SAF sues Westchester County, NY to block "good cause" requirement for CCW

[fightinbluhen51]

CA2 arguments are usually 10 minutes per side. This one is extraordinary.

Or four times.

The state is kinda persuasive as far as I've listened to it, but their position is one that is halfway up the high ground, and they forgot to cover their backside of the hill (which they thought was an in-scaleable cliff).

 

[fightinbluhen51]

Good question from a judge: "What good is a right if 50% or more can't exercise it?"


Also, the NY State attorney who says that the 1A "completely inept" as comparison. Wow...

 

[fightinbluhen51]

I love how the state attorney when questioned about unlimited licenses is kinda pit on the spot and can't answer the amount of permits that are issued "down state" that are unlimited in scope.

 

[fightinbluhen51]

HOT DAMN! "Three district courts within the 4th circuit held that Judge Wilkinson's analysis in Masciandaro...is in effective when looking at the entire state and isn't a TPM restriction."

Nice rebuttal.

 

[MDFF2008]

Another panel that does the Prosnier on Bars and Drinks kinda questioning too.

Gotta love it. (sorry for the live blogging, I can't capture and recap, I'd forget the depth of these orals).

For those interested, it's about an hour and 20 minutes of audio (which I'm pretty sure is about twice as long as most orals receive).

Right click on the link and select download.

 

[Al Norris]

Thank you Esqappellate for ordering the audio and Thank you MSI for compiling the MP3.

Having finally had the time to listen, I thought it went rather well for Gura, all things considered. I also agree that there is at least one judge, if not two, that agree with the arguments by the plaintiffs/appellants.

Now we await the actual decision.

 

[fightinbluhen51]

Esq and Kru, after hearing these orals, what are your thoughts on the way the panel is leaning?

Obviously, it would be great to get the 2nd and 7th Circuits to agree and ultimately the best if they find in favor of outside the home.

I feel like it was hard to get a bead on this panel compared to the 7th's panel.

 

[esqappellate]

Esq and Kru, after hearing these orals, what are your thoughts on the way the panel is leaning?

Obviously, it would be great to get the 2nd and 7th Circuits to agree and ultimately the best if they find in favor of outside the home.

I feel like it was hard to get a bead on this panel compared to the 7th's panel.

There are two issues here. 1. Does the 2A right apply outside the home and 2. assuming that it does, whether the NYS "good cause" requirement for a permit survives scrutiny. It appears from the tape (I would have liked to be there, as a tape doesn't give you the visual clues so it is harder with just a tape), that the court is going to rule that the 2A right exists outside the home. BTW, that is the *only* question before the 7th Circuit in Moore/Shepard. It is much harder to predict how the court is going to answer the 2nd issue. The panel certainly understood the arguments, particularly the prior restraint argument.

 

[krucam]

42 minutes (vs 10 typical) on SAF/Gura's side implies a lot of curiosity from the panel. They were truly digging for the fringes of what a broadened scope would present. Sometimes playfully by my read, not maliciously.

During the Westchester County AG's time, I enjoyed one quick "mis-speak" by a Judge early on: "If the statute is unconstitutional, err, the standard..."

This could be showing his hand, in that he's already of the belief that the "Good Cause" standard is toast. I could be wrong...

At the 46 minute point, the NY State AG comes on and immediately came out with the same, tired Heller/McDonald only pertains to "In the Home" argument, which was quickly squelched by a Judge who interjected with "why doesn't the need for self defense carry outside the home?".

The State had to agree that the right to self defense carried outside the home, but Heller/McDonald said the use of a handgun for the right of self defense only exists in the home.

One Judge asked: How can you justify a limitation to the home, when the constitutional text says "to keep and bear arms". Heller/McDonald only addressed "keep".

It was clearly an uphill for the battle after the Judges laid out the obvious (for us) groundwork.

"There may be some right to carry some firearm outside the home", that 'some firearm' of course being long arms. They're bluffing as they certainly don't want an opinion written allowing AR's or Mosins on peoples shoulders in Times Square, as a Judge suggests.

They're in a corner of having to accept concealed handguns...good for us.

When the State AG said that the Plaintiffs (Kachalsky et al) didn't even put down a justification for their permit...The Judge was quick to react with,
"Mr Gura says you don't need to have a particularized need. You don't need that to express yourself (1A comparison), or do you need a government license to speak..."

"I don't have to ask the King to open a printing press. That's this argument in its narrowest sense, I don't have to ask the King for permission"....this from one of the Judges.

The joking towards the end where one of the Judges mentions he just found out that one of his Secretaries has a permit was funny, all while joking over the AG trying to make his point.

Prior Restraint. Upstate vs NY City. Long Guns, concealed, concealable...

