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Old April 16, 2013, 01:13 PM   #276
esqappellate
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Text of order denying rehearing en banc:


"The petition for rehearing en banc was circulated to the full court. No judge requested a poll under Fed. R. App. P. 35. The court denies the petition for rehearing en banc.
For the Court
/s/ Patricia S. Connor, Clerk"
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Old April 16, 2013, 02:22 PM   #277
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I'm crossing my fingers that SCOTUS will hear Woollard...
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Old April 16, 2013, 04:26 PM   #278
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This case(Woollard) is certainly not dead, but Kachalsky is dead. Woollard now has 90 days(or longer if Gura asks for an extension) to file for cert. He should stall as long as possible to give Peruta/Richards and Muller an opportunity to be decided. One of those goes our way, then Woollard has a great shot.
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Old July 13, 2013, 08:00 AM   #279
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As I remarked in the 2A Cases Thread, Woolard has filed for cert.

I had forgotten that Alan Gura was traveling abroad, when I emailed him for a copy of the petition, but he contacted the MD attorney, Cary Hansel, who forwarded a copy. We have yet to know who the amici are that wish to file, but I'm sure that with Mr. Hansel's help, we can receive copies of those files, when they are filed.

The first 52 pages of the PDF are the petition with the remaining pages being the prior opinions and other errata.
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File Type: pdf 12-42 Woollard Cert Petition.pdf (401.6 KB, 56 views)
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Old July 13, 2013, 10:24 AM   #280
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From a non-legal POV, the petition really seems to be geared to...irritate? poke? provoke a response from? SCOTUS.

This sounds like my niece tattling on my nephew to their mother:

Quote:
8 The lower court employed the term “Heller right” five
times. See App. 16a, 21a, 23a n.5, 24a & n.5; cf. McDonald, 130
S. Ct. at 3103 & 3115 (Stevens, J., dissenting). But Heller
created no rights. Petitioners assert a fundamental right
codified in the Second Amendment.
I'm worried about the inclusion of the abortion comparison / contrast. It's yet another very divisive issue, and I don't know if it helps prod the Court into granting cert. I'm sure Gura has an infinitely better insight into the Court's psychological makeup than I ever will, so I imagine it's the Right Choice, but from the outside, it sure seems to be playing with fire.

Or maybe this is a commonly-done thing and I'm just unaware? Can anyone speak to this?
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Old July 13, 2013, 01:30 PM   #281
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They're making the case to SCOTUS that there's a widespread problem here, beyond Woollard. Comparing one right to another is one way to raise eyebrows. In many previous SCOTUS rulings, they have maintained that constitutional rights aren't supposed to be treated unequally. Clearly from the brief the case is laid out that the RKBA isn't being treated even like abortion, which isn't even found in the constitution.
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Old July 14, 2013, 07:41 AM   #282
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Speed, what is interesting is that abortion analogues come into play due to previous court rulings. We, all those who have been following these cases, know there is a direct disparity between 2A rulings and every other BOR ruling. In the 9th there was an abortion law written in similar fashion to California's carry laws. While the CA9 upheld the pistol permitting scheme they immediately struck down the abortion laws. Again, they were similar enough for the direct comparison of the two.

Follow this thinking into the 1A laws and you'll see another disparity. The "yell fire in a theatre" comparison is extremely prevalent in the discussion of 2A rights. The difference? With the 1A ability to yell fire we don't surgically remove a voice box or put balls gags on movie goers. After all, what happens if there really is a fire? Like Aurora, Columbine, VA Tech, and Newton without the ability to yell fire (or return fire in these cases) dire consequences are sure to follow.
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Old July 14, 2013, 08:17 AM   #283
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SilverBullet -- I agree the abortion analogues are legion, and not just for CA, but on the federal level, too. There's a link somewhere in this forum to a fantastic paper on exactly that topic.

However, there's kind of a known / accepted / I don't know how to phrase it hierarchy derived from BoR rulings, where certain parts of certain amendments get strict scrutiny and others get rational basis review. So right or wrong, it's to be expected.

