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October 24, 2012, 12:30 PM | #201 | ||
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There were three other cases to be heard, before the Woollard case. Orals are over and first impressions from two sources are not favorable. First comment:
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The appellate attorney in MD was called away for some important business things and had to change his plans to attend the hearing. Friday, the Court will have a link to the orals, and we can all judge for ourselves. |
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October 24, 2012, 04:31 PM | #202 | ||
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http://www.baltimoresun.com/news/mar...,1794695.story
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October 24, 2012, 08:24 PM | #203 | |
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Here's how this really works. These judges want to assume that we only have those civil rights that the US Supreme Court have ruled on and hence granted us. We have to fight that attitude at every turn. If their view was correct, then circa 1793 or so the federal government would have had the right to, say, torture confessions out of people or otherwise violate every element of the Bill Of Rights - because the US Supremes hadn't had a chance to rule on much of anything in the 1792 BoR. And that's clearly absurd. We have a right to keep and BEAR arms. Period, end of discussion. The second part of that sentence exists. The courts are there to protect it, not to grant it out of whole cloth. We have to fight the BS or nobody else will. We cannot repeat the lies, not even "sorta".
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October 24, 2012, 10:17 PM | #204 |
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I agree with Jim. There is no validity to the "in the home" view. Various anti-gun judges are using Heller to fabricate that perspective, but it's not valid. The discussion in the Heller case revolved primarily around keeping a gun in the home for exactly one reason: Being allowed to keep a gun (assembled and ready to use) was what Heller asked for. But the ruling was a discussion about and a decision regarding whether the right to keep AND BEAR arms is an individual right, or a collective right. Both Heller and McDonald discussed at length why it is an individual right.
End of discussion. Neither case discussed or decided that the RKBA ends at the front door of your residence. Al Norris quoted Krucam as saying this view is "sorta right," but it is NOT sorta right. It is completely wrong, and we should not allow ourselves to be bullied or persuaded into thinking it is even "sorta" right, even for one nanosecond. |
October 25, 2012, 12:18 AM | #205 |
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Mark is correct in saying, "sorta truth."
It is a question of scope which has yet to be fully established. Guys, it really doesn't matter what you or I say. At this stage of things, it matters a great deal what the Court says. So far, the courts are (pretty much) all zeroing in on the exclusive remedy in Heller and ignoring the more broadly worded language that actually incorporated the right (McDonald). |
October 25, 2012, 05:26 AM | #206 | |
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It is not "sorta true." It is true (not even "sorta") that some courts are using the "in the home" point on which to hang their hats in doing their best to deny the RKBA to people within their jurisdictions. The fact they are doing this does not make it true that the RKBA applies only within the home. |
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October 26, 2012, 01:30 PM | #207 |
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The MP3 of the orals are here: http://coop.ca4.uscourts.gov/OAarchi...7-20121024.mp3
I won't have time to listen until after work. |
October 26, 2012, 03:01 PM | #208 |
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Ugh.. 4 minutes of the judge dropping hints that there's a jurisdiction problem... (Rooker-Feldman)
He should just ask "Is there any way that anyone can think up that I can get out of having to deal with this case?" |
October 26, 2012, 06:59 PM | #209 | |
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I still need time to go over the audio, but it appears to me that this panel will concoct whatever method they can, to avoid the question... Even if it means quoting Judge Wilkinson from Masciandaro (it was suggested they kick it up to the SCOTUS - Judge Davis, I think)! |
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October 26, 2012, 07:32 PM | #210 |
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I thought Gura deftly disposed of the Masciandaro comparison. The machinations to avoid a straight-up constitutional question by this panel were rather a spectacle to behold.
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October 27, 2012, 08:59 PM | #211 |
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Having listened, I'm coming away with an entirely different perspective than the opinion I've already reported. Of course, I wasn't there and cannot base my opinion upon body language. However...
What I heard was Faber being questioned without mercy and constantly being interrupted. The panel barely gave him time to answer, before being pelted with another query from a different angle. Much hemming and hawing by the appellant. You might have also noted that when Faber's time was up, he was abruptly silenced. Contrast that with Gura's argument time, who, when appraised that he was 44 seconds over, the court insisted he finish his thought. At rebuttal, Faber was again, cut off. Also note, that the court had to correct Faber as to what exactly the Rooker-Feldman doctrine was all about. Faber was wholly unprepared for this line of questioning. Contrary to what has been reported, Alan Gura started his time with the Rooker-Feldman doctrine, in order to clarify to the court, why it was inapplicable. Something that Faber failed to do, please note. Another thing I noted was that contrary to the way the court questioned Faber, Gura was given comparatively free reign in his answers. There were three separate times that Gura expounded upon the salient wording of Heller (twice) and McDonald (once), with virtually no interruptions from the court. These Judges (yes, even judge King) were very interested in what Gura had to say. Add to this the time spent explaining why Masciandaro and Williams were not on point, and I've come away with the feeling that the court knew that the State had painted itself into a corner. They gave Faber every chance to redeem his case, and Faber flubbed it, big time (he literally shot his own foot, at the end of his rebuttal). I also agree that Judge King is anti-gun and was looking for even the most tenuous thread to overturn the district court (hence the attention to the jurisdictional issue). That being said, I also feel that Judge Davis' remarks about kicking the case up the ladder, was made as sarcasm to Judge King, himself. All in all, I feel much better about this case, having listened to the audio, this third time around. |
October 29, 2012, 01:01 AM | #212 |
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In response to Davis hypothetical revolver vs semi-auto question... I think Gura was about to say "I think the state would have a stronger claim actually prohibiting (revolvers).
