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View Full Version : 4th Circuit United States v. Masciandaro, guns in cars in National Parks


Librarian
03-25-2011, 12:36 PM
Opinion (http://pacer.ca4.uscourts.gov/opinion.pdf/094839.P.pdf)

Discussed at Volokh (http://volokh.com/2011/03/25/fourth-circuit-upholds-ban-on-loaded-gun-possession-in-cars-in-national-park/) and Dave Hardy (http://armsandthelaw.com/archives/2011/03/decision_uphold.php).

From Volokh: The panel in United States v. Masciandaro split 2–1 in favor of not deciding outright whether the Second Amendment applies outside the home, and unanimously decided not to decide whether national parks fall within the “sensitive places” exception ...
Also, according to Volokh, used intermediate scrutiny.

Zomgie
03-25-2011, 12:38 PM
unanimously decided not to decide

That shouldn't be allowed

paul0660
03-25-2011, 12:40 PM
Lay folks speak please?

Gray Peterson
03-25-2011, 12:42 PM
Lay folks speak please?

Reading it now. Watch this post for update.

navyinrwanda
03-25-2011, 12:46 PM
Josh Blackman comments here (http://joshblackman.com/blog/?p=6422).

This is yet another important Second Amendment appeals court opinion brought to us courtesy of the Federal Public Defender's Office...

wildhawker
03-25-2011, 12:48 PM
Josh Blackman (http://joshblackman.com/blog/?page_id=2294) discusses here (http://joshblackman.com/blog/?p=6421) and here (http://joshblackman.com/blog/?p=6422).

In case anyone is unfamiliar, Josh is a libertarian constitutional law scholar who often works with Ilya Somin (and has with Alan Gura); his blog (http://joshblackman.com) and tweets (http://twitter.com/#!/joshbtweets) are definitely a must-read.

ETA: Agree with navyinrwanda, though appelant Masciandaro is a bit more sympathetic than others. I am amused at the continued daring of USSC. From Josh's blog:

Here is a chunk from Wilkinson’s seriatim opinion:

On the question of Heller’s applica- bility outside the home environment, we think it prudent to await direction from the Court itself. See Williams v. State, 10 A.3d 1167, 1177 (Md. 2011) (“If the Supreme Court, in [McDonald’s] dicta, meant its holding to extend beyond home possession, it will need to say so more plainly.”); see also Sims v. United States, 963 A.2d 147, 150 (D.C. 2008).

Librarian
03-25-2011, 12:53 PM
Through Blackman, Judge Wilkinson: On the question of Heller’s applica- bility outside the home environment, we think it prudent to await direction from the Court itself. See Williams v. State, 10 A.3d 1167, 1177 (Md. 2011) (“If the Supreme Court, in [McDonald’s] dicta, meant its holding to extend beyond home possession, it will need to say so more plainly.”); see also Sims v. United States, 963 A.2d 147, 150 (D.C. 2008).

There may or may not be a Second Amendment right in some places beyond the home, but we have no idea what those places are, what the criteria for selecting them should be, what sliding scales of scrutiny might apply to them, or any one of a number of other questions. It is not clear in what places public authorities may ban firearms altogether without shouldering the burdens of litigation. The notion that “self-defense has to take place wherever [a] person happens to be,” Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a
Research Agenda, 56 UCLA L. Rev. 1443, 1515 (2009), appears to us to portend all sorts of litigation over schools, airports, parks, public thoroughfares, and various additional government facilities. And even that may not address the place of any right in a private facility where a public officer effects an arrest. The whole matter strikes us as a vast terra incognita that courts should enter only upon necessity and only then by small degree.

There is no such necessity here. We have no reason to expound on where the Heller right may or may not apply out- side the home because, as Judge Niemeyer ably explains, intermediate scrutiny of any burden on the alleged right would plainly lead the court to uphold the National Park Ser- vice regulation.They punt.

