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Old July 6, 2012, 07:52 PM   #151
SilverBulletZ06
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Gura better chop off the legal historians at the kneecaps or get pro-2A historians on his side. I have a feeling that since the past few Pro-2A rulings have been based on historical precedent they are going to have very weighted words before the court.
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Old July 24, 2012, 10:11 AM   #152
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The Stay Is Lifted!

For the criteria in granting a stay of judgment, pending an appeal, Judge Legg used the following:

Quote:
In determining whether a stay is warranted, the Court must consider: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.” Hilton v. Braunskill, 481 U.S. 770, 776 (1987).
Here are his reasonings:

a. Likelihood of Success
Quote:
Defendants have beyond question shown that considerable difference of opinion exists throughout the country as to the proper scope and application of the Second Amendment following the Supreme Court‟s watershed decisions in Heller and McDonald. In the case at bar, the Fourth Circuit could certainly find reasonable grounds to reverse this Court‟s decision. Such an outcome does not appear so probable, however, as to outweigh the remaining considerations discussed below.
b. Irreparable Injury
Quote:
Defendants point to little in the way of truly irreparable injury that is likely to result should their request for a stay be denied.
c. Interest of Other Parties
Quote:
Against costs to Defendants of complying immediately with the Court‟s ruling, the Court must balance the harm to Woollard and those like him. If a stay is granted, a sizeable number of people will be precluded from exercising, while the case is argued on appeal, what this Court has recognized as a valid aspect of their Second Amendment right.
d. and the Public
Quote:
On this dimension, then, the Court cannot say that a stay would demonstrably serve or disserve the State‟s goal of preventing a potential increase in handgun violence pending appeal. Defendants have not established that the public interest weighs in favor of a stay.
The State failed all 4 tests and the stay is lifted.

In a separate order, Judge Legg dissolved the stay to be effective 14 days from the Order. Why 14 days and not immediately?

This is a simple consideration to the State. They now have time to file for a stay with the 4th Circuit and for that circuit to makes its determination of granting a stay.

The reasonings of Judge Legg in dissolving the stay will be given great weight by the motions panel. Like his ruling, this memorandum of dissolving the stay was well written and I suspect that the State's Motion to Stay the Opinion will be denied.
Attached Files
File Type: pdf Memorandum Lifting Stay.pdf (96.7 KB, 8 views)
File Type: pdf Order Lifting Stay.pdf (63.4 KB, 8 views)
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Old July 24, 2012, 10:19 AM   #153
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Awesome!
Thanks again to you Al for keeping us up to date.
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Old July 24, 2012, 11:04 AM   #154
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We need more judges like this one.
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Old July 24, 2012, 04:20 PM   #155
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I'm flabbergasted!

One more hurdle cleared!!!
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Old July 24, 2012, 07:46 PM   #156
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now how long do we have to wait for the 4th to rule?
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Old July 24, 2012, 08:51 PM   #157
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Quote:
now how long do we have to wait for the 4th to rule?
I'm guessing that depends on whether MD. appeals or not for starters.
Too many variables at this point.
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Old July 24, 2012, 10:15 PM   #158
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Monday, the 30th, Alan Gura will file his response to MD's opening brief at the 4th. Monday, Aug. 13th, MD will file its reply brief.

Briefing will be complete at that time and we will await a date for oral arguments. A decision from that could come as soon as Dec.

However, there is another factor to all of this. That is a decision in Moore/Shepard from the 7th Circuit. This can and will affect how the 4th might rule, all other things being equal.

Why?

First, the 7th Circuit is listened to by the rest of the country. It is a prestigious circuit, in and of itself. Secondly, Judge Posner is always listened to. He sits in the center chair of the Moore/Shepard panel. I (and most others) believe he will write the decision. Thirdly, this decision will most likely come out within the next couple of weeks - the spring 2012 session ends on Aug. 8th and the 2012 fall session begins on Sept. 5th - sometime before the beginning of the fall session.

