Decision in Kachalsky LOSS

[Les Gawlik]

I do enjoy reading Gura's writing. It ties things up nicely. As I have said in earlier posts, there is no effective distinction between intermediate scrutiny and rational basis. After they cite the required homilies, courts just drop into rational basis mode, say "guns look scary" and uphold constitutionality. Same thing on the Denver concealed/open carry debacle-- the appeals court just blew it.

I think what I like best is the precision of language and the clarity of thought. It's like -- a Vulcan mind meld.

 

[Southwest Chuck]

I do enjoy reading Gura's writing.

A quote from Don Kilmer (Nordyke) over at Calguns after Judge Legg released his ruling on Wollard:

Originally Posted by Lex Arma
(on Alan Gura after the Woollard Decision)
Ladies and Gentlemen, we are witnessing a legal force of nature that comes along only once in a generation.

I think what I like best is the precision of language and the clarity of thought. It's like -- a Vulcan mind meld.

That's sig material, there

 

[Kharn]

Ugh, the state's brief was a snoozer. I tried to read it today before reading Gura's reply and I really had to force myself to work through it. Gura's was much easier.

 

[esqappellate]

"Mar 27 2013 DISTRIBUTED for Conference of April 12, 2013."

It's interesting to me that there appear to be no amici opposing cert.

When do we find out the outcome of the conference? There are no orders listings in April on the calendar at scotusblog.

Traditionally, the results of the Friday conference are published in an order list the following Monday, although the Court has on occasion of late announced cert grants on that very Friday when they need to fill an argument slot sooner. I expect it Monday.

 

[press1280]

Some wonderful zingers by Gura:

Respondents
thus present the common – and erroneous – logic:
1. There is no right to carry concealed
handguns. Opp. at 10 & n.3;
2. Petitioners have not specifically argued
that they should carry handguns openly,
id. at 11, thus
3. Petitioners lose. Q.E.D.

Respectfully, there is
nothing “heightened” or “intermediate” about the
lower court’s standard of review in Second Amendment
cases, which asks only whether the legislature
has proffered some excuse for the law – since guns
are dangerous, apparently any excuse will do – and
demands that challengers carry a burden of disproving
the presumption of constitutionality.

Respondents asserted that the lower
court “concluded that the statute at issue here must
meet heightened scrutiny, and found that it satisfied
that test.” Opp. at 7. That is the entirety of Respondents’
discussion of intermediate scrutiny.

Icing on the cake: Woollard upheld Maryland’s “good and substantial
reason” license prerequisite because it “constitutes
‘a more moderate approach’ . . . than a
wholesale ban on the public carrying of handguns,”
id. at *42 (citing Kachalsky v. County of Westchester,
701 F.3d 81, 98-99 (2d Cir. 2012)) – as though a
wholesale ban were an available choice under the
Second Amendment, and the current system were
materially different from a wholesale ban, designed
as it was to disarm virtually the entire population.
Petitioners should be excused for not appreciating
such moderation in the restriction of their rights.

Direct challenge to SCOTUS, no holds barred.

 

[press1280]

Traditionally, the results of the Friday conference are published in an order list the following Monday, although the Court has on occasion of late announced cert grants on that very Friday when they need to fill an argument slot sooner. I expect it Monday.

Curious about the circumstances under which a case gets relisted as opposed to granted or denied?

 

[esqappellate]

Curious about the circumstances under which a case gets relisted as opposed to granted or denied?

Relisting may occur for several reasons, including the request of a Justice for more time or they just didn't get time to discuss it during the Friday Conference. Most of the Court gets a pool memo from law clerks. If that pool memo recommends denial and no justice disagrees, then cert is just denied and the case never is actually discussed during the friday conference. If it is listed as a potential cert candidate, one or more justice may want more discussion on it than time permits. Sometimes relisting occurs pending a decision before the Court. It is not the rule, it is the exception.

 

[Al Norris]

History Question: How many times was Heller relisted?

Question for extra credit: What were the dates that the relist(s) occurred?

Bonus question: When was Heller granted cert?

Now the qualifier. It is entirely within the realm of possibility that the Court may wait for cert stage to be completed for Woollard. That is, should there be interest in deciding both cases at one time. This would incidentally, be enough time to see what the CA3 does with Piszczatoski.

 

[press1280]

History Question: How many times was Heller relisted?

Question for extra credit: What were the dates that the relist(s) occurred?

Bonus question: When was Heller granted cert?

Now the qualifier. It is entirely within the realm of possibility that the Court may wait for cert stage to be completed for Woollard. That is, should there be interest in deciding both cases at one time. This would incidentally, be enough time to see what the CA3 does with Piszczatoski.

