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National 2nd Amend. Political & Legal Discussion Discuss national gun rights and 2A related political topics here. All advice given is NOT legal counsel.

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  #1  
Old 02-02-2017, 2:04 PM
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Default Kolbe v. Hogan 4th Circuit Opinion (MD, 'assault weapons') - Cert denied 11/27

it'll go our way?

Last edited by chills; 02-02-2017 at 3:12 PM..
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Old 02-08-2017, 11:18 AM
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No takers? I just figured this one would be a BFD given that a court has asked for strict scrutiny on what an assault weapon 'is'.
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Old 02-08-2017, 12:37 PM
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Nice, but once you've seen what happened to Peruta, you're just not impressed with 2-1 panel decisions anymore
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Old 02-10-2017, 5:07 AM
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The 4th circuit is very liberal. Don't expect much.
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Old 02-21-2017, 11:39 AM
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Yeah. Not so much:

http://michellawyers.com/wp-content/...al-Opinion.pdf
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  #6  
Old 02-21-2017, 11:49 AM
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Default Kolbe v. Hogan En Banc decision (4th Circuit)

http://guptawessler.com/wp-content/u...nc-opinion.pdf

AWB upheld in the 4th Circuit en banc, panel ruling reversed.
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Old 02-21-2017, 12:13 PM
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Quote:
"Reports from that testing indicated that “the very high-velocity AR-15 projectiles” had caused “[a]mputations of limbs, massive body wounds, and decapitations.” Id. "
.... decapitations?
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Old 02-21-2017, 12:14 PM
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Default Kolbe v. Hogan 4th Circuit Opinion

Cal NRA Tweeted this, here's the link.

http://michellawyers.com/wp-content/...al-Opinion.pdf
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  #9  
Old 02-21-2017, 12:15 PM
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Ugh what the ****
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Old 02-21-2017, 12:16 PM
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I have a job and cant read through 116 pages...

Cliff Notes?
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Old 02-21-2017, 12:25 PM
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Semi-Auto Center-Fire rifles are weapons of war and, given most citizens' preference to use pistols for self-defense, we find that the second amendment does not apply to SACF rifles or magazines with greater than 10 rnd capacity...... for the children.
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Old 02-21-2017, 12:34 PM
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Yup. Completely ignored the "in common use" language, and instead state with no support that AR15's are "weapons of war" that Heller states are not protected.

Quote:
Originally Posted by tenemae View Post
Semi-Auto Center-Fire rifles are weapons of war and, given most citizens' preference to use pistols for self-defense, we find that the second amendment does not apply to SACF rifles or magazines with greater than 10 rnd capacity...... for the children.
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Old 02-21-2017, 12:40 PM
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What ever happened to the 2nd Amendment being in place so we the people could effectively rise up against a tyrannical government.

Kind of hard to do without weapons of war.
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Old 02-21-2017, 12:41 PM
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What an interesting interpretation. "Weapons of war" are exactly the arms of concern, I believe, that the founding fathers had in mind when they inserted the prefatory clause of the 2nd Amendment.
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Old 02-21-2017, 12:44 PM
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Well, maybe this will be Gorsuch's finest hour, to save the Second Amendment. In the meantime, we are screwed.

Its a green light for the fuqers in Sacramento.

Has there been any comment from our side yet?
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Old 02-21-2017, 12:48 PM
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This should thrill the "things that go up" lady.
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Old 02-21-2017, 12:53 PM
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Quote:
Originally Posted by tenemae View Post
.... decapitations?
I think they mixed up some tests on a 1861 Springfield .58 by mistake.
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  #18  
Old 02-21-2017, 1:36 PM
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One obvious counter-argument is that common use for purposes of self defense is NOT the only protected use. Militia service is likewise protected (see Miller).

