MSJ for Maryland Assault Weapons/Magazine Lawsuit Filed (Kolbe v O'Malley USDC N MD)

[Patrick-2]

To my knowledge, this is the first brief of a major case that took on the so-called social-science used by the anti-rights crowd. Take a look at this and then go find out who Dr. Koper is - he is the man behind the numbers used by Dr. Webb (Hopkins), who is the man behind a lot of the social-science BS we've seen courts bite into the last few years.

Koper admits that basically everything used by gun controllers regarding social science data on assault weapons is bupkus. And this is the first time Dr. Koper has ever been deposed on this matter. This is the first time someone has challenged these guys under oath. The results are interesting:

I won't argue with those who say engaging in social science debate is giving the other side credibility - that if we debate the numbers, then the number matter. Heck, I have argued the same, myself. This suit does not say that the numbers matter, but the courts generally have relied on them anyway. To the extent the courts look at the numbers we might as well show them for the farce they are. If anything, it creates some interesting on-the-record results. Keep in mind this is the 4th Circuit and much if this is written to handle existing precedent - you fight on the fields you have, not the ones you want. Also, the District Court judge in this case was specific that the numbers mattered to her. Again - you don't always get to pick the ground you fight on.


More fun: Take a look at the admissions of the MSP Superintendent, the chief of the Firearms Branch and the Chief of Baltimore Police and see what they say about the AR-15: they agree it is "common", if not the most common rifle being sold in the state and the nation. And how the FBI lays waste to the arguments that it is "exceptionally dangerous".

Basically this lays out a case where the state put in place a law using "evidence" that did not exist, or that was clearly false. To the extent the state claims they have evidence, it is most thoroughly refuted here by their own witnesses. This is not a pissing contest between so-called experts - this is the primary state witnesses, experts, and police personnel admitting we are correct.

I could go on, but you got 97 pages to read...

[Wang Lung]

Link?

[IVC]

I won't argue with those who say engaging in social science debate is giving the other side credibility - that if we debate the numbers, then the number matter. Heck, I have argued the same, myself. This suit does not say that the numbers matter, but the courts generally have relied on them anyway. To the extent the courts look at the numbers we might as well show them for the farce they are.

There is a more subtle problem with engaging in social science debate than just allowing the other side to argue numbers - we are allowing them to pick a metric and establish it as a standard measure of their policies.

It's one thing to argue the effect of bans on public safety in general, but quite the other thing to allow them to control how they determine this effect.

Bans on “assault weapons” and “large capacity magazines” have proved wholly ineffective. Defendants’ experts admit the evidence does not show that the Maryland ban on commonly possessed firearms and magazines will reduce firearm crime in general, or even reduce the criminal use of the banned firearms and magazines.
...
Dr. Koper cannot state to a reasonable degree of scientific probability that the challenged Maryland law will reduce the number of crimes committed with assault weapons and other firearms with large capacity magazines; ...

The bolded part is what I am really concerned about since it's the same argument that Feinstein used to claim her 1994-2004 ban had been effective. By choosing a measure of "crimes committed with banned weapons" instead of "all crimes committed with all weapons" they are putting forward an argument that they can actually win.

The problem with the argument is not that their number is incorrect, but that their number is correct for an incorrect metric. Arguing just the number we lose. In other words, even when going to courts that want to argue numbers, we have to be very careful about which numbers we're going to argue, not just about what those numbers are.

For those not familiar with how Feinstein operated to claim "success" with her AWB, consider the following reasoning: "(1) black cars are scary and allow people to drive drunk and kill innocent people; (2) we need to ban black cars; (3) after we banned black cars, the drunk driving incidents involving black cars declined; (4) we were right to ban black cars because it saved lives."

[Patrick-2]

Link?

Oops. I edited post #1 to include the PDF. Thanks for calling that out.

[Patrick-2]

There is a more subtle problem with engaging in social science debate than just allowing the other side to argue numbers - we are allowing them to pick a metric and establish it as a standard measure of their policies.

It's one thing to argue the effect of bans on public safety in general, but quite the other thing to allow them to control how they determine this effect.



The bolded part is what I am really concerned about since it's the same argument that Feinstein used to claim her 1994-2004 ban had been effective. By choosing a measure of "crimes committed with banned weapons" instead of "all crimes committed with all weapons" they are putting forward an argument that they can actually win.

The problem with the argument is not that their number is incorrect, but that their number is correct for an incorrect metric. Arguing just the number we lose. In other words, even when going to courts that want to argue numbers, we have to be very careful about which numbers we're going to argue, not just about what those numbers are.

For those not familiar with how Feinstein operated to claim "success" with her AWB, consider the following reasoning: "(1) black cars are scary and allow people to drive drunk and kill innocent people; (2) we need to ban black cars; (3) after we banned black cars, the drunk driving incidents involving black cars declined; (4) we were right to ban black cars because it saved lives."

Agreed, in general. In this case the judge forecast how she was going to decide the case: intermediate scrutiny "like Heller II" and social science numbers. She called the firearms in questions a "subclass" of firearms and therefore Heller didn't apply to them because they did not constitute a categorical restriction (because they were only sub-categorical). So this colors the response. Also keep in mind the 4th Circuit treats intermediate scrutiny like rational basis. She was nice enough to telegraph all of this at the TRO hearing, long before the initial complaint was even filed. She said point blank, "this is all going to the fourth anyway, so we might as well hurry things along and create something they can work from."

