|
Forum Rules | Firearms Safety | Firearms Photos | Links | Library | Lost Password | Email Changes |
Register | FAQ | Calendar | Today's Posts | Search |
|
Thread Tools | Search this Thread |
March 30, 2012, 02:54 PM | #76 |
Senior Member
Join Date: July 10, 2008
Location: Live Free or Die state
Posts: 259
|
Another Dumb Question
Just yesterday i read Gura's appellate brief in Hightower, and found it compelling reading. It seems clear that in that case, as in Woolard, his argument is based on the USSC declaring the 2nd Amendment a fundamental right, elevating it to the same scrutiny and judicial tests that are embodied in the vast body of decisions on 1st Amendment questions. However, decisions related to free speech don't carry nearly the political or emotional weight as 2nd Amendment questions always seem to. People in general don't seem to fear free speech in the way so many seem to carry an irrational fear of firearms (in the hands of law-abiding citizens, no less).
Judges, like everyone else, have emotions and bias but their positions require them to set those aside in weighing evidence, argument and precedent (like that ever happens). Their positions also enable them to enforce their leanings on the masses, if so inclined. We've all seen decisions that used circular logic, or employ entirely new interpretations or applications of prior case law, to reach a desired and probably predetermined outcome. I think they call that legislating from the bench. So here's the dumb question: anyone care to opine on how far from his prior leanings Judge Legg really reached here? I am trying to gauge whether Legg was brought around to this decision by a compelling legal argument, or whether he was already receptive to this position and this case provided a perfect medium for his viewpoint. By way of comparison, i'm thinking of the Hightower case and others that will use this same argument - was a fairly liberal judge persuaded by an airtight argument and is that likely to happen elsewhere, or did this case land in the lap of a judge already likely to rule in this way? Some of the early posts indicated an expectation of unfavorable rulings. So i'm just asking for opinion here.
__________________
"To my mind it is wholly irresponsible to go into the world incapable of preventing violence, injury, crime, and death. How feeble is the mindset to accept defenselessness... How pathetic." - - Ted Nugent "Cogito, Ergo Armitum Sum" - (I Think, Therefore I Am Armed)- - anon. |
March 30, 2012, 07:30 PM | #77 |
Moderator Emeritus
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,660
|
Judge Legg is a very fair Judge, in that he does not rule by his own political leanings. He rules on what is before him.
In this case, the Judge did his homework. You can see this in doc #42 (dated July 19, 2011), where he lays out the questions he wants the parties to answer in the upcoming Summary Judgment Hearing. That hearing was held on July 21st. The transcript of the hearing was posted (presumably by Alan Gura) on August 25th (doc #44). While the transcript is about 77 pages, you should read it to get an idea of what this judge is about. Unlike the other District Judges, Judge Legg actually did what Heller demanded: He did the required historical research on what the amendment meant at the time it was ratified, and placed the context of "bear" within the context of "self defense." He didn't just use the specific remedy of Heller to justify a lame and inexcusable result, as so many of the other courts have done. Using the guidance of the 4th Circuit in both Chester and Masciandaro, Judge Legg used a true Intermediate Scrutiny and found that the right to carry beyond the home was only a step away from where self defense is most acute, the home. Whatever his leaning, there was only one outcome after that. What is happening now, is that the Judge is dotting his "I's" and crossing his "T's" in order to have his ruling survive anything the 4th can throw at it. Procedural correctness, if you will. The docket and the referenced docs, is here: http://www.archive.org/download/gov....72.docket.html |
March 31, 2012, 12:30 PM | #78 | |
Senior Member
Join Date: July 26, 2005
Location: The Bluegrass
Posts: 9,142
|
Quote:
|
|
March 31, 2012, 12:42 PM | #79 | |
Staff
Join Date: November 23, 2005
Location: California - San Francisco
Posts: 9,475
|
Quote:
__________________
"It is long been a principle of ours that one is no more armed because he has possession of a firearm than he is a musician because he owns a piano. There is no point in having a gun if you are not capable of using it skillfully." -- Jeff Cooper |
|
March 31, 2012, 10:21 PM | #80 |
Moderator Emeritus
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,660
|
We now have a glimmering of how AG Gansler may attack the ruling by Judge Legg at the Circuit.
