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View Full Version : Palmer/DC Carry: DC files opposition MSJ


hoffmang
09-09-2009, 2:00 PM
The District of Columbia filed an MSJ in opposition (http://www.hoffmang.com/firearms/palmer/DC-Opposition-MSJ-2009-09-09.pdf) to the MSJ in Palmer. This is procedurally incorrect as it really should be a motion to dismiss, but this is government work we're talking about...

Not much to the argument beyond "all of DC is a sensitive place," "the word bear does not exist in the 2A", and "it's reasonable and should be judged on reasonable restrictions basis and therefor be constitutional."

-Gene

Scarecrow Repair
09-09-2009, 3:21 PM
A quick skim (I find it hard to concentrate on legalese) makes me think they are saying "bear" does not apply because Heller was only about guns in homes and did not cover "bear"; if this is their argument, isn't that likely to annoy the 5 who voted for Heller and make it more likely for them to lose again?

yellowfin
09-09-2009, 4:11 PM
"The District’s regulation of handguns at issue here is squarely in the mainstream and eminently reasonable" How in the heck is having a policy completely opposite no fewer than 40 states anywhere near "mainstream?" They must be living in some kind of alternative reality.

hoffmang
09-09-2009, 4:25 PM
How in the heck is having a policy completely opposite no fewer than 40 states anywhere near "mainstream?" They must be living in some kind of alternative reality.

It's certainly not a fact based reality...

-Gene

Gray Peterson
09-09-2009, 7:48 PM
Damn, has Marion Barry been sharing that crack pipe with DC"s legal team? "Second Amendment is not a fundamental right", really?!!

Kharn
09-10-2009, 1:57 AM
I'd be willing to donate a few bucks towards Marion Barry's sharing efforts.

artherd
09-10-2009, 2:55 AM
... if this is their argument, isn't that likely to annoy the 5 who voted for Heller and make it more likely for them to lose again?

THIS.

press1280
09-10-2009, 3:31 PM
"Like most rights,
the right secured by the Second Amendment is not unlimited [and] not a right to keep and carry
any weapon whatsoever in any manner whatsoever and for whatever purpose.
This line keeps getting used to defend ANY and ALL gun regulations.
They also try to say that if the 2A isn't incorporated, it shouldn't apply to DC.WTF?

Gene, what's next on this case?

hoffmang
09-10-2009, 5:02 PM
SAF/Gura will file an opposition to their motion and they'll be an oral argument in DC on the cross motions.

-Gene

yellowfin
09-11-2009, 6:05 AM
What might be a projected time on that?

tiki
09-11-2009, 7:03 AM
What might be a projected time on that?

I hope nobody says it. But, I know someone will.

hoffmang
09-11-2009, 12:18 PM
Dunno when the opposition brief will be ready, but the case was set this morning for oral argument on January 22, 2010 in DC:

NOTICE of Hearing on 6 MOTION (http://ia311008.us.archive.org/2/items/gov.uscourts.dcd.137887/gov.uscourts.dcd.137887.6.0.pdf) for Summary Judgment and 5 MOTION (http://www.archive.org/download/gov.uscourts.dcd.137887/gov.uscourts.dcd.137887.5.1.pdf) for Summary Judgment : Motion Hearing set for 1/22/2010 @ 2:00 PM in Courtroom 27A before Judge Henry H. Kennedy. *Note: Parties will be allowed 20 minutes per side for oral argument*(tj) (Entered: 09/11/2009)

Scarecrow Repair
09-11-2009, 12:19 PM
I hope nobody says it. But, I know someone will.

Twin Peaks!

ilbob
09-11-2009, 1:33 PM
Its not like they were just going to admit the 2A is for real. Since they have no real case they have to use legalisms to stretch out the case as long as possible in the hopes that something will happen to turn things their way. Its really the only option they have, other than capitulation.

Whiskey84
09-11-2009, 1:40 PM
Have they even read the Constitution to see what it is they're trying to undermine?

elenius
09-11-2009, 2:06 PM
Wow, that's a long wait for a hearing. Still, nice to see the wheels turning...

Mulay El Raisuli
09-12-2009, 7:36 AM
A quick skim (I find it hard to concentrate on legalese) makes me think they are saying "bear" does not apply because Heller was only about guns in homes and did not cover "bear"; if this is their argument, isn't that likely to annoy the 5 who voted for Heller and make it more likely for them to lose again?



