The Firing Line Forums

Go Back   The Firing Line Forums > The Conference Center > Law and Civil Rights

Reply
 
Thread Tools
Old March 21, 2013, 02:59 PM   #251
maestro pistolero
Senior Member
 
Join Date: August 16, 2007
Posts: 2,092
Very disappointing, to say the least. But as one poster at Maryland Shooters put it: this was going to the Supreme Court anyway, so I'll wait until we lose there before I sharpen my pitchfork.
maestro pistolero is offline  
Old March 22, 2013, 04:17 PM   #252
Luger_carbine
Senior Member
 
Join Date: June 18, 2012
Posts: 381
Isn't this the first time that CA4 has admitted that the Heller right exists outside the home?
Luger_carbine is offline  
Old March 22, 2013, 07:34 PM   #253
Al Norris
Staff
 
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,318
The Woollard panel did the same exact thing that the Kachalsky panel did. They put a dress on rational basis and called it intermediate scrutiny.
__________________
National listings of the Current 2A Cases.
Al Norris is offline  
Old March 22, 2013, 09:10 PM   #254
Tom Servo
Staff
 
Join Date: September 27, 2008
Location: Foothills of the Appalachians
Posts: 10,513
I trust Gura's wisdom and track record, so if he thinks Kachalsky is a better case to bring, I'm behind him. That said, I thought Woollard was a more compelling plaintiff.

I agree with Al. This isn't any form of "intermediate" scrutiny I would imagine:

Quote:
The State has clearly demonstrated that the good-and-substantial-reason requirement advances the objectives of protecting public safety and preventing crime because it reduces the number of handguns carried in public. That is, limiting the public carrying of handguns protects citizens and inhibits crime
Their claim is that refusal to issue carry permits carries the following benefits:
  • Decreasing the availability of handguns to criminals via theft
  • Lessening "the likelihood that basic confrontations between individuals would turn deadly"
  • Averting the confusion, along with the "potentially tragic consequences" thereof, that can result from the presence of a third person with a hand-
    gun during a confrontation between a police officer and a criminal suspect
  • Curtailing the presence of handguns during routine police-citizen encounters
  • Reducing the number of "handgun sightings" that must be investigated
  • Facilitating the identification of those persons carrying handguns who pose a menace

...because we all know that these are huge issues in places like Arizona or Georgia.
__________________
Sometimes it’s nice not to destroy the world for a change.
--Randall Munroe
Tom Servo is offline  
Old March 23, 2013, 07:06 AM   #255
press1280
Senior Member
 
Join Date: May 17, 2012
Posts: 222
This clearly was rational basis in a dressed up form. CA4 simply ignored all the real-world experience of the shall-issue states in favor of the speculation of MD and it's politically appointed LEOs. I'd guess that with all the conflicting stats from the pro and anti carry sides at the very least you have a wash and under true intermediate scrutiny the court should favor the individual right over the state.
CA4 and CA2 both were wishy washy about the inside/outside the home, it seems they didn't want to make a definitive call on it. Hopefully SCOTUS takes that as an open invitation.
press1280 is offline  
Old March 23, 2013, 01:50 PM   #256
maestro pistolero
Senior Member
 
Join Date: August 16, 2007
Posts: 2,092
I cannot wait to see this drivel disemboweled by Gura. Better yet, by Scalia. If there is any justice in the world, and if the SCOTUS holds to its reasoning, Kachalsky and Woolard will be the ignominy of these judges for the rest of their days. It is truly shameful in my opinion.

Quote:
We hew to a judicious course today, refraining from any assessment of whether Maryland’s good-and-substantial- reason requirement for obtaining a handgun permit implicates Second Amendment protections. That is, we merely assume that the Heller right exists outside the home and that such right of Appellee Woollard has been infringed. We are free to make that assumption because the good-and-substantial- reason requirement passes constitutional muster under what we have deemed to be the applicable standard — intermediate scrutiny
It doesn't get much more convoluted than that.

Last edited by maestro pistolero; March 23, 2013 at 02:12 PM.
maestro pistolero is offline  
Old March 23, 2013, 07:21 PM   #257
Luger_carbine
Senior Member
 
Join Date: June 18, 2012
Posts: 381
When I read the opinion I thought King missed his calling. He should have been a poet or an author.

