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hoffmang
02-07-2012, 8:50 PM
Today SAF and Comm2A filed their opening brief (http://www.comm2a.org/images/PDFs/hightower_appeal_brief.pdf) in their carry appeal entitled Hightower v. Boston (http://www.comm2a.org/discretionary-licensing-right-to-carry/58-hightower-v-boston).

I particularly love the opening.


Boston has a troubled history of gun confiscation. In the aftermath of the Battles of Concord and Lexington, General Thomas Gage, the head of British forces in North America and Royal Governor of Massachusetts, offered Bostonians free passage from the city provided they would deliver their arms for safekeeping. The people voted agreement to Gage’s terms, surrendering, among other arms, 634 pistols. Richard Frothingham, HISTORY OF THE SIEGE OF BOSTON 95 (1851); David Ramsay, 1 HISTORY OF THE AMERICAN REVOLUTION 176 (1789). Gage quickly reneged on his promise of safe passage, enraging the colonists. David Young, THE FOUNDERS’ VIEW OF THE RIGHT TO BEAR ARMS 52 (2007). Thomas Jefferson and John Dickinson drafted a “Declaration of the Causes and Necessity of Taking Up Arms,” issued by the Second Continental Congress on July 6, 1775, in which the Boston gun confiscation figured prominently. 2 JOURNALS OF CONTINENTAL CONGRESS 136-37 (1905).

Today, Bostonians enjoy greater protection of their right to keep and bear arms.

Comm2A is Mass's CGF.

-Gene

Mrbroom
02-07-2012, 9:41 PM
141 pages.. will take this one into the office tomorrow!!

mud99
02-07-2012, 10:04 PM
If the court was smart they would have settled immediately when Gura's name popped up.

When will they learn...

SilverBulletZ06
02-07-2012, 10:39 PM
Great case background. Denial of someone who was otherwise permitted and in fact required to carry. Wasn't there a law that allowed retired police to carry nationally?

sholling
02-07-2012, 10:55 PM
Wasn't there a law that allowed retired police to carry nationally?
Only if in-state carry is approved by the agency that they retired from.

Maestro Pistolero
02-07-2012, 11:09 PM
"The time has arrived for Massachusetts to treat the right to keep
and bear arms like the fundamental right that it is."

Amen.

safewaysecurity
02-07-2012, 11:19 PM
Do you feel this case would have been better if Hightower applied for a restricted Class A license?

kcbrown
02-08-2012, 2:53 AM
When individuals enjoy a constitutional “right” to engage in some activity, a license to engage in that activity might impose various regulatory limitations—but it cannot be conditioned on the government’s determination of one’s “suitability” to exercise the right.


And yet, that's exactly what the government is doing when it does a background check, NICS check, etc. -- it is determining one's "suitability" to exercise the right.

That the check is objective in some way makes it no less a "suitability" determination.


Just saying.... :D

Crom
02-08-2012, 6:06 AM
Excellent.

Bert Gamble
02-08-2012, 6:24 AM
How is it that there is gay marriage, whale slavery, national healthcare, and abortion in the Constitution, but the framers forgot to add anything about owning and carrying guns?

I thought these guys were supposed to be smart.

I wonder how people would feel if it were as difficult to get access to a privilege (driving) as it is to a right (carrying a gun)? Is there any misdemeanor that can take away this "driving privilege" for 10 years? What about for life?

r3dn3ck
02-08-2012, 6:29 AM
And yet, that's exactly what the government is doing when it does a background check, NICS check, etc. -- it is determining one's "suitability" to exercise the right.

That the check is objective in some way makes it no less a "suitability" determination.


Just saying.... :D

nothing about background check is subjective. You either are or are not in a prohibited class, you either did or did not commit a felony, have a RO against you, have a DV conviction, etc....

If the background check looked to see if you got "good" grades in high school and didn't specify a minimum GPA, average GPA, etc... and some person(s) had the duty to decide if they were "good enough" then you have the sort of prior restraint that the case is arguing against. It would seem that the whole of due process was ignored in the case by the state.

People gotta learn to discern capriciousness from regulatory hoop-jumping.

PCPerks
02-08-2012, 7:12 AM
"the Second Amendment is not located amongst a Bill of Needs, it is part of our Bill of Rights"

That is great! I love seeing that in a legal brief!

krucam
02-08-2012, 9:28 AM
Do you feel this case would have been better if Hightower applied for a restricted Class A license?

As I understand it, the case has to due with Due Process and 2A, the DP dealing with MA taking her UNRESTRICTED Class A. She didn't even reapply, and they use this in the case, which brings up their 'Prior Restraint' arguments.

hvengel
02-08-2012, 9:38 AM
As I understand it, the case has to due with Due Process and 2A, the DP dealing with MA taking her UNRESTRICTED Class A. She didn't even reapply, and they use this in the case, which brings up their 'Prior Restraint' arguments.

Also this is a carry outside the home case and the only way to do that legally in Mass. is to have an unrestricted class A license which they took away from her with out any due process. They also took her gun and ammo at the same time. Again without due process.

kcbrown
02-08-2012, 3:19 PM
nothing about background check is subjective. You either are or are not in a prohibited class, you either did or did not commit a felony, have a RO against you, have a DV conviction, etc....