I agree completely. That the Right Five didn't define "and bear" in Heller is something that's going to have to be corrected sooner or later. It is my belief that they will take the first opportunity they can to address this. It is my further belief that Maloney or Chicago is going to be the vehicle used to so address this issue. Yes, "and bear" isn't explicitly part of either, but the matter needs to be addressed & "judicial economy" might/will lead them to do so. So says my crystal ball.

While I'm commenting, the whole of the Brief is pretty much laughable in general, but the part that really had me howling was this:
"...Despite that seemingly draconian intrusion on self-rule, essentially requiring
the District to define the Second Amendment as broadly as anywhere else in the country,..."


GOSH! That DC might have to regard a part of the Constitution the same way as the rest of the country would just be SOOOOOOOOOOO horrible! OH! How will they ever survive?

The Raisuli

Shotgun Man
09-12-2009, 8:02 AM
[...]
While I'm commenting, the whole of the Brief is pretty much laughable in general, but the part that really had me howling was this:
"...Despite that seemingly draconian intrusion on self-rule, essentially requiring
the District to define the Second Amendment as broadly as anywhere else in the country,..."


GOSH! That DC might have to regard a part of the Constitution the same way as the rest of the country would just be SOOOOOOOOOOO horrible! OH! How will they ever survive?

The Raisuli

They should have cited to BHO's campaign declaration that what works in Cheyenne doesn't work in Chicago.

hoffmang
09-12-2009, 9:06 AM
It is my further belief that Maloney or Chicago is going to be the vehicle used to so address this issue. Yes, "and bear" isn't explicitly part of either, but the matter needs to be addressed & "judicial economy" might/will lead them to do so. So says my crystal ball.

I can virtually guarantee you that SCOTUS will not address "bear/carry" in Chicago/McDonald. However, Sykes and Palmer are there to make that happen as soon as practically possible.

-Gene

yellowfin
09-12-2009, 9:27 AM
Palmer is going to be really good for striking down restrictions on NY, NJ, and MA pistol licenses. In New York you have to have a pistol license to even touch a pistol at all--I'm not kidding, it really is that bad-- and judges issue restricted permits in populated areas like Buffalo, Rochester, and Long Island where you can only take your pistol to the range and/or hunting and fishing (Sporting or Hunting and Target restriction), or in some cases only within your house and/or place of business (Premises). Just like DC, you have to go through the same process as if you were getting a carry license, so there's no real reason not to make it a full carry license except that the judges decide whether they like people, or even just you, to have it.

Gray Peterson
09-12-2009, 2:03 PM
It's going to be a One Two Punch:

1) McDonald for incorporation.

2) Palmer for carry.

Go, Gura, GO!

Liberty1
09-12-2009, 5:15 PM
"judicial economy" might/will lead them to do so.

The Robert's court is not going to engage in "judicial economy". They are not going to decide issues unrelated to the specific question before the Justices. Sorry.

htjyang
09-12-2009, 5:55 PM
The Robert's court is not going to engage in "judicial economy". They are not going to decide issues unrelated to the specific question before the Justices. Sorry.

Interestingly enough, the Supreme Court just reheard Citizens United v. FEC but this time, with a question added by the Court itself. Admittedly, that is rather rare. But I often suspected that the Chief Justice's reputation for minimalism has been exaggerated.

Blackhawk556
09-12-2009, 6:41 PM
these cases take too long to get sorted, but oh well i'll shut up and hold on for the ride

CnCFunFactory
09-13-2009, 1:07 AM
Twin Peaks!

What's that ya say? It'll be "three sheets" before we hear? :43:

press1280
09-13-2009, 4:40 AM
[QUOTE=Mulay El Raisuli;3051927]I agree completely. That the Right Five didn't define "and bear" in Heller is something that's going to have to be corrected sooner or later. It is my belief that they will take the first opportunity they can to address this. It is my further belief that Maloney or Chicago is going to be the vehicle used to so address this issue. Yes, "and bear" isn't explicitly part of either, but the matter needs to be addressed & "judicial economy" might/will lead them to do so. So says my crystal ball.

The Heller decision in dicta defined "bear arms" as "carry weapons". The court cases they cited were primarily total bans on carry(open or concealed). Thus, this is the core of the carry cases we have today. The government can regulate the manner in which carried, but can't ban both(outside of prohibited individuals), and can't have a restrictive permit system that only allows a few token individuals to carry while the public at large is shut out. DC's opposition totally ignores this important dicta.

