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Old April 22, 2012, 11:26 AM   #101
Dan F
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Al, or anyone that can answer,

What do you know about the nature of the appeals process as it relates to stays?

Assuming Judge Legg denies the AG's appeal, will the temporary stay be dissolved and the permanent injunction go into effect even if Maryland appeals the denial of the stay to the 4th Circuit (and possibly again to SCOTUS)? How quickly to these types of appeals move? Will MD be compelled to start issuing permits only once SCOTUS denies the stay appeal, or where in the process?

I'd like to finally be able to carry in my state of residence... but I don't want to jump the... oh, never mind.

Dan
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Old April 22, 2012, 12:22 PM   #102
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As I noted in my last post, if the State cannot show to the satisfaction of Judge Legg that they have a chance to win at appeals, then the temporary stay will be canceled and the injunction will be in full force.

At that point, the State will have the option to make a motion to the 4th Circuit for a stay. The Motions Panel will then take a good hard look at the reasoning Judge Legg used in making his decision not to allow a stay.

A couple of things are happening here.

Despite whatever feelings we may have, it is a truism that the Federal Courts really do not like to overturn State laws. So when they do overturn a State law, as a general rule, they make the most reasonable arguments they can, so as not to be overturned on appeals. Appeals Courts operate the same way.

So a judges opinion has to be pretty much airtight to survive the appeals. I feel, as do most scholars (both pro and anti), that Judge Legg has done this. Maryland has been handed a decision that leaves virtually no wiggle room.

Yet because the Courts are loath to overturn State regulatory laws, a stay in the judgment is almost a given. This is exactly why Judge Legg is now conducting briefings on the matter of a stay.

After the briefings are concluded, the Judge will weigh the evidence before him and arrive at a decision to make the stay permanent while under appeal or lift the temporary stay and place the injunction in full force.

Should the Defendant State of Maryland Motion for a Stay at the Circuit, then the Motions Panel will do much the same thing. The only difference here will be Judge Leggs opinion on the stay. They will give it more weight, particularly if it is well reasoned, as to law.

But this is all a separate process from the actual appeals. That (process) will go forward regardless of what the Motions Panel does.

The appeals process started the moment that Judge Legg issued his order of clarification and imposed an injunction against MD applying 5(ii) in processing wear and carry permits. That is evidenced by the fact that MD immediately filed their appeal (the order was delivered on Fri. Mar. 30th and the notice of appeal was filed on Mon. Apr. 2nd, the 4th Circuit noticed the docketing of the appeal on Fri. Apr. 6th).

By the time that Judge Legg files his decision on the Motion to Stay, it will be June or even July. The appeals will have set the briefing schedule by then.

There will be no delaying tactics (extensions for time to file) by the State. Most especially if Judge Legg rules against them and the State Motions to Stay at the Circuit. It is not just bad form, it would indicate to the Motions Panel that the State is not sincere in its belief of harm (remembering that this is one of the criteria for the stay).

Sorry to be so long winded, Dan. There just isn't a short way of describing what is actually going on at this point in time.

Next post, What happens to the permit applications.
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Old April 22, 2012, 12:48 PM   #103
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For the most part, MSP is just sitting on the applications.

Should the stay be dissolved (Judge Legg denies the motion), the State will have to process the applications without regard to G&S.

It is conceivable that many of the applications will have crossed the 90 day grace period the law allows for the process. All of those applicants may then appeal to the Gun Board.

By their own actions, the State is caught between a rock and a hard place. Do they process the applications and deny them? With the temp stay in place, the injunction is not active. All denied applications may be appealed. Do they hold the applications beyond the statutory 90 days? All applicants may then appeal.

Maryland is going to have an extremely hard time showing it couldn't process the applications in time. Why? Expect Alan Gura to reference the following link, somewhere along the way:

http://www.greenbaypressgazette.com/...-000th-license

and the related Wisconsin DOJ announcement...

http://www.youtube.com/watch?v=xTB5L...layer_embedded

This is the AG of Wisconsin applauding his departments in processing 100,000 permit applications in less than 6 months since they passed their own carry bill.
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Old April 22, 2012, 01:15 PM   #104
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I always wonder about the motivation and duty of a state to defend a law that a court has found unconstitutional. At some point, might the renewed hope of those who have been denied their rights for so long begin to sway popular opinion to the point of influencing the legislature and the resolve of the state to fight the inevitable? Or will the idealogues merely dig in and invent ever more devious ways to suppress the right?