Of course. But it is still a "suitability" test. The government is determining whether or not you are "suitable" to carry a firearm. If you have a felony conviction, then as far as the government is concerned, you are not "suitable" to carry a firearm regardless of what that felony is. Martha Stewart is not "suitable" to carry a firearm because the government rules say she is not, not because she is actually any danger to the rest of us.



People gotta learn to discern capriciousness from regulatory hoop-jumping.

Capriciousness depends on the existence of a "suitability" test, but a "suitability" test can exist without capriciousness entering into the equation. My comment addresses only the "suitability" test itself, not the issue of capriciousness.


This looks like an excellent case to me, and Gura's arguments are sound. In fact, my point is that I agree with him. It's just that people need to understand the full ramifications of such statements.

Southwest Chuck
02-08-2012, 5:59 PM
I'm short on facts here, so I need to ask, did Hightower do this (file an appeal)?(from item (F) second paragraph on page 95) and if not, could this be relevant or a way the court could hang it's hat on it to deny (rule against) the appeal? Was it even brought up by the Defendants or is it even an issue here?

(F) ............Any applicant or holder aggrieved by a denial, revocation or suspension of a license, unless a
hearing has previously been held pursuant to chapter 209A, may, within either 90 days after
receiving notice of such denial, revocation or suspension or within 90 days after the expiration of
the time limit during which the licensing authority is required to respond to the applicant, file a
petition to obtain judicial review in the district court having jurisdiction in the city or town
wherein the applicant filed for, or was issued, such license. A justice of such court, after a
hearing, may direct that a license be issued or reinstated to the petitioner if such justice finds that
there was no reasonable ground for denying, suspending or revoking such license and that the
petitioner is not prohibited by law from possessing same.

Also, how does this jive with Gura's position that there is (or was) no Due Process available to Hightower? (not that it really matters since the other elements of his appeal are outstanding)

But wait, after considering it more (and re-reading some parts), I think I know the answer in that a Judicial review of the revocation bars bringing up any other revocation defense (2A, Due Process, Etc.) and only goes to whether the Police have the right to their "Unbridled Discretion" in such matters (which according to MA Law, they do).

I'll admit that I'm tired and my brain isn't working too good right now, but am I at least in the Ball-Park here? :D

eaglemike
02-08-2012, 6:00 PM
Deprivation of property and an enumerated right without due process. Not a good thing. Even mentioned recently in another case. Seems simple, good thing AG is on it!

hoffmang
02-08-2012, 9:56 PM
Also, how does this jive with Gura's position that there is (or was) no Due Process available to Hightower? (not that it really matters since the other elements of his appeal are outstanding)

Due process requires a post denial appeal process short of having to sue someone in state or federal court. The way a license or permit for constitutional activity should work is that if you lose an appeal then you sue. It's pretty settled law when the permit/license/zoning/property interest is protected and certainly when it's fundamental.

-Gene

dawgcasa
02-09-2012, 10:40 AM
A beautifully written and cogent brief. When I finished reading it I thought how can any rational person refute the 2nd ammendment as so clearly a civil right as strong and fundamental as any understood in our society today? But then I realize that some of these judges and certainly the defendants don't really care about any of that, the facts, or how strong the legal arguments are. They simply believe their opinions supercede actual rights. And they're satisfied to bend laws and precedent, obfuscate, or lie to try to ensure an outcome that aligns with their world view. I expect that of defendents. Its sad when you see judges stoop to those measures to back their way into their desired ruling. Judges are supposed to rule on facts and objective views of the law, but I know that's a naive perspective of a perfect world.

sreiter
02-09-2012, 1:15 PM
A beautifully written and cogent brief. When I finished reading it I thought how can any rational person refute the 2nd ammendment as so clearly a civil right as strong and fundamental as any understood in our society today? But then I realize that some of these judges and certainly the defendants don't really care about any of that, the facts, or how strong the legal arguments are. They simply believe their opinions supercede actual rights. And they're satisfied to bend laws and precedent, obfuscate, or lie to try to ensure an outcome that aligns with their world view. I expect that of defendents. Its sad when you see judges stoop to those measures to back their way into their desired ruling. Judges are supposed to rule on facts and objective views of the law, but I know that's a naive perspective of a perfect world.

Did you ever consider it's obviously apparent to you because it lines up perfectly with your POV?

If you agree with someones position, the arguments they put forth are self evident.

However, if you were of a different mind set, you'd dismiss them out of hand, just saying "wrong, wrong, wrong"

kcbrown
02-09-2012, 1:32 PM
Did you ever consider it's obviously apparent to you because it lines up perfectly with your POV?

If you agree with someones position, the arguments they put forth are self evident.

However, if you were of a different mind set, you'd dismiss them out of hand, just saying "wrong, wrong, wrong"

Only if you were an unreasonable person.

A reasonable person never dismisses an argument out of hand. He always has a solid, logical reason for doing so and can articulate it and, if necessary, the logic, axioms, and evidence behind it.

eaglemike
02-09-2012, 2:12 PM
Did you ever consider it's obviously apparent to you because it lines up perfectly with your POV?

If you agree with someones position, the arguments they put forth are self evident.

