Kolbe v O'Malley Motion For Summary Judgement Filed 17 March 2014

aireyc · Apr 17, 2014

Reading Gansler's high school report was painful. I like the part where he says, "The plaintiffs do not identify a single instance in which an assault weapon has been used in self-defense in Maryland or in which an individual has been required to fire more than ten rounds in self-defense in Maryland." Yeah, Gansler, you also failed to identify a single instance of a mass shooting in Maryland, so what's your point?

pcfixer · Apr 18, 2014

aireyc said:
Reading Gansler's high school report was painful. I like the part where he says, "The plaintiffs do not identify a single instance in which an assault weapon has been used in self-defense in Maryland or in which an individual has been required to fire more than ten rounds in self-defense in Maryland." Yeah, Gansler, you also failed to identify a single instance of a mass shooting in Maryland, so what's your point?

Exactly. Progressive agenda is negative the truth.
Progressives do not believe that individuals are endowed with inalienable rights by a Creator; rather, they believed that rights are determined by social expediency and bestowed by the government.

Mr H · Apr 18, 2014

aireyc said:
Reading Gansler's high school report was painful. I like the part where he says, "The plaintiffs do not identify a single instance in which an assault weapon has been used in self-defense in Maryland or in which an individual has been required to fire more than ten rounds in self-defense in Maryland." Yeah, Gansler, you also failed to identify a single instance of a mass shooting in Maryland, so what's your point?

Not only that, but pissing on "in common use" by saying that ARs, in essence, have only become popular recently?!!

Here's hoping the Judge has done her homework...

Not_an_outlaw · Apr 18, 2014

Is there a reference for the state's statistics?

Wouldn't citing bad data be detrimental to the case?

Does the court just believe everything the defendant says?

ShallNotInfringe · Apr 18, 2014

Not_an_outlaw said:
Is there a reference for the state's statistics?

Wouldn't citing bad data be detrimental to the case?

Does the court just believe everything the defendant says?

Pretty much appears to be the case.

Gansler basically used his term paper that he wrote in support of the Freedom Suppression Act last year for his opposition writeup.

fightinbluhen51 · Apr 18, 2014

DC-W said:
Well it looks like soldiers haven't been quartered in anyone's home for a long time. Guess we don't need that amendment.

Except when SWAT teams in other states "force" a citizen to use their property for over-watch.

fightinbluhen51 · Apr 18, 2014

The very first paragraph, should give folks shivers, night sweats, and anything else that is associated with PTSD (no offense to those actually diagnosed or not diagnosed that do have PTSD).

The Firearms Safety Act of 2013 (the “Act”) is a constitutional exercise of
Maryland’s police power in the interest of public safety and reducing the harms caused
by firearms violence that is consistent with the right of the people to keep and bear arms codified in the Second Amendment to the United States Constitution.

Empahasis is mine. This is DISGUSTING! To claim "constitutional police powers...to reduce arms." If the judge is halfway intelligent with Constitutional law, she would stop reading right here and grant plaintiff's motion in one responding paragraph. These yahoos don't have a frigging clue! Blatantly they admit, without material fact in the very first sentence what they wish to achieve; disarmament by law abiding citizens.

edited my pre-post comments to refrain from disparaging expletives, but if you read this "footnote" I think you'll get the picture of what I intend to say. Don't know if I can read the rest of this steaming pile of poo.

ShallNotInfringe · Apr 18, 2014

fightinbluhen51 said:
The very first paragraph, should give folks shivers, night sweats, and anything else that is associated with PTSD (no offense to those actually diagnosed or not diagnosed that do have PTSD).

Empahasis is mine. This is DISGUSTING! To claim "constitutional police powers...to reduce arms." edited my pre-post comments to refrain from disparaging expletives, but if you read this "footnote" I think you'll get the picture of what I intend to say.

Don't know if I can read the rest of this steaming pile of poo.

Saw that and smoke started coming outta my ears.

pcfixer · Apr 18, 2014

The Firearms Safety Act of 2013 (the “Act”) is a constitutional exercise of
Maryland’s police power in the interest of public safety and reducing the harms caused
by firearms violence that is consistent with the right of the people to keep and bear arms codified in the Second Amendment to the United States Constitution.

This "Police power" along with the "public safety" is definitely repugnant to the Heller case and the constitutional protected rights.

