pcfixer
Ultimate Member
Judge Traxler is Chief Judge and nominated by George H.W. Bush, Bill Clinton nominated him in 1998.
Both Traxler and Wilkinson are conservative!!
http://abcnews.go.com/Politics/SupremeCourt/story?id=1257307
SAF SUES IN MARYLAND OVER HANDGUN PERMIT DENIAL UPDATED 3-5-12
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Both Traxler and Wilkinson are conservative!!
http://abcnews.go.com/Politics/SupremeCourt/story?id=1257307
krucam
Ultimate Member
Judge Wilkinson is no friend of ours, I don't care if he's conservative and was appointed by God.
Read: http://www.mdshooters.com/attachment.php?attachmentid=35290&d=1301074986
Any rino Bush nominee is most likely a Souter wannabe. We only got the last few Justices after we made him ditch the libs he wanted to nominate.
Al Norris
Spud Head
OK... Let's look at their carrers. First Judge Traxler:
Now, Judge Wilkinson.
Yes, both Judges are conservatives. Wilkinson differs in 2 major areas from Judge Traxler. First, he has never had any meaningful trial experience. He was a professor then an Appellate Judge. Second, he is a Reagan conservative (this is not a pejorative, merely a fact). This means that he has utmost deference to the legislature, regardless of a laws constitutional bearing. This is born out in the Op Ed piece he wrote in castigating the Heller decision.
I'll take real world conservatives, like Judge Traxler, over pretend conservatives, such as Judge Wilkinson. The former is tempered by experience, the latter is not.
That's what I'm thinking.
Patrick
MSI Executive Member
As long as they hear the case and decide it on 2A grounds - good or bad - I could care less. Once we get past the district courts, things should be a bit smoother in terms of schedule. A lot of the early games will be over. The arguments will generally (but not always) be more centered on 2A and direct.
I think the other side is setting up post-carry arguments now. I see some setup in their briefs for later defenses. They are trying real hard to get some kind of public safety argument listed as a compelling interest - even if it does not trump the core right. In other words, they want a judge to acknowledge the public safety issue even if the judge later says "but it cannot extinguish the right entirely".
Getting a compelling public safety message into the jurisprudence is important even if it does not trump the general right. We are all going to be arguing sensitive places and other restrictions soon enough, and getting some safety concerns into the record makes that fight easier for them in the future. The Supreme Court opened this door in Heller and McDonald, and will presumably keep it open in their next ruling. It's the next big fight and feeds into eligibility, permits and time/place/manner restrictions.
We are no longer the only side thinking ahead on 2A issues.
I think the other side is setting up post-carry arguments now. I see some setup in their briefs for later defenses. They are trying real hard to get some kind of public safety argument listed as a compelling interest - even if it does not trump the core right. In other words, they want a judge to acknowledge the public safety issue even if the judge later says "but it cannot extinguish the right entirely".
Getting a compelling public safety message into the jurisprudence is important even if it does not trump the general right. We are all going to be arguing sensitive places and other restrictions soon enough, and getting some safety concerns into the record makes that fight easier for them in the future. The Supreme Court opened this door in Heller and McDonald, and will presumably keep it open in their next ruling. It's the next big fight and feeds into eligibility, permits and time/place/manner restrictions.
We are no longer the only side thinking ahead on 2A issues.
pcfixer
Ultimate Member
This case (JMHO) was decided upon 'public safety in the national park'
I think the wholesale denying of 'bear' of handguns in Maryland should be a seperate issue.
From above, application of intemediate scurity was applied. Gura may argue the reasonable or substaintial interest in the denial of a right to bear under the 14th Ammdment.
I would contend the Mr Gura has a plan.
http://uclalawreview.org/pdf/56-5-3.pdf Quoted from Al Gura Law Review
Patrick
MSI Executive Member
Courts are applying the highest level of scrutiny they can that allows finding against the right. In general, that means rational basis masked as intermediate. Intermediate is reserved for restrictions that are "suspected" of denying a right. In those cases, the government generally must show more than legislative intent, they have to prove that they are not infringing and that the restriction functions as intended.
