NJ Carry: Drake v. Filko (Muller v. Maenz)

[Patriot86]

I thought we had anti judges here in Illinois, at least the judges here occasionally make the state get around to what the lawsuit is all about instead of stringing out the process for as long as possible.

[ltc444]

In response to Standing Wolf comment on the spam filter block.

When dealing with hostile legislators, i always send my comments the old fashioned way. I use paper, an envelope and a stamp.

It is easy to ignore an e-mail. Just hit the delete button. Occupying the staff's time with a heavy volume of paper will get their attention a lot quicker than spurious electrons.

[KyJim]

Is New Jersey essentially saying "We acknowledge that we have no case but please help us string out the status quo for as long as possible"?

Without seeing the extension motions, I wouldn't read too much into a motion for an extension at the appellate level. Government lawyers who practice in the appellate courts have no way to control their workload. The only recourse is to reschedule some briefs. Most appellate courts will be somewhat lenient on this except in unusual circumstances.

[Al Norris]

The appellee's response brief is out. Still reading.

[Aguila Blanca]

Here we go again (or still). From the Table of Contents (I haven't even gotten to ther meat yet: "Heller Only Recognized a Right to Bear Arms for Self-Defense in the Home."

Applicants for a permit to carry a handgun must demonstrate that they: (1) are not disqualified by a disability enumerated in N.J. Stat. Ann. § 2C:58-3(c), (2) are thoroughly familiar with the safe handling and use of handguns, and (3) have a “justifiable need” to carry a handgun. N.J. Stat. Ann. § 2C:58-4c. The justifiable need requirement must be considered on a case-by-case basis. In re Borinsky, 830 A.2d 507, 516 (N.J. Super. Ct. App Div. 2003). Justifiable need means the “urgent necessity for self-protection, as evidenced by specific threats or previous attacks which demonstrate a special danger to the applicant’s life that cannot be avoided by means other than by issuance of a permit to carry a handgun.” N.J. Admin. Code § 13:54-2.4(d)(1) (2012); see also In re Preis, 573 A.2d at 152 (citing Siccardi v. State, 284 A.2d 533, 540 (N.J. 1971)).

Which lawyer was it in which case who made the point that the 2nd Amendment is part of the Bill of Rights, not the Bill of Needs?

The attorneys for the state are arguing that "reasonable regulation" means preventing 95 percent of the population from being "allowed" to exercise a right that the Constitution guarantees. Many other states have determined that "regulation" means the state can impose certain restrictions on the mode of carry, but cannot deprive the individual of the exercise of the right in its entirety. But that's what NJ does.

Longstanding regulatory measures like New Jersey’s are presumptively lawful and outside the scope of the Second Amendment.

I don't think so.

[maestro pistolero]

Which lawyer was it in which case who made the point that the 2nd Amendment is part of the Bill of Rights, not the Bill of Needs?

That would be Alan Gura in at least two cases, IIRC.

[Al Norris]

The reply brief is in.

I haven't read much of it yet (been reading the Woollard response), but it is a bit drier reading. I believe David Jensen is the author of this one.

I'll have a better commentary on it, tomorrow.

AAR, this will conclude the briefing schedule at CA3. The orals date will be announced in a few weeks,

[NJgunowner]

OK, that's an interesting read. Kind of painful really, but legal speak usually is

[Al Norris]

After 2 months and with nothing forthcoming from the CA3, Alan Gura states his reasons for an Oral Argument and essentially, requests a date.

10/02/2012 Open Document ECF FILER: Request by Appellants Association of New Jersey Rifle and Pistol Clubs Inc, John M. Drake, Finley Fenton, Gregory C. Gallaher, Daniel J. Piszczatoski, Lenny S. Salerno and Second Amendment Foundation Inc for Oral Argument. [SEND TO MERITS] (DDJ)

[Al Norris]

11/02/2012 Open Document Calendared for Tuesday, 02/12/2013. (TLW)

11/05/2012 Open Document ECF FILER: ENTRY OF APPEARANCE from Alan Gura on behalf of Appellant(s) Daniel Pisczcatoski, John Drake, Gregory Gallaher, Lenny Salerno, Finley Fenton, Second Amendment Foundation, Inc., Association of New Jersey Rifle and Pistol Clubs, Inc.. (AG)