While the probable date of the Moore/Shepard is speculation, what is not speculation is that the decision will come out before orals are scheduled for Woollard. The 7th is known for being the "Rocket Docket" among the CCA.

While we shouldn't be drinking our own "Kool-Aid," should the decision be in our favor, that will greatly affect what the 4th will do in this case.

There is yet one more thing to consider.

Should Judge Wilkinson be assigned to the panel that hears Woollard, expect a few fireworks. There is no love lost between him, the Heller five and Alan Gura. Judge Wilkinson has already opined that he believes that the Heller decision was made up out of the whole cloth. He was careful to couch his disrespect in Masciandaro, but it is there, nonetheless.
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Old July 25, 2012, 05:22 PM   #159
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OK, with a lot of the variables mentioned by Al, how does this case and Moore/Shepard effect the California cases?
Sorry if this looks like a hijack. But they seem to be running in the same direction from my common man's point of view.
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Old July 26, 2012, 01:54 AM   #160
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There are two cases that may or may not reach a decision in the 9th Circuit.

The first is Peruta v. San Diego. The other case is Richards v. Prieto (was Sykes v. McGinness). These cases both challenge the discretionary issue of carry licenses ("good cause"). The Peruta challenge was dismissed on the defendants MSJ. The Judge cited that Unloaded Open Carry (UOC) was enough to satisfy the 2A. The Judge in Richards thereafter ruled much the same.

Now however, the law in CA has changed and UOC has been banned. That pretty much moots the opinions of the two Judges. It remains to be seen if the 9th will kick this back to the District Courts. The odds are 50/50 that they will.

Enos (the MCDV case) has just started briefing at the 9th.

The other CA cases are still at District Court.

In other words, I don't think it will have much if any effect. Not for a while, at any rate (hoping I'm wrong).
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Old July 26, 2012, 06:37 PM   #161
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The consensus on Md Shooters is Judge Legg took his sweet time to make sure that his decision will not be overturned.
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Old July 27, 2012, 06:52 PM   #162
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It should not come as any surprise that today the Appellants/Defendants filed their Motion to Stay with the CA4 (I have yet to read it).

Here is the latest CA4 docket:

Quote:
07/24/2012 54 DISTRICT COURT UPDATE. ORDER denying [67] Motion to Stay; dissolving the temporary stay entered by Order of March 30, 2012 effective 14 days following the issuance of this order. Signed by Judge Benson Everett Legg on 7/23/2012. [12-1437] (JB)

07/27/2012 55 MOTION by Appellants Marcus L. Brown, Denis Gallagher, Seymour Goldstein and Charles M. Thomas, Jr. to exceed length limitations for motion. Date and method of service: 07/27/2012 ecf. [998904244] [12-1437] Matthew Fader

07/27/2012 56 MOTION by Appellants Marcus L. Brown, Denis Gallagher, Seymour Goldstein and Charles M. Thomas, Jr. for stay pending appeal. Date of action to be stayed, if applicable:March 5, 2012 and April 2, 2012 orders that will be effective August 7, 2012 pursuant to order entered July 24, 2012... Date and method of service: 07/27/2012 ecf. [998904268] [12-1437] Matthew Fader

07/27/2012 57 NOTICE ISSUED to Mr. Alan Gura for Second Amendment Foundation, inc. and Raymond Woollard and Mr. Cary Johnson Hansel, III for Second Amendment Foundation, inc. and Raymond Woollard requesting response to Motion for stay pending appeal [56]Response due: 07/31/2012.[998904304].. [12-1437] (DL)
I should note that the motion is in draft form, pending a grant of Motion to exceed length limitations (#55).
Attached Files
File Type: pdf 56-Motion to Stay Woollard Appelant-Defendant.pdf (125.1 KB, 15 views)
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Old July 27, 2012, 07:09 PM   #163
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Summary:

