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Old February 12, 2013, 10:19 PM   #51
NJgunowner
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Yep, that's a pretty good listen. Gura is good, and I think the state floundered pretty bad. Their only argument was that they feel it's not safe

I'm not sure who the younger sounding judge is, but he really flustered the assistant DA. He nailed her on not allowing open carry, that Vermont has the least restrictive regulations and there aren't "blood in the streets" from gun owners. Even the older judge got into the act.

They even tried the "long standing law/tradition". She even brought up that even ENGLAND in colonial times banned concealed carry. The freaking people we waged WAR on because of their attempts to disarm us.

They really chewed up the DA, if we lose this one I'd be SHOCKED.

I feel that even the judges know this one is badly written. Just because it's been around awhile doesn't make it right.
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Old February 13, 2013, 12:27 AM   #52
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I think the first thing that should be noted is that Alan Gura was treated very deferentially. He was not interrupted very often and when he was, he was allowed to complete his thoughts. The same cannot be said of the States Attorney.

The older gentleman was Judge Aldisert (appointed by Pres. Johnson, in 1968. He is 94). If you paid attention, he was definitely in mind of handing the State the Kachalsky decision, lock stock and barrel.

The judge you heard the most from was, Judge Hardiman. He was prepared. He literally tore into the States Attorney. While she avoided the obvious traps, she floundered all the way through her argument. Note that she denies that the intention of the law was to limit guns on the street. Even after Hardiman stated, "it is inescapable."

You had to listen closely to hear Judge Stark. See the file at about 56 minutes, when he tries to corner the lady into admitting the State only recognizes, "in the home."

I think we can count on judge Aldisert to find for the State. Although judge Stark handed the NRA a defeat on 07-27-2012 (Doe v. Wilmington Housing Authority - #53 on the list), I can't really tell where he is at on this issue.

We can hope that Hardiman and Stark decide for us. Such a 2-1 decision would mean a definite circuit split and pretty much guarantee cert in Kachalsky. A defeat here would more than likely mean that the SCOTUS would deny cert.

So, while we are waiting on cert stage completion for Kalchalsky, we can now hope that either CA3 or CA4 (or both) decide in our favor, pushing the probability of a grant of cert in Kachalsky closer to 1.
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Old February 13, 2013, 09:19 AM   #53
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Here's to hoping. I'm already getting my condo prepped for sale, because frankly spending an extra 15 or 20 minutes commuting in from PA would be worth it. If we could get some of these laws removed, and somehow fix New Jersey's permit system this wouldn't be such a bad place to live.

Frankly I can't see how any reasonable judge who understands and follows the constitution and recent supreme court rulings could find for the state in this case. The ONE thing I can see hurting us on this is that most people in NJ know that you aren't getting a concealed carry license, therefore they never bother applying. It would be much more compelling if 20,000 people applied and only 100 where issued in the last couple of years. However, I doubt that many have bothered trying in the last 10 years or more because it's a waste of time.
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Old February 13, 2013, 02:19 PM   #54
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Their only argument was that they feel it's not safe
Specifically, at the 51-minute mark in which the state's attorney states that "the 2nd amendment could result in people seriously being harmed."