In the long timed-out case of Palmer v. D.C., Alan Gura noticed the court of the Woollard and Weaver cases, back on March 8th. On March 16, D.C. made its response to those cases. http://www.archive.org/download/gov....37887.30.0.pdf It may be considered weak, but it is there, nonetheless. Of course, on the 29th, Gura noticed Bateman. It may shed more light how D.C. responds to that. |
April 2, 2012, 10:34 PM | #81 |
Moderator Emeritus
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,660
|
Late Friday night, Judge Legg issued his amended order of clarification: http://www.archive.org/download/gov....80772.63.0.pdf
Judge Legg does three things with his amended decision:
So, as it stands, his entire decision is stayed pending the briefing on continuing the Stay temporarily pending appeal. This also means that Mr. Woollard will not get his permit until possibly after the Judge lifts the stay or the CA4 affirms the District Courts decision. As a result of this clarification, today, MD noticed their appeal: http://www.archive.org/download/gov....80772.64.0.pdf So here's what is going to happen.
If the State cannot meet the 4 criteria of a Stay, Judge Legg will dissolve the temp Stay that is currently in effect. The State may then appeal directly to the CA4 Motions Panel for a Temp Stay. If the Motions Panel agrees with Legg's reasoning, the Injunction will be in full force. Judge Legg is being very careful about all of this. He is providing MD with everything they need. This is serious and Legg does not want to be overturned. A good reasoned opinion for not granting the Stay will influence the Motions Panel. |
April 3, 2012, 02:08 PM | #82 |
Senior Member
Join Date: July 10, 2008
Location: Live Free or Die state
Posts: 259
|
Thanks Al, for sharing that opinion and all the updates. This is obviously a ground-breaking case, and it does indeed sound like Judge Legg is disinclined toward reversal. He is the first, to my knowledge, to detemine that the RKBA does indeed extend beyond one's home.
The idea that he is being extraordinarily careful about procedure even at this point after the ruling says something about him as a judge also. If i had to guess, though, I would presume that he is just as careful about all his decisions. I'd guess he was a heck of a lawyer once.
__________________
"To my mind it is wholly irresponsible to go into the world incapable of preventing violence, injury, crime, and death. How feeble is the mindset to accept defenselessness... How pathetic." - - Ted Nugent "Cogito, Ergo Armitum Sum" - (I Think, Therefore I Am Armed)- - anon. |
April 3, 2012, 05:50 PM | #83 | ||
Senior Member
Join Date: July 26, 2005
Location: The Bluegrass
Posts: 9,142
|
Quote:
Quote:
|
||
April 3, 2012, 07:18 PM | #84 |
Staff
Join Date: November 23, 2005
Location: California - San Francisco
Posts: 9,475
|
Jim, that's perfect. Thank you very much. I would always prefer more and complete information.
|
April 4, 2012, 09:05 AM | #85 |
Staff
Join Date: July 28, 2010
Location: Arkansas
Posts: 8,821
|
Thanks, KyJim. That's actually very helpful. Publication is one of the issues that comes to my mind whenever I hear that "show-me-a-case-that-says-XYZ" argument in one of these threads.
__________________
I'm a lawyer, but I'm not your lawyer. If you need some honest-to-goodness legal advice, go buy some. |
April 6, 2012, 03:58 PM | #86 |
Junior Member
Join Date: March 26, 2012
Posts: 1
|
Training Bill Proposed by Delegate Smigiel
In an effort to try and mitigate Judge Legg ruling in the Woollard v. Sheridan case two amendments to House Bill 579 (titled: Exemption from Training Course) were added to the bill.
The first amendment changes the title from "exemption from training" to "Training Requirements" and creates and open ended training requirement not yet specified. The second amendment still proposes the "good and substantial reason" requirement. the bill with amendments can be found at: http://marylandshallissue.org/wp-con...04/hb0579t.pdf and note a full story is given on Maryland Shall Issue website http://www.marylandshallissue.org/ Last edited by trandolph1174; April 7, 2012 at 08:42 AM. |
April 10, 2012, 12:37 AM | #87 |
Senior Member
Join Date: February 15, 2009
Posts: 298
|
The Maryland legislature was e-bombed by hundreds of MSI (Maryland Shall Issue) members all weekend, and continuously during today's session, to fight against the amended HB579. It went right up to the end of the session at midnight 4/9, and the bill was not brought to a final vote, killing it for this session.
There's an 80+ page thread giving a minute-by-minute discussion of the closing day of the session, which I found pretty exciting to read all at once; your mileage may vary. It's available on marylandshooters . com, under MD 2A Issues, if you really want to get into the sausage-making aspects of politics in Maryland, Cradle of Graft. |
April 11, 2012, 11:07 AM | #88 |
Junior member
Join Date: April 21, 2011
Location: Illinois
Posts: 4,555
|
In Maryland, do you guys have the opportunity to testify about legislation?
