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Old October 28, 2011, 09:11 PM   #276
Al Norris
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Yesterday, Oct 27, Pltf Mishaga filed a response to defdnt MSJ.

If you recall, back on the beginning of Oct, the State filed its MSJ and made several assumptions on how the Il FOID Act operated. In this brief, attorney James Manley pokes holes large enough to drive a tractor-trailer rig through.
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Old October 31, 2011, 08:12 PM   #277
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FYI

I'm a big fan of browsing SSRN (Social Science Research Network) for scholarly papers that deal with the RKBA.

I have long opined what the holding in both Heller and McDonald said about the right to bear for self defense. It seems that at least one scholar agrees with my layman's assumptions. Associate Professor Michael O'Shea, OK City University School of Law, has written an in-depth paper that will be published in the American University Law Review (Vol. 61 - 2012).

Modeling the Second Amendment Right to Carry Arms (I): Judicial Tradition and the Scope of ‘Bearing Arms’ for Self-Defense, is excellent reading and an excellent reference... Be warned, at 107 pages, this is not "light hearted" reading.

http://papers.ssrn.com/sol3/papers.c...act_id=1949477
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Old November 2, 2011, 09:55 PM   #278
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There are a couple of things that are happening at the moment. As you know, the Masciandaro case was distributed for the Nov 22 conference, on Tuesday, Nov 1. Also distributed, for the same conference, was the CA case, Chein v. California.

Also on Nov 1 in the New Jersey Case, Muller v. Maenza, Muller was dismissed as a plaintiff, as well as his defendant, Judge Maenza. Last any of us heard was that Muller had an appeal in State Court (along with this federal complaint), and won his permit. So it makes sense that he is now dismissed. The case will be renamed, and will proceed... Since Muller was dismissed with prejudice, it's entirely possible the defendant Judge complained that Muller had indeed received his permit and Muller's claim was therefore moot.

Nothing on that docket shows where the Court was notified of this. At any rate, the case should now proceed with the cross motions for summary judgment.

Then there is something going on with the Moore v. Madigan, Il carry case. From the Docket:

Quote:
11/02/2011 35 TEXT ORDER: The Court has received a letter in reference to this case that it has forwarded by United States Postal Service mail to the Parties. Entered by Judge Sue E. Myerscough on 11/2/2011. (VM, ilcd) (Entered: 11/02/2011)

11/02/2011 36 +++ SEALED DOCUMENT - ORIGINAL DOCUMENT UNREDACTED Letter. (VM, ilcd) (Entered: 11/02/2011)
According to Krucam (MDShooters), the highlighting you see above is just what was found at PACER. Something is shaking in this case, we just don't know what. Yet.
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Old November 8, 2011, 11:29 AM   #279
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In Lane v. Holder, responses were filed by the VA AG and the US AG at the 4th Circuit.

See this thread.
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Old November 9, 2011, 10:17 PM   #280
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Quote:
11/09/2011 50 BRIEF & SPECIAL APPENDIX, on behalf of Appellant-Cross-Appellee Eric Detmer, Alan Kachalsky, Anna Marcucci-Nance, Johnnie Nance, Christina Nikolov and Second Amendment Foundation, Inc. in 11-3642, 11-3962, FILED. Service date 11/09/2011 by email, CM/ECF. [443302] [11-3642, 11-3962]
In case you don't recognize any of the above, today Alan Gura filed his opening brief in Kachalsky v. Cacase in the 2nd Circuit Court of Appeals.


Quote:
The Supreme Court has always accepted that the Second Amendment’s guarantee extends beyond the threshold of one’s home. As early as 1857, the infamous Dred Scott case reasoned that no Southern state would have adopted a constitution obligating it to respect privileges and immunities of citizenship held by African-Americans, including “the full liberty . . . to keep and carry arms wherever they went.” Scott v. Sandford, 60 U.S. (19 How.) 393, 417 (1857) (emphasis added).

