Kolbe v. Hogan 4th Circuit Opinion (MD, 'assault weapons') - Cert denied 11/27

[kcbrown]

Originally Posted by dfletcher

I think the phrase "yield authority to the federal system" puts it too simply. At the founding there was no 14th Amendment, there was no such thing as a "citizen of the United States", the vehicle the federal government would eventually use to assert interest. Most are not aware the Bill of Rights has a preamble, of which section 1 reads:

"THE Conventions of a number of the States having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best insure the beneficent ends of its institution."

The preamble should be read to reinforce the great concern our founders had regarding federal authority and how best to guard against it. At the time of its drafting the restrictions of the BoR, as in "restrictive clauses" and to extend "public confidence in the government", is clearly aimed at and applied to the federal government only. Given the times, it seems to me the intent of the founders was to craft an association sufficiently robust to avoid the causes for failure of the Articles of Confederation.

I was quite skeptical of Barron v Baltimore before, but the above pretty much cements that decision's correctness. It's unfortunate that the above preamble isn't included in Barron v Baltimore.

[sarabellum]

Originally Posted by kcbrown

I was quite skeptical of Barron v Baltimore before, but the above pretty much cements that decision's correctness. It's unfortunate that the above preamble isn't included in Barron v Baltimore.

No preamble is self- executing:
Although that Preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the Government of the United States or on any of its Departments. Such powers embrace only those expressly granted in the body of the Constitution and such as may be implied from those so granted. Although, therefore, one of the declared objects of the Constitution was to secure the blessings of liberty to all under the sovereign jurisdiction and authority of the United States, no power can be exerted to that end by the United States unless, apart from the Preamble, it be found in some express delegation of power or in some power to be properly implied therefrom.

Jacobson v. Mass, 197 U.S. 11, 22 (1904)

Therefore, the preamble(s) have/has no effect. Nor does the Declaration of Independence.

[PrestonNorthEnd]

Originally Posted by nicky c

That's cute. In order to become members of the Union the states did in fact yield authority to the federal system and became bound to everything the US constitution pledged including a set of inalienable rights that cannot be taken away from the people by either party involved.

Sure, the Fed can't trump a states' police powers, but then again those rights accorded a state are in fact trumped by the people in the form of the 2A. The entire system answers to the militia, i.e the people!! The entire system serves at the people's pleasure. The people retain the right to burn that entire system down to the ground at will.

Amendment II didn't apply to the states. Why can't people understand this?

None of the Bill of Rights did.

It's why one or two states were taxing the public (up to the 1820s IIRC) to pay the clergy...clearly a violation in today's world.

It is why states had laws on their books that people had to bring weapons to church and the clergy were to, essentially, frisk them. Surely this is a violation of amendment IV; and I for that matter. Even forcing someone to bear arms is unconstitutional under amendment II if it applied to the states.

If I have a right to something, it doesn't mean I HAVE to exercise it. Forcing me to is unconstitutional.

It's why California has never had in either its constitutions the right to keep and bear arms, and why it's been able to legislate them.

Article 1, Section 1 certainly alludes to it "All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy."

What, am I supposed to use a spoon, or something?

But there is NO RBKA written in the California constitution.

[jrr]

Originally Posted by PrestonNorthEnd

Amendment II didn't apply to the states. Why can't people understand this?

Uhhh.. wow. Key word "didn't". 2A does now apply to the states, go read McDonald v. City of Chicago. Not really sure what point you are trying to make, maybe I missed something....

[PrestonNorthEnd]

Originally Posted by jrr

Uhhh.. wow. Key word "didn't". 2A does now apply to the states, go read McDonald v. City of Chicago. Not really sure what point you are trying to make, maybe I missed something....

I know that. I was responding to someone that believes the Bill of Right has ALWAYS applied to the states.

Oh, I have read McDonald.

[jrr]

ah, roger that. my mistake, sorry.

[Librarian]

Fiddletown, leadchucker - take it to PM please.