11/05/2012 Open Document ECF FILER: ARGUMENT ACKNOWLEDGMENT filed by Attorney Mary E. Wood, Esq. for Appellees Rudolph A. Filko, Attorney General New Jersey, Superintendent New Jersey State Police, Edward A. Jerejian and Thomas V. Manahan, Esq.. Certificate of Service dated 11/05/2012. (MEW)

11/06/2012 Open Document ECF FILER: ARGUMENT ACKNOWLEDGMENT filed by Attorney Alan Gura, Esq. for Appellants Association of New Jersey Rifle and Pistol Clubs Inc, Daniel J. Piszczatoski, John M. Drake, Gregory C. Gallaher, Lenny S. Salerno, Finley Fenton and Second Amendment Foundation Inc. Certificate of Service dated 11/06/2012. (AG)

11/07/2012 Open Document ECF FILER: Certificate of Service filed by Attorney Mary E. Wood, Esq. for Appellees Rudolph A. Filko, Attorney General New Jersey, Superintendent New Jersey State Police, Edward A. Jerejian and Thomas V. Manahan, Esq. Certificate of Service dated 11/05/2012.--[Edited 11/14/2012 by TLW] (MEW)

The above means that a hearing for orals determination are tentatively scheduled for 02-11-2013. Unless... The panel decides no orals are needed, in which case the parties will be notified at least one week prior to the date of the argument.

What I think we are seeing here, is the CA3 milking this in order to see what the 7th, the 2nd, and the 4th circuits will do.

[Dead]

If CCW becomes reality for the average person in NJ, then there will be one reason to reside within it's boarders... One reason only

[Horny Toad]

Originally Posted by Dead

If CCW becomes reality for the average person in NJ, then there will be one reason to reside within it's boarders... One reason only

If CCW becomes reality for the average person in NJ, pigs will surely be flying.

[MLeake]

Everyone seems to think of Bayonne or Newark...

NJ has some nice areas. Warren County up north is actually pretty and rural.

New Brunswick area isn't bad.

Princeton area is quite nice.

I have family in NJ; I prefer when they visit me, due to the stupid gun laws up there, and I don't particularly wish to live up that way, but it has some nice features.

[RedBowTies88]

South jersey is very nice as well and extremely rural. I live in cape may.

Its a shame we all have to suffer the stupidity of the suburban and city area's...an even bigger shame that the federal goverment has no real interest in enforcing the constitution.

I sure do hope this case makes it somwhere...but of course I'm not holding my breath. Freedom is just a little too much to ask for...in some parts of the country anyway. Most likely we will be forced to continue to walk the streets at the mercy of criminals until SCOTUS gets involved... Even then i'm sure NJ will drag its feet whenever possible.

[RedBowTies88]

I just saw this on a local NJ forum I'm a member of. I feel that it's relevant as it was a quite similar case.

Take a look.

http://njgunforums.com/forum/index.p..._fromsearch__1

[Dr Big Bird PhD]

RedBowTies, it would let me view the thread unless I am a member of the forums.

[Al Norris]

Yesterday, the 3rd Circuit ordered the parties to file supplemental briefs in regards both the Kachalsky (CA2) and Moore (CA7) decisions. Briefs can be no more than 10 double-spaced pages and must be filed no later than Monday, Jan. 28th.

[62coltnavy]

Just waded through the reply. One of my favorite parts was the discussion of the different level of review required when a law is a regulation vis a prohibition. A prohibition madates strict scrutiny, a regulation (time, place and manner) requires only intermediate scrutiny. It will be interesting to see what the 3rd does--will if follow NY and deny a challenge to "good cause" rquirements, or follow the 7th and conclude that there must be some form of carry allowed in order tocomply with constitutional mandates. The fifference between the two cases, though, is that Illinois bans concealed carry entirely, while NY, as Md and NJ, only make it nearly impossible to carry because of the discretion granted public officials. With all the Sandy Hook broohaha and the recent NY firearms ban, I think a bunch of courts that might be inclined to follow Woolard or Moore are having second thoughts. (One thng I always hated about Con Law was that it always seemed to me more political and result driven than, despite the lip service, driven by logic.) Then again, a grant of cert in Kachalsky will put all of these cases on hold for at least another year.