Volokh (http://volokh.com/2011/03/25/the-second-amendment-and-the-government-as-proprietor/) reminds us Second Amendment law is only in its very early stages of development

Gray Peterson
03-25-2011, 12:58 PM
They partly neutered Chester in this case.

bulgron
03-25-2011, 1:02 PM
It's clear that the lower courts utterly hate the 2A. We really need one or two more SCOTUS decisions that make it clear the right extends beyond the home, and that strict scrutiny is the correct standard.

bwiese
03-25-2011, 1:04 PM
Fail faster forward (or rather, upward).

paul0660
03-25-2011, 1:05 PM
so, the US Supreme Court has to look forward to an expansive decision, including itemized locations and circumstances for possession, carry, etc., because lower courts are not going to do anything?

putput
03-25-2011, 1:05 PM
So we have a person with an otherwise clean record with a possession charge free of other "color".

And, courts who claim they need guidance from the Supreme Court.

Is this the sort of thing that gets fast tracked?

bulgron
03-25-2011, 1:08 PM
Will the Supremes notice that the lower courts are dragging their feet, and so be willing to issue a more expansive ruling the next time we get a case there?

PatriotnMore
03-25-2011, 1:19 PM
I am less amazed, and more convinced that all branches of the Federal government are broken. Great stall tactic. How many gun cases are we awaiting decisions from lower courts now?

taperxz
03-25-2011, 1:22 PM
Page 28 blows me away! UOC in a car is OK, loaded is not because it doesn't give a chance for people to flee. He also basically admits that his opinion is that a loaded gun equals a possible felon.

J.D.Allen
03-25-2011, 1:22 PM
Let me translate this. (I am a professional translator. Don't try this at home)

What it really says is, "like other lower courts before us, we know that the 2nd amendment explicitly prohibits this type of gun control law, but since we don't like guns we will just stick our heads in the sand and wait until we can blame freedom on SCOTUS, instead of doing our job, so that we don't get dirty looks at parties full of our freedom hating friends."

Fracking Cowards :banghead:

Gray Peterson
03-25-2011, 1:23 PM
This thing is screaming for an en banc call....it appears that we have two judge draws, the Chester draw and the Masciandaro draw. Chester is pro-2A panel, whereas the Masciandaro panel is anti-2A or unwilling to go as far as Chester.

wildhawker
03-25-2011, 1:27 PM
Will the Supremes notice that the lower courts are dragging their feet, and so be willing to issue a more expansive ruling the next time we get a case there?

I think this case has a decent chance of a cert grant, or at least GVRed in light of another they take. That the circuits seem to be daring the USSC "to say [that the right extends beyond the home] more plainly" gives me some reason to be optimistic. There's something that tells me we'll see another concurring opinion from Thomas if not a unified scathing majority from Scalia or Alito.

ETA: Gray could very well be correct on this going en banc.

Maestro Pistolero
03-25-2011, 1:32 PM
It's clear that the lower courts utterly hate the 2A. We really need one or two more SCOTUS decisions that make it clear the right extends beyond the home, and that strict scrutiny is the correct standard.
Hear, hear. Those two overriding principles articulated by the high court will go a long way toward ending this ridiculous dance. I hope the next SCOTUS case accomplishes just that.

PatriotnMore
03-25-2011, 1:33 PM
I think this case has a decent chance of a cert grant, or at least GVRed in light of another they take. That the circuits seem to be daring the USSC "to say [that the right extends beyond the home] more plainly" gives me some reason to be optimistic. There's something that tells me we'll see another concurring opinion from Thomas if not a unified scathing majority from Scalia or Alito.

ETA: Gray could very well be correct on this going en banc.

Are you confident that the majority of the SC Justices will decide in favor? It's one thing to get a ruling for individual rights, the politics of guns outside the home may bring out the wicked in those who don't like the idea of guns outside the home.

Window_Seat
03-25-2011, 1:33 PM
Does this mean we have more of a clear split among the circuits, especially when Nordyke is decided?

Erik.

bulgron
03-25-2011, 1:37 PM
Does this mean we have more of a clear split among the circuits, especially if Nordyke is ever decided?

Erik.