[Paladin]

I just skimmed this thread and did not notice anyone saying when is the deadline for asking cert. in Kolbe. Anyone know? It's not on SCOTUS' docket, yet.

https://www.supremecourt.gov/search....-Court=Dockets

[Master_P]

Opinion came out 2/21 so I'm guessing 90 days from there. Probably around 5/22.

Sent from my SM-G925V using Tapatalk

[AceGirlsHusband]

Originally Posted by tenemae

.... decapitations?

...right after you notice a difficulty in swallowing. You'll suddenly be looking at your chest upside down.

[Paladin]

Originally Posted by Master_P

Opinion came out 2/21 so I'm guessing 90 days from there. Probably around 5/22.

Still nothing on SCOTUS' docket for a party named "Kolbe" yet.

~5 weeks to go.

[press1280]

Originally Posted by Paladin

Still nothing on SCOTUS' docket for a party named "Kolbe" yet.

~5 weeks to go.

It probably won't appear on the docket until almost (or right on) the 90 day limit. Lawyers rarely file early.

[Paladin]

Originally Posted by press1280

It probably won't appear on the docket until almost (or right on) the 90 day limit. Lawyers rarely file early.

Especially when the longer you wait, the better (you believe) SCOTUS' composition will be.

[Paladin]

Originally Posted by Paladin

Especially when the longer you wait, the better (you believe) SCOTUS' composition will be.

No. 16A1074
Title:
Stephen V. Kolbe, et al., Applicants
v.
Lawrence J. Hogan, Jr., Governor of Maryland, et al.
Docketed: May 5, 2017
Lower Ct: United States Court of Appeals for the Fourth Circuit
Case Nos.: (14-1945)

~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
May 3 2017 Application (16A1074) to extend the time to file a petition for a writ of certiorari from May 22, 2017 to July 21, 2017, submitted to The Chief Justice.

From:
https://www.supremecourt.gov/search....es/16a1074.htm

This is their 1st extension. IIRC, SCOTUS will regularly grant two, so that would put it out to late Sept, about the time of SCOTUS' Long Conference.

Like Pena, time to forget about Kolbe until after the 4th.

[press1280]

Originally Posted by Paladin

From:
https://www.supremecourt.gov/search....es/16a1074.htm

This is their 1st extension. IIRC, SCOTUS will regularly grant two, so that would put it out to late Sept, about the time of SCOTUS' Long Conference.

Like Pena, time to forget about Kolbe until after the 4th.

Over the summer break SCOTUS won't give a crap about extensions.

[Paladin]

Originally Posted by press1280

Over the summer break SCOTUS won't give a crap about extensions.

SCOTUS goes on vacation July 1st.

If plaintiff doesn't ask for and receive another extension and does not request cert by July 21st, I think SCOTUS will "care"....

[iroquois]

Originally Posted by Strongisland

Well they still use bolt actions.

So ban those, it's a weapon used in the military.

Exactly! Last time I checked handguns are also weapons of war.
That's like arguing a truck is the worst form of transportation compared to a car.

[Kharn]

Originally Posted by Paladin

From:
https://www.supremecourt.gov/search....es/16a1074.htm

This is their 1st extension. IIRC, SCOTUS will regularly grant two, so that would put it out to late Sept, about the time of SCOTUS' Long Conference.

Like Pena, time to forget about Kolbe until after the 4th.

Civilians get one extension and may get a second, government bodies get two extensions. First extension is two months, second extension is one month. The Justices still answer motions for more time over the summer, aka, poor hapless clerk who gets no summer vacation applies standard instructions unless he/she needs to call for special instructions.

The question is if MD will need an extension, with the current schedule (21 July, MD response due 30 days later, then 10 days for Kolbe's reply) everything would be ready for the Long Conference on 25 September. The Long Conference is a massacre. One extension on MD's part, or a second extension for Kolbe and we'll miss the Long Conference.

[Paladin]

Originally Posted by Kharn

The question is if MD will need an extension, with the current schedule (21 July, MD response due 30 days later, then 10 days for Kolbe's reply) everything would be ready for the Long Conference on 25 September. The Long Conference is a massacre. One extension on MD's part, or a second extension for Kolbe and we'll miss the Long Conference.