Do you have witness slips or electronic witness slips? |
April 11, 2012, 10:35 PM | #89 |
Senior Member
Join Date: February 15, 2009
Posts: 298
|
We do have opportunities to testify.
It's a real lesson in government to watch our legislators check their email, nod off or just leave the room when we present our testimony. |
April 13, 2012, 08:36 AM | #90 |
Moderator Emeritus
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,660
|
Right after the decision was handed down, Maryland Shall Issue (MSI - A grass roots organization) suggested that those who could afford to lose the money, should immediately apply for their carry permits. This was an effort to either 1) force the State to process and/or 2) drop the States 90% approval rate, they have touted in more than one court case.
OK. So between the time that Judge Legg rendered his decision and then placed a temporary Stay on the decision, more than a few folks submitted their application for carry permits in MD. Presumably, the State is now just sitting on those apps, to await a final determination by the CA4. A new wrinkle has appeared. Some folks have submitted their apps after the stay and their apps and checks were returned (uncashed), with a letter stating that the app wasn't processed because they failed to provide a "Good and Substantial Reason" on the application. A copy of one letter is here: http://www.box.com/s/92306766413790660714 As is talked about, over at MDShooters, refusing to process a lawful application is a denial (a proof of providing a Live Scan of their fingerprints was required with that app. That cost everyone about $50 plus the permit fees. So the process was started, regardless). It is suggested that those folks in MD should do two things. 1) Keep their application alive via the administrative appeal process. 5-312, and 2) Send copies of the denial letter to Alan Gura (or at the least, provide this to MSI, so they can forward it to Gura). I would suggest a third action. Make sure you are a member of SAF. They have standing in this matter. As a member of SAF, they will sue on your behalf. If you are not a member, they cannot help you. |
April 19, 2012, 08:31 PM | #91 | ||
Moderator Emeritus
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,660
|
Item number 68 on the docket. The supplemental response brief by the MD AG is in: http://www.archive.org/download/gov....80772.68.0.pdf
Interesting phrase from the supplemental brief by MD on their Motion To Stay: Quote:
The second (and most telling) problem is that it completely ignores what the Supreme Court determined, in Heller: As the quotations earlier in this opinion demonstrate, the inherent right of self-defense has been central to the Second Amendment right. The handgun ban amounts to a prohibition of an entire class of “arms” that is overwhelm*ingly chosen by American society for that lawful purpose.Regardless of what criminal use handguns are put to, it is the firearm chosen by American society for self defense. Here's an interesting tidbit. In section III, the MD AG uses a bunch of really cherry picked stats in how permit holders are not so law-abiding. But he starts it off with: Quote:
I call this wholly unprofessional, if not unethical. Gansler can have no information as to the guilt or innocence of anyone whose trial has yet to be started. The entire "supplemental brief" is nothing more than a rehash of the merits arguments that Judge Legg has already dismissed. Alan Gura will have fun with this, in his opposition in reply, May 9th. |
||
April 20, 2012, 12:08 AM | #92 |
Member
Join Date: March 17, 2012
Posts: 32
|
I can't believe that an AG would use a case that has not even gone to trial in an attempt to sway a ruling. I'm flabbergasted at the gall Gansler has.
|
April 20, 2012, 09:31 AM | #93 |
Senior Member
Join Date: March 30, 2007
Location: South CA
Posts: 566
|
Gansler is out of arguements and desperate to prevent getting rolled over by reality. His arguements, to include the reference to Zimmermann, are what works in the progressive echo chamber and people who draw conclusions about life from single data points.
__________________
Loyalty to petrified opinions never yet broke a chain or freed a human soul in this world — and never will. — Mark Twain |
April 20, 2012, 09:52 AM | #94 | |||
Staff
Join Date: July 28, 2010
Location: Arkansas
Posts: 8,821
|
Some things that immediately popped out at me:
Footnote 1: Quote:
Maybe my problem lies somewhere in the reasoning put forth by the AG as to the consequences of not issuing a stay: Quote:
Unless I have totally missed the boat in my ~6 years of constitutional litigation, inconvenience generally isn't a factor in deciding how to restrict fundamental individual rights. The other big problem that I had on first reading was his use of the statistics, as Al already mentioned. The AG puts on these statistics about CCL users committing crimes, but he only puts on the raw numbers, omitting other relevant ones. For example, he cites to the Texas Dept of Public Safety & some of their numbers. (By the way, I noticed these stats a while back, and they're very interesting.) For example: Quote:
__________________
I'm a lawyer, but I'm not your lawyer. If you need some honest-to-goodness legal advice, go buy some. |
|||
April 20, 2012, 10:52 PM | #95 |
Senior Member
Join Date: July 26, 2005
Location: The Bluegrass
Posts: 9,142
|
It would be very simple for the Maryland State Police to continue asking for a good and substantial reason and to include a field in their database indicating which license seekers met that requirement. If the 4th Circuit reverses, the MSP could simply mail a letter and require those without good and substantial reason to return their licenses. I'm betting there's some sort of fine or misdemeanor which they could cite to leverage compliance.
