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Old December 25, 2010, 03:20 PM   #1
Al Norris
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NJ Carry: Drake v. Filko (Muller v. Maenz)

Last Monday (Dec. 20th), the plaintiffs filed a Motion for Summary Judgment. See this PDF document.

What makes this different than all the other challenges that the SAF has used, prior to filing this case, is that this is a facial challenge to a specific portion of the law. the "lawsuit challenges the unrestrained discretion that New Jersey law vests in State and local officials to deny a “Permit to Carry” a handgun for lack of “justifiable need to carry a handgun.” N.J.S.A. § 2C:58-4(c), (d)."

There are two means to challenge contested law. The first (and easiest, therefore the most used) is an as-applied approach. This merely says that the law, as applied in this specific instance, is wrong.

The second approach, is a facial challenge. This approach is very difficult. What a facial challenge says is that in all cases, the law is wrong. Not just this case, but in every case. To defend against a facial challenge, all it is required is for the defense to prove that in one case, the law holds.

What you will see in this MSJ, is the most complete (to date) exposition on what the Court said in both Heller and McDonald. In doing this, the brief goes into how the 2A is most like the 1A. Both of these amendments encompass protections for individual actions, while the other amendments provide for procedural protections against government actions.

The brief argues that because the 1A and 2A are so similar, that similar courses of judicial scrutiny must apply.

In the case of NJ law on carry permits, the law in this case should be accorded no scrutiny at all, as it clearly runs afoul of the right, as expressed in the two preceding SCOTUS cases.

The law in question amounts to complete and unbridled discretion to say whether or not a citizen can exercise the right to carry at all. This would be similar to a law that said a citizen must obtain a license to go to church, but only a church recognized by the licensing authority; or that a citizen must have a license to publish, but only what the licensing authority wants published.

No court would give such a law any scrutiny at all. Nor should the court accord this law any scrutiny, as it is a complete denial of the fundamental right to carry:

Quote:
People have a constitutional right to carry handguns for self-defense, and hence, a law that limits this activity to those with an “urgent necessity” does not and cannot serve any legitimate governmental interest (let alone an important or compelling one). Moreover, the requirement is not narrowly tailored and does not leave alternative means of self-defense available.

The Second Amendment right that the Court recognized in Heller and McDonald directly implicates the handgun carry laws of only a few States. The laws of forty-three States recognize that private citizens who are otherwise qualified have a right to carry handguns for self-defense – whether by issuing licenses to carry on the basis of non-discretionary criterion, or by allowing people to carry without licenses.
This brief really is a good read. There are so many good quotes in this brief, that I could spend several posts, quoting the whole thing. But I will stop here with the concluding remarks of the brief:

Quote:
The discretionary “justifiable need” requirement of the New Jersey Permit laws violates Plaintiffs’ Second Amendment right to keep and bear arms. The Supreme Court has squarely ruled that the core of the Second Amendment protects the right of the individual to both possess and carry handguns for self-defense.

While this right is subject to permissible regulation, a State may not preclude its citizens from possessing or carrying handguns, and any licensing scheme must be implemented in a non-discretionary, uniform, and predictable manner. A State has no interest in precluding citizens from protecting themselves, and the Permit laws are facially invalid to the extent that they allow officials to deny Permit applications on the ground that “justifiable need” is not present.
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Old December 25, 2010, 09:13 PM   #2
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Al,

I belief that the discretion to deny (or very rarely approve) a permit has been openly expressed that no ordinary citizen will be approved by more than one public official that is charged with "Approval". I will see if I can find sources, however it might take sometime. I think anything that documents such would be very helpful to the case.

I am thankful that you are following this case, as it will greatly affect my ability to legally carry in my home state.
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Old December 25, 2010, 09:47 PM   #3
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Any state that grants any public official such unfettered discretionary authority ought also require that official to publish, on a regular basis, statistical reports indicating the number of requests authorized and denied, as well as the reasons for denial. Authority without accountability is, in my opinion, one of the gravest dangers we face.
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Old January 12, 2012, 09:37 PM   #4
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Quote:
2012-01-11 38 ORDER granting the application of the Brady Center to Prevent Gun Violence, Ceasefire NJ, et al for leave to file an amicus brief in support of defts. Signed by Judge William H. Walls on 1/11/12. (sr, ) (Entered: 01/12/2012)
2012-01-11 39 ORDER granting the Application of the Michigan Coalition for Responsible Gun Owners, etal to file an amicus brief in support of pltfs. Signed by Judge William H. Walls on 1/11/12. (sr, ) (Entered: 01/12/2012)
Application for Amicus Brady Center was filed on Jan. 26, 2011.