You say the abortion analogues come into play due to previous court rulings. By what mechanism? For example, do the analogues come into play because other BoR rulings mention abortion? Because other 2A cases mention abortion? Because other cases compare preferential treatment for fashionable, non-enumerated rights with unfashionable, enumerated ones? That's what I'm trying to learn.
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Old August 13, 2013, 09:09 AM   #284
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While the SCOTUS docket page doesn't (yet) reflect yesterdays filings, the CATO Institute filed an amicus brief in support of Woollard's grant of cert. Also note that the response is now due on or before Sept. 9, 2013.

Quote:
Jul 9 2013 Petition for a writ of certiorari filed. (Response due August 12, 2013)
Jul 9 2013 Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for the petitioners.
Aug 6 2013 Order extending time to file response to petition to and including September 9, 2013.
It is a very good read, in that it shows how the CA2, CA3 and the CA4 have used rational basis to subvert the exercise of our 2A rights.
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File Type: pdf 13-42 Amici CATO in support of Woollard cert.pdf (150.5 KB, 30 views)
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Old August 13, 2013, 12:59 PM   #285
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Thanks for the link, Al.

It's emotionally difficult to read it, because it's all so self-evident that you know every Justice is well aware of all those facts already.
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Old August 14, 2013, 12:50 AM   #286
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A very nice read, and I agree with the analysis. The only thing that gives me pause is that the First Amendment analogy has been used in the past, but several circuits have refused to incorporate the analysis in that context into the analysis of the 2A guarantee--why I don't know and these courts have never explained; there should be no hierarchy of the rights under the Bill of Rights, with some rights being more important to "insist upon" than others. I particularly approved of the demonstration that the 2, 3 and 4 Circuits have inverted the proper analysis, placing the burden on the citizen to prove justification or need, and accepting "public safety" without analysis as a sufficient basis to permit elimination of the right to the majority of the population. They did a good job on that, and I think the argument is very persuasive that these circuits have critically erred in the analysis applied. Whether that will be enough is yet to be seen. I think the Court would have preferred to have Moore presented instead so that they could discuss the existence of the right more theoretically, but that is not to be--and "shall issue" laws are clearly the next major issue to be decided.
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Old August 14, 2013, 11:54 AM   #287
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When the 9th circuit decisions are in, I can't imagine how the issue could be more ripe. Nor can I imagine the court would ignore the splits forever.
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Old August 14, 2013, 09:13 PM   #288
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When the Ninth Circuit cases are in...the Supreme Court will have decided all of these juicy issues so that court doesn't have to. It has been eight months since oral argument--and the Ninth, being the busiest circuit, is notoriously slow. I would b surprised to see a decision this year unless SCOTUS grants review in Woollard. If that happens, the Ninth will be encouraged to issue an opinion so that its voice is heard in the Supreme Court debates. Without that impetus, the court will ba--and is apparently--reluctant to wade into these waters, especially when it sees a sea change in the wind. Shall issue will massively impact the law in the State of California and Hawaii, and I have a feeling they don't want to be the ones that impose it; the howls of indignation from all corners of the left political spectrum will be deafening.
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Old August 15, 2013, 10:37 PM   #289
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There has been a bit of "push" in the Woollard lawsuit.

Quote:
~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Jul 9 2013 Petition for a writ of certiorari filed. (Response due August 12, 2013)
Jul 9 2013 Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for the petitioners.
Aug 6 2013 Order extending time to file response to petition to and including September 9, 2013.
Aug 12 2013 Brief amicus curiae of Cato Institute filed.
Aug 12 2013 Brief amici curiae of Gun Owners Foundation, et al. filed.
Aug 12 2013 Brief amicus curiae of The American Civil Rights Union filed.
Aug 12 2013 Brief amicus curiae of National Rifle Association, Inc. filed.
Aug 12 2013 Brief amicus curiae of Center for Constitutional Jurisprudence filed.
Aug 12 2013 Brief amicus curiae of Academics for the Second Amendment filed.
We have read the brief from the CATO Institute.
The brief from Gun Owners Foundation is here: http://www.gunowners.com/Woollard.v....micusBrief.pdf
The brief from The American Civil Rights Union is here: http://theacru.org/No.13-42_Amicus_W...her_081213.pdf

