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Old March 15, 2019, 04:55 PM   #1
johnm1
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Kolbe v. Hogan 4h Circuit Now Used as Precedence

As a layman I seldom post in Law and Civil Rights. But I figure if I follow the rules this could be a usable thread. As we have heard countless times on this forum I am reading through the entire decision regarding the recent ruling on the Remington suit being allowed to proceed. I'm not done with the reading related to that thread and this really is a different 'offshoot' of the current thread regarding the Remington (Bushmaster) suit.

In the decision DONNA L. SOTO, ADMINISTRATRIX (ESTATE OF VICTORIA L. SOTO), ET AL. v. BUSHMASTER FIREARMS INTERNATIONAL, LLC, ET AL. the justices reference many cases and precedence to support their position. On page 47 there is a series of paragraphs indicating why CUPTA does apply and why the PLCAA doesn't apply (actually several pages) in this case. In one of the paragraphs the justices thought it was pertinent to reference both Heller and Kolbe v. Hogan with the actual quote coming from the 4th Districts decision misquoting Justice Scalia (and this is a direct quote form the Connecticut Supreme Court decision)

There is no doubt that congressional supporters of PLCAA were committed to Americans’ second amend-ment freedoms and sought to secure those freedoms by immunizing firearms companies from frivolous law-suits. It is not at all clear, however, that the second amendment’s protections even extend to the types of quasi-military, semiautomatic assault rifles at issue in the present case. See District of Columbia v. Heller, 554 U.S. 570, 627, 128 S. Ct. 2783, 171 L. Ed. 2d 637 (2008) (indicating that second amendment’s protection does not extend to ‘‘ ‘dangerous and unusual weapons’ ’’and, therefore, that M16s and related military style rifles may be banned); Kolbe v. Hogan, 849 F.3d 114, 143 (4th Cir.) (reading Heller to mean that second amendment does not protect right to possess assault weapons fea-turing high capacity magazines, such as AR-15)

Now we all know that the 4th Circuit took Justice Scalia's comment out of context as it reads as follows:

It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service,...…..

My concern is that what I believe is an error in the 4th circuit's decision is now being used as a precedent in another case. (I realize that 'what I believe is an error' is irrelevant and that what the justices have written is, bear with me please) But if this isn't challenged and cases are resolved using what I believe is a flawed decision, are we relinquishing the flawed decision to become established law? We now have a federal circuit and a state supreme court both stating that Assault Rifles are not protected by the second amendment. In actuality the Connecticut Supreme Court only questioned if Assault Weapons were protected by the second amendment. It begs the question why the Connecticut Supreme Court included the reference as no other place in their decision is the concept of assault weapons not being protected by the second amendment an issue. it almost appears that it was included intentionally for the sole purpose of providing a second case beyond the 4th circuit's case that finds that assault weapons are not protected by the second amendment. This point is really secondary to my below questions. So don't get hung up too much on why they included it.

Are we stuck waiting on one of the pro second amendment groups filing suit against the 4th decision and hoping the Supreme Court of the United States agrees to hear it?

Can any group file suit against the 4th circuit based on what they believe is an incorrect reading of what the supreme court wrote?

In 10 years will the 4th's decision be 'established law'.

As an individual I don't think it is possible for me as a person to sue either court as I don't live in the 4th district. Not that I have the resources to file a suit. I guess I just want to know what has to happen next so what the 4th circuit wrote doesn't become precedent. Or more specifically doesn't continue to used as a precedence. Wrong decisions have been overturned in the past like decisions on slavery. But they took generations and a civil war. Are we there?

I hope I have done this correctly and followed the rules of this forum. I suppose this could go in the activism or general discussion forum.
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Old March 15, 2019, 05:55 PM   #2
Tom Servo
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There are a bunch of issues at play here. The main one is the way in which the lower courts have flaunted Heller. They've used a version of "intermediate" scrutiny indistinguishable from rational basis to uphold all sorts of anti-gun measures, and given the lack of response from SCOTUS, they've assumed they can get away with it.

So, we're left with a few lower court decisions upholding restrictions on the exact guns Scalia said were protected with only the most facile "public safety" arguments, and they're getting away with it.

Now, are any of those binding precedents? Meh...probably not for long. Eventually, we'll have a clear split between courts and SCOTUS will need to weigh in on the issue. Thus far, the issue appears to be on the back burner, with the next case they're hearing focusing on permitting and (possibly) whether the RKBA extends outside the home.
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Old March 15, 2019, 07:39 PM   #3
Aguila Blanca
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Quote:
Originally Posted by Johnm1
We now have a federal circuit and a state supreme court both stating that Assault Rifles are not protected by the second amendment. In actuality the Connecticut Supreme Court only questioned if Assault Weapons were protected by the second amendment. It begs the question why the Connecticut Supreme Court included the reference as no other place in their decision is the concept of assault weapons not being protected by the second amendment an issue. it almost appears that it was included intentionally for the sole purpose of providing a second case beyond the 4th circuit's case that finds that assault weapons are not protected by the second amendment.
To further muddy the waters, the AR-15 rifle used by the Sandy Hook shooter was NOT an "assault weapon." The federal ban had expired. Connecticut's 1994 AWB was still in effect, but that law mirrored the federal AWB in terms of what constituted an "assault weapon." The AR-15 that the mother purchased -- legally, in Connecticut -- was a "post ban" configured AR-15 that was not, at the time of the incident, an "assault weapon" under federal law, under Connecticut law, or under the laws of any other state except California.

In the aftermath of Sandy Hook, Connecticut revised its AWB definition and the Sandy Hook rifle would be an assault weapon in Connecticut today. But, because the law is a ban, the mother would not be permitted to buy it today. There is no mechanism to purchase an "assault weapon" in Connecticut. Rifles meeting the revised definition that were legally owned at the time the revised law became effective were grandfathered IF they were registered with the state police before the effective date of the legislation.
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Old March 15, 2019, 08:19 PM   #4
zukiphile
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Quote:
Originally Posted by johnm1
Can any group file suit against the 4th circuit based on what they believe is an incorrect reading of what the supreme court wrote?
No. Judges aren't liable for poorly reasoned and written decisions. Even if you were one of the parties in the suit, you wouldn't be entitled to sue the Court of Appeals.

The error you note could persist in that circuit until it is remedied by a Sup Ct decision, the error could be rectified in a subsequent decision in that circuit, or you might just never see it cited again because the error is so obvious that subsequent panels in that circuit don't rely on it.
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Old March 15, 2019, 10:38 PM   #5
thallub
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This was discussed on The High Road.

Quote:
The Connecticut Supreme Court concluded that the PLCAA didn't preclude a suit under the Connecticut consumer protection law at issue here. Whether a federal court will agree is an open question.
https://www.thehighroad.org/index.ph...#post-11079875
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Old March 16, 2019, 05:59 AM   #6
zukiphile
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Quote:
Originally Posted by thallub
This was discussed on The High Road.


Quote:
The Connecticut Supreme Court concluded that the PLCAA didn't preclude a suit under the Connecticut consumer protection law at issue here. Whether a federal court will agree is an open question.
https://www.thehighroad.org/index.ph...#post-11079875
Thallub, the OP's question as I read it isn't about the CT case specifically, but about how a misreading of Heller would be addressed.
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Old March 17, 2019, 02:14 PM   #7
johnm1
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Thanks for the responses. I don't really have a response to them other than I'm disappointed that there are no consequences for misreading a previous ruling.

Though I do believe the process was intentionally created hard I also believe the origins of the process assumed intellectual honesty.
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