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View Full Version : Nordyke 9th looks at Chester 4th


krucam
01-11-2011, 4:16 PM
Checked Pacer on Nordyke for the 1st time in a few weeks...

In addition to Bateman v Perdue (NC) being impacted, now it looks as though you folks in Nordyke are affected by the 4th Circuits opinion in Chester...

From Pacer:
01/05/2011 172 Filed (ECF) Appellants Todd Baltes, Dennis Blair, Duane Darr, Daryl N. David, Jess B. Guy, William J. Jones, Jean Lee, Ann Sallie Nordyke, Russell Allen Nordyke and Tasiana Westyschyn citation of supplemental authorities. Date of service: 01/05/2001. [7600111] (DK)
01/07/2011 173 Filed (ECF) Appellees Keith Carson, Wilma Chan, County of Alameda, County of Alameda Board of Supervisors, Scott Haggerty, Mary V. King and Gail Steele citation of supplemental authorities. Date of service: 01/07/2011. [7603987]--[COURT UPDATE: Replaced searchable version of response letter. Resent NDA. 01/10/2011 by TT] (TPP)
01/10/2011 174 Filed (ECF) Appellees Keith Carson, Wilma Chan, County of Alameda, County of Alameda Board of Supervisors, Scott Haggerty, Mary V. King and Gail Steele citation of supplemental authorities. Date of service: 01/10/2011. [7606271] (TPP)

Both 172's and 174 , representing Appellees and Appellants, are attached.

krucam
01-11-2011, 4:19 PM
I lied in my previous thread. I couldn't upload 174 due to an error:

Upload Errors
174 Nordyke Supplement 2011_01_10.pdf:
Exceeds your quota by 569.9 KB. Click here to view your attachments

Lets try this again...no joy...I've exceeded some limit by 700K+.

OleCuss
01-11-2011, 4:19 PM
Thank you for the update!

Crom
01-11-2011, 4:19 PM
Dang Mark, you're going to get a big bill from PACER! Seriously, Thanks for your posts on updates to these cases. :thumbsup:

Edit: I really like Don's letter, short and to the point. I sure hope this case is decided correctly.

krucam
01-11-2011, 4:26 PM
Dang Mark, you're going to get a big bill from PACER! Seriously, Thanks for your posts on updates to these cases. :thumbsup:

Edit: I really like Don's letter, short and to the point. I sure hope this case is decided correctly.

Only $150 for the Oct-Dec quarter...it's worth it.

J.D.Allen
01-11-2011, 4:40 PM
Did part of CHESTER relate to 2A scrutiny?

krucam
01-11-2011, 4:46 PM
Did part of CHESTER relate to 2A scrutiny?

Absolutely! Dirt-bag Domestic Violence type beaters deserve Intermediate Scrutiny. Lawful and otherwise non-prohibited....an implied Strict.

MD Discussion:
http://www.mdshooters.com/showthread.php?t=48824

Actual Chester Opinion:
http://pacer.ca4.uscourts.gov/opinion.pdf/094084.P.pdf

How SAF used Chester in the NC Bateman case over the weekend:
http://www.archive.org/download/gov.uscourts.nced.107258/gov.uscourts.nced.107258.73.0.pdf

J.D.Allen
01-11-2011, 4:48 PM
NICE! :thumbsup:

CCWFacts
01-11-2011, 4:52 PM
Is Chester good for us? I'm not up to speed.

safewaysecurity
01-11-2011, 4:57 PM
Is Chester good for us? I'm not up to speed.

i think so. i believed it said 2A challenges having to do with law abiding citizens requires strict scrutiny even in dealing with carry rights

Patrick-2
01-11-2011, 5:14 PM
i think so. i believed it said 2A challenges having to do with law abiding citizens requires strict scrutiny even in dealing with carry rights

Chester set up a framework for the interpretation of 2A rights for people. It's the first time any federal court has explicitly done so, and it came from a circuit, no less.