This one floored me: "This licensing system which is designed to limit handguns, in a matter that is atuned to individual's actual, serious need for self defense, as opposed to a "speculative" need for self defense, is probably a better way than a lottery for limiting handguns."

They admit to the system being a rationing scheme designed to limit handguns (preferred weapon) off the street (bear). Judge Legg called MD out on their motives being ration-based. I hope this panel does the same.

Gura reiterates the rights infringement under a rationing system being impermissible. If there is no right, then thats the end of the case....

The Judges were listening. This has the feel of a Woollard result.

 

[Maestro Pistolero]

Gura's composure under fire is impressive. He is never too quick to answer, never interrupts judges who are constantly interrupting him, never insists on finishing a sentence even if his answer has been cut off. The discipline and self awareness is amazing.

I have no familiarity with the style and tone of orals except the 15-20 of them that I have listened to, and I'm not a lawyer (obviously). But I get the sense that part of the interrupting is that once the judges hear that Gura's answer is on point they skip ahead to the next question to avoid wasting time.

 

[fightinbluhen51]

Gura's composure under fire is impressive. He is never too quick to answer, never interrupts judges who are constantly interrupting him, never insists on finishing a sentence even if his answer has been cut off. The discipline and self awareness is amazing.

I have no familiarity with the style and tone of orals except the 15-20 of them that I have listened to, and I'm not a lawyer (obviously). But I get the sense that part of the interrupting is that once the judges hear that Gura's answer is on point they skip ahead to the next question to avoid wasting time.

I've now listened to two (This case and the 7th circuit case on carry as well).

Your assessment is spot on. I don't know that I could have that much discipline myself.

You make an excellent point that when Gura answers and the judges get what they are looking for, they fire off another question. At times, very little elaboration, but Gura does not back down at times and does finish his thoughts, but only when it is most prudent.

 

[Patrick]

My hope is that the 7th does right by us, that the 4th follows suit soon after and that the 2nd follows right along. Somewhere in there I'd like to see Gray get his opinion from the 10th, even if remanded with instruction.

Will we get to the SC with this?

Maybe. Maybe not. If three Circuits all say the same thing, the others are going to be hard-pressed to go along. The Ninth came close once, but has gone head-in-sand ever since. There is a chance none of these cases will ever get a day at the big court, assuming that we sweep three circuits and cert is denied the defendants. That's a big "if" but I am feeling good today.

Even if these cases never get to SCOTUS, we still got lots of other issues that still need answer. Like that whole permit to own thing. That issue is still working its way up, though the case not as popular to follow as these cases. And there are plenty of cases that could implicate carry and still make their way up: restrictions on mag capacity; gun type; fleeting display in a CC-only state; or even 4A stop and frisk based on someone having a gun but no other 'suspicious' activity. Is it fair to say it is suspicious to be seen exercising a constitutional right? Can the police stop you just for carrying, with no crime being suspected?

Off topic ramblings, but there is a lot ahead.

Gura once said that after Heller, the Second Amendment could be called the "Gun Rights Lawyer Permanent Employment Act" or something to that effect.

 

[esqappellate]

Gura's composure under fire is impressive. He is never too quick to answer, never interrupts judges who are constantly interrupting him, never insists on finishing a sentence even if his answer has been cut off. The discipline and self awareness is amazing.

I have no familiarity with the style and tone of orals except the 15-20 of them that I have listened to, and I'm not a lawyer (obviously). But I get the sense that part of the interrupting is that once the judges hear that Gura's answer is on point they skip ahead to the next question to avoid wasting time.

Gura is an excellent appellate lawyer. It is a difficult skill set and he has mastered it. He (and the judges in this case) did exactly what they are supposed to do. Counsel are not there to give speeches but only to respond to the court's concerns while at the same time making the best case for their theory of the law, viz., weaving their answers into their theory of the law and why they should win. This tape was a treat for me. I have made some 80 oral arguments in the courts of appeal and watched 100s. This is one of the finest examples of oral advocacy I've seen (or heard). The State's lawyer did well too. Of course, the skill of the lawyer does not necessarily determine the outcome....

 

[esqappellate]

My hope is that the 7th does right by us, that the 4th follows suit soon after and that the 2nd follows right along. Somewhere in there I'd like to see Gray get his opinion from the 10th, even if remanded with instruction.

Will we get to the SC with this?

Maybe. Maybe not. If three Circuits all say the same thing, the others are going to be hard-pressed to go along. The Ninth came close once, but has gone head-in-sand ever since. There is a chance none of these cases will ever get a day at the big court, assuming that we sweep three circuits and cert is denied the defendants. That's a big "if" but I am feeling good today.

