**FLASH TRAFFIC** WOOLARD REVERSED

[Merlin]

Ok folks. Yeah this is a disappointment, but, after the Second Circuit decision in Kachalsky and listening to the oral argument with this panel, I gotta say I am not in the least bit surprised. But, that said, Woollard just does not matter right now. The big chips are on Kachalsky pending now before the Supreme Court on Gura's petition for cert. So Kachalsky is what matters now. NY has filed its brief in Opp in Kachalsky on March 13. We could know if cert is granted in the next 30 days. The earliest this case can be distributed to the Court is March 27. The earliest conference for that distribution is April 12. If so, we will have a cert order April 15. If cert is granted the 4th Circuit's decision in Woollard won't matter, one way or another. Gura can keep Woollard alive with a petition for rehearing and, when that fails (and it will), with the filing of a hold petition for cert. If Gura gets 5 in Kachalsky, then the SCT GVR's Woollard. And we win. Eventually. A cert grant in Kachalsky means that the case gets argued next Fall and a decision in 2014.
We all have waited this long. Waiting a little longer won't kill us.

Is it possible that Gurs'a petition for cert will not be granted, and if so does that mean these cases will never go to the big court and we just have to live under these laws?

 

[Merlin]

The Court, if it takes Kachalsky, will answer the issue put before it. Not less and almost certainly not more. That is how they do constitutional litigation. That will be plenty good enough for me.

What worries me is you have to keep saying "IF".

 

[Afield]

The Court, if it takes Kachalsky, will answer the issue put before it. Not less and almost certainly not more. That is how they do constitutional litigation. That will be plenty good enough for me.

And a denial of cert in Kachalsky also would give us an answer, no? It would imply SCOTUS is just fine with may-issue.

But both of these are totally clean civil cases of 2A, not like Masciandaro, Chester, etc.

They could deny Kachalsky and let the 9th cases percolate.

Knowing finally will be good. It means I may as well just pursue a business currency permit instead.

 

[knownalien]

I don't think anyone honestly believes SCOTUS will NOT deny cert on Kach.

 

[esqappellate]

you know, the 5th has slowly allowed the right to privacy to be widdled down. That being a fundamental right makes me nervous. I can't recall the case but it centered around law enforcement puting GPS devices on cars by running up the driveway and placing them on the car. I recall that SCOTUS said basically since avg. joes like us don't have gated houses that are there specifically for keeping people away from private property (like the rich might have) that it was ok what law enforcement was doing since we can't REALLY expect to have privacy like the rich without huge fences. In other words, you have a right to privacy but OUTSIDE your home maybe not so much.

Take a look at United States v. Jones, 132 S.Ct. 945 U.S.,2012, where the SCT held that attachment of a GPS tracking device to vehicle, and subsequent use of that device to monitor vehicle's movements on public streets, was search within meaning of Fourth Amendment. The 4A is still alive.

 

[esqappellate]

I don't think anyone honestly believes SCOTUS will NOT deny cert on Kach.

I love double negatives. They are sometimes impenetrable. Yours is a triple negative, "don't" and "not" and "deny." Wow. But, the easiest way to discypher double negatives is to drop both negatives. So, if you mean that everyone believes that the SCT will deny cert in Kachalsky, I will respectfully dissent. I tend to believe that cert will be granted, although it is certainly possible for cert to be denied. I give it 50/50 odds.

 

[esqappellate]

What worries me is you have to keep saying "IF".

In the absence of easy cases, e.g, invalidation of an important statute or square conflict between circuits on a really important question, predicting cert is one of the hardest things to do. Moore is an easier case than Kachalsky to predict, but Illinois may not seek cert. Wait and see.

 

[Brooklyn]

Too often people confuse one issue with another. I can accept that the constitution grants me the right to speak out against government, bear arms, and refuse to house soldiers in times of peace without voting for the person who's social policy is antiquated and designed to oppress. Until both sides stop trying to tell the other side that "Your way has to be wrong because my way is right," everything will be zero-sum. Statements like that above is what is polarizing America. Rather than negotiation so that we all can get something out of the deal the parties are intentionally creating polar platforms and we are forced to make a decision on upon what we are willing to live with to avoid something else. The bottom line is everyone needs to evaluate the partyline as a whole and determine what issue is truly worth fighting for and what is just platform rhetoric. Anyone that believes that their party platform does not need to be reviewed and reworked is either brainwashed or should have their head examined.

