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Gray Peterson
01-21-2011, 8:11 PM
I wanted until the latest replies have been filed by our team. Notables:

Reply to CO AG's Response to plaintiff MSJ Filed 1/12/2011 (http://ia700202.us.archive.org/18/items/gov.uscourts.cod.117112/gov.uscourts.cod.117112.39.0.pdf)

Suthers’ own advocacy in McDonald belies this argument. In an amicus curiae brief that Suthers filed in the Supreme Court in the McDonald case, Suthers argued:

Accordingly, the States have an interest in ensuring that citizens who must travel in the course of their personal or professional lives remain free from unconstitutional arrest and prosecution for engaging in their right to self-defense by carrying properly-licensed weapons. If local governments may completely ban possession of handguns – the most popular weapon chosen by Americans for self-defense –citizens of all the States may find that they are unable to travel to certain jurisdictions unless they are willing to forego their Second Amendment rights.

Brief of States Amicus Curiae, p. 2 (filed contemporaneously with this Reply for the Court’s convenience).

Either Suthers was disingenuous to the Supreme Court when he made that argument, or he is being disingenuous to this Court now, for he certainly is satisfied now that it is permissible for Denver and Colorado to require Plaintiff to leave his Second Amendment rights in Washington when Plaintiff travels to Colorado.


Source of the brief:

Amicus Curiae of 38 States, Including Colorado (http://ia700202.us.archive.org/18/items/gov.uscourts.cod.117112/gov.uscourts.cod.117112.39.1.pdf)

More Chester goodness:


A recent Fourth Circuit decision helps explain why Suthers’ proposed standard of review is inappropriate. First, the Fourth Circuit joined other circuits in ruling that Second Amendment cases should be reviewed analogously to First Amendment cases. United States v. Chester, 2010 U.S. App. LEXIS 26508, 24, No. 09-4084 (4th Cir. December 30, 2010) (“[W]e agree with those who
advocate looking to the First Amendment as a guide in developing a standard of review for the Second Amendment”), citing cases from the Third and Seventh Circuits. Second, the Chester court determined that “severe burdens” on the Second Amendment right should be subject to strict scrutiny, and that lesser burdens should be subject to intermediate scrutiny. Id. at 26. Because Plaintiff in the instant case has been completely disarmed in Denver, his Second Amendment rights have been eradicated and strict scrutiny must therefore apply.
Even assuming arguendo that an intermediate scrutiny should be applied, the form of intermediate scrutiny that would apply is very different from what Suthers urges. The Chester court explained that intermediate scrutiny in Second Amendment cases means there must be “a reasonable fit between the challenged regulation and a substantial government objective.” Id. at 27. Defendant LaCabe’s actions and the Colorado law cannot pass that test, as explained below in Part I

more...

Third, Suthers overlooks the fact that Colorado provides reciprocity to CHL holders of over half the states.
Nothing in Colorado’s reciprocity provisions restrict reciprocity to states that
perform or consider any kind of “local” databases or municipal court violations. Colorado law, in fact, is indifferent to the existence, use, or accuracy of the databases or other sources of information used by reciprocal states in the conduct of background checks for the other states’ issuance of their own CHLs. Thus, Suthers’ asserted governmental interest in protecting the public by allowing the carrying of firearms only by people known by Colorado to be law abiding is fallacious. The majority of people Colorado allows to carry firearms (the CHL holders of the many states listed in FN 2) are strangers to Colorado. Suthers simply cannot with a straight face represent to this Court that the availability of local information is so vital to the safety of the people of Colorado that Colorado law allows people from over half the states in the Union to carry firearms without regard to
the availability of local information for those people.

Response to CO AG MSJ (http://ia700202.us.archive.org/18/items/gov.uscourts.cod.117112/gov.uscourts.cod.117112.40.0.pdf)

He also notes that in an 8-year period, Colorado processed 109, 127 CHP applications. Suthers stops short, then, of connecting the dots by calculating that 10% of 109,000 is 10,900, and that 10,900 applications spread over an 8-year period would be less than 1,400. That is, using Suthers’ own statistics, the entire state of Colorado would only expect just over 1,000 non-resident CHL applications if Colorado were to receive them. This is hardly the “flood” that Suthers’ direly predicts.
Moreover, Suthers provides no legal support for his argument that constitutional rights can be reduced to a statistical analysis. The Supreme Court ruled in Doe v. Bolton, 410 U.S. 179, 200 (1973) that Georgia may not limit the availability of abortions to Georgia residents only. This ruling was not qualified with “unless a lot of non-residents come to Georgia and use of Georgia’s abortion providing resources.” The rights guaranteed to the people in the Constitution are not subject to deprivation by the states on a state’s theory that it is easier, cheaper, or more expedient to trample the rights of the people than to respect those rights. If the Constitution limits a state’s power, the power is so limited. Period. Even if there were a “flood” of non-resident CHL applications, therefore, that only would be an indication that a “flood” of non-residents desire to exercise their Constitutional rights to bear arms in Denver and Colorado. Whether one thousand or one million citizens desire to exercise their rights is not determinative of, nor relevant to, whether the government has the power to usurp those rights.