Mulay El Raisuli
09-13-2009, 9:03 AM
Interestingly enough, the Supreme Court just reheard Citizens United v. FEC but this time, with a question added by the Court itself. Admittedly, that is rather rare. But I often suspected that the Chief Justice's reputation for minimalism has been exaggerated.



I agree. There is a lack of logic (legal & in general) at play right now. We have The Basic Question (Individual or Militia?) answered, but there's still much to be clarified, simply because Heller didn't include everything. What level of scrutiny is required? Should this Right be scrutinized differently than the rest of the BoR? Should the Right be Incorporated? If yes, which type of Incorporation should be used? Both Left & Right hate Slaughterhouse, but are they really ready to Incorporate the whole of the BoR & finally validate the 14A?

All tricky questions. But, the Basic Right is to keep AND BEAR so my guess is that AND BEAR actually ranks right before Incorporation on their screen just because Heller only addressed half of the question, & no one likes answering only half of a question. So, while Incorporation is the main item coming up, 'and bear' is at least peripherally part of the matter also & my crystal ball says that the Right Five will take the opportunity to finish answering the question that was asked in Heller.

The problem with this is that my guess, & your guess, & Gene's & Liberty1's guesses is that they're just that; guesses. Only time will tell who's crystal ball works best. Still, the DC & Chicago's briefs are both just chock full of nonsense that is contrary to what the Right Five intended in re the 2A, & that's gotta be a bit frustrating to them. Also, do they really want to have their time taken up for the next several years answering & re-answering this? Is this enough to get them to the point that they'll definitively answer the second half of The Basic Question while they settle the Incorporation question?

No man can say (here, you're supposed to be hearing a big, deep announcer type voice). :D

But, my guess is that if they have a shot at getting on to other things, they will.

The Raisuli

Mulay El Raisuli
09-13-2009, 9:07 AM
The Heller decision in dicta defined "bear arms" as "carry weapons". The court cases they cited were primarily total bans on carry(open or concealed). Thus, this is the core of the carry cases we have today. The government can regulate the manner in which carried, but can't ban both(outside of prohibited individuals), and can't have a restrictive permit system that only allows a few token individuals to carry while the public at large is shut out. DC's opposition totally ignores this important dicta.



True, & while dicta isn't definitive or commanding, it is supposed to be instructive & DC (and Chicago, for that matter) is clearly missing the hint. Which is also why I think the Right Five will take the opportunity to make things clear.

The Raisuli

yellowfin
09-13-2009, 9:41 AM
True, & while dicta isn't definitive or commanding, it is supposed to be instructive & DC (and Chicago, for that matter) is clearly missing the hint. Which is also why I think the Right Five will take the opportunity to make things clear.

The RaisuliI certainly hope so, but I'm a bit worried that they might cave just like the judges in Cruikshank and Slaughterhouse did, thinking that they don't want to topple too many apple carts and anger the big cities who seem to hold all the cards in the political environment. There are a lot of very, VERY powerful people who don't want them to rule the right way. The guys ruling on Cruikshank, and Slaughterhouse clearly knew they were wrong. Miller too was a political cop out. They knew perfectly well what they were doing and they knew just as well as you or I what the right thing to do was, but they were cowards and did the wrong thing, answering instead to societal prejudices and political pressures. The whole "interest balancing" thing is nothing but a thinly veiled statement saying "You're right, but the house always wins, so this is the way it's gotta be." It's basically run like a casino, some you win, some you lose, but they always hold the cards.

The problem with the rules is that they can and have been ignored at their convenience. A lot of stuff gets lost in the wash, and I really hope we don't have a repeat of the past atrocities. I'm hopeful, but not as confident as I'd like to be. We SHOULD win, but should doesn't mean much when power is at stake and there's some really connected, really wealthy, and very bad people who aren't betting our way on this and you know the people who own the horses know this. I like our chances and I really like the case, but the bookies aren't getting a dime from me on this one.

htjyang
09-13-2009, 9:53 AM
Mulay El Raisuli,

Unless something extraordinary happens with the incorporation cases, my crystal ball is more closely aligned with Liberty1's crystal ball.

Citizens United had some unusual facts. First, Justice Kennedy is almost as opposed to campaign finance regulations as Justices Scalia and Thomas. He is not really a swing vote in this case. Second, during its first argument, the federal government seriously antagonized the center-right justices by arguing that it has the power to ban books.