Fixed it for you.

meaty-btz
03-25-2011, 1:38 PM
This kind of behavior by the courts is the only thing that gives me pause that our main arena of combat is the court system because: Justice Delayed is Justice Denied. That is exactly what they are doing. Kicking it "down the road" as far as they can. This is creating a huge "stackup" of cases waiting on SCOTUS to take up. Things that can and should have been solved reasonably in lower court. Instead of years, we have 5-10 years to accomplish something big.

Though in some ways the ANTI's are risking a huge loss every time they kick it up to SCOTUS because that means that a decision there is binding nation wide and not just in a single circuit. I think what they are banking on is court behavior like in Chicago where SCOUTS has rendered a decision but they are still resiting it at the lower courts. Its a game they can play, and its a game that is wrong.

Nick Justice
03-25-2011, 1:38 PM
It's clear that the lower courts utterly hate the 2A. We really need one or two more SCOTUS decisions that make it clear the right extends beyond the home, and that strict scrutiny is the correct standard.

True. The courts hate the 2nd Amd. And they are scared to death of ruling in favor of it. They don't want to be the center of media attention or the target of the controversy. They don't want to get overruled by SCOTUS either.

PatriotnMore
03-25-2011, 1:42 PM
This kind of behavior by the courts is the only thing that gives me pause that our main arena of combat is the court system because: Justice Delayed is Justice Denied. That is exactly what they are doing. Kicking it "down the road" as far as they can. This is creating a huge "stackup" of cases waiting on SCOTUS to take up. Things that can and should have been solved reasonably in lower court. Instead of years, we have 5-10 years to accomplish something big.

Though in some ways the ANTI's are risking a huge loss every time they kick it up to SCOTUS because that means that a decision there is binding nation wide and not just in a single circuit. I think what they are banking on is court behavior like in Chicago where SCOUTS has rendered a decision but they are still resiting it at the lower courts. Its a game they can play, and its a game that is wrong.


I agree, and all the more reason that the SC needs to be specific in its ruling, and less vague in its language. This could have been settled the first time around. The SC could have made these lower court punts impossible, yet the chose not to.
The vagueness of the Heller language was questioned at the time of the ruling. Wait until we get to common arms, they will have to make flow charts.

Crom
03-25-2011, 1:44 PM
Very interesting...

N6ATF
03-25-2011, 1:46 PM
True. The courts hate the 2nd Amd. And they are scared to death of ruling in favor of it. They don't want to be the center of media attention or the target of the controversy. They don't want to get overruled by SCOTUS either.

Then SCOTUS should say "petition all potential federal cases directly to us and skip the obstructionist lower court aholes, if your case involves guns and mere possession of them, any where, any time, any manner."

glockman19
03-25-2011, 1:58 PM
Amazing...What a cop-out decision.

I see nowhere that to keep and bear is limited to in the home.

"The right to keep and bear arms shall not be infringed"

I wish they would just define, "shall not be infringed" and be done with it.

From the Mirriam Webster Dictionary

Shall: verbal auxiliary
1archaic a : will have to : must b : will be able to : can
2a —used to express a command or exhortation <you shall go> b —used in laws, regulations, or directives to express what is mandatory <it shall be unlawful to carry firearms>
3a —used to express what is inevitable or seems likely to happen in the future <we shall have to be ready> <we shall see> b —used to express simple futurity <when shall we expect you>
4—used to express determination <they shall not pass>
intransitive verb
archaic : will go <he to England shall along with you — Shakespeare>

Not : (noun)a logical operator that produces a statement that is the inverse of an input statement.
(adverb) 1—used as a function word to make negative a group of words or a word
2—used as a function word to stand for the negative of a preceding group of words <is sometimes hard to see and sometimes not>

