Kachalsky - CA2 Decision is out - Loss

[Al Norris]

Kachalsky et al. v. Cty. of Westchester et al.

The decision of the district court is affirmed. See this thread for further details.

The CA2 panel did exactly what many of us thought. Although the suit was aimed at carry in public, as part and parcel of the right, the court looked only at concealed carry and concluded that the NY State law was a valid regulation. This, regardless of the fact that open carry is completely banned. The court sweeps past this with barely any regard at all.

The court does spend 2 pages of writing on why they will not address 2A concerns by importing certain 1A standards. This, despite the fact that the CA4 and CA3 (and even another CA2 panel - US v. DeCastro) did import some of that reasoning.

The core of the right, as seen by this CA2 panel, is "in the home." Anything else deserves less scrutiny. Here, the court couches its "reasonable regulation" in terms of intermediate scrutiny. This, like so many district court decisions is nothing more than rational basis in which the law stands.

[Mesa Tactical]

Al Norris, that was a spectacular opening post to that thread on The Firing Line.

[Calplinker]

Future?

So what's next with this case? Appeal?

[AyatollahGondola]

Depressing. The court pretty much shot down a 1st amendment challenge without it being at the core of the challenge to the 2nd. While they didn't say you couldn't carry a firearm as a demonstration of a 2nd amendment right, they chiseled a pathway for that to happen in the future.

[Al Norris]

Thanks.

What makes this decision really bad, is that the law in MD is very similar. The CA4 in Woollard might well use the CA2 decision in overturning Judge Legg's decision at district court.

This constant harping about punting to the Supreme Court, as if it was the Court of First Impression, is getting old. Especially when the circuit courts say the same thing.

I sincerely hope that Justice Scalia and Justice Thomas are following these escapades.

[OleCuss]

My questions are on the timing. I think a lot of us are not at all surprised by a loss.

Are they going to appeal in time to have a shot at getting cert for this session of SCOTUS?

Is it likely that they are going to ask for en banc resulting in further delay?

Just wondering. . .

[kcbrown]

Frankly, I'm very surprised they issued an opinion this "early". This means we can appeal to SCOTUS immediately. And this is an Alan Gura case, so it is well-targeted.

Now, that said, it should be clear to all of you by now that the lower courts are going to continue to use the Supreme Court as the effective "court of first resort" and act, merely, as delaying and expense-adding mechanisms for getting a real decision (see Osterweil v Bartlett). Even after the Supreme Court weighs in on the issue of public carry, you can expect cases that are the same as this one in all the ways that matter to have to go to SCOTUS for resolution. SCOTUS will be forced to rule on the merits of all those cases, as was the case in NAACP v Alabama.


Regardless, it is very heartening that the 2nd Circuit gave us the "loss" and thus give us the opportunity to appeal to SCOTUS for a ruling. A certain quote comes to mind on this. What was it? Ah, yes: "please, please don't throw me into that briar patch!".

[M. D. Van Norman]

At the moment, delay is the only viable strategy the prohibitionists have. Avoid meaningful decisions until the Supreme Court changes or until our frustration breaks.

[Dantedamean]

If they go to SCOTUS I hope it's quickly before Obama can get his grubby hands on a new appointment or two.

[bruss01]

Actually, this seems like GOOD news.

They have set themselves up to be reversed by the Supreme Court. If, as mentioned above, this is an Alan Gura case, he has a history of taking 2A to the highest court and WINNING. That win sets us up in a good position nationwide, including here in CA.

It seems like our prayers are being answered and the anti's keep pitching us slow balls right over the plate in the strike zone. Couldn't ask for better!

[curtisfong]

Seriously. The more glaringly deficient the CA2 decision is, the better it is for us.

Believe it or not, this is probably the best case outcome.

[bulgron]

Seriously. The more glaringly deficient the CA2 decision is, the better it is for us.

Believe it or not, this is probably the best case outcome.

Not if SCOTUS finds the decision so bad that they simply decide to reverse and remand. Then we get to stay on this merry-go-round even longer.

[volksweegle]

SCOTUS is going down the tubes. They wont side for us any more.

[bulgron]

SCOTUS is going down the tubes. They wont side for us any more.

There's still time to squeak one more win out of them. But after that, you're right, we're screwed.

[kcbrown]

Not if SCOTUS finds the decision so bad that they simply decide to reverse and remand. Then we get to stay on this merry-go-round even longer.

Even I am skeptical that SCOTUS would do that. GVR requires that there be prior SCOTUS guidance on the issue, but for this there is effectively none. This case is all about the right to keep and bear arms in public, something that was never explicitly addressed in Heller.

It's possible (likely, even) that SCOTUS will hear the case, issue a ruling, and then remand for further proceedings, but they will give guidance one way or the other, and that requires that they rule on the merits.


No, the two most likely scenarios are that they rule on the merits, or they deny cert altogether. I'm hopeful they won't deny cert, but won't be surprised at all if they do -- they may be waiting for Moore or its equivalent, which is a more "pure" case than this.