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hoffmang
07-25-2011, 7:24 PM
Mr. Masciandaro runs a mobile reptile display business around Northern Virginia. One night he fell asleep in his car in a National Park that's more like a strip mall near Alexandria VA. A Federal park ranger woke him up - one thing lead to another and the park ranger found he had a loaded handgun in a backpack in his trunk. This was only a couple of months before the ban on loaded firearms in National Parks was repealed.

Today, SAF and Alan Gura filed this amicus brief (http://www.hoffmang.com/firearms/masciandaro/SAF-Cert-Amicus-2011-07-25.pdf) in support of a SCOTUS cert grant in Masciandaro v. US.

Some folks we all know and "love" are addressed making it well worth the read.

-Gene

wildhawker
07-25-2011, 7:27 PM
There's just so much win here, it's not funny.

-Brandon

ETA: That said, if you didn't laugh out loud at least 3 times when reading this, please make sure you do, in fact, have a sense of humor.

safewaysecurity
07-25-2011, 7:29 PM
Read half of it an hour ago. Will read the other half when I get home. AG briefs are always a smooth read.

SoCal Bob
07-25-2011, 8:05 PM
I'm having trouble thinking of any pending high profile cases he didn't mention, he even gave a shout out to Embody. No wonder Embody doesn't like him. :rolleyes:

otteray
07-25-2011, 8:09 PM
Gene's reference to the "loved" one becomes crystal clear!
Right on, right on.

amicus strongly believes that the
greatest threats to the Second Amendment’s vitality
continue to be poorly-considered, often extremist
positions litigated by people who should know better.

sholling
07-25-2011, 8:12 PM
Reading Gura's briefs is such a pleasure. The man is a genius.

AEC1
07-25-2011, 9:37 PM
Me likes reading posts by Gene. Now if he would only update his magazine efforts I would have a party!!!

OleCuss
07-25-2011, 10:22 PM
For anyone who did not read the amicus linked in the OP - I highly recommend it.

Well written and there is genuine cause for amusement/laughter hidden within for CGNers.

Rossi357
07-25-2011, 10:29 PM
Gene's reference to the "loved" one becomes crystal clear!
Right on, right on.

amicus strongly believes that the
greatest threats to the Second Amendment’s vitality
continue to be poorly-considered, often extremist
positions litigated by people who should know better.

I hope the "loved" one is confortable taking a nap under the bus.

stix213
07-25-2011, 10:44 PM
I laughed a lot reading it. I loved how the entire first part he appears to talk like he is the buddy of SCOTUS pointing out how the lower court is full of trouble makers who don't listen.

The Embody part was priceless too, especially since we just had his latest thread discussing that very case on the forum (before he was banned).

Purple K
07-25-2011, 10:51 PM
I laughed a lot reading it. I loved how the entire first part he appears to talk like he is the buddy of SCOTUS pointing out how the lower court is full of trouble makers who don't listen.

The Embody part was priceless too, especially since we just had his latest thread discussing that very case on the forum (before he was banned).

Ditto

quick draw mcgraw
07-25-2011, 10:53 PM
Full of WIN and AWESOMNESS!!!

Gura is a cunning linguist indeed. :p

note: Mr. Embody, if you are watching and listening, please sit down and STFU!! Pre-school is over, it's time for the adults to handle this now!!

Mstrty
07-25-2011, 11:11 PM
In the post-Heller environment, amicus strongly believes that the greatest threats to the Second Amendment’s vitality continue to be poorly-considered, often extremist positions litigated by people who should know better.

Hmm. This sounds like it is directed at a certain somebody's:rolleyes:

Dreaded Claymore
07-25-2011, 11:39 PM
I laughed a lot reading it. I loved how the entire first part he appears to talk like he is the buddy of SCOTUS pointing out how the lower court is full of trouble makers who don't listen.

Gura: "Punks be disrespectin' you, SCOTUS! Gotta keep the pimp hand strong!"

2009_gunner
07-25-2011, 11:55 PM
Great reading. I was hoping for a mention of the quote in my sig :D

Dreaded Claymore
07-26-2011, 12:02 AM
Great reading. I was hoping for a mention of the quote in my sig :D

I was thinking of that one the whole time I was reading the brief, waiting for Gura to mention it.

htjyang
07-26-2011, 1:14 AM
Some of my thoughts after reading the brief:

1. I love the way Gura turned the lower court's invocation of caution to serve a gun control agenda against them:

Nonetheless, the lower court believed it could sidestep the core Second Amendment question because it assumed that, at least on balance if not absolutely, the Second Amendment harms society: “This is serious business. We do not wish to be even minutely responsible for some unspeakably tragic act of mayhem because in the peace of our judicial chambers we miscalculated as to Second Amendment rights.” Pet. App. 17a.

The theory is correct, if misapplied. No court should wish to feel responsible for a violent crime that could have been averted or disrupted had the court not “miscalculated as to Second Amendment rights” and left the victim without arms for her defense.

2. Gura is right to address Judge Wilkinson's view. Since only the center-right justices are interested in upholding the 2nd Amendment, the greatest threat to the development of 2nd Amendment jurisprudence comes from those conservative jurists who advocate greater caution in its development. Their arguments can be divided into the following categories:

a) States' rights: States should be given maximum discretion to exercise its authority. This theory is fine for states like Texas but disastrous for California.
b) Majoritarianism: The will of the people, as expressed through their elected representatives, should be respected.
c) Judicial restraint: The judiciary has a limited mandate, being the least democratic branch.
d) Prudence: The Supreme Court should give time for lower courts and legislatures to respond to Heller-McDonald before acting again.

One should not underestimate how important these arguments are to conservative jurists. Personally, I was inclined to support a period of inactivity for the Supreme Court on this issue (say, 5-10 years). It was only after realizing the extent of obstructionism from localities like Chicago and DC and lower courts like the 9th Circus that forced me to change my mind. It is very important for Gura to emphasize their obstructionism as well.

3. I wish Gura would invoke Judge Tymkovich's view (US v. McCane) on Supreme Court dicta but apply it to Heller's sections on carry:

But Supreme Court dicta binds us "almost as firmly as . . . the Court's outright holdings." Surefoot LC v. Sure Foot Corp., 531 F.3d 1236, 1243 (10th Cir. 2008) (quoting Gaylor v. United States, 74 F.3d 214, 217 (10th Cir. 1996)). This is particularly so where, as here, the dictum is recent and not enfeebled by later statements. See id.; see also Carlton F.W. Larson, Four Exceptions in Search of a Theory: District of Columbia v. Heller and Judicial Ipse Dixit, 60 Hastings L.J. 1371, 1372 (2009) ("Although [Heller's] exceptions are arguably dicta, they are dicta of the strongest sort.").

4. I'm not sure it was wise to raise the point of unsympathetic plaintiffs. Raising it may simply remind the Heller-McDonald majority that people might abuse the 2nd Amendment. That might sway members of that majority to place greater restrictions on the 2nd Amendment.

G60
07-26-2011, 7:43 AM
Hmm. This sounds like it is directed at a certain somebody's:rolleyes:

Hmm, ya think? Didn't read the brief, or any other posts in this thread, did you?

putput
07-26-2011, 8:03 AM
Now’s he’s a historically documented “boob”.


I laughed a lot reading it. I loved how the entire first part he appears to talk like he is the buddy of SCOTUS pointing out how the lower court is full of trouble makers who don't listen.

The Embody part was priceless too, especially since we just had his latest thread discussing that very case on the forum (before he was banned).

andytothemax
07-26-2011, 8:45 AM
Mr. Masciandaro runs a mobile reptile display business around Northern Virginia. One night he fell asleep in his car in a National Park that's more like a strip mall near Alexandria VA. A Federal park ranger woke him up - one thing lead to another and the park ranger found he had a loaded handgun in a backpack in his trunk. This was only a couple of months before the ban on loaded firearms in National Parks was repealed.

Today, SAF and Alan Gura filed this amicus brief (http://www.hoffmang.com/firearms/masciandaro/SAF-Cert-Amicus-2011-07-25.pdf) in support of a SCOTUS cert grant in Masciandaro v. US.

Some folks we all know and "love" are addressed making it well worth the read.

-Gene

For the record, this is the first time my personal blog has been cited as a source in a brief to the Supreme Court of the United States! Hahahaa!

Untamed1972
07-26-2011, 8:48 AM
I love how smoothly and graciously Gura basically says: "Dear SCOTUS, the lower courts are being a bunch of poosies......would you kindly kick them in the nuts and get them in line?"

Sincerely: Alan "The Hammer" Gura :gura:

choprzrul
07-26-2011, 9:11 AM
Mr. Masciandaro runs a mobile reptile display business around Northern Virginia. One night he fell asleep in his car in a National Park that's more like a strip mall near Alexandria VA. A Federal park ranger woke him up - one thing lead to another and the park ranger found he had a loaded handgun in a backpack in his trunk. This was only a couple of months before the ban on loaded firearms in National Parks was repealed.

Today, SAF and Alan Gura filed this amicus brief (http://www.hoffmang.com/firearms/masciandaro/SAF-Cert-Amicus-2011-07-25.pdf) in support of a SCOTUS cert grant in Masciandaro v. US.

Some folks we all know and "love" are addressed making it well worth the read.

-Gene

Some real gems in that read. Kudos to CGF for having Gura mention ongoing cases in his brief. Sure would like to see USSC kick CA courts in the nootz and explicitly explain that otherwise not prohibited citizens SHALL NOT be prohibited from bearing arms outside of the home.


On a side note, I wonder how many consecutive wins it will take for Gura to become a USSC 'advisor'? Sooner or later you would think that the supremes will start asking Gura for advice :D

.

mofugly13
07-26-2011, 9:23 AM
I'll put $100 against any odds that one day Gura will be sitting on that bench....

yellowfin
07-26-2011, 9:36 AM
I'll put $100 against any odds that one day Gura will be sitting on that bench....We're going to need him to keep doing what he does for at least another 20 years first.

choprzrul
07-26-2011, 9:41 AM
We're going to need him to keep doing what he does for at least another 20 years first.

Why would he want to sit on the bench when he is so successful in telling them what to do?

.

Paladin
07-26-2011, 9:50 AM
Will cert for this case be decided during the "Long Conference" (last Monday in Sept, IIRC), when they also decide re cert for Williams?

If so, I'm very confident we'll have at least one of them decided this coming year and, most likely, a RKBA in public outside the home (Shall Issue?) around the country by next 4th of July!!!
:79: :jump: :patriot: :party: :cheers2: :mnl:

Californio
07-26-2011, 10:03 AM
Nice , the whole enchilada, hope they bite.

wash
07-26-2011, 10:36 AM
That was a really good read.

Thanks for posting it Gnee.

Untamed1972
07-26-2011, 10:41 AM
I think also by including references to so many other pending cases not only is he showing that so many courts are really dancing around a pretty clear issue, but also perhaps encouraging SCOTUS to broaden the language of their rulings and "dicta" to perhaps address contiguous issues in these other cases so they wont need to be run all the way up the flag pole, but instead easily remanded back to the lower courts for proper rulings with clearer guidelines.

BlindRacer
07-26-2011, 10:53 AM
I think also by including references to so many other pending cases not only is he showing that so many courts are really dancing around a pretty clear issue, but also perhaps encouraging SCOTUS to broaden the language of their rulings and "dicta" to perhaps address contiguous issues in these other cases so they wont need to be run all the way up the flag pole, but instead easily remanded back to the lower courts for proper rulings with clearer guidelines.

That's what I'm hoping. I don't know how broad SCOTUS will be, but hopefully enough to 'encourage' the lower courts to get their act together.

Great read, and excited to see if they grant cert. Thanks for the post.

Patrick-2
07-26-2011, 12:25 PM
Will cert for this case be decided during the "Long Conference" (last Monday in Sept, IIRC), when they also decide re cert for Williams?

If so, I'm very confident we'll have at least one of them decided this coming year and, most likely, a RKBA in public outside the home (Shall Issue?) around the country by next 4th of July!!!


Probably. Nothing says it is required they act at any time. But the criminal nature and the fact the issue is ripe in many courts suggests the question will come forward soon. Either case you mention would be a good fit. Both would be better.

Ruling would almost surely be the last day of the term, so basically the end of June 2012. Just in time for the 4th. Don't shoot your eye out.

socal2310
07-26-2011, 12:55 PM
I hope the "loved" one is confortable taking a nap under the bus.

No more deserving person has ever been thrown under one.

Ryan

Southwest Chuck
07-26-2011, 12:58 PM
That was a really good read.

Thanks for posting it Gnee.

:rofl: Stop it. You're killing me! :rofl2:

Paladin
07-26-2011, 1:42 PM
Probably. Nothing says it is required they act at any time. But the criminal nature and the fact the issue is ripe in many courts suggests the question will come forward soon. Either case you mention would be a good fit. Both would be better.

Ruling would almost surely be the last day of the term, so basically the end of June 2012. Just in time for the 4th. Don't shoot your eye out.
Let's run with this for a minute to flesh out a timeline.

SCOTUS decides to take a carry case this term.

What does that do to Peterson, Peruta, Richards, and the other carry cases in lower fed cts? My guess is that they all are put on pause pending SCOTUS' decision. So, that means no movement on those until after 29 June 2012.

Okay, we get a real, RKBA ruling (none of this "in your home" BS) on 29 June 2012. Then what? (1) Do we have to wait until those lower courts re-start their carry cases to make their own application of the new carry law in their own decisions? IOW, we will have to wait until fall 2012, winter or spring 2013 before we actually get Shall Issue in CA?

Or, (2) can we go for some sort of Preliminary Injunction to force CA to allow anyone (w/a valid Handgun Safety Certificate?) to carry, thus forcing Sacto politicos to scramble to pass a Shall Issue law?

mrrsquared79
07-26-2011, 1:50 PM
Now’s he’s a historically documented “boob”.

Who is Embody or what was his screen name?

Links? So that I can view this from all angles when talking about Mr Embody.

Glock22Fan
07-26-2011, 1:53 PM
Let's hope and pray that the makeup of the Supremes remains in our favor for at least another year.

Seems to me that that is the one thing that could screw us up.

Glock22Fan
07-26-2011, 1:55 PM
Who is Embody or what was his screen name?

Links? So that I can view this from all angles when talking about Mr Embody.

Kwikrnu

http://www.calguns.net/calgunforum/showthread.php?t=458448

mofugly13
07-26-2011, 1:56 PM
Who is Embody or what was his screen name?

Links? So that I can view this from all angles when talking about Mr Embody.

kwikrnu is his screen name, on this and many other sites.

2009_gunner
07-26-2011, 2:20 PM
Let's run with this for a minute to flesh out a timeline.

SCOTUS decides to take a carry case this term.

What does that do to Peterson, Peruta, Richards, and the other carry cases in lower fed cts? My guess is that they all are put on pause pending SCOTUS' decision. So, that means no movement on those until after 29 June 2012.

Okay, we get a real, RKBA ruling (none of this "in your home" BS) on 29 June 2012. Then what? (1) Do we have to wait until those lower courts re-start their carry cases to make their own application of the new carry law in their own decisions? IOW, we will have to wait until fall 2012, winter or spring 2013 before we actually get Shall Issue in CA?

Or, (2) can we go for some sort of Preliminary Injunction to force CA to allow anyone (w/a valid Handgun Safety Certificate?) to carry, thus forcing Sacto politicos to scramble to pass a Shall Issue law?

Hopefully (2). If SAF and NRA succeed in their PIs in Illinois, could we do the same... For this option to work, would it require the Illionois PIs to fail at the lowest level and win on appeal so we could dare the 9th into another circuit split?

With these recent SCOTUS filings, the anticipation is building.

radioman
07-26-2011, 3:08 PM
If the SCOTUS grant cert in this case it could be large, the SCOTUS could save them self's years of case work with this one case, and once and for all, make it clear that the Constitution is the law of the land, carry could become as common as driving, from coast to coast. No more could a lower court pass law on feeling, but rather on fact. State infringement would be a thing of the past, and as for open cases now in front of the lower courts, they could be rendered moot. A permit to carry could be nothing more then a right to buy, rights don't need permits. And maybe Ambody did some good after all, ( giving the courts some way to weed out nut jobs) in the RKAB debate. I know I am hoping for a lot, but if you shot for the moon you will hit something.

hoffmang
07-26-2011, 4:08 PM
Should a carry decision be released in late June of 2012, we would move to remand the cases to the district courts for entry of an order. It would be much faster than waiting for a full briefing. Realistically it could take 30-60 days after the decision for the formalities to complete. However, I expect most jurisdictions to start issuing before the formal injunctions are granted. Otherwise we'll be filing new preliminary injunctions against other counties.

-Gene

radioman
07-26-2011, 4:20 PM
Gene, could we see constitutional carry as the law of the land? Or am I reading to much into this case?

Psy Crow
07-26-2011, 4:37 PM
Who is Embody or what was his screen name?

Links? So that I can view this from all angles when talking about Mr Embody.
Kwikrnu

http://www.calguns.net/calgunforum/showthread.php?t=458448

Wow.

I'm thinking enemy action.

Gray Peterson
07-26-2011, 4:43 PM
Should a carry decision be released in late June of 2012, we would move to remand the cases to the district courts for entry of an order. It would be much faster than waiting for a full briefing. Realistically it could take 30-60 days after the decision for the formalities to complete. However, I expect most jurisdictions to start issuing before the formal injunctions are granted. Otherwise we'll be filing new preliminary injunctions against other counties.

-Gene

Just a clarification here:

The bolded would apply specifically to counties where's a discretionary issue is the problem (CA resident, NYS/NYC resident, MD, NJ, HI), and not specifically to places where state law prohibits something (CA non-resident, CO non-resident, IL). This would require a TRO or PLI to rule on the statute itself.

Paladin
07-26-2011, 4:49 PM
Should a carry decision be released in late June of 2012, we would move to remand the cases to the district courts for entry of an order. It would be much faster than waiting for a full briefing. Realistically it could take 30-60 days after the decision for the formalities to complete.I'm just trying to avoid any possible misunderstandings: is that 30-60 days after the SCOTUS carry decision?

So we're looking at Aug to Sept 2012 for judicially imposed Right-to-Carry to come to CA?

ETA:
However, I expect most jurisdictions to start issuing before the formal injunctions are granted. Otherwise we'll be filing new preliminary injunctions against other counties.So, from this, major changes, both voluntary and involuntary, will happen between 1 July and 1 Oct 2012!

Wow. I hope it comes true. That will be 2 1/2 years sooner than I had hoped back when I got involved with promoting Shall Issue in CA 5 1/2 yrs ago.

