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

[Brooklyn]

Fair point, but by the same token, we wouldn't blame O'Malley for SB 281. Which we do. Or at least I do.

What ?

The man proposed, lobbied for, and ultimately under threat forced through what he is claiming to be his signature legislative achievement.. that's why it's his..

 

[fabsroman]

That was a lot to read. I think some Judges don't know what they can do. I firmly think that lawyers should be sworn in before the court.

You do know that lawyers are sworn in when they are admitted to practice in front of the court. I was sworn into the Maryland Court of Appeals, the Federal District Court of Maryland, and the DC Superior Court. The Rules of Professional Conduct prevent us from knowingly misleading a Court of from lying to a Judge. We can get disbarred for it. Now, if everything was black and white, there would be no Courts, no Judges, no lawyers, etc. However, the facts are usually in dispute and the laws are not always well settled. For instance, NOBODY knows for sure whether SB281 is Constitutional or not, so both sides are arguing their side of it. If you put the attorneys on opposite sides of this matter, I am willing to bet the arguments would still be pretty close.

Our job is to zealously represent our client within the Rules of Professional Conduct.

 

[GTOGUNNER]

Most of my dealings with lawyers has been with zoning and usually in front of an administrative law judge or testimony before a legislative body. Lawyer's lied. But then again I do know of some that have been disbarred.
I am glad you're on our side!. Integrity is something that lacks in society it seems.

 

[Mike OTDP]

Read it....unfortunately, I'm not optimistic.

This level really doesn't matter. What counts is the final SCOTUS ruling, if we can get it there. The only outcome that matters at this point is whether or not we can get an injunction against the state enforcing this mess of pottage.

 

[csanc123]

This level really doesn't matter. What counts is the final SCOTUS ruling, if we can get it there. The only outcome that matters at this point is whether or not we can get an injunction against the state enforcing this mess of pottage.

Except SCOTUS has denied cert to virtually almost every 2A case since Heller.

While I'm not optimistic...I still have a tiny bit of hope things will turn around. The recent DC ruling gave me some renewed vigor.

 

[fabsroman]

Most of my dealings with lawyers has been with zoning and usually in front of an administrative law judge or testimony before a legislative body. Lawyer's lied. But then again I do know of some that have been disbarred.
I am glad you're on our side!. Integrity is something that lacks in society it seems.

Just like people in general, you will find a POS attorney here and there too. I ran into one my first year out of law school. Just looked him up and he started his own firm two years after I went on my own. We were both working in Baltimore and now he is in Annapolis. A year after I was involved with his BS, the federal District Court sanctioned him for lying to a Judge. He essentially did the same BS to me. We were working on a consent motion. He asked me to put together a draft and fax it over to him so we would have something to work off of. The SOB then tried to say it was the final product and he filed a motion based upon it saying that I was backing out of it. I had smoke coming out my ears and was so happy a year later when the federal District Court sanctioned him.

 

[HauptsAriba]

You do know that lawyers are sworn in when they are admitted to practice in front of the court. I was sworn into the Maryland Court of Appeals, the Federal District Court of Maryland, and the DC Superior Court. The Rules of Professional Conduct prevent us from knowingly misleading a Court of from lying to a Judge. We can get disbarred for it. Now, if everything was black and white, there would be no Courts, no Judges, no lawyers, etc. However, the facts are usually in dispute and the laws are not always well settled. For instance, NOBODY knows for sure whether SB281 is Constitutional or not, so both sides are arguing their side of it. If you put the attorneys on opposite sides of this matter, I am willing to bet the arguments would still be pretty close.

Our job is to zealously represent our client within the Rules of Professional Conduct.

Please expand on NOBODY knows if SB 281 is constitutional or not. I am curious to hear this explained from a pro gun, legal mind point of view.

 

[Mr H]

Please expand on NOBODY knows if SB 281 is constitutional or not. I am curious to hear this explained from a pro gun, legal mind point of view.

Probably the more accurate statement is that FSA2013 has not yet been RULED Unconstitutional... though we are all 99 and 44/100ths percent sure it is.

 

[EL1227]

Sad, but true ...

Anytime after November 5th.

Like Cmdr. McCauley was told ... "It's NOT about the law, it's about politics." So delaying a decision until AFTER the election isn't about the law either.

 

[fabsroman]

Probably the more accurate statement is that FSA2013 has not yet been RULED Unconstitutional... though we are all 99 and 44/100ths percent sure it is.

I don't think everything in FSA2013 would be found unconstitutional. Hence, the reason why the assault weapon ban and 11+ capacity mag ban are being done in one lawsuit and the licensing issue is being done in another lawsuit. Further, not everything in FSA2013 is being contested in either lawsuit, so portions of it will stand.

 

[fabsroman]

Please expand on NOBODY knows if SB 281 is constitutional or not. I am curious to hear this explained from a pro gun, legal mind point of view.

There are several different areas in SB281 that require evaluation, but we can start with the ban of assault weapons.

There are arguments regarding its constitutionality and then there are arguments regarding whether strict scrutiny or intermediate scrutiny should be applied. If strict scrutiny should be applied, then FSA2013 will fail. If intermediate scrutiny should be applied, then the state needs to show that there is no less restrictive way to achieve its goals regarding public safety. The lawyers argued, and I agree, that the regulation of these "assault weapons" via Form 77r was a less restrictive way for the state to meet its goals and it was working because murders with "assault weapons" has been infinitesimal over the years that Form 77r was being used to buy them.