IIRC, North Carolina is not appealing it's loss vis a vi 2A rights during a declared emergency. Do they not have the same duty to defend state law that MD does?
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Old April 22, 2012, 01:38 PM   #105
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Ideology plays the most important part in these decisions.

The AG's duty to defend the State, stops with the first adverse decision, assuming the Judge in that decision was ruled correctly, as a matter of law.

We can all argue our own interpretations, as to that ruling. But it is our own ideology that is continuing the argument. Recognizing that, we can then argue whether or not the decision was actually the correct decision, as a matter of law.

When you cannot distance yourself of your own ideology, we get the results we are seeing in MD.
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Old April 22, 2012, 02:01 PM   #106
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Isn't it possible, if unlikely, that the court of appeals in Woolard will dismiss the Woolard appeal? And THEN wouldn't the the MD AG be free to abandon the cause?

I suppose the ideology of the AG's superior (the governor?) determines how long they stay in the fight. Ironically, and thankfully, it is exactly that ideology-driven determination to fight that makes for favorable case law, as we saw in Heller and McDonald.

I suspect it may take one of the carry cases going all the way to SCOTUS before we see a nationwide drop-off in states defending these un-winnable cases, IMIO (in my ideological opinion).
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Old April 22, 2012, 03:16 PM   #107
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Quote:
Originally Posted by maestro pistolero
Isn't it possible, if unlikely, that the court of appeals in Woolard will dismiss the Woolard appeal?
No.

The courts of appeal must take the appeal. They will either rule to affirm or remand the case.

Quote:
And THEN wouldn't the the MD AG be free to abandon the cause?
Certainly. But then again, he could have refused to appeal, couldn't he? That he didn't, says nothing about the Governor (who could have hired another attorney to defend the State).

As you implied, if it wasn't for the ideologues, we wouldn't have Heller, let alone McDonald.
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Old April 23, 2012, 11:07 PM   #108
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The duty and authority of attorneys general will vary from state to state. Generally, they have the duty and authority to defend the constitutionality of statutes. In some states, the AG is the exclusive authority to do so. In other states, legislators or someone else may have some standing to do so. On rare occasion, an AG may ask a statute be declared in violation of the state or federal constitution. From our perspective, the problem is that the law is still unsettled in many respects and an AG may feel he or she has more responsibility to continue defending a statute until the U.S. Supreme Court answers some of the questions.

In many states, AGs are elected officials exercising independent judgment as to how far they should go to defend the constitutionality of a statute. In others, they are appointed by governor. In Tennessee, the AG is appointed by the state supreme court. If appointed by the governor, an AG is obviously more heavily influenced by the governor. A quick Google check reveals that the Maryland AG is elected.
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Old April 24, 2012, 05:57 AM   #109
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Blog Regarding MD AGs Brief

http://monachuslex.com/?p=577
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Old April 25, 2012, 04:36 PM   #110
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Thanks, Al... your patience is appreciated, as always.

I hope I'm not being slightly more dense than usual, but I was wondering specifically: once Judge Legg has ruled on the temporary stay (assuming he dissolves it and the Permanent Injunction goes into effect), will any applicants in MD then have to wait while the 4th Circuit Motions Panel rules before MD will be forced to start issuing permits? Or, worse, assuming the 4th Circuit Motions Panel denies a stay, the SCOTUS version of the Motions Panel (I'm guessing MD will push this as far as they can before being coerced into granting permits)?

I am really wondering how long it might drag out before MD will be held down and made to take the medicine, even as the appeals grind onward... late June? Late Summer? 2013? I realize the appeals themselves will certainly drag into 2013 or even 2014, but if the stays are exhausted (at whatever point that happens), MD will have to start issuing even before the issue is ultimately decided on the appeal hearings, yes? I'm just wondering at what point to expect that... it seems too much to hope for that Judge Legg's decision will be that point.

Dan
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Old April 25, 2012, 10:11 PM   #111
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One thing to remember, is that regardless of what happens with the motions panel, the merits briefing will move along. One has nothing to do with the other.

So let's assume that Judge Legg denies the permanent motion for stay (dissolves the stay). The injunction against applying 5ii is once again in effect. The 90 day clock starts again, as if the temp stay never happened.