Paladin
07-26-2011, 5:13 PM
Just thinking about this makes by head spin: Shall Issue in Hawaii, CA (think SF Bay Area and LA), NY (think NYC), IL (think Chicago), Maryland (Baltimore), MA (Boston), NJ (think the entire state! LOL), Wash D.C. -- EVERYWHERE! ! ! Un-frickin' believable! No longer will it just be cops & thugs who are armed. The "flock of sheep" will now have some sheepdogs.

This will be a HUGE cultural change, perhaps the most important for our entire country ever re guns. Not many gunnies are into SBRs, suppressors, SMGs, and all that fun, but expensive stuff. Not many non-gunnies even care about EBRs. But the vast majority of gunnies I've met and even some CA non-gunnies would like to carry when they want or need to.

Pray that nothing happens causing a new opening on the Court and that we, at long last, get our 2nd A RKBA!

The countdown has begun: 11 months! (and a few days)

andytothemax
07-26-2011, 6:52 PM
Pray that nothing happens causing a new opening on the Court and that we, at long last, get our 2nd A RKBA!

You're damn right. Although I (gasp) am a left-leaning Centrist, I'm ultra-conservative when it comes to the Supreme Court. We don't need policy makers on the Court, we need originalists/strict constructionists to ensure that what the Framers intended actually manifests.

Let's be honest; the President will be re-elected in 2012. I like the President except for the issue of gun control and judicial appointments, which reflect a strong liberal bent. So in my humble opinion, the worst thing that could happen between now and 2016 is a vacancy in the Supreme Court. I certainly hope he does not appoint another Sonia Sotomayer or Elena Kagan.

Scalia and Kennedy had better not retire between now and 2016. Something tells me they may just want to hang on long enough to see this thing through. At that point they will both be 80 years old. God bless America.

jwkincal
07-26-2011, 6:59 PM
Let's be honest; the President will be re-elected in 2012. I like the President except for the issue of gun control and judicial appointments, which reflect a strong liberal bent. So in my humble opinion, the worst thing that could happen between now and 2016 is a vacancy in the Supreme Court. I certainly hope he does not appoint another Sonia Sotomayer or Elena Kagan.


If you are right about the election, I would estimate that your nightmares about the SCOTUS are nearly guaranteed to come to fruition...I hope we're both wrong, but I just don't see the pro-2A luck running on for that long.

I hope the forces of Good in this contest are planning to consolidate as much terrain as possible in the next two to three years just to have a hedge against the disaster scenario above...

andytothemax
07-26-2011, 7:29 PM
Wow you like the prez after Fast& Furious? OOOOO. K

Even this President would never authorize the active trafficking of illegally purchased weapons to Mexican cartels. AG Holder was responsible even if he didn't know about the operation. Here is a letter I recently wrote to the President:

July 27, 2011

Via U.S. Mail

President Barack Obama
The White House
1600 Pennsylvania Ave.
Washington, D.C. 20500


RE: Operation Fast and Furious

Subject: Nomination of Robert S. Mueller III to the position of Attorney General of the United States


Dear Mr. President,

Attorney General Eric Holder has exhibited a failure of leadership and a failure of supervision in the BATFE operation currently under investigation by the Congressional Oversight Committee led by Congressman Darrel Issa.

The actions of Attorney General Holder’s employees in allowing the active trafficking of illegally purchased firearms to Mexican drug cartels is utterly inexcusable. Attorney General Holder’s professional misconduct cannot be remedied except by his removal from office.

I respectfully nominate Director Robert S. Mueller III of the FBI to replace Attorney General Holder. As you noted in recent comments to the media, Director Mueller has had an exemplary record of service to this country in his current position, and as a former U.S. Attorney, Director Mueller is in a uniquely qualified position to lead the Department of Justice. In the alternative, I respectfully nominate Illinois Attorney General Lisa Madigan, with whom you formerly served as an Illinois State Senator.

It is my sincere hope that with a change in Attorneys General, the faith of the American people in the Department of Justice will be restored.

Sincerely,

andytothemax
07-26-2011, 7:30 PM
If you are right about the election, I would estimate that your nightmares about the SCOTUS are nearly guaranteed to come to fruition...I hope we're both wrong, but I just don't see the pro-2A luck running on for that long.

I hope the forces of Good in this contest are planning to consolidate as much terrain as possible in the next two to three years just to have a hedge against the disaster scenario above...

Best case, Republicans re-take the Senate in 2012 and block any liberal nominees. Worst case the Senate stays in Democratic control and Kennedy and Scalia retire. Oh ****. I hope either of us is wrong and something better happens. This string of good luck in 2A cases can't last forever.

andytothemax
07-26-2011, 7:45 PM
RIGHT, and Nixon knew nothing about the Watergate break in.:rolleyes:

Lol, Nixon just said he wasn't a crook ;)

I seriously doubt the President could have authorized this. Note the NRA is seeking only to fire Eric Holder (https://www.nra.org/fireholder/Background.aspx).

andytothemax
07-26-2011, 7:58 PM
You can smoke whatever you want. I don't buy it. NOTE how Obama mentioned how he was going after gun control "under the radar".

Have another hit andytothemax:D

With pleasure!


http://blog.andrewwatters.com/blog/cg/smoke.jpg

keneva
07-26-2011, 8:11 PM
There is no flippin way BHO didn't know about this. And it is even worse "IF" he didn't!

andytothemax
07-26-2011, 8:17 PM
There is no flippin way BHO didn't know about this. And it is even worse "IF" he didn't!

It's worse-- his own AG is incompetent; if the AG's own Deputy AG can keep things from the AG, the AG does not deserve the office. Again note the NRA is only out for Holder at this point.

jwkincal
07-26-2011, 8:25 PM
I suspect that the LOWEST this reaches is Holder... I imagine it is possible that he was waiting to tell the president, "hey, I have a way to fix that 90% remark you made!"

But the "under the radar" thing is awfully suspicious IMHO.

Even money says the prez knew. But we'll never be certain so it's really moot. Best result is no more Holder and enough stink surrounds Obama to prevent his re-election. Too soon to tell, though.

andytothemax
07-26-2011, 8:30 PM
Best result is no more Holder and enough stink surrounds Obama to prevent his re-election. Too soon to tell, though.

You're definitely right about that. What a P.R. disaster for the current administration this is. Can you imagine being told "um, your attorney general supervised the trafficking of 2,000 firearms to the Sinaloa cartel." Oh **** :eek:. The debt ceiling is important, but no one's going to die over it...

wash
07-26-2011, 9:21 PM
NRA is asking for Holder's head because asking for Obama at this time would seem too extreme.

At best Obama is glaringly incompetent for allowing something like this to happen and that will have to be their official story.

At worst Obama planned the whole thing which shows his planning capabilities are glaringly incompetent.

What I think is most likely is that Obama gave instructions for Holder to wag the dog in a way that would make gun control a political possibility. That way he could maintain deniability. Of course he endorsed the cover-up attempt and is at least as guilty as Nixon.

hoffmang
07-26-2011, 9:26 PM
There are plenty of other Fast&Furious/Gunwalker threads. Could we come back to Masciandaro please?

-Gene

mrrsquared79
07-27-2011, 12:50 AM
Wow.

I'm thinking enemy action.


No, just genuine curiosity as to who the knucklehead was/is and along with more of the facts surrounding the case which screwed us all...

Patrick-2
07-27-2011, 3:15 AM
McDonald demonstrated a decent pattern that any carry case would follow: cert granted; cases freeze; decision rendered; everyone resets and re-argues points using new law of land.

But Gene points out a way to get around all those tedious briefs. This is possible because McDonald actually had little practical day to day effect in nearly all of the USA. Even CA allowed guns in homes (with some notable exceptions). So McDonald was more supporting player on other arguments.

In this case, this is the argument. A direct decision on it from the court will allow some shortcuts. And some municipalities will move faster, if only to not foreclose new restrictions.

Leftover Issues that Hopefully Won't be Leftover...

Also, the court is likely to not completely answer place restrictions (the nice secondary rub to Masciandaro). Hopefully we'll get enough from them to classify many obvious locations right out of existence (parks, "school zones" that extend 1/4 mile from any school or church, etc).

If we get lucky, they answer places and some aspect of permits - specifically the Williams question regarding the validity of prosecutions for not having a permit the state refuses you to have. That one, more than the places question, would cause great effort to be expended on creating permissive shall-issue systems at light speed, because it would put into question any arrest/prosecution before "easy shall-issue" was put into place.

I don't care how they do it - combine cases or grant separate cert, but the two questions are critical one for our movement and I'd like to see them both answered. So far I have seen dueling briefs from each side saying, "No, I am The ONE."

How about, "Hey, I got a good question and so do the other guys. Let's assume you know what you said in Heller about carrying arms and move onto the issue at hand: permits|places?"

Just because Brady says the right does not extend outside the home does not mean we need to believe them.

Mulay El Raisuli
07-27-2011, 6:17 AM
McDonald demonstrated a decent pattern that any carry case would follow: cert granted; cases freeze; decision rendered; everyone resets and re-argues points using new law of land.

But Gene points out a way to get around all those tedious briefs. This is possible because McDonald actually had little practical day to day effect in nearly all of the USA. Even CA allowed guns in homes (with some notable exceptions). So McDonald was more supporting player on other arguments.

In this case, this is the argument. A direct decision on it from the court will allow some shortcuts. And some municipalities will move faster, if only to not foreclose new restrictions.

Leftover Issues that Hopefully Won't be Leftover...

Also, the court is likely to not completely answer place restrictions (the nice secondary rub to Masciandaro). Hopefully we'll get enough from them to classify many obvious locations right out of existence (parks, "school zones" that extend 1/4 mile from any school or church, etc).

If we get lucky, they answer places and some aspect of permits - specifically the Williams question regarding the validity of prosecutions for not having a permit the state refuses you to have. That one, more than the places question, would cause great effort to be expended on creating permissive shall-issue systems at light speed, because it would put into question any arrest/prosecution before "easy shall-issue" was put into place.

I don't care how they do it - combine cases or grant separate cert, but the two questions are critical one for our movement and I'd like to see them both answered. So far I have seen dueling briefs from each side saying, "No, I am The ONE."

How about, "Hey, I got a good question and so do the other guys. Let's assume you know what you said in Heller about carrying arms and move onto the issue at hand: permits|places?"

Just because Brady says the right does not extend outside the home does not mean we need to believe them.


Yes, Gura is indeed brilliant. Lets hope that he is the one to make this point.


The Raisuli

Mulay El Raisuli
07-27-2011, 6:18 AM
4. I'm not sure it was wise to raise the point of unsympathetic plaintiffs. Raising it may simply remind the Heller-McDonald majority that people might abuse the 2nd Amendment. That might sway members of that majority to place greater restrictions on the 2nd Amendment.


On the contrary, its time to remind the Heller-5 there are idiots out there & the need to foreclose their stupidity is NOW.


Gura: "Punks be disrespectin' you, SCOTUS! Gotta keep the pimp hand strong!"


And this would be the language to use. :)


Just thinking about this makes by head spin: Shall Issue in Hawaii, CA (think SF Bay Area and LA), NY (think NYC), IL (think Chicago), Maryland (Baltimore), MA (Boston), NJ (think the entire state! LOL), Wash D.C. -- EVERYWHERE! ! ! Un-frickin' believable! No longer will it just be cops & thugs who are armed. The "flock of sheep" will now have some sheepdogs.

This will be a HUGE cultural change, perhaps the most important for our entire country ever re guns. Not many gunnies are into SBRs, suppressors, SMGs, and all that fun, but expensive stuff. Not many non-gunnies even care about EBRs. But the vast majority of gunnies I've met and even some CA non-gunnies would like to carry when they want or need to.

Pray that nothing happens causing a new opening on the Court and that we, at long last, get our 2nd A RKBA!

The countdown has begun: 11 months! (and a few days)


And this is why I'm of the opinion that the FIRST order of business is & always should be "and bear."


The Raisuli

Paladin
07-27-2011, 6:59 AM
McDonald actually had little practical day to day effect in nearly all of the USA. Even CA allowed guns in homes (with some notable exceptions). So McDonald was more supporting player on other arguments.Heller/McDonald gave us a Constitutional basis upon which to challenge anti laws. Now come the challenges, where the rubber meets the road, and carry is, IMHO, the most important challenge (since the antis are claiming the 2nd is restricted to w/in the home).

I don't see SCOTUS ignoring both this case & Williams -- ignoring the 2nd A for another year -- since these cases deal w/a "fundamental right" that is being infringed upon by federal, state, and local gov'ts, and misinterpreted by federal & state lower courts throughout the USA.

Time for me to plan on getting a HSC, figure out what CC HGs and holsters to buy & when, clothes that work w/CCWing, when to have my CCW DOJ app ready to submit (probably 2 July 2012), what CCW course to take, etc.

Fewer than 12 months to Right-to-Carry! :D

Psy Crow
07-27-2011, 8:05 AM
Wow.

I'm thinking enemy action.

No, just genuine curiosity as to who the knucklehead was/is and along with more of the facts surrounding the case which screwed us all...

My bad, I was unclear.

I'm thinking the afore mentioned knucklehead engaged in willful enemy action against the 2A.
Though myopic fools can be remarkably destructive...

ptoguy2002
07-27-2011, 8:18 AM
When do we expect to hear that SCOTUS agrees to take this or the Williams case?

CCWFacts
07-27-2011, 12:34 PM
So we're looking at Aug to Sept 2012 for judicially imposed Right-to-Carry to come to CA?

I hope it comes true but there are so many things that can happen in the court system, so many unknowns. Look at how long Nordyke has been bouncing around, or how long some of the other cases have been stuck. I don't know much about court procedures except that there's always a surprise...

Calplinker
07-27-2011, 12:46 PM
I've read the entire amicus brief and all of the thread.

Good read, but I can't help but wonder why no one is discussing the big unanswered question that cuts to the core of the whole case?






What the heck is a "mobile reptile display business" ;)

Patrick-2
07-27-2011, 1:07 PM
When do we expect to hear that SCOTUS agrees to take this or the Williams case?

In the Fall, once SCOTUS returns from break. Aim for October-ish-ish.

wash
07-27-2011, 1:15 PM
What the heck is a "mobile reptile display business" ;)

I believe the whole incident was something like the following video except with snakes and lizards.

mQAMvmi1Zwk

socal2310
07-27-2011, 1:32 PM
We only need four justices to agree to grant cert. and we have four justices who are clearly sympathetic to the rkba and one honest anti - Kennedy. The idiot we all know and love may turn out to be an opportunity in disguise. He's enough of a threat to motivate the friendly four, but not so much of a nutcase that Kennedy is likely to be terribly concerned about precedent protecting him.


...I can't help but wonder why no one is discussing the big unanswered question that cuts to the core of the whole case?






What the heck is a "mobile reptile display business" ;)

I'm guessing something along the line of these guys: Reptile Family (http://www.reptilefamily.com/). We hired them for a birthday party for our son, I highly recommend them.

Ryan

press1280
07-27-2011, 1:33 PM
Should I assume by this action that SAF/Gura want Masciandaro over Williams since they didn't file an amicus in that case?

hoffmang
07-27-2011, 1:44 PM
What the heck is a "mobile reptile display business" ;)

Raging Reptiles (http://www.ragingreptiles.com/).

-Gene

jar
07-27-2011, 2:11 PM
Should I assume by this action that SAF/Gura want Masciandaro over Williams since they didn't file an amicus in that case?

Not necessarily. It may simply be that SAF/Gura think Williams' cert petition covers the relevant issues adequately while Masciandaro's does not. That sounds plausible since Williams' was written by Halbrook, who wrote the book on the 2nd, while Masciandaro's was written by a public defender and some primarily IP litigators (not that they're any slouches).

wildhawker
07-27-2011, 2:40 PM
Not necessarily. It may simply be that SAF/Gura think Williams' cert petition covers the relevant issues adequately while Masciandaro's does not. That sounds plausible since Williams' was written by Halbrook, who wrote the book on the 2nd, while Masciandaro's was written by a public defender and some primarily IP litigators (not that they're any slouches).

Actually, the inverse might be more accurate.

What 2A cases have NRA/Halbrook won, again?

quick draw mcgraw
07-27-2011, 4:53 PM
Raging Reptiles (http://www.ragingreptiles.com/).

-Gene

Raging Reptiles huh?

If I want a Blue Tongued Skink at my birthday party I'll just invite my ex! :p

wildhawker
07-27-2011, 4:57 PM
If I want a Blue Tongued Skink at my birthday party I'll just invite my ex! :p

:rofl2:

Serious sigline material.

zvardan
07-27-2011, 6:15 PM
From reading the amicus, it seems as though the opposition typically fails to provide any hard evidence, relying on opinion, conjecture and the one-off instance where someone went crazy. Something to the effect of, "if you let ordinary people carry guns, bad things will happen because we feel so".

Librarian
07-27-2011, 11:04 PM
Actually, the inverse might be more accurate.

What 2A cases have NRA/Halbrook won, again?

Weeeeellll, I think that's a little unfair to Halbrook - Parker/Heller was an excruciatingly well-planned, well-timed and well-argued case.

What the NRA chose to pursue in court is up for question.

Now, if Halbrook's arguments post-Heller don't prevail ...

wildhawker
07-27-2011, 11:08 PM
Weeeeellll, I think that's a little unfair to Halbrook - Parker/Heller was an excruciatingly well-planned, well-timed and well-argued case.

What the NRA chose to pursue in court is up for question.

Now, if Halbrook's arguments post-Heller don't prevail ...

It's not unfair. In fact, it's worse than that: ask yourself why Dearth had to go to up to Court of Appeals and come back down. (I know you know, but it's an important fact.)

If Heller II fails, it will be to the likely detriment of liberty.

-Brandon

hoffmang
07-27-2011, 11:49 PM
Weeeeellll, I think that's a little unfair to Halbrook - Parker/Heller was an excruciatingly well-planned, well-timed and well-argued case.

What the NRA chose to pursue in court is up for question.

Now, if Halbrook's arguments post-Heller don't prevail ...

Uhm.. Halbrook attempted to torpedo Parker/Heller w/ Seegars - the case that caused Parker to end up being Heller and that caused Dearth to have to be appealed on standing before it could even come back to district for the merits.

Actively opposing tends to tilt the balance to the folks who beat both Halbrook and DC (and the US Solicitor General...)

-Gene

Librarian
07-28-2011, 12:12 AM
Uhm.. Halbrook attempted to torpedo Parker/Heller w/ Seegars - the case that caused Parker to end up being Heller and that caused Dearth to have to be appealed on standing before it could even come back to district for the merits.

Actively opposing tends to tilt the balance to the folks who beat both Halbrook and DC (and the US Solicitor General...)

