1st Circuit Appeal of MA AWB case (Worman v Baker)

jcutonilli · Sep 8, 2018

motorcoachdoug said:
All true about it being a federal case but what are the odds that 1ca does not want to be smacked down by SCOTUS like the MA Supreme Court was by all the justices, and yes I did have ah senior moment about who was appealing the court decision but i do know the difference as well. Thank you anyway.

Why would the 1ca be afraid, there is 4ca precedent that SCOTUS remained silent about.

kcbrown · Sep 14, 2018

jcutonilli said:
Primarily timing. Any amicus brief needs to be submitted within 7 days of the supporting parties brief, which has already passed for this case.

But you were aware of these proceedings such that timely filing of an amicus brief would have been possible for you, no? Presuming that to be the case, why didn’t you file such a brief when you had the chance?

You (presumably) have the means. You have the motive (to prove that your self defense argument really WOULD win a case such as this). You presumably had the opportunity. Why in the world would you refrain from filing the brief given all that?

Sent from my iPhone using Tapatalk

jcutonilli · Sep 15, 2018

kcbrown said:
But you were aware of these proceedings such that timely filing of an amicus brief would have been possible for you, no? Presuming that to be the case, why didn’t you file such a brief when you had the chance?

You (presumably) have the means. You have the motive (to prove that your self defense argument really WOULD win a case such as this). You presumably had the opportunity. Why in the world would you refrain from filing the brief given all that?

Sent from my iPhone using Tapatalk

I was hoping that they would make better arguments and that I would not have to get involved. By the time I found out that they did not make any better arguments, it was too late to do anything about it.

kcbrown · Sep 15, 2018

jcutonilli said:
I was hoping that they would make better arguments and that I would not have to get involved. By the time I found out that they did not make any better arguments, it was too late to do anything about it.

This is surprising, to say the least.

We've had carry cases brought since 2010. The history of the arguments in such cases is well-established, and thus a pattern is well-formed, which means that the proper expectation is obviously that the argument you put forth will not be raised. Moreover, nothing prevents you from submitting an amicus brief that makes arguments that have been made elsewhere in the case. Doing so here would provide "defense in depth".

Since the opportunity for filing such a brief has passed for this phase of the case, do you intend to file such a brief if this case is appealed to SCOTUS?

Additionally, do you intend to file similar briefs in other carry cases that are still pending, such as Young (you'll have that opportunity for that case in the event it is taken en banc, something which is nearly guaranteed)?

GlocksAndPatriots · Sep 15, 2018

kcbrown said:
This is surprising, to say the least.

We've had carry cases brought since 2010. The history of the arguments in such cases is well-established, and thus a pattern is well-formed, which means that the proper expectation is obviously that the argument you put forth will not be raised. Moreover, nothing prevents you from submitting an amicus brief that makes arguments that have been made elsewhere in the case. Doing so here would provide "defense in depth".

Since the opportunity for filing such a brief has passed for this phase of the case, do you intend to file such a brief if this case is appealed to SCOTUS?

Additionally, do you intend to file similar briefs in other carry cases that are still pending, such as Young (you'll have that opportunity for that case in the event it is taken en banc, something which is nearly guaranteed)?

I think he's delusional. As of now, the courts have dismissed any 2nd Amendment argument by claiming that the government's interest in public safety outweighs the right, deferring to the state's "weighing" of "evidence." His argument is that we need to make the argument that gun rights themselves further public safety. The judges are acting in bad faith. If someone makes that argument, they'll just say "The legislatures have weighed the evidence, and have determined that gun rights don't further public safety, and in fact detract from it. It's not our job to second guess them.

I understand that people don't want to think that their country is in the midst of a Constitutional crisis, but it is. Deluding oneself into thinking the other side is playing by the rules doesn't benefit us.

jcutonilli · Sep 15, 2018

kcbrown said:
This is surprising, to say the least.

We've had carry cases brought since 2010. The history of the arguments in such cases is well-established, and thus a pattern is well-formed, which means that the proper expectation is obviously that the argument you put forth will not be raised. Moreover, nothing prevents you from submitting an amicus brief that makes arguments that have been made elsewhere in the case. Doing so here would provide "defense in depth".

Since the opportunity for filing such a brief has passed for this phase of the case, do you intend to file such a brief if this case is appealed to SCOTUS?