She opened the door to establishing a large record. That cuts both ways, obviously. But right now the state essentially is arguing points that their own experts refuted.

The state agreed to an expedited schedule and might have gotten a bit overwhelmed at the end of it. We'll see what their response looks like.

[lasbrg]

Basically this lays out a case where the state put in place a law using "evidence" that did not exist, or that was clearly false. To the extent the state claims they have evidence, it is most thoroughly refuted here by their own witnesses. This is not a pissing contest between so-called experts - this is the primary state witnesses, experts, and police personnel admitting we are correct.

It's amazing what some people will admit to when they're under oath.

Great job OP!

[safewaysecurity]

Im assuming this is at the federal district court level?

[IVC]

Agreed, in general. In this case the judge forecast how she was going to decide the case: intermediate scrutiny "like Heller II" and social science numbers.

Did she even have a choice given all the precedent in her own Circuit?

If this is just the application of reasoning used in CA-4, then all these issues can be raised again when we get SCOTUS to resolve the current circuit split (the split on "bear" is precisely due to the way intermediate scrutiny entered analysis.)

[nicki]

Other things to consider.

If the courts continue to destroy the second amendment and create various ways to gut it, wouldn't second amendment cases possibly be creating precedence to destroy the rest of the Bill of Rights, including the very amendments that these "Liberal Judges" actually like?


Nicki

[fizux]

If the courts continue to destroy the second amendment and create various ways to gut it, wouldn't second amendment cases possibly be creating precedence to destroy the rest of the Bill of Rights, including the very amendments that these "Liberal Judges" actually like?
Nicki

Yup, but they seem to be deluded into believing that guns are different because they are so inherently dangerous.

I've left some extremely liberal SF lawyers staring at their shoes when I walk them through how Obamacare eviscerates the right to abortion, since Roe v. Wade was rooted in privacy.

[SC_SD]

OT, that case was a great read, thank you OP for posting.

I like this cluster of sentences:

"Whenever heightened scrutiny is implicated, the Act cannot be defended “by advancing hypothetical rationales, independent of the legislative record; rather, the government is limited to ‘invoking [the legislature’s] actual justification for the law.”" Page 43
...
"The undisputed evidence also shows that the banned firearms are not more dangerous than any other centerfire rifle when it comes to threats against law enforcement officers wearing protective body armor. Statement of Undisputed Facts, supra pp. 17-18. Nor do they pose a substantial risk of overpenetrating walls, even when compared to handguns." page 44
...
Thus, the two other theoretical interests the challenged laws could serve – protecting law enforcement officers and preventing errant shots fired in defense from harming bystanders – are not served by the law.
Page 44,45

Lots of win

[Patrick-2]

The state rammed this thing through using threats and intimidation of recalcitrant lawmakers. I was there, and had Democrats personally tell me, "they can make things real hard on me" if they didn't vote the way the leadership demanded. And this was a liberal lawmaker who didn't like guns but thought the bill was wrong on many levels. Time was our friend, because the longer this took the better we did (we killed CT-style registration and heavy criminal penalties for paper violations early on, and starting knocking down the features test and licensing). Then the state FOP came out against the gun control bill in a public way. The FOP thought is was a rights violation, and they thought it would put cops in danger. The governor was royally pissed. So time was running out for them, and we actually had a markup of the bill that was essentially a "win" for us. But then the top three state leaders got involved and pushed real hard.

The issues in the bill are legion. The justification is flimsy because it all came down to what the Senate President, House Leader and Governor wanted. "Because we said so" is about all they have in the way of justification.

So the State AG has been amassing lots of "reasoning" after the bill was enacted. Basically trying to do the kind of reasoning that should have been done up front. This brief simply calls them on it, and points out that all their spurious (and gibberish) reasoning means nothing if the legislature never considered it in the first place.

Some arguments are meant for higher courts, I guess.

[speedrrracer]

IVC and Patrick-2 have it right. Arguing this soft science, numbers-are-OK, rational basis crap seems to fly in the various anti-2A lower courts (as in, non-SCOTUS), but that doesn't mean our side should indulge it there.

I'm certainly no 2A strategist, but I'd rather us stick to our "guns" -- SCOTUS says you can't use that crap, so don't dignify it. Tell the lower court judge he / she is supposed to follow SCOTUS opinions, and be prepared for the lower court judge to rule in a manner inconsistent with Heller anyways. Then beg for cert...

[RobertMW]

So does it look like this could be that mythical "Assault Weapons" case that the SCOTUS supposedly wants?

[hardlyworking]

Wrapping my head around this, please clarify:

If all of the governments expert witnesses are saying that AW bans and Mag restrictions have no bearing on crime/lethality, then enacting said bans and restrictions can have no bearing on a compelling government interest and further are not the least restrictive means to achieve said end.

And therefore, the government is only waving their hands and saying "but but, public safety! Its for the children!" Judges should dismiss those pleadings with prejudice!