-Gene

I had remembered Seegars as an NRA thing, but had forgotten Halbrook's involvement. (Not that Halbrook works a lot for NRA, but that Halbrook was so much the lead here (www.gurapossessky.com/news/parker/documents/ReplytoHalbrook.pdf).) I plead distance from 2003...

Kharn
07-28-2011, 1:38 AM
Actually, the inverse might be more accurate.

What 2A cases have NRA/Halbrook won, again?Halbrook successfully argued Printz, Small, Thompson Center and Castillo at the SCOTUS. :p

wildhawker
07-28-2011, 1:49 AM
Halbrook successfully argued Printz, Small, Thompson Center and Castillo at the SCOTUS. :p

Emoticon noted, and I presume that indicates we both know none of those are 2A. ;)

-Brandon

ptoguy2002
07-28-2011, 3:32 AM
Parker, Seegars, Dearth...Halbrook torpedoing a case, and that comment about "detriment to liberty"
All this case interaction has got me a little confused...Maybe a simple recap for the dot-connecting challenged???

sighere
07-28-2011, 4:51 AM
The usual beautiful lawyer porn from Gura. Always a great read. He does a great job of illustrating to SCOTUS that they will need to step up and "re-explain" themselves pretty darn soon, so it might as well be now!

jar
07-28-2011, 4:56 AM
Uhm.. Halbrook attempted to torpedo Parker/Heller w/ Seegars - the case that caused Parker to end up being Heller and that caused Dearth to have to be appealed on standing before it could even come back to district for the merits.

Actively opposing tends to tilt the balance to the folks who beat both Halbrook and DC (and the US Solicitor General...)

-Gene

I stand corrected. I was basing my comment on Halbrook's extensive originalist scholarship. I was unaware that he was involved in NRA's attempt to torpedo Heller. I only got involved in 2A issues in early 2008.

Librarian
07-28-2011, 9:51 AM
Parker, Seegars, Dearth...Halbrook torpedoing a case, and that comment about "detriment to liberty"
All this case interaction has got me a little confused...Maybe a simple recap for the dot-connecting challenged???

Oi! Maybe someone has it in his head better. I have to go out; if nothing appears sooner, I'll try to get something up by this evening.

"The Simplified History of Second Amendment Jurisprudence, in the Twentieth and Twenty-first Centuries, with Notes on the Players" or something like that...

Maybe more like two weeks.

Gray Peterson
07-28-2011, 12:23 PM
Oi! Maybe someone has it in his head better. I have to go out; if nothing appears sooner, I'll try to get something up by this evening.

"The Simplified History of Second Amendment Jurisprudence, in the Twentieth and Twenty-first Centuries, with Notes on the Players" or something like that...

Maybe more like two weeks.

I think that's already a CATO institute book on this.

hoffmang
07-28-2011, 7:10 PM
I stand corrected. I was basing my comment on Halbrook's extensive originalist scholarship. I was unaware that he was involved in NRA's attempt to torpedo Heller. I only got involved in 2A issues in early 2008.
Halbrook should absolutely be lauded for his scholarship, however his litigation is a bit checkered. He also helped torpedo CGF/SAF's attempt to have the CA Handgun Roster declared unconstitutional in DC which has of course hurt Peña...
Oi! Maybe someone has it in his head better. I have to go out; if nothing appears sooner, I'll try to get something up by this evening.

"The Simplified History of Second Amendment Jurisprudence, in the Twentieth and Twenty-first Centuries, with Notes on the Players" or something like that...

Maybe more like two weeks.
:twoweeks:

But that could rock!

-Gene

Al Norris
07-29-2011, 5:28 AM
Let's face facts, for the moment.

The amicus brief is an attempt to garner enough recognition/support in this case, that one Justice will call for a response from the Solicitor General's office.

If this does not happen, the case is dead where it stands.

Librarian
07-29-2011, 11:11 AM
Note on prospective 'History" ...

What I had hoped to find was some documentation on the case selection of what NRA supported/opposed from the 1970s forward, but I'm beginning to believe I'm not enough of an insider to get that.

I can certainly point to the Gura - Halbrook kerfuffle already mentioned in Seegers; Alan's response to the suggestion of consolidating Seegers with Parker is available, and it's a remarkable 'that is something up with which I shall not put!' document.

hoffmang
08-01-2011, 9:52 PM
Let's face facts, for the moment.

The amicus brief is an attempt to garner enough recognition/support in this case, that one Justice will call for a response from the Solicitor General's office.

If this does not happen, the case is dead where it stands.

Hardly. The 4th Circuit conflicts with the 7th here on Federal Constitutional interpretation. The merits of this and Williams are identical with the only difference being that the petition is submitted during recess meaning it may take longer to get a request for a response.

-Gene

Al Norris
08-02-2011, 7:42 AM
I understand that, Gene.

I'm simply stating that this is not settled, as it concerns grants of certiorari. There is still another step that must be taken. That step could happen at any time, up to and including the "Long Conference" at the end of Sept.

Nor have I forgotten how long it took D.C. v. Heller to get cert. granted. We were all on pins and needles for 10 months after the decision in Palmer. After cert, it was pins and needles for another 7 months. You might remember that one...

Peaceful John
08-02-2011, 8:31 AM
Hardly. The 4th Circuit conflicts with the 7th here on Federal Constitutional interpretation. The merits of this and Williams are identical with the only difference being that the petition is submitted during recess meaning it may take longer to get a request for a response.
-Gene

Gene, it was my impression that Masciandaro relates to sensitive places while Williams addresses "bear". Although related, they are not duplicates. Am I wrong on this?

Cordially,
John

Patrick-2
08-02-2011, 9:38 AM
Both cases have petitioned over the same core question: does the Second Amendment end at your doorstep?

From that, the assumption is made in Williams that any law requiring a permit is unconstitutional if the state would routinely deny it to qualified people; and in Masciandaro that laws prohibiting carry in public places in a national park (were) unconstitutional.

Masciandaro is technically not a "sensitive place" listed in the dicta of Heller, but it was treated as such if only because some over-read the Heller dicta as a broad ability to ban arms in/on/near any place managed, owned or operated by "the government". What we call a 'sensitive place' is just a place restriction ala First Amendment jurisprudence (ironic how the opposition avoids the first amendment except when the tenets seem to help them). Williams is technically not a "permit case" because the core issue at question is whether the right extends outside the house. If it does, then the state's routine denial renders their case against Williams moot; Maryland is beyond the point of claiming Williams could qualify. They extinguished that flame several times in Woollard. We should at least grant them a thumbs-up for intellectual honesty - no games saying Williams "could have" gotten a permit.


You could frame both questions differently, and in my small universe they could still take on nuances of the underlying issues at play. Meaning both cases get picked up to settle slightly different inquiries.

Masciandaro is pretty much impossible to decide without at least some tightening of the Heller dicta on place restrictions. Even if they choose to split the baby - decide the core right extends outside the home and then toss the case back to the Circuit - they will need to provide more on place restrictions than a one-sentence piece of dicta from 100+ pages of opinions.

Williams has nuances of the same issue - having to decide something about permits after having dispensed with the core right. That said, the Williams inquiry as written lets the court skip much of it entirely, by just agreeing with the petition and saying "the permit law in Maryland is unconstitutional to the extent it routinely restricts the issuance of permits to qualified citizens", without addressing whether a shall-issue system is even constitutional, at all. Much like Heller's footnote that the court is issuing the permit because that was the relief requested - not because the permit was required under the constitution.

Note that due to the criminal nature of both cases, there is no relief sought to undo laws encumbering the right. So the Maryland law in question would still exist, though toothless. And in the case of Masciandaro, the law has already been changed. Challenges to those laws (or similar laws) would still stand. They would just be easier to decide.


If you want the case most likely to deliver a "two-fer" on public RKBA + some bonus question, then Masciandaro is the one with the most opportunity to deliver. Of course, that "feature" is something that could dissuade the court from taking it up. I am not qualified to read those tea leaves and leave such prognostications to those with a clue or an anonymous keyboard and a penchant for good guessing. The Court could just decide RKBA with either case and toss the secondary questions back to their respective courts for further evaluation. Wash, Rinse, Repeat.

I obviously operate under the assumption the core right extends outside the home in some strong (if not fundamental) form. If this assumption is off, these two cases will all but sink our movement from a litigation standpoint. It'll be open season for gun control and Bloomberg can party like it is 1999.

Peaceful John
08-02-2011, 10:18 AM
Thanks, Patrick. Your thoughtful comments are always deeply appreciated. It never occurred to me that Williams / Masciandaro constitute most of the remaining marbles. If we win, it doesn't mean the game is entirely over, but if we lose it's a grievous, grievous wound.

hoffmang
08-02-2011, 9:47 PM
Thanks, Patrick. Your thoughtful comments are always deeply appreciated. It never occurred to me that Williams / Masciandaro constitute most of the remaining marbles. If we win, it doesn't mean the game is entirely over, but if we lose it's a grievous, grievous wound.

And this would be why we fought like hell to try to get permit denial cases up first...

I still can't envision what the grant of relief in Williams is supposed to look like? Anyone convicted of conceal carry where permits are not objective is not guilty? Only the law abiding? It just feels darn awkward.

Remember that one quite possible outcome is no cert grant on either of these in wait for the many other, simpler cases coming.

-Gene

Paladin
08-02-2011, 10:03 PM
Remember that one quite possible outcome is no cert grant on either of these in wait for the many other, simpler cases coming.Yeah, I thought of that. There are the Slaughterhouse Cases. We might have to wait until '12-'13 for the Concealed Carry Cases.

Oh well. It's not like a bunch of Americans will be getting mugged, robbed, raped, and/or murdered in the mean time.... :rolleyes: :mad:

2009_gunner
08-02-2011, 10:10 PM
Maryland is beyond the point of claiming Williams could qualify. They extinguished that flame several times in Woollard. We should at least grant them a thumbs-up for intellectual honesty - no games saying Williams "could have" gotten a permit.

Maryland was not always so intellectually honest. In the appeals session (http://vimeo.com/15648669), Maryland's attorney repeatedly claimed that MD issues to over 97% of applicants, and that Williams probably could have gotten a permit if he had applied. The judges had to know this was not true, but they were all in the game together of ignoring the Right.

As you say, Woollard is keeping them honest.

Patrick-2
08-03-2011, 4:32 AM
And this would be why we fought like hell to try to get permit denial cases up first...

I still can't envision what the grant of relief in Williams is supposed to look like? Anyone convicted of conceal carry where permits are not objective is not guilty? Only the law abiding? It just feels darn awkward.

Remember that one quite possible outcome is no cert grant on either of these in wait for the many other, simpler cases coming.

-Gene

Relief requested is to overturn the conviction. As for how, I think the court would take the same approach they did in Heller and just say as long as Williams is "not otherwise prohibited", as in "give Heller that permit as long as he is not otherwise prohibited."

Prior convictions could be challenged, but a determination on those otherwise prohibited would need to be made. I suspect most of those convicted are probably prohibited for prior acts anyway (but have no data on that at hand), but we are sure to see some legitimate challenges a sure to make their way up. It might be awkward, but so was Miranda.

There is a whole slew of criminal cases out there ahead of all the civil suits. How many more criminal convictions are out there that failed within the state systems, that are eligible to petition for cert? Probably quite a few. Those cases have years of legacy behind them. For the same reasons most of the 1A jurisprudence comes from those who were defending themselves from government fines, convictions and the like, we are going to see the criminal pool take a strong role in 2A cases.

I agree it might get ugly, but history says we cannot avoid it. My first concern is not the purity of the case or defendant, but the capability of counsel flying the flag.

hoffmang
08-03-2011, 9:35 PM
My first concern is not the purity of the case or defendant, but the capability of counsel flying the flag.

I could tease you here, but I won't :p

-Gene

wildhawker
08-03-2011, 9:52 PM
I could tease you here, but I won't :p

-Gene

Heh.

Mulay El Raisuli
08-04-2011, 3:58 AM
And this would be why we fought like hell to try to get permit denial cases up first...

I still can't envision what the grant of relief in Williams is supposed to look like? Anyone convicted of conceal carry where permits are not objective is not guilty? Only the law abiding? It just feels darn awkward.

Remember that one quite possible outcome is no cert grant on either of these in wait for the many other, simpler cases coming.

-Gene


Theoretically (and what I hope for), the court could find that no permit is needed. At least for open carry.


Relief requested is to overturn the conviction. As for how, I think the court would take the same approach they did in Heller and just say as long as Williams is "not otherwise prohibited", as in "give Heller that permit as long as he is not otherwise prohibited."

Prior convictions could be challenged, but a determination on those otherwise prohibited would need to be made. I suspect most of those convicted are probably prohibited for prior acts anyway (but have no data on that at hand), but we are sure to see some legitimate challenges a sure to make their way up. It might be awkward, but so was Miranda.

There is a whole slew of criminal cases out there ahead of all the civil suits. How many more criminal convictions are out there that failed within the state systems, that are eligible to petition for cert? Probably quite a few. Those cases have years of legacy behind them. For the same reasons most of the 1A jurisprudence comes from those who were defending themselves from government fines, convictions and the like, we are going to see the criminal pool take a strong role in 2A cases.


Yup.


I agree it might get ugly, but history says we cannot avoid it. My first concern is not the purity of the case or defendant, but the capability of counsel flying the flag.


Always the key point.


The Raisuli

Patrick-2
08-04-2011, 4:42 AM
I could tease you here, but I won't :p

-Gene

And yet another attempt of mine to subtly sidetrack a thread fails... ;)

For the record: we fly our flags full staff here in the Chesapeake. Except when we're drunk. Which is often.


Back on track: I think Miranda and Terry are both decent models for what happens when the Court limits (or expands) what law-enforcement can do in a given situation. With no ability to enforce, laws against the condition simply fall to the wayside. Our friends Williams and Masciandaro did nothing wrong. Their only crime was the gun possession. Both 'clean' otherwise. Miranda, on the other hand... :eek:

hoffmang
08-04-2011, 9:30 PM
Our friends Williams and Masciandaro did nothing wrong. Their only crime was the gun possession.

Mr. Williams theoretically could have had a permit. Mr. Masciandaro had no way to carry at all as no permit was good enough. In the former, I'm reluctant to predict that SCOTUS is going to say that a state can't enforce an objective permit requirement on local gang bangers...

Kennedy isn't going to limit the state's ability to dissuade young entrepreneurs in the pharmaceuticals business from getting their first gun fight for free.

-Gene

Rossi357
08-04-2011, 10:01 PM
I remember watching a video on one of the gun forums. As I rememeber it was a UOC'er and a anti gun politician. The Politician didn't want anyone legally open carrying because some undocumented gang member would be able to carry also.
I remember thinking....He probably already has a gun and is carrying it concealed illegally and could care less about any law. I would think that is a police problem, not a constitutional question.
Granted, I don't think like a judge.

hoffmang
08-04-2011, 10:04 PM
Granted, I don't think like a judge.

Here is a valid way a judge can think.

1. Bad men don't go to sheriffs offices and give fingerprints even if they're not yet felons.

2. Unlicensed open carry would mean that a cop could do nothing about a known banger/dealer tough standing there strapped until he committed his first felony.

3. The unlawful will conceal illegally if that's their only option and pretty much no matter what.

So banning open carry while only allowing licensed concealed carry does have the benefit of stopping 2.

-Gene

Rossi357
08-04-2011, 11:27 PM
Here is a valid way a judge can think.

1. Bad men don't go to sheriffs offices and give fingerprints even if they're not yet felons.

2. Unlicensed open carry would mean that a cop could do nothing about a known banger/dealer tough standing there strapped until he committed his first felony.

3. The unlawful will conceal illegally if that's their only option and pretty much no matter what.

So banning open carry while only allowing licensed concealed carry does have the benefit of stopping 2.

-Gene

I hope we don't have too many judges that think like soccor moms. If there are, we are soooo screwed.

I'm hoping for something like Nevada has, only because something like Arizona has won't happen in my lifetime.

kcbrown
08-05-2011, 1:54 AM
Here is a valid way a judge can think.

1. Bad men don't go to sheriffs offices and give fingerprints even if they're not yet felons.

2. Unlicensed open carry would mean that a cop could do nothing about a known banger/dealer tough standing there strapped until he committed his first felony.

3. The unlawful will conceal illegally if that's their only option and pretty much no matter what.

So banning open carry while only allowing licensed concealed carry does have the benefit of stopping 2.


Um, if open carry is banned and concealed carry is licensed, how does that stop 2 above? Said bad guy isn't going to be openly carrying in that case, which means the cop won't know the banger/tough standing there is carrying and will have to have probable cause for a search to reveal that the guy is carrying sans permit.

So either the cop actually has probable cause for a search, in which case the cop could easily catch the guy on the very felony you speak of, or the cop claims to have probable cause to search when he really doesn't. I doubt you would be happy about the latter, but I won't be surprised if a judge that thinks the way you outline above would be happy about it.

kcbrown
08-05-2011, 1:56 AM
I hope we don't have too many judges that think like soccor moms. If there are, we are soooo screwed.


I'm pretty sure we have an abundance of them here in California and in the 9th Circuit.

ed bernay
08-05-2011, 6:50 AM
Here is a valid way a judge can think.

1. Bad men don't go to sheriffs offices and give fingerprints even if they're not yet felons.

2. Unlicensed open carry would mean that a cop could do nothing about a known banger/dealer tough standing there strapped until he committed his first felony.

3. The unlawful will conceal illegally if that's their only option and pretty much no matter what.

So banning open carry while only allowing licensed concealed carry does have the benefit of stopping 2.

-Gene

Isn't this how DC, Chicago and NYC thinks about even possesing a firearm in your own home?

Patrick-2
08-05-2011, 7:03 AM
Mr. Williams theoretically could have had a permit.

Maryland concedes in all other civil challenges that ordinary citizens cannot receive a permit; that the acknowledged goal of Maryland is to keep permits from even lawful persons; and that living in a violent neighborhood is not cause enough. Telling is that Maryland claims Williams should have applied for a permit, but nowhere do they actually suggest he would get one. The permit application process is a red herring tossed as a desperation measure. There is enough jurisprudence from SCOTUS to settle that.

Mr. Masciandaro had no way to carry at all as no permit was good enough.

Exactly. There was no way - even theoretical - for Williams to transport his new, Maryland-approved, registered handgun between his girlfriend's house and his own. For one, such transport in Maryland is illegal. You can only have a gun at home, the range or the shop. Not a girlfriend's house. And absent that restriction, there is no provision for those who travel by Mr. Williams' mode of choice: the bus.

In the former, I'm reluctant to predict that SCOTUS is going to say that a state can't enforce an objective permit requirement on local gang bangers...

Not sure how we get here. First, nobody is asking the Court to invalidate an objective system. Maryland's system is subjective, and as Judge Legg noted in the recent Woollard hearing, it's purpose is to "ration a right." That makes it capricious and arbitrary at the same time.

