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Old August 23rd, 2018, 01:32 AM #1
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1st Circuit Appeal of MA AWB case (Worman v Baker)

The initial brief of the MA AWB case has been filed. The arguments look similar to the arguments presented in the SCOTUS Kolbe v Hogan petition. I suspect a similar result given the same argument.
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Old August 23rd, 2018, 08:29 AM #2
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Originally Posted by jcutonilli View Post
The initial brief of the MA AWB case has been filed. The arguments look similar to the arguments presented in the SCOTUS Kolbe v Hogan petition. I suspect a similar result given the same argument.
Similar argument but different makeup of the court, especially if Kavanaugh gets to decide on cert.
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Old August 23rd, 2018, 06:55 PM #3
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We will see. Just remember there was no dissenting opinion in Kobe to give any indications that it was improperly decided.
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Old September 4th, 2018, 10:46 AM #4
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CATO joined by SAF, JPFO, and a group of 2nd amendment scholars filed a brief:

https://www.cato.org/publications/le...orman-v-healey

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Cato, joined by several organizations interested in the protection of our civil liberties and a group of professors who teach the Second Amendment, has filed a brief supporting the plaintiffs. We point out that the Massachusetts law classifies the common semi-automatic firearms used by police officers as “dangerous and unusual” weapons of war, alienating officers from their communities and undermining policing by consent.
https://object.cato.org/sites/cato.o...ici-curiae.pdf

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The statute’s exemption for all law enforcement (not just for SWAT teams) concedes that the banned arms promote the Second Amendment’s “core lawful purpose of self-defense.” Heller, 554 U.S. at 630. The arms of typical law enforcement officers are selected solely for defensive purposes. They are especially suitable for defense of self and others in civil society. Indeed, the Massachusetts ban does not apply to retired law enforcement officers, whose possession is for lawful defense.
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Widespread law enforcement use is further evidence that particular arms are common and typically used for lawful purposes, rather than “dangerous and unusual.” See State v. DeCiccio, 105 A.3d 165, 200–01 (Conn. 2014) (police use shows that batons are Second Amendment arms); People v. Yanna, 824 N.W.2d 241, 245 (Mich. App. 2012) (Because “[h]undreds of thousands of Tasers and stun guns have been sold to private citizens, with many more in use by law enforcement officers,” prohibition is unconstitutional.).

Notably, the Massachusetts ban exempts retired law enforcement officers. Mass. Gen. Laws ch. 140, 131M (“this section shall not apply to . . . the possession by an individual who is retired from service with a law enforcement agency and is not otherwise prohibited from receiving such a weapon or feeding device from such agency upon retirement.”). The exemption further confirms that the arms are especially well-suited for lawful defense of self and family.

Law enforcement officers are presumably well-trained, and this case does not challenge a training requirement that Massachusetts might require for certain arms.
Thomas and Alito argued strongly for the police use test in Caetano as I recall. Relying on statistics as has been done in other cases IMO is circular - a new model gun in circulation by definition is not "in common use." The real (and constitutionally correct IMO) test should be whether the police or other government employees use the firearms for defense. A separate class of more-well-armed-than-citizens of government employees is anathema to the 2nd amendment. Recall that part of the concern was creation of standing armies at home. Police carrying better rifles than residents are de facto standing armies.

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Where tensions between police and policed are a sensitive issue, Massachusetts sets up a framework where the people can be fired upon by police with what the state fancies as an instrument of war, a suggestion that only serves to drive a wedge between police and citizenry.
yes. If unarmed residents feel "oppressed" by police who carry rifles and guns when ordinary citizens cannot, maybe those residents really are oppressed.
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Old September 4th, 2018, 02:36 PM #5
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While I think the amici provide a better explanation, I am not sure they went far enough.

While I agree that police use is one way to determine common use, simply relying on it is not adequate enough. The M-16 is a specific example of something that is commonly used, but SCOTUS claims is not protected as part of the amendment. The plaintiffs sort of touch on it, but don't address the fact Heller specifically mentions small arms that are not NFA items.

They also indirectly touch on the key reason the amendment was enacted. Protect the people from an all powerful government. While the police are part of the government today, they do not explain them in a historical context. The police did not exist when the amendment was ratified. What are the historical implications of that.

They also fail to provide any historical context on who provides public safety nor do they argue that self defense and public safety are two sides of the same issue nor do they argue that the government does not protect the individual.

I think it improves the chances of wining, but not by much.
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Old September 4th, 2018, 02:46 PM #6
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At this point, its just a cert petition to get a hearing, not necessarily a full brief on the merits. They only get so many words.

They will not win in the 1st circuit, the majority will write "because guns" 3758 different ways. Probably most people have their minds made up already. What they are trying to accomplish is a hearing and a good dissent that the Supreme Court might then take.
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Old September 4th, 2018, 03:03 PM #7
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Quote:
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At this point, its just a cert petition to get a hearing, not necessarily a full brief on the merits. They only get so many words.

They will not win in the 1st circuit, the majority will write "because guns" 3758 different ways. Probably most people have their minds made up already. What they are trying to accomplish is a hearing and a good dissent that the Supreme Court might then take.
The best way to get SCOTUS to take your case is to get the circuit court to overturn the law. Circuit splits are another way. If they lose, neither will have occurred.

They are likely to lose because they have not really addressed the fundamental issues. SCOTUS is unlikely to take the case because of this.

Everybody is assuming that the problem was Kennedy. Maybe the problem is with Roberts and a new justice will not change things with 2A.
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Old September 4th, 2018, 03:20 PM #8
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Justice Thomas has complained in writing a number of time about SCOTUS not being willing to face up to cases about the Second Amendment. Whether Cavanaugh makes a difference (assuming he gets confirmed by this clown show) remains to be seen.
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Old September 4th, 2018, 04:24 PM #9
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Quote:
Originally Posted by jcutonilli View Post
The best way to get SCOTUS to take your case is to get the circuit court to overturn the law. Circuit splits are another way. If they lose, neither will have occurred.

They are likely to lose because they have not really addressed the fundamental issues. SCOTUS is unlikely to take the case because of this. its the 1st circuit and the judges hate guns.

Everybody is assuming that the problem was Kennedy. Maybe the problem is with Roberts and a new justice will not change things with 2A.
Fixed for you. anti-gun judges simply defer to whatever bizarre reasoning the AG cooks up. facts, history, or issues are irrelevant. If they are smart the 1st circuit will take the case and cut and paste Kolbe, to avoid a split and a reason for SCOTUS to take the case.

I think that the problem is Roberts too, but Ginsburg wont live forever. Eventually, we will get a split.
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Old September 4th, 2018, 06:17 PM #10
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Quote:
Originally Posted by danb View Post
Fixed for you. anti-gun judges simply defer to whatever bizarre reasoning the AG cooks up. facts, history, or issues are irrelevant. If they are smart the 1st circuit will take the case and cut and paste Kolbe, to avoid a split and a reason for SCOTUS to take the case.

I think that the problem is Roberts too, but Ginsburg wont live forever. Eventually, we will get a split.
You sound like one of those judges, deferring to whatever bizarre reasoning you want.

I have listed my reasoning above. I am willing to listen if there are any errors.

In order to get a split you are going to need to argue the case differently. The current reasoning is pretty consistent among the courts.
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