March 1, 2011, 12:19 AM | #126 | |
Moderator Emeritus
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,660
|
Weekly Update 02-28-2011
On 02-18-2011, in Woolard v. Sheridan, the plaintiffs filed their MSJ (this didn't show up until sometime last Mon. or Tues.). This MSJ follows the original, but includes arguments from Chester. Item #23 on the Docket. Defendant will answer the MSJ on or about 03-14-2011.
On 02-24-2011, in Richards v. Prieto (was Sykes v. McGuiness), the plaintiffs filed their response in opposition to the defendants MSJ (Docket file #65). Also on 02-12-2011, you will find docket file #64, which is the amicus from the Brady's. Oral arguments are scheduled on March 10th. The idea that the Second Amendment must yield to whatever politicians have determined to be in the public interest—that “firearm regulation is best suited for the legislative arena, not the courts,” Brady Br. at 18— is simply a nullification of the constitutional guarantee. Heller made clear that enforcing the Second Amendment, like the enforcement of other enumerated fundamental rights, is very much the business of the courts, and doing so is incompatible with a deferential posture by the judiciary.As long as the Brady's continue to file such weak amicus briefs, we are going to see more and more attacks on there illogical stance. Defendants have an interest in reducing gun violence, but they cannot have an interest in minimizing the carrying of guns by law abiding people if law abiding people have a fundamental right to carry a gun. There is no doubt that giving the Sheriff arbitrary discretion to ban the carrying of guns will reduce the carrying of guns, at least by law - abiding people such as the Plaintiffs. But the government simply cannot identify and target a constitutional right as an evil to be suppressed.The above is where the Peruta case failed. That distinction was never made. The brief also addresses Peruta, inasmuch as that court held that unloaded open carry was an adequate means of self defense. *** OK. RECAP has been a bit awkward to use this last week, in one particular instance. If you look at the Docket for Kachalsky v. Cacase, you will note that nothing has happened since 01-25. Well, that's not exactly true. Last week, Krucam, Patrick and myself spent several dollars (each) trying to get the docket to update, after we saw a slew of activity (all on the 23rd and 24th - What? The court clerk was asleep?). It (the docket) still hasn't updated. sigh. So here is what has happened (shamelessly copying Krucams saved info): Quote:
32-Def MTD 40-Pltf Memorandum of Law in support of MSJ 43-Def Memorandum of Law in Supp of Cross MSJ, Opp to Pltf MSJ 47-Pltf Opp to Def MSJ and Reply to Def Opp to Pltf MSJ 48-Def Resp to Pltf 39 MSJ 68.1-Amicus Academics for Second Amendment |
|
March 2, 2011, 12:32 AM | #127 |
Moderator Emeritus
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,660
|
Some things have changed in Hightower v. Boston.
An assented order to reschedule the briefs was filed. Shortly after that, the MA AG motioned to intervene. Then the AG made a motion for an assented order to reschedule. The court granted this. Then the court changed Judges. Judge Denise J. Casper has replaced Judge Patti B. Saris. Here is the current schedule: S.J. Opposition and Cross-Motion April 22, 2011 Plaintiff’s Reply March 21, 2011 May 6, 2011 Defendants’ Reply April 4, 2011 May 20, 2011 Hearing April 18, 2011 Between June 15 and June 30, 2011 |
March 6, 2011, 11:38 AM | #128 |
Moderator Emeritus
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,660
|
Weekly Update 03-06-2011
On 02-18-2011, in Schrader v. Holder (just appeared this week), plaintiffs filed their first amended complaint.
On 03-01-2011, in Mishaga v. Monken (Ill FOID), plaintiffs filed their first amended complaint. On 03-02-2011, in Ezell v. Chicago, the parties finally found a date that they can agree upon... Oral Arguments before the 7th Circuit have been set for April 4th. On 03-03-2011, in Richardson v. Prieto (was Sykes v. McGuiness), defendants opposition to the MSJ was filed. Here, defendants conflate several issues to make the point that Unloaded Open Carry is still an avenue for adequate self defense. On 03-03-2011, in Benson v. Chicago, plaintiffs have filed their opposition to defendants MTD. The plaintiffs point out several differences between the City's ordinances and State law in carrying firearms. So there is a good chance that the MTD will not be granted afterall. |
March 10, 2011, 01:33 PM | #129 | |
Moderator Emeritus
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,660
|
Decision: Peterson v. LaCabe
On 03-08-2011, in Peterson v. LaCabe, Plaintiff's #17 Motion for Summary Judgment against Defendant LaCabe is denied. Intervenor Attorney General's #34 Cross-Motion for Summary Judgment is granted. The claims against all parties are dismissed with prejudice. Judgment shall be entered in favor of Defendants and Intervenor and against Plaintiff on all of his claims.
