This is evident, not only in the way in which Mr. Gura was questioned (which if taken alone - and out of context - appeared to be badgering), but also in the way that the Gov. was "attacked" by the same panel when it was their turn at bar.

Gura did a masterful job of defending his client in the face of questioning that called the alleged injury itself into question. He never backed down and rather forcefully told the panel it was wrong if it perceived any part of the injury to be caused by 3rd parties, as the court suggested.

Contrast that to the Governments position that the injury, if any, was in fact caused by 3rd parties, not present in the litigation, and not by the government itself (due to the law at issue). The Government further claimed that FFL couldn't possibly be held accountable for not knowing all the ins-and-outs of the various States handgun laws.

Gura rebutted this by bringing up the fact that rifle and shotgun transactions are held to the same standards as handgun transactions (the FFL must know the various laws in order to proceed with the transaction), barring the interstate ban on handgun transactions (the law being questioned).

Not much time was spent on the defense of the VA laws, and I believe that they will be dismissed.

The only real thing the court might hang it hat on, is the "public safety" aspect of "helping" the States with their own police power.

I find that Gura's arguments are persuasive (but then I'm biased), however if the decision is against Lane, this then is where it will reside.
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Old October 27, 2012, 08:57 AM   #40
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Best part ever is on or about 28:38. One of the justices asks: "What important purpose does the Federal law serve?"

The gov't attorney kills time with throat-clearing for a bit, then at about 29:09, she begins her answer which, basically is: This law is needed to enforce penalties against those who unknowingly or inadvertently make an honest mistake.
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Old October 29, 2012, 11:48 PM   #41
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Last Friday, Alan Gura filed a 28J letter to further resolve the issue of Standing.
Attached Files
File Type: pdf Lane_28j_2012-10-26.pdf (103.1 KB, 9 views)
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Old December 31, 2012, 09:36 PM   #42
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As you may recall, at the District Court, the Judge dismissed the claims on grounds of standing (the lack of).

Today, the 4th Circuit, in a 12 page decision, affirmed the lower courts decision that the plaintiffs were not burdened directly by the law in question, but by third parties (the associated FFL's, who obey the law).
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File Type: pdf ca4 Lane Decision.pdf (70.0 KB, 11 views)
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Old January 1, 2013, 05:47 PM   #43
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Appeal, or let it lie?
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Old January 1, 2013, 06:42 PM   #44
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Another perfect example of why my great-grandfather (the law professor) always maintained "There is no justice in the courts."

Talk about a weasel-word decision. So if the plaintiff's "injury" is due to third parties rather than to the law, he should be able to sue those third parties for redress, agreed? And, if he were to sue the FFL to obtain redress for his injury, I have no doubt that the FFL would be exonerated because "He's only following the law."

Catch-22.
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Old January 1, 2013, 08:22 PM   #45
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D.C. has essentially mooted the case. I don't think there will be an appeal.
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Old January 2, 2013, 02:24 AM   #46
maestro pistolero
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Do I understand correctly that since it was mooted, it really doesn't create precedent or even prevent taking a future run at the same issues on a different set of facts. Except for the unfortunate loss of hours, no harm, no foul, right?
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Old January 2, 2013, 01:08 PM   #47
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That's pretty much correct.

Adding to this, Gura/SAF won't be able to claim hours = no pay.
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Old February 15, 2013, 11:47 PM   #48
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UPDATE!

Gura has filed for a rehearing/en banc yesterday.

His arguments are sound and should be persuasive, but.... This will be an uphill battle, as the CA4 seldom grants en banc hearings and you can guarantee that the panel will deny a rehearing (they were all against Gura).
Attached Files
File Type: pdf Lane.PetitionForRehearingEnBanc.pdf (1.81 MB, 10 views)
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Old June 6, 2013, 10:06 PM   #49
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"Had the federal government prohibited bookstores from selling books to out-of-state resi- dents, no court would hold that impacted readers lack standing to challenge such a law under the First Amendment. Barring access to the national market for books would directly inflict an injury-in-fact upon consumers. Federal courts are empowered to fully redress that injury. None of this is particularly difficult or controversial.

"But substituting “handguns” for “books,” and “Second” for “First” Amendment, sometimes yields different results. The lower court held that criminal prohibitions of retail handgun sales do not directly impact frustrated consumers where the prohibitions are directed at sellers. The sellers’ compliance with the law in refusing to complete a prohibited transation, and the prohibition’s impact on the market, are, as far as the lower court is concerned, merely the intervening voluntary decisions of third parties."
So starts the introduction of a petition for certiorari to the Supreme Court in Lane v. Holder, filed pn May 28th, 2013. SCOTUS Docket 12-1401, A response is due on July 1st.

The petition is asking to reverse the issue of standing, affirmed by the CA4, on purely consumer standing to challenge federal regulation. It is a good petition, and lays out why the district and the CA4 were wrong. But at this point, I won't hold my breath in wondering if the Court will grant cert.
Attached Files
File Type: pdf lane_cert_petition.pdf (185.3 KB, 19 views)
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Old July 9, 2013, 11:11 AM   #50
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Another update.

Quote:
  • 05-28-2013 - Petition for Certiorari is filed. Case #12-1401.
  • 06-14-2013 - Waiver of right of respondent District of Columbia to respond filed.
  • 06-26-2013 - Brief amicus curiae of Community Association for Firearms Education filed.
  • 06-28-2013 - Order extending time to file response to petition to and including July 31, 2013.
  • 07-01-2013 - Brief amicus curiae of American Civil Rights Union filed.
I have a question for our attorneys:
DC filed a waiver to respond to the petition, no response from the court seeking a response, yet an order was issued that extended the time for response. Nothing is listed in the orders denoting this.

What just happened? Is this to be considered a sua sponte request from the Court for a response?
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