The most popular rifle platform, in the US is NOT a weapon of war - and if it is, why do our police commonly carry the full-auto capable variants? Why does the federal government purchase them as "self defense systems?".
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  #19  
Old 02-21-2017, 2:10 PM
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The main Heller quote they cite, regarding M-16's, is the one thing I wish was deleted from the record completely. Even though it can be easily rationalized, it is a very confusing couple of paragraphs and serves no purpose other than as fodder for decisions like this. It's a case of saying too much.
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Old 02-21-2017, 2:48 PM
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It appears they did set up a split though on the retired LEO exception to the ban with Silveira v. Lockyer. The en banc court tries to get around that, but pretty weakly IMO:

18 In pursuing their equal protection challenge, the plaintiffs rely primarily on Silveira v. Lockyer, wherein the Ninth Circuit concluded that a retired officer exception to an assault weapons ban contravened the Equal Protection Clause. See 312 F.3d 1052, 1089-92 (9th Cir. 2002). We agree with the district court, however, that the Silveira decision “is flawed,” as it did not analyze whether there was differential treatment of similarly situated persons. See Kolbe, 42 F. Supp. 3d at 798 n.39. Otherwise, the plaintiffs insist that Maryland’s retired law enforcement officers are similarly situated to the general public, in that some individual officers might not have been properly trained on assault weapons or large-capacity magazines. That contention lacks merit because we must look at retired officers as a broader class.

Retired LEOs ARE regular citizens the day they retire. Period.
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Old 02-21-2017, 3:03 PM
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Who cares what the bolsheviks in Maryland rule on? We already have US vs Miller strictly declaring that citizens can have rifles akin to that of a common foot soldier. Bolshies can burn in hell, and then burn again.
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Old 02-21-2017, 3:14 PM
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Old 02-21-2017, 3:20 PM
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Quote:
Originally Posted by AceGirlsHusband View Post
I think they mixed up some tests on a 1861 Springfield .58 by mistake.
Or wound up playing too much Fallout 4. Given their general knowledge of firearms... getting all of their "expertise" from video games seems plausible.
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Old 02-21-2017, 3:21 PM
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^^ Good idea.
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Old 02-21-2017, 3:57 PM
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Ugh... I dont have the stomach to read the whole pile of excrement. Can someone clarify one thing:
Does the statute at issue bar ONLY the ar15?

If not, then it is inexcusable that the court is so OBSESSED with this "battlefield" test. What about the dozens of Semi Auto sporters that are banned by this law that have NEVER been adopted by any military, or bear even any military lineage?

And man.. someone go back in time a b slap Scalia for putting that "m16s and the like" language. And then come back, and b slap the heck out of this court for the totally deceptive and perverse usage of the phrase. They take that sentence, change the order of words and put seperate quotes around it. So "m16s and the like" becomes "like" "M16s", and makes it seem like Scalia was ok with banning weapons like m16s. The obvious meaning in context is to refer to actual current issue military weapons, not weapons that look "like" them.

Madness... just madness.
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Old 02-21-2017, 4:37 PM
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Well they still use bolt actions.

So ban those, it's a weapon used in the military.
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Old 02-21-2017, 4:43 PM
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Quote:
Originally Posted by WolfAmongUs View Post
http://guptawessler.com/wp-content/u...nc-opinion.pdf

AWB upheld in the 4th Circuit en banc, panel ruling reversed.
With this decision, are we finally ripe for an "assault weapons" case before SCOTUS?
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Old 02-21-2017, 4:53 PM
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my take? What we're witnessing is the beginning of the end of the AR15 (and SACF rifles in general). Not today, not next week, but the seed is sown and the arguments presented here will echo throughout the liberal courts as the mantra for 'Assault Weapon Disarmament'. "Pistols should be enough for self defense" will be used for this purpose and Heller will be held up as the power to do just that.

Last edited by chills; 02-21-2017 at 4:57 PM..
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Old 02-21-2017, 6:20 PM
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Quote:
Originally Posted by chills View Post
my take? What we're witnessing is the beginning of the end of the AR15 (and SACF rifles in general). Not today, not next week, but the seed is sown and the arguments presented here will echo throughout the liberal courts as the mantra for 'Assault Weapon Disarmament'. "Pistols should be enough for self defense" will be used for this purpose and Heller will be held up as the power to do just that.
No. The seeds sown are the ever growing split between the pro-gun-rights States and the anti-gun-rights States. The anti-gun States number less than 10 out of 50.

