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Old March 1, 2011, 12:19 AM   #126
Al Norris
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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.

Accordingly, Defendants’ policy would fail intermediate scrutiny analysis, even were it the correct test (and it is not), because they have failed to identify any legitimate governmental interest in depriving law-abiding people of the right to bear arms.
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:
02/23/2011 30 MOTION to Dismiss Notice of Motion to Dismiss. Document filed by Susan Cacace, Jeffrey A. Cohen, Robert K. Holdman, Albert Lorenzor.(Tomari, Anthony) (Entered: 02/23/2011)

02/23/2011 31 AFFIRMATION of Anthony J. Tomari in Support re: 30 MOTION to Dismiss Notice of Motion to Dismiss.. Document filed by Susan Cacace, Jeffrey A. Cohen, Robert K. Holdman, Albert Lorenzor. (Tomari, Anthony) (Entered: 02/23/2011)

02/23/2011 32 MEMORANDUM OF LAW in Support re: 30 MOTION to Dismiss Notice of Motion to Dismiss.. Document filed by Susan Cacace, Jeffrey A. Cohen, Robert K. Holdman, Albert Lorenzor. (Tomari, Anthony) (Entered: 02/23/2011)

02/23/2011 33 MOTION to Dismiss. Document filed by County of Westchester. (Attachments: # 1 Declaration, # 2 Memorandum of Law)(Rotini, Melissa-Jean) (Entered: 02/23/2011)

02/23/2011 34 DECLARATION of Anthony J. Tomari in Support re: 30 MOTION to Dismiss Notice of Motion to Dismiss.. Document filed by Susan Cacace, Jeffrey A. Cohen, Robert K. Holdman, Albert Lorenzor. (Tomari, Anthony) (Entered: 02/23/2011)

02/23/2011 35 SUPPLEMENTAL MEMORANDUM OF LAW in Support re: 30 MOTION to Dismiss Notice of Motion to Dismiss. Re: First Amended Complaint. Document filed by Susan Cacace, Jeffrey A. Cohen, Robert K. Holdman, Albert Lorenzor. (Tomari, Anthony) (Entered: 02/23/2011)

02/23/2011 36 MEMORANDUM OF LAW in Opposition re: 30 MOTION to Dismiss Notice of Motion to Dismiss., 33 MOTION to Dismiss.. Document filed by Eric Detmer, Alan Kachalsky, Anna Marcucci-Nance, Johnnie Nance, Christina Nikolov, Second Amendment Foundation, Inc.. (Gura, Alan) (Entered: 02/23/2011)

02/23/2011 37 REPLY MEMORANDUM OF LAW in Support re: 30 MOTION to Dismiss Notice of Motion to Dismiss.. Document filed by Susan Cacace, Jeffrey A. Cohen, Robert K. Holdman, Albert Lorenzor. (Tomari, Anthony) (Entered: 02/23/2011)

02/23/2011 38 REPLY MEMORANDUM OF LAW in Support re: 33 MOTION to Dismiss.. Document filed by County of Westchester. (Rotini, Melissa-Jean) (Entered: 02/23/2011)

02/23/2011 39 MOTION for Summary Judgment. Document filed by Eric Detmer, Alan Kachalsky, Anna Marcucci-Nance, Johnnie Nance, Christina Nikolov, Second Amendment Foundation, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Declaration of Alan Kachalsky, # 10 Declaration of Anna Marcucci-Nance, # 11 Declaration of Eric Detmer, # 12 Declaration of Christina Nikolov, # 13 Declaration of Johnnie Nance, # 14 Declaration of Juliann Versnel)(Gura, Alan) (Entered: 02/23/2011)

02/23/2011 40 MEMORANDUM OF LAW in Support re: 39 MOTION for Summary Judgment.. Document filed by Eric Detmer, Alan Kachalsky, Anna Marcucci-Nance, Johnnie Nance, Christina Nikolov, Second Amendment Foundation, Inc.. (Gura, Alan) (Entered: 02/23/2011)

02/23/2011 41 DECLARATION of Separate Statement in Support re: 39 MOTION for Summary Judgment.. Document filed by Eric Detmer, Alan Kachalsky, Anna Marcucci-Nance, Johnnie Nance, Christina Nikolov, Second Amendment Foundation, Inc.. (Gura, Alan) (Entered: 02/23/2011)

02/23/2011 42 CROSS MOTION for Summary Judgment -Notice of Cross-Motion -. Document filed by Susan Cacace, Jeffrey A. Cohen, Robert K. Holdman, Albert Lorenzor.(Tomari, Anthony) (Entered: 02/23/2011)