The docs we have said that Krucam's aptly described wife beater (and daughter kicker) requires intermediate scrutiny even though he falls outside Heller's description of 'lawful person'. So even though Heller presumed he was outside the scope of full 2A rights, the fourth said his right is implicated all the same. It also strongly suggested that strict is required for lawful persons. I mean...there was no other option there.

Another key piece was the definition of 2A: to keep and bear arms for self defense. Period. None of this "in the home" baloney. Krucam got a weird feeling in his leg from that line. ;)

The interesting things about Chester do not stop with this decision. For one, this opinion was made in Spring 2010 but public release was delayed. The litigants had it all this time. No reason given for the release, but the nature of the case suggests they had a heck of a time purging personal details before public release.

Another interesting thing: the court said they were creating the framework in which to judge the case (and others), and there is a lot in the opinion we have to read the implications. But some of us wonder if they actually gave the district court reviewing this case a more specific set of criteria, and if so, what they were.

But yes, Chester is a great case for us. Specifically for carry rights and for scrutiny evaluations. Keep in mind we do not even require scrutiny for carry rights to be decided...it is a core holding. But the district courts love simple rules and this case is helping define them in our favor.

Patrick-2
01-11-2011, 5:23 PM
Another Chester point: Gura is suing MD over 'good and substantial cause' just as he is elsewhere. MD is in the Fourth. Gura sent notice to the MD District Court pointing out this case.

The MD case has been delayed by games played by the MD AG for the past several months. But right before the holidays, the district court finally shut them down. MD must now reply to the merits of the complaint. Until now MD has made zero 2A arguments. Really. The closest they got was a footnote that mentioned 2A.

Our AG made a call to delay as long as possible. He is out of his league and maybe was hoping for help by way of other states and their cases?

Either way, it backfired on him. His first brief on 2A is due soon and now he has to deal with Chester, law of the land in his circuit. Chester does not end the argument by any stretch, but it is absolutely good for us. And ignoring it would be tantamount to conceding the case to our side.

Who knows? Maybe MD will be the first decision to fall. Before Chester I would have handicapped our own Woollard case at less than 50% at the district level. Now? It is looking better, indeed.

yellowfin
01-11-2011, 5:25 PM
So bring on Woollard!

dantodd
01-11-2011, 6:05 PM
Krucam, did you recap them?

Crom
01-11-2011, 7:45 PM
dantodd, Recap unfortunately does not work with appeals courts for some reason.

krucam
01-21-2011, 2:43 PM
Doc 174 (which I couldn't upload due to size constraints) was from Alameda County, citing the MD v Williams case. Williams was in the State Courts, Williams was found guilty for carrying a firearm because Heller didn't protect him outside the home. A lousy case in State Court that went against us.

Williams didn't provide any significant 2A analysis or scrutiny.

Mr Kilmer apparently wants to make sure the 9th knows this, saying Chester (4th Ckt) is the far more persuasive case when compared to Williams....

Crom
01-21-2011, 2:57 PM
Mark, Thank you for the update.



Your Honors:

This letter is filed in response to Docket Entry # 174 filed by the
Appellees on January 10, 2011, calling to this Courtís attention the case
of Williams v. Maryland.

The difference between the Maryland case and United States v. Chester;
2010 U.S. App. Lexis 26505, is that the Maryland Court failed to
conduct the historical analysis of the scope of the Second Amendment
outside the home. That historical analysis is briefed and already before
the Court in this case. Furthermore the type of analysis necessary for
Second Amendment adjudication was conducted by the Chester Court.
Therefore Chester is the more persuasive case.