Considering how hard he tried to come up with any excuse not to hear this case, and how flowery the prose of the opinion, it seems he doesn't much like applying an analytical mind to logically working out decisions that comport with the constitution and precedent, but he sure loves to wax poetic when he gets to write something !!!
Luger_carbine is offline  
Old April 8, 2013, 03:16 PM   #258
esqappellate
Member
 
Join Date: October 16, 2012
Posts: 69
Gura has filed a petition for rehearing en banc in Woollard. Attached.
Attached Files
File Type: pdf PetforRehearing.pdf (146.6 KB, 40 views)
esqappellate is offline  
Old April 8, 2013, 06:43 PM   #259
rts99
Member
 
Join Date: April 20, 2012
Posts: 40
Unbelievable

After reading what the 4CA misrepresents as a ruling based on law my head just won't stop spinning.

It takes a great deal of chutzpa(?) to issue this BS. They actually had the audacity to claim intermediate scrutiny and then simply apply (I'm being generous here) Rational basis. They even went so far as to claim that the court has no business interfering with the legislature. If this is true (& in the 4CA I'm afraid it is) then we're doomed. Checks & balances be damned. And we don't have the force of arms to rid ourselves of these worthless dictators.

The structure of the republic is one of soverigns and servants. ONLY the soverigns can bear arms in their own lands. NEVER the servants. But Md (& NYS, Cali, Ill, Hawaii....) politicians and these worthless courts willfully reverse the arrangement. The officals make themselves the soverigns and the people are the servants. This is NOT a republic but a dictatorship. As Chairman Mao said: "All political power grows from the barrel of a gun."

The final insult is that the 4CA ruled that the core holding in Heller is the right to bear arms in one's home. That is NOT the core holding in Heller. The core holding in Heller is that all men have the right to self-defense. The right to bear arms is in support of the right to life, the right to survival. This is a natural, pre-existing, fundamental right. Nowhere in any of the 2CA or 4CA rulings or petitions is this fact ever stated. It needs to be. The state claims it is too dangerous for a man to survive in public. I've never heard such crap.

It is also unfortunate that no one has ever brought up cases like Warren v DC. It is established legal precedent that the state has no duty to "serve & protect" any individual citizen. The duty is only to the public as an entity "at large". This, coupled with no right to self-defense in public means the state disputes your right to survive in public. If it weren't so appalling it would be hillarious.
rts99 is offline  
Old April 8, 2013, 06:54 PM   #260
rts99
Member
 
Join Date: April 20, 2012
Posts: 40
Proposed Headline

4CA rules that the 1st Amendment cannot be exercised inside the home while the 2nd Amendmend cannot be exercised outside!!!!

http://reason.com/blog/2013/02/03/co...nted-protest-s


rts99 is offline  
Old April 9, 2013, 12:17 AM   #261
62coltnavy
Senior Member
 
Join Date: February 1, 2011
Posts: 219
I was quite surprised that Gura filed for en bancm as indications were he was going straight to SCOTUS. Then again, one of the fundamental errors of the court of appeal was, as Gura points out here, that the judgment arose on summary judgment. The rule on summary judgment is that disputed issues of fact cannot be resolved by the court; that is for the trier of fact. The judge can only resolve questions of law. Here, the court of appeal adopted one set of facts--the declarations of governmental employees--as meeting the State's burden of proof, even though contrary evidence was presented by Plaintiffs that demonstrated the falsity of the facts assumed by the government declarants. The CA swept aside the dispute in the evidence merely by concluding that it had no power to judge the legislative "facts"--even if they are wrong--only if the right magic phrases are invoked of a substantial governmental interest.
62coltnavy is offline  
Old April 9, 2013, 12:26 AM   #262
Al Norris
Staff
 
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,318
This is actually a quite smart move by Mr. Gura.

It keeps the Woollaed case alive at the CA4 while we wait to see if cert will be granted in Kachalsky. Should cert be granted, the CA4 will have no option but to put the en banc petition on hold pending a decision at the SCOTUS.

As an added bonus, because the case is technically still alive, it removes the CA4 decision from the table. Thereby making the split between CA7 and CA2 all the more real.