Note how the Judge defines the 2A right to bear arms: As discussed further below, while the Supreme Court has recently made clear that the Second Amendment strongly protects an individual’s right to have a firearm in the home for the purpose of self-defense, the right may nonetheless be restricted to certain persons and is entitled to less protection outside the home. District of Columbia v. Heller, 554 U.S. 570, 628 (2008).What we see is once again a Judicial misinterpretation of what Heller actually said: The right only pertains to the home; A broad reading of prohibited persons. This is nothing new. It is interesting because the Judge earlier, in his opinion, states that in order for a P&I claim to proceed, a plaintiff must show that the right must 1) “bear upon the vitality of the Nation as a single entity” and be 2) “sufficiently basic to the livelihood of the Nation.” Supreme Court v. Friedman, 487 U.S. 59, 64 (1988). If the right is protected, the regulation may nonetheless be constitutional if the state can show “substantial reason” for the discrimination against non-citizens, i.e., “something to indicate that non-citizens constitute a peculiar source of evil at which the statute is aimed.” Hicklin v. Orbeck, 437 U.S. 518, 526 (1978) (quoting Toomer, 334 U.S. at 398).So the court is saying that Intermediate scrutiny must apply. Then the Judge applies the second aspect of P&I (above), while refusing to even acknowledge the first aspect. sigh. The Judge then agrees with the State of Colorado, in that the State cannot adequately review the plaintiffs out of state records (of criminal behavior), that the States over riding issue of public safety comes into play and therefore does not implicate the plaintiffs right to travel under the Privileges and Immunities Clause. The Judge has just applied Rational Basis scrutiny, to something that he just said Intermediate scrutiny applies (the 2A 2-Step: The 2A's Bear to only apply in the home and public carry is outside of the main second amendment protections). Patrick, from MDShooters puts it better than I can: Quote:
The trend is pretty clear. The lower courts, by and large, are using decisions in criminal cases to equate law-abiding citizens (and their civil rights) as being inherently dangerous. Therefore the ability of a State to regulate public safety must stand above this criminal aspect. They are intentionally misreading Heller by holding that "bear" only applies to inside the home, and that the four cases that Heller used to approve of CC restrictions applies, all the while ignoring that open carry was available, and that this was the point that made the restrictions valid. Whatever we think of the Brady's, this is directly out of their playbook. |
|
March 14, 2011, 07:33 AM | #130 | |
Moderator Emeritus
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,660
|
Upadate
Woollard v. Sheridan (MD CCW) SAF/Gura: Defendant response to SAF Motion for Summary Judgment due 03/07/2011. Rescheduled to 03/14.
Muller v. Maenza, (NJ CCW) SAF: Defendants will submit a reply in support of their cross-motion no later than 03/09/11. Rescheduled to 03/16. Richards v. Prieto (CA CCW) SAF/Gura: Oral Arguments Scheduled 03/10/2011. Arguments made and case submitted. On 03-11-2011, in Schrader v. Holder, Memorandum in opposition to re 5 MOTION to Dismiss and in Support of Cross-Motion for Summary Judgment 8. Below is the Table of Contents of the brief to give you the highlights of the argument in favor of Schrader (in case you don't wish to read the 60+ pages): Quote:
|
|
March 14, 2011, 08:35 AM | #131 |
Moderator Emeritus
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,660
|
Oh yeah... The gun range case in Chicago (Ezell). On Friday, 03/11, Alan Gura has filed their reply to Chicago and the Brady's.
|
March 18, 2011, 02:08 PM | #132 |
Senior Member
Join Date: April 12, 2010
Location: Lake Martin, AL
Posts: 3,311
|
All these details almost make me want to rid myself of my guns. It makes it sound like you are guilty before charged. It all seems to have little or nothing to do with what type of gun or ammo you use.
More Like Reality - Why is it I always here of the situations where the business or home owner are quickly cleared of any charges and declared a hero? I hope all the above cited cases have more to do with other issues than the type of ammo. We used some really nasty stuff to runn the enemy out of trenches and caves in Nam. None of it was even conceived of at the time of the Geneva Convention. Lets just pray none of us have to ever use deadly force again in our lives. |
March 18, 2011, 04:40 PM | #133 |
Senior Member
Join Date: August 16, 2007
Posts: 2,153
|
Having just read it again, it strikes me that the very persuasive and eloquently argued Ezell brief was written as much for the SCOTUS as for this court.
To me these arguments are unassailable, but I am long past possessing sufficient naivete to believe that the ideologues in the lower courts won't twist and contort until their result matches their vision. I wish it weren't true. Nothing short of unequivocal, specific protection from the SCOTUS for the bearing of loaded guns outside the home except in narrowly defined, genuinely sensitive places will slow the infringement one bit. And that won't even stop everyone. Nope, as one poster from Calguns repeatedly (and sometimes annoyingly) asserts, they won't stop until they are led away in handcuffs. I am coming to hope and believe we will see that day. I hope that SCOTUS will seize the next opportunity to offer as much guidance to the lower courts as it can, lest this ridiculous dance go on for decades. |
March 18, 2011, 08:01 PM | #134 |
Moderator Emeritus
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,660
|
I think we all should be aware that none of these cases are expected to actually win at the district level.