My view is that in Heller, DC counsel Walter Dellinger did a reasonably good job in salvaging a terrible position. He wisely made the concession that the city would regard self-defense as being justified. If he didn't do that, he would probably antagonize the Court and the majority might have announced a strict scrutiny standard. Dellinger is an expert litigator and he saved the city and the Bradyites from a far more devastating defeat.

For the Court to go beyond the issue of incorporation in the Chicago cases and Maloney will be very unusual. I think there is a small window of opportunity, provided that Alan Gura plays the right cards and the city of Chicago acts stupidly. Both are possible.

The interesting thing about the circuit court's decision in rejecting the Chicago cases is that the panel claimed that local and state governments had the power to ban the right to self-defense. That puts the panel on a collision course with the Court in Heller.

Assuming that the incorporation cases are accepted, Gura is well-advised to find some examples of the city (if they do exist) prosecuting people for self-defense and make that a key part of his argument. If the city is also pig-headed enough to actually defend itself on that point, then that just might be enough to force the Court to go beyond the question presented.

In short, the stars have to be perfectly aligned for that to happen. But, much like DC's decision to appeal in Heller, the 7th Circuit Court may have unwittingly opened the door for a major victory for gun rights.

hoffmang
09-13-2009, 2:04 PM
For the Court to go beyond the issue of incorporation in the Chicago cases and Maloney will be very unusual. I think there is a small window of opportunity, provided that Alan Gura plays the right cards and the city of Chicago acts stupidly. Both are possible.


The only place where SCOTUS can go further than incorporation is to give more guidance on the appropriate level of scrutiny. McDonald challenges the re-registration requirement, and to strike that, SCOTUS will have to give more binding guidance on scrutiny. However, they can still duck that by remanding due to the somewhat odd procedural history foisted on us by a District Court judge who has unique views on how FRCP work... Carry/bear is not a part of any of the challenged regulations in either NRA, McDonald, or Maloney.

In Citizens United there was a prior precedent which seems to be the only legal argument to support the Government's position in that case. There are no similar prior precedents.

Carry will not be anything more than dicta in NRA/McDonald.

-Gene

yellowfin
09-13-2009, 2:15 PM
Do you think they might throw in that dicta for guidance on how to proceed with future cases, to show folks what they must address in regarding other matters? It seems like quite a lot of cases citing precedent lean heavily on dicta because that's what there's the most of to go around. It seems like if they want, they can leave us a little crumb trail to follow.

Mulay El Raisuli
09-14-2009, 5:39 AM
The only place where SCOTUS can go further than incorporation is to give more guidance on the appropriate level of scrutiny. McDonald challenges the re-registration requirement, and to strike that, SCOTUS will have to give more binding guidance on scrutiny. However, they can still duck that by remanding due to the somewhat odd procedural history foisted on us by a District Court judge who has unique views on how FRCP work... Carry/bear is not a part of any of the challenged regulations in either NRA, McDonald, or Maloney.

In Citizens United there was a prior precedent which seems to be the only legal argument to support the Government's position in that case. There are no similar prior precedents.

Carry will not be anything more than dicta in NRA/McDonald.

-Gene



You could certainly be right on the money in re all of this. At best, its a crap shoot. I'm not going to be making any bets either way.

The Raisuli

wash
09-14-2009, 6:54 AM
Looking at the timing, is it possible that SCOTUS is waiting for the Nordyke en-banc and Sykes cases to be decided before it incorporates and then give us a ruling on carry?

Or maybe waits for Nordyke/Sykes, gives a ruling on carry, then incorporates to push that ruling down to everyone?

It seems like the courts move at a glacial pace (by internet standards) but when things do happen they are kind of lined up in order (but that may only be coincidence).

Gray Peterson
09-14-2009, 7:24 AM
Looking at the timing, is it possible that SCOTUS is waiting for the Nordyke en-banc and Sykes cases to be decided before it incorporates and then give us a ruling on carry?

Or maybe waits for Nordyke/Sykes, gives a ruling on carry, then incorporates to push that ruling down to everyone?

It seems like the courts move at a glacial pace (by internet standards) but when things do happen they are kind of lined up in order (but that may only be coincidence).

Backwards.

Kharn
09-14-2009, 1:15 PM
Everyone else is stalling to see what the SCOTUS will do, they are deciding this month if they will hear McDonald v Chicago.
The SC actually tries to be efficient. Their term is beginning shortly, and all cases heard between now and the end of the oral argument days (April/May?) will be ruled upon by the end of June 2010. The most important/controversial case of the year is usually released as the last ruling on the last day of term, in 2008 that was Heller.