02/23/2011 43 MEMORANDUM OF LAW in Support re: 39 MOTION for Summary Judgment., 42 CROSS MOTION for Summary Judgment -Notice of Cross-Motion -. and In Opposition to Plaintiffs' Motion for Summary Judgment. Document filed by Susan Cacace, Jeffrey A. Cohen, Robert K. Holdman, Albert Lorenzor. (Tomari, Anthony) (Entered: 02/23/2011)

02/23/2011 44 RULE 56.1 STATEMENT. Document filed by Susan Cacace, Jeffrey A. Cohen, Robert K. Holdman, Albert Lorenzor. (Tomari, Anthony) (Entered: 02/23/2011)

02/23/2011 45 DECLARATION of Rotini in Opposition re: 39 MOTION for Summary Judgment.. Document filed by County of Westchester. (Rotini, Melissa-Jean) (Entered: 02/23/2011)

02/23/2011 46 MEMORANDUM OF LAW in Opposition re: 39 MOTION for Summary Judgment.. Document filed by County of Westchester. (Rotini, Melissa-Jean) (Entered: 02/23/2011)

02/23/2011 47 MEMORANDUM OF LAW in Opposition re: 42 CROSS MOTION for Summary Judgment -Notice of Cross-Motion -. and in Reply to Oppsition to Plaintiffs' Summary Judgment Motion. Document filed by Eric Detmer, Alan Kachalsky, Anna Marcucci-Nance, Johnnie Nance, Christina Nikolov, Second Amendment Foundation, Inc.. (Attachments: # 1 separate statement of disuputed facts)(Gura, Alan) (Entered: 02/23/2011)

02/23/2011 48 RESPONSE in Opposition re: 39 MOTION for Summary Judgment. Response to Plaintiffs' Rule 56.1 Statement. Document filed by County of Westchester. (Rotini, Melissa-Jean) (Entered: 02/23/2011)

02/23/2011 49 DECLARATION of Anthony J Tomari in Support re: 39 MOTION for Summary Judgment., 42 CROSS MOTION for Summary Judgment -Notice of Cross-Motion -.. Document filed by Susan Cacace, Jeffrey A. Cohen, Robert K. Holdman, Albert Lorenzor. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J)(Tomari, Anthony) (Entered: 02/23/2011)

02/23/2011 50 FIRST MOTION to File Amicus Brief. Document filed by WESTCHESTER COUNTY FIREARMS OWNERS ASSOCIATION, INC.. (Attachments: # 1 Exhibit Amicus Brief)(Piscionere, Anthony) (Entered: 02/23/2011)

02/23/2011 51 DECLARATION of Anthony J. Tomari in Support re: 39 MOTION for Summary Judgment., 42 CROSS MOTION for Summary Judgment -Notice of Cross-Motion -.. Document filed by Susan Cacace, Jeffrey A. Cohen, Robert K. Holdman, Albert Lorenzor. (Attachments: # 1 Exhibit K, # 2 Exhibit L, # 3 Exhibit M, # 4 Exhibit N, # 5 Exhibit O, # 6 Exhibit P, # 7 Exhibit Q)(Tomari, Anthony) (Entered: 02/23/2011)

02/23/2011 52 DECLARATION of Philip Cook in Support re: 39 MOTION for Summary Judgment., 42 CROSS MOTION for Summary Judgment -Notice of Cross-Motion -.. Document filed by Susan Cacace, Jeffrey A. Cohen, Robert K. Holdman, Albert Lorenzor. (Tomari, Anthony) (Entered: 02/23/2011)

02/23/2011 53 DECLARATION of Franklin Zimring in Support re: 39 MOTION for Summary Judgment., 42 CROSS MOTION for Summary Judgment -Notice of Cross-Motion -.. Document filed by Susan Cacace, Jeffrey A. Cohen, Robert K. Holdman, Albert Lorenzor. (Tomari, Anthony) (Entered: 02/23/2011)

02/23/2011 54 DECLARATION of Hon. Susan Cacace in Support re: 39 MOTION for Summary Judgment., 42 CROSS MOTION for Summary Judgment -Notice of Cross-Motion -.. Document filed by Susan Cacace, Jeffrey A. Cohen, Robert K. Holdman, Albert Lorenzor. (Tomari, Anthony) (Entered: 02/23/2011)

02/23/2011 55 DECLARATION of Hon. Jeffrey A. Cohen in Support re: 39 MOTION for Summary Judgment., 42 CROSS MOTION for Summary Judgment -Notice of Cross-Motion -.. Document filed by Susan Cacace, Jeffrey A. Cohen, Robert K. Holdman, Albert Lorenzor. (Tomari, Anthony) (Entered: 02/23/2011)