I. DEFENDANTS ARE LIKELY TO SUCCEED ON THE MERITS, WILL SUFFER IRREPARABLE HARM

II. DEFENDANTS HAVE A STRONG LIKELIHOOD OF SUCCESS ON THE MERITS

III. THE LIKELIHOOD OF IRREPARABLE HARM IN THE ABSENCE OF A STAY FAVORS GRANTING A STAY

IV. CONSIDERATION OF POTENTIAL INJURY TO OTHER PARTIES FAVORS GRANTING A STAY

V. THE PUBLIC INTEREST FAVORS GRANTING A STAY

VI. WE REALLY HATE THAT WE HAD OUR BEHINDS HANDED TO US BY JUDGE LEGG

VII. IT'S FOR THE CHILDREN, THE SKY WILL FALL, BLOOD WILL RUN IN THE STREETS, AND OTHER FAMILIAR THEMES



Ok, I added, VI and VII myself. Seriously what else can they say? They have to argue the law but I have this sense that it is a perfunctory exersize.
May this be quickly denied so Marylanders can finally get to exercising their rights.
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Old July 27, 2012, 07:29 PM   #164
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I just finished a brief read of the Motion.

This is nothing more than a condensed version of their merits brief (which was a condensed version of all their pleadings at district) combined with their brief at district to continue the stay, all of which Judge Legg found unpersuasive. They have made no new arguments that undercuts Judge Leggs decisions, let alone any argument that Judge Legg abused his discretion in dissolving the stay at district.

I expect the Motions Panel to find the same.
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Old July 27, 2012, 10:43 PM   #165
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The courts decision on granting a stay will definitely be the deciding factor on whether or not we will win IMHO. If the court rules that the stay is unwarranted the chances of them finding for the state is going to be near-zero. If they rule the stay is warranted, that constitutional rights can be abridged while a decision is being handed down, it will not bode well for us.
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Old July 28, 2012, 02:05 AM   #166
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Quote:
The courts decision on granting a stay will definitely be the deciding factor on whether or not we will win IMHO. If the court rules that the stay is unwarranted the chances of them finding for the state is going to be near-zero. If they rule the stay is warranted, that constitutional rights can be abridged while a decision is being handed down, it will not bode well for us.
Motion's Panel != Merits Panel
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Old July 28, 2012, 08:34 AM   #167
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While I am delighted with Judge Legg's lifting of the stay I am more than a little surprised it was issued immediately after the tragedy in Colorado. I hope we don't live to regret this.

I also find it disheartening that MD continues to reject citizen's right to self defense, as ruled in Heller, all while providing state officials with personal security at the citizen's expense. Talk about privilege. The police don't prevent crime, they only investigate crime after the fact. But state officials have personal security specifically to prevent crimes against themselves, their families, and their property & possessions. The state continues to deny citizens any defense at all while over-protecting themselves. From us. It's truly absurd. This is one of the principal protections of the 2nd Amendment as ruled in Heller. IMHO.

Here's hoping the 4th won't reinstate the stay, but I'm pretty sure they will. Bad timing & too much politics.
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Old July 30, 2012, 03:06 AM   #168
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You know what's funny?

Circuit Appeals court Stay requests are typically accompanied by reasons why a Judge abused his discretion.

I searched using Adobe's finder tool, and nothing in there about "abuse of discretion" and the word "discretion" is only in there once.
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Old July 30, 2012, 09:52 AM   #169
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Gray, I really believe this brief was perfunctory. I'm sure someone will come along to tell me I am naive, but I think they have lost the will to fight this, but they have to appear to be trying.
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Old July 30, 2012, 01:44 PM   #170
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Gura's response to the MD merits brief is in. Don't be scared of the length (100 pages), as the first 21 pages are TOC & TOA, and the last 10 are an appendix.