I suspect that the ruling will come in close to or after the 90 days (dated from March 2nd). They either have to send out denials or grant the permits. This, before they can even file their motion to the 4th.

Meanwhile, the merits phase will have already begun. It may even be that the opening brief will have been made (we don't know yet what the briefing schedule will be).

Those that have been denied, will have 10 days to appeal to the gun Board. It is highly recommended that any denials immediately appeal (section 5-311 or 5-312), to keep their application alive.

If Judge Legg is really good in writing his order to deny the stay, the motions panel will most likely deny the State their stay (keeping the injunction in full force). The merits briefings will be in full swing.

During all of this hypothetical scenario, should the Gun Board deny the permits and the 4th Circuit uphold the judgment of the district court, each and every member of the board can be held civilly liable (section 1983) for denying a fundamental right. There will be no qualified immunity for them, even if the State pays their legal fees.

Of course, those folks who are not members of the SAF, will have to foot their own legal fight. Because the SAF already has standing, those SAF members can go to the SAF, which will then come before Judge Legg and have him issue contempt charges, against the board and/or State, for their members.

What I'm trying to say is that if the District Court denies the stay, the State and the Gun Board are not going to want to tick this Judge off.

So, next scenario. Judge Legg denies the stay. The circuit motions panel denies the stay. Should MD be stupid enough (and yes, they have already shown they can be this stupid: i.e. returning unprocessed apps with the uncashed check), yes, they can then appeal to the SCOTUS with a motion to stay.

The problem with doing this, is that all such motions go directly to the Chief Justice. I should also mention that the merits briefing will likely be over and a date for orals will have been set. CJ Roberts (or more likely, his clerks) will read both decisions and render his own. CJ Roberts will take a dim view on doing something both the district and circuit feel is unwarranted.

Meanwhile... The Kachalsky case (2nd Circuit), Hightower (1st Circuit) and Piszczatoski (3rd Circuit), will possibly all have been decided, by the time orals are held for Woolard.

Heck, the 2 NRA cases at the 5th Circuit may also have been decided. All of this may have some bearing on what the 4th Circuit might decide. That decision will most likely come out sometime in the first quarter of 2013.

If there are any appellate attorneys here, feel free to jump in and correct any of this layman's understandings.
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Old April 27, 2012, 01:33 PM   #112
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The 4th circuit clerk entered the Briefing Schedule, back on 4/18/2012:

Appendix due: 05/29/2012
Opening brief due: 05/29/2012
Response brief due: 07/02/2012
Reply brief (opt): 07/16/2012

Yesterday, the State entered a motion for a Stay short extension to file, citing several commitments already scheduled close to the opening brief date:

Quote:
04/26/2012 13 MOTION by Appellants Marcus L. Brown, Denis Gallagher, Seymour Goldstein, Terrence Sheridan and Charles M. Thomas, Jr. to extend filing time for opening brief until June 15, 2012; and response brief until July 16, 2012. Date and method of service: 04/26/2012 ecf. [998841658] [12-1437] Matthew Fader
If granted, this pushes everything back by 2 weeks:

Appendix due: 05/29/2012
Opening brief due: 06/15/2012
Response brief due: 07/16/2012
Reply brief permitted within 14 days of service of response brief (7/30/2012)

There's a hint that orals will be Sept. 18-21 and this small extension will not impact those dates.
Attached Files
File Type: pdf Woollard CA4 13 Briefing Ext Rqst.pdf (107.2 KB, 9 views)
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Old April 27, 2012, 02:08 PM   #113
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Al, thanks so much for the updates. As a probable future Maryland resident (not by choice, long story), this one matters to me.
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Old April 30, 2012, 06:45 PM   #114
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Nobody should be surprised...The two week extension was granted on Friday:

Quote:
04/27/2012 16 ORDER filed [998841700] granting Motion to extend filing time [13], updating/ resuming briefing order deadlines. Opening brief and appendix due 06/15/2012. Response brief due 07/16/2012 Copies to all parties... [12-1437] (DSD)
MD's Appendix/Opening Brief: 6/15/2012
Pltf Response Brief: 7/16/2012
MD Optional Reply: 7/30/2012
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Old May 9, 2012, 11:35 PM   #115
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Alan Gura/SAF has filed their response to the MD motion for a stay of the injunction.