02/23/2011 56 DECLARATION of Hon. Albert Lorenzo in Support re: 39 MOTION for Summary Judgment., 42 CROSS MOTION for Summary Judgment -Notice of Cross-Motion -.. Document filed by Susan Cacace, Jeffrey A. Cohen, Robert K. Holdman, Albert Lorenzor. (Tomari, Anthony) (Entered: 02/23/2011)

02/23/2011 57 DECLARATION of Hon. Robert K. Holdman in Support re: 39 MOTION for Summary Judgment., 42 CROSS MOTION for Summary Judgment -Notice of Cross-Motion -.. Document filed by Susan Cacace, Jeffrey A. Cohen, Robert K. Holdman, Albert Lorenzor. (Tomari, Anthony) (Entered: 02/23/2011)

02/23/2011 58 DECLARATION of Hon. David R. Roefaro in Support re: 39 MOTION for Summary Judgment., 42 CROSS MOTION for Summary Judgment -Notice of Cross-Motion -.. Document filed by Susan Cacace, Jeffrey A. Cohen, Robert K. Holdman, Albert Lorenzor. (Tomari, Anthony) (Entered: 02/23/2011)

02/23/2011 59 DECLARATION of Hon. Stephanie A. Miner in Support re: 39 MOTION for Summary Judgment., 42 CROSS MOTION for Summary Judgment -Notice of Cross-Motion -.. Document filed by Susan Cacace, Jeffrey A. Cohen, Robert K. Holdman, Albert Lorenzor. (Tomari, Anthony) (Entered: 02/23/2011)

02/23/2011 60 DECLARATION of Thomas L. Fazio in Support re: 39 MOTION for Summary Judgment., 42 CROSS MOTION for Summary Judgment -Notice of Cross-Motion -.. Document filed by Susan Cacace, Jeffrey A. Cohen, Robert K. Holdman, Albert Lorenzor. (Tomari, Anthony) (Entered: 02/23/2011)

02/23/2011 61 DECLARATION of James Sherman in Support re: 39 MOTION for Summary Judgment., 42 CROSS MOTION for Summary Judgment -Notice of Cross-Motion -.. Document filed by Susan Cacace, Jeffrey A. Cohen, Robert K. Holdman, Albert Lorenzor. (Tomari, Anthony) (Entered: 02/23/2011)

02/23/2011 62 DECLARATION of Andrew Lunetta in Support re: 39 MOTION for Summary Judgment., 42 CROSS MOTION for Summary Judgment -Notice of Cross-Motion -.. Document filed by Susan Cacace, Jeffrey A. Cohen, Robert K. Holdman, Albert Lorenzor. (Tomari, Anthony) (Entered: 02/23/2011)

02/23/2011 63 DECLARATION of Bruce Bellom in Support re: 39 MOTION for Summary Judgment., 42 CROSS MOTION for Summary Judgment -Notice of Cross-Motion -.. Document filed by Susan Cacace, Jeffrey A. Cohen, Robert K. Holdman, Albert Lorenzor. (Tomari, Anthony) (Entered: 02/23/2011)

02/23/2011 64 DECLARATION of Marge Cohen in Support re: 39 MOTION for Summary Judgment., 42 CROSS MOTION for Summary Judgment -Notice of Cross-Motion -.. Document filed by Susan Cacace, Jeffrey A. Cohen, Robert K. Holdman, Albert Lorenzor. (Tomari, Anthony) (Entered: 02/23/2011)

02/23/2011 65 DECLARATION of Anthony J. Tomari in Support re: 39 MOTION for Summary Judgment., 42 CROSS MOTION for Summary Judgment -Notice of Cross-Motion -.. Document filed by Susan Cacace, Jeffrey A. Cohen, Robert K. Holdman, Albert Lorenzor. (Attachments: # 1 Exhibit R, # 2 Exhibit S (1) - (7), # 3 Exhibit S (8) - (11))(Tomari, Anthony) (Entered: 02/23/2011)

02/23/2011 66 DECLARATION of Anthony J. Tomari in Support re: 39 MOTION for Summary Judgment., 42 CROSS MOTION for Summary Judgment -Notice of Cross-Motion -.. Document filed by Susan Cacace, Jeffrey A. Cohen, Robert K. Holdman, Albert Lorenzor. (Attachments: # 1 Exhibit S (12) - (13), # 2 Exhibit S (14))(Tomari, Anthony) (Entered: 02/23/2011)

02/23/2011 67 REPLY MEMORANDUM OF LAW in Support re: 42 CROSS MOTION for Summary Judgment -Notice of Cross-Motion -.. Document filed by Susan Cacace, Jeffrey A. Cohen, Robert K. Holdman, Albert Lorenzor. (Tomari, Anthony) (Entered: 02/23/2011)

