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View Full Version : N.Y. Case threatens Incorporation -- or "Kids, Don't Try this at Home!"


Lex Arma
02-06-2009, 2:40 PM
The Second Amendment has a long history of poor advocacy.
In United States v. Miller, 307 U.S. 174 (1939), Mr. Miller's lawyer filed no briefs, nor did his counsel appear for oral arguments. See: Heller, at 2814.

The Silveira case in the Ninth Circuit was a disaster, as was Hickman v. Block and whole host of other "do it yourself" cases.

Here is another "amateur hour" case out of New York that marginally threatens all the incorporation cases pending right now. The case is Maloney v. Cuomo.

http://www.ca2.uscourts.gov:8080/isysnative/RDpcT3BpbnNcT1BOXDA3LTA1ODEtY3Zfb3BuLnBkZg==/07-0581-cv_opn.pdf

Luckily the guy was so incompetent, he managed to the have the Court merely uphold Presser v. Illinois, which is a "pre-incorporation" case that kind of gets dissed in Heller anyway.

Part of the reason these cases make bad law, is that a lot of well-meaning people "just know" what the Second Amendment means. They can't imagine a judge disagreeing with them. When they file these cases and lose, they diminish rights for all of us.

Chuck Michel, Bruce Colodny, Alan Gura, Don Kates, Stephen Halbrook, and I -- and a whole host of other 2A attorneys spend a lot time trying to talk people out of filing dumb lawsuits.

Besides all the other good work that rank and file members of CalGUNS do, assign yourself another task: If you hear of someone, or meet someone who has decided to be Perry Mason without benefit of education or experience, direct these folks to good 2A lawyers who can try and talk them out of it. Or you can try and talk them out of it by pointing to cases like this.

GenLee
02-06-2009, 2:56 PM
Thanks for the heads up.

hawk1
02-06-2009, 2:59 PM
This will only get worse.
Many in todays society are only concerned with themselves and nobody else...

SwissFluCase
02-06-2009, 3:03 PM
This will only get worse.
Many in todays society are only concerned with themselves and nobody else...

Yes. I worry about the scumbag lawyer that just wants to try every angle to get his client off, even if there is no chance to do anything other than rack up legal fees. :(

Regards,


SwissFluCase

mymonkeyman
02-06-2009, 3:19 PM
At least it will give them something interesting to talk about at Sotomayor's confirmation hearings.

ilbob
02-06-2009, 3:47 PM
A big part of the reason is that many people who actually have a good case cannot afford to pay lawyers to make that argument for them so are almost forced to either give up or go it alone.

Not just a 2A problem.

DDT
02-06-2009, 3:53 PM
Yes. I worry about the scumbag lawyer that just wants to try every angle to get his client off

Sort of their job, dontchya think? However; being incompetent shouldn't be a job requirement.

CCWFacts
02-06-2009, 3:59 PM
I try and I try to explain how dumb and bad and harmful it is to do this on various forums. My conclusion is, the more ignorant the person is, the more confident he is in his competence and ability.

Perhaps this fact is the strongest evidence yet against the theory of evolution.

I direct readers to:

Journal of Personality and Social Psychology
1999, Vol. 77, No. 6. ] 121-1134

Unskilled and Unaware of It: How Difficulties in Recognizing One's Own
Incompetence Lead to Inflated Self-Assessments
Justin Kruger and David Dunning
Cornell University

for a more detailed treatment of this bug in the human software.

Librarian
02-06-2009, 4:18 PM
The .PDF of Unskilled and Unaware of it is here (http://www.apa.org/journals/features/psp7761121.pdf).

CCWFacts
02-06-2009, 4:35 PM
The .PDF of Unskilled and Unaware of it is here (http://www.apa.org/journals/features/psp7761121.pdf).

Ah, great, thanks. Yup, that's the crux of the problem. I'm going to start mailing that to people (including myself sometimes) when necessary.