Application for Amicus Michigan Coalition was filed on Feb. 22, 2011.

That's just weird. Why on earth does a judge grant amici briefs, almost a year after filing and after the hearing in which a Cross Motion to Dismiss (#25) and a Motion for Summary Judgment (#12) were heard and submitted (10-27-2011)?
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Old January 13, 2012, 03:23 PM   #5
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Defendant MTD was granted today.

http://www.archive.org/download/gov....49720.40.0.pdf

On to the 3rd Ckt we go
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Last edited by krucam; January 14, 2012 at 12:08 PM. Reason: typos
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Old January 13, 2012, 03:23 PM   #6
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This case certainly does cuts to core. If the question of unbridled discretion can't be won, I dare say the war will have been lost.
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Old January 13, 2012, 03:26 PM   #7
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Quote:
Originally Posted by maestro pistolero
This case certainly does cuts to core. If the question of unbridled discretion can't be won, I dare say the war will have been lost.
The question of unbridled discretion can't be won in NJ...I'll give you that much anywhoose...
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Old January 13, 2012, 07:05 PM   #8
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Speak of the devil. Lo and behold, a decision.
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Old January 13, 2012, 07:47 PM   #9
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The use of the word "devil" is appropriate. Dismissed, and a law that allows so many limitations that nobody is legally allowed to be armed is held to be OK with Heller and MacDonald. OK, NJ, better get your mob buddies to open the war chests if Mr Gura turns his sights on you.
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Old January 13, 2012, 08:16 PM   #10
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When a court gets it wrong, we can only hope for it to be so blatantly wrong as this this. No right to keep and bear outside the home, indeed. The 2A was apparently about indoor militias.
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Old January 13, 2012, 08:44 PM   #11
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This Judge, like so many others has twisted the core right, identified in Heller, from being the right to self defense, to a right to possess and carry guns.

Quote:
Because New Jersey’s Handgun Permit Law does not affect one’s ability to legally carry a handgun in one’s home, private property, or place of business, this case requires that this Court address the extent to which the Second Amendment protects a right for individuals to carry handguns outside the home.
Sorry Judge. That is not what the Heller decision said.

That being said, I firmly believe that no district court is going to read Heller in the proper manner. We should be used to this by now... Yet it rankles, nonetheless.

The SAF already has a press release on the upcoming appeal.
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Old January 13, 2012, 08:58 PM   #12
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It is fascinating that in all of their hand-wringing about public safety, that the right to defend oneself from criminal attack is given ZERO weight. Zip. Nada. Not even worth mentioning.
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Old January 13, 2012, 09:22 PM   #13
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It is fascinating that in all of their hand-wringing about public safety, that the right to defend oneself from criminal attack is given ZERO weight. Zip. Nada. Not even worth mentioning.
There are none so blind as those who will not see.
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Old January 14, 2012, 12:46 AM   #14
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I do not like the conclusion in this case, but I do like the scope of the decision. The judge could have just ruled that the Second Amendment does not extend outside the home, but he went further and volunteered a level of scrutiny if the Second Amendment extended beyond the home. On appeal, higher courts will not only have to deal with the scope of the Second Amendment, but will be forced to explicitly address the appropriate level of scrutiny. Without voluntarily including the scrutiny conclusion, higher courts would have been able to punt the scrutiny question back to lower courts on remand. Since I think that the scope issue is more apt to make its way to SCOTUS, this decision at least keeps the scope and scrutiny issues tied together.
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Old January 14, 2012, 12:55 AM   #15
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Great line

Quote:
A person wrongly killed cannot be compensated by resurrection.
I'll have to rember that little gem...
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Old January 14, 2012, 02:10 PM   #16
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Quote:
Quote:
A person wrongly killed cannot be compensated by resurrection.
And since the same is true for those who die because they were rendered helpless to defend themselves, why again, judge, does that part or the equation equal zero?
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Old February 27, 2012, 09:50 PM   #17
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Well, the date for the opening brief on appeals has been set.