be: (verb) intransitive verb
1a : to equal in meaning : have the same connotation as : symbolize <God is love> <January is the first month> <let x be 10> b : to have identity with <the first person I met was my brother> c : to constitute the same class as d : to have a specified qualification or characterization <the leaves are green> e : to belong to the class of <the fish is a trout> —used regularly in senses 1a through 1e as the copula of simple predication
2a : to have an objective existence : have reality or actuality : live <I think, therefore I am> b : to have, maintain, or occupy a place, situation, or position <the book is on the table> c : to remain unmolested, undisturbed, or uninterrupted —used only in infinitive form <let him be> d : to take place : occur <the concert was last night> e : to come or go <has already been and gone> <has never been to the circus> f archaic : belong, befall
verbal auxiliary
1—used with the past participle of transitive verbs as a passive-voice auxiliary <the money was found> <the house is being built>
2—used as the auxiliary of the present participle in progressive tenses expressing continuous action <he is reading> <I have been sleeping>
3—used with the past participle of some intransitive verbs as an auxiliary forming archaic perfect tenses <Christ is risen from the dead — 1 Corinthians 15:20(Douay Version)>
4—used with the infinitive with to to express futurity, arrangement in advance, or obligation <I am to interview him today> <she was to become famous>

Infringed: (verb) transitive verb
1: to encroach upon in a way that violates law or the rights of another <infringe a patent>
2obsolete : defeat, frustrate
intransitive verb
: encroach —used with on or upon <infringe on our rights>
— in·fring·er noun
See infringe defined for English-language learners »
Examples of INFRINGE
They claim that his use of the name infringes their copyright.
Her rights must not be infringed.

Interesting note: they use the phrase <it shall be unlawful to carry firearms> as a definition when the Amendment says just the opposite :rolleyes:

PatriotnMore
03-25-2011, 2:15 PM
Amazing...What a cop-out decision.

I see nowhere that to keep and bear is limited to in the home.

"The right to keep and bear arms shall not be infringed"

I wish they would just define, "shall not be infringed" and be done with it.



Exactly, and why don't all these law suits force them to define it?

wildhawker
03-25-2011, 2:26 PM
Are you confident that the majority of the SC Justices will decide in favor? It's one thing to get a ruling for individual rights, the politics of guns outside the home may bring out the wicked in those who don't like the idea of guns outside the home.

I'm confident that the Court said (in Heller) that some manner of carry outside the home in some places is presumptively lawful and within the scope of 2A. Add that to the fundamental nature of the right as expressed in McDonald, and we see how some form of bear will be protected.

A few notable quotes from McDonald:

Our decision in Heller points unmistakably to the an-swer. Self-defense is a basic right, recognized by many legal systems from ancient times to the present day,15 and in Heller, we held that individual self-defense is “the central component” of the Second Amendment right. 554
U. S., at ___ (slip op., at 26); see also id., at ___ (slip op., at56) (stating that the “inherent right of self-defense has been central to the Second Amendment right”). Explain-ing that “the need for defense of self, family, and property is most acute” in the home, ibid., we found that this right applies to handguns because they are “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” id., at ___ (slip op., at 57) (someinternal quotation marks omitted); see also id., at ___ (slip op., at 56) (noting that handguns are “overwhelmingly chosen by American society for [the] lawful purpose” of self-defense); id., at ___ (slip op., at 57) (“[T]he American people have considered the handgun to be the quintessen-tial self-defense weapon”). Thus, we concluded, citizens must be permitted “to use [handguns] for the core lawful purpose of self-defense.” Id., at ___ (slip op., at 58) (emphasis added.)

Municipal respondents’ remaining arguments are at war with our central holding in Heller: that the Second Amendment protects a personal right to keep and beararms for lawful purposes, most notably for self-defensewithin the home. Municipal respondents, in effect, ask us to treat the right recognized in Heller as a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees that we have held to beincorporated into the Due Process Clause. (emphasis added.)

The right to keep and bear arms, however, is not the only constitutional right that has controversial public safety implications.

PatriotnMore
03-25-2011, 2:29 PM
I'm confident that the Court said (in Heller) that some manner of carry outside the home in some places is presumptively lawful and within the scope of 2A. Add that to the fundamental nature of the right as expressed in McDonald, and we see how some form of bear will be protected.