Not counting the Cover page, Table of Contents and Table of Authorities (4 pages, total), the remaining 10 pages simply sweeps the oppositions claims, arguments and pleas into the dustbin of history.

Reading this response, I literally felt like Dorothy watching Toto pull back the curtain.

Read it here: http://www.archive.org/download/gov....80772.69.0.pdf
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Old May 10, 2012, 05:56 AM   #116
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Quote:
Reading this response, I literally felt like Dorothy watching Toto pull back the curtain.
What an analogy that is! Thanks for the update and the word-smithing, Al.
(Yeah, I may have misspelled something there.)
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Old May 10, 2012, 10:11 AM   #117
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Puzzling

The basis for the state's argument is "fear". Fear that too many people will carry guns. Fear that licensees will commit crime. Fear that someone will take away a licensee's gun by force and use it for ill. Fear of accidental firing. Fear.

Well fear of what MAY happen is not sufficient grounds to deny a citizen a right. We call this "speculation", not evidence.

If the state can use "fear" to deny us our rights they can deny us ALL of our rights out of "fear". This is exactly how the TSA & the anti-patriot act came into being. It is time to stop denying us our rights based on speculation and fear.

I am puzzled that Gura's brief didn't state the obvious: that the state's argument is based on fear and fear alone. The Supreme Court specifically ruled in McDonald that the second amendment could not be singled out for "specially unfavorable treatment".

"When the government fears the people there is liberty. When the people fear the government there is tyranny." Uncle Tom Jefferson.
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Old May 10, 2012, 10:25 AM   #118
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Quote:
Originally Posted by rts99
...I am puzzled that Gura's brief didn't state the obvious: that the state's argument is based on fear and fear alone. The Supreme Court specifically ruled in McDonald that the second amendment could not be singled out for "specially unfavorable treatment"....
Because that line of argument isn't helpful or proper in this brief dealing with this issue, the stay.

Alan Gura is a well trained and highly skilled lawyer and knows what he's doing. This latest brief of his is a model of clarity and brevity.
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Old May 10, 2012, 10:52 AM   #119
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Quote:
Originally Posted by Frank Ettin
Alan Gura is a well trained and highly skilled lawyer and knows what he's doing.
I hereby award Frank Ettin the Understatement of the Day Award, which comes with full bragging rights and a no-money-back guarantee.

I read and write my share of federal appellate briefs as part of my work, and Gura is a master of that craft.
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Old May 10, 2012, 10:58 AM   #120
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rts99, in his response, Mr. Gura has answered (and refuted) each and every claim made by the AG in his Motion to Stay. He did this in the 10 pages allotted by Judge Legg.

His brief was clear, concise and to the point. No more and certainly, no less. He laid bare the real reasons for the State wanting the stay. Judge Legg can certainly read between the lines, as you have.

Up next? The April May 23rd reply brief by the State and then we will await what the Judge has decided.

Meanwhile, the appeals timetable marches on.

ETA: Thanks, Maestro!
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Old May 23, 2012, 09:29 PM   #121
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MD AG Gansler has filed his reply brief: http://www.archive.org/download/gov....80772.70.0.pdf

First, the plaintiffs misread footnote #1, the State was just saying that the Judge had more options than an either/or option, as regards the stay.

Then, the State would be hugely inconvenienced if it had to track the permits and the 4th overturned the decision. (psst! MD has had this permitting system for 40 years, and they still can't track the permittees???)

They cite (once again) their own stats to prove that Gura's stats are false. (Gura provided the raw data which MD still doesn't do)

They cite the Moore decision as being correct and Judge Legg's decision as being an "outlier." (this is an attempt to "show" they will win at appeal)

Overall, there is a whole lot of ipse dixit (Assertion of fact without proof - a logical fallacy) going on in these 10 pages.