Local gang-bangers are not lawful persons. If they have a record, they cannot receive a permit under any of the proposed methodologies. If they do not have a record, then they are not gang-bangers under the law and are therefore eligible for a permit, unless we want to keep the subjective "Good Moral Character" standards in place, where we evaluate the individual's need and character to weed out those (black|hispanic|poor|trash) people "who are not the type of person that should have a gun". Rather retro and obviously not what you were suggesting. But I wanted to point out where that thinking could go in the head of some of our politicians.

Even in the so-called Constitutional Carry movement, dangerous persons are not able to lawfully carry, even when the supposed proof (a permit) of lawfulness is not required. The only thing that I think Constitutional Carry gets right is removing the presumption of criminality for carry. The rest is wishful thinking best targeted to the legislatures. But I digress.


The risk May-Issue states face (and the one I was trying to get at) is that Williams removes enforcement measures for possession to the extent those measures enforce unconstitutional restrictions. This would be a temporary effect, for sure. I cannot imagine California or Maryland letting stand conditions that essentially create a no-permit carry condition. Given the choice between "unconstitutionally subjective permit-system that we cannot enforce" and "shall-issue that we can probably enforce", they are going to move towards a shall-issue system as quick as their system allows. Maryland's executive could do that by fiat. California would probably require a bit more work, but even San Francisco would race to shall-issue given those options.

Overturning a criminal conviction for carry, when a permit is unavailable, puts the onus on the subjective system to become objective as quickly as possible. It puts the state in the position of actor, instead of our side having to constantly attack whatever they come up with. It also creates a strong precedent that if a restriction goes too far, the court says the prosecution is unconstitutional. Theoretically that is always the case, but until it actually happens it hasn't happened.

Kennedy isn't going to limit the state's ability to dissuade young entrepreneurs in the pharmaceuticals business from getting their first gun fight for free.

-Gene

Again, nothing in the above suggests that unlawful persons or unlawful acts get a pass. I can carry in public at my house in Florida. I have a permit. That does not imply my sanction for armed robbery of a pizza shop down the street is less than for someone without a permit. The permit does not actually imbibe any protection or quality upon me that does not already exist. Nor does it shelter me from the consequences of any unlawful - or even irresponsible - acts I commit.

Gun owners are not more likely to commit crimes ust because they have the gun. Nothing in Williams, Masciandaro or any other case I have seen suggests a system where unlawful people are given passes on murder, robbery or drug dealing. Or for that matter, beating their children.

I may be alone in seeing Masciandaro and Williams as two different and critically important cases. I don't understand the need for a horse-race. I understand that each case requires some kind of finding on public carry, but even with that dispensed each case also requires another finding. Whether illusory permits or places-that-are-kinda-sensitive, the case does not end with "Yup. 2a extends outside the home."

One thing I like about both cert petitions is they do not stop with public RKBA. Each brings their particular issue to the front and makes clarification of 2A pretty much an entry condition. In my mind, my preferred opinions from the court would dispense with public 2A and then spend most of it's time focused on the place and illusory permit issues. We all claim Heller solved for the public RKBA problem, yet expect these cases to solve it again.

Recognizing I am alone on the branch here, this suggests I am either rather brilliant, confused, or more likely - just wrong. That said, this is one time I'd really like to be able to say, "I told you so." :)

So I know I may be tilting at windmills, hoping that the court picks up both questions. We'll see.


A Google-Worthy Caveat...

Everyone reading this friendly back and forth needs to understand something important: Gene and I and others are jousting some theoretical outcomes.

We need to be really clear that Mr. Williams is not gang-banger, drug peddler or felon. He is poor and lives in a neighborhood under a consent decree with the Justice Department for harassing minorities on the street and in cars, hoping to catch them doing something. His county invented the term "Driving While Black".

Mr. Williams saved up his limited resources, bought a gun at a gun shop, filled out the paperwork, submitted the shell casings to the state, waited for Maryland to return with a "Not Disapproved" finding, then he picked up his gun and took it to his girlfriend's house. Two weeks later he tried to take it to his home, but got nervous when a police officer stared him down at a bus stop. His public defender literally stammered his way through his defense in Maryland's top court. It was cringe worthy.

If someone Googles this thread and finds the name of Mr. Williams, I don't want them walking away thinking he is a bad guy, just because we posit scenarios that might somehow extend from resolution of his case. From what I can tell, he is like most of us. The state busted him for doing what most of would agree is "nothing wrong."

Untamed1972
08-05-2011, 8:02 AM
Local gang-bangers are not lawful persons. If they have a record, they cannot receive a permit under any of the proposed methodologies. If they do not have a record, then they are not gang-bangers under the law and are therefore eligible for a permit, unless we want to keep the subjective "Good Moral Character" standards in place, where we evaluate the individual's need and character to weed out those (black|hispanic|poor|trash) people "who are not the type of person that should have a gun". Rather retro and obviously not what you were suggesting. But I wanted to point out where that thinking could go in the head of some of our politicians.



Wouldn't is just be a simple matter of altering the laws to state that "Posession of a firearm WHILE engaged in, or with INTENT to engage in, other criminal activity, OR while in POSESSION of illegal drugs is a crime"?

So you remove "mere posession" of the firearm as presumption of criminality, and simply require that the posessor must be engaged in or have intent to engage in criminal with and/or while in posession of the firearm.

Problem solved right?

Patrick-2
08-05-2011, 8:13 AM
State and federal law already take into consideration the criminal use of a weapon in the commission of a crime. The effect varies by jurisdiction, but generally it amplifies the charge and in many cases kicks in mandatory minimum (and severe) sentences. Baltimore targets gun crimes specifically and implements mandatory minimums for violent crime with guns. It keep some people off the streets, but they cannot catch all of them. I think Virginia has a minimum 5 year sentence for criminal use of a gun.

We don't need to create laws criminalizing criminal behavior. We got that already. We are at the point where we need to legally differentiate between criminal use and defensive carry of arms. We know who should not be armed. For them the existing rules apply. The rest of us are not the problem. The problem are systems that put poor black people in jail for taking their lawfully acquired handgun home, but somehow let's the rich white banker walk from an airport security line fully armed with nothing but a smile and warning. Both of these are actual scenes from Maryland this year.

We like to talk in theory, but there is at least one guy looking at a year in maximum security for doing nothing wrong. When it comes to cert petitions, there is no better case in the world to end his persecution. For him, this case is exceptionally small and has nothing to do with a larger movement. I hope his counsel remembers that.

If we believe that our system is aligned with the interests of its citizens, the Supreme Court needs to take these criminal cases, even if they wish they had gotten slower-moving civil cases next year that cover everything from English Common Law to modern interpretations of the 14th Amendment. I read the words of Justice Thomas in McDonald; this is not a game to him. The role of the court goes beyond legal chessboard actions. Sometimes they gotta clean up a mess.

Again, I am tilting at windmills a bit. Off the soapbox (for now)!!!

Untamed1972
08-05-2011, 8:41 AM
We don't need to create laws criminalizing criminal behavior. We got that already. We are at the point where we need to legally differentiate between criminal use and defensive carry of arms. We know who should not be armed. For them the existing rules apply. The rest of us are not the problem. The problem are systems that put poor black people in jail for taking their lawfully acquired handgun home, but somehow let's the rich white banker walk from an airport security line fully armed with nothing but a smile and warning. Both of these are actual scenes from Maryland this year.

I see your point. That's kinda where my thought process was going. Why does it matter if it's a gun, or a hammer, or a 2X4, or a brick. If one is doing something illegal or intend to do something illegal, like rape, rob or murder.....THOSE are the criminal actions.....who cares what tool they choose to do or attempt to do it with.

Conversely......if I choose to arm myself with any of those "tools" solely for the purpose of lawful self-defense.....and I'm doing nothing else wrong, then who should care if I go for a walk at night with my trusty Louisville Slugger?

I think that really is an issue in CA, because not only is carrying a firearm impossible or nearly impossible for most people in the state, but the long list of prohibited weapons in 12020, remove from lawful possession/use just about every other viable defensive tool there is also.

So is the guy who decides to rape/rob/murder tonight really gonna care that it's a felony to also use a baseball bat? Uhh......he is already intent on committing a violent crime, why would he give a crap about what weapons are lawful or not? Is it somehow less offensive to society for a murder to use his bare hands to stangle someone, or his feet to kick them to death? Murder is murder.....why does it matter how it is actually carried out?

Criminalize the act or intent......not the tool.

ETA: Quite simply it seems the POV of courts and legislators needs to be....if an item can have a lawful purpose then you can't criminalize the item, you can only criminalize unlawful acts committed with that lawful item.

hoffmang
08-05-2011, 4:34 PM
A Google-Worthy Caveat...

Everyone reading this friendly back and forth needs to understand something important: Gene and I and others are jousting some theoretical outcomes.

We need to be really clear that Mr. Williams is not gang-banger, drug peddler or felon. He is poor and lives in a neighborhood under a consent decree with the Justice Department for harassing minorities on the street and in cars, hoping to catch them doing something. His county invented the term "Driving While Black".

Mr. Williams saved up his limited resources, bought a gun at a gun shop, filled out the paperwork, submitted the shell casings to the state, waited for Maryland to return with a "Not Disapproved" finding, then he picked up his gun and took it to his girlfriend's house. Two weeks later he tried to take it to his home, but got nervous when a police officer stared him down at a bus stop. His public defender literally stammered his way through his defense in Maryland's top court. It was cringe worthy.

If someone Googles this thread and finds the name of Mr. Williams, I don't want them walking away thinking he is a bad guy, just because we posit scenarios that might somehow extend from resolution of his case. From what I can tell, he is like most of us. The state busted him for doing what most of would agree is "nothing wrong."

I want to strongly underscore what Patrick is saying above. Mr. Williams is friggin innocent as he violated a strict liability statute in circumstances that are unconstitutional. The man deserves better than what he's gotten, period.

The theoretical debate is about what SCOTUS has to work with amongst these cases so far.

-Gene

htjyang
08-05-2011, 5:55 PM
I want to strongly underscore what Patrick is saying above. Mr. Williams is friggin innocent as he violated a strict liability statute in circumstances that are unconstitutional. The man deserves better than what he's gotten, period.

The theoretical debate is about what SCOTUS has to work with amongst these cases so far.

-Gene

That is, aside from the little matter of Mr. Williams hiding his weapon from the police. Not illegal in and of itself, but definitely suspicious. This is not exactly how a person proud of his 2nd Amendment rights and eager to confront injustice in a court of law should behave.

This is why I prefer the Masciandaro petition. No suspicious behavior to hang the petitioner.

Maestro Pistolero
08-05-2011, 8:51 PM
He was afraid and rightfully so. His attorney said as much. Imagine legally owning a gun and having absolutely no way to to legally transport it. That what we have in MD as I understand it.

Mulay El Raisuli
08-06-2011, 4:08 AM
Exactly. There was no way - even theoretical - for Williams to transport his new, Maryland-approved, registered handgun between his girlfriend's house and his own. For one, such transport in Maryland is illegal. You can only have a gun at home, the range or the shop. Not a girlfriend's house. And absent that restriction, there is no provision for those who travel by Mr. Williams' mode of choice: the bus.


Hmmm. Getting way ahead of things, this inspires a thought. I'm going to have to work on it a bit before I present it though.

Mostly just wanted to say that I don't think you're tilting at windmills. Your analysis looks spot on to me. But then, INAL.


The Raisuli

mattlevy
08-09-2011, 8:03 PM
Wanted to let you all know that the Court has requested a response from the SG. It's currently due on September 8.

Best,

Matt Levy

Wolverine
08-09-2011, 8:53 PM
Wanted to let you all know that the Court has requested a response from the SG. It's currently due on September 8.

Best,

Matt Levy

Thanks for the heads-up Matt. Do you think it likely that the SG will request (and get) a 30 day extension on their response? This would push it out to late October including the time for your reply. I can imagine that SCOTUS might hold up any decision on both Masciandaro and Williams until then.

dantodd
08-09-2011, 9:40 PM
That is, aside from the little matter of Mr. Williams hiding his weapon from the police. Not illegal in and of itself, but definitely suspicious. This is not exactly how a person proud of his 2nd Amendment rights and eager to confront injustice in a court of law should behave.


And what makes you think that Mr. Williams was "eager to confront injustice in court?" He just wanted to defend himself and stay out of trouble with the police.

If he were trying to "confront injustice in the court room" he would have applied for the mythical (for mere mortals) carry license and then sued because he was denied the rights protected by the 2A.

hoffmang
08-09-2011, 9:58 PM
Thanks for the heads-up Matt. Do you think it likely that the SG will request (and get) a 30 day extension on their response? This would push it out to late October including the time for your reply. I can imagine that SCOTUS might hold up any decision on both Masciandaro and Williams until then.

The request and the allowance is almost a matter of course.

What this most likely means is that Williams will be relisted until the responses are in for both.

Hey Patrick - this changes things ;)

-Gene

wildhawker
08-09-2011, 10:16 PM
The request and the allowance is almost a matter of course.

What this most likely means is that Williams will be relisted until the responses are in for both.

Hey Patrick - this changes things ;)

-Gene

http://www.freelancewritinggigs.com/wp-content/uploads/2010/09/Lovin-ItMcDs_Print.jpg

Dreaded Claymore
08-09-2011, 10:26 PM
Patrick-2, thank you so much for your writing on this matter.

Mr. Williams must be free. That is all.

moleculo
08-09-2011, 10:59 PM
And what makes you think that Mr. Williams was "eager to confront injustice in court?" He just wanted to defend himself and stay out of trouble with the police.

If he were trying to "confront injustice in the court room" he would have applied for the mythical (for mere mortals) carry license and then sued because he was denied the rights protected by the 2A.

That is, aside from the little matter of Mr. Williams hiding his weapon from the police. Not illegal in and of itself, but definitely suspicious. This is not exactly how a person proud of his 2nd Amendment rights and eager to confront injustice in a court of law should behave.

This is why I prefer the Masciandaro petition. No suspicious behavior to hang the petitioner.

Suspicious my ***. It's a damn disgrace to our Constitution that someone who legally purchased and owned a firearm feels the need to hide it from police because of either their social status or general insecurity about how they will be treated by both LE and the DA when they are attempting to transport the legally owned firearm. If anything, his behavior demonstrates confusion about what his rights are and what the local laws are. Confusion should never be inappropriately associated with suspicion.

I hope the Williams case is granted cert, not just because of the implications on the various 2A fronts, but also because this guy is a victim of a heinous violation of our Constitution rights and he deserves better.

htjyang
08-10-2011, 12:35 AM
And what makes you think that Mr. Williams was "eager to confront injustice in court?" He just wanted to defend himself and stay out of trouble with the police.

If he were trying to "confront injustice in the court room" he would have applied for the mythical (for mere mortals) carry license and then sued because he was denied the rights protected by the 2A.

What narrative one side can successfully convince the Court to buy has significant influence on the outcome. Hence the careful selection of clients in the Heller and MacDonald cases. Suppose if Heller had a Miranda-like record, the outcome might have been very different, perhaps even massively so.

Your narrative is probably closest to the truth, but obviously it won't be the one the state will be selling. One should not doubt that the state will try to paint Williams as a potential murderer, that his suspicious behavior was consistent with a murderous mind, and that the law as well as the police were what prevented some horrific crime.

Ideally, 2nd Amendment supporters should try to push a narrative as close to the one I mentioned as possible. (again, hence the careful selection of clients in Heller and MacDonald) Suspicious behavior, and certainly outright criminality, will only add points for the state.

htjyang
08-10-2011, 12:41 AM
Suspicious my ***. It's a damn disgrace to our Constitution that someone who legally purchased and owned a firearm feels the need to hide it from police because of either their social status or general insecurity about how they will be treated by both LE and the DA when they are attempting to transport the legally owned firearm. If anything, his behavior demonstrates confusion about what his rights are and what the local laws are. Confusion should never be inappropriately associated with suspicion.

I hope the Williams case is granted cert, not just because of the implications on the various 2A fronts, but also because this guy is a victim of a heinous violation of our Constitution rights and he deserves better.

Please.

Some people in confusion might accidentally drop it. Some people, in naive confusion, might approach the cop with the weapon. Mr. Williams clearly intended to hide his weapon from the police.

I agree with the rest of your first section, but I hope none of us is misguided enough to see Williams's action for something that it wasn't, or to confuse a perfectly tailored case (i.e. Heller and McDonald) with a flawed one.

Patrick-2
08-10-2011, 4:56 AM
The request and the allowance is almost a matter of course.

What this most likely means is that Williams will be relisted until the responses are in for both.

Hey Patrick - this changes things ;)

-Gene

Not for me. Remember, I am the only guy out on the limb saying they both deserve cert because they are each unique and important questions.

What I am not looking forward to is the inevitable horse-race between Masciandaro and Williams. I don't see a need for competition. I think both cases are really important and I would hate to lose the opportunity to answer the questions in either.

Sit back and look at the forest:


Heller/McDonald said that the right to keep and bear arms was 'fundamental'
We (our side) have been arguing since last summer that the right to bear arms in public was already decided by the Supreme Court, and that the language of Heller makes this clear


So then why do we focus on the question we already contend to be answered, instead of the cause of conviction for these men?

Neither of these cases can be resolved unless the court explicitly speaks on public bearing of arms. That is a requirement due to the expected defense of the opposition - they are going to argue that Heller said something other than what Heller said (or left the door open to making those words whispers instead of plain language). So each petition must address that question, but that answer alone does not undo the criminal convictions of either plaintiff.

So these are the primary issues in each case:


Williams: Does the lawful bearing of arms require a permit the state will never grant?

Masciandaro: is it constitutional to prohibit law-abiding citizens’ possession and carrying of loaded weapons in motor vehicles while on National Park Service land (or really any place that the government says 'no' without real justification)?


Each of the attorneys in these cases are focused on these questions, and to some extent have taken the view that the "public bearing of arms" was already decided in Heller. They have to.

My point - to our little community - is that we need to look beyond the initial public bearing of arms inquiry. We need to take bearing of arms as a given (as we have claimed all along) and focus on the actual issue presented in each case. If we do that, we can see that Williams and Masciandaro are truly different cases and each presents clearly important questions that we desperately want answered.

So no need to race. These cases need not compete. If anything, they support each other. Imagine the breadth of arguments available (and outcomes possible) with two* excellent cases this term...

I would suggest that we not take the bait laid by the Maryland AG in his response to the Williams petition: that 'there are better cases (hint, hint)' to ask the RKBA question. The other side needs to split our cases and avoid as many of these fights as they can. No. Instead, I would argue that both cases are important and deserve answers. That other than a consistent misrepresentation by the anti-rights coalition (also known as "The Gubbermint"), the questions presented are unique.