I am just playing the Devils advocate here, is there a good possibility that a ruling for outside the home will be so restrictive as to make the effect as no gun outside the home?

bulgron
03-25-2011, 2:39 PM
I am just playing the Devils advocate here, is there a good possibility that a ruling for outside the home will be so restrictive as to make the effect as no gun outside the home?

Anything's possible. After all, the anti-gun courts managed to take Miller, which really said "we don't know if a shotgun is useful for militia service" and twist is all the way around to "there is no individual right to arms" over the course of 70 years. Given that they have the talent for creeping decisions that little-by-little whittle away at gun rights, any wiggle room the Supremes give them will eventually turn into an outright gun ban. This is why we (and future generations) can never, ever take our eyes off what the courts are doing.

Maestro Pistolero
03-25-2011, 2:47 PM
I don't see how any fundamental right could be so restricted as to nullify the practical exercise of it.

Any restriction of a fundamental right must carry a compelling government interest and be as narrowly tailored as possible.

For years, the antis argued for the "collective right of the militia" interpretation. I suppose now they would have believe they were only referring to indoor militias in private homes.

navyinrwanda
03-25-2011, 2:57 PM
I think this case has a decent chance of a cert grant, or at least GVRed in light of another they take. That the circuits seem to be daring the USSC "to say [that the right extends beyond the home] more plainly" gives me some reason to be optimistic. There's something that tells me we'll see another concurring opinion from Thomas if not a unified scathing majority from Scalia or Alito.

ETA: Gray could very well be correct on this going en banc.

I sincerely hope that if petitioned, the Supreme Court does not grant cert on this case. En banc review, however, would be welcome.

There may not be another Second Amendment case on the Supreme Court's docket until the October 2012 term...

press1280
03-25-2011, 2:58 PM
Definitely a punt but some points: "Masciandaro also argues that he possessed a constitutional right to possess a loaded handgun for self-defense outside the home. I would agree that there is a plausible reading of Heller that the Second Amendment provides such a right, at least in
some form."

But yes, the lower courts need to get a message sent clearly by SCOTUS. There are probably many areas of the law not yet addressed by SCOTUS, yet I haven't seen the lower courts punt as much as with the 2A.
Does anyone have any idea how the 1st Amendment was received right after it was incorporated?

wildhawker
03-25-2011, 3:25 PM
I sincerely hope that if petitioned, the Supreme Court does not grant cert on this case. En banc review, however, would be welcome.

There may not be another Second Amendment case on the Supreme Court's docket until the October 2012 term...

Of course I prefer that a Gura civil case go first, but we may not have that luxury. If we don't, I'd prefer a clean crim case over US v. Crackhead, which I think we agree on.

lairdb
03-25-2011, 3:36 PM
I'm confident that the Court said (in Heller) that some manner of carry outside the home in some places is presumptively lawful and within the scope of 2A. Add that to the fundamental nature of the right as expressed in McDonald, and we see how some form of bear will be protected.

I am just playing the Devils advocate here, is there a good possibility that a ruling for outside the home will be so restrictive as to make the effect as no gun outside the home?

Admittedly I'm a little on the pessimistic side these days, but according to my crystal ball: eventually, months or years from now when the case actually gets there, SCOTUS will issue the narrowest possible actual ruling addressing the situation in dispute. (This is generally how appeals courts are supposed to speak, and mostly how SCOTUS does; also, anything broader won't muster 5 votes.) Any broader expansion will be in separate concurrences, which will promptly be dismissed as irrelevant dicta.

Decisions which have been held pending this decision, will be decided against us (slowly) and we will vow to appeal and slowly struggle our way upwards through the appeals process again (more years.) Meanwhile, legislators will enact new legislation tailored to avoid or marginalize whatever miniscule expansions the original decision made, further eroding carry rights (yearly and/or faster under "emergency" provisions.)

In short, the legislative OODA loop is tighter than the judicial one, and substantially tighter than the voter OODA loop (which is increasingly irrelevant anyway.)