02/24/2011 68 MOTION to File Amicus Brief. Document filed by Academics for the Second Amendment, LI Second Amendment Preservation Assocation. (Attachments: # 1 Exhibit Proposed Amicus Brief)(Eisenberg, Lloyd) (Entered: 02/24/2011)

02/24/2011 69 ENDORSED LETTER addressed to Judge Cathy Seibel from Anthony G. Piscionere dated 2/24/2011 re:...This office was under the impression that yesterday was the final date to file any such amicus brief. To the extent that our consent might be considered relevant by the Court, we consent to the State Defendants and Country of Westchester's request for fourteen (14) days, should Your Honor grant leave for such filings, to respond to our amicus brief. ENDORSEMENT: State Defendants' and County of Westchesters' request for 14 day extension is hereby granted.SO ORDERED (Signed by Judge Cathy Seibel on 2/24/2011) (rj) (Entered: 02/25/2011)

02/24/2011 70 Letter addressed to Judge Cathy Seibel from Anthony J. Tomari dated 2/23/2011 re:...The proposed amici have not explained the reason for the extreme lateness of their filings, or the lack of notice. The timing of the applications has denied the State Defendants any opportunity to respond to the factual representations or legal arguments asserted therein. Regardless, in lieu of opposing such applications, in accordance with the time frame established in Rule 6.1 of the Local Civil Rules of the United States District Courts for the Southern and Eastern Districts of New York, State Defendants request fourteen (14) days from the date this Court grants leave for such filings, to respond to new matters in those briefs. Document filed by Susan Cacace, Jeffrey A. Cohen, Robert K. Holdman, Albert Lorenzor.(rj) (Entered: 02/25/2011)

02/24/2011 71 Letter addressed to Judge Cathy Seibel from Melissa Jean Rotini dated 2/24/2011 re:...The County hereby joins in the State Defendants' request for time to respond to the amicus should Your Honor grant leave to file the Academics for the Second Amendment, LI Second Amendment Preservation Foundation Association, and the Westchester County Firearms Association. Document filed by County of Westchester.(rj) (Entered: 02/25/2011)
So that's 40+ new filings ... that weren't there since the 01-26 deadline for the defendants MSJ. sigh. It's New York, is all I can say! Anyway, I've uploaded these to scribd for easier access. You can read it right there or download the PDF for later reading.

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
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Old March 2, 2011, 12:32 AM   #127
Al Norris
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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
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Old March 6, 2011, 11:38 AM   #128
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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.
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Old March 10, 2011, 01:33 PM   #129
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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 "2A Two-Step" is essentially this:
1. Find that the complaint (public carry, whatever) implicates the Second Amendment, but that it is not "core" to the right

2. Use that non-core finding to assign intermediate scrutiny, that in all effect is really rational basis - which allows the legislature to literally do anything they want.
That's how we are losing these cases. It's almost universally applied.
The Judges opinion is 18 pages. He takes 12 pages to dispose of the Right to Travel. In the remaining 6 pages, the Judges uses the same logic to dispose of the 2A claim (4 pages) the the Equal Protection claim (the remaining 2 pages).