Maestro, you are partially correct. These cases are meant for the Circuit Courts and higher (SCOTUS). The arguments are actually written that way, on purpose. If we get wins in the Circuits, we will not need to go higher. If the Circuits split, it will invoke the SCOTUS to fix the split(s). What the cases are doing is to map out the scope (extent) of the right to bear arms (as opposed to keep/possess arms - that one was one with Heller). If a State has unregulated open carry, then the State may regulate concealed carry, pretty much however it wants. If the State does not have open carry, then the concealed carry option must be fair to all - Shall Issue. Lawsuits tackling the cost of a concealed carry license will come later, after the right to carry (in whatever manner) is firmly set. |
March 20, 2011, 04:36 PM | #135 | |
Moderator Emeritus
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,660
|
Weekly Update 03-20-2011
On 03-10-2011, Kalchalsky v. Cacace (NY), (recap is still not working correctly) there was 72(RECAP), Supplemental Memorandum of Law in support of 33 MTD and 73(RECAP) Response in support of 42 Cross-MSJ. Both filed by defendants (at least the filings are showing up, as the docket info is not being updated).
#72 is the County saying that it is the State that should be sued, not them, therefore the MTD should be granted. #73 is the State responding to the Amicus for the plaintiffs (did I say that this was a stupid brief?), saying that regulations on concealed carry are numerous, throughout the US. On 03-15-2011, in Peterson v. LaCabe, the final judgment was entered. #46 on the docket. Appeal to the 10th Circuit is next. This is the second case to reach this point. Peruta was first (9th Circuit), but does not contain the issues presented by Peterson. On 03-16-2011, in Muller v. New Jersey, the defendants (finally) filed their Opposition & Cross-Motion to Dismiss. They start their brief in the (now) expected manner: New Jersey’s requirement that one qualify for a license in order to carry a handgun beyond one’s home is a constitutionally permissible, reasonable regulatory measure that does not implicate the right to possess a handgun in one’s home for purposes of self-defense.Taking the course that even if carrying outside the home, actually implicates the 2A, that the State has a narrowly tailored law to protect all of its citizens (compelling interest) and therefore passes any level of constitutional muster as the least burdensome manner of regulating guns, beyond the home. In plain language, New Jersey is saying that there is no right to self-defense, by carrying firearms, beyond the home, and in the alternative that if there was such a right, their laws pass strict scrutiny. On 03-16-2011, in Benson v. Chicago, the City has filed its reply in support of the MTD Count V (#103 on the docket). The next day (03-17) the Court granted the extension for discovery by the City (#109) and has taken under advisement the MTD (#111). Status hearing is now set for June 6. Consolidated Report: Second Amendment Arms v. Chicago. I've really had a hard time with this particular case. The attorney is clearly out of his depth here. Briefs are filed with clear grammatical and spelling errors. Chicago is pullings its normal "stall" and the plaintiff is not filing on time. Here is a timeline on what has been happening: Quote:
|
|
March 20, 2011, 04:52 PM | #136 | |
Moderator Emeritus
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,660
|
Another case that isn't going to be of much (if any) help, is Birdt v. Beck. I checked in just long enough to update the docket (which hadn't been updated since early last January).
Quote:
It actually would have been better to stay the case.... |
|
March 21, 2011, 01:52 AM | #137 | ||
Member
Join Date: May 18, 2004
Posts: 18
|
Quote:
Quote:
Peruta brought up similar issues in a sense, but the situation between the two cases are a bit different. There is no UOC option in Denver. |
||
March 21, 2011, 01:44 PM | #138 |
Senior Member
Join Date: August 16, 2007
Posts: 2,153
|
Wow, Gray Peterson right here on TFL! Nice to see you here. Thanks for chiming in.
|
April 4, 2011, 07:13 PM | #140 |
Senior Member
Join Date: May 22, 2007
Location: Arizona
Posts: 5,295
|
Thank you again for all of your hard work.
|
April 4, 2011, 09:09 PM | #141 |
Moderator Emeritus
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,660
|
I'll go out on a limb and say that based upon the questioning of the orals, Alan Gura will win his TRO.