This is the same pattern as in the 4th amendment arena; as public sentiment changed ('60s and '70s), the judiciary slowly improved matters ('80s and '90s). The legislators fought back with moderate success, but then public sentiment changed (2000s) and legislators moved aggressively to erode protections. Public sentiment is slowly changing on gun rights, in a relatively small part of the population, but we are at the beginning of a possible multi-decade swing that's pretty easy to derail and will take a decade or more to affect the most entrenched interests.

If we make notable progress in CA, it will be after no fewer than 3 SCOTUS decisions (and more likely 5 to 7) and it will take several years each for the cases to get there and to get decided and interpreted.

(This has been my grumpy message for the day.)

nicki
03-25-2011, 3:46 PM
One thing that caught my attention in both Heller and MacDonald is that they were written in such a way that I would expect lower courts to try to pull a fast one.

I believe that the rulings were deliberately written to give lower courts the opportunity to hang themselves so to speak.

My gut tells me that the next US Supreme court case will probably involve "carry" and/or "sensitive zones".

If it is a "carry case", I think the next case will be written by Justice Thomas and he will definitely tie carry laws to Jim Crow.

There is a sleeper case in South Dakota involving a resident alien who was denied a ccw permit for not being a citizen. I say sleeper because that is one that just may quietly be fast tracking while everyone else is stalling.

I expect that it will take numerous rulings from the US Supreme court to send a message to the lower courts to get it right.

The bright side is the US Supreme court rulings will get harsher and harsher.

The issue will be how long will it take for the lower courts to get it right. The Scotus will not put up with the lower courts ontinually going rogue because that jeopardizes the whole legal system.

Nicki

dfletcher
03-25-2011, 3:46 PM
In short, the court is saying since they don't know if Heller applies outside the home they can't say where it might be too sensitive to allow and can be properly prohibited - they don't want to create a restriction on a right that may not exist, correct?

wash
03-25-2011, 4:06 PM
En banc sounds nice but I hope they don't come out and say "we're waiting on Nordyke".

Apocalypsenerd
03-25-2011, 7:38 PM
You know, another thing that I find very troubling about this ruling is that the law changed. The guy is being prosecuted for a law that is no longer in effect.

I don't really care what the legal mumbo jumbo says about it, the law is not in effect.

Liberty1
03-25-2011, 7:42 PM
Was this poorly defended or is this a good stepping stone for a circuit split on the sensitive places doctrine?

Window_Seat
03-25-2011, 10:10 PM
Was this poorly defended or is this a good stepping stone for a circuit split on the sensitive places doctrine?

This is probably how I should have worded my last question. Hoping for an answer to this.

Either way... :popcorn: for sure.

Erik.

Liberty1
03-25-2011, 11:23 PM
The issue will be how long will it take for the lower courts to get it right. The Scotus will not put up with the lower courts ontinually going rogue because that jeopardizes the whole legal system.

Nicki

I wish they would hurry the Eff up. Scalia not getting any younger. The antis are more then ready to dance on his grave. I'm about ready to apply for a DC carry permit, get denied, and LOC...(I jest, I jest...but almost already...)

press1280
03-26-2011, 4:46 AM
One thing that caught my attention in both Heller and MacDonald is that they were written in such a way that I would expect lower courts to try to pull a fast one.

I believe that the rulings were deliberately written to give lower courts the opportunity to hang themselves so to speak.

My gut tells me that the next US Supreme court case will probably involve "carry" and/or "sensitive zones".

If it is a "carry case", I think the next case will be written by Justice Thomas and he will definitely tie carry laws to Jim Crow.

There is a sleeper case in South Dakota involving a resident alien who was denied a ccw permit for not being a citizen. I say sleeper because that is one that just may quietly be fast tracking while everyone else is stalling.

I expect that it will take numerous rulings from the US Supreme court to send a message to the lower courts to get it right.

The bright side is the US Supreme court rulings will get harsher and harsher.

The issue will be how long will it take for the lower courts to get it right. The Scotus will not put up with the lower courts ontinually going rogue because that jeopardizes the whole legal system.

