Tuesday @ 11:00 a.m. Emergency Hearing

danb · Oct 1, 2013

mr h said:
Just caught up on the last 2 hours' posts, and I have to say I'm thoroughly disappointed.

Not in the decision--TROs were not a sure thing, and I certainly didn't expect it to happen.

I'm disappointed in a large number of people in this community.

People who don't understand the process, but refuse to listen to those who do.
People who insist that if it doesn't go how they want, it's an abject failure.
People who have a knee-jerk, "But I WANT" reaction.
People who are dead set that there is always collusion in the Court.
People who have to demand everything be answered at once.
People who refuse to believe that there are additional steps ahead.
People who can't grasp the concept of a long-term, methodical approach.
People who can't see a positive in anything that isn't instant-gratification.

No... I've changed my mind...

I'm not disappointed.

I'm sickened. Disgusted. Embarrassed.

are we there yet? are we there yet?

rnfeliciano · Oct 1, 2013

If we rely on the sheep in B'more and Annapolis to vote on this, based on the debacles in 2012, we would have a disaster. No thanks, I will let the courts decide. But I am having problems with patience for example I got caught up in the shutdown. My ability to help the causes with money just went out the window. All I can do is provide moral support and hope for the best.

JailHouseLiar · Oct 1, 2013

JD-IAFF said:
Flemming v. Nestor, 363 U.S. 603 (1960)

Nestor argued that the payment of Social Security taxes created an implied contract between himself and government with respect to the payment of future benefits. In other words, Nestor believed that he had a property interest in the money that he had paid in.

SCOTUS determined that no such contract exists, and there is no contractual right to receive SS benefit payments. No property interest exists, and as such the takings clause does not have import with respect to denied SS benefit payments. The only protection afforded to participants is due process rights.

The short version of that is that Congress could pass legislation terminating the program tomorrow, and you wouldn't have a legal basis for asserting that you were owed a dime.

You can read the actual ruling here

Thank you!

Viper-Snipe · Oct 1, 2013

thought (not my case)
Older person on SS fixed income getting checks in the mail every month
No license to drive, uses buss
Have legal owned pistol, standard cap of 17+1
Mag broken (whatever reason)
Not able to replace mag (standard cap 17+1)
options?
buy new gun, not........

Rights infringed?

Hummm.........

V-S

ObsceneJesster · Oct 1, 2013

rnfeliciano said:
If we rely on the sheep in B'more and Annapolis to vote on this, based on the debacles in 2012, we would have a disaster. No thanks, I will let the courts decide. But I am having problems with patience for example I got caught up in the shutdown. My ability to help the causes with money just went out the window. All I can do is provide moral support and hope for the best.

Damn...You must really be pissed because you are now repeating yourself.

Jaybeez · Oct 1, 2013

Brooklyn said:
Say what ??

Yes they will duck rather than appeal, but not appealing is a full loss and will decrease the chance of the court reversing a decision that the state failed to appeal.. Fail to appeal leads to res judicta as I understand it.

So another state may try and get a case to scotus and scotuis has all it needs to deny cert unless there is a direct conflict and given the states failure to appeal in the first place the only way they would grant cert is if it was in conflict -- that is another loss for gun rights which they would never appeal because its a win for them.

we win we don't appeal. We lose we appeal.
They lose if we win, so if they don't appeal, then the next case must be a loss for our side or a loss for theirs---
If they loose, we win, so no conflict and no split, but if they win we appeal and use the split--- they would never appeal a win and neither will we.

Worse case we need to make them lose in more than one circuit, this gets easier with each case..

I just don't see the strategy you are setting up for them.

It is true that they will duck appeal as they did in IL. But as long as there are cases bubbling up it not a wining hand.

Perhaps I misunderstand you.

I think I said the same thing you are saying

Xander · Oct 1, 2013

The perfect plaintiff, as it was pointed out to me, would have been someone who turned 21 on Oct. 1.

rnfeliciano · Oct 1, 2013

lol, sorry

JD-IAFF · Oct 1, 2013

Xander said:
The perfect plaintiff, as it was pointed out to me, would have been someone who turned 21 on Oct. 1.

The perfect plaintiffs, IMO, would have been marketable individuals who desire to own a gun, but currently own none, and have an easily quantifiable rationale for expediency.

In other words, just as an example, a single mother in Baltimore, working two jobs to support her children, who lives in a nicely kept house in the middle of a warzone. She is likable, plays well on TV, people (and judges) can empathize with her and 30 days for her can be sold as being the difference between life and death.

It would still be a long shot argument, IMLO, but it's easier to sell exigency in that one to a judge than it is to imply some sort of exigent need and potential for irreparable harm on the part of plaintiffs who already own multiple firearms.

Not trying to be a raincloud, but both of these complaints are on shaky ground based on a reading of precedent. We'll know more once we get to the hearing on the motion to enjoin enforcement pending the outcome of the trial, but I don't expect much there either.