Well why you think republican social policy is designed to oppress is beyond me. Most Republican are in fact rhinos who have been chased out of the Democratic party by statists. But no matter just ask who is using the power of government to impose its social agenda and who is fighting to roll back government?

I remain mystified.. frankly your view is not internally consistent.

You ignore actual abuses of government power from the left out of fear of a possible abuse from the right. Recent history suggests that the left is far more dangerous and far more pernicious due in large part to the press sharing your blind spot.

You like the social policies of the left so you are willing to let them abuse state power, but you do not like the social policy of the right so you remain vigilant.

I do not care if you are a democrat, but please do not tell me its because of a libertarian view..... the left is a clear and present danger virtually unopposed in its quest for a nanny state,and you tell me you fear the right? Hello big lie technique...

 

[Elliotte]

I'm going on a hunger strike until we get a long post from ESQ about this. Who is with me???

Eh, my wife and doctor say I should lose some weight, so I'm in

 

[esqappellate]

And a denial of cert in Kachalsky also would give us an answer, no? It would imply SCOTUS is just fine with may-issue.

But both of these are totally clean civil cases of 2A, not like Masciandaro, Chester, etc.

They could deny Kachalsky and let the 9th cases percolate.

Knowing finally will be good. It means I may as well just pursue a business currency permit instead.

If cert is denied in Kachalsky, then probably plaintiffs in the 9th Circuit and 3d Circuit cases will lose. They will still petition for cert but it is hard to see cert being granted if it is denied in Kachalsky. But who knows.

 

[Elliotte]

Judge Legg, in his decision said ....

"A citizen may not be required to offer a ―good and substantial reason why he should be permitted to exercise his rights. The right‘s existence is all the reason he needs."

What I'm hearing from the 4th Circuit is .....

The 2A of the Constitution recognizes that Citizens of Maryland have the Right to Keep and Bear Arms. However, that Right's existence is not enough for us to compel the State to permit it's citizens to freely exercise that Right without first requiring each citizen provide a Good and Substantial Reason to the satisfaction of the State. Judgement Reversed



Is that about it? Could it be said any plainer using Leggs own quote as an example?

It's a hard decision to swallow, but this was destined for SCOTUS. As others have said, even if we won, it would have been Stayed again pending enbanc or cert. I'm as happy as Patrick with the language and rational the Panel used here. This is ripe and starting to stink. Onward and upward!

I see the 4th's response more as:

"The Supreme Court hasn't specifically spelled this one out and we're too chicken or lazy to make a decision on our own, so here's a bunch of BS reasoning we're gonna use to not change the laws as is and make it look like we actually thought about this while we just punt it off to the Supreme Court."

 

[AC20814]

esq... did you read the earlier posts in this thread about strict scrutiny being applied to 2A? Any comments on that?

http://www.mdshooters.com/showpost.php?p=2274548&postcount=302

http://www.mdshooters.com/showpost.php?p=2274615&postcount=310

Edit:

Also...this: http://www.mdshooters.com/showpost.php?p=2274139&postcount=271

Thanks.

 

[Les Gawlik]

They can be impeached by Congress. It has happened before. However, it does take a lot to get impeached as a federal judge.

Yes, and right after they're impeached they can turn around, run for Congress and win. See Hastings, Alcee.

 

[fightinbluhen51]

I see the 4th's response more as:

"The Supreme Court hasn't specifically spelled this one out and we're too chicken or lazy to make a decision on our own, so here's a bunch of BS reasoning we're gonna use to not change the laws as is and make it look like we actually thought about this while we just punt it off to the Supreme Court."

That is precisely my take upon this as I read it last night.

The more I read this, the more I am convinced our republic, is doomed.

 

[Brooklyn]

I love double negatives. They are sometimes impenetrable. Yours is a triple negative, "don't" and "not" and "deny." Wow. But, the easiest way to discypher double negatives is to drop both negatives. So, if you mean that everyone believes that the SCT will deny cert in Kachalsky, I will respectfully dissent. I tend to believe that cert will be granted, although it is certainly possible for cert to be denied. I give it 50/50 odds.