While Scott’s odious holding was never correct, the opinion’s recognition of the fact that citizens enjoy a personal right carry arms was no aberration...
Mr. Gura goes on to list a few other historic cases and then add from Heller:

Quote:
Having defined the Second Amendment’s language as including a right to “carry” guns for self-defense, the Court helpfully noted several exceptions that prove the rule. Explaining that this right is “not unlimited,” in that there is no right to “carry any weapon whatsoever in any manner whatsoever and for whatever purpose,” Heller, 554 U.S. at 626 (citations omitted), the Court confirmed that there is a right to carry at least some weapons, in some manner, for some purpose. The Court then listed as “presumptively lawful,” Heller, 554 U.S. at 627 n.26, “laws forbidding the carrying of firearms in sensitive places,” id., at 626, confirming both that such “presumptions” may be overcome in appropriate circumstances, and that carrying bans are not presumptively lawful in non-sensitive places.
Alan Gura then cites and explains the 4 cases, Nunn; Andrews; Reid and Chandler that the Heller Court viewed as favorable, as well as several others, to further emphasize that individual carry is a right that extends outside the home.

Alan Gura emphasizes that while the State may regulate the form of carry, it cannot leave unbridled discretion, by a State actor, to deny the people of that right.

Alan Gura thoroughly attacks each and every aspect of the lower courts decision. In this, his opening salvo, it is anything but "brief." Sixty-seven pages long (not counting TOC and appendices), but still a very good read.

If I had anything else to add, it would be that Judge Legg (Woolard v. Brown (Maryland)) take a long hard look at this brief, before making his decision, especially if he bases it on the Kachalsky opinion.
Attached Files
File Type: pdf 50 Kachalsky CA2 Pltf Opening Brief.pdf (1.35 MB, 37 views)
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Old November 22, 2011, 11:46 PM   #281
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In Gonzales v. City of Omaha, a hearing was held for a preliminary Injunction today and was issued by the Judge.

It is said that Omaha is looking to change their ordinance in order to grant the relief and moot the case. David Workman has the story, here.

At the same time, the defendants filed their response to the complaint and are claiming that they were already in the process of amending their ordinances before the suit was filed. Therefore, the Court should grant a MTD and award costs of suit to the defendants. See Doc #29.
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Old November 28, 2011, 02:44 PM   #282
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In the orders that came out this morning, both Masciandaro (case #10-11212) and Chein (case #10-1474) were denied cert.

Orders
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Old November 28, 2011, 08:28 PM   #283
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Back on Nov. 18th, a hearing was held in Bonidy v. USPS. This was over the MTD that the government had filed on Apr. 25th.

The Judge denied the motion and ordered the government to reply to the plaintiffs 2nd amended complaint. The Judge also set scheduling conference for Jan. 25th, 2012.

Thanks go to Spats McGee for waking my brain up!
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Old November 28, 2011, 11:44 PM   #284
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More Updates!

The Case that refuses to die, aka Nordyke, is back! Twelve years and counting, Three times at the 9th Circuit and one other en banc before this one.

The 9th has agreed to hear the case, en banc.[/i]



On Tuesday, Nov. 22nd, 2011, Alan Gura filed the reply brief to the two responses in Lane v. Holder. See Thread for details.



Dearth v. Holder, on 11-21-2011, defendants filed their opposition to plaintiffs MSJ by filing a cross-MSJ. The defendants also filed an MJP on the same day. See the docket.
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Old November 30, 2011, 11:29 PM   #285
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A lot of times, we have a hearing on motions before the court. These can be enlightening (as we can see by the way the judge handles the hearing), particularly in the outcome of the judges decision.

Much of the time, these hearings can be dull, convoluted and hard to decipher.

Once in a while however, we can see a judge who is not only well versed in the concepts at issue, but a judge who is actually fair (in the common meaning of the term) to both sides of the argument.

Just after Thanksgiving, I was updating a couple of specific cases and came across the release of the transcript of the hearing in the Woolard case. I looked at it (the cost) and decided to use my limited funds to just update a few more dockets, instead. I couldn't have been more wrong if I had tried.