[randomBytes]

All these crappy decisions are screwing us...
I suspect people should stop bringing cases until SCOTUS is fixed.
It will do no good to have a decent SCOTUS if it is no longer possible to get a case before it.

[Paladin]

Originally Posted by Kharn

The question is if MD will need an extension, with the current schedule (21 July, MD response due 30 days later, then 10 days for Kolbe's reply) everything would be ready for the Long Conference on 25 September. The Long Conference is a massacre. One extension on MD's part, or a second extension for Kolbe and we'll miss the Long Conference.

[Paladin]

Any word on whether they filed for cert? Nothing new on their docket as of yet.

[Citizen One]

It's just been appealed to the Supremes for Cert. Have my fingers crossed. If there was a clean direct-Heller-contradiction, common-use, AWB-nuking case, this is it.

May get the magazine capacity ban nuked too. I am not a lawyer, but they'll have a hell of a time denying cert since the 4th have given a giant middle finger to the SCotUS and Heller.

https://bearingarms.com/ba-staff/201...s-gun-ban/amp/
https://www.nraila.org/articles/2017...ylands-gun-ban

Fairfax, Va.— A group of Maryland citizens, with the support of the National Rifle Association, filed a petition to the United States Supreme Court on Friday seeking to reverse a Court of Appeals ruling that stripped some of America’s most popular rifles of Second Amendment protection. The 4th Circuit ruling in the case Kolbe v. Hogan is a direct contradiction of the Supreme Court’s 2008 decision, District of Columbia v. Heller, which re-affirmed American citizens’ right to self-defense.

“Lower courts have been making up their own rules when it comes to the Second Amendment for too long, and the Kolbe decision crossed yet another line,” said Chris W. Cox, executive director, National Rifle Association Institute for Legislative Action. “The Second Amendment guarantees an individual right to keep and bear arms for self-defense. The popular rifles and standard magazines banned in Maryland are some of the best tools for self-defense. We are hopeful that the Supreme Court will reverse this egregious decision.”

[Solidsnake87]

How long does it take to review the petition for cert? When can we expect to learn more on the status of this case?

[Uncivil Engineer]

The real question is how would it go against us? How could a majority thread the needle to go against us yet not go against Heller and McDonald.

[Paladin]

Originally Posted by Solidsnake87

How long does it take to review the petition for cert? When can we expect to learn more on the status of this case?

You can have a sandwich and probably safely take a nap until Oct for Kolbe at SCOTUS.... (and until early Nov for Nichols at CA9).

If you want to do something worthwhile until then, you can pray that one of the 4 antis "leaves" the Court. (Leave the details up to God.)

[press1280]

Originally Posted by Solidsnake87

How long does it take to review the petition for cert? When can we expect to learn more on the status of this case?

Depending on any delays from MD, it could be at the big conference on September 25th.

[ziegenbock]

What is going on with this case?

https://www.supremecourt.gov/search....es/16a1074.htm

No. 16A1074
Title:
Stephen V. Kolbe, et al., Applicants
v.
Lawrence J. Hogan, Jr., Governor of Maryland, et al.
Docketed: May 5, 2017
Linked with 17-127
Lower Ct: United States Court of Appeals for the Fourth Circuit
Case Nos.: (14-1945)

~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
May 3 2017 Application (16A1074) to extend the time to file a petition for a writ of certiorari from May 22, 2017 to July 21, 2017, submitted to The Chief Justice.
May 10 2017 Application (16A1074) granted by The Chief Justice extending the time to file until July 21, 2017.

[mit31]

Did you read ANY of the recent posts here? Check #144 above. Cert was filed in July and, as mentioned in the post right above yours, SCOTUS may review it as early as Sept.