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.
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Old March 14, 2011, 07:33 AM   #130
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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:
II. FEDERAL LAW DOES NOT PROHIBIT ORDINARY COMMON LAW MISDEMEANANTS FROM POSSESSING FIREARMS
A. The Text Of The Federal Felon-In-Possession Statute Demonstrates That Uncodified Common Law Misdemeanor Offenses—Which Are Not “Punishable” By Any Specified Statutory Criteria—Do Not Constitute Disqualifying Offenses
B. The Government’s Reading Of The Felon-In-Possession Statute Fundamentally Alters Its Structure
C. Legislative History Confirms That The Government’s Reading of the Felon-In-Possession Statute Was Not Contemplated By The Enacting Congress
D. The Fourth Circuit’s Approach
E. The Rule Of Lenity Further Confirms That Common Law Misdemeanor Convictions Do Not Trigger The Felon-In-Possession Statute
F. Even Assuming The Government’s Reading, Schrader’s Federal Prohibition Was Lifted When Maryland Statutorily Restored His State Civil Rights
III. THE IMPOSITION OF A FIREARMS BAN ON ORDINARY COMMON LAW MISDEMEANANTS VIOLATES THE SECOND AMENDMENT
A. Heller Changed The Doctrinal Framework For Analyzing Government Action Implicating The Right To Keep And Bear Arms
1. The Supreme Court’s decisions in Heller and McDonald
2. The applicable doctrinal framework
B. Schrader’s Core Second Amendment Rights Are Implicated By The Government’s Application Of The Felon-In-Possession Ban
C. The Application Of 18 U.S.C. § 922(g)(1) To Schrader Cannot Survive Independent Review Under Any Appropriate Level Of Scrutiny
1. A complete firearms ban applied to an ordinary common law misdemeanant like Schrader cannot survive strict scrutiny—the appropriate level of Second Amendment scrutiny
a. The core of the right to keep and bear arms is fundamental and entitled to strict scrutiny review
b. Violent felons were historically outside the protective scope of the right to keep and bear arms; Heller’s dictum concerning the presumed constitutionality of felon dispossession laws is entirely consistent with strict scrutiny
c. A complete firearms ban applied to an ordinary common law misdemeanant like Schrader cannot survive strict scrutiny review
2. A complete firearms ban applied to an ordinary common law misdemeanant like Schrader also fails review under intermediate scrutiny
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Old March 14, 2011, 08:35 AM   #131
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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.
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Old March 18, 2011, 02:08 PM   #132
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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.
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Old March 18, 2011, 04:40 PM   #133
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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.
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Old March 18, 2011, 08:01 PM   #134
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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.
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Old March 20, 2011, 04:36 PM   #135
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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:
12/08/2010 23 MINUTE entry before Honorable Robert M. Dow, Jr: Status hearing held on 12/8/2010. MOTION by Defendants Mara Georges, Jody P. Weis, Miguel del Valle, Richard M. Daley, City Of Chicago to dismiss 18 Plaintiffs' First Amended Complaint is taken under advisement; Plaintiffs' given leave to file a 20 page response to motion to dismiss by 1/21/2011; Defendants are given leave to file a 20 page reply by 2/16/2011; ruling on motion to dismiss will be by mail. Mailed notice (tbk, ) (Entered: 12/08/2010)

02/04/2011 24 MOTION by Plaintiff Second Amendment Arms to file instanter Memorandum in Opposition to Defendants' Motion to Dismiss (Maksym, Walter) (Entered: 02/04/2011) <--Um, notice this is 14 days after the date to file?

02/04/2011 25 NOTICE of Motion by Walter Peter Maksym, Jr for presentment of motion to file instanter 24 before Honorable Robert M. Dow Jr. on 2/9/2011 at 09:15 AM. (Maksym, Walter) (Entered: 02/04/2011)

02/07/2011 26 MINUTE entry before Honorable Robert M. Dow, Jr: MOTION by Plaintiff Second Amendment Arms to file 24 instanter Memorandum in Opposition to Defendants' Motion to Dismiss is granted. Defendants' time to file reply brief is extended to 3/7/2011. Notice of Motion date of 2/9/2011 is stricken and no appearances are necessary on that date. Mailed by Judge's Staff notice (tbk, ) (Entered: 02/07/2011)

02/09/2011 27 RESPONSE by Second Amendment Armsin Opposition to MOTION by Defendants Mara Georges, Jody P. Weis, Miguel del Valle, Richard M. Daley, City Of Chicago to dismiss Plaintiffs' First Amended Complaint 18[RECAP] filed on behalf of all Plaintiffs (Maksym, Walter) (Entered: 02/09/2011) <--OK... You just received an extension to file, but you went and filed a month early???

02/09/2011 28 NOTICE by All Plaintiffs re response in opposition to motion, 27 (Maksym, Walter) (Entered: 02/09/2011)

02/10/2011 29 MEMORANDUM by Second Amendment Arms in Opposition to motion to dismiss 18[RECAP] filed on behalf of all Plaintiffs (Maksym, Walter) (Entered: 02/10/2011)

03/04/2011 30 REPLY by City Of Chicago, Richard M. Daley, Mara Georges, Miguel del Valle, Jody P. Weis to memorandum in opposition to motion 29 to dismiss Plaintiffs' First Amended Complaint (Aguiar, William) (Entered: 03/04/2011)

03/04/2011 31 NOTICE by City Of Chicago, Richard M. Daley, Mara Georges, Miguel del Valle, Jody P. Weis re reply to response to motion 30 (Aguiar, William) (Entered: 03/04/2011)
The most I will say is that this case is on life support and I really wish someone would pull the plug....
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Old March 20, 2011, 04:52 PM   #136
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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:
01/09/2011 24 NOTICE AND REQUEST of Settlement Procedure Selection (Sp1); parties request to Appear Before Magistrate Judge for settlement proceedings. Filed by Plaintiff Jonathan Birdt. (Attachments: # 1 Proposed Order)(Birdt, Jonathan) (Entered: 01/09/2011)

01/09/2011 25 DECLARATION of Jonathan W. birdt in support of MOTION for Summary Judgment as to Plaintiff's complaint 20 filed by Plaintiff Jonathan Birdt. (Birdt, Jonathan) (Entered: 01/09/2011)