DC-W · Oct 1, 2013

HOLY HELL! I know a kid on another forum that turns 21 tomorrow. He's been pretty upset about not being able to buy a regulated rifle or handgun.

dblas · Oct 1, 2013

Robert said:
Are the 2A parties involved committed to each step?

EDIT:
I guess that question is moot until we hopefully see a plan directly from the people involved in taking it to the courts .

No, they decided to only go for the TRO and injunction and if that fails, they quit.

/sarcasm

It goes until it doesn't anymore. When do we hit the doesn't? Money runs out, appeals are exhausted, the lawyers deem it not worth persuing further.

Is that what you are looking for?

JD-IAFF · Oct 1, 2013

JailHouseLiar said:
Thank you!

You're welcome

dblas · Oct 1, 2013

fowlwhacker said:
Not being a lawyer, I wonder if the judge really had legal merit on her opinion and rationale that the request was not timely and happened only days before sb281 went into effect. Was this her personal opinion and discretion or was it based upon the law. Why do we have laws if judges are able to use their personal discretion. If the state doesn't have a way to issue new guns after 10/1 how can they actually stand behind sb281 legally?

Why don't we wait for the transcripts instead of relying on what is written in the BS?

Mike OTDP · Oct 1, 2013

I'm a bit disappointed. Not devastated, but disappointed.

The HQL and gun ban needed to have been heard as separate cases, IMO.

I think the HQL is much easier to justify a TRO about, simply due to the problems MSP is having with the software, and the lack of fingerprinting services outside the I-95 Axis. I don't think we can overturn the HQL in court...but we can attack the more onerous provisions.

As to the gun ban, that's harder to get a TRO for...and ultimately easier to overturn. Heller was quite specific about 2A protecting firearms "in common use". The AR platform is the most popular rifle in the country. QED.

KingGeorge · Oct 1, 2013

Robert is annoying with his thirst to know everything.

JD-IAFF · Oct 1, 2013

dblas said:
No, they decided to only go for the TRO and injunction and if that fails, they quit.

/sarcasm

It goes until it doesn't anymore. When do we hit the doesn't? Money runs out, appeals are exhausted, the lawyers deem it not worth persuing further.

Is that what you are looking for?

I get that procedure is confusing for many on here, so:

A TRO enjoins enforcement of a law for a very short period until a hearing for an injunctive motion can he held and decided. They are intended for only the most exigent circumstances where the failure to enjoin immediately would result in irreparable harm. If granted, they live no longer than the point where the injunctive motion is decided. The primary determinants here are the likelihood that the plaintiff will prevail at trial and the sufficiency of the exigency claimed.

Injunctions stop enforcement until the trial itself is decided, which can be many months in the future. The primary determinants here are, again, the likelihood of success on the part of the plaintiff and the demonstration of the potential for actual harm absent enjoinder.

We lost on the TRO, which IMO was pretty much a no brainer. It was going to happen.

The next step will be a hearing on a motion for injunctive relief. The same judge will decide to either top enforcement of the law for the duration of the trial or allow it to go into effect. After that, the actual trial starts.

dblas · Oct 1, 2013

JD-IAFF said:
Sweeney is a product liability / toxic tort attorney. He's VERY good within the scope of his area of expertise, but this suit is a bit outside that area.

Ok, it's a LOT outside that area. I'd be curious to know how he was selected. There had to have been more appropriate options available, especially at the rates that Bradley Arant would be charging. Hopefully it's at least being handled pro bono.

I believe Sweeney may be using this to break into other areas with Sky Woodward sitting 2nd Chair to "guide" him.

dblas · Oct 1, 2013

KingGeorge said:
Robert is annoying with his thirst to know everything.

Meh, he's OK, he's just frustrated like a lot of folks are.

JD-IAFF · Oct 1, 2013

dblas said:
I believe Sweeney may be using this to break into other areas with Sky Woodward sitting 2nd Chair to "guide" him.

The thing of it is that Woodward's area of expertise is product liability and toxic torts as well.

Constitutional law is, IMLO, best left to the handful of litigators who make it their life's work, especially when you are drafting litigation with an eye towards potentially taking it to SCOTUS. I can count on two hands the number of people I would have trusted a case like this to, and neither of them would be on it. For something like this, you want someone in the class of Peter Keisler, Carter Phillips, Tom Goldstein, etc. What you don't want is junior varsity.

Drafting an amicus for some elected officials, among a few other activities, doesn't slot Woodward into that role. They are both, again IMLO, learning as they go with respect to this area of the law, and nobody wants to be the first client for the recent graduate of barber school ...

Jim12 · Oct 1, 2013

She knew what she wanted to do before the hearing, and any different result was only to accommodate something she hadn't anticipated, with a mind toward avoiding being overturned.

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