I fell into the trap earlier and opined that Williams was more pressing because of its direct applicability to the May-Issue problem. I was wrong. Both cases are both important. We need them both answered ASAP. If the court were to grant one and not the other, I would be greatly disappointed. I want may-issue to go away and I want the government to respect the fact that I have these rights in nearly all places, not just the ones they wish to allow.


* Let's not forget the wild-card possibility that our friend Gura can force his Illinois PI through fast enough to make it out of the Circuit and into petition territory this Fall.

That would be a menage-a-trois of pro-2A litigation porn right there... :eek:

Untamed1972
08-10-2011, 11:19 AM
That would be a menage-a-trois of pro-2A litigation porn right there... :eek:

Bow-wow-chicka-wow-wow! LOL

ccmc
08-10-2011, 11:24 AM
And what makes you think that Mr. Williams was "eager to confront injustice in court?" He just wanted to defend himself and stay out of trouble with the police.

If he were trying to "confront injustice in the court room" he would have applied for the mythical (for mere mortals) carry license and then sued because he was denied the rights protected by the 2A.

His case would be a lot stronger IMHO if he had applied for and been denied that mythical carry license.

Glock22Fan
08-10-2011, 11:34 AM
His case would be a lot stronger IMHO if he had applied for and been denied that mythical carry license.

a) He wasn't trying to "confront injustice in the court room," he just wanted to take his new handgun home after going to his G/F's house.

b) He hadn't had the gun long enough to get denied.

This was not a pre-planned "I'm going to set the Second Amendment scene to rights," it was a guy just bought a firearm, took it to his girl's house and then wanted to take it home. The prosecution admits he'd never get a permit.

Maybe the case would be fractionally stronger if he had been denied, but I see no reason why (and neither do some of the attorney posters) that should make him spend a year in jail for exercising a fundamental right in a part of the country that denies that this right exists.

Connor P Price
08-10-2011, 11:52 AM
His case would be a lot stronger IMHO if he had applied for and been denied that mythical carry license.

That's why I didn't like this case at first either, until this little gem that Glock22Fan came out in the case.

The prosecution admits he'd never get a permit.


Once they admitted that, it shouldn't make much difference that he didn't apply. They admit the system is designed to deny law abiding people carry licenses because they find the carrying of firearms to be inherently dangerous. That doesn't sound like it will be found to be constitutional to me.

By opening their big mouths with that little bit, it looks like Maryland turned this from a potentially poor case for our side into a much better case for our side. Thanks MD!

Kharn
08-10-2011, 11:55 AM
They did not admit such in this case, but they admitted it in Woollard, the SAF case against MD in federal district court.

ptoguy2002
08-10-2011, 12:01 PM
That would be a menage-a-trois of pro-2A litigation porn right there... :eek:

Signature material.....


Question: If one of these at least is successful, and SCOTUS says you have a right to carry outside the home, what happens then in California?
I understand it depends a lot on the language and what they say, but in general, are we looking at another lawsuit? Or 2, or 3, or 58 (1 for each Sheriff)? I know it just won't magically change in California, and I'd imagine that a lot of Sheriffs won't start issuing without being forced to.

Connor P Price
08-10-2011, 12:07 PM
They did not admit such in this case, but they admitted it in Woollard, the SAF case against MD in federal district court.

I don't see them being able to say "Uhhh, but we only meant that in the Woolard, case, who knows... maybe Williams could have gotten a permit." Even crossing their fingers behind their back, that kinda of blatant lie just doesn't look good in court.

ccmc
08-10-2011, 12:19 PM
I don't see them being able to say "Uhhh, but we only meant that in the Woolard, case, who knows... maybe Williams could have gotten a permit." Even crossing their fingers behind their back, that kinda of blatant lie just doesn't look good in court.

Irrespective of that, his chance of getting a permit is only zero if he doesn't apply. Anyway I hope both Williams and Woolard win their cases. I'm not sure either one is a slam dunk though.

Connor P Price
08-10-2011, 12:23 PM
Irrespective of that, his chance of getting a permit is only zero if he doesn't apply. Anyway I hope both Williams and Woolard win their cases. I'm not sure either one is a slam dunk though.

No doubt. I'm still firmly of the belief that I'd rather have seen many of the civil cases working their way up the ladder getting cert granted because I feel like they give us less risk of setting bad precedent. However, now with Masciandaro and Williams both requesting cert I've gotta admit, neither are bad at all as far as criminal cases go.

ccmc
08-10-2011, 12:53 PM
a) He wasn't trying to "confront injustice in the court room," he just wanted to take his new handgun home after going to his G/F's house.

b) He hadn't had the gun long enough to get denied.

This was not a pre-planned "I'm going to set the Second Amendment scene to rights," it was a guy just bought a firearm, took it to his girl's house and then wanted to take it home. The prosecution admits he'd never get a permit.

Maybe the case would be fractionally stronger if he had been denied, but I see no reason why (and neither do some of the attorney posters) that should make him spend a year in jail for exercising a fundamental right in a part of the country that denies that this right exists.

Here's the problem. The guy is breaking the law by taking the gun to his GF's house and back. It's a crummy law, but it is the law in MD right now, and he (presumably) knew he was breaking it. If I carry a gun in New York or California and get caught I would have the same problem with possibly a stronger defense - I have no way of even applying for a carry license in either place - in Maryland I would have the same problem as Williams ie why didn't I at least apply for the permit. I really hope Williams prevails, but there are a lot of judges who don't have sympathy for willful disobedience of any laws, even unjust ones.

htjyang
08-10-2011, 1:25 PM
I really hope Williams prevails, but there are a lot of judges who don't have sympathy for willful disobedience of any laws, even unjust ones.

It's important to emphasize this point. Many judges, even if they disagree with the law in question, believe it should only be challenged through legal ways (i.e. Heller was denied a permit first before he sued). One should not be surprised by this mentality. Judges are, by definition, people who spent their lives studying the law. Lawlessness, by definition, challenges what they dedicate their lives to.

I do not object to Williams winning his case. I simply think that it is important that we avoid unfavorable judgments by making sure that the courts can sympathize with the plaintiffs.

Glock22Fan
08-10-2011, 1:37 PM
Here's the problem. The guy is breaking the law by taking the gun to his GF's house and back. It's a crummy law, but it is the law in MD right now, and he (presumably) knew he was breaking it. If I carry a gun in New York or California and get caught I would have the same problem with possibly a stronger defense - I have no way of even applying for a carry license in either place - in Maryland I would have the same problem as Williams ie why didn't I at least apply for the permit. I really hope Williams prevails, but there are a lot of judges who don't have sympathy for willful disobedience of any laws, even unjust ones.

You might well be right - probably are mostly - at lower levels, and that's why these cases are being appealed. However, as opposed to the lower courts, SCOTUS is supposed (AFAIK) to rule on the constitutionality of the law and not uphold sentencing based on the disobedience of an unconstitional law.

Would it be better if a permit had been requested and denied? Sure. But I don't see it as a case killer here.

Afterthought: Whether he had applied for a permit or not, without one he was breaking the law either way. Therefore why would the judges have more sympathy if he had been denied?

dantodd
08-10-2011, 1:39 PM
It's important to emphasize this point. Many judges, even if they disagree with the law in question, believe it should only be challenged through legal ways (i.e. Heller was denied a permit first before he sued). One should not be surprised by this mentality. Judges are, by definition, people who spent their lives studying the law. Lawlessness, by definition, challenges what they dedicate their lives to.

The problem with that theory is Masciandaro broke the law no less willfully than did Williams. 2A law will look a lot like 4A and 5A law where people who are convicted of a crime will often be the ones pushing the boundaries. While well vetting suits like Heller, McDonald, Pena, Richards, Jennings is the preferred manner of moving forward it is far better to have a skilled attorneys working cases like Masciandaro and Williams once there is an arrest that has potential to result in negative case law.

kcbrown
08-10-2011, 1:54 PM
Here's the problem. The guy is breaking the law by taking the gun to his GF's house and back. It's a crummy law, but it is the law in MD right now, and he (presumably) knew he was breaking it. If I carry a gun in New York or California and get caught I would have the same problem with possibly a stronger defense - I have no way of even applying for a carry license in either place - in Maryland I would have the same problem as Williams ie why didn't I at least apply for the permit. I really hope Williams prevails, but there are a lot of judges who don't have sympathy for willful disobedience of any laws, even unjust ones.

Yes, but we're talking about the Supreme Court here. One would think they have the ability to see beyond such trifling matters, particularly in cases of first impression and/or cases where the law in question is a blatant violation of a fundamental enumerated right.

The judges are human, yes, but for that which you are so concerned about to make the difference, the judges here would have to be petty. I can easily see that in Sotomayor and, perhaps, Kagan, but they're going to rule against Williams and Masciandaro anyway.

Patrick-2
08-10-2011, 5:06 PM
Go read up on 1A, 4A and 5A cases. With the exception of 5A challenges to "takings", they are comprised largely of people who broke laws and then appealed their convictions. In 2A jurisprudence we have Chester out of the Fourth. The guy is a dirtbag, but the case brought us strict scrutiny for lawful persons.


Our system is simple: an unconstitutional law is an unconstitutional law. It doesn't matter if you failed to ask for permission to protest abortion; did not get permission to hand out leaflets against a candidate in a one-party town; fell asleep with a gun in your trunk; or got busted carrying your gun home.

The Supreme Court has not exactly shied from some pretty nasty defendants. See Miranda. My concern is the purity test I see in here. We have two "clean" defendants whose only crime was failing to follow rules that everyone here says are unconstitutional. Nothing else. According to this theory, no criminal case could ever be appealed. People convicted of doing nothing wrong would have to suck it up and wait for an Due Process argument to save them.

No. If the government nails you for doing nothing wrong, you deserve redress. I like the civil cases, but they will always take a backseat to a compelling criminal case. It's just the way it works. In these criminal cases, the defendants appear to have good representation. Let's hope these good people get their convictions overturned, and in the case of one - stays out of maximum security prison - all "for doing nothing wrong".

yellowfin
08-10-2011, 5:49 PM
I don't see them being able to say "Uhhh, but we only meant that in the Woolard, case, who knows... maybe Williams could have gotten a permit." Even crossing their fingers behind their back, that kinda of blatant lie just doesn't look good in court.MD, NY, MA, and NJ are used to that working quite well for them because it has for 30-35 years without a hitch.

htjyang
08-10-2011, 5:51 PM
The difference between Masciandaro and Williams is that the former did not attempt to conceal his firearm. In fact, when asked, he volunteered that he had one. No suspicious behavior there.

There are plenty of reasons why a justice might rule against criminal defendants. Being petty is hardly the only one. How about simply an overzealousness in seeing criminal thugs (and, by definition, in a criminal case, one can only make it to the Supreme Court after having been convicted of something) locked behind bars as long as possible?

I've read my layman's share of 4th Amendment cases and I can never understand these bizarre comparisons to Miranda. Does anybody seriously believe that the Roberts Court is the reincarnation of the Warren Court? Does anyone really need me to point out that every justice on the Court during Miranda is now safely and cozily dead?

It seems to me that if we are actually interested in what the current Court might do (rather than what a bunch of dead white males might do), we should look to what the current Court has done. Since people like to use 4th Amendment parallels so much, let me point out the Court's record in the previous term (http://www.scotusblog.com/2011/07/review-of-the-courts-fourth-amendment-cases/).

Of the three cases on the merits, the government’s side won 23 votes and lost only 3 votes. This Term, at least, none of the Fourth Amendment cases were even close. Second, it’s interesting that Justice Alito wrote two of the three cases. Of all the current Justices, Justice Alito is perhaps the Justice seen as most often in sync with the government’s take in Fourth Amendment cases. If Justice Alito is writing a lot of Fourth Amendment cases going forward, that is likely to be very good news for the government.

I hope I don't need to point out the fact that considering the precariousness of the Heller-McDonald majority, Justice Alito is one of the votes that must be won. People who use 4th Amendment parallels should be careful about what they wish for. I suggest 1st Amendment parallels instead. (where the state actually loses with some frequency)

I also once did a statistical analysis of Roberts Court justices on the question of how friendly they are to criminal defendants. Justice Alito ranked as least friendly, with the Chief Justice close behind.

This is why I don't like cases with "unclean" fact patterns. For the foreseeable future, the advancement of the 2nd Amendment depends heavily upon the right side of the Court yet this also happens to be the side most solicitous to the LEO community.

Of course, not all LEOs are unfriendly toward the 2nd Amendment. But I think we will do well to avoid being seen as an adjunct of the criminal defense bar (which the LEOs oppose instinctively). Doing so is likely to result in a very unfavorable split in the Heller-McDonald majority.

yellowfin
08-10-2011, 6:02 PM
The Supreme Court has not exactly shied from some pretty nasty defendants. See Miranda. My concern is the purity test I see in here. We have two "clean" defendants whose only crime was failing to follow rules that everyone here says are unconstitutional. Nothing else. According to this theory, no criminal case could ever be appealed. People convicted of doing nothing wrong would have to suck it up and wait for an Due Process argument to save them.

No. If the government nails you for doing nothing wrong, you deserve redress. I like the civil cases, but they will always take a backseat to a compelling criminal case. It's just the way it works. In these criminal cases, the defendants appear to have good representation. Let's hope these good people get their convictions overturned, and in the case of one - stays out of maximum security prison - all "for doing nothing wrong".
My concern is that the Supreme Court has, at various points in the last century and a half or so, plugged their ears, held their noses, and completely abdicated all morality and conscience and ruled in favor of the government instead of the citizen because that's where their loyalty lies. Slaughterhouse, Cruikshank, Presser, Plessy (overturned only on race, not on discrimination or absurd expansion of state "police powers"), Carolene, Miller, Wickard, Kelo, etc.... when the chips were really down and the right thing was obvious they took the wrong direction knowing full well it was wrong. That's what I'm afraid of, them being averse to/afraid of "offending the sensibilities" of Boston, NYC, DC, and Chicago which are the centers of the judicial culture but the rock bottom slime pits of anti gun (and anti liberty) ideology and to whom they in some sense seem to exhibit some kind of allegiance to. It is highly disturbing that no fewer than 6 out of 9 of them earned their law degrees from right smack in the middle of s***hole gun hater towns and thus have that as their frame of reference for what they consider normal.

hoffmang
08-10-2011, 11:26 PM
What I am not looking forward to is the inevitable horse-race between Masciandaro and Williams. I don't see a need for competition. I think both cases are really important and I would hate to lose the opportunity to answer the questions in either.

There is panacea and there is reality. These are now co-equal cases. You're "third" thought is "correct" but it may have the wrong cases in its presumptions.


-Gene

ccmc
08-11-2011, 4:43 AM
You might well be right - probably are mostly - at lower levels, and that's why these cases are being appealed. However, as opposed to the lower courts, SCOTUS is supposed (AFAIK) to rule on the constitutionality of the law and not uphold sentencing based on the disobedience of an unconstitional law.

Would it be better if a permit had been requested and denied? Sure. But I don't see it as a case killer here.

Afterthought: Whether he had applied for a permit or not, without one he was breaking the law either way. Therefore why would the judges have more sympathy if he had been denied?

To your afterthought - Here's why it might make a difference IMHO. SCOTUS has already determined that states may regulate the 2A in practice. If a law abiding citizen applies for a carry license and is arbitrarily denied the courts may then turn attention to the state's procedures for granting such carry license ie why did this law abiding citizen get turned down as opposed to turning their attention to the person arrested ie how did you know you wouldn't get a carry license if you never bothered to apply.

Mulay El Raisuli
08-11-2011, 5:20 AM
Go read up on 1A, 4A and 5A cases. With the exception of 5A challenges to "takings", they are comprised largely of people who broke laws and then appealed their convictions. In 2A jurisprudence we have Chester out of the Fourth. The guy is a dirtbag, but the case brought us strict scrutiny for lawful persons.


Our system is simple: an unconstitutional law is an unconstitutional law. It doesn't matter if you failed to ask for permission to protest abortion; did not get permission to hand out leaflets against a candidate in a one-party town; fell asleep with a gun in your trunk; or got busted carrying your gun home.

The Supreme Court has not exactly shied from some pretty nasty defendants. See Miranda. My concern is the purity test I see in here. We have two "clean" defendants whose only crime was failing to follow rules that everyone here says are unconstitutional. Nothing else. According to this theory, no criminal case could ever be appealed. People convicted of doing nothing wrong would have to suck it up and wait for an Due Process argument to save them.

No. If the government nails you for doing nothing wrong, you deserve redress. I like the civil cases, but they will always take a backseat to a compelling criminal case. It's just the way it works. In these criminal cases, the defendants appear to have good representation. Let's hope these good people get their convictions overturned, and in the case of one - stays out of maximum security prison - all "for doing nothing wrong".


Yup. That's why I am so very hopeful about Williams. In addition, the MD Supremes directly 'called out' SCOTUS. That alone makes this one the case to watch.


Question: If one of these at least is successful, and SCOTUS says you have a right to carry outside the home, what happens then in California?
I understand it depends a lot on the language and what they say, but in general, are we looking at another lawsuit? Or 2, or 3, or 58 (1 for each Sheriff)? I know it just won't magically change in California, and I'd imagine that a lot of Sheriffs won't start issuing without being forced to.


Depends on how they answer. The most likely is that permits will become Shall Issue.

But, there is a slight chance that SCOTUS will find Mr. Williams didn't need a permit in the first place. I.E., they could expand on their previously favorable comments about Nunn, Reid, etc & make it clear that LOC really is the enumerated Right.

But, INAL.


The Raisuli

Kharn
08-11-2011, 6:03 AM
Htjyang,
I think you are missing something while fretting over Alito's vote. Have you ever heard the nickname the Bradys have assigned to him?

"Machine Gun Sammy," because he wrote a scathing dissent on how the '86 ban is unconstitutional. Given he also wrote McDonald, I'm not at all worried about which direction he leans in these cases.

Newbius
08-11-2011, 8:14 AM
I think that getting wrapped up in Williams' "suspicious activity" of hiding his gun ignores the very-reality that MD's legal system has a history of racism. As pointed out above, "Driving while Black" originated there. The Black community is justifiably afraid of the police, even when the citizen has done nothing wrong. For a person raised in this culture of oppression, being fearful of police is a reasonable reaction to observed history.

Mr. Williams may have been attempting to lower the probability that his legally-acquired handgun was going to be used as justification for a beating, or worse. We don't know, but local history is educational. Gansler has already stated, (subtly, with a wink and a nod) that he wished to keep 'those people' disarmed. By singling out Prince Georges county and Baltimore city, both majority Black areas, he is trying to say that the state *still* thinks it has some interest in keeping Blacks disarmed.