Tomorrow we will see his response to the motion to stay.
Attached Files
File Type: pdf CA4-Woollard Appellee Response.pdf (1.10 MB, 28 views)
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Old July 30, 2012, 09:19 PM   #171
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As always, Alan Gura's writing style is an easy read and settles lightly on the mind. Since the Appellant/Defendant has used most of the same arguments as they did at district court, Mr. Gura uses almost all of the allowable 14K words to rebut not only the State, but some of the State's amici briefs. He doesn't mince words here.

Of the many things he does say, I have to bring one quote to everyone's attention!

In showing that the right is not a right bound to the front stoop, by quoting Dred Scott and Cruikshank, Alan Gura goes on to say:

Quote:
The Court later observed that “during military occupation irreconcilable enemy elements, guerrilla fighters, and ‘werewolves’ could [not] require the American Judiciary to assure them . . . [the] right to bear arms as in the Second [Amendment] . . .” Johnson v. Eisentrager, 339 U.S. 763, 784 (1950). The reference was not limited to home self-defense.
pp 22 (pp 43 of the pdf).

The above brought several chuckles to my lips and my wife nearly fell off her chair, laughing so hard!

In dealing with the amici, the following is typical of his writing style:

Quote:
Second Amendment author James Madison understood that the “bearing” of arms extended beyond the home. In 1785, Madison introduced in Virginia’s legislature a hunting bill drafted by Thomas Jefferson. Regarding “whoever shall offend against this act,” it stated:
[I]f, within twelve months after the date of the recognizance he shall bear a gun out of his inclosed ground, unless whilst performing military duty, it shall be deemed a breach of the recognizance, and be good cause to bind him a new, and every such bearing of a gun shall be a breach of the new recognizance. . . .
A Bill for Preservation of Deer (1785), in 2 PAPERS OF THOMAS JEFFERSON 443-44 (J. Boyd ed., 1950) (emphases added).9



9Defendants’ amici Historians, at 6, omit the words “recognizance” and “whoever shall offend” from the bill in falsely stating it applied to “any person,” and evinced Jefferson’s alleged “view that firearms rights did not extend beyond one’s property.”
pp 31 (pp 52 of the pdf).

Here, Alan Gura is directly telling the court that the amici Historians have lied to the court. In doing this, it calls into question the validity of any other thing that this amici has said.

Next Monday, we will have some amici briefs for the Appelles/Plaintiffs. I noted the following on pp 49-50 (pp 70-71 of the pdf):

Quote:
Unsurprisingly, Defendants and their amici’s historical vision plainly conflicts with Heller, McDonald, and the sources described therein. It will not be accepted by the Supreme Court. An amicus brief by academics whose Second Amendment scholarship the Supreme Court endorsed will address Defendants’ amici in greater detail.
That might suggest only a single amicus. However, on pp 63 (pp 84 of the pdf), we find this:

Quote:
Plaintiffs’ amici will fully present the criminological evidence confirming the People’s wisdom in ratifying the Second Amendment.
Regardless, I'll stop my quoting here. You may find other, equally good quotes of your own, should you take the time to actually read this brief. It's not only an easy read, it is an easily understandable read.
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Old July 30, 2012, 09:52 PM   #172
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Quote:
The Court later observed that “during military occupation irreconcilable enemy elements, guerrilla fighters, and ‘werewolves’ could [not] require the American Judiciary to assure them . . .
Interesting. In the last century, we armed ourselves against werewolves, now we've progressed to arming ourselves against zombies.

I've also read Gura's brief at length. The way the man has covered all the bases is phenomenal, and I, too, took particular glee in his debunking of the opposing amici's briefs.
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Old July 31, 2012, 09:00 PM   #173
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By the end of my lunch hour today, I was only halfway through my reading of the Piszczatoski reply brief. I knew that by the time I came home from work, Alan Gura's response to MD's Motion to Stay, would be in. It was, so I have stopped reading the other brief to read this one.