This morning, there was a short discussion about the transcript over at MDShooters. Mark had seen the docket entry but didn't realize that it could be accessed via PACER. I informed him how it worked and he RECAPped the transcript.

Thanks Mark. I really didn't expect you to spend your money on that.

Anyway, if you want to see how an informed and impartial Judge should conduct such a hearing, you can download the transcript, here. The file is 2.6MB in size and 77 pages long.

If you would like to comment on that transcript, we have a thread on Woolard, here.
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Old December 5, 2011, 10:54 PM   #286
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I had to think long about this one, as this is exactly the kind of "maverick" undertaking that Alan Gura, the SAF and to a lessor extent the NRA, has warned us about.

It is also a case that the folks at the CalGuns Foundation have tried to convince Charles Nichols not to bring. Until the Courts agree that we have a right to carry in general, lawsuits aimed at a specific form of carry can backfire. This is generally called putting the cart before the horse.

Of course, if Nichols loses at district, it will not mean much. If he appeals and loses at Circuit... Well, it then becomes precedent in the 9th and persuasive authority, elsewhere.

The case: Nichols v. Brown.

The case is filed pro per, and to give you an idea of the type of character that Mr. Nichols is, I offer you his own words: http://www.examiner.com/la-in-los-an...ry-the-nra-too

I'm going to hold my nose and add the case to the listings.



In other business, today:

In NRA, et al v. BATF (was Jennings at district court), the plaintiffs filed their opening brief in the 5th Circuit. Brief is attached and is a very good argument. The NRA attacks Judge Cummings (of Emerson fame) decision at the district without reserve.

See the Thread for the brief.
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Old December 11, 2011, 02:35 PM   #287
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Quote:
11/28/2011 [9922014] Deficient motion filed by Amicus Curiae NRA Civil Rights Defense Fund to release the oral argument recording (opposing counsel's position not cited). Corrected motion due on 12/08/2011 for NRA Civil Rights Defense Fund. Original and Served on 11/28/2011.
11/29/2011 [9922171] Corrected motion filed by Amicus Curiae NRA Civil Rights Defense Fund to release the oral argument recording. Served on: 11/29/2011. Manner of service: ECF/NDA. MB
12/09/2011 [9925223] Order filed by Judges Lucero, Baldock and Hartz granting Amicus Curia, NRA Civil Rights Defense Fund's motion to release oral argument recording. Served on 12/09/2011.
The NRA CRDF & CalGuns Foundation have made the audio of the orals available in the Peterson v Martinez (was Kilroy, was Garcia, originally LaCabe) case, now at the 10th Circuit (mp3 - 3.9MB).

http://www.hoffmang.com/firearms/pet...2011-11-17.mp3



I don't normally do this, but Gray Peterson is a great guy and has stepped forward to be a test case. The following is from his sig over at CalGuns.net:

Quote:
Want to make it where states and counties can no longer deny the right to keep and bear arms because of your residency? Make a tax-deductible donation via Paypal to my CGF-supported case, Peterson v. Martinez, and we can tear down that infringement on our right to travel with our functional firearms.
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Old December 15, 2011, 12:53 PM   #288
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Second Amendment Arms v. Chicago,

The defendants lawyer had hard drive died in his PC and has requested an extension. New date is 12/28/2012.
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Old December 21, 2011, 09:28 AM   #289
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California has this thing called the Safe Handgun Roster.

Essentially, only handguns listed on the roster are available to purchase by CA residents.

The CA law that enables this "roster of safe handguns" is nothing short of extortion by the State. A manufacturer must submit to the testing authorities, two handguns (one of which will be tested to destruction) and pay an initial fee to the State for this testing. Once the handgun passes the test, it is available for sales in CA.

But it doesn't stop there. The manufacturer must pay a fee each and every year, after this, in order to keep that particular handgun on the CA roster. If the manufacturer provides the handgun in different colors, left handed safety vs. right handed safety, only the style of handgun that was tested is deemed "safe."