I am usually the last person to cry 'racism' but, in this case, the law was written with that in mind. For sure, it is enforced that way.

Patrick-2
08-11-2011, 8:18 AM
Question: If one of these at least is successful, and SCOTUS says you have a right to carry outside the home, what happens then in California?
I understand it depends a lot on the language and what they say, but in general, are we looking at another lawsuit? Or 2, or 3, or 58 (1 for each Sheriff)? I know it just won't magically change in California, and I'd imagine that a lot of Sheriffs won't start issuing without being forced to.

I think a good example of how this would work in practice can be found in the 1966 Harper v. Virginia Board of Elections ruling that poll taxes for state elections were unconstitutional. Here we have a case where poll taxes for Federal elections were previously made unconstitutional (via the 24th Amendment), but the state question was left open. The Supreme Court answered it on March 24, 1966 using the Equal Protection Clause of the 14th Amendment (instead of other potentially applicable amendments).

It took another month or so for lawsuits against the four states (Virginia, Texas, Alabama and Mississippi) who still charged the tax to be finalized and settled (they were filed before the SCOTUS ruling). The last state - Mississippi - fell on April 8th.


It's tough to find true parallels, but this one strikes me as close. There are constitutional amendments at stake that the states claimed only applied to the Federal; there are the outlier states determined to deny the civil right to the very end; there is an application of the 14th Amendment to the civil right that makes it applicable to the states; and there are the final "clean-up" of suits to end the practice.

Harper was a pure civil case. There was no criminal charge involved. Hence, nothing is purely parallel. But however the court comes to its conclusion, the process in forcing recognition of the right will be much the same.

Our side has filed suits in most all the may-issue states. If the Supreme Court grants cert to a case (any case) involving the right to bear outside the home, we can expect those civil cases to freeze until the final decision is made. In this event, you should view those civil challenges as critical placeholders for the final disposition of May-Issue (assuming our view prevails) in the states. The end should come quick.

htjyang
08-11-2011, 3:38 PM
Htjyang,
I think you are missing something while fretting over Alito's vote. Have you ever heard the nickname the Bradys have assigned to him?

"Machine Gun Sammy," because he wrote a scathing dissent on how the '86 ban is unconstitutional. Given he also wrote McDonald, I'm not at all worried about which direction he leans in these cases.

I consider Williams to be a low risk case. To my knowledge, he had no priors, which should count in his favor. Newbius's point about the historical background of Maryland's gun control regime is well taken. (Though hypothetical fears of police beating is not going to matter very much to the Court.)

My point however, is that there is no reason to take a case with risks (yes, even low risk) when there are cases with virtually no risks. I consider Masciandaro to be better, and civil cases to be better still.

I would caution people against automatically assuming that the Heller-McDonald majority are "on our side" just because the same people voted correctly in 2 cases. Leaving aside the fact that strictly speaking, Alito's Rybar dissent was on enumerated powers/Commerce Clause and not the 2nd Amendment, according to my observation, Alito seems to be heavily influenced by his federal prosecutor background to tilt heavily in favor of the State when it comes to criminal cases.

The justices have their own priorities. Even if they consider the 2nd Amendment to be important, it is unlikely that they hold it to be of primary importance, let alone it being exclusively so. The justices have competing priorities and I'm not in favor of finding out the hard way which priorities members of the Heller-McDonald majority consider to be more important than the 2nd Amendment.

Patrick-2
08-11-2011, 4:11 PM
I consider Williams to be a low risk case. To my knowledge, he had no priors, which should count in his favor. Newbius's point about the historical background of Maryland's gun control regime is well taken. (Though hypothetical fears of police beating is not going to matter very much to the Court.)


As an interesting side note, Justice Ginsburg was involved in the consent decree that the Feds forced on Prince Georges County for harassing, intimidating and targeting black people using the exact same tactics that they used to target Williams.

press1280
08-11-2011, 4:29 PM
I think there's criminal cases and then there's criminal cases. Williams and Masciandaro aren't the dangerous gang banger sociopaths that we see typically using 2A defenses for their misdeeds. Both legally owned the guns and were not bothering anyone. I'm pretty sure the Heller 5 will be able to tell the difference.

kcbrown
08-11-2011, 5:40 PM
The justices have their own priorities. Even if they consider the 2nd Amendment to be important, it is unlikely that they hold it to be of primary importance, let alone it being exclusively so.

And this, ladies and gentlemen, is why liberty is at death's door here in the U.S.

If there is any set of people in the government who should hold the Constitution to be of primary importance, it's the Supreme Court justices. Indeed, it's their job to do so. If even the best of them do not, then this republic is dead, and it's only a matter of time.

woodsman
08-15-2011, 12:37 PM
Related Washington Post article -

http://www.washingtonpost.com/politics/cases-lining-up-to-ask-supreme-court-to-clarify-second-amendment-rights/2011/08/11/gIQAioihFJ_story_1.html

Mulay El Raisuli
08-16-2011, 5:30 AM
Related Washington Post article -

http://www.washingtonpost.com/politics/cases-lining-up-to-ask-supreme-court-to-clarify-second-amendment-rights/2011/08/11/gIQAioihFJ_story_1.html


Well, Brady is right. Heller/McDonald have been "hollow victories" so far. Here's hoping that this changes real soon.


The Raisuli

Wolverine
08-26-2011, 10:23 AM
An update on the Cert. petition in Masciandaro v. United States. As expected the Supreme Court has granted the U.S. an extension on the time to file their reply to the petition. The new due date is October 11, 2011.

press1280
08-26-2011, 1:52 PM
An update on the Cert. petition in Masciandaro v. United States. As expected the Supreme Court has granted the U.S. an extension on the time to file their reply to the petition. The new due date is October 11, 2011.

The SCOTUS calendar shows almost every Friday in October as a conference day, so it won't be a long wait before they can grant certiorari. That is, unless they can grant certiorari before the US SG response is in, but I don't think that's customary. It only really sets us back 2 weeks(really 2 weeks!).

hoffmang
08-26-2011, 4:29 PM
Well, Brady is right. Heller/McDonald have been "hollow victories" so far. Here's hoping that this changes real soon.


Except in:

Ezell
Sacramento County
Public Housing across the US
Countless cases you never hear about because they don't get prosecuted.

The rate that Don Kilmer confiscates guns back from the government has gone up dramatically after McDonald and Heller.

Don't believe the lie.

-Gene

yellowfin
08-26-2011, 5:18 PM
Kachalsky and Kwong will put belief into people on the East Coast, so waiting for that is like sitting on an LST in a British port on June 5th, 1944.

MikeHoncho
10-07-2011, 2:19 PM
Is Masciandaro the only other "bear" case petitioning this term?

Crom
10-07-2011, 2:27 PM
Is Masciandaro the only other "bear" case petitioning this term?

Since Williams was denied, Yes. Masciandaro is the lone case that deals with the 2A right outside the home.

MikeHoncho
10-12-2011, 4:51 PM
I see the order to respond has been extended until 10-18. Is there any chance this will be considered on the 10-28 conference or will this likely wait until November?

Jason

Al Norris
10-12-2011, 5:27 PM
The Masciandaro team will have 10 days to reply (Nov. 8). Then the case will be scheduled for conference.

So my best guess is the 22nd of Nov. at the soonest.

SilverBulletZ06
10-12-2011, 7:26 PM
The Masciandaro team will have 10 days to reply (Nov. 8). Then the case will be scheduled for conference.

So my best guess is the 22nd of Nov. at the soonest.

They probably have the reply ingredients already done, its just a matter of putting it together.

press1280
10-13-2011, 1:28 AM
The Masciandaro team will have 10 days to reply (Nov. 8). Then the case will be scheduled for conference.

So my best guess is the 22nd of Nov. at the soonest.

Masciandaro's response would be due October 28th(SG due the 18th barring another delay). I thought when the SG's response is in, that it would be distributed automatically since Masciandaro doesn't need to reply. In any event, Nov. 4th is the next conference day after Oct. 28th.
I expect the SG to tell SCOTUS not to take the case because they should take a different case, and shouldn't address sensitive places yet.

mattlevy
10-18-2011, 1:35 PM
The SG's brief is in (http://cloudigylaw.com/the-solicitor-general-weighs-in-at-last/).

Best,

Matt

curtisfong
10-18-2011, 2:05 PM
I expect the SG to tell SCOTUS not to take the case because they should take a different case, and shouldn't address sensitive places yet.

Give this man a cigar!

Gray Peterson
10-18-2011, 3:09 PM
Masciandaro's response would be due October 28th(SG due the 18th barring another delay). I thought when the SG's response is in, that it would be distributed automatically since Masciandaro doesn't need to reply. In any event, Nov. 4th is the next conference day after Oct. 28th.
I expect the SG to tell SCOTUS not to take the case because they should take a different case, and shouldn't address sensitive places yet.

Moreover, contrary to petitioner’s assertion (Pet. 10),
this case does not “cleanly present[] the question of whether a
Second Amendment right to self-defense exists outside the home.”
Section 2.4(b) does not apply generally to conduct in public
places, but applies only to NPS land.

If they need a cleanly presented case, there's numerous ones in the courts of appeal.

Smokeybehr
10-18-2011, 3:10 PM
Isn't the Lanny Breuer whose name appears on the SG Brief the SAME Lanny Breuer that's involved up to his eyeballs in the Gunwalker/F&F mess? There's something rather rotten over at DOJ.

krucam
10-18-2011, 3:17 PM
The SG brief was a Softball pitch (slow). It will get slaughtered in 10 days. And if not, as Gray says...

Crom
10-18-2011, 3:36 PM
I have not read all the briefs in this case but after reading the SG's brief, I am convinced that SCOTUS will not review Masciandaro. I think we're going to have to wait for one of the civil cases next term.

BlindRacer
10-18-2011, 3:39 PM
The SG brief was a Softball pitch (slow). It will get slaughtered in 10 days. And if not, as Gray says...

Just read it. It did seem rather...lacking. Thorough I guess, but there are not really any good arguments on their side.

Still don't know if this is going to be the case that the SC wants though. Having to do with NPS land could be an issue that isn't as clean as something else that could be on the horizon.

Looking forward to the reply brief. THAT should be a good read.

OleCuss
10-18-2011, 3:53 PM
I'll admit to having absolutely no legal training - just to make sure no one thinks I have illusions of brilliance in the matter as I make what is likely an invalid point. . .

I scanned the brief and would note that I find it interesting that they are applying scrutiny to carry on NPS lands.

Since the Congress effectively found that there really is no substantial (federal) governmental interest in restricting the carrying of handguns on non-sensitive NPS properties (by passing legislation which allows carry?) how can they still argue that a scrutiny argument could apply?

I understand the argument that says that you violated the law/regulation when it was still in force and just because the law or regulation is now non-existent it, you still broke the law. But in this case I'm just going after the scrutiny argument with regard to carry on NPS land which I think might best be considered moot based on Congress' actions.

krucam
10-18-2011, 3:57 PM
I have not read all the briefs in this case but after reading the SG's brief, I am convinced that SCOTUS will not review Masciandaro. I think we're going to have to wait for one of the civil cases next term.

The Respondents/SG strongest argument (IMHO) is their appeal to the Court of why are we deciding the result of a law (36 C.F.R. 2.4(b)) that no longer exists (eliminated by the Credit Card law in 2009)?

Petitioner/Plaintiffs need to keep the Court's eyes on their ball, that being that the right to Bear exists outside the home.

They also need to push the Circuit Split (CA7 Ezell vs CA4 Masciandaro) on the analysis used in the two cases. Bear is spelled out in the Amendment. Bear was defined by the Heller Court. Ergo, Bear is Core to the right. This should be a slam dunk on those merits as respondents try to skirt the analysis issue.

As they say, this is why we play the game.

SilverBulletZ06
10-18-2011, 5:41 PM
You can read it or I can save you the trouble.

1st half- case history.
2nd half- review of findings of other judges and that the SCOTUS should not hear this because the other courts accepted that the 2A applies outside the home, but says that the .gov can basically limit the carrying of firearms anywhere, at any time, for any reason.


This is the most poorly written rebuttal I have read to date. It contains no new information, makes no new claims, refutes nothing in the original writ, and makes no point as to why judicial review isn't needed after the courts gave the .gov carte blanche for restricting a right which they accepted as an individual right outside the home. Applied to the 1A the courts would say that you could only have a church where the .gov decides and if they decide no then that is good enough for the appeals process.

MIND YOU THE U.S. SOLICITOR GENERAL TOOK 67DAYS TO DRAFT THIS DOCUMENT OF THE WHOOPING 16 PAGES INCLUDING TITLE, SUMMARY, AND ENDORSEMENT.


Very poor on the part of the .gov. Very good on our part, possibly. Doesn't look like the .gov is taking this one seriously, maybe because they feel that the SCOTUS refused one 2A case already.

Crom
10-18-2011, 7:18 PM
The Respondents/SG strongest argument (IMHO) is their appeal to the Court of why are we deciding the result of a law (36 C.F.R. 2.4(b)) that no longer exists (eliminated by the Credit Card law in 2009)?

Petitioner/Plaintiffs need to keep the Court's eyes on their ball, that being that the right to Bear exists outside the home.

They also need to push the Circuit Split (CA7 Ezell vs CA4 Masciandaro) on the analysis used in the two cases. Bear is spelled out in the Amendment. Bear was defined by the Heller Court. Ergo, Bear is Core to the right. This should be a slam dunk on those merits as respondents try to skirt the analysis issue.

As they say, this is why we play the game.

I'd love to be wrong, but I don't think they'll hear the case. Here is why I think this.

Masciandaro made two huge mistakes. First he parked illegally drawing the attention of the NPS ranger. Two, he volunteered the information to the police to help convict him. Not too smart! Both were completely within his control and he could have avoided them by being a bit more careful. Lastly, it was a small $150 fine [don't know if jail time was involved].


The Court is in the business of settling controversies. The law Masciandaro was convicted of (36 C.F.R. 2.4(h) was nullified by Congress by passing the Credit Card Act of 2010. No more controversy.

Now the appeals court cited one case and one law. If that's good law, then I really don't think the high Court will hear the case. I think they'll wait for a much more robust civil case.


Petitioner argued that his conviction was invalid under
36 C.F.R. 2.4(h) and the Credit CARD Act. The court of appeals
rejected that contention, relying on United States v. Hark, 320
5 U.S. 531 (1944), which held that “revocation of [a] regulation
[does] not prevent indictment and conviction for violation of its
provisions at a time when it remained in force,” id. at 536, as
well as the general savings statute, 1 U.S.C. 109, which provides
that “[t]he repeal of any statute shall not have the effect to
release or extinguish any penalty, forfeiture, or liability
incurred under such statute, unless the repealing Act shall so
expressly provide.”

OleCuss
10-18-2011, 7:30 PM
You're changing my mind on the probabilities. Since I was more hopeful than I am now, I'm not sure I'm going the thank you. ;)

press1280
10-19-2011, 3:04 AM
I'd love to be wrong, but I don't think they'll hear the case. Here is why I think this.

Masciandaro made two huge mistakes. First he parked illegally drawing the attention of the NPS ranger. Two, he volunteered the information to the police to help convict him. Not too smart! Both were completely within his control and he could have avoided them by being a bit more careful. Lastly, it was a small $150 fine [don't know if jail time was involved].


The Court is in the business of settling controversies. The law Masciandaro was convicted of (36 C.F.R. 2.4(h) was nullified by Congress by passing the Credit Card Act of 2010. No more controversy.

Now the appeals court cited one case and one law. If that's good law, then I really don't think the high Court will hear the case. I think they'll wait for a much more robust civil case.

You may be right, however, the reasons you cite could be why they do take it. First, they kicked Williams to the curb last week. If they had taken Williams, we would have been likely looking at the death blow to may-issue in one fell swoop. This would have sent shockwaves through all of the remaining holdouts as far as LTC issuance goes. While Masciandaro winning wouldn't overturn any law, SCOTUS may see this as a way to steer the 2A landscape without getting their hands dirty. The circuit and district courts seem to not want to address the issue because they don't want to be held accountable if there's some big shooting occuring after a pro-2A ruling. This case gives ample opportunity for SCOTUS to tell the lower courts to do their job and actually do a historical analysis instead of just asking the Bradys what they think. And remember the 4th circuit specifically asked for guidance on sensitive places.
Next, although Masciandaro's penalty was very minor, he might come across as pretty sympathetic, sleeping in his car to save money while traveling long distances for his business makes him seem like a hard-working guy just trying to make ends meet. I believe the parking ticket doesn't factor in, as almost everyone has a traffic/parking infraction at some point in their life.
It just seems to me this case is good because there's a lot of flexibility for SCOTUS. They could possibly take the case, make a short ruling with instructions for lower courts as well as find the 2A isn't limited to the home, and send back to the 4th Circuit. They also could just outright find NPS lands aren't sensitive, and reverse the conviction.
Bottom line, SCOTUS knows they have to address these issues at some point. The lower courts(w/the exception of Ezell) have universally sat on their hands and offered nothing as far as a 2A analysis. The other carry cases may not make it in time for this term. This case is a way to shake things up instead of having to wait another year through 20 more "only in the home" opinions.

Patrick-2
10-19-2011, 5:32 AM
Interesting dodge of several issues and a decent response to others. The government does mention the Credit Card Act got rid of the law, so the rule of the court would not specifically affect NPS lands in the near term (Congress fixed that already), but then also left out that Masciandaro is still convicted of what he contends is an unjust law.

On the one hand the SG argues that the Court should not issue advisory opinions (which is what they claim the petition proposes), but on the other they argue that the court should not take the case because it would not be advisory - they argue that the underlying law has changed, so there is no need to answer a question that does not determine future outcomes. Circular logic that still leaves open the issue of the actual conviction. Just as the court should not be the court of first impression, they should not rule only for the next victim.

The SG response revises the question to eliminate the larger "outside the home" question, as expected. They want to make this about NPS lands, and nothing but. This way they could lose and still leave open the larger question.

One issue I think the government does well with is attacking the aspirational aspects of the original petition. By this, I mean the proposition that this case is an excellent way to answer deeper philosophical issues (standards, court intransigence, the "meaning" of the Second Amendment, etc.). We all want this, but there needs to be a stronger connection between what happened to the petitioner and what we want the court to do. There must be a steel-plated cable between the conviction and the desired outcome: getting the conviction overturned. We all want that line to traverse the "outside the home" question, so there needs to be strong reason to go that route.

The Court is in the business of settling controversies. The law Masciandaro was convicted of (36 C.F.R. 2.4(h) was nullified by Congress by passing the Credit Card Act of 2010. No more controversy.

Masciandaro was harmed, though not grievously. There is a path to correct that harm. We see it, we just need to lock it in without distracting the argument with deeper meanings. Whether the court takes it is another matter; I thought that both this case and Williams deserved their hearing, so we'll see where this goes.