Heller was relisted once-first distributed Nov 9,2008 and then again Nov 20. It was granted cert on Nov 20.
Would the court relist(a bunch of times perhaps) to wait for Piza and Peruta? What if those circuits are just waiting to see if Kachalsky gets cert?

 

[Al Norris]

Heller was relisted once-first distributed Nov 9,2008 and then again Nov 20. It was granted cert on Nov 20.

Correct. This exercise was to illustrate that the court does essentially what esqappellate has already said. In other words, we've seen it before.

Would the court relist(a bunch of times perhaps) to wait for Piza and Peruta? What if those circuits are just waiting to see if Kachalsky gets cert?

I don't believe so. The Court may wait a short time for the Woollard petition, but they are under no obligation to do this. As for waiting on the CA9? I don't think that's realistic.

 

[Patrick]

Besides, I see nothing novel in the Woollard decision, other than the whole, "here's a list of shit the gun control community thinks is scary."

That will be referenced, ad nauseum, during the briefs. You can bet NY brings it up.

 

[Kharn]

Heller was relisted once-first distributed Nov 9,2008 and then again Nov 20. It was granted cert on Nov 20.
Would the court relist(a bunch of times perhaps) to wait for Piza and Peruta? What if those circuits are just waiting to see if Kachalsky gets cert?

They would deny cert to Kachalsky and Woollard if they felt the need to wait for the 9th's cases.

 

[esqappellate]

They would deny cert to Kachalsky and Woollard if they felt the need to wait for the 9th's cases.

It is Kachalsky or bust on the rest. In other words, don't expect a cert grant in any other carry case if cert is denied in Kachalsky. Mark your calendars: April 15 Possible exception is Moore if Illinois is dumb enough to seek cert

 

[jrosenberger]

It is Kachalsky or bust on the rest. In other words, don't expect a cert grant in any other carry case if cert is denied in Kachalsky. Mark your calendars: April 15 Possible exception is Moore if Illinois is dumb enough to seek cert

Yup. Imo, if kachalsky is denied cert, our goose is cooked. If I'm the IL AG, a denial in kachalsky makes seeking cert in moore look a lot better.

Sent from my SPH-D700 using Tapatalk 2

 

[press1280]

It is Kachalsky or bust on the rest. In other words, don't expect a cert grant in any other carry case if cert is denied in Kachalsky. Mark your calendars: April 15 Possible exception is Moore if Illinois is dumb enough to seek cert

Why is that exactly? If they don't take Kachalsky, the assumption is they don't believe there's a split with Moore. The CA3 and CA9 cases are still out there and are not bound by a SCOTUS cert denial in Kachalsky(although I agree it makes it easier to simply go with the flow and cite Woolard and Kachalsky to death).

 

[esqappellate]

Why is that exactly? If they don't take Kachalsky, the assumption is they don't believe there's a split with Moore. The CA3 and CA9 cases are still out there and are not bound by a SCOTUS cert denial in Kachalsky(although I agree it makes it easier to simply go with the flow and cite Woolard and Kachalsky to death).

Cuz, with Woollard and Kackalsky now decided and in accord, it is quite unlikely that the 9th or the 3d will go the other way. Courts of Appeals think twice before intentionally creating a circuit split; following the 2d Circuit is the easy way out for these courts. The split with Moore is already present. If that is not good enough to get cert in Kachalsky, it is not likely to be good enough for the rest of these cases. That leaves Moore and my guess is that Illinois may not seek cert in Moore. But if they do, cert is quite likely in Moore, as it invalidated a state statute.

 

[Kharn]

Kachalsky was SCOTUSBlog's Petition of the Day on 1 April and is on their "Petitions We're Watching" list for the 12 April conference.

 

[esqappellate]

Kachalsky was SCOTUSBlog's Petition of the Day on 1 April and is on their "Petitions We're Watching" list for the 12 April conference.

Yup. Scotusblog has an excellent track record with that designation. Those guys are players at this level

 

[Afield]

Factor in Scalias comments in mid February.

So is the underlying implication that they denied Masciandaro and Williams because they don't want to use a criminal case? The civil ones are totally clean hands.

 

[esqappellate]

Factor in Scalias comments in mid February.

So is the underlying implication that they denied Masciandaro and Williams because they don't want to use a criminal case? The civil ones are totally clean hands.

Sure. A civil case like Kachalsky is the ideal vehicle for the court to address the issue free of any underlying criminal conduct. The right exists for the law-abiding, not for the criminal.