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Old June 30, 2011, 10:21 PM   #1
Al Norris
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Masciandaro v. United States

Since there isn't a specific thread on this case yet, I thought I had better create one.

As announced in the Current 2A Cases thread, Mr. Masciandaro has petitioned for a Writ of Certiorari (see here).

This case is very similar to the Williams case, but with notable differences. The thread on Williams is here.

Some History to explain what likely will happen:
At the time of McDonald, there were actually 3 2A cases looking for cert. McDonald v. Chicago; NRA v. Chicago, et al; Maloney v. Rice.

The Court Chose McDonald and held the other two in abeyance until after their decision. The other two were then GVR'd.
So now we have 2 cases that are mostly related. What will the Court do, especially as it is now in recess?

In the case of Masciandaro the US will file an answer. They have to, as this case does not depend upon any law that a particular State has in place for travel on or through Park Service land and to protect certain statutes brought up during trial and Circuit Appeal. Amici briefs will appear - although the amount of amicus briefs may now be split between the two cases. A reply by Mr. Masciandaro will be filed. The Court Clerks are not on recess and will keep all cases moving forward.

This will all be available (assuming the US does not request a 30 day extension, and even this is not a real bar, as it puts the reply on or around the first week of Sept.) to the Court when it comes back from recess.

Now the Court may decide to take one case over the other. If so, the other case will be held. The Court may also decide to deny the petitions outright, but I think this is not likely. Since the cases are so similar, they may decide to combine the two, but I also think this unlikely (but who really knows?).

My personal thought is that the Court will select Masciandaro, mostly because the petition goes into some detail over what the lower courts are doing (to Heller and the right in general) and this makes the entire question, ripe.

To see why this is the better case, all one has to do is to look at the TOC. Pay partyicular attention to Part II and Part III:

Quote:
Statement of the Case
A. Mr. Masciandaro Was Arrested for Having a Loaded Weapon in His Car While on NPS Land
B. The Magistrate Judge Upheld the NPS Loaded Weapons Ban and Convicted Mr. Masciandaro
C. The District Court Analyzed the NPS Loaded Weapons Ban Under Three Constitutional Tests and Upheld the Conviction
D. The Court of Appeals Avoided the Constitutional Question and Applied an Intermediate Scrutiny Hybrid Analysis to Uphold the Conviction
Reasons for Granting the Petition
I. This Case Is the Right Vehicle to Clarify the Scope of the Second Amendment
A. This Case Cleanly Presents the Question of Whether a Second Amendment Right to Self-Defense Exists Outside the Home
B. The Decision Below Was Incorrect Because It Failed to Recognize a Constitutional Right Outside the Home and Applied a Balancing Test to Uphold a Total Weapons Ban in a Car
C. This Case Is Analogous to Heller and Squarely Presents the Questions
II. Courts Will Not Recognize a Second Amendment Right to Self-Defense Outside One’s Home Until This Court Explicitly Tells Them That Right Exists
A. Lower Courts Are Concluding That the Second Amendment Right to Have a Firearm for Self-Defense Does Not Extend Outside the Home or Are Avoiding Taking a Position on the Question
B. This Court’s Guidance Is Needed Now, Before the Lower Courts Foreclose Any Constitutional Protection of the Self-Defense Right Outside the Home
III. Federal and State Appellate Courts Are Applying Invalid Tests to Uphold All Weapons Regulations That Impact Activities Outside the Home, Contrary to Heller’s Direction
A. Masciandaro and Other Federal Decisions Employ Balancing Tests Like the Test Proposed by the Heller Dissent
B. State Appellate Courts Have Applied a Rational Basis Test to Uphold Weapons Regulations
C. Some Courts Have Used the “Presumptively Lawful” Measures Identified in Heller to Avoid Any Meaningful Analysis of a Weapon Regulation Under Any Standard of Review
D. Other Courts Have Attempted to Apply a Historical Analysis to Determine Whether Certain Weapons Regulations Pass Constitutional Muster.
Matt Levy has specifically shown that the lower courts have treated each and every case as if it has been litigated as a criminal case. Thus tending to box in the right as something that is not desirable. That is something the Heller Court was very careful to tell the lower courts they could not do.
A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. Heller, 554 U.S. at 634-35
That is something that Mr. Halbrook did not do in Williams.
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Old July 9, 2011, 11:18 PM   #2
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As Maryland did in the Williams petition for cert, so has the Solicitor General in Masciandaro.

