Woollard Expectations are High

[Kilroy]

The court has been making decisions based on politics and public opinion the past few years... I wouldn't get my hopes up.

 

[kcbrown]

Don't think that is correct. The court in McDonald used the Due Process Clause of the 14th Amentment as an avenue for incorporation because fundamental rights in the Bill of Rights are applicable to the States under that rubric. But once incorporated, the scope of the right is the same for the States as it is for the federal government -- due process, procedural or substantive, is not part of that analysis. The scope of the right will not be determined by whether the MD statute affords due process. The scope of the right outside the home will probably have to be determined by Court at some point. The cases just cry out for SCT resolution. I am not particularly optimistic that the Court will take Woollard. I had hoped that the Court would take Kachalsky but no go. Woollard is not sufficiently different from Kachalsky on the core legal issues presented. Can't see why they would grant cert in Woollard, having already refused to look at the issues in Kachalsky. Accordingly, my hope is that the 3d or the 9th Circuit will give us a stronger conflict before the Court sits to consider Woollard by striking down a California provision or the NJ law or the Ha. law/practice. The real cases to watch are the 9th Circuit cases, as we have a pretty good panel draw there. If get a good opinion there, the odds of SCT resolution will go up, but not necessarly in Woollard. Lots of unknowns here.

In what way is Baker v Kealoha substantially different from Woollard in terms of the legalities that SCOTUS would take up Baker while passing on Woollard? In what way is Richards v Prieto substantially different from Kachalsky that SCOTUS would grant cert to Richards while denying cert to Kachalsky?

No, I don't think the 3rd or 9th Circuits will give SCOTUS anything more to work with than what they already had in Kachalsky. As such, I fully expect SCOTUS to deny cert to all these cases, and I fully expect the 9th Circuit to rule against both Baker and Richards.


Some like the panel that was drawn in the 9th Circuit. I would caution them that the head of that panel, O'Scannlain, is the very same judge that attempted to turn strict scrutiny into rational basis in Nordyke, while also automatically applying rational basis to any law that doesn't "substantially burden" the right, thus shielding the judiciary from having to "assess the effectiveness of a myriad of gun control laws".

 

[esqappellate]

Do you think there's any merit to the conjecture that they really wanted Moore, passed on Kachalsky in the hopes of getting it, and now that Moore is likely resolved they may take Woolard, or is that just wishful thinking?

The latter> Sorry

 

[esqappellate]

In what way is Baker v Kealoha substantially different from Woollard in terms of the legalities that SCOTUS would take up Baker while passing on Woollard? In what way is Richards v Prieto substantially different from Kachalsky that SCOTUS would grant cert to Richards while denying cert to Kachalsky?

No, I don't think the 3rd or 9th Circuits will give SCOTUS anything more to work with than what they already had in Kachalsky. As such, I fully expect SCOTUS to deny cert to all these cases, and I fully expect the 9th Circuit to rule against both Baker and Richards.


Some like the panel that was drawn in the 9th Circuit. I would caution them that the head of that panel, O'Scannlain, is the very same judge that attempted to turn strict scrutiny into rational basis in Nordyke, while also automatically applying rational basis to any law that doesn't "substantially burden" the right, thus shielding the judiciary from having to "assess the effectiveness of a myriad of gun control laws".

I am hoping for a win in one of those cases. If so, the court would be more likely to take the cert petition of a losing state than it is from a losing private plaintiff as the court generally is more likely to take case where a statute has been invalidated.

 

[JAY1234]

The supreme court is stacked with political appointees who vote party lines more often than not. They interpret the law to suit the viewpoints of the party that appointed them. Why do you suppose that everyone is hoping the one elderly supreme court justice doesn't die or retire before a change of Presidency. Our political leaders rarely have any previous military experience and most of them represent their own interest, not the interest of the common man.

 

[kcbrown]

I am hope for a win in one of those cases. If so, the court would me more likely to take the cert petition of a losing state than it is from a losing private plaintiff as the court generally is more likely to take case where a statute has been invalidate.

But if that, rather than upholding the right, is their reason for taking on these cases, then it means that their intent must be to neutralize the right to keep and bear arms in public.

They certainly didn't behave that way during the civil rights movement. And they certainly didn't turn away Heller or McDonald because of it.


Sorry, but what you say here is grounds for even more skepticism of the Supreme Court as regards this issue than ever before.

 

[BigSteve57]

The supreme court is stacked with political appointees who vote party lines more often than not. They interpret the law to suit the viewpoints of the party that appointed them. Why do you suppose that everyone is hoping the one elderly supreme court justice doesn't die or retire before a change of Presidency. Our political leaders rarely have any previous military experience and most of them represent their own interest, not the interest of the common man.

This is way deeper than I thought. I thought the Supreme Court was simply illiterate and couldn't read plain English. I stand corrected.