So it is very much a means of legal extortion.

This law is being attacked in court by Pena v. Cid.

So far, this case, which was filed back in May of 2009, has been placed on hold for most of the duration of the Nordyke litigation (and to a lessor extent, McDonald). The State has argued that Nordyke may provide a method of scrutiny.

On Dec. 15th, the stay was finally lifted, only to be stayed, once again yesterday, the 20th, after the State notified the court that Nordyke was (once again) granted en banc status.

It is clear that this judge does not want to have to litigate this case.
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Old December 22, 2011, 06:35 PM   #290
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The other day when I reported on the stay in Pena v. id, I had heard rumors that Richards v. Prieto would also be stayed. It's now official.

Quote:
[b]12/20/2011[/b[ 40 Filed clerk order (Deputy Clerk: HL): The court stays proceedings in this appeal pending this court’s en banc decision in Nordyke v. King, No. 07-15763, 2011 WL 5928130 (9th Cir. Nov. 28, 2011) (granting rehearing en banc). [8006418] (WL)
Also stayed, is Peruta v. San Diego County.

Quote:
12/20/2011 77 Filed clerk order (Deputy Clerk: HL): The court stays proceedings in this appeal pending this court’s en banc decision in Nordyke v. King, No. 07-15763, 2011 WL 5928130 (9th Cir. Nov. 28, 2011) (granting rehearing en banc). [8006308] (SM)
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Old December 22, 2011, 07:15 PM   #291
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Some of the stayed cases hardly seem on point with Nordyke. Could there be inside info that there will be some sort of scrutiny bombshell expected from the en banc decision? Hmmmmmm.
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Old December 22, 2011, 07:24 PM   #292
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Meastro, you may have already seen this, but I just found another case that is now stayed...

Do you remember the Montana Shooting Sports Foundation and their case to uphold the Montana Firearms Freedom Act? That was shot down at the district court and they appealed to the - wait for it - 9th Circuit Court of Appeals.

That case has also been stayed pending a decision in Nordyke. Link to Ammoland.

At this point, I'm willing to bet that any case in the 9th that deals with the 2nd, 19th or 14th amendments and have the word "firearms" in any briefs, will be or have already been stayed.

The 9th is set to hear Nordyke on or about the 9th of March, IIRC.
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Old December 23, 2011, 09:51 PM   #293
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Another CA case was filed today. A Christmas present from CalGuns Foundation:

Jeff Silvester et. al. vs. Kamala Harris, et. al. Filed on 23 Dec., 2011 in the Eastern District (Fresno) of California. This lawsuit seeks to overturn the 10 day waiting period on firearms for those persons who already own firearms. Jason Davis, attorney.

Docket is here. Complaint is here.
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Old December 29, 2011, 07:26 PM   #294
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Alan Gura Wins In D.C. Claim for Fees.

As announced elsewhere, the Judge in Parker v. DC (aka Heller) has awarded Alan Gura and his team $1.1 million. Here's the docket. The file you want is at the bottom. Entry #86.

The only thing that can upset this is if D.C. appeals the award... Yeah, they are that stupid.

If that happens, Gura might still get his enhanced fees.
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Old December 30, 2011, 10:02 PM   #295
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Oral Arguments have been tentatively scheduled in Lane v. Holder:

Quote:
12/30/2011 34 CASE TENTATIVELY CALENDARED for oral argument during the 3/20/12 - 3/23/12 argument session. Notify Clerk's Office of any scheduling conflict by: 01/09/2012 [11-1847] (JLE)
This is in the 4th CCOA.

What makes this very interesting is that orals in the en banc Nordyke is scheduled for around the 9th of March in the 9th CCOA, and ...

Peterson v. LaCabe will hear their continued (2nd round) oral argument on or about March 19th in the 10th CCOA.
SIDE NOTE: In the order for the next round of orals, the panel has set aside an additional 10 minutes to hear from the amici curiae.