01/09/2011 26 SUPPLEMENT to MOTION for Summary Judgment as to Plaintiff's complaint 20 [proposed] judgment filed by Plaintiff Jonathan Birdt. (Birdt, Jonathan) (Entered: 01/09/2011)

01/10/2011 27 JOINT REPORT Rule 26(f) Discovery Plan ; estimated length of trial 2-3 days, filed by Defendants Charlie Beck, The Los Angeles Police Department.. (Mitchell, Elizabeth) (Entered: 01/10/2011)

01/27/2011 28 NOTICE of Change of Attorney Information for attorney Jonathan C McCaverty counsel for Defendants Lee Baca, The Los Angeles County Sheriffs Department. Adding Jonathan McCaverty as attorney as counsel of record for Los Angeles County Sheriff's Department and Lee Baca for the reason indicated in the G-06 Notice. Filed by Defendants Los Angeles County Sheriff's Department and Lee Baca (McCaverty, Jonathan) (Entered: 01/27/2011)

02/04/2011 29 JOINT REPORT Rule 26(f) Discovery Plan SUPPLEMENTAL FRCP RULE 26(f) JOINT REPORT ; estimated length of trial 2-3 DAYS, filed by Defendants Charlie Beck, The Los Angeles Police Department.. (Mitchell, Elizabeth) (Entered: 02/04/2011)

02/14/2011 30 NOTICE OF MOTION AND MOTION to Stay Case pending the appeal to the Ninth Circuit Defendant City of Los Angeles' Notice of Motion and Motion to Stay the Declaratory Relief Action; Memorandum of Points and Authorities filed by Defendants Charlie Beck, The Los Angeles Police Department. Motion set for hearing on 3/14/2011 at 09:00 AM before Judge R. Gary Klausner. (Attachments: # 1 Proposed Order)(Shapero, Wendy) (Entered: 02/14/2011)

02/14/2011 31 DECLARATION of Elizabeth Mitchell In Support Of MOTION to Stay Case pending the appeal to the Ninth Circuit Defendant City of Los Angeles' Notice of Motion and Motion to Stay the Declaratory Relief Action; Memorandum of Points and Authorities 30 filed by Defendants Charlie Beck, The Los Angeles Police Department. (Shapero, Wendy) (Entered: 02/14/2011)

02/14/2011 32 REQUEST FOR JUDICIAL NOTICE re MOTION to Stay Case pending the appeal to the Ninth Circuit Defendant City of Los Angeles' Notice of Motion and Motion to Stay the Declaratory Relief Action; Memorandum of Points and Authorities 30 Defendant City of Los Angeles' Request for Judicial Notice; Memorandum of Points and Authorities; Exhibits; Declaration of Wendy Shapero [F.R.E. 201] filed by Defendants Charlie Beck, The Los Angeles Police Department. (Shapero, Wendy) (Entered: 02/14/2011)

02/14/2011 33 MEMORANDUM in Opposition to motion for stay filed by Plaintiff Jonathan Birdt. (Birdt, Jonathan) (Entered: 02/14/2011)

02/14/2011 36 MINUTES OF SCHEDULING CONFERENCE held before Judge R. Gary Klausner: Court and counsel confer. The Scheduling Conference is held. The Court sets the following dates: Jury Trial (Est.2-3 days): October 4, 2011 at 9:00 a.m.; Pretrial Conference: September 19, 2011 at 9:00 a.m.; Motion Cut-Off (last day to file): July 19, 2011; Discovery Cut-Off: July 6, 2011. Last day to motion the Court to add parties or amend complaint is March 5, 2011. Counsel inform the Court that they have selected Settlement Option 1, Magistrate Judge. Court Reporter: Nichole Rhynard. (ake) (Entered: 02/16/2011)

02/15/2011 34 NOTICE OF NON-OPPOSITION MOTION to Stay Case pending the appeal to the Ninth Circuit Defendant City of Los Angeles' Notice of Motion and Motion to Stay the Declaratory Relief Action; Memorandum of Points and Authorities 30 filed by Defendants Lee Baca, The Los Angeles County Sheriffs Department. (Lehman, Jennifer) (Entered: 02/15/2011)

02/16/2011 35 REPLY IN SUPPORT OF MOTION to Stay Case pending the appeal to the Ninth Circuit Defendant City of Los Angeles' Notice of Motion and Motion to Stay the Declaratory Relief Action; Memorandum of Points and Authorities 30 Defendant City of Los Angeles' Reply to Plaintiff's Opposition to Motion to Stay; Memorandum of Points and Authorities filed by Defendants Charlie Beck, The Los Angeles Police Department. (Shapero, Wendy) (Entered: 02/16/2011)