On July 5th, the US Govt. filed a waiver of right to respond.

This essentially kills the case, unless one of the Justices has some interest in the case and requests a response.
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Old July 10, 2011, 01:02 PM   #3
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Al, could you explain why this kills the case?
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Old July 10, 2011, 03:03 PM   #4
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Generally speaking, the Court won't take a case where the opposition doesn't think it worth replying to. Unless there is a Justice that is interested, the case is dead in the water. If one or more Justices are interested, they will "request" a response from the opposing party.

Even then, it still takes 4 Justices to have enough interest to grant cert. That is usually decided in conference. So while we are expecting a response from MD next Friday, Williams is far from being granted cert.

Masciandaro has yet to be scheduled for conference. A request for response could come at any time, up to and including the day of the conference. It's now a waiting game.
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Old July 10, 2011, 03:12 PM   #5
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Al,

Why didn't the opposition respond to this one? Were they hoping to kill the case and keep it out of the SC, do you think? Or was there some other reason?

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Old July 10, 2011, 05:40 PM   #6
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Doesn't the defendant have a right to appeal?
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Old July 10, 2011, 07:45 PM   #7
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Quote:
Doesn't the defendant have a right to appeal?
Certainly. And the various US Courts of Appeals must at least entertain these motions. However, SCOTUS has absolute discretion in which cases it chooses to hear - at a minimum, four Justices must agree to take the appeal (or sign an injunction, as the case might be). They are under no obligation to explain their actions.
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Old July 10, 2011, 11:59 PM   #8
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Quote:
Originally Posted by pax View Post
Why didn't the opposition respond to this one? Were they hoping to kill the case and keep it out of the SC, do you think?
The Court said in Heller that the core of the right was to carry arms, for self defense, in case of confrontation.

The Court also said that arguably that need is most acute in the home.

In each and every case that is being adjudicated, the government (State or Federal, makes no difference here) has argued that Heller said only the second paragraph, above. They ignore that first part entirely, or declare it to be merely dicta.

What is needed is for the Supreme Court to explicitly say that bearing arms is a constitutional right, that it doesn't stop at the doorstep, that public carry is as valid as carrying within the home.

"If the Supreme Court means that the right includes public carry, it must say so explicitly."

The MD Court of Appeals said just that in Williams. Judge Wilkinson of the 4th Circuit said the same thing in Masciandaro.

Both of these cases stand for judicial recognition of the right to carry for self defense in public places. Both of the plaintiffs are criminal cases. But remember, they are criminals only because of State and Federal laws that say they have no such right.

Right now, all the lower courts can say (and they have been saying) that Heller and McDonald only stood for the right to keep and bear arms within the home.

Should the Court take either of these two cases and decide to uphold Heller, then the right to carry in public places will be judicially recognized. This will change the legal landscape in ways that the opposition does not want to contemplate.

As long as you don't have a recognized fundamental right to carry, fees for possession and licensing (and other assorted hoops) can be whatever the legislatures decide. A core right to publicly carry will destroy much of this, as the governments will have to prove a compelling interest and show that such standards are the least restrictive means to achieve that interest.

Of course, States that provide for nearly unrestricted carry (in whatever form), will not be affected near as much as those States that are repressive to the right.

Sensitive places? Same thing.

So that's my long-winded way of saying, yeah. They want to keep it out of the Supreme Courts hands.
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Old July 25, 2011, 11:31 PM   #9
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The SAF has filed an amicus brief for Masciandara, written by who else... Alan Gura.
Attached Files
File Type: pdf Masciandaro-SAF-Cert-Amicus-2011-07-25.pdf (125.8 KB, 83 views)
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Old July 26, 2011, 12:11 PM   #10
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Quote:
The SAF has filed an amicus brief for Masciandara, written by who else... Alan Gura.
So, does this mean the case still has legs?

I hadn't paid much attention to it, but I'm getting the impression that the 4th Circuit upheld Masciandaro's conviction despite the fact that the Coburn amendment made it legal for him to have the gun in the circumstances under which he was convicted. That doesn't seem to help the government's argument.
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Last edited by Tom Servo; July 26, 2011 at 12:20 PM.
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Old July 26, 2011, 04:24 PM   #11
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By filing the amicus, Gura is trying to get interest for the case. As it stands, if no Justice requests a response from the U.S., then the case will probably die.
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Old July 26, 2011, 06:21 PM   #12
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Quote:
Originally Posted by Al Norris
What is needed is for the Supreme Court to explicitly say that bearing arms is a constitutional right, that it doesn't stop at the doorstep, that public carry is as valid as carrying within the home.
Didn't Mr. Justice Alito say just that in the McDonald decision?