The failure to return the license is not a real problem anyway. Practically the only time it is used is when there is a police stop or other encounter with the police. The police routinely run these and could then confiscate the license and arrest the offender for carrying without a valid license. In short, the whole argument does not hold water. |
April 20, 2012, 11:06 PM | #96 |
Moderator Emeritus
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,660
|
In order to succeed in getting a Stay, one of the criteria is that you have to show some reasonable basis that you will win on the appeal.
If you notice, they never touched upon that. |
April 20, 2012, 11:56 PM | #97 | |
Staff
Join Date: September 25, 2008
Location: CONUS
Posts: 18,496
|
Quote:
|
|
April 21, 2012, 07:49 PM | #98 | |
Staff
Join Date: July 28, 2010
Location: Arkansas
Posts: 8,821
|
Quote:
__________________
I'm a lawyer, but I'm not your lawyer. If you need some honest-to-goodness legal advice, go buy some. |
|
April 21, 2012, 09:39 PM | #99 |
Senior Member
Join Date: June 24, 2009
Location: Michigan
Posts: 769
|
Spats I wrote this post a while back and will reproduce it for you here. As it turns out I'm an economist, which is like a mathematician except we deal with policy All numbers are for Texas:
Just for fun I crunched the numbers for 2007 (most recent year for available data). Some of the findings were pulled right from statistical information, some I derived myself... Total # of convictions: 61,260 Total # of convictions where the criminal had a CHL: 160 % of convictions in which the criminal had a CHL: .2612% # of "Active CHL Holders": 288,909 % of Texans with an "Active CHL": 1.208% And just to go off of what Mike Irwin said, # of murders in Texas: 1,420 # of murder convictions: 371 # of murder convictions in which the criminal had a CHL: 2 % of murder convictions in which the criminal had a CHL: .5391% And what alloy said: # of ALL child drowning deaths in Texas: 63 # of murder convictions in which the criminal had a CHL: 2 # of MANSLAUGHTER convictions in which the criminal had a CHL: 1 And car accidents: # of Motor Vehicle Accident deaths in Texas in 2006: 3,781 That means that the general populace of Texas in 2007 is 4.624 times MORE LIKELY to be convicted of a crime than an "Active CHL Holder". The general populace of Texas in 2007 is 2.24 times MORE LIKELY to be convicted of murder than "Active CHL Holders". Wasn't gonna source this but then I got carried away, so here are all sources: http://www.txdps.state.tx.us/adminis.../convrates.htm http://www.txdps.state.tx.us/adminis...Report2007.pdf http://www.txdps.state.tx.us/adminis...dInstr2007.pdf http://www.disastercenter.com/crime/txcrime.htm http://www.texascancer.info/scripts/mgwns.html
__________________
gtalk:renfes steamID: Sefner |
April 21, 2012, 11:14 PM | #100 | |
Moderator Emeritus
Join Date: June 29, 2000
Location: Rupert, Idaho
Posts: 9,660
|
For those not familiar with what I referenced earlier, Here are the 4 criteria that the State of Maryland must satisfy, in order to get their Stay (pulled directly from Alan Gura's brief on the merits of issuing the injunction - doc #59):
Quote:
This is a self-made crisis. Under the G&S rules, those required to have the permit for their jobs, are in fact sponsored by the companies they work for. It would take little to no effort to construct the proper database to single out those that are security guards, retired police, prosecutors, judges, etc., from the ordinary Joe. As regards the revocation of a permit and the (former) permittee not returning the permit, it is easy enough to discover. They do this with drivers licenses, no? So were is the public harm? Items 2, 3 and 4 are so transparent as to be a slap in the face to Judge Legg. And, as I said, no where does the State even try to show that they could succeed on the merits, at appeal. I'm sure that Alan Gura will point this all out, in his response. There is virtually nothing the State can do to rebut this. What happens next is the mere formality of the process. |
|
|
|