As esqappellate would say, "quite brilliant."
__________________
National listings of the Current 2A Cases.
Al Norris is offline  
Old April 9, 2013, 01:20 AM   #263
maestro pistolero
Senior Member
 
Join Date: August 16, 2007
Posts: 2,092
Anybody notice this possible error in the brief?
Quote:
“[T]he government may not rely upon mere ‘anecdote and supposition.’” Carter, 669 F.3d at 418. Yet the panel cites the affiants’ guesswork to suggest what might happen if more guns were carried. The claim is made, without any further support, that fewer guns will be available for criminals to steal if more [sic] (should be fewer?) are carried. But each of these three law enforcement officials would doubtless admit that the vast majority of property theft in Maryland occurs in homes. A reasonable argument could be made, therefore, that guns would be better protected from criminals if carried rather than left unguarded at home. In any event, “The theft argument is paternalistic . . . there is no ‘thieves’ veto’” of constitutionally-protected activity.
In the first bolded passage, Gura is talking about the state's claim (which I believe he misstates). In the second bolded passage he is making the point that the opposite argument is actually more plausible.
maestro pistolero is offline  
Old April 9, 2013, 07:38 AM   #264
esqappellate
Member
 
Join Date: October 16, 2012
Posts: 69
"This is actually a quite smart move by Mr. Gura.

It keeps the Woollaed case alive at the CA4 while we wait to see if cert will be granted in Kachalsky. Should cert be granted, the CA4 will have no option but to put the en banc petition on hold pending a decision at the SCOTUS.

As an added bonus, because the case is technically still alive, it removes the CA4 decision from the table. Thereby making the split between CA7 and CA2 all the more real.

As esqappellate would say, "quite brilliant." ""

Al, I couldn't agree more, it was a smart move and it exactly the right one with Kachalsky pending. The petition for rehearing operates to stay the mandate of the ca4 and a court of appeals operates only through its mandate in the case (which means there is no remand until it issues). I am betting that we get good news from the SCT on April 15. If so, the CA4 will likely hold Woollard until a decision in Kachalsky. In the meantime, the mandate is stayed. If the ca4 stubbornly denies rehearing anyhow, then Gura moves for a stay of mandate under Rule 41 and files a hold cert petition. Easy as pie.

Last edited by esqappellate; April 9, 2013 at 07:46 AM.
esqappellate is offline  
Old April 9, 2013, 11:52 AM   #265
HarrySchell
Senior Member
 
Join Date: March 30, 2007
Location: South CA
Posts: 559
[QUOTE][Anybody notice this possible error in the brief?/QUOTE]

I wondered about that...
__________________
Loyalty to petrified opinions never yet broke a chain or freed a human soul in this world — and never will.
— Mark Twain
HarrySchell is offline  
Old April 9, 2013, 05:26 PM   #266
2ndsupporter
Junior Member
 
Join Date: February 6, 2013
Posts: 12
Ca7 & Ca2

I was under the impression that these rulings weren't true splits. Could this hinder a much needed positive ruling for carry?
2ndsupporter is offline  
Old April 9, 2013, 09:05 PM   #267
Luger_carbine
Senior Member
 
Join Date: June 18, 2012
Posts: 381
In the Moore opinion Posner says:

Quote:
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 this case, like Heller and McDonald is just about self-defense.

'The Supreme Court has decided that the amendment confers a right to bear arms for self-defense, which is as important outside the home as inside.
How can that logically coexist with "May Issue" and "Good Cause" ???

An American wishing to exercise the right to exist, the right of self-preservation must be prescient and apply to the state for permission to exercise that right at the appointed time to prevent their own death? And after the threat is ended, they relinquish that right again?

It's obviously not practicable.

The other argument would be that only Americans with definate knowledge of a threat to their person have the right of self-defense. Americans who are attacked and killed with no warning and no way of anticipating the threat - don't have the right of self-defense.

How is there not a split?

Last edited by Luger_carbine; April 9, 2013 at 09:25 PM.
Luger_carbine is offline  
Old April 10, 2013, 06:31 PM   #268
esqappellate
Member
 
Join Date: October 16, 2012
Posts: 69
There is a split in reasoning for sure. For there to be an actual split in holdings, the two statutes would have to be indistinguishable in principle. A recent split in actual holdings is what the Court looks for, not a split in reasoning. And it is at least arguable that a may issue good cause requirement that allows some to carry, in theory at least, is not the same statute as a complete ban. Gura argues, persuasively I think, that there is no real difference for purposes of the 2A. The Court might agree. I will go out on a limb here and predict that the court will grant cert. There does NOT have to be a split -- they grant or deny whatever they want, regardless. The issue is certainly important enough!

