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

jcutonilli · Aug 23, 2018

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.

Allen65 · Aug 23, 2018

jcutonilli said:
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.

jcutonilli · Aug 23, 2018

We will see. Just remember there was no dissenting opinion in Kobe to give any indications that it was improperly decided.

danb · Sep 4, 2018

CATO joined by SAF, JPFO, and a group of 2nd amendment scholars filed a brief:
:party29:

https://www.cato.org/publications/legal-briefs/worman-v-healey

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.org/files/pubs/pdf/brief-of-amici-curiae.pdf

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.

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.

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.

jcutonilli · Sep 4, 2018

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.

danb · Sep 4, 2018

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.

jcutonilli · Sep 4, 2018

danb said:
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.

TheOriginalMexicanBob · Sep 4, 2018

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.

danb · Sep 4, 2018

jcutonilli said:
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.

jcutonilli · Sep 4, 2018

danb said:
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.

danb · Sep 4, 2018

jcutonilli said:
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.

I am sure you could get consent to file your own amicus brief if you think you can do better.

Adolph Oliver Bush · Sep 4, 2018

jcutonilli said:
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.

Please remember that the enemy is the antis.

Carry on.

GlocksAndPatriots · Sep 5, 2018

jcutonilli said:
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.

It doesn't matter how the case is argued. The judges aren't acting in good faith.

jcutonilli · Sep 5, 2018

GlocksAndPatriots said:
It doesn't matter how the case is argued. The judges aren't acting in good faith.

Why bring a lawsuit?

What makes you think they are not acting in good faith? They are doing it to provide public safety. After all, the government has an interest in providing public safety.

One side argues for self defense but does not argue how this is part of public safety and the other argues for public safety. Why is it not good to error on the side of public safety?

Bob A · Sep 5, 2018

jcutonilli said:
What makes you think they are not acting in good faith? They are doing it to provide public safety. After all, the government has an interest in providing public safety.

One side argues for self defense but does not argue how this is part of public safety and the other argues for public safety. Why is it not good to error on the side of public safety?

Only one side is able to accept the concept that self-defense has any part in public safety. The other side exists in a state of fear brought on by the constant harping on the concept of the evil being inherent in the tool, rather than the operator.

jcutonilli · Sep 5, 2018

Bob A said:
Only one side is able to accept the concept that self-defense has any part in public safety. The other side exists in a state of fear brought on by the constant harping on the concept of the evil being inherent in the tool, rather than the operator.

Show me in the briefs/oral argument where there is any argument that self defense has anything to do with public safety.

I understand that it is the operator and not the tool, but both sides throw around statistics arguing its either the operator or the tool. Judges have a hard time determining which side is correct and wind up deferring to the legislature.

The judges definitely make it easy for the government to prove its case. There is no change to how the case gets argued so additional cases reach the same conclusion.

GlocksAndPatriots · Sep 6, 2018

jcutonilli said:
Show me in the briefs/oral argument where there is any argument that self defense has anything to do with public safety.

I understand that it is the operator and not the tool, but both sides throw around statistics arguing its either the operator or the tool. Judges have a hard time determining which side is correct and wind up deferring to the legislature.

The judges definitely make it easy for the government to prove its case. There is no change to how the case gets argued so additional cases reach the same conclusion.

You really don't get it, do you?

danb · Sep 6, 2018

The point of these appeals is not to advance some arguments about public safety or policy. The point of these appeals is to establish the burden of proof on the government on how much the right can be restricted. Self defense only comes up insofar as we are asking how much the government can restrict one persons' right to self defense because another person is an idiot.

The majority in Heller explicitly rejected interest balancing for the sake of public safety. To paraphrase Heller, a ban on a class of firearms does not meet any form of heightened scrutiny appropriate for an enumerated right. The main point of the Cato brief as I see it is that the class of firearms in question is used for self defense and within the scope of the 2nd Amendment.

Judges are not acting in good faith because they are adopting the interest balancing approach of the minority opinion. If they faithfully applied precedent, whether or not they agreed, the opinion would be one sentence: A ban on a class of firearms used for self defense does not meet any form of heightened scrutiny appropriate for an enumerated right. ETA ok maybe two sentences: the first would be that the class of firearms considered here have police and militia use for self defense, so they are covered within the 2nd Amendment.

jcutonilli · Sep 6, 2018

GlocksAndPatriots said:
You really don't get it, do you?

danb said:
The point of these appeals is not to advance some arguments about public safety or policy. The point of these appeals is to establish the burden of proof on the government on how much the right can be restricted. Self defense only comes up insofar as we are asking how much the government can restrict one persons' right to self defense because another person is an idiot.

The majority in Heller explicitly rejected interest balancing for the sake of public safety. To paraphrase Heller, a ban on a class of firearms does not meet any form of heightened scrutiny appropriate for an enumerated right. The main point of the Cato brief as I see it is that the class of firearms in question is used for self defense and within the scope of the 2nd Amendment.

Judges are not acting in good faith because they are adopting the interest balancing approach of the minority opinion. If they faithfully applied precedent, whether or not they agreed, the opinion would be one sentence: A ban on a class of firearms used for self defense does not meet any form of heightened scrutiny appropriate for an enumerated right. ETA ok maybe two sentences: the first would be that the class of firearms considered here have police and militia use for self defense, so they are covered within the 2nd Amendment.

I don't think either of you get it.

The point of the appeals is to change the laws and prevent the government from infringing on our rights. In order to change the laws you can either go through the legislature or through the courts. The legislature made the laws so I do not see the laws becoming less infringing on our rights. The only option is to go through the courts. You need to actually win in order to get the courts to change the laws.

The government does not really care what happens to you as an individual and has no duty to protect you as an individual. This means there is a very low burden of proof and the court cases to date have demonstrated this. While SCOTUS has said that it does not like interest balancing, it has done nothing to stop it. There have been numerous cases where this has occurred.

You don't even believe that self defense is part of public safety since you don't believe that is the point of the argument.

The point of the appeals is to determine who provides public safety. Whether it includes the ability of people to provide their own safety or whether only the government can provide it. The whole point of the 2A is to make sure that the people themselves are able to provide that safety.

whistlersmother · Sep 6, 2018

The courts are part of the government, so they don't have an interest in individuals, specifically individual rights?

If so, then why so many cases striking down government overreach of 1A, 4A, and 5A infringements. Surely those infringements fall within the guise of "public safety", especially the 4A and 5A.

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