02/16/2011 37 ORDER FOR JURY TRIAL by Judge R. Gary Klausner: Pretrial Conference: September 19, 2011 at 9:00 a.m. Jury Trial: October 4, 2011 at 9:00 a.m. (ake) (Entered: 02/16/2011)

02/16/2011 38 AMENDED ORDER FOR JURY TRIAL by Judge R. Gary Klausner, re Order 37 . Jury Trial is set for 10/4/2011 at 09:00 AM, and the Pretrial Conference is set for 9/19/2011 at 09:00. (See order for further details) (shb) (Entered: 02/17/2011)

03/01/2011 39 REQUEST to Continue MOTION FOR SUMMARY JUDGMENT from 04/04/2011 to 05/16/2011 filed by Defendants Charlie Beck, The Los Angeles Police Department. Request set for hearing on 5/16/2011 at 09:00 AM before Judge R. Gary Klausner. (Attachments: # 1 Proposed Order)(Mitchell, Elizabeth) (Entered: 03/01/2011)

03/01/2011 40 REQUEST to Continue Motion for Summary Judgment from 04/04/2011 to 05/16/2011 filed by Defendant Lee Baca, The Los Angeles County Sheriffs Department. Request set for hearing on 5/16/2011 at 09:00 AM before Judge R. Gary Klausner. (Attachments: # 1 Proposed Order)(Lehman, Jennifer) (Entered: 03/01/2011)

03/01/2011 41 to rule 56f request for extension In opposition re: REQUEST to Continue MOTION FOR SUMMARY JUDGMENT from 04/04/2011 to 05/16/2011 39 filed by Plaintiff Jonathan Birdt. (Birdt, Jonathan) (Entered: 03/01/2011)

03/03/2011 42 ORDER by Judge R. Gary Klausner: Granting the NOTICE AND REQUEST of Settlement Procedure Selection (Sp1) to Appear Before the Magistrate Judge for settlement proceedings. (shb) (Entered: 03/03/2011)

03/03/2011 43 MINUTE (IN CHAMBERS) SCHEDULING OF SETTLEMENT CONFERENCE by Magistrate Judge John E. McDermott: The parties, having elected to have Magistrate Judge McDermott conduct a settlement conference of this matter, are directed to contact Judge McDermott's clerk, ShaRon Anthony, at (213) 894-0216, to schedule the conference at an appropriate time. The parties are advised that they should contact the clerk so as to allow sufficient time for the court to schedule the settlement conference. See attached order for further details. (es) (Entered: 03/03/2011)

03/07/2011 44 EX PARTE APPLICATION for Ruling on ON DEFENDANTS' REQUESTS FOR CONTINUANCE UNDER F.R.C.P. 56(f) filed by DEFENDANTS Lee Baca, Charlie Beck, The Los Angeles County Sheriffs Department, The Los Angeles Police Department.(Lehman, Jennifer) (Entered: 03/07/2011)

03/08/2011 45 ORDER GRANTING DEFENDANTS LOS ANGELES COUNTY SHERIFF'S DEPARTMENT AND LEE BACA'SREQUEST FOR ADDITIONAL TIME TO OPPOSE PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT by Judge R. Gary Klausner: GOOD CAUSE HAVING BEEN SHOWN, the Court hereby continues Plaintiff's Motion for Summary Judgment for six (6) weeks. The hearing date will be May 16, 2011. 40 (ake) (Entered: 03/09/2011)

03/08/2011 46 ORDER GRANTING DEFENDANTS CHARLIE BECK AND LOS ANGELES POLICE DEPARTMENTS EX PARTE APPLICATION TO CONTINUE THE HEARING ON THE MOTION FOR SUMMARY JUDGMENT by Judge R. Gary Klausner: GOOD CAUSE HAVING BEEN SHOWN, the Court hereby continues Plaintiffs Motion for Summary Judgment for six (6) weeks. The hearing date will be May 16, 2011. 39 (ake) (Entered: 03/09/2011)

03/08/2011 48 ORDER by Judge R. Gary Klausner: denying 30 Motion to Stay Case (shb) (Entered: 03/09/2011)

03/09/2011 47 MINUTES (IN CHAMBERS) ORDER by Judge R. Gary Klausner: taking under submission 30 Motion to Stay Case Pending Appeal to the Ninth Circuit. The Court hereby advises counsel that the above-referenced motion, noticed for hearing on March 14, 2011, has been taken under submission and off the motion calendar. No appearances by counsel are necessary. The Court will issue a ruling after full consideration of properly submitted pleadings. (shb) (Entered: 03/09/2011)

03/15/2011 49 ORDER REGARDING SETTLEMENT CONFERENCE by Magistrate Judge John E. McDermott. IT IS ORDERED that the parties shall appear for a settlement conference onApril 27, 2011 at 10:00 a.m., in Courtroom C 8th floor. Each party shall deliver to the chambers of Magistrate Judge John E. McDermott at 312 N. Spring Street, 8th floor, Los Angeles, California, a Confidential Settlement Conference Statement on or before April 20, 2011. [See attached order for further details.] (es) (Entered: 03/15/2011)
No. 47 & 48 are out of order, so I suspect a clerk messed up.