Yeah, at least I thought so:

Quote:
Our decision in Heller points unmistakably to the answer. Self-defense is a basic right, recognized by many legal systems from ancient times to the present day, 15 and in Heller, we held that individual self-defense is “the central component ” of the Second Amendment right. 554 U. S., at ___ (slip op., at 26); see also id ., at ___ (slip op., at 56) (stating that the “inherent right of self-defense has been central to the Second Amendment right”).

...

Thus, we concluded, citizens must be permitted “to use [handguns] for the core lawful purpose of self-defense.” Id ., at ___ (slip op., at 58).

...

The right to keep and bear arms was considered no less fundamental by those who drafted and ratified the Bill of Rights. “During the 1788 ratification debates, the fear that the federal government would disarm the people in order to impose rule through a standing army or select militia was pervasive in Antifederalist rhetoric.” Heller , supra , at ___ (slip op., at 25) (citing Letters from the Federal Farmer III (Oct. 10, 1787), in 2 The Complete Anti-Federalist 234, 242 (H. Storing ed. 1981)); see also Federal Farmer: An Additional Number of Letters to the Republican, Letter XVIII (Jan. 25, 1788), in 17 Documentary History of the Ratification of the Constitution 360, 362–363 (J. Kaminski & G. Saladino eds. 1995); S. Halbrook, The Founders’ Second Amendment 171–278 (2008).
...

Thus, Antifederalists and Federalists alike agreed that the right to bear arms was fundamental to the newly formed system of government. See Levy 143–149; J. Malcolm, To Keep and Bear Arms: The Origins of an Anglo-American Right 155–164 (1994).
...

The most explicit evidence of Congress’ aim appears in §14 of the Freedmen’s Bureau Act of 1866, which provided that “the right … to have full and equal benefit of all laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal, including the constitutional right to bear arms , shall be secured to and enjoyed by all the citizens … without respect to race or color, or previous condition of slavery.” 14 Stat. 176–177 (emphasis added). 22 Section 14 thus explicitly guaranteed that “all the citizens,” black and white, would have “the constitutional right to bear arms.”
...

And as noted, the latter provision went on to explain that one of the “laws and proceedings concerning personal liberty, personal security, and the acquisition, enjoyment, and disposition of estate, real and personal” was “the constitutional right to bear arms.”
...

In sum, it is clear that the Framers and ratifiers of the Fourteenth Amendment counted the right to keep and bear arms among those fundamental rights necessary to our system of ordered liberty.
...

In Heller , we recognized that the codification of this right was prompted by fear that the Federal Government would disarm and thus disable the militias, but we rejected the suggestion that the right was valued only as a means of preserving the militias. 554 U. S., at ___ (slip op., at 26). On the contrary, we stressed that the right was also valued because the possession of firearms was thought to be essential for self-defense. As we put it, self-defense was “the central component of the right itself.” Ibid .
...

Last edited by Aguila Blanca; July 26, 2011 at 06:42 PM.
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Old July 26, 2011, 09:42 PM   #13
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Quote:
Originally Posted by Aguila Blanca
Didn't Mr. Justice Alito say just that in the McDonald decision?
As did Justice Scalia in Heller.

The Problem, as Mr. Gura points out, is that all but one of the lower courts are saying that this was all obiter dicta. They are sticking to the answer of the specific question raised by the plaintiff as regards D.C. gun laws. They are intentionally avoiding the reasoning used by the majority of the Court in order to find for the plaintiff. Consider what Mr. Gura said on pg. 7 of the amicus brief:

Quote:
When an opinion issues for the Court, it is not only the result but also those portions of the opinion necessary to that result by which we are bound . . . the principle of stare decisis directs us to adhere not only to the holdings of our prior cases, but also to their explications of the governing rules of law. . . .

Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 67 (1996)
I think another case quote would have been more to the point, however, and I wish he had used it:

Quote:
But Supreme Court dicta binds us "almost as firmly as . . . the Court's outright holdings." Surefoot LC v. Sure Foot Corp., 531 F.3d 1236, 1243 (10th Cir. 2008) (quoting Gaylor v. United States, 74 F.3d 214, 217 (10th Cir. 1996)). This is particularly so where, as here, the dictum is recent and not enfeebled by later statements. See id.; see also Carlton F.W. Larson, Four Exceptions in Search of a Theory: District of Columbia v. Heller and Judicial Ipse Dixit, 60 Hastings L.J. 1371, 1372 (2009) ("Although [Heller's] exceptions are arguably dicta, they are dicta of the strongest sort.").