Aldisert said that "the concept of 'justifiable need' is without standard" and seemed most concerned with her lack of preparation, and he gave her ten days to file a supplemental brief answering open questions. I got the impression the court was trying to be gracious in the face of what they saw as vast incompetence.
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Old February 13, 2013, 02:31 PM   #55
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I hate being so insensitive, but it sounds like a victory to me if this keeps up.
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Old February 13, 2013, 02:42 PM   #56
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I got the impression the court was trying to be gracious in the face of what they saw as vast incompetence.
This is part of the problem in NJ. The arrogant assumption that we have no rights except those which the state deigns to give us. They really can't seem to comprehend that they don't have carte blanche to do whatever they want, so they don't even bother preparing to defend these laws because they don't think they can be overturned. From the looks of things, they are set to move 24 new gun restriction bills out committee today to be voted on. These are thing like "In home inspections" before you can own a gun. All guns must be locked and unloaded even in the home, etc.
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Old February 13, 2013, 02:48 PM   #57
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Aldisert said that "the concept of 'justifiable need' is without standard" and seemed most concerned with her lack of preparation, and he gave her ten days to file a supplemental brief answering open questions. I got the impression the court was trying to be gracious in the face of what they saw as vast incompetence.
I took it as Aldisert trying to salvage her case for her. It was pretty clear from the outset that he'd planned to just parrot the Kachalsky decision but Gura's response to his question about Kachalsky made that harder to do without at least some creative straw grasping. I suspect that reason that Aldisert was to give her 10 days to find him some better straws. I'll be shocked if he doesn't find for the state but the other two just might possibly perhaps conceivably maybe rule in our favor.
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Old February 13, 2013, 03:22 PM   #58
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This is part of the problem in NJ. The arrogant assumption that we have no rights except those which the state deigns to give us.
Go back and listen starting at the 50-minute mark. The judges seem to disagree. The court hammered the state's attorney pretty hard, and the judges' questions showed they'd done some research beforehand.

The attorney seemed unprepared to answer several key questions the judges seem concerned with, but giving her a chance to file a supplemental brief seems more a courtesy than an expectation of results.
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Old February 13, 2013, 03:46 PM   #59
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Go back and listen starting at the 50-minute mark. The judges seem to disagree.
It's what gives me hope. I was referring to the state and DA assumptions, not the judges (in case there was a misunderstanding who I was referring too).
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Old February 13, 2013, 04:32 PM   #60
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I was referring to the state and DA assumptions, not the judges
My fault; I thought you were referring to the judges.

The attorney's dissembling was fairly epic.
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Old February 13, 2013, 05:35 PM   #61
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FWIW: Here are some of my posts over on Mdshooters on this argument:
____________

THIS exchange starting at minute 56 is most interesting. First Stark pins her down on outside the home. She quivers, dodges but ultimately holds firm. Then he closely questions on whether she concedes the purpose is a "desire to limit the overall number of handguns in public." She denies it (fortunately for her), but then falls back on "public safety." She dodged the questions, but she is nailed by Hardiman with his "inescapable" point. Stark, then points out her "public safety" rationale is just another way of saying fewer guns. Then NJ counsel offered to do a supp. brief. on the rationale or purpose of the bill, viz., more accidents and more misuse. She is not going to finding any legislative finding that persons who can satisfy the standard are less likely to have accidents or misuse the firearm. She is in a corner. The questions are very, very good. At which time Aldisert chimes in on the point whether "justifiable need is without standard." That's a softball from Aldisert -- he is looking for help here, as he is making an argument to his colleagues on the bench, to limit the argument to a vaguenss point so he can rule that it isn't vague, QED. Stark and Hardiman show no sign of buying that limited construction of the claim. This will be an interesting opinion. The panel understands the points, especially Hardiman and Stark. Whether they are willing to go where logic leads is hard to say. The Kachalsky panel understood it too, but ultimately bailed with that very damaging opinion. That Kachalsky's rationale was rejected in Moore is a big help, as it gives this panel something to chew on.

_____________

I heard Aldisert say that Gura is running through open doors on outside the home. Minute 6:03. That suggested to me that he thought that the 2A applies outside the home under existing 3d Circuit precedent. I think Hardiman was alluding to the same point, saying that the 2A applies and thus the court gets to step two (intermediate scrutiny). Gura didn't hear that in the question, but I did. But no one on the bench really disputed Gura's point that the standard, however, strict or clear, acted in such a way to require citizens to get the state's permission first and that it was so strict as to effectively deny many citizens, including these very clients, of access to the right. I heard NO support for the idea that the right is limited to the home -- that dct ruling is dead in the water according to Hardiman. He sees the only issue is whether there is a "sufficient fit" between the restriction and the state interest proffered. The state's proffered interest is public safety. The panel, at least Stark and Hardiman were very skeptical of the State's argument that the purpose was not simply to restrict the exercise of the right. Both referred to the *state's* burden, not Gura's burden, to show the tie between the restriction and the state's interest. We are seeing the influence of Posner's opinion here in Moore. Hardiman makes that point in discussing Kachalsky. Gura could still win even if the court finds that the standard is not vague.