From Heller:

Many colonial statutes required individual arms-bearing for public-safety reasons—
such as the 1770 Georgia law that “for the security and defence of this province from internal dangers and
insurrections” required those men who qualified for militia duty individually “to carry fire arms” “to places of public
worship.”

07MDRubi · Apr 18, 2014

I was just skimming through this and am not up on the legal speak as much as some of you, but the following paragraph on page 46 caught my eye:

Although the defendants are willing to accept that number as an upper limit for purposes of assessing their own motion for summary judgment (see Defs.’ Mem. (ECF No. 44-1) at 25-26), that number is, at best, subject to genuine dispute. Indeed, the report on which that number is based addresses the sale not of banned firearms, but of “Modern Sporting Rifles,” an amorphous category of firearms that lacks any specific definition, and that the person retained by the plaintiffs as an expert defines largely by an “I-know-it-when-I-see- it” test. (Ex. 94, Tr. of Dep. J. Curcuruto at 80; see also id. at 69-73.) The author did not make any attempt to determine how closely aligned his definition of a “Modern Sporting Rifle” was with the long guns banned by the Act, and does not know how much they overlap. (Id. at 87-88.)

I find it funny that the "I know it when I see it test" is bad here, but perfectly acceptable when the MSP applies it to G&S. I know that this is not what the lawsuit is about but it's just interesting to pull this out and compare it to other issues.

Bagpiperer · Apr 18, 2014

jonnyl said:
How is it not understood to be core to the 2A that it is about guns needed for fighting if necessary??

All the bs about designed for the military drives me crazy.

Per the Miller precedent that the Second Amendment protects the right to own militarily-useful arms, that might work against them. Between Heller slapping down blanket bans of certain classes of firearms commonly used for lawful purposes, and the wording of the opinion in Miller, I don't see how asserting "we banned this group of firearms because they have militarily-useful features" helps their case.

Of course, I am not a lawyer, so that's just, like, my opinion, man.

mxrider · Apr 18, 2014

mxrider said:
I jumped on the "chat now" over at Michellawyer and asked if they would be updating any time soon since the last entry over there was 2/14. The person that handles that was out of the office at the time and would be in tomorrow and I'm supposed to get an email about it. Hoping one of these firms will be willing to pony up the funds

I just received an email with the following response:

michellawyer said:
Thank you for contacting our office through our live chat feature. I wanted to follow-up with you in regards to the conversation you had with one of our representatives yesterday. We went ahead and asked our paralegal about the Kolbe v. O’Mally back page on our website and she said that it does indeed need some updating and that it will be up to date by early next week. We apologize for any inconvenience this may have caused. If you have any other questions please feel free to contact our office at 562-216-4444. Have a great day.

I know that the defendants response has been listed now, but hopefully they will have a bunch more "free" stuff to review.

Brooklyn · Apr 18, 2014

Mr H said:
Not only that, but pissing on "in common use" by saying that ARs, in essence, have only become popular recently?!!

Here's hoping the Judge has done her homework...

Not going to matter. The fix is in at this level.. .this is just the pre game show.. The game starts at scotus. Moreover common use is not numbers issue IMHO. I think it means suitable for.

Otherwise any weapon not in use today could be banned... . Hard to make that stick.

The state could argue anything an this court may cut and paste it into a decision... hard to say if they will, but I think its very possible...

Hopalong · Apr 19, 2014

Brooklyn said:
Not going to matter. The fix is in at this level.

Maybe, but don't forget that we won at District with Woollard, and nobody was expecting that. There's more pro-2A jurisprudence on our side since then, so who knows.

pcfixer · Apr 19, 2014

Hopalong said:
Maybe, but don't forget that we won at District with Woollard, and nobody was expecting that. There's more pro-2A jurisprudence on our side since then, so who knows.

Talking about Woollard... We'll... The win at district could be oposed by the 4th and then what? Only SCOTUS, which could well deny cert!
I'm optimistic mostly, but lately :sad20:

jcutonilli · Apr 19, 2014

Mr H said:
Not only that, but pissing on "in common use" by saying that ARs, in essence, have only become popular recently?!!

Here's hoping the Judge has done her homework...