So far no court - anywhere - has called the government on their data. Do gun control laws function as intended? Do bans on peaceful and lawful carry reduce violent gun crime?
The Nordyke decision came closest to recognizing the weakness, by wiping the math off the table. They said that the evaluation of effectiveness is not something for the courts, but rather for the legislature. By that logic, the effectiveness of "separate but equal" would have stayed with the legislature and schools would never have been integrated unless the legislature (who violated the civil right in the first place) saw fit to declare themselves ineffective.
FWIW, our side is not pushing the matter that much, though it must be tempting. The problem is that once you start having that discussion in depth, you have accepted the idea that it matters. You succumb to the thieves veto argument - that good people should be denied an action because a blanket ban will also stop bad people (in theory). If you start getting into statistical math arguments, you have accepted the government's arguments that we need to be denied a right for our own good.
So don't get frustrated when Gura ignores the point or gives it short shrift (he needs to respond at some level as part of an opposing brief). You will sometimes catch him reminding the court that this is not a case of statistics, but of fundamental rights.
Frankly, I think this is where the government screwed up. They should have accepted the existence of the right and then made the argument about police powers and statistics. They could have tried for a compelling-interest standard that allows serious restrictions to the point of may-issue. But they didn't. They certainly make the argument, but their first defense is that the right does not exist. As a result, that focuses the argument away from the math and towards the constitutional text (eventually). It's a strategy that will backfire on them soon.
Not that I think the math is in their favor, but the state can argue local conditions and play other games.
So far no court - anywhere - has called the government on their data. Do gun control laws function as intended? Do bans on peaceful and lawful carry reduce violent gun crime?
The Nordyke decision came closest to recognizing the weakness, by wiping the math off the table. They said that the evaluation of effectiveness is not something for the courts, but rather for the legislature. By that logic, the effectiveness of "separate but equal" would have stayed with the legislature and schools would never have been integrated unless the legislature (who violated the civil right in the first place) saw fit to declare themselves ineffective.
FWIW, our side is not pushing the matter that much, though it must be tempting. The problem is that once you start having that discussion in depth, you have accepted the idea that it matters. You succumb to the thieves veto argument - that good people should be denied an action because a blanket ban will also stop bad people (in theory). If you start getting into statistical math arguments, you have accepted the government's arguments that we need to be denied a right for our own good.
So don't get frustrated when Gura ignores the point or gives it short shrift (he needs to respond at some level as part of an opposing brief). You will sometimes catch him reminding the court that this is not a case of statistics, but of fundamental rights.
Frankly, I think this is where the government screwed up. They should have accepted the existence of the right and then made the argument about police powers and statistics. They could have tried for a compelling-interest standard that allows serious restrictions to the point of may-issue. But they didn't. They certainly make the argument, but their first defense is that the right does not exist. As a result, that focuses the argument away from the math and towards the constitutional text (eventually). It's a strategy that will backfire on them soon.
Not that I think the math is in their favor, but the state can argue local conditions and play other games.
yellowfin
Pro 2A Gastronome
What good are these courts at all if all they do is bend over and say the legislature is right, government power is always right, and the Constitution means nothing if it gets in the way? Seriously, why do we even have them if they do absolutely nothing of their job?
wjackcooper
Active Member
- Feb 9, 2011
- 689
Nordyke; Noticed in Richards
Nordyke may be utilized in Woollard and in Williams by both parties.
The Notice in Richards v Preito (case lost, now on appeal) presents, in my view, elements that could be argued in a Woollard Notice and in a Williams brief.
http://ia600408.us.archive.org/4/items/gov.uscourts.caed.191626/gov.uscourts.caed.191626.71.0.pdf
I hope the link works.
Regards
Jack
Nordyke may be utilized in Woollard and in Williams by both parties.
The Notice in Richards v Preito (case lost, now on appeal) presents, in my view, elements that could be argued in a Woollard Notice and in a Williams brief.
http://ia600408.us.archive.org/4/items/gov.uscourts.caed.191626/gov.uscourts.caed.191626.71.0.pdf
I hope the link works.
Regards
Jack
Patrick
MSI Executive Member
The link worked great. Thank you.