At worst, nothing will stop the ever growing repression within the anti-gun-rights States. But that repression isn't about to spread to Arizona or Texas or other areas of Free America. And people would still be able to "vote with their feet" to flee from anti-gun-rights States.

At best the horrible example presented to the nation of the anti-gun States vs the good example of Free States will finally galvanize the Federal Government into action. A Gun-Rights version of the 1964 Civil Rights Act is one possibility.
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Old 02-21-2017, 6:22 PM
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Quote:
Originally Posted by chills View Post
my take? What we're witnessing is the beginning of the end of the AR15 (and SACF rifles in general). Not today, not next week, but the seed is sown and the arguments presented here will echo throughout the liberal courts as the mantra for 'Assault Weapon Disarmament'. "Pistols should be enough for self defense" will be used for this purpose and Heller will be held up as the power to do just that.
Right how many AR15's did Obama sell?

They are going to try. People will get very mad.
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Old 02-21-2017, 7:44 PM
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"Military" weapons are exactly what George Washington wanted the militia to have along with proficiency in their use. He lamented such a lacking reapeatedly. I guess judges don't study history ... or law ...
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Old 02-21-2017, 9:03 PM
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After cutting and pasting a series of rules without applying them to the facts, Kolbe offers a contradiction, "Just recently, in Caetano v. Massachusetts, the Court reiterated two points made by Heller: first, 'that the Second Amendment extends . . . to . . . arms . . . that were not in existence at the time of the founding; and, second, that there is no merit to the proposition ‘that only those weapons useful in warfare are protected. See Caetano, 136 S. Ct. 1027, 1028 (2016) (per curiam) (alterations in original) (quoting Heller, 554 U.S. at 582, 624-25)" but will not obey the Supreme Court's direction in Caetano, "Because the FSA-banned assault weapons and large capacity magazines are like M16s, in that they are most useful in military service, they are not protected by the Second Amendment." pp. 67-68.http://michellawyers.com/wp-content/...al-Opinion.pdf

The Caetano court concluded that military weapons are protected by the Second Amendment, along with other types of weapons, as did Heller when it reviewed the Miller case's conclusion that sawed off shotguns are not protected, because they are not military weapons.

A closer look at the Supreme Court decision, Miller, indicates:
The signification attributed to the term Militia appears from the debates in the Convention, the history and legislation of Colonies and States, and the writings of approved commentators. These show plainly enough that the Militia comprised all males physically capable of acting in concert for the common defense. "A body of citizens enrolled for military discipline." And further, that ordinarily, when called for service these men were expected to appear bearing arms supplied by themselves and of the kind in common use at the time. . .

***
. . . "The American Colonies In The 17th Century," Osgood, Vol. 1, ch. XIII, affirms in reference to the early system of defense in New England --

"In all the colonies, as in England, the militia system was based on the principle of the assize of arms. This implied the general obligation of all adult male inhabitants to possess arms, and, with certain exceptions, to cooperate in the work of defence."
United States v. Miller, 307 U.S. 174, 180 (1939)

Therefore, the general male populace (at the time it did not include women and other minorities) was expected to be armed with state of the art weapons. One wonders if anyone cited to the above language in their opening or reply briefs.

The Kolbe court is a fine example of the manner in which all courts will either ignore precedent, distort precedent, weave a rule out of thin air, or will distort the facts to compel an outcome contrary to published decisions. Many folks in the Second Amendment community are fond of saying "liberal judges" and "we need more conservative judges" but fail to take note that this type of disregard for stare decisis happens every minute of every day in the courts.

As Chemerinsky indicates, the participants at the constitutional debates doubted that states and courts could be trusted to carry out the laws and respect the constitution. The Kolbe decision is a mere passing example that the framers' concerns were well-founded.