Respectfully Submitted,

Donald Kilmer
Attorney for AppellantsWhen I read what Don wrote I can hear his voice as I remember it from the Nordyke Orals and the GRPC talk he gave. :D

I am looking forward to the release of Nordyke. It should be a bellwether for us. :grilling:

press1280
01-21-2011, 6:13 PM
And Williams didn't say much beyond requiring a permit to carry was constitutional. Since Williams didn't bother to apply, the "need" standard wasn't examined, and Gura's case isn't claiming a permit to carry is unconstitutional-only that it can't be withheld because of "lack of need".

I got the impression the 9th was leaning towards strict scrutiny. The Chester opinion just gave them extra cover to do just that.

wildhawker
01-21-2011, 6:25 PM
And Williams didn't say much beyond requiring a permit to carry was constitutional. Since Williams didn't bother to apply, the "need" standard wasn't examined, and Gura's case isn't claiming a permit to carry is unconstitutional-only that it can't be withheld because of "lack of need".

I got the impression the 9th was leaning towards strict scrutiny. The Chester opinion just gave them extra cover to do just that.

Or the ability to split circuits and send Nordyke up...

dantodd
01-21-2011, 8:39 PM
can we start the 2 week countdown on Nordyke yet?

:AreWeThereYet:

Funtimes
01-21-2011, 11:06 PM
Or the ability to split circuits and send Nordyke up...


I guess I wouldn't be suprised either way, if Nordyke follows the pro-gun path... that this stuff never makes it to the court. I just hope if they do split, cert is picked up.

Things are looking good for Hawaii =o, if Nordyke comes out (in our favor), and then the Thune Amendment drops... laws will be begin to cave pretty easily.

Patrick-2
01-24-2011, 9:31 AM
Guessing Nordyke is like a blind man trying to read tea leaves in a dark storm. From the time it will take to the outcome and just what they will actually rule on (sensitive places or protected commerce?)...it's a mess.

I think the only thing we can be assured of, given the history of the case, is that Nordyke will probably open as many questions as not.

But then I am sounding like the blind man, aren't I?

jnojr
01-24-2011, 9:47 AM
Another Chester point: Gura is suing MD over 'good and substantial cause' just as he is elsewhere. MD is in the Fourth. Gura sent notice to the MD District Court pointing out this case.

The MD case has been delayed by games played by the MD AG for the past several months. But right before the holidays, the district court finally shut them down. MD must now reply to the merits of the complaint. Until now MD has made zero 2A arguments. Really. The closest they got was a footnote that mentioned 2A.

Our AG made a call to delay as long as possible. He is out of his league and maybe was hoping for help by way of other states and their cases?

Either way, it backfired on him. His first brief on 2A is due soon and now he has to deal with Chester, law of the land in his circuit. Chester does not end the argument by any stretch, but it is absolutely good for us. And ignoring it would be tantamount to conceding the case to our side.

Who knows? Maybe MD will be the first decision to fall. Before Chester I would have handicapped our own Woollard case at less than 50% at the district level. Now? It is looking better, indeed.

Wow, I'd love to get reciprocity with MD! :D

Patrick-2
01-24-2011, 10:07 AM
Wow, I'd love to get reciprocity with MD! :D

It won't come from the MD state house. There is an active bill (HB 9) in the MD GA that has a hearing tomorrow to extend reciprocity to WV, VA and PA, but it has the proverbial snowball's chance in hell of passing.

Look to the Thune Amendment supposedly coming from the US Senate this session. That would let you carry in MD with your VA resident permit, just fine. But it does nothing for those of us in the lessor states. Which is a good thing, in an odd way (commented on that elsewhere).

Window_Seat
01-24-2011, 10:14 AM
Looks like no Nordyke decision today. It's overdue, is it not?

angi1vwUkQc

Patrick-2
01-24-2011, 11:39 AM
Looks like no Nordyke decision today. It's overdue, is it not?


The bottom of my tea glass says "the perfectibility of the human spirit comes not from education, but from experience."

Maybe I asked the wrong question.

Switching to the Magic Eight Ball: "Nope."

Seriously. What did you expect? ;)