Last edited by esqappellate; April 10, 2013 at 06:36 PM.
esqappellate is offline  
Old April 10, 2013, 08:30 PM   #269
Gary L. Griffiths
Senior Member
 
Join Date: April 7, 2000
Location: AZ, IA, WA
Posts: 1,292
Quote:
I will go out on a limb here and predict that the court will grant cert.
Hope you're right!
__________________
Violence is an ugly thing, but not the ugliest of things. The decayed and degraded state of moral and valorous feeling which believes that nothing is worth violence is much worse. Those who have nothing for which they are willing to fight; nothing they care about more than their own personal safety; are miserable creatures who have no chance of being free, unless made and kept so by the exertions of those better than themselves. Gary L. Griffiths, Chief Instructor, Advanced Force Tactics, Inc. (Paraphrasing John Stuart Mill)
Gary L. Griffiths is offline  
Old April 12, 2013, 03:24 PM   #270
Luger_carbine
Senior Member
 
Join Date: June 18, 2012
Posts: 381
http://www.foxnews.com/politics/2013...on-gun-rights/

Quote:
Another factor that often influences the justices' decision to take up a case is when lower courts come to different conclusions about the law's meaning. Gura's clients and New York Attorney General Eric Schneiderman, defending the law, disagree about whether there is a split among federal appeals courts.

Gura said the Illinois ruling "brings this split into sharp relief at the federal appellate level."

But Schneiderman said the decision in Illinois stressed the unique nature of the state law that was struck down and contrasted that law with the statutes in New York and elsewhere that give officials wide discretion in deciding whether to grant permits to carry guns in public.
I guess Schneiderman is arguing that there is no split because Moore deals with a "unique" outright ban in Illinois while the situation in New York is completely different. Kachalski and Moore are Apples and Oranges - no relation, no split.

Gura says that a split exists between CA2 and CA7 in that CA2 says that "the Second Amendment has no practical impact beyond the threshold of one’s home." While "In contrast, the Seventh Circuit has now twice invalidated restrictions on Second Amendment rights outside the home. That court asserts that the right is equally important outside the home as inside, and has declared that regardless of location"

Last edited by Luger_carbine; April 12, 2013 at 04:00 PM.
Luger_carbine is offline  
Old April 12, 2013, 06:34 PM   #271
62coltnavy
Senior Member
 
Join Date: February 1, 2011
Posts: 219
Gura did an admirable job in his reply shredding the state's argument that there is no split, that the distinction made is meaningless, as both laws deny the right to bear arms outside the home, one entirely and the other with complete administrative discretion.
62coltnavy is offline  
Old April 16, 2013, 09:48 AM   #272
maestro pistolero
Senior Member
 
Join Date: August 16, 2007
Posts: 2,092
Woollard En Banc Petition Denied

Thanks to Esquapellate at MDS for posting:
http://www.mdshooters.com/showpost.p...86&postcount=1

For some reason the order isn't loading for me, but I am told it's a one liner, i.e.no judge wished to rehear the case; petition denied.
maestro pistolero is offline  
Old April 16, 2013, 10:33 AM   #273
Al Norris
Staff
 
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,318
This was to be expected, considering that cert was denied in Kachalsky.
__________________
National listings of the Current 2A Cases.
Al Norris is offline  
Old April 16, 2013, 11:54 AM   #274
Dr Big Bird PhD
Senior Member
 
Join Date: October 26, 2012
Location: Los Angeles, CA
Posts: 778
So is the case dead?
__________________
I told the new me,
"Meet me at the bus station and hold a sign that reads: 'Today is the first day of the rest of your life.'"
But the old me met me with a sign that read: "Welcome back."
Who you are is not a function of where you are. -Off Minor
Dr Big Bird PhD is offline  
Old April 16, 2013, 11:59 AM   #275
Al Norris
Staff
 
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,318
Yes, BigBird. This particular case is toast.

ETA: Gura will file for cert. But if the treatment of Kachalsky is any indication, cert will not be granted here, either.
__________________
National listings of the Current 2A Cases.
Al Norris is offline  
Reply

Thread Tools

Posting Rules
You may not post new threads
You may not post replies
You may not post attachments
You may not edit your posts

BB code is On
Smilies are On
[IMG] code is On
HTML code is Off

Forum Jump


All times are GMT -5. The time now is 01:55 AM.


Powered by vBulletin® Version 3.8.7
Copyright ©2000 - 2014, vBulletin Solutions, Inc.
This site and contents, including all posts, Copyright © 1998-2014 S.W.A.T. Magazine
Copyright Complaints: Please direct DMCA Takedown Notices to the registered agent: thefiringline.com
Contact Us
Page generated in 0.15985 seconds with 8 queries