 

[esqappellate]

But if that, rather than upholding the right, is their reason for taking on these cases, then it means that their intent must be to neutralize the right to keep and bear arms in public.

They certainly didn't behave that way during the civil rights movement. And they certainly didn't turn away Heller or McDonald because of it.


Sorry, but what you say here is grounds for even more skepticism of the Supreme Court as regards this issue than ever before.

If you will recall, the Court didn't take any 2A case until Heller, where the D.C. Circuit struck down the DC statute and the DC Goverment sought cert (against the advice of many). BTW, we won in Heller. If the court is "waiting" (and I am not convinced that the court does much or any "waiting"), it may be waiting for a similar situation to arise. The hard reality is that the Court often doesn't feel the need to take a case until a statute has been invalidated and the state (or federal) sovereignity has thus been thus derailed. That is why I was ardently hoping that there would be a petition in Moore. It doesn't mean that we will lose if the court does take such a case (again, we won Heller), it just means that they don't feel any real need to act in the area. We all tend to place the 2A on a pedestal, but the Court doesn't necessarily share that sense of importance vis a vis the other issues that come before the Court. Remember, the Court sees thousands and thousands of cert petitions every year. About 1% are granted. Many of those petitions are crap but many are not. We did astonishing well to get two petitions granted and WON in two years time.

Frankly, I never expected to see the result in Heller and McDonald in my lifetime (I'm 63 and been practicing appellate law since 1975). The rise of Shall Issue Laws in so many states is astonishing in so many ways and is a pure delight. It doesn't mean we don't continue to push, it does mean that we have come a long ways, both legally in court decisions and legislatively, maybe not in Maryland, NY and Jersey, but federally and in the vast majority of states. Do you remember when you could not carry in a National Park or National Forest, even with a state permit? I do. Do you remember when CCW permits were as rare as hen's teeth? I do. Do you remember when SYG was the law in hardly any states? I do, and now about 30 states have it. Do you remember the legal situation before the enactment of 18 USC 926A in terms of transporting your firearms across state lines? I do, it could mean arrest and imprisonment, especially in Maryland and the NE. Now you have a federally protected safe haven that no state may infringe. Take a deep breath and count your blessings.

 

[Schipperke]

It's not clear that we have any direct "bear" cases ready for SCOTUS at the moment. Expectations are high, however, with Woollard, which challenges whether a person must provide "good and substantial" reason(s) prior to exercising a fundamental right. Although the argument is phrased in a 2nd A context, it is not solely a 2nd A question, but lies at the core of our form of government.

While a permit may still be required to carry outside the home, a favorably decided Woollard would turn "may issue" states into "shall issue", and effectively establish "bear" outside the home.

It's a step.

Well according to Al Sharpton, we'z all don't have any right to "unregulated rights" and unfortunately some recent firearm laws decisions are being ruled that way. When you take a look legally how one man has been persecuted beyond belief, denying constitutional rights sells easy to the low IQ voters.

 

[kcbrown]

If you will recall, the Court didn't take any 2A case until Heller, where the D.C. Circuit struck down the DC statute and the DC Goverment sought cert (against the advice of many). BTW, we won in Heller.

You're right. I mistakenly read the dissent as if it were the ruling. That'll teach me to skip to the end!

If the court is "waiting" (and I am not convinced that the court does much or any "waiting"), it may be waiting for a similar situation to arise. The hard reality is that the Court often doesn't feel the need to take a case until a statute has been invalidated and the state (or federal) sovereignity has thus been thus derailed.

But that wasn't true during the civil rights movement as far as I know. As far as I know, those cases were decided in favor of the government by the district courts (which, at that time, were directly under the Supreme Court).

What's different between then and now? What is responsible for the Supreme Court's apparent insistence that the sovereignty of the government be overturned by the courts before it will act?

 

[jrosenberger]

You're right. I mistakenly read the dissent as if it were the ruling. That'll teach me to skip to the end!

You're in good company, considering that many lower court judges seem to read the dissent in Heller as controlling.

 

[esqappellate]

You're right. I mistakenly read the dissent as if it were the ruling. That'll teach me to skip to the end!




But that wasn't true during the civil rights movement as far as I know. As far as I know, those cases were decided in favor of the government by the district courts (which, at that time, were directly under the Supreme Court).

What's different between then and now? What is responsible for the Supreme Court's apparent insistence that the sovereignty of the government be overturned by the courts before it will act?

I lived through that era. The civil rights cases were very carefully chosen and orchestrated. It took nearly two decades. 2A cases are moving much faster. I honestly don't think the court is insisting on a case invalidating a statute. It is much more subtle than that. It is just that there is no real pressing need to act unless a statute has been invalidated. The court has lots of pressing issues.

 

[RightNYer]

Well...unfortunately, appeals have clocks, and ours would have run out. Ideal? No, but this case will die down before the return of the justices.

The media should be starting to look for the next racial injustice in a day or two.