Need to re-read this a few more times...

Edit: I use the word "we" a lot. To be clear, I speak of the 'collective we' that have a stake in the outcome of these questions. That said, the hard work is done by people like Matt, to whom we are ever grateful. There are smart folks here - maybe a few of them toss some ideas that spark an even smarter response from Matt and his team. After all, his post on the Cloudigy site did ask for thoughts...

Mulay El Raisuli
10-19-2011, 6:47 AM
I'd love to be wrong, but I don't think they'll hear the case. Here is why I think this.

Masciandaro made two huge mistakes. First he parked illegally drawing the attention of the NPS ranger. Two, he volunteered the information to the police to help convict him. Not too smart! Both were completely within his control and he could have avoided them by being a bit more careful. Lastly, it was a small $150 fine [don't know if jail time was involved].


The Court is in the business of settling controversies. The law Masciandaro was convicted of (36 C.F.R. 2.4(h) was nullified by Congress by passing the Credit Card Act of 2010. No more controversy.

Now the appeals court cited one case and one law. If that's good law, then I really don't think the high Court will hear the case. I think they'll wait for a much more robust civil case.


OTOH, Mr. Masciandaro is a 'good' criminal defendant. Bad parking is worlds ahead of just about any other crime that could bring the issue of "and bear" to the Court. Reversing his conviction wouldn't send a bad guy back to the street. Yet, the question asked by the 4th & the MD Supremes (does the 2A apply outside of the home?) does need an answer. Saying "yes" here would avoid all the drama inherent in overturning a still-extant law. It would then, be "pure,"giving guidance to the lower courts w/o slapping anyone down.

I have no idea if this matters to SCOTUS.


The Raisuli

kcbrown
10-19-2011, 6:49 AM
You may be right, however, the reasons you cite could be why they do take it. First, they kicked Williams to the curb last week. If they had taken Williams, we would have been likely looking at the death blow to may-issue in one fell swoop. This would have sent shockwaves through all of the remaining holdouts as far as LTC issuance goes. While Masciandaro winning wouldn't overturn any law, SCOTUS may see this as a way to steer the 2A landscape without getting their hands dirty. The circuit and district courts seem to not want to address the issue because they don't want to be held accountable if there's some big shooting occuring after a pro-2A ruling. This case gives ample opportunity for SCOTUS to tell the lower courts to do their job and actually do a historical analysis instead of just asking the Bradys what they think.


It won't help.

The lower courts that want to rule against 2A will do an "historical analysis" in the same way Breyer did in Heller. They will pick and choose the historical evidence they want to use to back their predetermined position.

And that means the cases in question are going to have to go before SCOTUS anyway.


Understand this: without explicit instructions from SCOTUS on how to rule and when, the lower courts will never properly recognize the right to keep and bear arms except when they actually want to.

mattlevy
10-28-2011, 7:37 AM
We filed a reply brief on behalf of Mr. Masciandaro today. You can get a copy of all of the briefs at http://cloudigylaw.com/the-hardest-part-waiting-for-the-supreme-court/

Best,

Matt Levy

OleCuss
10-28-2011, 8:11 AM
Thank you for the heads-up!

Crom
10-28-2011, 8:16 AM
Matt, The brief looks really good. I do hope the case is granted cert. :)

OleCuss
10-28-2011, 8:23 AM
I've now read it through as well. I think it is well written and reasoned - but I'm no lawyer.

It also made me laugh! "Waiting for Godot", indeed!

Kharn
10-28-2011, 8:59 AM
mattlevy,
Thanks! it's great to not wait day to weeks for filings like with some cases.

BlindRacer
10-28-2011, 9:34 AM
In the middle of reading the reply...

I hope I'm not seeing a potential 'out' for SCOTUS to rule more narrowly than we'd like.

It looks like the question could be answered in such a way to allow loaded weapons outside the home, but they could restrict the ruling (or have Heller type confusion).

They could easily rule, "The right to bare arms extends outside of the home, most notably in a temporary domicile, such as a motor vehicle."
or more narrowly...
"The right to bare arms extends to a temporary domicile, such as a motor vehicle."

Then we'll have another 2 years of "You have no right outside of your home, or a temporary domicile."


Am I seeing this wrong? I don't think this case is going to bring loaded carry for the purpose of self defense to the general public. Obviously a win would be a great step in the right direction, but unless SCOTUS words things correctly, we may be not much further than we are now, except for the right to carry in a temporary domicile. Which we already have for the most part here.

Glock22Fan
10-28-2011, 10:05 AM
In the middle of reading the reply...

I hope I'm not seeing a potential 'out' for SCOTUS to rule more narrowly than we'd like.

It looks like the question could be answered in such a way to allow loaded weapons outside the home, but they could restrict the ruling (or have Heller type confusion).

They could easily rule, "The right to bare arms extends outside of the home, most notably in a temporary domicile, such as a motor vehicle."
or more narrowly...
"The right to bare arms extends to a temporary domicile, such as a motor vehicle."

Then we'll have another 2 years of "You have no right outside of your home, or a temporary domicile."


Am I seeing this wrong? I don't think this case is going to bring loaded carry for the purpose of self defense to the general public. Obviously a win would be a great step in the right direction, but unless SCOTUS words things correctly, we may be not much further than we are now, except for the right to carry in a temporary domicile. Which we already have for the most part here.

Maybe they will do just that, but that really would be like sticking pins into a kitten. The lower courts have demonstrated what they can do with Heller and MacDonald, why would the supremes want a continuation of this with the concept "In the home or temporary home?" They'd simply be prolonging the inevitable. I think that the Supremes will do what it takes for the lower courts to step into line.

Furthermore, please note that you can bare arms pretty much anywhere you like without any fear of penalty.

OleCuss
10-28-2011, 10:08 AM
I don't think I'd worry overly much. If SCOTUS takes the case it will likely be so that they can set into stone the idea that you can actually bear arms rather than just store them in your home. They can craft a response which is fairly broad or fairly narrow.

I'd worry more about what votes are available in SCOTUS for any sort of ruling at all. While I have some hope that Masciandaro gets cert - if those who believe in the RKBA don't think they can get 5 votes to state unequivocally that the RKBA extends outside the home, then I hope the case does not get cert.

I think it is tricky business and it will have to be just the right case brought by just the right lawyer(s) when the court is in the right mood - or you don't get cert (or you get bad case law).

Remember, getting cert is not necessarily a good thing. What if you get cert and SCOTUS has a 5-4 decision saying that the RKBA is recognized only in the home? The core right might then be storage in the home for immediate self-defense purposes and the right to purchase and transport a firearm to home or to the range or to the gun shop.

So if a case doesn't get cert because the good guys perceive a probability of bad case law - maybe we should rejoice? Of course, since we don't know why the case doesn't get cert we also don't know whether we should rejoice or mourn.

BlindRacer
10-28-2011, 10:16 AM
Maybe they will do just that, but that really would be like sticking pins into a kitten. The lower courts have demonstrated what they can do with Heller and MacDonald, why would the supremes want a continuation of this with the concept "In the home or temporary home?" They'd simply be prolonging the inevitable. I think that the Supremes will do what it takes for the lower courts to step into line.

Furthermore, please note that you can bare arms pretty much anywhere you like without any fear of penalty.

I agree. The likelihood of SCOTUS ruling in such a manner, if they were to take this case is pretty slim. What reason would they take the case if they were basically going to continue with the status quo. If they do end up taking the case, it will probably be so they can clarify their previous ruling in Heller, that the right does extend outside the home. Hopefully if they do end up doing that, they learned that the lower courts and anti's will twist EVERYTHING, and they'll possibly reconsider wording things like "most notably in the home." Simply because of that one line, basically all of the lower courts, msm, .gov, and anti's have said "only in the home." Although wrongly, it still allowed them a way to wiggle around the actual ruling.

krucam
10-28-2011, 11:11 AM
I agree. The likelihood of SCOTUS ruling in such a manner, if they were to take this case is pretty slim. What reason would they take the case if they were basically going to continue with the status quo. If they do end up taking the case, it will probably be so they can clarify their previous ruling in Heller, that the right does extend outside the home. Hopefully if they do end up doing that, they learned that the lower courts and anti's will twist EVERYTHING, and they'll possibly reconsider wording things like "most notably in the home." Simply because of that one line, basically all of the lower courts, msm, .gov, and anti's have said "only in the home." Although wrongly, it still allowed them a way to wiggle around the actual ruling.

You're looking at it solely from today's 16pg content of their Reply to SG Response. Go back and look at the initial Petition (In Matt's cloudigy link) and the subject becomes much broader. Today's 16 pages is to 1) Address SG arguments (or lack thereof), and 2) Get the final word in to convince the Court to grant cert.

Kharn
10-28-2011, 11:19 AM
I like the explicit statement that Masciandaro will not invalidate a host of laws, that may be the push we need to get cert.

wildhawker
10-28-2011, 12:57 PM
Matt,

Thanks for the update and for participating here. Obviously we're all quite interested in your case and hope for the best possible outcome for your client.

-Brandon

We filed a reply brief on behalf of Mr. Masciandaro today. You can get a copy of all of the briefs at http://cloudigylaw.com/the-hardest-part-waiting-for-the-supreme-court/

Best,

Matt Levy

yellowfin
10-28-2011, 3:41 PM
Question: can an organization sign on to multiple amicus briefs for the same case?

Mulay El Raisuli
10-29-2011, 5:14 AM
We filed a reply brief on behalf of Mr. Masciandaro today. You can get a copy of all of the briefs at http://cloudigylaw.com/the-hardest-part-waiting-for-the-supreme-court/

Best,

Matt Levy


Bless you!

Also, p. 15 (of the .pdf) seems to translate as "The lower courts need to be bench-slapped. Would you please do so?" Presuming I'm right, bless you for that too. :)


The Raisuli

sholling
10-29-2011, 8:57 AM
I don't think I'd worry overly much. If SCOTUS takes the case it will likely be so that they can set into stone the idea that you can actually bear arms rather than just store them in your home. They can craft a response which is fairly broad or fairly narrow.

I'd worry more about what votes are available in SCOTUS for any sort of ruling at all. While I have some hope that Masciandaro gets cert - if those who believe in the RKBA don't think they can get 5 votes to state unequivocally that the RKBA extends outside the home, then I hope the case does not get cert.

I think it is tricky business and it will have to be just the right case brought by just the right lawyer(s) when the court is in the right mood - or you don't get cert (or you get bad case law).

Remember, getting cert is not necessarily a good thing. What if you get cert and SCOTUS has a 5-4 decision saying that the RKBA is recognized only in the home? The core right might then be storage in the home for immediate self-defense purposes and the right to purchase and transport a firearm to home or to the range or to the gun shop.

So if a case doesn't get cert because the good guys perceive a probability of bad case law - maybe we should rejoice? Of course, since we don't know why the case doesn't get cert we also don't know whether we should rejoice or mourn.
This is a very good point and one that we don't give enough thought. The court has four justices that are mostly in our camp (except when it conflicts with "law & order"), four that would repudiate Heller and replace it with a reading that completely bans private ownership of weapons of all types, and then there is Kennedy. Kennedy has to be seduced to the 2nd Amendment side like a skittish virgin and like a skittish virgin he's only going to let us go so far so fast. Heller was 1st base and McDonald was pretty much a given once we had Heller but Kennedy is going to have to be warmed up to the idea of "bear" (2nd base) and could easily get skittish and push back with a resounding "NO, STOP!" if handed the wrong case. I actually think that the judicial revolt underway may help simply because he can't allow the revolt to continue and has to send a loud and clear message to the lower courts.

Only once Kennedy is comfortable that carry didn't lead to blood in the streets is he going to be willing to address mean looking rifles and full capacity magazines (3rd base) and I'm not sure he'll buy into the full capacity magazines half of the argument. That may require waiting for the next high court appointment which means that the 2012 election is critical. If we don't get a very 2nd Amendment friendly replacement for Ginsburg then 2nd Amendment gains like full capacity magazines may be stalled for 10 years or more. In reality it may take two or three very 2nd Amendment friendly libertarian appointments, enough to overcome the "law & order" and "anti" factions, before we see a substantial number of 2nd Amendment martyrs liberated.

Gray Peterson
10-29-2011, 9:43 AM
This is a very good point and one that we don't give enough thought. The court has four justices that are mostly in our camp (except when it conflicts with "law & order"), four that would repudiate Heller and replace it with a reading that completely bans private ownership of weapons of all types, and then there is Kennedy. Kennedy has to be seduced to the 2nd Amendment side like a skittish virgin and like a skittish virgin he's only going to let us go so far so fast. Heller was 1st base and McDonald was pretty much a given once we had Heller but Kennedy is going to have to be warmed up to the idea of "bear" (2nd base) and could easily get skittish and push back with a resounding "NO, STOP!" if handed the wrong case. I actually think that the judicial revolt underway may help simply because he can't allow the revolt to continue and has to send a loud and clear message to the lower courts.

Only once Kennedy is comfortable that carry didn't lead to blood in the streets is he going to be willing to address mean looking rifles and full capacity magazines (3rd base) and I'm not sure he'll buy into the full capacity magazines half of the argument. That may require waiting for the next high court appointment which means that the 2012 election is critical. If we don't get a very 2nd Amendment friendly replacement for Ginsburg then 2nd Amendment gains like full capacity magazines may be stalled for 10 years or more. In reality it may take two or three very 2nd Amendment friendly libertarian appointments, enough to overcome the "law & order" and "anti" factions, before we see a substantial number of 2nd Amendment martyrs liberated.

"Second Amendments Martyrs"?

What makes you think Kennedy is an issue here? He fully signed on to Heller and McDonald and his history suggests generally a "pro-liberty" approach.

Kennedy is very well aware of the California LTC system's may-issue problems. He was one of the panel in Guillory v. County of Orange.

OleCuss
10-29-2011, 10:10 AM
It is, indeed, encouraging to have that perspective added. Thank you.

sholling
10-29-2011, 12:27 PM
"Second Amendments Martyrs"?
It's a fitting description of those imprisoned solely for exercising their constitutional right to keep and bear arms in violation of whatever unconstitutional legal infringements happen to be in place at the time. The gun owners that refused to ride in the back of the bus (or didn't know they were supposed to be in the back of the bus) or give up their seats to a Brady and are paying the price.

What makes you think Kennedy is an issue here? He fully signed on to Heller and McDonald and his history suggests generally a "pro-liberty" approach.
History, Kennedy is usually the swing vote and as for his generally "pro-liberty" approach how well did that workout for Kelo (http://civilliberty.about.com/od/freetradeopenmarkets/p/kelovlondon.htm)? He's "pro-liberty" or pro statism depending how well a case is sold and how important he feels a particular liberty is. In other words a public "good" vs individual rights balancer. My point is that while he may lean our way that does not mean that he won't get timid and decide that "bear" or "mean looking guns" are too dangerous to be protected. I suspect that's why there was as much "presumptively constitutional" restrictions talk as there was in Heller. As we get more precedents on our side I think he'll feel more secure about voting our way. I'm just not sure that he would ever have the goodies to protect full capacity magazines.

Kennedy is very well aware of the California LTC system's may-issue problems. He was one of the panel in Guillory v. County of Orange.
I hope that you're right.

SilverBulletZ06
10-30-2011, 6:24 AM
I'm a little disappointed in Guras reply to the government. Put the gun laws on trial! The laws in 10 states refuse to allow "keep and carry in case of confrontation", instead watering it down to, at best, "keep under strict observation" with many potholes and speed bumps in the way.

wilmamiller32
10-30-2011, 6:44 AM
interesting thread!
http://www.cuinsurance.org/7.jpghttp://www.cuinsurance.org/2.jpg http://www.cuinsurance.org/3.jpg

Kharn
10-30-2011, 6:55 AM
I'm a little disappointed in Guras reply to the government. Put the gun laws on trial! The laws in 10 states refuse to allow "keep and carry in case of confrontation", instead watering it down to, at best, "keep under strict observation" with many potholes and speed bumps in the way.If the Court wanted to decide that question, they would have granted cert for Williams.

hoffmang
10-30-2011, 10:16 AM
I'm a little disappointed in Guras reply to the government. Put the gun laws on trial! The laws in 10 states refuse to allow "keep and carry in case of confrontation", instead watering it down to, at best, "keep under strict observation" with many potholes and speed bumps in the way.

Just to clarify - Gura did not reply to the government. Petitioner's counsel did. Gura had filed an earlier Amicus brief.

BTW: The historical analysis found in Heller and in the dissent in Heller II is far, far from toothless. It's a version of strict scrutiny in fact, just not in name.

Also, one should not read too much into the Wiliams no grant. The only thing that can be read in small is that SCOTUS isn't looking to strike carry laws wholesale - something I know I've been trying to express to everyone for a while. That doesn't mean that SCOTUS isn't going to force states to respect the right to carry though.

-Gene

SilverBulletZ06
10-30-2011, 6:00 PM
Just to clarify - Gura did not reply to the government. Petitioner's counsel did. Gura had filed an earlier Amicus brief.

BTW: The historical analysis found in Heller and in the dissent in Heller II is far, far from toothless. It's a version of strict scrutiny in fact, just not in name.

Also, one should not read too much into the Wiliams no grant. The only thing that can be read in small is that SCOTUS isn't looking to strike carry laws wholesale - something I know I've been trying to express to everyone for a while. That doesn't mean that SCOTUS isn't going to force states to respect the right to carry though.

-Gene
I could have sworn Gura tagged in on this, my bad.

I'm not saying we should strike all gun laws, but I think that "shall issue" is good, though I would prefer more constitutional carry styled laws. We shall see if the SCOTUS takes this case. Living in a "screw you" part of NYS, getting a carry permit outside LEO is impossible. I actually filed an FOIA to look at the approved unrestricted carry permits current in the county.

press1280
10-31-2011, 2:01 AM
I could have sworn Gura tagged in on this, my bad.

I'm not saying we should strike all gun laws, but I think that "shall issue" is good, though I would prefer more constitutional carry styled laws. We shall see if the SCOTUS takes this case. Living in a "screw you" part of NYS, getting a carry permit outside LEO is impossible. I actually filed an FOIA to look at the approved unrestricted carry permits current in the county.

Did you get anywhere with that? Outside of CA, I'm pretty sure all the restrictive states have statutes that won't allow them to release that information. And for obvious reasons, it would most likely be the same thing that happened to Ventura County.You'll see a number of both denials and approvals with shockingly similiar good cause statements.