Quote:
02/27/2012 Open Document BRIEFING NOTICE ISSUED. Brief on behalf of Appellants Assn of New Jersey Rifle & Pistol Clubs Inc, John M. Drake, Finley Fenton, Gregory C. Gallaher, Daniel J. Piszczatoski, Lenny S. Salerno, Second Amendment Foundation Inc due on or before 04/09/2012. Appendix due on or before 04/09/2012. (TMK)
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Old February 28, 2012, 09:15 AM   #18
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There's a big push by some of us in NJ to get CC from "May issue" to "Shall issue".

There was a big write in campaign and petition that is still going on. In fact, the New Jersey Assembly Law & Public Safety Committee has gotten so bombarded by emails that they've put in a spam filter to filter them out. So then the fax, snail mail, and phone calls have started.

It may take a few years, but eventually we'll get NJ to denounce communism and join the rest of the country
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Old February 28, 2012, 09:44 PM   #19
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In fact, the New Jersey Assembly Law & Public Safety Committee has gotten so bombarded by emails that they've put in a spam filter to filter them out.
How dare those unruly commoners annoy their betters? Why, the nerve!
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Old February 29, 2012, 07:12 AM   #20
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How dare those unruly commoners annoy their betters? Why, the nerve!
Yes indeed. The voting public thinking they have the right to communicate with elected officials is outrageous. The unmitigated audacity of them is astounding.
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Old April 9, 2012, 08:54 PM   #21
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The opening brief for Piszczatoski (was Muller v. Maenza) was filed today.

There are 127 pages, including the appendix. The body of the brief begins on pp 17 and ends on pp 73, of the PDF. That's 54 pages (for those that are counting).

I'll have more to say, when I get a chance to read and digest the brief. At first glance, it seems to be much like the final reply brief in Kachalsky.
Attached Files
File Type: pdf Piszczatoski - CA3 Appellant Opening Brief.pdf (620.7 KB, 18 views)
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Old April 10, 2012, 03:21 PM   #22
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I'm really hoping we can some wins here in NJ that actually effect a law change, but man it's hard to be optimistic in the state.
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Old April 12, 2012, 09:01 AM   #23
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Having read the opening brief, I'm of the opinion that we are finally seeing what Alan Gura has been working up to.

If you were to read the opening brief and the reply brief in the Kachalsky (2nd Circuit) case, and then contrast those with this brief, you will see that all the points are made and highlighted.

This point is more apparent in the opening brief in Moore v. Madigan (7th Circuit).

I believe we will see much the same in the responding brief in the Woollard case (4th Circuit), when the final stages of dealing with the Stay is dealt with by Judge Legg. Note: We won in Woollard and MD has already filed for appeal. They will get first and last say in the briefing. Gura will only get a response.

What we are seeing is the same basic argument in three States (and three different circuit courts of appeal) that deny the right to carry, and hence the right to self defense. They will either create a circuit split, encouraging the Supreme Court to grant Cert or they will all agree with Gura and create a persuasive precedent the other circuits cannot avoid (are you listening 9th Circuit?).
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Old June 1, 2012, 08:56 PM   #24
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Piszczatoski v. Maenz (New Jersey, 3rd Circuit).

Another 30 day extension granted for New Jersey to respond to the appeal.

[quote]05/21/2012 Open Document ECF FILER: Motion filed by Appellees Attorney General New Jersey, Rudolph A. Filko, Edward A. Jerejian, Thomas V. Manahan, Esq. and Superintendent New Jersey State Police for Extension of Time to file Brief until/for 30 days. Certificate of Service dated 05/21/2012. (DI)

05/21/2012 Open Document ORDER (Clerk) granting Motion for extension of time to file brief by Appellees Attorney General New Jersey, Superintendent New Jersey State Police, Rudolph A. Filko, Edward A. Jerejian and Thomas V. Manahan, Esq. until June 28, 2012, filed. (TMK)[/quot]
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Old June 1, 2012, 09:12 PM   #25
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Is New Jersey essentially saying "We acknowledge that we have no case but please help us string out the status quo for as long as possible"?

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