There were 3 amici to this action: NRA Civil Defense Fund; Brady Center; and CalGuns/SAF. As yet what we don't know is if the court will hear from all three or two or one... And which ones. John Monroe (Gray's attorney) is waiting for clarification from the court.
March will be a busy month for gun rights in the Circuit Courts.
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Old December 31, 2011, 11:47 AM   #296
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Late last night, the plaintiffs brief in opposition to the defendants Motions in Dearth v. Holder was made available:

Quote:
2011-12-30 28 Memorandum in opposition to re 25 MOTION for Judgment on the Pleadings or, in the Alternative MOTION for Summary Judgment (and Opposition to Plaintiff's Motion for Summary Judgment) MOTION for Summary Judgment (and Opposition to Plaintiff's Motion for Summary Judgment) filed by STEPHEN DEARTH, SECOND AMENDMENT FOUNDATION, INC.. (Gura, Alan) (Entered: 12/30/2011)
LOL! Did you follow that?

This brief was in opposition to the defendants MJP and in opposition to the defendants MSJ and in favor of their own MSJ.

"Sporting Purposes" was once again brought up by the AG and Gura responds to this early on:

Quote:
Originally Posted by Gura
the government has a hard time letting go of some of its avoidance doctrines, even after some of these were rejected by the D.C. Circuit. It also adds a few new fanciful defenses, such as the idea that Dearth must look to the Canadian government for protection of his Second Amendment rights in the United States.
Gura attacks the "Long Standing" argument and the idea that Mr. Dearth can go to Canada to rely upon his 2A rights, among others.

A classic read.
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Old January 3, 2012, 11:04 PM   #297
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The schedule was released in Hightower v. Boston last week:

Quote:
12/29/2011 Open Document BRIEFING schedule set. Brief and Appendix due 02/07/2012 for appellant Stacey Hightower. Pursuant to F.R.A.P. 31(a), appellee's brief will be due 30 days following service of appellant's brief and appellant's reply brief will be due 14 days following service of appellee's brief. [11-2281] (TS)
So here's the lineup:

Appellant (Pltf) Brief: 2/7/2012
Appellee (Def) Brief: 3/8/2012
Appellant (Pltf) Reply: 3/22/2012
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Old January 10, 2012, 11:30 AM   #298
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There has not been much action in the pro se case of Birdt v. Beck (attorney John Birdt v. LA Sheriff Charlie Beck). The last action we saw was:

Quote:
2011-10-24 94 MINUTE ORDER IN CHAMBERS by Judge John A Kronstadt. The Court, on its own motion, takes the 10/31/2011 Status Conference off calendar and sets a non-appearance case review for 11/7/2011, at which time it will issue its ruling or determine if further briefing or a hearing is necessary. (vdr) (Entered: 10/25/2011)
On Jan 8th, a Statement of Request was filed with the district court. The request is for the Judge to quit fidgeting and rule on Birdt's MSJ.

Those of you that know court procedure, also know what this means. Those of you that don't... Well, the nicest thing I can say is that this is a tactical error.
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Old January 11, 2012, 09:12 AM   #299
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No. 11-120
Vide 11-234

Winters, Sheriff v. Willis

Docketed: July 28, 2011
Lower Ct: Supreme Court of Oregon
Case Nos.: (S058645)
Decision Date: May 19, 2011
Certiorari Denied, Orders: Jan. 9, 2012.

This leaves the ruling by the Oregon Supreme Court intact. Even though an Oregon resident has a Medical Marijuana Card, the Sheriff must issue a CCW, barring any other disqualifying acts.

I would still warn Oregon residents, that having a state issued Medical Marijuana Card, still makes them a prohibited person under federal law.

See: http://www.atf.gov/press/releases/20...l-purposes.pdf
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Old January 13, 2012, 09:20 PM   #300
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It appears that today, Friday, Jan. 13th, is a black Friday.

Two cases were decided at district court. Mueller v. Maenz and NSSF v. ATF. Both plaintiffs lost.

See the ongoing threads for further details.
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