However, if you were of a different mind set, you'd dismiss them out of hand, just saying "wrong, wrong, wrong"
Sometimes people are capable of a subjective analysis of the history behind the arguments. Sometimes people align with an emotional analysis.

OT- Having paid a little attention during history classes, I'm often surprised at how people see the Constitution of the United States. The creators of that document did a truly amazing job, especially given the norms and prejudices of that time.

I'm grateful Alan Gura is involved. I enjoy his writing.

terraformer
02-13-2012, 9:54 AM
Do you feel this case would have been better if Hightower applied for a restricted Class A license?

Sorry for the late entry. I didn't know this was up until a supporter on NES (the NE's version of CalGuns) told me about the thread.

It would have been a very different case had this occurred. Had hightower done so, there likely would not have been a case frankly. If you read the decision Judge Casper gave in the district court, you will note that we likely would have won on the merits on a case where someone was denied having a restricted LTC-A (which is what you folks simply call possession since CA has no license) or a LTC-B (possession again but limited to all but hi-cap handguns) in a similar manner. But you will note that the court bounced this case on standing claiming that the situation was not ripe. Lets say for grins and giggles that the standing issue didn't show itself in some theoretical case where a restricted license was denied or revoked without constitutionally allowed cause. Then, theoretically at least, our side would have won on the merits and Boston would have been required to re-issue the license.

But that theoretical case would have done nothing for carry and this was a carry case as Ms. Hightower was duly licensed to carry (unrestricted LTC-A) in the state of MA until she was denied that right on the whim of a police chief's discretion. For her to have accepted a downgrade would have basically been to accept that she did not have those rights or was willing to have those rights abrogated in the manner they were. Clearly she felt otherwise.

You may still see that LTC-B case happen for other reasons, but it will be a different case.

FYI: I am Director of Operations for Comm2A. :seeya: (since I can't find a wave emoticon and using Alan's wave just seems odd, I used seeya, but that's a wave).

OleCuss
02-13-2012, 10:34 AM
The additional perspective is much appreciated.

Munk
02-13-2012, 1:34 PM
I like the usage of Dred Scott in this case.

FYI: I am Director of Operations for Comm2A. :gura: (since I can't find a wave emoticon and using Alan's wave just seems odd, I used seeya, but that's a wave).

I dunno, the gura version isn't so bad.

Dreaded Claymore
02-13-2012, 3:53 PM
Only if you were an unreasonable person.

A reasonable person never dismisses an argument out of hand. He always has a solid, logical reason for doing so and can articulate it and, if necessary, the logic, axioms, and evidence behind it.

No human being is a perfectly reasonable person. We all have emotion along with reason, and they sometimes conflict with each other, or appear to do so.

ptoguy2002
06-06-2012, 12:49 PM
Case:11-2281, Hightower v City of Boston
Audio from today is now available: http://www.ca1.uscourts.gov/files/audio/11-2281.mp3

press1280
06-06-2012, 3:56 PM
I didn't like how it went today. Sounds like the panel wants to avoid the 2A issue and remand back to the District court to find out what a "suitable" person should be. This would be the worst scenario in my mind; even a 2A two-step loss would be better because it's appealable and serves as 1/2 of a circuit split.
And why wasn't a regular Joe (denied for lack of need only) also on as a plaintiff along with Hightower?

Bhobbs
06-06-2012, 4:28 PM
I didn't like how it went today. Sounds like the panel wants to avoid the 2A issue and remand back to the District court to find out what a "suitable" person should be. This would be the worst scenario in my mind; even a 2A two-step loss would be better because it's appealable and serves as 1/2 of a circuit split.
And why wasn't a regular Joe (denied for lack of need only) also on as a plaintiff along with Hightower?

I got that too. They seemed to avoid the 2A all together.

Another thing I heard was Heller says 10+ round mags are not protected. I didn't know it said this.

press1280
06-06-2012, 4:32 PM
I got that too. They seemed to avoid the 2A all together.

Another thing I heard was Heller says 10+ round mags are not protected. I didn't know it said this.

Heller 2 in the DC Circuit said this, and Mass. also brought up the "M-16 and the like" comment.

Bhobbs
06-06-2012, 4:35 PM
Heller 2 in the DC Circuit said this, and Mass. also brought up the "M-16 and the like" comment.

Has SCOTUS ever said anything like that?

Maestro Pistolero
06-06-2012, 5:07 PM
Has SCOTUS ever said anything like that?

No. Here's what Heller said:
It may be objected that if weapons that are most useful in military service—M-16 rifles and the like—may be banned, then the Second Amendment right is completely detached from the prefatory clause. Note that the right is NOT detached from the prefatory clause. There has never been such a decision.

Heller continues:
But as we have said, the conception of the militia at the time of the Second Amendment’s ratification was the body of all citizens capable of military service, who would bring the sorts of lawful weapons that they possessed at home to militia duty. It may well be true today that a militia, to be as effective as militias in the 18th century, would require sophisticated arms that are highly unusual in society at large. Indeed, it may be true that no amount of small arms could be useful against modern-day bombers and tanks. But the fact that modern developments have limited the degree of fit between the prefatory clause and the protected right cannot change our interpretation of the right.