Good brief. I think Jensen probably did write as it lacks some of the fire Gura is known for.

[Al Norris]

The case that may be the tipping point is, Woollard.

Should the CA4 reach a favorable (for us) decision, despite what the CA2 decided, despite Sandy Hook, then we will most likely see a cert grant in Kachalksy.

The CA3 judges are not stupid. They know all of this. Their choices are to side with the badly worded and decided decision in the CA2, or to go with the decision by CA7 Judge Posner and that of the district court by Judge Legg (remembering that 2 other cases in the CA4 were also decided in favor of the right to carry, at about the same time as Woollard).

The CA3 panel could conceivably render a decision before the cert stage is over in Kachalsky. This could be an indicator to the SCOTUS.

Likely scenario at this point in time is for both the CA4 and the CA3 to hold their decisions until after a grant or denial of cert in Kachalsky.

ETA: Both David Jensen and David Sigale are understudies to Alan Gura.

[62coltnavy]

I don't knoe the rules on petitions for cert. How long does the SCOTUS have to decide whether to grant? (In my state appellate syustem, there are mandatory and jurisdictional time frames, but I don't think the feds have them.)

[esqappellate]

correct no limit but by tradition the end of the term but even then they can carry over if they want

[Al Norris]

Pursuant to the CA3 request for a supplemental briefing on the decisions in Kachalsky and the decision in Moore, Alan Gura and New Jersey both filed their respective briefs.

In eleven double-spaced pages, Alan Gura lays out exactly why the ca2 decision was wrong and why the CA7 decision was correct. This is a very compelling brief.

Whatever activity may lie at the Second Amendment’s core, “the interest in self-protection is as great outside as inside the home.” Id. “To confine the right to be armed to the home is to divorce the Second Amendment from the right of self-defense described in Heller and McDonald.” Id. at 12. Accordingly, the Seventh Circuit expects that ordinary Chicagoans will soon be able to carry handguns for self-defense. Id. New Jersey’s denial of the right to bear arms for all but those with exceptional self-defense needs would not survive Moore.

Moore properly recognized that “degrees of scrutiny” are not always required, as indeed they were not in that case. Id. at *26-*27. Nor are they required here, where the State simply denies that bearing arms is a right. And while intermediate scrutiny might weigh “the curtailment of gun rights” of a narrow criminal class against state interests, justifying laws infringing “the gun rights of the [state’s] entire law-abiding adult population” requires “a stronger showing.” Id. at *21.

CONCLUSION

Kachalsky largely discards history, text and precedent. Moore provides the better example of the path forward.

New Jersey, on the other hand, starts with false assumptions right out of the gate:

In Moore v. Madigan, the Seventh Circuit struck down a handgun licensing scheme from Illinois that operated as a complete prohibition on possession of a handgun in public. 2012 U.S. App. LEXIS 25264, at *21-22.

There was no licensing scheme at all in IL. What was struck down was a pair of laws that forbade any public carry at all.

From that point, agrees completely with the decision in Kachalsky (of course) and twist the Moore decision, in carefully selected quotes, so that in appearance, Judge Posner agrees with New Jersey (and by inference, kachalsky).

Like the above quote, this is also a misleading argument. Judge Posner took the kachalsky panel to task over their shoddy decision.

[Willie Sutton]

^^ Excellent reading, and as usual thanks for your diligence in posting the PDF files.


BTW, I know that I read the files, and the count of "viewed" still reads zero. I would not put too much stock in the counter.



Willie

.

[Al Norris]

Orals were held today. This is a must hear oral argument.

12-1150DanielJ.Piszczatoski,etalv.TheHon.PhilipMaenza,etal.wma

[raimius]

I've only made it through the first 20 minutes, but that is some heavyweight discussion going on. I'm kind of sad they went "intermediate scrutiny" so quick and used it as a baseline...and the one judge's admiration of Kachalsky...

So, people who are more acquainted with oral arguments, what's your take?