It actually would have been better to stay the case....
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Old March 21, 2011, 01:52 AM   #137
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Quote:
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 "2A Two-Step" is essentially this:
1. Find that the complaint (public carry, whatever) implicates the Second Amendment, but that it is not "core" to the right

2. Use that non-core finding to assign intermediate scrutiny, that in all effect is really rational basis - which allows the legislature to literally do anything they want.
That's how we are losing these cases. It's almost universally applied.
The Judges opinion is 18 pages. He takes 12 pages to dispose of the Right to Travel. In the remaining 6 pages, the Judges uses the same logic to dispose of the 2A claim (4 pages) the the Equal Protection claim (the remaining 2 pages).

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.
Quote:
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.
Yep, this is definitely a 2A Two-Step situation (Yes, I am the plaintiff in this particular case).

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.
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Old March 21, 2011, 01:44 PM   #138
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Wow, Gray Peterson right here on TFL! Nice to see you here. Thanks for chiming in.
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Old April 4, 2011, 06:54 PM   #139
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Small Update

For those that forgot, orals for Ezell v. Chicago (7th Circuit Gun Range Ban) were today. The MP3 file of the orals may be downloaded (or simply listened to) here.
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Old April 4, 2011, 07:13 PM   #140
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Thank you again for all of your hard work.
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http://czfirearms.us/ same original CZForum, new location.
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Old April 4, 2011, 09:09 PM   #141
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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!
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Old April 5, 2011, 02:45 AM   #142
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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.
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Old April 5, 2011, 12:44 PM   #143
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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!
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Old April 5, 2011, 02:52 PM   #144
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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
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Old April 5, 2011, 03:58 PM   #145
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From the male judge:

Quote:
Well it seems like a lot of people who worked on this have never been to a firing range.
As hard as they were on him, two of the three judges were sympathetic to Gura's arguments. The sympathetic-sounding female judge is Diane Sykes, who wrote one of the first opinions [pdf] suggesting the application of strict scrutiny to regulations of 2nd Amendment rights.

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.
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Old April 5, 2011, 05:02 PM   #146
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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:
Judge Kanne: "OK, tell me what the dangers are for a closed firing range operated under regulation by trained and qualified personnel."

James Feldman: "There is a concern about bullets escaping. If not properly constructed, something could get out..."

Judge Sykes (interrupting the city): "That's an argument for strict safety standards in the construction of firing ranges, not in support of anything...any argument for a complete prohibition."

Judge Kanne (jumping in, incredulously): "How can you ban something just because of that?"

James Feldman: "That's not all."

Judge Kanne: "Alright, what else?"

James Feldman: "People congregate at the ranges."

Judge Kanne: "Have you ever been to an indoor firing range?

James Feldman: "No, never myself."

Judge Kanne: "Well it seems like a lot of people who worked on this have never been to a firing range."
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Old April 5, 2011, 06:08 PM   #147
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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.
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Old April 5, 2011, 10:32 PM   #148
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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.
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Old April 7, 2011, 08:05 PM   #149
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I'm a little late, but....

Calendar of events in Wollard v. Maryland. From #23 on the docket:

Quote:
a. The plaintiffs’ motion for summary judgment- filed February 18, 2011; Here.

b. The defendants’ opposition to the plaintiffs’ motion for summary
judgment and cross-motion for summary judgment- to be filed on or
before March 22, 2011; Here.

c. The plaintiffs’ reply in support of their motion for summary judgment
and response in opposition to the defendants’ cross-motion for summary
judgment- to be filed on or before April 15, 2011; Pending.

d. The defendants’ reply in support of their cross-motion for summary
judgment- to be filed on or before May 2, 2011. Pending.
Additionally, the Brady's have filed an Amicus. As have the LCAV.
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Old April 8, 2011, 01:45 AM   #150
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Here's Gura's hit-list in the text:

Quote:
Only Hawaii, Massachusetts,
New Jersey, and New York share Maryland’s particular unconstitutional approach, and only
Illinois absolutely prohibits private citizens from carrying handguns.
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