Nowhere did Heller say anything about full capacity magazines. It said any firearms in common use are protected. Most commonly used semi-automatic firearm come with greater than 10 round magazines. The most common semiautomatic rifle, the AR15, ships with 20 and 30 round magazine. In fact, 2A protection extends to anything that constitutes a bearable arm. (Heller, quotation omitted.)

Bhobbs
06-06-2012, 5:32 PM
No. Here's what Heller said:
Note that the right is NOT detached from the prefatory clause. There has never been such a decision.

Heller continues:


Nowhere did Heller say anything about full capacity magazines. It said any firearms in common use are protected. Most commonly used semi-automatic firearm come with greater than 10 round magazines. The most common semiautomatic rifle, the AR15, ships with 20 and 30 round magazine. In fact, 2A protection extends to anything that constitutes a bearable arm. (Heller, quotation omitted.)

That sounds a lot like what I remember reading back when. Thanks. :thumbsup:

hoffmang
06-06-2012, 7:26 PM
It's wise to take a look at the makeup of this court of appeals versus the panel that heard this. It should color one's impression of oral argument today.

-Gene

kcbrown
06-06-2012, 8:11 PM
It's wise to take a look at the makeup of this court of appeals versus the panel that heard this. It should color one's impression of oral argument today.

-Gene

But the panel that heard this today is the one that will be issuing the ruling, right?

So ... en banc?

Al Norris
08-31-2012, 10:36 AM
The decision is in. I've barely read it, but it's not good (as some of us figured). I don't see a remand, just that Ms. Hightower didn't avail herself of all the remedies (LTC-B).

Here's a link to the opinion (non-pdf): 11-2281P.01A (http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=11-2281P.01A)

curtisfong
08-31-2012, 11:05 AM
Wow. What a mess of a ruling.

safewaysecurity
08-31-2012, 11:34 AM
Disaster. Anyways only a few more days is my guess until moo're v Madigan is out. The Peterson case should be ready soon too. I believe Moore will be out within the next week.

SilverBulletZ06
08-31-2012, 12:05 PM
That ruling seemed to throw out any sort common sense or principle to "Bear Arms". Locked boxes are ready for confrontation? Carry counts within your home and business? Plaintiff wanted a FULL CARRY license, not some watered down ideal. To say that they didn't take what they didn't want and therefore skipped part of the process is inept at best.

Didn't avail yourself of all options. Should we start to include satanic rituals and prayers to dark gods. The answer is already there, the answer has been and will be NO.


Can they now appeal up the chain??


Also Kachalsky should be out... sometime within the next 6 months. :(

Sarde
08-31-2012, 12:26 PM
The decision is in. I've barely read it, but it's not good (as some of us figured). I don't see a remand, just that Ms. Hightower didn't avail herself of all the remedies (LTC-B).

Here's a link to the opinion (non-pdf): 11-2281P.01A (http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=11-2281P.01A)

Im no legal eagle but it looks to be not good at all. All they gave her was standing and ripeness. Every other argument they said fails (2A as-applied claim fails, 2A facial attack fails, procedural due process claim fails, equal protection claim fails).

One particularly bad part I cringed at:
Kachalsky, 817 F. Supp. 2d at 267 n.32 (rejecting the argument that a statute is invalid based on analogy to First Amendment cases prohibiting "unbridled discretion" in granting permits, and explaining that while some Second Amendment "cases borrow an analytical framework, they do not apply substantive First Amendment rules in the Second Amendment context"). We have found no circuit cases that have discussed the prior restraint doctrine in the context of the Second Amendment.

I look forward to some more informed opinions on this case and where it goes from here.:banghead:

OleCuss
08-31-2012, 1:22 PM
I did a quick scan and since IANAL I'd be interested in what the lawyers think.

Personally, I think it was about what I'd expect from a leftist court. Interpreting the 2A as applying almost solely to the home and otherwise looking for excuses to violate our fundamental human rights.

What I find really entertaining is the way of deciding that she has standing to bring the case but at the same time sort of arguing that she doesn't have standing because of the nature of her request and the denial. I'm betting that makes sense to a lawyer (it actually almost makes sense to me), but it still just seems a little ludicrous.

But oh well, I'm not so sure the plaintiff/appellant really is all that disappointed with the "loss".

Sometimes you win if you win - and you win bigger if you lose.

Gray Peterson
08-31-2012, 2:25 PM
A new england appeals court making the wrong ruling?

Here's my shocked face....

press1280
08-31-2012, 4:23 PM
Im no legal eagle but it looks to be not good at all. All they gave her was standing and ripeness. Every other argument they said fails (2A as-applied claim fails, 2A facial attack fails, procedural due process claim fails, equal protection claim fails).

One particularly bad part I cringed at:
Kachalsky, 817 F. Supp. 2d at 267 n.32 (rejecting the argument that a statute is invalid based on analogy to First Amendment cases prohibiting "unbridled discretion" in granting permits, and explaining that while some Second Amendment "cases borrow an analytical framework, they do not apply substantive First Amendment rules in the Second Amendment context"). We have found no circuit cases that have discussed the prior restraint doctrine in the context of the Second Amendment.