Judge Tymkovich, US v. McCane 10th Circuit, 2009.
Regardless, the point was made.
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Old August 9, 2011, 08:46 PM   #14
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Responce requested

And as if on queue...

Aug 9 2011 Response Requested . (Due September 8, 2011)

Just doing a little night reading and found this. Regards

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Old August 11, 2011, 01:08 PM   #15
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I've been off the "net" for the last 3 days (technical issues, mine and my ISP).

I'm glad that someone was watching for this! Now for the prize: What exactly does this mean?

First and foremost, one of the Justices has taken Alan Gura's bait (the SAF amicus brief), and has enough interest to "ask" the SG for a response to Masciandaro's cert question.

This changes things in a big way. Let's look at the issues.
  • Heller/McDonald said that the right to keep and bear arms was 'fundamental'
  • We (our side) have been arguing since last summer that the right to bear arms in public was already decided by the Supreme Court, and that the language of Heller makes this clear

Now look at the issues of the two cases up for cert.
  • Both cases demand the SCOTUS settle the "public carry" question.
  • Williams: Does the lawful bearing of arms require a permit the state will never grant?
  • Masciandaro: is it constitutional to prohibit law-abiding citizens’ possession and carrying of loaded weapons in motor vehicles while on National Park Service land (or really any place that the government says 'no' without real justification)?

Outside of the first issue, the two cases diverge and have issues that need to be answered, independently of each other.

Because of this new development in Masciandaro, I think we now have a better than 70% chance of one of these (if not both - longshot, but there it is) cases being granted cert.

The timeline is that currently, the Feds have until Sept. 8th to reply. They will ask for a 30 day extension and it will be granted. So that leaves us with Oct. 8th for the reply (opposition) to cert. Williams will not be held at the Sept. 26th "Super Conference." I believe it will be rescheduled to coincide with whatever dates is given to Masciandaro.

Currently, we have much the same pattern that we saw 3 years ago, with Heller.

ETA: Shameless lifting of the "talking points" above, from Patrick.
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Old August 15, 2011, 11:51 AM   #16
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Quote:
Currently, we have much the same pattern that we saw 3 years ago
Yes, indeed. The Brady Bunch prematurely claiming victory.
http://www.washingtonpost.com/politi...hFJ_story.html
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Old August 15, 2011, 12:52 PM   #17
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Quote:
Yes, indeed. The Brady Bunch prematurely claiming victory.
That's a deliberate distortion on their part. The report touts losses in the circuit courts without showing wins, and they fail to mention that many of those losses are quite strategic.

One of the best ways to get an issue before the Supreme Court is to win in one circuit and lose in another, thus causing a split that the Court has to resolve. That's what we're doing in many of these cases.
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Old August 15, 2011, 01:28 PM   #18
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My Comments on the 'Post'

Here are two comments I posted:
Quote:
Crowing before the sun rises, are we? 40 years of unconstitutional infringements are being methodically untangled by the best legal minds in the country, with teams of well-funded, brilliant strategic rights litigators. . . and guess what folks? It's not even the NRA that's at the tip of the spear. Cato Institute, Second Amendment Foundation, Calguns Foundation and others WILL get back the gun rights of law-abiding citizens.
Quote:
In 2 or 3 years, the Supreme Court will have plainly spoken that the second amendment right of law-abiding individual citizens to carry a firearm outside of the home and in any public place that's not sensitive such as a courthouse or the secure area of an airport.

Long standing provisions on possession of firearms by felons, the mentally ill, etc, will remain in full force, but the right of law abiding to possess a functional firearm for immediate use for self defense will be restored.

Very soon, states will be able to regulate how, but NOT whether a non-prohibited person may carry a loaded gun. States may choose concealed carry, open carry, or both.

It's coming folks. Believe it.
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Old October 11, 2011, 04:32 PM   #19
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There was a change in the cert process today. We expected a response, but the government has requested and been granted a 1 week extension to file.