______________

I think Gura needs to modify the "unbridled discretion" point. As the panel points out, the discretion in NJ is not so much as unbridled (there is a standard of sorts), but that it is so strict and and unconstrained as to effectively limit access to the right. It would be great to have numbers on denials, but that backfires, as the deterrence effect of the standard prevents many from applying at all. The bigger point is the one pushed by Gura, viz., that an individual's right should not be subject to some official's determination of "need" to exercise the right. However strict or lenient the standard is, that point is ultimately the winning argument, as it was in Woollard, IF the panel is willing to go there with that result. Stark led her down that garden path and then crushed her with the park and speech example. Her response is that guns are different. But Stark responded with a reference to the minority of states point and Gura crushed her with Heller's and McDonald's point that the 2A is to be treated no differently than other constitutional rights. Aldisert is clearly uncomfortable with the result -- to him the state may require "an objective need for self defense" under the 2A. Not at all clear how Hardiman and Stark feel (in their gut) about the result. It may turn on their gut rather than their minds. These two guys have the intellect to see the holes in the State's argument. Very impressively so. Whether they possess sufficient judicial courage to strike this NJ statute down is a different question. Kachalsky panel saw the holes too, but they refused to go where the logic leads. That panel proves that if judges don't want to go there, they will try to find a way not to go there, even if that does violence to the law or logic. Posner has the courage, many judges do not.
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Old February 13, 2013, 06:28 PM   #62
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I heard Aldisert say that Gura is running through open doors on outside the home. Minute 6:03. That suggested to me that he thought that the 2A applies outside the home under existing 3d Circuit precedent. I think Hardiman was alluding to the same point, saying that the 2A applies and thus the court gets to step two (intermediate scrutiny). Gura didn't hear that in the question, but I did.
I have only listened to part of the argument. I did hear the same statement with the same implication you did. Aldisert's statement came as Gura was reiterating the fact the 2A applied outside the home. I took the statement as meaning to move along to the application of the standard. As others have noted, it looks like the panel is going to apply an intermediate standard; or, perhaps they'll punt and rule that the law doesn't meet either strict scrutiny or an intermediate standard and the court doesn't have to get bogged down on what standard applies.
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Old February 13, 2013, 07:46 PM   #63
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I would be very happy with the last option!! Aldisert isn't going there, but the others might. I gotta say that I am more optimistic about this case than I was before the argument.
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Old February 13, 2013, 09:34 PM   #64
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Counselors, if the State gets the opportunity to submit a supplemental brief, does Gura get another wack with any rebuttal?
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Old February 13, 2013, 09:57 PM   #65
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I'm not an attorney, but if I understand correctly, if one party gets to officially supplement the record, the other party gets a shot at rebuttal.

Aldisert (I believe it was) gave the State 10 days to file. Gura will have the same time frame (in other words, they will both file on the same day). Generally, the party making the supplemental record will share that record with opposing counsel a day or two before they file. Should the party asked to supplement the record file early, then opposing counsel will just have to pay attention (ECF will notify the opposing party via email) and get the rebuttal brief in on time. This kind of courtesy is a given.

We've seen this in a couple of other cases, albeit at district level.
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Old February 13, 2013, 10:03 PM   #66
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That's correct. If one side supplements the record, the other side will usually get a chance to assess and respond.
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Old February 14, 2013, 12:25 AM   #67
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The panel understands the points, especially Hardiman and Stark.

