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#1 | |
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Join Date: June 29, 2000
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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.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:
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 634-35That is something that Mr. Halbrook did not do in Williams. |
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#2 |
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Join Date: June 29, 2000
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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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#3 |
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Join Date: January 4, 2006
Posts: 15
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Al, could you explain why this kills the case?
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#4 |
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Join Date: June 29, 2000
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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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#5 |
Senior Member
Join Date: May 17, 2000
Location: In a state of flux
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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? pax |
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#6 |
Member
Join Date: January 4, 2006
Posts: 15
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Doesn't the defendant have a right to appeal?
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#7 | |
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Join Date: October 24, 2008
Location: Orange, TX
Posts: 3,078
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Quote:
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#8 | |
Moderator Emeritus
Join Date: June 29, 2000
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Quote:
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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#9 |
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Join Date: June 29, 2000
Location: Rupert, Idaho
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The SAF has filed an amicus brief for Masciandara, written by who else... Alan Gura.
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#10 | |
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Quote:
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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Sometimes it’s nice not to destroy the world for a change. --Randall Munroe Last edited by Tom Servo; July 26, 2011 at 01:20 PM. |
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#11 |
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Join Date: June 29, 2000
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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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#12 | ||
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Join Date: September 25, 2008
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Quote:
Yeah, at least I thought so: Quote:
Last edited by Aguila Blanca; July 26, 2011 at 07:42 PM. |
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#13 | |||
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Quote:
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:
Quote:
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#14 |
Junior Member
Join Date: May 2, 2011
Posts: 4
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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 Marion |
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#15 |
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Join Date: June 29, 2000
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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.
Now look at the issues of the two cases up for cert.
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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#16 | |
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Join Date: March 25, 2011
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Quote:
http://www.washingtonpost.com/politi...hFJ_story.html |
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#17 | |
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Join Date: September 27, 2008
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Quote:
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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#18 | ||
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Join Date: August 17, 2007
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My Comments on the 'Post'
Here are two comments I posted:
Quote:
Quote:
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#19 | |
Moderator Emeritus
Join Date: June 29, 2000
Location: Rupert, Idaho
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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:
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#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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#21 |
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Join Date: July 26, 2005
Location: The Bluegrass
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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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#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:
Quote:
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 06:54 AM. Reason: clarified thoughts |
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#23 |
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Join Date: July 26, 2005
Location: The Bluegrass
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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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#24 |
Senior Member
Join Date: December 29, 2004
Posts: 3,351
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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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#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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