You must be a good lawyer I am a programmer and I got it wrong by forgetting to distribute the first negation

Of course we get fired for writing code like that

 

[danb]

esq... did you read the earlier posts in this thread about strict scrutiny being applied to 2A? Any comments on that?

http://www.mdshooters.com/showpost.php?p=2274548&postcount=302

http://www.mdshooters.com/showpost.php?p=2274615&postcount=310

Edit:

Also...this: http://www.mdshooters.com/showpost.php?p=2274139&postcount=271

Thanks.

I was a little puzzled by that myself. I'd be interested in hearing thoughts - the same judges also noted that "we assume that any law that would burden the ‘fundamental,’ core right of self-defense in the home by a law-abiding
citizen would be subject to strict scrutiny."

it would seem that they are saying that outside the home, or as applied to felons, we have a lower standard - but the core right gets the higher standard.

 

[knownalien]

Take a look at United States v. Jones, 132 S.Ct. 945 U.S.,2012, where the SCT held that attachment of a GPS tracking device to vehicle, and subsequent use of that device to monitor vehicle's movements on public streets, was search within meaning of Fourth Amendment. The 4A is still alive.

I'll derail this thread with more talk of that case. And I defer to you of course. But if I understand, the right to not be searched w/o due process was abriged in that we don't have an expectation of privacy in our driveways unless we have built deliberate structures that would preclude such access. Please dumb it down for me: INAL.

I love double negatives. They are sometimes impenetrable. Yours is a triple negative, "don't" and "not" and "deny." Wow. But, the easiest way to discypher double negatives is to drop both negatives. So, if you mean that everyone believes that the SCT will deny cert in Kachalsky, I will respectfully dissent. I tend to believe that cert will be granted, although it is certainly possible for cert to be denied. I give it 50/50 odds.

I meant we all believe cert will be granted for Kach. If not, frankly, SCOTUS is dead to me. Because if they later decide to, it will probably be on an uglier case where "our side" will be hard to argue. Kach is as clean and clear case as SCOTUS could want.

 

[esqappellate]

You must be a good lawyer I am a programmer and I got it wrong by forgetting to distribute the first negation

Of course we get fired for writing code like that ;)

Computer programmers and Engineers have a more demanding standard than lawyers. Lawyers are just misunderstood. If programmers screw up, the program crashes. If engineers screw up, the bridge falls down. http://www.youtube.com/watch?v=C31IlOHNzbM

 

[esqappellate]

I'll derail this thread with more talk of that case. And I defer to you of course. But if I understand, the right to not be searched w/o due process was abriged in that we don't have an expectation of privacy in our driveways unless we have built deliberate structures that would preclude such access. Please dumb it down for me: INAL.



I meant we all believe cert will be granted for Kach. If not, frankly, SCOTUS is dead to me. Because if they later decide to, it will probably be on an uglier case where "our side" will be hard to argue. Kach is as clean and clear case as SCOTUS could want.

In Jones, the installation was ruled a search even though the GPS was installed in a public place:

"in Maryland, agents installed a GPS tracking device on the undercarriage of the Jeep while it was parked in a public parking lot. Over the next 28 days, the Government used the device to track the vehicle's movements, and once had to replace the device's battery when the vehicle was parked in a different public lot in Maryland. By means of signals from multiple satellites, the device established the vehicle's location within 50 to 100 feet, and communicated that location by cellular phone to a Government computer. It relayed more than 2,000 pages of data over the 4–week period"

As to the Court, I hope you are right. Remember, regardless of what happens in Kachalsky, Heller and McDonald are still the law, which means that the State cannot ban the sale of handguns for home possession. That's still huge and far beyond where we were before Heller. Let's count blessings too.

 

[lawrencewendall]

From

http://vagunforum.net/vcdl-alerts/alert-breaking-good-news-bad-news-t17429.html

"2. Fourth Circuit fails gun owners in Maryland
**********************************************************

The Fourth Circuit Court of Appeals has ruled that Maryland's "may-issue" law is Constitutional. :-(

The Court used a "balancing test" instead of the more appropriate "strict scrutiny" in making their ruling.

No word yet on whether this will be appealed to the Supreme Court.

Because Maryland does not have a way for citizens to at least open carry in a "shall issue" manner, I'm thinking the Supreme Court would reverse the Fourth Circuit and knock down the Maryland law."