I look forward to some more informed opinions on this case and where it goes from here.:banghead:

I seem to remember 1A-2A interplay mentioned in Ezell and Marzarella(?) I think, as well as Heller. This seems to be more of "We like the 1A better than the 2A"

curtisfong
08-31-2012, 5:58 PM
And zero scrutiny. Idiot judge thinks the state can arbitrarily impose any rules they want if they say the words "public safety".

No proof required. Disgusting.

hoffmang
08-31-2012, 6:37 PM
They also made up some facts. I expect we'll see a request for rehearing en banc.

-Gene

OleCuss
08-31-2012, 6:57 PM
I'm looking for a little education here.

Would the request for an en banc hearing be largely because of the made-up "facts"?

Sometimes I don't understand why an en banc is requested when I expect the en banc to have a ruling just as miserable as the smaller panel generated.

But if they didn't do the en banc would SCOTUS likely reject the case as not fit for them since there are uncured factual errors rather than simply error on procedure or matters of law?

Or is there a decent chance that the en banc would do the right thing?

navyinrwanda
09-04-2012, 4:26 PM
Gura should have dropped this case when the dispute about Hightower's truthfulness arose.

En banc will only prolong this agony.

terraformer
09-04-2012, 4:34 PM
They also made up some facts. I expect we'll see a request for rehearing en banc.

-Gene

More accurately, they accepted as fact allegations that were disputed in the DC and never adequately investigated by the DC. A DP violation in defiance of circuit precedent I may add...

Gura should have dropped this case when the dispute about Hightower's truthfulness arose.

En banc will only prolong this agony.

You realize the "dispute about Hightower's truthfulness" was evident from day one as it served as the basis of the PDs revocation of her license???

Nodda Duma
09-04-2012, 4:48 PM
Massachusetts is an extremely f'ed up state when it comes to 2A, and Boston in particular. Their plates say "Spirit of America" I say they need to update their plates to "Spirit of the Oppressed".

Hard to recognize it as the birthplace of our nation.

Knuckle Dragger
09-05-2012, 2:21 PM
Massachusetts is an extremely f'ed up state when it comes to 2A, and Boston in particular. Their plates say "Spirit of America" I say they need to update their plates to "Spirit of the Oppressed".

Hard to recognize it as the birthplace of our nation.

The contrast between the place that fired a "shot heard 'round the world" and now has the "nation's toughest gun laws" couldn't be more ironic and is why Massachusetts needs to be a 2A 'battleground'. Massachusetts has successfully corralled gun owners into an outlying fringe of society by making it so difficult to own guns that only the most determined individuals actually do so legally. If the tide here can be reversed here it can be reversed anywhere.

The universal licensing requirement in Massachusetts makes it extraordinarily difficult to find individuals willing to stand up and be plaintiffs. Hightower is less than an ideal case but it's the hand that was dealt and presents the same issues that many would-be Massachusetts gun owners regularly deal with.

Crom
09-06-2012, 7:36 AM
Well said KD.

ccmc
09-07-2012, 7:31 AM
The contrast between the place that fired a "shot heard 'round the world" and now has the "nation's toughest gun laws" couldn't be more ironic and is why Massachusetts needs to be a 2A 'battleground'. Massachusetts has successfully corralled gun owners into an outlying fringe of society by making it so difficult to own guns that only the most determined individuals actually do so legally. If the tide here can be reversed here it can be reversed anywhere.

The universal licensing requirement in Massachusetts makes it extraordinarily difficult to find individuals willing to stand up and be plaintiffs. Hightower is less than an ideal case but it's the hand that was dealt and presents the same issues that many would-be Massachusetts gun owners regularly deal with.

How is Massachusetts worse than California or New York?

Gray Peterson
09-07-2012, 7:44 AM
How is Massachusetts worse than California or New York?

Universal licensing requirement for all guns for one.

terraformer
09-07-2012, 7:45 AM
How is Massachusetts worse than California or New York?

They are all bad, just different bad. CA actually enforces their AWB and other stupidity, NY is bad down on LI and in NYC but is otherwise decent. MA is worse in that the law enables little hitlers all over the place. There are no counties here, just towns so there are 351 (plus the state police/EOPSS) different firearms licensing policies. And when you get to that level of differentiation, you can't manage it all in a handful of court cases.


Also, the anti-gun movement had a very strong ideological stronghold here and were allowed to write our laws. But those who wrote them were smart and didn't just discriminate against lawful gun owners, they created a spider's web of laws that they thought they could push out to the nation. There are no less than 6 different possession licenses, 5 firearms classes with 2 super classes of "large capacity" firearms that are treated differently (irrespective of the AWB here). The rest of the nation didn't bite, but the amount of thought that went into what we have was significant and they were designed to be hard to unravel. Hightower has illustrated that very well.

We will be filing cases for decades to come to unravel this mess.

In comparison to CA's laws, you have a lot of them and they are all over the place but they are clear when you find them and they don't leave a lot of wiggle room. In MA, we have Mississippi Delta Mud for laws but fewer of them but they are very vague and abusable ink blots. I think the best case that illustrates how the interactions of vagueness (which has a high bar in MA to invalidate a law, otherwise we would have to wholesale rewrite our laws) and stupidity create a pretty hellish environment for gun owners is:
COMMONWEALTH vs. CLINT A. CORNELIUS
http://masscases.com/cases/app/78/78massappct413.html

terraformer
09-07-2012, 7:48 AM
Universal licensing requirement for all guns for one.