Quote:
No. 10-11212
Title:
Sean Masciandaro, Petitioner
v.
United States
Docketed: June 24, 2011
Lower Ct: United States Court of Appeals for the Fourth Circuit
Case Nos.: (09-4839)
Decision Date: March 24, 2011

~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
Jun 22 2011 Petition for a writ of certiorari and motion for leave to proceed in forma pauperis filed. (Response due July 25, 2011)
Jul 5 2011 Waiver of right of respondent United States to respond filed.
Jul 14 2011 DISTRIBUTED for Conference of September 26, 2011.
Jul 25 2011 Brief amicus curiae of Second Amendment Foundation, Inc. filed. (Distributed)
Aug 9 2011 Response Requested . (Due September 8, 2011)
Aug 24 2011 Order extending time to file response to petition to and including October 11, 2011.
Oct 11 2011 Order further extending time to file response to petition to and including October 18, 2011.
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Old October 18, 2011, 09:47 PM   #20
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Matt Levy, the attorney representing Mr. Masciandaro announced that the SG's brief was submitted today to the Supreme Court.

The link above takes you to a page on his website where you can download the PDF file.

It is interesting that the SG spends half of his response in merely regurgitating the history of the "crime," and the other half in merely regurgitating what the 4th Circuit said.

There is absolutely nothing new in this brief. They must be fairly certain that cert will be denied, to have not defended their actions more than what has already transpired.
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Old October 19, 2011, 09:28 PM   #21
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It looks like the SG is soft pedaling the issue. No conflicts between circuits; the lower courts recognized the 2A applied; nothing to really get heated up about. Not bad strategy.
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Old October 20, 2011, 04:42 AM   #22
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Something about the SG's response has been bugging me. Follow my thought and tell me if I'm wrong, please.

First, let's take a look at the way the SG has phrased the question being asked:
Quote:
Whether 36 C.F.R. 2.4(b), which prohibits “[c]arrying or possessing a loaded weapon in a motor vehicle, vessel or other mode of transportation” on National Park Service land, violates the Second Amendment as applied in this case.
Now look at what the actual cert petition asks:
Quote:
  1. Does the Second Amendment to the United States Constitution protect a right to possess and carry a firearm for self-defense outside the home?
  2. If there is a Second Amendment right to possess and carry a firearm for self-defense outside the home, is it constitutional to prohibit law-abiding citizens’ possession and carrying of loaded weapons in motor vehicles while on National Park Service land?
Those are 2 distinct and different questions.

The SG has (almost) completely avoided the possession outside the home question, which is central to the cert petition itself. By moving the focus to the regulation that was violated, a regulation no longer at issue, the SG hopes to avoid the Court taking up the "outside the home" issue.

In that respect, the issue then becomes much simpler. It was a lawful regulation at the time of conviction. [pay no attention to the man behind the curtain, waving that fundamental rights flag] Preserving the lower courts interpretation of US v. Hark (1944) and its decision.

I don't believe Hark can stand as valid precedent, when it conflicts with a fundamental right that existed before the court identified it (See McDonald, 561 U.S. at ___ (slip op., Thomas, J. Concurrence at 15, quoting Heller, 554 U. S., at ___ (slip op., at 19) (“[I]t has always been widely understood that the Second Amendment, like the First and Fourth Amendments, codified a pre-existing right”))). [emphasis in the original]

If Hark fails, so does the conviction.

Which then should open up the question of whether the core right to self defense, exists outside the home. We believe that the right of self defense is inherent in all places, at all times, wherever and whenever such protection is not directly afforded by the government.

In those places and times where the government can not or will not protect the people, then the government can not have any rational reason to strip the individual of this seminal right.

This is not an absolutist view of the right. It merely builds upon the foundation laid by Heller.

Last edited by Al Norris; October 20, 2011 at 05:54 AM. Reason: clarified thoughts
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Old October 20, 2011, 07:43 PM   #23
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That quote from the SG's brief tells me they are conceding the 2A applies outside the home since that question has to be answered in the affirmative before addressing the constitutionality of the regulation viz a viz the 2A.
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Old October 21, 2011, 10:42 AM   #24
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By not responding and having the case die they avoid a ruling they do not like, with its applicability to other cases.

It drags things out, and costs money to find another complainant and file another case.

Remember, the status quo continues until a case succeeds.

When you cannot win, delay.
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Old October 28, 2011, 01:47 PM   #25
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Matt Levy of Cloudigy Law, has announced the filing of their Response to the Opposition for cert.

I've only skimmed it, but it appears to contain more relevant info in less pages than the SC brief in opposition.
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