Kharn
10-31-2011, 3:25 AM
MD will release a statistical report on the current permits, but they will not release good cause statements under the state's FOIA-equilvalent.
Its kind of interesting to see that X (not zero) housewives have a permit due to their occupation, when "personal protection/death threat" is a different occupation code (only one occupation code per person). Gun collectors also have an occupation code, I've thought about applying a few times due to my NFA stuff but I've never gone through with it.

SilverBulletZ06
10-31-2011, 5:02 AM
Did you get anywhere with that? Outside of CA, I'm pretty sure all the restrictive states have statutes that won't allow them to release that information. And for obvious reasons, it would most likely be the same thing that happened to Ventura County.You'll see a number of both denials and approvals with shockingly similiar good cause statements.

NY ruled earlier to release the same documents in NYC to the press. NYS has the pistol permit applications under "public records".

Maestro Pistolero
10-31-2011, 9:01 AM
NY ruled earlier to release the same documents in NYC to the press. NYS has the pistol permit applications under "public records".

So what was their response to you, or are you still waiting?

Al Norris
11-01-2011, 7:30 AM
From the SCOTUS Docket (http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/10-11212.htm):

Nov 1 2011 DISTRIBUTED for Conference of November 22, 2011.

Happy Thanksgiving.

yellowfin
11-01-2011, 9:31 AM
NY ruled earlier to release the same documents in NYC to the press. NYS has the pistol permit applications under "public records".Here's the quirky thing: a source told me that apparently they can keep "proper cause" statements hidden from inquiry to frustrate equal protection suits.

SilverBulletZ06
11-06-2011, 12:56 PM
Here's the quirky thing: a source told me that apparently they can keep "proper cause" statements hidden from inquiry to frustrate equal protection suits.

I got nothing but time to add more and more requests. :oji:

htjyang
11-06-2011, 1:30 PM
From the SCOTUS Docket (http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/10-11212.htm):

Nov 1 2011 DISTRIBUTED for Conference of November 22, 2011.

Happy Thanksgiving.

So, where are the alarmist press reports:

Associated Press: On the 48th anniversary of the Kennedy assassination, the Supreme Court will hold a conference to decide whether to hear a case that may weaken gun control laws in the country....

SilverBulletZ06
11-21-2011, 7:09 PM
Here's the quirky thing: a source told me that apparently they can keep "proper cause" statements hidden from inquiry to frustrate equal protection suits.

Got my request back, you called it: You cannot FOIA unrestricted permit info. You cannot FOIA unrestricted permit "proper cause statements". While the list of permit holders is open for FOIA (just names and address'), you cannot ask for the list of just unrestricted carry holders.

Also, there is apparently NO review of the methodology for the licensing authorities. We are supposed to just go with it. I found that most strange.

ckprax
11-22-2011, 6:25 AM
From the SCOTUS Docket (http://www.supremecourt.gov/Search.aspx?FileName=/docketfiles/10-11212.htm):

Nov 1 2011 DISTRIBUTED for Conference of November 22, 2011.

Happy Thanksgiving.

Well... today's the day. I hope all goes well and we get some good news in a week or two.

yellowfin
11-22-2011, 7:29 AM
Got my request back, you called it: You cannot FOIA unrestricted permit info. You cannot FOIA unrestricted permit "proper cause statements". While the list of permit holders is open for FOIA (just names and address'), you cannot ask for the list of just unrestricted carry holders.

Also, there is apparently NO review of the methodology for the licensing authorities. We are supposed to just go with it. I found that most strange.It's not strange, it's deliberate. Unlike California, these people are pros with the iron fist routine. We're going to need to sue them to get our own version of Guillory v. Gates. Maybe the Kachalsky case will get it for us, but maybe it won't so we'll probably need another suit following it. They know if they give out the proper cause statements voluntarily their license system is toast, and they have the means to stonewall us for the moment because it's systemically entrenched and the state judiciary complicit in the problem.

wildhawker
11-22-2011, 8:14 AM
Why would you want to waste your time and money on a Guillory action?

BlindRacer
11-22-2011, 8:20 AM
Well... today's the day. I hope all goes well and we get some good news in a week or two.

I had it on my calendar too. Is today the day that they review it, and release their decision (whether they take cert) in the coming weeks?

yellowfin
11-22-2011, 8:31 AM
Why would you want to waste your time and money on a Guillory action?We have LESS than California has on 14th Amendment protection, and depending on how the right to carry suits line up we're probably going to have to sue NY after Kachalsky to make them comply. The NY state court system and the 2nd Circuit are much more hardened and entwined with each other than CA's and the 9th. We're probably going to still have to chase down NYC, Nassau, Suffolk, Albany, Monroe, Tompkins, and Niagara counties and make them change their ways. We're going to need Equal Protection established even within a licensing system because they're going to want to wriggle their way out of things like they always have. Even after SCOTUS tells Westchester they have to issue a license to Mr. Kachalsky, they're STILL going to tell the next 10 people in line "Well, they didn't say we have to give YOU one."

NY is a different animal than CA. It's going to need a LOT more arrows stuck in it for it to be subdued. Based on what I know from living among people here the psychology and disposition of government is such that it's too used to being unchallenged and absolute in power. It can be expected to resort to DC and Chicago style tactics, with 100-200 years of experience in doing so.

Paladin
11-22-2011, 3:01 PM
Nov 1 2011 DISTRIBUTED for Conference of November 22, 2011.
It's 7:00 pm their time (EST). Any news on how the conference went?

Glock22Fan
11-22-2011, 3:22 PM
It's 7:00 pm their time (EST). Any news on how the conference went?

]No opinions next week (http://www.scotusblog.com/2011/11/routine-orders-issued/)[/COLOR][/COLOR]

By (http://www.scotusblog.com/2011/11/routine-orders-issued/)[COLOR=#0000ff]Lyle Denniston (http://www.scotusblog.com/author/lyle-denniston/) on Nov 22, 2011 at 4:16 pm

(http://www.scotusblog.com/2011/11/routine-orders-issued/)

The Supreme Court on Tuesday afternoon announced that it will release orders on new cases on Monday, at 10 a.m. That will include any orders granting new cases. There will be no opinions issued in argued cases during the week. Earlier Tuesday, the Court released several routine (http://www.scotusblog.com/2011/11/routine-orders-issued/)orders in pending cases (http://sblog.s3.amazonaws.com/wp-content/uploads/2011/11/orders-11-22-11.docx) following its pre-holiday Conference.

(http://www.scotusblog.com/2011/11/routine-orders-issued/)
This is all it seems to say on ScotusBlog. Sorry about the formatting, it's got a load of apparently hidden stuff that will not go away on editing.

The "orders in pending cases" link does not show anything about Masciandaro.

hoffmang
11-22-2011, 6:42 PM
You will hear about today's conference generally next week.

It can easily be held over 1-3 conferences and still get cert. I believe Heller was held three conferences IIRC.

-Gene

safewaysecurity
11-22-2011, 6:48 PM
You will hear about today's conference generally next week.

It can easily be held over 1-3 conferences and still get cert. I believe Heller was held three conferences IIRC.

-Gene

So how likely do you think it is that this case gets granted cert? I've heard the chances are good.

Uxi
11-23-2011, 1:39 PM
Hopefully (2). If SAF and NRA succeed in their PIs in Illinois, could we do the same... For this option to work, would it require the Illionois PIs to fail at the lowest level and win on appeal so we could dare the 9th into another circuit split?

With these recent SCOTUS filings, the anticipation is building.

This could be great. Ideal situation would be to blow GFSZ out of the water, if not establish LOC.

I'll stay cautiously optimistic, though and expect much less, though.

krucam
11-23-2011, 2:45 PM
This could be great. Ideal situation would be to blow GFSZ out of the water, if not establish LOC.

I'll stay cautiously optimistic, though and expect much less, though.

The MD Ct of Appeals (Williams) "thumbed their noses" to the Supreme Court, saying if you mean outside the home, say so more plainly.

As we know, Williams was denied Cert...

Judge Harvey Wilkinson (4th Ckt) in ruling against Masciandaro at the Circuit, quoted MD Ct of Appeals' nose-thumbing in their ruling.

I really, truly, honestly hope that 4 of the 9 would want to take Masciandaro, if not Williams.

Perhaps I look at these things to simplistic as well...a message needs to be sent to the lower Courts and I'm hoping it is this term.

We'll know Monday, or...we won't...

hoffmang
11-23-2011, 8:52 PM
I'd call Masciandaro cert at 50-50 which is "good" but means its not a slam dunk. We shouldn't worry much if it is not granted though.

-Gene

SilverBulletZ06
11-23-2011, 9:59 PM
The MD Ct of Appeals (Williams) "thumbed their noses" to the Supreme Court, saying if you mean outside the home, say so more plainly.

As we know, Williams was denied Cert...

Judge Harvey Wilkinson (4th Ckt) in ruling against Masciandaro at the Circuit, quoted MD Ct of Appeals' nose-thumbing in their ruling.

I really, truly, honestly hope that 4 of the 9 would want to take Masciandaro, if not Williams.

Perhaps I look at these things to simplistic as well...a message needs to be sent to the lower Courts and I'm hoping it is this term.

We'll know Monday, or...we won't...

Williams was the weaker of the two cases by far. Not saying that Mas. will be in, but I feel due to the case behind it, that its chances are much higher. Remember, the SCOTUS only picks the cream of the crop. Since 2A rights aren't going to be a general make-or-break if it isn't decided within the year the courts are going to wait for an outstanding case to come along. Personally, as far as getting rid of "may issue", the NJ case has the most agreeable plaintiffs (Muller I believe is one).

hoffmang
11-24-2011, 8:55 PM
Williams was the weaker of the two cases by far. Not saying that Mas. will be in, but I feel due to the case behind it, that its chances are much higher. Remember, the SCOTUS only picks the cream of the crop. Since 2A rights aren't going to be a general make-or-break if it isn't decided within the year the courts are going to wait for an outstanding case to come along. Personally, as far as getting rid of "may issue", the NJ case has the most agreeable plaintiffs (Muller I believe is one).

Masciandaro is a superior case to Williams, no doubt, but it still has its rough edges from the point of view of creating precedent. The very best cases are IL and DC carry followed closely by MD carry (Woolard), NY, NJ, and CA. The darker horse is Peterson (Denver non resident carry.)

-Gene

press1280
11-25-2011, 1:39 AM
Williams was the weaker of the two cases by far. Not saying that Mas. will be in, but I feel due to the case behind it, that its chances are much higher. Remember, the SCOTUS only picks the cream of the crop. Since 2A rights aren't going to be a general make-or-break if it isn't decided within the year the courts are going to wait for an outstanding case to come along. Personally, as far as getting rid of "may issue", the NJ case has the most agreeable plaintiffs (Muller I believe is one).

Masciandaro may be the last chance this term for SCOTUS to steer the 2A conversation before the many big cases hit for next year's term. Peterson may make it in time,but I think the real good cases(many of which are still stuck in district courts) will have to wait until 2012-2013. Let's hope the court realizes this,takes on Masciandaro, and makes a ruling that at least gets the lower courts to stop ignoring the issue and analyze the 2A properly instead of sweeping it under the carpet.
BTW-Muller is out as a plaintiff;NJ gave him his license. if he doesn't meet the "need" standard then no one would. Not sure which plaintiff's name will replace Muller.

SilverBulletZ06
11-25-2011, 4:56 AM
Masciandaro may be the last chance this term for SCOTUS to steer the 2A conversation before the many big cases hit for next year's term. Peterson may make it in time,but I think the real good cases(many of which are still stuck in district courts) will have to wait until 2012-2013. Let's hope the court realizes this,takes on Masciandaro, and makes a ruling that at least gets the lower courts to stop ignoring the issue and analyze the 2A properly instead of sweeping it under the carpet.
BTW-Muller is out as a plaintiff;NJ gave him his license. if he doesn't meet the "need" standard then no one would. Not sure which plaintiff's name will replace Muller.

Don't push it. We're better off having them wait for a case we'll have a positive reaction to rather then rush a negative response.

Paladin
11-25-2011, 8:46 AM
Masciandaro may be the last chance this term for SCOTUS to steer the 2A conversation before the many big cases hit for next year's term....
Doesn't Lowery have until as late as 31 Jan 2012 for cert. or did I miss something?

On a related note, Lowery v US (does Heller void pre-2008 DC handgun convictions?) was granted a second 30 day extension for the SG to file a response, it is now due on 14 Dec. Normally only a single extension is requested. This delay pushes the reply brief to 24 Dec and then distribute for the next conference so it will almost certainly be January before Lowery is granted or denied cert.

yellowfin
11-28-2011, 6:10 AM
Chein and Masciandaro were denied. What the **** is wrong with these people?!?!??! :mad:

ckprax
11-28-2011, 6:39 AM
Chein and Masciandaro were denied. What the **** is wrong with these people?!?!??! :mad:

I guess June 2012 is looking much less likely :(

Maestro Pistolero
11-28-2011, 6:50 AM
Masciandata not the best case, IMO. I'd rather a slam dunker make it up the line first.

SilverBulletZ06
11-28-2011, 6:52 AM
Masciandata not the best case, IMO. I'd rather a slam dunker make it up the line first.

Unless the SCOTUS is refusing to hear cases about 2A for a reason.

OleCuss
11-28-2011, 7:05 AM
We'll never know why cert was denied. Denial may have been to our benefit or to our detriment.

So it seems more likely that a civil case will get cert and result in a ruling in June of 2013.

Gray Peterson
11-28-2011, 7:28 AM
Unless the SCOTUS is refusing to hear cases about 2A for a reason.

Here's the reason: It's a criminal case and they want to make it clear that they won't take any criminal 2A cases at all.

Paladin
11-28-2011, 7:30 AM
Chein and Masciandaro were denied.

Link?

Was Masciandaro actually denied, or just not granted cert today?

If the former, I guess Lowery is our last chance for a carry case this term.

SilverBulletZ06
11-28-2011, 7:31 AM
Here's the reason: It's a criminal case and they want to make it clear that they won't take any criminal 2A cases at all.

Yep, I was just discussing on ARFCOM that criminal cases are going to be much harder to push to the SCOTUS. Thats ok, there are still half a dozen or more "shall issue" cases in the pipeline.

krucam
11-28-2011, 7:48 AM
Link?

Was Masciandaro actually denied, or just not granted cert today?

If the former, I guess Lowery is our last chance for a carry case this term.

Both were DENIED.

http://www.supremecourt.gov/orders/courtorders/112811zor.pdf

Kharn
11-28-2011, 7:58 AM
Unfortunate, but better cases are already at the Circuit level.

Paladin
11-28-2011, 8:14 AM
Both were DENIED.

http://www.supremecourt.gov/orders/courtorders/112811zor.pdf
Oh well. Looks like Lowery is our last hope for this term. That being the case, I won't even bring up w/newbies I talk to the possibility of winning by next 4th of July. If we win Lowery before then, that will just be a bonus.

For newbies: Other than Good Guys (GGs), being unable to carry a handgun for self-defense outside of their homes for another year, the main problem w/all of this is that Obama has appointed two justices to the US Supreme Court and BOTH have been hard core antis in their opinions (even though, IIRC, at least one of them said she supported our 2nd A Right to Keep and Bear Arms during her confirmation hearing before the US Senate). We've won 2nd A cases by the slimmest of margins: 5 to 4! If Obama replaces one of our "Heller 5" with an anti, we will LOSE 2nd A cases 5 to 4.

This means that our RKBA are in political peril again and it is time for gunnies to focus on politics again, to ensure that a pro-gunnie replaces Obama (that probably means a Repub), and that pro-gunnies in Congress (the Senate and House of Reps) retain their offices while antis get replace by pros.

What pro-gun organization is the best at accomplishing this? Hands down the NRA. Annual memberships make great stocking stuffers. If you're already a member, consider upgrading your membership to Life or supra Life (Endowment, Patron, or Benefactor).
https://membership.nrahq.org/forms/signup.asp

Also support the NRA-ILA which focuses on political lobbying (pressuring incumbents).
https://secure.nraila.org/Contribute.aspx

and the NRA Political Victory Fund which focuses on using $$$ to support pro-gunnies' political campaigns and $$$ to campaign against the election/reelection of antis since NEITHER the NRA nor the NRA-ILA can use $$$ for campaigning.
http://www.nraila.org/About/PoliticalVictoryFund/
https://www.nrapvf.org/donation.aspx


Lowery discussion:
http://www.calguns.net/calgunforum/showthread.php?t=478162

A link re all our cases for newbies:
http://wiki.calgunsfoundation.org/index.php/Litigation_Past_and_Present

yellowfin
11-28-2011, 9:45 AM
Here's the reason: It's a criminal case and they want to make it clear that they won't take any criminal 2A cases at all.However they are hearing Messerschmidt v. Millender on Dec. 5th, which while a civil case has some criminal elements to it. That case should be useful for us in a few particular ways.

dantodd
11-28-2011, 10:03 AM
Here's the reason: It's a criminal case and they want to make it clear that they won't take any criminal 2A cases at all.

That will make Lautenberg and felon inpossession cases rather difficult to get heard. Of course, this may not be all bad. I can see advantages, both to the court and gun owners, to fleshing out the breadth of the rights for the law abiding before deciding just how the removal or restriction of said rights are adjudicated.

If we want to see constitutional carry become the law of the land it may also be advantageous to avoid that question for a number years and secure "shall issue" first so we can all exercise our rights until the day when we can eliminate the licensure all together.

kcbrown
11-28-2011, 12:16 PM
That will make Lautenberg and felon inpossession cases rather difficult to get heard. Of course, this may not be all bad. I can see advantages, both to the court and gun owners, to fleshing out the breadth of the rights for the law abiding before deciding just how the removal or restriction of said rights are adjudicated.

If we want to see constitutional carry become the law of the land it may also be advantageous to avoid that question for a number years and secure "shall issue" first so we can all exercise our rights until the day when we can eliminate the licensure all together.

We will never be able to eliminate licensure for public RKBA, and probably not even private RKBA. Never, at least within the lifetime of even the youngest of us. The law and order types will never sit still for the power of arms being uncontrolled by the government like that, nor will the big government types. The only types who can get behind it are those who value liberty above all else. There are damned few such people in the world.

Aegis
11-28-2011, 12:59 PM
Unfortunate, time is not on our side.

Kharn
11-28-2011, 1:34 PM
We will never be able to eliminate licensure for public RKBA, and probably not even private RKBA. Never, at least within the lifetime of even the youngest of us. The law and order types will never sit still for the power of arms being uncontrolled by the government like that, nor will the big government types. The only types who can get behind it are those who value liberty above all else. There are damned few such people in the world.People said the same thing for keeping a handgun in your house in DC, until Rehnquist passed and O'Connor retired and we got Roberts and Alito. Change Breyer, Ginsburg or Kennedy to a solid conservative and we'd have a very different court once Kennedy's wishy-washy vote is no longer required for a majority.