The biggest issue with Nordyke is how is proposes handling of burdens on the right: with an overly generous look to the legislature. There are good words in the decision, for sure, but it significantly lowers the bar for government restriction to meet muster. It strongly recognizes the civil right, and then creates a weak framework for protecting it. King Solomon knew that splitting a baby kills it, and so does the Ninth Circuit.
In a nutshell, Nordyke suggests it is the role of legislature to determine the effectiveness of gun laws. If lawmakers say it is effective, the court should presume they are speaking fact. Likewise, even those restrictions that truly burden the right are given a free pass on two of the hardest tests for strict scrutiny: the court said every gun law automatically invokes a "compelling interest" because guns are involved; it then said the decision over whether a law is correctly tailored to the legislatively-defined need is the job of the legislature, and that courts should not evaluate those merits.
I'll say it again, under a decision like Nordyke - where civil rights exist but a court must give extreme deference to lawmakers - there would have been no desegregation. The Ninth tries its hardest to differentiate this civil right from others because guns are involved. But nowhere does the text of the Constitution allow that (which they actually admit). They have to lean heavily on standards-based theories to create a compelling interest that the legislature must solve.
This logic is circular and will come back at them in other cases where a legislature blocks something the court likes. If you can limit an enumerated, fundamental civil right this easily - what of others like abortion, gay marriage, and associated remedies like affirmative action?
As much as they wanted to make this "Guns Only", I cannot help but think some creative attorney's are going to use this to other ends. Nordyke's logic on the intersection between civil rights and the legislature is something nobody is talking about (in fairness, maybe I am the only one talking about this because I am wrong...), but I think it's messy and dangerous.
Hopalong
Man of Many Nicknames
In a perfect world, where legislatures did what was actually in the best interest of the people while staying within the framework of the Constitution, this would be a lot less messy. I'd say it would be a borderline no-brainer actually. The problem is that as a "real-world" solution, politics will destroy such an approach.
wjackcooper
Active Member
- Feb 9, 2011
- 689
Nordyke: useful in Woollard and Williams???
The Nordyke Notice in Richards is, I submit, an example of outstanding legal work, i. e. it makes the most out of given case.
Richards, it seems to me, is now postured in such a way that the Ninth Circuit Court of Appeals must (if it does not reverse the District Court) rule that: (1) while the Supreme Court held, as a finding of fact in Heller, a trigger lock requirement violates the 2nd Amendment, (2) an unloaded gun requirement, as a finding of fact, does not.
Nordyke, as pointed out by Patrick, appears “dangerous and messy.” It contains elements useful to our adversaries; although under Nordyke, in my opinion, the legislature could find a “gun control” law “effective” and then the court agree; but rule that law’s burden on the 2nd Amendment to great.
The Law Review Article at http://uclalawreview.org/pdf/56-5-3.pdf has been referred to in an earlier post. Where the courts should draw the line vis-à-vis the power of the legislature is analyzed in depth in this article by Alan Gura. The Ninth Circuit, again as pointed out by Patrick, has language in Nordyke that is way left of that line.
What worries me about losing these cases is that the composition of the Supreme Court can literally change in a heartbeat. Plus at the present time, 5 to 4 is not a sure thing. In looking at lower court rulings, I am reminded of Alice’s conversation with Humpty Dumpty in Louis Carroll’s Through the Looking Glass to the effect of; do words mean what they mean, or what we say they mean, the final question being one of who is in control?
Regards
Jack
The Nordyke Notice in Richards is, I submit, an example of outstanding legal work, i. e. it makes the most out of given case.
Richards, it seems to me, is now postured in such a way that the Ninth Circuit Court of Appeals must (if it does not reverse the District Court) rule that: (1) while the Supreme Court held, as a finding of fact in Heller, a trigger lock requirement violates the 2nd Amendment, (2) an unloaded gun requirement, as a finding of fact, does not.
Nordyke, as pointed out by Patrick, appears “dangerous and messy.” It contains elements useful to our adversaries; although under Nordyke, in my opinion, the legislature could find a “gun control” law “effective” and then the court agree; but rule that law’s burden on the 2nd Amendment to great.