Last edited by sarabellum; 02-24-2017 at 2:35 PM..
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Old 02-21-2017, 9:15 PM
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This decision aligns nicely with Friedman vs Highland Park- as long as the State offers any evidence (and that evidence is to be accepted uncritically) and as long as citizens can still possess anything that can be called a handgun in the home, a ban is acceptable. The two decisions easily support banning all repeating firearms including handguns; as long as a single shot pistol is available for use in the home, Heller is satisfied.

Until the SCOTUS stands up for it, Heller has been almost totally nullified.
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Old 02-21-2017, 10:05 PM
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Quote:
Originally Posted by madjack956 View Post
What ever happened to the 2nd Amendment being in place so we the people could effectively rise up against a tyrannical government.

Kind of hard to do without weapons of war.
What do you mean? They know that they are at the top of the tyrannical list, which is why the want us disarmed.
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Old 02-21-2017, 10:21 PM
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For those in the know. Is it normal for a appeal court decision to attempt to pull at the heart strings (i.e. by reiterating the damaged caused by mass shootings)
"KING, Circuit Judge:
On the morning of December 14, 2012, in Newtown,
Connecticut, a gunman used an AR-15-type Bushmaster rifle and
detachable thirty-round magazines to murder twenty first-graders
and six adults in the Sandy Hook Elementary School. Two
additional adults were injured by gunfire, and just twelve
children in the two targeted classrooms were not shot. Nine
terrified children ran from one of the classrooms when the
gunman paused to reload, while two youngsters successfully hid
in a restroom. Another child was the other classroom’s sole
survivor. In all, the gunman fired at least 155 rounds of
ammunition within five minutes, shooting each of his victims
multiple times."

I though the courts were suppose to be ruling on the application of law. Not try to sell their perceived emotion behind their ruling.
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Old 02-22-2017, 12:59 AM
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I wonder if the plaintiffs will file for cert from SCOTUS? That would still be a gamble even with Gorsuch on the court and I don't trust Kennedy! Last thing we need is a SCOTUS ruling upholding broad bans against common use firearms. We simply need RBG to finally retire....
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Old 02-22-2017, 8:26 AM
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A couple combined chemicals under my kitchen sink and I could have some "weapons of war"

That term is played out!
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Old 02-22-2017, 9:06 AM
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I have to give credit to the majority. I didn't think it possible that Heller and Caetano could be twisted in such a way as to rule that only arms that are not dangerous are covered by the 2nd Amendment. At least the other circuits so far had ruled that modern sporting rifles fell under the second amendment, but could be banned under "intermediate scrutiny," or even perceived safety.

It's only a matter of time until the 9th misquotes Heller, Miller, and Caetano as actually ruling that the 2nd amendment does not apply to weapons useful for military service, nor to weapons not useful for military service, nor weapons in use at the time of ratification, nor weapons that did not exist at the time of ratification.
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Old 02-22-2017, 9:11 AM
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Rulings means more rulings, which means more rulings, repeat and rinse. The SCOTUS will not help, they are out of the 2nd amendment biz. They are perfectly comfortable with 50 interpretations of the 2nd amendment.

ALL judges are political appointees. There you have it, it's not a third branch of government, it's an extention of the legislative branch now.
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Old 02-22-2017, 10:15 AM
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Quote:
Originally Posted by sarabellum View Post
As Chemerinsky indicates, the participants at the constitutional debates doubted that states and courts could be trusted to carry out the laws and respect the constitution. The Kolbe decision is a mere passing example that the framers' concerns were well-founded.
This is a very good point and worth repeating.

Believing that courts are some noble institutions and that they can protect us against the politicians is naive (I was in that camp until enough evidence pointed otherwise). What we need is solid judicial appointees and simply fight the numbers with numbers.

We needed a few breaks and getting Trump/R in the WH, together with keeping the Senate was two of them. We need just one more - RBG leaving the court (one way or another).
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