Nicki

The SD case has already been decided and found that a CCW can't be denied to someone simply because they aren't a US citizen. It was more focused on the Equal protection aspect than a RKBA aspect.

press1280
03-26-2011, 5:09 AM
"Sometimes saying a little less, rather than a little more, is
a nice way to discharge our primary responsibility to the parties
before us of deciding their case. At other times, of course,
the need for clarity and guidance in future cases is paramount,
but in this instance we believe the most respectful course is
to await that guidance from the nation’s highest court."

Maybe for future 2A cases, the plaintiffs should simply appeal straight to SCOTUS and skip the appeals court if this is going to be their attitude. There's really no point going through the appeals court.

Questions: In the case of Wollard v. Sheridan(MD CCW case), if we lose in the District court, can we then appeal straight to SCOTUS because this 4th Circuit decision will just punt AND any chance SCOTUS takes the case or does a GVR or something similiar and tells the 4th Circuit to do their job and conduct a thorough 2A analysis of issues "outside the home"?

ALSystems
03-26-2011, 7:06 AM
I expect that it will take numerous rulings from the US Supreme court to send a message to the lower courts to get it right.

The bright side is the US Supreme court rulings will get harsher and harsher.

The issue will be how long will it take for the lower courts to get it right. The Scotus will not put up with the lower courts ontinually going rogue because that jeopardizes the whole legal system.

Nicki
You're probably right.

The lower counts, it seems, will continue to punt until forced by a decision of the Supreme Court. :(

The antis are stalling hoping the composition of the Supreme Court will change more to their liking before basic stuff on the 2nd Amendment gets decided by the Supreme Court.

I don't know how long a pro 2nd Amendment Supreme Court can last. That depends on which President selects them. That better be anyone but Obama if you care about the 2nd Amendment.

krucam
03-27-2011, 2:18 PM
For those of you with a clear vision of the battle than I, would this case have potential for applying for cert?? Honest question. They have 14 days to Petition for en banc, 90 days to Petition for Certiorari.

The panel in this one clearly punted, saying (challenging) the Supreme Court that if you don't mean "in the home", then you ought to say so....

Here's to hoping for an en banc, which will give us Chief Judge Traxler (writer of the 4th's Chester opinion), but would it be "the case" to ask "the question" to the Supreme Court on what the meant with "most notably"/"most acute" in the home?

It is literally knocking on the door of SCOTUS, and would be poised to settle the pesky "in the home" nuance, even moreso than Nordyke.

bulgron
03-27-2011, 4:30 PM
Here's to hoping for an en banc,

Why are people hoping for en banc? Wouldn't it be better just to go straight to SCOTUS and get this thing over with?

Maestro Pistolero
03-27-2011, 4:37 PM
Why are people hoping for en banc? Wouldn't it be better just to go straight to SCOTUS and get this thing over with?

Hear, hear!

hoffmang
03-27-2011, 5:26 PM
This case could go for cert very shortly. It was competently defended by the Federal Public Defenders. It's pretty clear that many lower court judges are contemptuous of Heller/McDonald and that probably is good for us over the long run (but sucks in the short run.)

-Gene

press1280
03-27-2011, 5:36 PM
Why are people hoping for en banc? Wouldn't it be better just to go straight to SCOTUS and get this thing over with?

Yes, take it to SCOTUS, but I'd like it if the SAF got involved. Getting SCOTUS to, at a minimum, at least say the 2A applies outside the home would knock the wind out of the anti-judges and the states defending their may-issue systems. The lower courts couldn't then pass the buck as it seems all of them are doing now.
The en banc would at least be a chance for the 4th to clean up this wimpy decision and if things go well, send a very persuasive precedent to the rest of the country. The decision was narrow, with 1 judge wanting to answer the question of whether the 2A applies outside the home.

Maestro Pistolero
03-27-2011, 5:50 PM
It's funny how carry outside the home is such an elephant in the living room that no-one in the lower courts want to address. Everybody knows it applies outside the home. What could their position be, that the 2A was ratified for INDOOR militias?

hoffmang
03-27-2011, 10:22 PM
What could their position be, that the 2A was ratified for INDOOR militias?

Concord and Lexington were in the home! :rolleyes:

-Gene