By his argument, there will never be an ideal time. There will always be some incident SOMEWHERE in the United States that the liberal media will use to demonize guns.

 

[RightNYer]

If you will recall, the Court didn't take any 2A case until Heller, where the D.C. Circuit struck down the DC statute and the DC Goverment sought cert (against the advice of many). BTW, we won in Heller. If the court is "waiting" (and I am not convinced that the court does much or any "waiting"), it may be waiting for a similar situation to arise. The hard reality is that the Court often doesn't feel the need to take a case until a statute has been invalidated and the state (or federal) sovereignity has thus been thus derailed. That is why I was ardently hoping that there would be a petition in Moore. It doesn't mean that we will lose if the court does take such a case (again, we won Heller), it just means that they don't feel any real need to act in the area. We all tend to place the 2A on a pedestal, but the Court doesn't necessarily share that sense of importance vis a vis the other issues that come before the Court. Remember, the Court sees thousands and thousands of cert petitions every year. About 1% are granted. Many of those petitions are crap but many are not. We did astonishing well to get two petitions granted and WON in two years time.

Frankly, I never expected to see the result in Heller and McDonald in my lifetime (I'm 63 and been practicing appellate law since 1975). The rise of Shall Issue Laws in so many states is astonishing in so many ways and is a pure delight. It doesn't mean we don't continue to push, it does mean that we have come a long ways, both legally in court decisions and legislatively, maybe not in Maryland, NY and Jersey, but federally and in the vast majority of states. Do you remember when you could not carry in a National Park or National Forest, even with a state permit? I do. Do you remember when CCW permits were as rare as hen's teeth? I do. Do you remember when SYG was the law in hardly any states? I do, and now about 30 states have it. Do you remember the legal situation before the enactment of 18 USC 926A in terms of transporting your firearms across state lines? I do, it could mean arrest and imprisonment, especially in Maryland and the NE. Now you have a federally protected safe haven that no state may infringe. Take a deep breath and count your blessings.

I'm probably the only lawyer who feels this way, but I actually want the Supreme Court to rule that there is no right to carry, and for the federal government to ban it on a federal level. I then want the federal government to attempt to enforce it in conservative states and be met by SWAT teams from that state's police and militia.

I think a full scale Constitutional crisis is long overdue, and the sooner we get it (and a peaceable dissolution of the union) the better.

 

[pcfixer]

I'm probably the only lawyer who feels this way, but I actually want the Supreme Court to rule that there is no right to carry, and for the federal government to ban it on a federal level. I then want the federal government to attempt to enforce it in conservative states and be met by SWAT teams from that state's police and militia.

I think a full scale Constitutional crisis is long overdue, and the sooner we get it (and a peaceable dissolution of the union) the better.

Wow.... Are you being optimistic?

 

[hvymax]

I'm probably the only lawyer who feels this way, but I actually want the Supreme Court to rule that there is no right to carry, and for the federal government to ban it on a federal level. I then want the federal government to attempt to enforce it in conservative states and be met by SWAT teams from that state's police and militia.

I think a full scale Constitutional crisis is long overdue, and the sooner we get it (and a peaceable dissolution of the union) the better.

The last best hope for mankinds last best hope.

 

[RightNYer]

The last best hope for mankinds last best hope.

"If there must be trouble, let it be in my day, that my child may have peace."

- Thomas Paine

A civil war is coming. I'd rather it be in 2025 than 2055, when I'm too old to be useful.

 

[GTOGUNNER]

In Williams, IIRC, Gansler et al, wrote in their opposition for cert something to the effect that their were better cases in the pipe than Williams and the court should wait for one of those cases. One can only hope. I'll see if I can find the language they used.

 

[Gryphon]

I'm probably the only lawyer who feels this way, but I actually want the Supreme Court to rule that there is no right to carry, and for the federal government to ban it on a federal level. I then want the federal government to attempt to enforce it in conservative states and be met by SWAT teams from that state's police and militia.

I think a full scale Constitutional crisis is long overdue, and the sooner we get it (and a peaceable dissolution of the union) the better.

Wow . . . talk about a "nuclear option." Why not just incite full-fledged armageddon, and pound society back into the stone age so we can all carry big sticks without the need for a permit.

 

[teratos]

I'm probably the only lawyer who feels this way, but I actually want the Supreme Court to rule that there is no right to carry, and for the federal government to ban it on a federal level. I then want the federal government to attempt to enforce it in conservative states and be met by SWAT teams from that state's police and militia.

I think a full scale Constitutional crisis is long overdue, and the sooner we get it (and a peaceable dissolution of the union) the better.

Do you seriously think there can be a peaceable dissolution to the Union? No government will dissolve itself peaceably. It is completely against their nature. Governments only know how to take, they do not know how to give. Any outcome along the lines you are talking about will be the result of a violent and bloody revolution.