Additionally, do you intend to file similar briefs in other carry cases that are still pending, such as Young (you'll have that opportunity for that case in the event it is taken en banc, something which is nearly guaranteed)?

It is surprising that I can be lazy?

This is not a carry case, it is an AWB case. It was dismissed because of the reasoning in Kolbe, they are like M-16's and don't have 2A protection. It is not a public safety issue that currently needs to be defeated in this case. The issue was not really litigated in the 4th circuit nor SCOTUS. I wanted to see if things changed based on the denial of cert.

I have also learned that talking about it on this forum does not seem to have any impact. I will talk with others about writing a brief.

jcutonilli · Sep 15, 2018

GlocksAndPatriots said:
I think he's delusional. As of now, the courts have dismissed any 2nd Amendment argument by claiming that the government's interest in public safety outweighs the right, deferring to the state's "weighing" of "evidence." His argument is that we need to make the argument that gun rights themselves further public safety. The judges are acting in bad faith. If someone makes that argument, they'll just say "The legislatures have weighed the evidence, and have determined that gun rights don't further public safety, and in fact detract from it. It's not our job to second guess them.

I understand that people don't want to think that their country is in the midst of a Constitutional crisis, but it is. Deluding oneself into thinking the other side is playing by the rules doesn't benefit us.

The lawyers (and others like you) that make the same arguments over and over, and expect different results are the delusional ones.

My argument is not that gun rights themselves further public safety. It is that self defense and public safety are two sides of the same issue. You can't deny self defense without impacting public safety because they are interrelated by definition.

The legislature has determined that guns do further public safety because it allows the police to have them. After all, "It's not our job to second guess them."

The issue is not whether these guns should be allowed, but who should have them. Giving them only to the police creates a standing army and/or select militia, which everyone agrees is the reason the 2A was written.

Occam · Sep 15, 2018

jcutonilli said:
Giving them only to the police creates a standing army and/or select militia, which everyone agrees is the reason the 2A was written.

Please clarify. Is this your understanding, or is it sarcasm?

jcutonilli · Sep 16, 2018

Occam said:
Please clarify. Is this your understanding, or is it sarcasm?

It was written for fear that the Government would disarm the people, enabling a politicized standing army or a select militia to rule that would destroy peoples rights.

kcbrown · Sep 16, 2018

jcutonilli said:
It is surprising that I can be lazy?

About something that you presumably care about and which you believe you have a unique ability to address (nobody else has made the argument you're making, after all)? Most definitely yes. But see below.

This is not a carry case, it is an AWB case.

Ooops. My bad. This is what happens when I'm operating on only 3 hours of sleep ...

There hasn't been nearly as much action with respect to "assault weapons" in the courts as there has been with respect to carry.

It was dismissed because of the reasoning in Kolbe, they are like M-16's and don't have 2A protection. It is not a public safety issue that currently needs to be defeated in this case. The issue was not really litigated in the 4th circuit nor SCOTUS. I wanted to see if things changed based on the denial of cert.

Now this is a reasonable, er, reason, for holding off, if you're interested in seeing if the courts really are biased. I've no problem with this. I mean, I'd obviously prefer that we just win and call it a day, but perhaps some longer term good can come from this.

I have also learned that talking about it on this forum does not seem to have any impact. I will talk with others about writing a brief.

Fair enough. Would you mind PMing me a copy of the brief you write (presuming you write it)? I'd love to read your argument in a more complete form. I'm particularly interested in the citations you'll choose to support your argument in general, and the arguments and citations you'll use to counter the jurisprudence that says (roughly speaking) that the public safety interest of the government does not involve the individual.

I will, of course, keep it completely confidential. If you prefer to refrain from that and just post a link to it here once you've submitted it, that's fine too, of course.

Either way, I'm very interested in seeing what the courts have to say about the argument you've been making.

Also, your argument is applicable to a wide variety of 2nd Amendment cases (perhaps even all of them), so I'm hoping that you'll decide to write up similar briefs in other 2nd Amendment cases that are pending.

Yes, I realize you can be lazy (I certainly am!) so I understand why you might be reluctant to go the distance on this. But if you're right, the result will be worth it.

Comm2A · Dec 21, 2018

Worman v. Baker is scheduled for oral arguments on January 9th. The court will also hear the Mass AG's appeal of the MTD denial in Pullman Arms v. Healey on the same day. Times and panels have not been assigned.