That isn't good, but it's nothing compared to the rest of what we have to deal with. Another good case that illustrates the stupidity here is COMMONWEALTH vs. BRANDON LOJKO http://masscases.com/cases/app/77/77massappct82.html
He had a gun in a locked container he was sitting on top of. But yet he was still convicted of failure to store his firearms in a locked container. This is one of the better appeals court cases here in that the panel realized finding against Lojko was more absurd than a monty python skit.

ccmc
09-07-2012, 8:18 AM
They are all bad, just different bad. CA actually enforces their AWB and other stupidity, NY is bad down on LI and in NYC but is otherwise decent. MA is worse in that the law enables little hitlers all over the place. There are no counties here, just towns so there are 351 (plus the state police/EOPSS) different firearms licensing policies. And when you get to that level of differentiation, you can't manage it all in a handful of court cases.


Also, the anti-gun movement had a very strong ideological stronghold here and were allowed to write our laws. But those who wrote them were smart and didn't just discriminate against lawful gun owners, they created a spider's web of laws that they thought they could push out to the nation. There are no less than 6 different possession licenses, 5 firearms classes with 2 super classes of "large capacity" firearms that are treated differently (irrespective of the AWB here). The rest of the nation didn't bite, but the amount of thought that went into what we have was significant and they were designed to be hard to unravel. Hightower has illustrated that very well.

We will be filing cases for decades to come to unravel this mess.

In comparison to CA's laws, you have a lot of them and they are all over the place but they are clear when you find them and they don't leave a lot of wiggle room. In MA, we have Mississippi Delta Mud for laws but fewer of them but they are very vague and abusable ink blots. I think the best case that illustrates how the interactions of vagueness (which has a high bar in MA to invalidate a law, otherwise we would have to wholesale rewrite our laws) and stupidity create a pretty hellish environment for gun owners is:
COMMONWEALTH vs. CLINT A. CORNELIUS
http://masscases.com/cases/app/78/78massappct413.html

Appreicate that info. My barometer is a little different since I'm not a resident of any of those states ie at least Massachusetts provides an avenue for nonresident carry. It may be a moot point as I don't know whether LTCs are actually issued to nonresidents, but they are able to apply unlike in California or New York.

terraformer
09-07-2012, 8:23 AM
Appreicate that info. My barometer is a little different since I'm not a resident of any of those states ie at least Massachusetts provides an avenue for nonresident carry. It may be a moot point as I don't know whether LTCs are actually issued to nonresidents, but they are able to apply unlike in California or New York.

That's a happy accident derived from the need for a license even for possession. If they didn't combine all of these different things into different licenses, we would not allow carry to "foreigners" either. And actually, the licenses that are given out these days are restricted to forbid carry.

Uxi
09-07-2012, 8:28 AM
"the Second Amendment is not located amongst a Bill of Needs, it is part of our Bill of Rights"

That is great! I love seeing that in a legal brief!

Indeed. :D


I love this part:

Of course, Defendants have an interest in regulating firearms in the interest of public safety. Hightower does not question the state’s ability to license the possession and carrying of firearms. But whatever else the state may do, it cannot reserve for itself the power to arbitrarily decide whether individuals deserve to possess and carry guns for self- defense. That decision has already been made in the Constitution, which guarantees law-abiding individuals their right to keep and carry handguns for self-defense.

Ah the dream of what could be a post-SCOTUS-carry ruling in line with Heller.

Meplat1
09-07-2012, 10:07 AM
How is it that there is gay marriage, whale slavery, national healthcare, and abortion in the Constitution, but the framers forgot to add anything about owning and carrying guns?

I thought these guys were supposed to be smart.

I wonder how people would feel if it were as difficult to get access to a privilege (driving) as it is to a right (carrying a gun)? Is there any misdemeanor that can take away this "driving privilege" for 10 years? What about for life?

Whale slavery? Aren’t they kind of hard to control?

Mulay El Raisuli
09-08-2012, 7:22 AM
Did you ever consider it's obviously apparent to you because it lines up perfectly with your POV?

If you agree with someones position, the arguments they put forth are self evident.

However, if you were of a different mind set, you'd dismiss them out of hand, just saying "wrong, wrong, wrong"


That's basically true.

However, the antis are, in fact, wrong, wrong, wrong" in just about every way imaginable.


The Raisuli

hoffmang
09-08-2012, 1:32 PM
The US filed Hightower as supplemental authority in Dearth. I've attached Alan Gura's response there which is a preview of what the petition for re-hearing on this will look like.

-Gene

Yankee Clipper
09-09-2012, 11:23 AM
The US filed Hightower as supplemental authority in Dearth. I've attached Alan Gura's response there which is a preview of what the petition for re-hearing on this will look like.
-Gene

This, to me, is what our fight for our 2A rights is all about:
“To the extent the First Circuit explicitly and without discussion held that the Second Amendment is to receive less favorable treatment than other fundamental rights, including rights that are not even enumerated, it contradicts McDonald. See 130 S. Ct. at 3045; Valley Forge Christian Coll. v. Ams.
Case 1:09-cv-00587-RLW Document 40 Filed 09/07/12 Page 4 of 6
United for Separation of Church and State, Inc., 454 U.S. 464, 484 (1982) (“[W]e know of no principled basis on which to create a hierarchy of constitutional values.”).”
Thanks for posting what Alan Gura is doing.