Citing of 10th Circuit Precedent:

Suthers overlooks, however, that a fundamental right is implicated and that strict scrutiny must be applied. Vasquez v. Cooper, 862 F.2d 250, 252 (10th Cir. 1988), citing Kadrmas v. Dickinson Public Schools, 487 U.S. 450 (1988)) (“A state practice will not require strict judicial scrutiny unless it interferes with a ‘fundamental right’”)

More Chester goodness:

The court also indicated that a law-abiding citizen’s right to bear arms cannot be severely curtailed without being subject to strict scrutiny, while a person convicted of violent crimes may be subject to stiffer restrictions if the restrictions pass intermediate scrutiny. Id. ("Although Chester asserts his right to possess a firearm in his home for the purpose of self-defense, we believe his claim is not within the core right identified in Heller—the right of a law-abiding, responsible citizen to possess and carry a weapon for self-defense—by virtue of Chester’s criminal history as a domestic violence misdemeanant.") Conversely, a law-abiding citizen’s interest in bearing arms is within the core right identified in Heller. Because there is nothing in the record indicating anything other than that Plaintiff is a law-abiding citizen, the severe restrictions on his right to keep and bear arms to which Defendant and the State of Colorado have subjected him must be subject to strict scrutiny.

Suthers backdoor attack on Denver:

Suthers is trying, in effect, to engage in a back door attack of Denver’s ban on open carry of firearms. While he is free to commence his own action against Denver if he chooses to do so, this case is not the proper vehicle for his attack. It is notper se unconstitutional for Denver to have such a ban, because citizens still have an adequate alternative for exercising the right to bear arms: they may obtain a CHL and bear them concealed. It is Defendant’s (and Colorado’s) refusal to allow Plaintiff to obtain a CHL that is unconstitutional. Because Plaintiff must obtain a CHL in order to bear arms in Denver, Defendant violates Plaintiff’s right to bear arms when he refuses to issue a CHL to Plaintiff solely on account of Plaintiff’s non-residency.

Consider, by way of example, if Colorado centralized the processing of CHL applications and assigned one part-time person to the task of processing them. Suppose it took, on average, five years to process an application. In the meantime, the CHL applicant could not carry a firearm in Denver. Would the limitations Colorado has imposed on its own system make the unreasonably long wait times constitutional? Of course not. If Colorado is going to impose a regulatory scheme that burdens citizens’ Second Amendment rights, it must do so in a manner that comports with the Second Amendment, and a flawed or bureaucratically-limited scheme cannot save itself from its own unconstitutionality.

It is wholly immaterial what the sheriff of a different county thinks about the value of local information. Defendant did not raise the issue of local information in his own response to Plaintiff’s Motion, nor in his own motion, nor in Suthers’ instant Motion. If Suthers was not able to obtain such evidence from Defendant in Suthers’ own collateral defense of Defendant’s denial of Plaintiff’s CHL application, one cannot help but conclude that no such evidence exists and that the lack of local information played no role in Defendant’s denial. For this and other reasons stated in this Response, Suthers’ Motion should be denied.

This is why I love John Monroe's work on this. :thumbsup:

N6ATF
01-21-2011, 9:30 PM
:King:

Purple K
01-21-2011, 9:37 PM
Suthers = between a rock and a hard spot!

Window_Seat
01-21-2011, 9:50 PM
And this part is something that I strongly feel could go a very long way in any future effort to further 2A for truckers, as well as anyone who is traveling in the course of any type of employment in Interstate Commerce:

Accordingly, the States have an interest in ensuring that citizens who must travel in the course of their personal or professional lives remain free from unconstitutional arrest and prosecution for engaging in their right to self-defense by carrying properly-licensed weapons

Good stuff! :thumbsup:

Erik.

nobody_special
01-21-2011, 9:57 PM
Beautiful.

dantodd
01-21-2011, 9:57 PM
Damn. Nothing like the convenient double standard. Unless of course there's a lawyer with a good memory to remind the gander that what's good for goose is good for him as well.

Gray Peterson
01-21-2011, 10:07 PM
Damn. Nothing like the convenient double standard. Unless of course there's a lawyer with a good memory to remind the gander that what's good for goose is good for him as well.

The double standard balloon is easily popped....

That being said, I am now less afraid A) of losing and B) even if we lose, we'll take it onward and upwards to the 10th and if necessary, go to SCOTUS (preferably on a GVR from a Gura carry case).

Crom
01-21-2011, 10:22 PM
It looks good. I am pleased to see these new filings. :) I think 2011 is going to be a good year for us in the courts.

Connor P Price
01-21-2011, 10:42 PM
:lurk5:

Things are getting good.

Gray Peterson
01-22-2011, 1:09 PM
And this part is something that I strongly feel could go a very long way in any future effort to further 2A for truckers, as well as anyone who is traveling in the course of any type of employment in Interstate Commerce:



Good stuff! :thumbsup:

Erik.

Gotta love the fact that I essentially hoisted Suthers on his own petard.

Drivedabizness
01-22-2011, 2:54 PM
Go get'em Gray!!!

Knuckle Dragger
01-22-2011, 3:03 PM
Either Suthers was disingenuous to the Supreme Court when he made that argument, or he is being disingenuous to this Court now, ...

Don't we have a term for that???????

Can you say collateral estoppel?