I'm just curious here. Is Aldisert not keeping up with the times, or is he sharp as any of the others, and trying to guide a decision to something in line with his personal politics? Having spent the past couple months chatting with folks about this issue lately, I've met a LOT of incredibly stupid people on our side. And I've meet some pretty sharp cookies that I enjoyed discussion with more because they were smart. And more polite than some of our frothing morons arguing with their frothing morons.
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Old February 14, 2013, 10:11 AM   #68
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Aldisert is not stupid. He just doesn't like the result, so he is seeking the help of NJ counsel in support of a the result he favors, viz., the only issue is whether the test is objective enough to create a standard: "an objective need for self defense." We heard it repeatedly during the argument. Aldisert will thus opine that the 2A does extend outside the home, but nonetheless the 2A permits the state to require the citizen to show an objective need for self defense outside the home in order to carry outside the home. That is essentially the holding of Kachalsky for which Aldisert expressed so much admiration. I pray for a cert grant in Kachalsky.

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Old February 14, 2013, 11:13 AM   #69
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So the comparative slight was based on personal bias based on where his decision will go. Don't get me wrong, I love the work you're doing- just wanted to point that out if that's what it was. Objectively, the biggest hurdles to winning an argument are the stupid man that agrees with me and the genius who doesn't.
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Old February 14, 2013, 11:43 AM   #70
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I don't think Aldisert is stupid by any means. Of course, that doesn't mean that he's a genius either. He enjoys enormous respect due to his seniority, but I did not see any hint that either Stark or Hardiman will defer to him. Hardiman agreed with Aldisert that the NJ standard was a "standard" that did not embody unlimited discretion. His point to Gura was that Gura should be arguing that the standard was too strict to permit a meaningful exercise of the right that he was more than willing to assume existed outside the home. Hardiman and Stark both were skeptical that the state had carried its burden of showing that the standard promoted the state's public safety concern over accidents and misuse other than by limiting the number of handguns on the street, viz., limiting the exercise of the right. I can see a remand, ala Heller II, for a hearing on whether the state can carry its burden. If they are bold, they could do just as Posner did, and refuse such a remand.
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Old February 26, 2013, 06:36 PM   #71
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For those that want to read it, here's the written transcript, courtesy of esqappellate:
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File Type: pdf Piszczatoski Transcript.pdf (233.8 KB, 18 views)
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Old February 26, 2013, 09:08 PM   #72
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Aldisert is clearly uncomfortable with the result -- to him the state may require "an objective need for self defense" under the 2A.
As a technical writer, editor, and native speaker of English -- but not an attorney -- it strikes me that there is and cannot be any "objective" need for self-defense. I once received a vaguely threatening letter. Neither the local police nor the FBI ever determined who sent it, and there was only one. I very much felt threatened and believed that I had a need to be able to defend myself. The local police, on the other hand, treated it as more of a joke, and used it to teach a rookie detective how to screw up the evidence while dusting it for fingerprints.

Heller said we have a "core right" to self-defense. Given that I have that right, it should not matter whether or not some local bureaucrat agrees that my perception of feeling threatened is sufficient to "allow" me to exercise that right.
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Old February 27, 2013, 12:15 AM   #73
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Real Courtroom Drama In the Privacy of My Headphones...

very interesting arguments. it seemed from start that the panel conceded the right to carry extended in some form outside the home. The posited that concession as an assumption on which to predicate further questions, but i can't think of another reason for the line of questions otherwise. Gura was articulate, passionate and restrained at the same time, and very well versed on his subject. I thought the DAG was going to cry a few times. Probably not her best day in court.

I am thinking this may actually come out in favor of appellants, but expect either way it goes it will be 2-1.
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Old February 28, 2013, 07:51 AM   #74
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Excellent reading, Gura was right on track.

The attorney for NJ on the other hand... well... "unprepared" is the operative word.


Thanks to all for posting the PDF.


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Old February 28, 2013, 08:38 AM   #75
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Right on cue, the State also filed their supplement.

You will notice that their stats show a +90% approval rate? That percentage "looks" good, until you stop and think... A State with about a 9 million population and only 700+ applications a year????

Those familiar with NJ gun laws, will know that those are almost certainly, armored car drivers/guards.
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