The logic being that there has been a trend toward using semi-automatics, a trend AWAY from using revolvers. So an argument could be made that semi-automatics are arms of the kind in common use for traditional lawful purposes - revolvers, less so. Or perhaps an argument could be made that revolvers are no longer arms of the kind in common use for traditional lawful purposes. Ha ha ha ha... I just thought it was funny that Alan Gura almost said that (hypothetically) a state might have an argument for banning revolvers. He was interupted by Judge King before he finished his sentence (thank Heaven for small favors) It's at 27:20 on the oral... Last edited by Luger_carbine; October 29, 2012 at 01:08 AM. |
October 29, 2012, 01:52 PM | #213 |
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Alan Gura has filed a written response to Judge Kings Rooker-Feldman inquiry, by filing a 28J letter, after the close of arguments.
Pay special attention to the closing paragraph, however! |
October 30, 2012, 10:23 AM | #214 | ||
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I see nobody is willing to comment, so here is the paragraph I thought was interesting:
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If the court of appeals really wants direction, it can bypass (the normal method of) certiorari and have the SCOTUS intervene, directly. Wishful thinking perhaps, but a sneaky way of telling the panel not to pull a "Wilkinson?" |
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October 30, 2012, 10:43 AM | #215 |
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Did Davis threaten to enter a decision to get it up to SCOTUS?
I missed that... |
October 30, 2012, 10:48 AM | #216 |
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Thanks for the clarification, Al. Very interesting alternative I was unaware of.
Wouldn't it be a hoot if the panel opted for Door #2?
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October 30, 2012, 01:21 PM | #217 |
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Davis somewhat informally mused that maybe they should just "do everyone a favor" and decide the question of outside-the-home in order to kick it up to SCOTUS. Gura apparently seized the opportunity to remind the court of another available option. If they do not avail themselves of it, what inference could be drawn?
Is this 'question' method of seeking guidance at all common? This layman hasn't heard of it before now. |
October 30, 2012, 02:57 PM | #218 | ||
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Got my question answered. According to calguns member "Fabio Gets Goosed" in this thread, post #700
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October 30, 2012, 04:41 PM | #219 |
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As I've replied both at CGN and MDShooter, it's what "Fabio" doesn't say that counts.
A question that is certified by a CCA (as rare as it may be), must be answered by the Supreme Court. The choice that Court gets (the "may" part) is whether or not they answer the question in a binding interpretation or if they pull the entire case in to be decided (the "or" part). This isn't a petition seeking certification (essentially what certiorari means), it is a direct certified question that must be answered. As to why Gura inserted this tidbit, we can only speculate at this point. |
October 30, 2012, 07:25 PM | #220 |
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My initial reading was that Gura was indulging in a little sarcasm, in the spirit which the idea was offered by the one judge to the one hoping for a way out of making a decision.
I didn't know of the second path to SCOTUS without Al's explanation. For an attorney to advise a court, much less a panel, as to how to take a decision to SCOTUS, seems a little cheeky to me. Since the court seems tolerant of him, he might have decided to pull a little on their collective pork chop while reminding them of a way to hand the football off. I dunno.
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October 30, 2012, 08:55 PM | #221 |
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Here's is what I'm talking about in the context of saying, "Wishful thinking perhaps, but a sneaky way of telling the panel not to pull a 'Wilkinson?'":
“[i]f the Supreme Court, in this [Heller] dicta, meant its holding to extend beyond home possession, it will need to say so more plainly.” Williams v. State, 417 Md. 479, 496 (Md. 2011). Quoted by Judge Harvey Wilkinson in United States v. Masciandaro, 638 F.3d 458 (4th Cir. 2011) (part IIIB). Remembering that Judge Wilkinson wrote a scathing rebuke of the Heller decision (and Justice Scalia - Of Guns, Abortions, and the Unraveling Rule of Law), to which Alan Gura wrote his own response, this may indicate a further response to the circuit, in general, and (a further rebuke to) Judge Wilkinson is particular (yes, Judges do talk to one another). Of course, this is mere speculation on my part. I have no inside information. |
October 30, 2012, 10:25 PM | #222 | |
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I have to retract part of my explanation of how 1254(2) works. I was wrong.
It was called to my attention on both MDShooters and CGN, So I just refreshed my memory on the Supreme Courts' Rule 19. To recap, 28 U.S.C. § 1254(2) reads as follows: Quote:
upon such certification the Supreme Court may give binding instructions;or[may] require the entire record to be sent up for decision of the entire matter in controversy. The above reading squares with Rule 19 and what the Court did in United States v. James Ford Seale, a 2009 case mentioned at MDShooters and alluded to by "Fabio" at CGN. It obviously doesn't matter if I agree or disagree with this interpretation. It is what it is. |
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November 14, 2012, 04:45 PM | #223 |
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Dumb question: Anyone know when we'll have a ruling on this case?
Even dumber question: Did I miss the ruling? |
November 14, 2012, 04:49 PM | #224 |
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You didn't miss anything. Orals were October 24. Conventional wisdom says 3-6 months for a decision.
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December 3, 2012, 08:44 PM | #225 | |
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After the Kachalsky opinion from the CA2 was given, the State drafted a 28J letter and noticed the ruling to the court (27 Nov.).
Alan Gura has sent a reply to that 28J notice (attached). Most telling is the final paragraph (emphasis, mine): Quote:
The States 28J letter is here: CA4-28jappellees.pdf |
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