The State filed late Friday afternoon (the 27th). That same day, the CA4 ordered Gura to file a response by the next Tuesday (today). So Carl Hansen and Alan Gura had, at most, 4 days to craft a response, assuming they worked all weekend on the response.

Considering Gura had to polish and finish off his reply to the State in the CA4 appeal (Woollard) and also the appeal at CA3 (Piszczatoski - even if David Jensen wrote most of it). So Monday was mostly shot. That brings it down to a mere 3 days.

So it does not surprise me that there are some typos and gaffs in this brief. Some are glaring, some are subtle. They are there, nonetheless. Can you find them?

Regardless, it does not detract from the brief.

Quote:
Arguments based on the supposed general social ills Maryland claims to be associated with firearms have been rejected by the United States Supreme Court. Moreover, the more persuasive research stands staunchly in favor of the right to keep and bear arms. However, the Court need not examine the thousands of pages of social science on the issue.

Simply put, this case is not a constitutional convention. Our roles are not to debate the wisdom of the Second Amendment. The policy decisions embodied therein were made at the time of its enactment. The Court should pay no more heed to hysterical claims of gun violence than countenance arguments about the supposed ill effect of permitting speech protected by the First Amendment.

The Second Amendment is part of the fabric of our constitution and our society. Whether Maryland might prefer to write it out of the constitution based on faulty pseudo-social science is completely irrelevant.
Have you figured out what Gura is doing, yet? How about this one:

Quote:
This ruling - ending government encroachment upon our constitutional rights - is not the proper subject of a stay. No state is entitled to a reprieve to continue violating the rights of its citizens.
Not yet? Try this one:

Quote:
The defense opens its argument by seriously misstating the primary issue before the Court. The suggestion is made, at page 8 of the defense brief, that this Honorable Court is asked to decide whether the Second Amendment secures the right to bear arms for an individual who “cannot demonstrate a reasonable self-defense or other justification.” Whether or not an individual can satisfy the government that he or she has substantial justification to exercise a constitutional right falls well short of the point. The issue in this case is whether the government can make such a demand of individuals seeking to exercise their rights in the first instance.

This fundamental distinction reveals the fallacy in the Defendants’ approach to the entire issue. The defense starts from the premise that the Second Amendment does not protect the right to bear arms generally in public (even allowing for reasonable regulation of time, place and manner). All of the defense argument thereafter flows from this fundamental fallacy.

Mistaken as it is in its conclusion, the defense strategy is understandable in that it is the only real avenue available. Unless the defense meets its heavy burden of establishing a high likelihood of success on the merits – which manifestly it cannot - the requested stay should be denied.
For those that aren't getting it: Alan Gura is writing with the tone of a victor who fully expects the States appeal to fail. If you read this opposition brief, you will find this tone, throughout. It is a departure from what we have read before. Here, instead of trying to convince the court of his position, he is writing as one who is in firm control of the outcome.

And why shouldn't he? This is a great vehicle to use to deny the stay.

Now, back to reading the Piszczatoski reply brief.
Attached Files
File Type: pdf CA4-Opposition to Motion to Stay.pdf (229.7 KB, 4 views)
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Old July 31, 2012, 09:36 PM   #174
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Quote:
Originally Posted by Al Norris
Here, Alan Gura is directly telling the court that the amici Historians have lied to the court. In doing this, it calls into question the validity of any other thing that this amici has said.
Even for a bunch of gun grabbers, it's surprising that their historians would be so bold as to intentionally misquote a famous historical figure whose views are central to the point under consideration. That they would do so is further proof (as if we needed any) that the opposition is not only devoid of intellectual integrity, but stupid as well.

Did they really think he wouldn't check their quotation?
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Old July 31, 2012, 10:12 PM   #175
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Great read, gents, and well worth the time. Laughed a bit at police officers "upholstered" firearms, but I am sure that the Judge will read the context. Gura and associates make me proud. This is going to make the state squirm. Well done.


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