Al Norris
09-09-2012, 1:14 PM
The problem, which has yet to be overcome, is the denial of the LTC, based upon an alleged falsification on the application.

That and that alone gives the State and the Courts the out to deny everything.

Until that is resolved (in favor of Hightower), nothing else matters about this case.

hoffmang
09-09-2012, 7:45 PM
The problem, which has yet to be overcome, is the denial of the LTC, based upon an alleged falsification on the application.

That and that alone gives the State and the Courts the out to deny everything.

Until that is resolved (in favor of Hightower), nothing else matters about this case.

Let's say she had lied (she did not.) Does that give Massachusetts the right to seize her firearm and not issue her a possession and carry permit? Note that the "lie" isn't about something prohibiting and that the state didn't follow her union procedures which is why she didn't even know about what they're claiming she lied about.

-Gene

Al Norris
09-10-2012, 4:51 AM
Let's say she had lied (she did not.) Does that give Massachusetts the right to seize her firearm and not issue her a possession and carry permit? Note that the "lie" isn't about something prohibiting and that the state didn't follow her union procedures which is why she didn't even know about what they're claiming she lied about.

-Gene

I quite understand this, Gene.

Yet, and still, the lower court "bought" the defendants story. As did the circuit panel (in which the panel "embellished" the story further). There has now been placed a rather large obstacle in front of Alan Gura.

Failure to acknowledge the obstacles would seem to be short-sighted. This doesn't mean that the case is irretrievable, it does mean it just got a lot harder to overcome.

hoffmang
09-10-2012, 9:17 PM
I quite understand this, Gene.

Yet, and still, the lower court "bought" the defendants story. As did the circuit panel (in which the panel "embellished" the story further). There has now been placed a rather large obstacle in front of Alan Gura.

Failure to acknowledge the obstacles would seem to be short-sighted. This doesn't mean that the case is irretrievable, it does mean it just got a lot harder to overcome.

The 1st circuit will not be the final word on carry just as the 7th circuit wasn't the final word on incorporation.

-Gene

terraformer
09-13-2012, 1:25 PM
Here is the en banc petition.
http://www.comm2a.org/images/PDFs/hightower_enbanc.pdf

eaglemike
09-13-2012, 1:58 PM
Thanks for the link!

Another nice piece of work by Mr Gura. :)

OleCuss
09-13-2012, 2:01 PM
Thank you for the that.

It really was a nice read.

krucam
09-13-2012, 3:47 PM
The gloves are off!

OleCuss
09-13-2012, 7:07 PM
The gloves are off!

You know? It really was my impression that in this filing Gura and company used more aggressive language than I usually see from him. Not much in the way of placating language and not much respect for a panel which put out a rather ridiculous ruling.

Really made the panel look stupid, IMHO.

But IANAL, so I could be reading it all wrong.

Knuckle Dragger
09-13-2012, 7:25 PM
You know? It really was my impression that in this filing Gura and company used more aggressive language than I usually see from him. Not much in the way of placating language and not much respect for a panel which put out a rather ridiculous ruling.

Really made the panel look stupid, IMHO.

But IANAL, so I could be reading it all wrong.While no one expected this panel of the first circuit to rule in Hightower's favor, the decision was unexpectedly harsh.

Mulay El Raisuli
09-16-2012, 9:38 AM
Here is the en banc petition.
http://www.comm2a.org/images/PDFs/hightower_enbanc.pdf


Thanks for the link.

Kudos to Gura for using the word "alas" in context.


The Raisuli

Kharn
09-16-2012, 12:22 PM
From another forum, there are only 5 active judges in this circuit, and 2 of them were on the original panel for Hightower (a senior status judge was the third person). So Gura has to convince the other 3 active judges that this case was wrongly decided, and there isn't even a dissent to help him in the eyes of the judges.

Maestro Pistolero
09-16-2012, 12:45 PM
There's no way Gura's blind to that. I believe this was written with an eye toward a future cert grant. I just read it again. He's respectful, of course, but he is not looking to make friends here. I agree with the assessment that the gloves are off. He's calling them out.

kcbrown
09-16-2012, 1:37 PM
There's no way Gura's blind to that. I believe this was written with an eye toward a future cert grant. I just read it again. He's respectful, of course, but he is not looking to make friends here. I agree with the assessment that the gloves are off. He's calling them out.

Agreed. And I expect that regardless of whether or not they grant an en banc hearing, the end result will be the same.

Which is to say, if they grant an en banc hearing, they'll just reaffirm the decision more or less as it is.

I give good odds on the en banc hearing being granted, because it provides a mechanism by which the court can delay the case (and thus deny the right) and create additional work for the plaintiffs (the work for the defendants is not an issue because the defendants are government agencies who do not care terribly much about the costs because it's not really their money that is at stake, but that of the taxpayers, and in any case the cost is a pittance compared to the taxes that are collected from the taxpayers). It also delays, and possibly prevents, the case from making its way to the Supreme Court.