I haven't found the last three. Yet.
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Old August 16, 2013, 03:15 AM   #290
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If SCOTUS grants cert in Woollard, I believe the 9th will sit on Richards. Why issue an opinion when it could be overturned just a few months later?
As far as when that opinion comes out(if no cases get cert in the meantime)-could be a while. If you recall the Gorski case Mehl v. Blanas was ahead of Richards and would have had priority. That was just dismissed a short time ago. I'm not sure whether the Richards panel would have been working on an opinion while Mehl was still active. Maybe a "court insider" would know whether they'd work on an opinion, or start once the potential obstacle was removed?
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Old August 16, 2013, 12:23 PM   #291
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I would love to see Woollard go up. For but one of many obvious reasons, to see Judge Legg's clarity of vision vindicated.
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Old August 16, 2013, 01:29 PM   #292
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"A citizen may not be required to offer a 'good and substantial reason' why he should be permitted to exercise his rights," Legg wrote. "The right's existence is all the reason he needs."
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Old August 19, 2013, 11:50 AM   #293
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there are some great juicy tid bits in there that i hope to see come into play years down the road when "in common use" comes into being challenged. what i always find interesting is the close similarities in the good cause debate and what will some day be the "in common use debate". in miller they say that in common use was defined by the military using the weapon or in that case supposedly not using. if such is the case if both the police and military are using the weapons and they are outside the scope of dangerous and unusual where as a licensing scheme exists. so in this woolard challenge it seems that the good substantial reason or good cause determination by scotus will have bearing on the future of challenging many state rationing schemes like CA's safe handgun roster or soon to be sb 47, sb 374 or sb 396. if not then the future looks bleak as they point out in many of the briefs rational bases disguised as Immd scrutiny will become the norm and all schemes will stand. i love the addition of the abortion rulings to the justification unlike the NY challenge last year gura appears to be significantly more tame and pointed in this challenge. previously his NY brief seemed to almost jump off the paper as demanding review, this one struck me as much more subtle but every bit as well founded in fact.

Last edited by ddestruel; August 19, 2013 at 02:12 PM.
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Old August 19, 2013, 05:00 PM   #294
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Quote:
Originally Posted by ddestruel
what i always find interesting is the close similarities in the good cause debate and what will some day be the "in common use debate". in miller they say that in common use was defined by the military using the weapon or in that case supposedly not using.

Maybe I'm reading it incorrectly, but it seems Miller was pretty much euthanized by Heller. I don't think anything else will ever come from Miller, and that's probably a Good Thing.
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Old August 19, 2013, 05:17 PM   #295
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I think they went out of their way to say they weren't disturbing Miller. I think they want Heller to be an extension of, or companion to, Miller. While I think in application it will be a replacement for most cases, in a few, the distinctions will be enough to cite Miller over Heller from time to time, though most will likely cite both.
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Old August 19, 2013, 07:59 PM   #296
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JimDandy probably has a better feel for it than I do. I'm thinking of:

Quote:
Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons.
It is particularly wrongheaded to read Miller for more than what it said, because the case did not even purport to be a thorough examination of the Second Amendment.
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Old August 19, 2013, 09:20 PM   #297
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I don't have the language handy, but Heller interpreted Miller substantially changing its meaning, IMO. Because the court found alarming the implication that protection for only military weapons would include FA machine guns, it summarily re-interpreted Miller accordingly. To say the court refused to disturb Miller is not exactly correct. They, in fact, turned 'in common use for military purposes' into 'in common use for civilian purposes'.

Last edited by maestro pistolero; August 19, 2013 at 09:43 PM.
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Old August 19, 2013, 09:41 PM   #298
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Correct, Maestro.

But remember that Scalia waffled a bit on the whole militia arms concept, even while making a fork in Miller's meaning.
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Old August 19, 2013, 09:53 PM   #299
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Right. This is just from memory, but I believe it went something like this: "it may be objected that modern day tanks and bombers create a disconnect between the operative and prefatory clause of the amendment. . . but that cannot change our interpretation of the right." . . . Except, I suppose where Miller is concerned.
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Old August 20, 2013, 12:43 AM   #300
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Here it is, bold part mine:

Quote:
"It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty.

It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right."
If it cannot change the interpretation of the right, then why disparage small, bearable arms such as those in common use by the military as the court seems to. And since NO COURT can detach the amendment from its prefatory clause, how on earth could any small, bearable military arm be beyond the reach of a non-prohibited person?
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