Filings for both cases can be found here.

Comm2A · Jan 9, 2019

Audio of the oral arguments posted here.

jcutonilli · Jan 9, 2019

That argument went even worse than I expected. Given that it was the same lawyer and essentially the same argument as Kolbe, I can pretty much guess what the outcome will be.

Not_an_outlaw · Jan 9, 2019

I thought the Worman case was argued well. The judges sounded just like out A-hole legislators I've witnessed in committee hearings. Judge trying to state the difference in a regulation and ban. Interesting.

Judge accused plaintiff or arguing of semantics. Seemed just the opposite to me. Category versus category. You can never win and argument with these guys.

Stare: prohibited because class is like like weapons used by military. there goes your Remington 700 in the next decade because it's a sniper rifle.

Also states says AR-15s are just as deadly as M-16 because they can be easily modified with bump stocks and trigger cranks.

Says Heller is clear - if the military uses it, it can be banned - ouch. (She didn't distinguish between full auto and everything else)

Weapons that are to be banned are only used for offensive purpose, and no evidence of defense use, so outside of Keller.

State says that NRA said usually only fire two rounds for self defense, never over 10 rounds.

Availability of handguns and other guns does not burden the right of self defense.

In rebuttal - Judge - if you're arguing about quantity of rounds in magazine, then arguing for balancing test. That is very scary.

jcutonilli · Jan 10, 2019

The plaintiff tried to argue that the state is banning all semi-automatic firearms as a class and had to backtrack saying that it only bans semi-automatic firearms holding more than 5 rounds. He also avoided the question at the end about large numbers of rounds.

I think the case was argued poorly for a number of reasons.

The case is weak because there is no evidence of actual defensive use, they are only hypothetically used. I don't believe they addressed how many shot criminals use or how many the police use.

They argue common use as sort of a numerical argument, they are a lot of them. I certainly would not have stated that 100 round mags can be banned because they are not common. Common use means to me exactly what it says; In other words are there legitimate lawful societal uses. The easiest way to prove it is through the exemptions the state grants. The argument the state is making is really about who should have them and acknowledges that they have legitimate uses.

They completely ignore the fact that Heller specifically mentions small arms both in the M-16 paragraph and the earlier paragraph about the type of arms militia's bring (cited in the M-16 paragraph).

They ignore the definition of machine gun in the NFA.

I could go on and on.

motorcoachdoug · Jan 10, 2019

So we already know how this will end...

Not_an_outlaw · Jan 10, 2019

Yea, sounds like all the rest.

I'd like to see jcutonilli file an action.

danb · Jan 10, 2019

Quoting from Alito's concurring opinion in Caetano: https://www.supremecourt.gov/opinions/15pdf/14-10078_aplc.pdf

Instead, Miller and Heller recognized that militia members traditionally reported for duty carrying “the sorts of lawful weapons that they possessed at home,” and that the Second Amendment therefore protects such weapons as a class, regardless of any particular weapon’s suitability for military use. 554 U. S.,at 627; see id.,at 624–625. Indeed, Heller acknowledged that advancements in military technology might render many commonly owned weapons ineffective in warfare. Id.,at 627–628. But such “modern developments . . . cannot change our interpretation of the right.” Ibid.

In any event, the Supreme Judicial Court’s assumption that stun guns are unsuited for militia or military use is untenable. Section 131J allows law enforcement and correctional officers to carry stun guns and Tasers, presumably for such purposes as nonlethal crowd control.

Emphasis is mine. The correct test for the 2nd Amendment is really the "police or militia use test." Lots of other good stuff in Caetano. The question is whether the court was paying attention or wants to get slapped again. I think that they want slapped again.

press1280 · Jan 10, 2019

motorcoachdoug said:
So we already know how this will end...

We probably do although I thought the court did hammer the other side as well. You can clearly hear them struggling with both parties' case.

That being said, Judge Barron (the one doing the most talking) is an Obama appointee, Judge Seyla is a Reagan appointee but ruled against plaintiffs in Gould v. Morgan, and the 3rd member of the court (who I do not think asked any questions) is none other than former SCOTUS justice Souter.

So the numbers are simply not there. Look for the court to cut and paste from Freidman and other AW cases.

danb · Jan 10, 2019

haha, Souter thinks he is a conservative, lol

1st Circuit Appeal of MA AWB case (Worman v Baker)

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