I believe circuits like this one are going to do their best to keep these cases from being considered by the Supreme Court while the Heller 5 remains intact.

Maestro Pistolero
09-16-2012, 1:49 PM
After reading that brief again, I think he's double-dog-daring them to do the inquiry/analysis that Heller demands. If they just aren't going to do it, then he wants them on record refusing a direct call for it.

kcbrown
09-16-2012, 5:31 PM
After reading that brief again, I think he's double-dog-daring them to do the inquiry/analysis that Heller demands. If they just aren't going to do it, then he wants them on record refusing a direct call for it.

If they take the case en banc, does that force them to do the analysis requested in the en banc request, or can the court treat it more as a general review of the case? Which is to say, is there something that compels the court to address the issues raised in the en banc request?

I mean, it's not like they addressed the issues raised in the original complaint and briefs, so why should we expect them to actually address what's requested of them this time around?

OleCuss
09-16-2012, 5:59 PM
It does seem to me that it is aimed more at dotting all the "i"s prior to asking for cert.

But some other ideas occur?

Is it possible that the panel decision is written in a way that doesn't allow something to be asked of the SCOTUS in a certain way, but a rewrite by the en banc might?

It also might be possible that Gura wants to slow the case down for strategic reasons? It could be that he wants another court to issue a particular ruling so that he can file an additional authority and thus get a better ruling in this case?

I don't claim to know the answer, but I find the possibilities intriguing.

ddestruel
09-16-2012, 6:07 PM
this

If they take the case en banc, does that force them to do the analysis requested in the en banc request, or can the court treat it more as a general review of the case? Which is to say, is there something that compels the court to address the issues raised in the en banc request?

I mean, it's not like they addressed the issues raised in the original complaint and briefs, so why should we expect them to actually address what's requested of them this time around?

OleCuss
09-16-2012, 8:42 PM
If they take the case en banc, does that force them to do the analysis requested in the en banc request, or can the court treat it more as a general review of the case? Which is to say, is there something that compels the court to address the issues raised in the en banc request?

I mean, it's not like they addressed the issues raised in the original complaint and briefs, so why should we expect them to actually address what's requested of them this time around?

I think that if the en banc is granted they'll almost have to more carefully address certain issues. That is because (IIRC) Gura and company specifically mentions more or less unaddressed issues in the request for en banc. It would be more than a little odd to accept an en banc request based in part on a failure to address an issue - and then not address the issue.

Personally, I expect the en banc to be denied, but I'll admit that this is based on a general pessimism about this circuit court's willingness to fix the issue. I could be very wrong.

But then, it could also be that denial of an en banc hearing could increase the probability that SCOTUS grants cert. After all, an en banc request pointing out that an issue was effectively unaddressed and en banc was denied anyway might be viewed by SCOTUS as an error in procedure/law and might be a nice hook for getting the 2A issues addressed as well.

But IANAL and readily admit that I could be far off-base.

I sometimes wish I knew what these lawyers were thinking - but not enough to go to law school. . .

kcbrown
09-16-2012, 9:01 PM
I think that if the en banc is granted they'll almost have to more carefully address certain issues. That is because (IIRC) Gura and company specifically mentions more or less unaddressed issues in the request for en banc. It would be more than a little odd to accept an en banc request based in part on a failure to address an issue - and then not address the issue.


I agree, it would be quite odd for that to happen, but what prevents them from doing precisely that? I know of nothing at all that would.



Personally, I expect the en banc to be denied, but I'll admit that this is based on a general pessimism about this circuit court's willingness to fix the issue. I could be very wrong.

But then, it could also be that denial of an en banc hearing could increase the probability that SCOTUS grants cert. After all, an en banc request pointing out that an issue was effectively unaddressed and en banc was denied anyway might be viewed by SCOTUS as an error in procedure/law and might be a nice hook for getting the 2A issues addressed as well.

But IANAL and readily admit that I could be far off-base.


What you say above sounds sensible to me. It's why I would expect this court to take the case en banc and either sit on it indefinitely a la Palmer and/or issue a ruling that again fails to address the raised issues.

I'm sure you realize by now that courts are masters of avoiding the issue. We've seen that happen again and again.



I sometimes wish I knew what these lawyers were thinking - but not enough to go to law school. . .

Gura's almost certainly thinking of masterful ways of winning. The rest of the (opposition) lawyers, judges, etc., are probably thinking of masterful ways to go play golf. :D

Librarian
09-16-2012, 9:07 PM
There is a mechanism - The Supreme Court observed in Kerr [Kerr v. United States District Court, 426 U.S. 394, 96 S. Ct. 2119, 48 L. Ed. 2d 725 (1976)] that the writ of mandamus was traditionally used by federal courts only to confine an inferior court to a lawful exercise of its jurisdiction, or to compel an inferior court to exercise its authority when it had a duty to do so. Getting such a writ is another issue ...

sholling
09-17-2012, 12:36 AM
Here is the en banc petition.
http://www.comm2a.org/images/PDFs/hightower_enbanc.pdf
An absolute work of art. :D