Brooklyn said:
Not going to matter. The fix is in at this level.. .this is just the pre game show.. The game starts at scotus. Moreover common use is not numbers issue IMHO. I think it means suitable for.

Otherwise any weapon not in use today could be banned... . Hard to make that stick.

The state could argue anything an this court may cut and paste it into a decision... hard to say if they will, but I think its very possible...

I believe the judge will do her homework and there will not be any fix. You may not like the ultimate decision, but you should at least understand the reasoning the judge will use.

The case will be decided based on the information provided by the plaintiffs and defendants. They may also use amicus briefs, but are not required to give any weight to that information. If one side says something that the other does not dispute then the judge will accept it as fact. What typically happens is that one side says the facts say one thing and the other side says that they say something different. In most cases the judge tries to make a fair decision. This case is a little different because it deals with a government interest. The legislature has already weighed this information and decided against us. The judge will defer to the legislature when trying to weigh ambiguous facts.

An example of this is the effective rate of fire for a semi automatic AR. The defendants claim it it capable of 150-200 rpm. If the plaintiffs did not dispute it then it would be accepted as fact. The plaintiffs reference an army manual that says the effective rate is 45 rpm, but do not put the 150-200 rpm number into perspective. This creates an ambiguous situation for the judge to decide and she will defer to the legislature and rule against us. If you have ever seen Jerry Miculek shoot (why cant I have a finger that moves that fast) you know this is entirely possible for short periods of time, but that with mag changes an tired fingers, the 45 rpm is pretty generous.

There is no doubt that the defendants have said a lot of incorrect and misleading things. The plaintiffs have pointed out most/all of these inaccuracies, but I am not convinced that they have done it in a way that eliminates all doubt. I see the judge deferring to the legislature because of the doubt, which is how the three other cases have been decided.

John

Haides · Apr 20, 2014

So basically Judges won't do their jobs, is what you're saying. Good to know.

Brooklyn · Apr 20, 2014

Hopalong said:
Maybe, but don't forget that we won at District with Woollard, and nobody was expecting that. There's more pro-2A jurisprudence on our side since then, so who knows.

Possible, but we need the win a scotus -- its actually better to lose here.

And the brief is nothing new

Brooklyn · Apr 20, 2014

jcutonilli said:
I believe the judge will do her homework and there will not be any fix. You may not like the ultimate decision, but you should at least understand the reasoning the judge will use.

The case will be decided based on the information provided by the plaintiffs and defendants. They may also use amicus briefs, but are not required to give any weight to that information. If one side says something that the other does not dispute then the judge will accept it as fact. What typically happens is that one side says the facts say one thing and the other side says that they say something different. In most cases the judge tries to make a fair decision. This case is a little different because it deals with a government interest. The legislature has already weighed this information and decided against us. The judge will defer to the legislature when trying to weigh ambiguous facts.

An example of this is the effective rate of fire for a semi automatic AR. The defendants claim it it capable of 150-200 rpm. If the plaintiffs did not dispute it then it would be accepted as fact. The plaintiffs reference an army manual that says the effective rate is 45 rpm, but do not put the 150-200 rpm number into perspective. This creates an ambiguous situation for the judge to decide and she will defer to the legislature and rule against us. If you have ever seen Jerry Miculek shoot (why cant I have a finger that moves that fast) you know this is entirely possible for short periods of time, but that with mag changes an tired fingers, the 45 rpm is pretty generous.

There is no doubt that the defendants have said a lot of incorrect and misleading things. The plaintiffs have pointed out most/all of these inaccuracies, but I am not convinced that they have done it in a way that eliminates all doubt. I see the judge deferring to the legislature because of the doubt, which is how the three other cases have been decided.

John

Seriously... none of these facts have any bearing on the question. And if there is one thing the MGA did not do its weigh any evidence at all. There there is that pesky concept of standard of review --under IS, as apposed to RB the doubt is in our favor. The reason we lose is because the court refuses to apply IS. Without IS no amount of evidence can overcome the presumption of deference to the legislature ..

Haides · Apr 20, 2014

Brooklyn said:
The reason we lose is because the court refuses to apply IS. Without IS no amount of evidence can overcome the presumption of deference to the legislature ..

Like I said... Judges not doing their jobs. lol

Kolbe v O'Malley Motion For Summary Judgement Filed 17 March 2014

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