Originally Posted by ziegenbock

What is going on with this case?

https://www.supremecourt.gov/search....es/16a1074.htm

No. 16A1074
Title:
Stephen V. Kolbe, et al., Applicants
v.
Lawrence J. Hogan, Jr., Governor of Maryland, et al.
Docketed: May 5, 2017
Linked with 17-127
Lower Ct: United States Court of Appeals for the Fourth Circuit
Case Nos.: (14-1945)

~~~Date~~~ ~~~~~~~Proceedings and Orders~~~~~~~~~~~~~~~~~~~~~
May 3 2017 Application (16A1074) to extend the time to file a petition for a writ of certiorari from May 22, 2017 to July 21, 2017, submitted to The Chief Justice.
May 10 2017 Application (16A1074) granted by The Chief Justice extending the time to file until July 21, 2017.

[ziegenbock]

Originally Posted by mit31

Did you read ANY of the recent posts here? Check #144 above. Cert was filed in July and, as mentioned in the post right above yours, SCOTUS may review it as early as Sept.

Yes, then I went to the SCOTUS website to get the latest news and it hasn't been updated, which is why I posted the info.....hence my question.

[mit31]

I can't speculate why the SCOTUS page hasn't been updated, but the two linked articles in #144 clearly state that the cert request was made in July, which ties into the deadline. After a brief google search, I found the writ of certiorari online, which is linked below. I'm still not sure exactly what you are asking.... they filed for writ, and are waiting, per the above posts. That is what is going on.

http://14544-presscdn-0-64.pagely.ne...Certiorari.pdf

Originally Posted by ziegenbock

Yes, then I went to the SCOTUS website to get the latest news and it hasn't been updated, which is why I posted the info.....hence my question.

[surfgeorge]

Here's a FoxNews article published today re Kolbe:

http://www.foxnews.com/politics/2017...-scrutiny.html

Supreme Court's next big gun control case? Post-Newtown laws face new scrutiny

Excerpt:

Jay Porter, an attorney for the plaintiffs, complained about a patchwork of rulings in the wake of the landmark 2008 Heller decision upholding the individual’s right to own a gun. He called on the Supreme Court to clear up the confusion.

“We would like to see a reversal in the trend of the lower courts,” Porter said. “At best, there is a lot of confusion in the lower courts about the Second Amendment. At worst, lower courts are ignoring and resisting the Heller decision because they didn’t like the outcome. That resistance needs to be mediated.”

In response to Newtown, 21 states passed some type of new gun control laws in 2013, according to a joint report by the Law Center to Prevent Gun Violence and the Brady Campaign. Most didn’t deal directly with buying or owning a firearm, but rather with background checks, record-keeping rules for gun dealers and other factors.

[press1280]

Originally Posted by ziegenbock

Yes, then I went to the SCOTUS website to get the latest news and it hasn't been updated, which is why I posted the info.....hence my question.

The webmaster must be on vacation. Updates are usually slow in the summer, although this is pushing it.

[AdamVIP]

This one is popping up again in the news cycle so I figured I would give it a bump for easy viewing.

[Jimi Jah]

Originally Posted by jrr

Uhhh.. wow. Key word "didn't". 2A does now apply to the states, go read McDonald v. City of Chicago. Not really sure what point you are trying to make, maybe I missed something....

You still can't get gun rights in NYC or Chitcago, those decisions are paper tigers. Heller is also being picked apart without consenquence.

[Wolverine]

SCOTUSblog has a useful entry for Kolbe v. Hogan in their "petitions we're watching" section. See http://www.scotusblog.com/case-files...kolbe-v-hogan/

There are hot links to the various documents including quite a number of Amicus briefs coming in.

[Solidsnake87]

Updates?

[Ubermcoupe]

Originally Posted by Solidsnake87

Updates?

Looks like a response isn't required until Oct 10. I suspect one will be filed around that time.

[CCWFacts]

NRA has a release about this case. They seem quite confident in their position:

Originally Posted by NRA

The AR-15 banned under the law is the “most popular centerfire semiautomatic rifle in the United States.” Under Heller, that is all that is needed for citizens to keep such firearms under the Second Amendment.

What's the impression? How likely is this to get cert? I feel like it's not going to get cert, because guns.

[Solidsnake87]

The silence on this is killing me. I guess we'll know Tuesday?