Even if these cases never get to SCOTUS, we still got lots of other issues that still need answer. Like that whole permit to own thing. That issue is still working its way up, though the case not as popular to follow as these cases. And there are plenty of cases that could implicate carry and still make their way up: restrictions on mag capacity; gun type; fleeting display in a CC-only state; or even 4A stop and frisk based on someone having a gun but no other 'suspicious' activity. Is it fair to say it is suspicious to be seen exercising a constitutional right? Can the police stop you just for carrying, with no crime being suspected?

Off topic ramblings, but there is a lot ahead.

Gura once said that after Heller, the Second Amendment could be called the "Gun Rights Lawyer Permanent Employment Act" or something to that effect.

Or as he said during this argument: "Lots of work for lawyers" I still see this as an uphill battle on many of those issues. Outside the home may break our way, but only because intellectually honest judges can't figure out a way out of that conclusion. The tougher cases will be the TPM cases to come. I expect that the state legislatures will get a tremendous lot of deference. You heard a bit of that during this argument.

EDIT: BTW, I expect decisions from the 7th then the 2d and then the 4th, in that order. Basically, the order in which they were argued. Kachalsky and Woollard present the same issues. Moore/Shepard is much simplier.

 

[Maestro Pistolero]

Gura is an excellent appellate lawyer. It is a difficult skill set and he has mastered it. He (and the judges in this case) did exactly what they are supposed to do. Counsel are not there to give speeches but only to respond to the court's concerns while at the same time making the best case for their theory of the law, viz., weaving their answers into their theory of the law and why they should win. This tape was a treat for me. I have made some 80 oral arguments in the courts of appeal and watched 100s. This is one of the finest examples of oral advocacy I've seen (or heard). The State's lawyer did well too. Of course, the skill of the lawyer does not necessarily determine the outcome....

To what would you attribute the disparity in the frequency of judge's interruptions of the AG vs Gura. It seems to this layman that they were somewhat more deferential to the AG, despite the sometimes gaping holes in his arguments.

 

[esqappellate]

To what would you attribute the disparity in the frequency of judge's interruptions of the AG vs Gura. It seems to this layman that they were somewhat more deferential to the AG, despite the sometimes gaping holes in his arguments.

The judges were *very* respectful of Gura. But, there is more to talk about with Gura. He is the appellant -- he is seeking to overturn a state law which comes with the presumption of constitutionality. They were 2A novices seeking to explore the logical and policy implications of Gura's position. They did some of the same thing with the State's lawyer when he likened the "good cause" requirement as just another type of TPM restriction. This is why the "prior restraint" point is so critical. You can't have a permit system under the 1st A (e.g., for a parade) that leaves the permit issuance up to the discretion of the state, or, as Gura also states, a permit system that is designed and intended to ration speech among those who the state feels deserve it in some way ("permission from the king"). The judges got that point and it is may be decisive to the case. Whether they accept it will be key. Recall that was the essence of Judge Legg's ruling.

 

[Gray Peterson]

The judges were *very* respectful of Gura. But, there is more to talk about with Gura. He is the appellant -- he is seeking to overturn a state law which comes with the presumption of constitutionality. They were 2A novices seeking to explore the logical and policy implications of Gura's position. They did some of the same thing with the State's lawyer when he likened the "good cause" requirement as just another type of TPM restriction. This is why the "prior restraint" point is so critical. You can't have a permit system under the 1st A (e.g., for a parade) that leaves the permit issuance up to the discretion of the state, or, as Gura also states, a permit system that is designed and intended to ration speech among those who the state feels deserve it in some way ("permission from the king"). The judges got that point and it is may be decisive to the case. Whether they accept it will be key. Recall that was the essence of Judge Legg's ruling.

"permission from the king"...

Let's hope the majority uses this language to the state law.

 

[Maestro Pistolero]

But, there is more to talk about with Gura. He is the appellant -- he is seeking to overturn a state law which comes with the presumption of constitutionality.

That makes sense. Thanks.

 

[esqappellate]

"permission from the king"...

Let's hope the majority uses this language to the state law.

It is an absolutely wonderful phrase and encapsulates the point beautifully. I hope Gura uses it in the future.

 

[Patrick]

Or as he said during this argument: "Lots of work for lawyers" I still see this as an uphill battle on many of those issues. Outside the home may break our way, but only because intellectually honest judges can't figure out a way out of that conclusion. The tougher cases will be the TPM cases to come. I expect that the state legislatures will get a tremendous lot of deference. You heard a bit of that during this argument.

EDIT: BTW, I expect decisions from the 7th then the 2d and then the 4th, in that order. Basically, the order in which they were argued. Kachalsky and Woollard present the same issues. Moore/Shepard is much simplier.

You know, I meant to write it that way way. But I goofed and will leave my original text and this post as a testament to my knuckle-headedness, and an honor to your experience and intelligence.

But in my own smug defense, you misspelled "simpler".