N6ATF
02-06-2009, 4:43 PM
Too bad there isn't any provision for retrying old cases due to ineffective assistance of counsel, posthumously.

yellowfin
02-06-2009, 4:56 PM
Correct me if i'm wrong, Don, but wasn't the problem with Hickman the judges having made up their minds already based on preexisting anti 2A inclinations and decided advantage of the other side being the sheriff of LA? I'm not sure that any lawyer could have won with the outcome heavily predetermined.

Sgt Raven
02-10-2009, 1:52 PM
The problem with some or even most cases is who are you going to listen to? I worked very hard trying to get enough petitions signed for the Kilmer/ Metcalf ‘Right To Keep and Bear Arms Constitutional Amendment’ so we could vote on it. But like with ‘Heller’ The NRA tried to shoot us down.

So the real question becomes who’s opinion do you trust on which cases to push forward? :confused:

Meplat
02-10-2009, 8:28 PM
Yes! Miller would have had a very different outcome with the benefit of competent counsel.


Too bad there isn't any provision for retrying old cases due to ineffective assistance of counsel, posthumously.

gunsmith
02-10-2009, 10:24 PM
I'm subscribing to thread so when I get my pc back
I'll download pdf, the one I'm currently using can't handle pdf

nick
02-10-2009, 10:29 PM
Oh well, there's always tar and pitchforks.

Theseus
02-10-2009, 11:11 PM
Well, some say the system is broken, I say it is exactly like they want it to be.

Imagine if law was actually so simple that the average person could practice it like say Abraham Lincoln?

yellowfin
02-10-2009, 11:31 PM
^ As if we didn't have enough problems with that one. The precedent of highly populated areas beating everyone else to their will with no means of cutting loose from them is what's had us fighting in this state right now.

vrand
02-10-2009, 11:32 PM
Well, some say the system is broken, I say it is exactly like they want it to be.

Imagine if law was actually so simple that the average person could practice it like say Abraham Lincoln?

"It will be of little avail to the people that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man who knows what the law is today can guess what it will be to-morrow."

--James Madison (likely), Federalist No. 62, 1788

Librarian
02-11-2009, 1:20 AM
Yes! Miller would have had a very different outcome with the benefit of competent counsel.

That assumes that was the point behind the Miller prosecution. There is some argument that it wasn't intended to be a winnable case.
THE PECULIAR STORY OF UNITED STATES V. MILLER (http://www.google.com/url?sa=t&source=web&ct=res&cd=3&url=http%3A%2F%2Fpapers.ssrn.com%2Fsol3%2Fpapers.c fm%3Fabstract_id%3D981831&ei=-5eSSbCeOZqqtQOQhI3ACw&usg=AFQjCNEpuYxlaB1smmkqjWEPWtll9yRF5g&sig2=GWS2h4LHvIN9NDlgQZJC1Q)
Brian L. Frye
This article provides a comprehensive history and interpretation of United
States v. Miller, the only Supreme Court case construing the Second
Amendment. It presents evidence Miller was a test case designed by the
government to test the constitutionality of federal gun control. It shows the
holding in Miller is narrower than generally assumed. It argues Miller adopts
neither the individual nor the collective right theory of the Second
Amendment. It suggests the Supreme Court’s pragmatic, deferential approach
in Miller remains appropriate.

Ford8N
02-11-2009, 6:18 AM
"It will be of little avail to the people that the laws are made by men of their own choice, if the laws be so voluminous that they cannot be read, or so incoherent that they cannot be understood; if they be repealed or revised before they are promulgated, or undergo such incessant changes that no man who knows what the law is today can guess what it will be to-morrow."

--James Madison (likely), Federalist No. 62, 1788


Yup, get a copy of West's California Criminal and Motor Vehicle Law and you will see what Madison was talking about with your own eye's.

1911su16b870
02-11-2009, 10:07 AM
The .PDF of Unskilled and Unaware of it is here (http://www.apa.org/journals/features/psp7761121.pdf).

Wow, CCWFacts and Librarian that is a great article...You don't know what you know until you know it! or A little knowledge is dangerous! :D