Chicago was PWNED! |
April 5, 2011, 02:45 AM | #142 |
Senior Member
Join Date: August 2, 2010
Location: Not far enough from Chicago
Posts: 394
|
Yes, the Chicago gun range ban case audio file was very entertaining. Gura seemed to do a damn good job. The Chicago lawyer seemed to **** off the judges. It didn't seem he could tell the difference between regulation and prohibition. He and the judges were clearly not on the same page which was much to our advantage.
|
April 5, 2011, 12:44 PM | #143 |
member
Join Date: June 12, 2000
Location: Texas and Oklahoma area
Posts: 8,462
|
That was a very entertaining oral argument. It also shows how shaky the arguments that have been beating us are and how easily they will fall if subjected to any real rational analysis.
Thanks for sharing the link! |
April 5, 2011, 02:52 PM | #144 |
Staff In Memoriam
Join Date: October 31, 2007
Location: Western Florida panhandle
Posts: 11,069
|
That chicago lawyer had more "hims and hahs, imms and errs, bu-bu-bu whir, ummm burr..." than I have had the pleasure of hearing in recent memory...
Brent |
April 5, 2011, 03:58 PM | #145 | |
Staff
Join Date: September 27, 2008
Location: Foothills of the Appalachians
Posts: 13,057
|
From the male judge:
Quote:
James Feldman represents Chicago in this case. Apparently his dissembling and stammering in orals for McDonald v. Chicago weren't grim enough, and they decided to give him a second chance.
__________________
Sometimes it’s nice not to destroy the world for a change. --Randall Munroe |
|
April 5, 2011, 05:02 PM | #146 | |
Moderator Emeritus
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,660
|
The panel consisted of;
Judge Michael S. Kanne, 1987, Reagan. Judge Diane S. Sykes, 2004, G.W. Bush Judge Llana Rovner, 1992, G.H.W. Bush Lots of memorable exchanges in this, but this exchange is the one that Tom pointed out: Quote:
|
|
April 5, 2011, 06:08 PM | #147 |
Staff
Join Date: September 27, 2008
Location: Foothills of the Appalachians
Posts: 13,057
|
I just went back through the recording, and Kanne's actual wording was, "my guess is, from the reading of these briefs, a lot of people that prepared this have never been to a firing range. [28:30]"
Funny thing is, there was a time when someone could have persuaded a court with an argument like, "when people congregate with guns, things that might be…just…um…casual disagreement, or fights, can end up causing injury or harm." The main problem for Feldman is that he kept bringing up regulatory concerns as justification for an outright ban. Judge Sykes observed that "those are regulatory concerns. This is a prohibition. This is an absolute ban. (…) This ordinance is prohibitory, it's not regulatory. That's a huge difference for 2nd Amendment purposes. [23:15]" Feldman still didn't get it, and he kept going off on the "stray bullet" thing. He also tried to dredge up ordinances from the Founding era that outlawed the discharge of weapons in populated areas. As the court noted, those ordinances had nothing to do with controlled ranges; they were meant to keep people from shooting in the streets. Feldman tried to equate "open discharge" of firearms with their discharge on a controlled range, but the court wasn't hearing it. At that point, Judge Rovner observed, "you will probably have some real problems when this reaches the merits. [25:35]" Kanne also pointed out that Federal courthouses had indoor shooting ranges in them, and from the tone of the conversation, it sounded like he (and possibly Judge Sykes) were well familiar with them. Judge Sykes was the one to watch. She reiterated her argument from the Skoien case that the 2nd Amendment deserved strict scrutiny, and that it enjoyed the same protections as the 1st.
__________________
Sometimes it’s nice not to destroy the world for a change. --Randall Munroe |
April 5, 2011, 10:32 PM | #148 |
Moderator Emeritus
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,660
|
Another Case Just Popped Up Today
SAF joined in a lawsuit with the New York State Rifle & Pistol Association and five individual New York City residents. They have sued New York City, Mayor Bloomberg and the NY AG Eric Schneiderman to invalidate the City's $340 dollar fee for a 3 year premises permit (on top of a 94.25 fee for processing the applicants fingerprints and the State criminal background investigation).
The suit alleges that the fee impermissibly burdens the Second Amendment Right to Keep and Bear Arms. Additionally, the suit alleges that the State law, by exempting NYC (from the maximum $10 fee in the rest of the State), fails on equal protection grounds. The SAF announcement is here and the complaint is here. The attorney is David D. Jensen, PLLC, New York and New Jersey. This is the attorney handling the Muller v. Maenza (NJ) case. He has separated from his former law offices (Duane Morris LLP) and has a (limited) website here. |
April 7, 2011, 08:05 PM | #149 | |
Moderator Emeritus
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,660
|
I'm a little late, but....
Calendar of events in Wollard v. Maryland. From #23 on the docket: Quote:
|
|
April 8, 2011, 01:45 AM | #150 | |
Senior Member
Join Date: August 16, 2007
Posts: 2,153
|
Here's Gura's hit-list in the text:
Quote:
|
|
Thread Tools | Search this Thread |
|
|