Then, we get to the Constitutionality issue. Are these "assault weapons" in such common usage that they would fall under the protection that Heller provides? During the motions hearing, the main focus was the AR-15, but there weren't many solid numbers being thrown out and I think the percentages were all screwed up. That is one thing that I have found in my travels, most attorneys are terrible with numbers. During my tenure at the two firms I worked at, anything involving numbers came to me because I am a CPA. Any somewhat complicated lost wage claim at the PI firm I worked at and everything under the sun at the litigation firm I worked at. So, the question becomes whether these assault weapons are commonly used to defend one's home. The Judge was asking "Do we have examples where somebody has used one to defend their home?" and Mr. Sweeney countered with something to the effect of "Just because somebody does not shoot another person with an assault weapon in defense of their home or it does not make the news, does not mean that millions of Americans do not have them for self defense purposes."

The entire legal analysis would take a ton of my time, and I am not getting paid the thousands of dollars that the litigating attorneys are, so I can merely give you the synopsis above. Heller did not lay out exactly what firearms are commonly used for self defense, so now we are going to have to figure that out if strict scrutiny is not applied and the state meets its burden under intermediate scrutiny. Lots of places to win, but nothing is a slam dunk.

 

[Rack&Roll]

I and others appreciate the analysis, even in short form, so thanks...

 

[dblas]

Like Cmdr. McCauley was told ... "It's NOT about the law, it's about politics." So delaying a decision until AFTER the election isn't about the law either.

You do realize this is Federal Court and that the State of MD has no control over it?

 

[Gryphon]

For those wanting to read the transcript posted above, but not wanting read all 85 pages, you can star around page 38 with Sweeney's argument, and catch Fader's rebuttal, and not miss much. Sweeney has a great one liner on Page 52. "A constitutional guarantee subject to [a] future judge's assessment of its usefulness is no constitutional guarantee at all." I may add it to my sig line along with Judge Legg's.

 

[HauptsAriba]

There are several different areas in SB281 that require evaluation, but we can start with the ban of assault weapons.

There are arguments regarding its constitutionality and then there are arguments regarding whether strict scrutiny or intermediate scrutiny should be applied. If strict scrutiny should be applied, then FSA2013 will fail. If intermediate scrutiny should be applied, then the state needs to show that there is no less restrictive way to achieve its goals regarding public safety. The lawyers argued, and I agree, that the regulation of these "assault weapons" via Form 77r was a less restrictive way for the state to meet its goals and it was working because murders with "assault weapons" has been infinitesimal over the years that Form 77r was being used to buy them.

Then, we get to the Constitutionality issue. Are these "assault weapons" in such common usage that they would fall under the protection that Heller provides? During the motions hearing, the main focus was the AR-15, but there weren't many solid numbers being thrown out and I think the percentages were all screwed up. That is one thing that I have found in my travels, most attorneys are terrible with numbers. During my tenure at the two firms I worked at, anything involving numbers came to me because I am a CPA. Any somewhat complicated lost wage claim at the PI firm I worked at and everything under the sun at the litigation firm I worked at. So, the question becomes whether these assault weapons are commonly used to defend one's home. The Judge was asking "Do we have examples where somebody has used one to defend their home?" and Mr. Sweeney countered with something to the effect of "Just because somebody does not shoot another person with an assault weapon in defense of their home or it does not make the news, does not mean that millions of Americans do not have them for self defense purposes."

The entire legal analysis would take a ton of my time, and I am not getting paid the thousands of dollars that the litigating attorneys are, so I can merely give you the synopsis above. Heller did not lay out exactly what firearms are commonly used for self defense, so now we are going to have to figure that out if strict scrutiny is not applied and the state meets its burden under intermediate scrutiny. Lots of places to win, but nothing is a slam dunk.

Interesting.....thanks

 

[HauptsAriba]

For those wanting to read the transcript posted above, but not wanting read all 85 pages, you can star around page 38 with Sweeney's argument, and catch Fader's rebuttal, and not miss much. Sweeney has a great one liner on Page 52. "A constitutional guarantee subject to [a] future judge's assessment of its usefulness is no constitutional guarantee at all." I may add it to my sig line along with Judge Legg's.

Yes, that's a good one alright.

 

[Abulg1972]

SB281

I just heard from a friend that Judge Blake has ruled that SB281 is constitutional. Onto the 4th Circuit where the decision will undoubtedly be affirmed.

 

[Boxcab]

Update... http://ia601903.us.archive.org/13/items/gov.uscourts.mdd.254564/gov.uscourts.mdd.254564.docket.html

ORDER denying as moot 20 Defendants' Motion to Dismiss; denying as moot 32 Defendants' Motion to Dismiss the Third Amended Complaint; granting 44 Defendants' Motion for Summary Judgment; denying 55 Plaintiffs' Cross Motion for Summary Judgment; denying 65 Plaintiffs' Motion to Exclude; denying 47 John Cutonilli's Motion for Leave to File a Brief as Amicus Curiae; granting 45 63 Defendants' Unopposed Motions to Seal; and entering judgment in favor of the Defendants. Signed by Judge Catherine C. Blake on 8/12/14. (bmhs, Deputy Clerk) (Entered: 08/12/2014)

Crap, on to the next level.

 

[Atlasarmory]

Found it. Crap

 

[magnetic1]

Baltimore Sun reporting this