The Law Review Article at http://uclalawreview.org/pdf/56-5-3.pdf has been referred to in an earlier post. Where the courts should draw the line vis-à-vis the power of the legislature is analyzed in depth in this article by Alan Gura. The Ninth Circuit, again as pointed out by Patrick, has language in Nordyke that is way left of that line.
What worries me about losing these cases is that the composition of the Supreme Court can literally change in a heartbeat. Plus at the present time, 5 to 4 is not a sure thing. In looking at lower court rulings, I am reminded of Alice’s conversation with Humpty Dumpty in Louis Carroll’s Through the Looking Glass to the effect of; do words mean what they mean, or what we say they mean, the final question being one of who is in control?
Regards
Jack
pcfixer
Ultimate Member
yellowfin
Pro 2A Gastronome
I'm working on something for a case that addresses that rather pointedly, purposefully to make the courts realize they're embracing some really slimy stuff that they'd rather not admit to. Their very worst decisions ever that are a complete disgrace to humanity point specifically to exercise of legislative interests and police powers and have been the basis for every instance thereof since. We need to make them shun that entire line of justification for anything like it was a bag full of dead catfish left inside a car for two weeks in July.
Half the problem is the whole "rational basis/intermediate scrutiny" and "government interests" nonsense. The other half is this stupid game of Simon Says. CA, NY, and NJ are basically playing and MD SC came right out and said "Well SCOTUS didn't say..." with the 2A two step and other sleazeball stuff like they did with Nordyke. Is there something that Scalia et al. can throw in to put a stop to this absurd game where for example NYC can come up with ENDLESS "Simon didn't say YOU, Simon didn't say EVERYONE, Simon didn't say specifically this county and that county, Simon didn't say if police can say no for this city, Simon didn't say at work, Simon didn't say nonresident, Simon didn't say while in a car, Simon didn't say while not in a car..."
adjusterr
Active Member
SAF sues MD
After reading many posts, I just became a SAF Defender's Club member. Every little bit helps.
After reading many posts, I just became a SAF Defender's Club member. Every little bit helps.
We'd need a SCOTUS opinion with the actual holding to have very specific guidance on addressing the issue(not in dicta). I'm not sure if any of the current cases working their way up will do it, since all seem to be purposely narrow in scope. A start at least will be SCOTUS telling the lower courts to do a historical analysis, something which they have yet to do, probably because it'll lead to a decision that they won't like.
I hope Williams would do part of that, since Halbrook has already indicated to SCOTUS that other courts are continually misreading/quoting Heller/McDonald.
EarthLover
Active Member
- Aug 10, 2009
- 157
I totally agree with this analysis. MD through activist judges like retired Judge Moylan. Love to play the SCOTUS did not say game. This is true in another constitutional case involving 6th Amendment Rigts. When SCOTUS ruled in Padilla v Kentucky that non immigrants can no longer be lied to when it comes to immigration consequences of pleading guilty, Judge Moylan ignored the precedent and wrote that such right does not exist in Maryland because the ruling "did not say the application of direct versus collateral consequence" was not to be applied but rather it said "we , SCOTUS, have never applied such distinction when it comes to constitutitutional rights. " Moylan reinterpreted to mean "oh, it means the negative must be true that it could someday apply so MD will do it. " State v. miller. 2010.
Gt ready Marylanders. Activist judges need to be removed with extreme prejudice. Otherwise our constitution will dissolve into nothing more than the parchment in which it was written. BTW Moylan is retired. And used specifically in these types of significant constitutional rigt cases. BS!
Gt ready Marylanders. Activist judges need to be removed with extreme prejudice. Otherwise our constitution will dissolve into nothing more than the parchment in which it was written. BTW Moylan is retired. And used specifically in these types of significant constitutional rigt cases. BS!
How to accomplish this elusive objective is the question du jour. Maryland has long been a one-party state, and judicial appointments are long term. Although some require initial "public approval" via the ballot box, most voters don't have a clue as to a given judge's judicial record, thus becoming a pro-forma exercise at best.
wjackcooper
Active Member
- Feb 9, 2011
- 689
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