Now we wait to see if the State has presented enough of a case for Judge Legg to continue the stay.
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Old June 11, 2012, 09:48 PM   #122
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Here's the latest docket entry from the 4th:

Quote:
04/26/2012 13 MOTION by Appellants Marcus L. Brown, Denis Gallagher, Seymour Goldstein, Terrence Sheridan and Charles M. Thomas, Jr. to extend filing time for opening brief until June 15, 2012; and response brief until July 16, 2012. Date and method of service: 04/26/2012 ecf. [998841658] [12-1437] Matthew Fader

04/26/2012 14 MOTION by Appellants Marcus L. Brown, Denis Gallagher, Seymour Goldstein, Terrence Sheridan and Charles M. Thomas, Jr. to amend/correct caption. Date and method of service: 04/26/2012 ecf. [998841659] [12-1437] Matthew Fader

04/26/2012 15 DESIGNATION OF LEAD COUNSEL (Local Rule 12(b)) by Appellants Marcus L. Brown, Denis Gallagher, Seymour Goldstein, Terrence Sheridan and Charles M. Thomas, Jr.. Name of lead counsel: Matthew J. Fader. [12-1437] Matthew Fader

04/27/2012 16 ORDER filed [998841700] granting Motion to extend filing time [13], updating/ resuming briefing order deadlines. Opening brief and appendix due 06/15/2012. Response brief due 07/16/2012 Copies to all parties... [12-1437] (DSD)

04/30/2012 17 APPEARANCE OF COUNSEL (Local Rule 46(c)) by Cary J. Hansel, Esq. for Raymond Woollard.[998843222] [12-1437] Cary Hansel

04/30/2012 18 ORDER filed [998843313] granting Motion to amend/correct [14], updating case caption. Copies to all parties. [12-1437] (DL)

05/02/2012 19 DESIGNATION OF LEAD COUNSEL (Local Rule 12(b)) by Appellees Second Amendment Foundation, inc. and Raymond Woollard. Name of lead counsel: Alan Gura. [12-1437] Alan Gura

A couple of notes. Doc #14 was to amend the caption of the case. The case is now, Raymond Woollard v. Denis Gallagher, case #12-1437 (the case # remains the same, only the case name has changed). #13 Motion by appellants was granted (#16), so this Friday (June 15th) will be the opening brief. This translates to the following:

June 15 - Opening brief by MD
July 16 - Response by Woollard (Gura/SAF)
July 30 - Reply by MD

We won't know the date for orals until sometime after the end of July. The 4th Circuit, like the 7th Circuit, does not announce which Judges are on the panel until the morning of argument. Currently, the earliest possible date for orals will be on or after Sept. 18th.

What is really interesting is that by the time orals for this case are scheduled, the 7th may have already rendered a decision in Moore/Shepard.

Why is this interesting?

Decisions in the 7th are generally given deference (great weight) by the other circuits. Because Judge Posner was running the panel in Moore/Shepard, we expect him to author the opinion. His opinions always carry weight. This will all work to our advantage, most especially if Judge Wilkinson is on the panel to hear Woollard.

For those that are tuning in late, Judge J. Harvie Wilkinson wrote a scathing article, roundly criticizing Justice Scalia, after the decision in Heller and also wrote part of the decision in Masciandaro, in which he repeated what the MD Supreme Court said in Williams: (paraphrasing) If the Supreme Court wants the RKBA to include outside the home, it will have to be more explicit.
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Old June 15, 2012, 11:09 PM   #123
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The State's opening brief is out (attached).

Let's see if I can sumarize the arguments of the State:
  1. The keeping and carrying of arms in the home is the only thing the 2A stands for. See Heller.
  2. This case is about concealed carry and the Court in Heller expressly upheld such limitations to the right.
  3. Public carry of firearms was heavily restricted from the 14th century onwards.
  4. Heller never recognized a general right to carry.
  5. Maryland's Compelling Interest in safeguarding the public and reducing handgun violence is enough to satisfy any reasonable scrutiny.
  6. Law abiding citizens with guns would become criminals (guns can do this, ya' know?).
  7. If the general public were allowed to carry in public, the streets would run red with blood.
Yup. That about summarizes the arguments.

Hmmm... Didn't we read all of this at District?
Attached Files
File Type: pdf Woolard Appellants Opening Brief.pdf (1.02 MB, 19 views)
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Old June 16, 2012, 07:27 AM   #124
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Quote:
Yup. That about summarizes the arguments.
Let's hope they stick with that in front of the Supreme Court.

Heller said that the right to self defense was most acute in the home, but in no way limited the right to location.
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Old June 16, 2012, 07:40 AM   #125
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It was pointed out (over at MDShooters) that 1) This is much the same argument used by IL in their briefs to the CA7 and 2) They are trying to rewrite the much documented history that the Heller Court used.

We heard how the panel in Moore dealt with that.
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