SAF Issued file new law suit challenging common semiautomatic rifle ban

jcutonilli · Mar 1, 2021

wjackcooper said:
Yep!

Bianchi is progressing precisely according to plan. The fact that Kolbe is controlling law in the 4th Circuit (where it is extremely unlikely to be reversed) is, for now, a positive factor in that it expedites the Bianchi appeal process. The simple objective is to get Bianchi out of the District Court and before the 4th Circuit Court of Appeals, then to the SC where (and while) five conservative Justices can (and maybe will) control the result.

For those here who apparently think Moss (and her co-counsel) are clueless . . . if you wish to be helpful, her email address is included in post #10. Conceding that the future is never completely certain, 2A litigation outcomes in courts controlled by Democrats are almost always adverse. Grounded in basic arithmetic; 2A ligation strategy in this case is not complicated. It is clear (at least to me) that Moss understands the math supporting “common use” and that five is more than four.

“[O]verturned by a court competent to do so,” under these circumstances, is a politic reference to the SC.*

Regards
Jack

*https://www.courtlistener.com/docket/18705819/27/bianchi-v-frosh/ PLAINTIFFS’ RESPONSE TO THE COURT’S ORDER TO SHOW CAUSE
Page 1.
“Plaintiffs acknowledge that the result they seek is contrary to Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017) (en banc), and therefore that this Court “has ‘no discretion’ but to dismiss” Plaintiffs’ complaint. Eriline Co. S.A. v. Johnson, 440 F.3d 648, 655 n.10 (4th Cir. 2006). Nevertheless, Plaintiffs believe that precedent should be overturned by a court competent to do so.”

If progressing precisely according to plan is to lose at all levels then they are progressing precisely according to plan.

They do not appear to have even rebutted the court's issue. Eriline certain does not say that this Court has no discretion but to dismiss Plaintiffs’ complaint. All it does is allow the Court to raise the issue sua sponte. Relitigating the same issue is certainly something that the Court has some discretion to prevent. How is this case different from the previous case? Does the Court really have "no discretion"? The lawyers don't seem like they really addressed those issues. They have made it really easy for the court to dismiss the case.

wjackcooper · Mar 2, 2021

jcutonilli said:
They have made it really easy for the court to dismiss the case.

Yep!

The objective is to get at least a 5 to 4 win in the SC, ASAP.*

Regards
Jack

*https://www.courtlistener.com/recap/gov.uscourts.mdd.487607/gov.uscourts.mdd.487607.26.0.pdf

lazarus · Mar 2, 2021

wjackcooper said:
Yep!

The objective is to get at least a 5 to 4 win in the SC, ASAP.*

Regards
Jack

*https://www.courtlistener.com/recap/gov.uscourts.mdd.487607/gov.uscourts.mdd.487607.26.0.pdf

Honestly it would be better to get exactly a 5 to 4 win.

If it is 6 to 3, that means Chief Justice Roberts threw his vote on the side of good.

Which also means he is writing a narrow and/or watered down opinion and/or assigning it to one of the justices that will write such an opinion.

My biggest fear for the next however many years there is a conservative majority/super majority on the court that Roberts is going to keep throwing his hat in with the winning side and writing narrow, watered down opinions to drastically limit any scope of 2A victories.

jcutonilli · Mar 2, 2021

wjackcooper said:
Yep!

The objective is to get at least a 5 to 4 win in the SC, ASAP.*

Regards
Jack

*https://www.courtlistener.com/recap/gov.uscourts.mdd.487607/gov.uscourts.mdd.487607.26.0.pdf

SCOTUS has already denied the petition for this case

https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/17-127.html

They denied the petition at its first conference without any dissent written. Seems pretty clear to me that the plaintiffs did not argue the case correctly and that there really is not much more offered in this case.

jcutonilli · Mar 2, 2021

lazarus said:
Honestly it would be better to get exactly a 5 to 4 win.

If it is 6 to 3, that means Chief Justice Roberts threw his vote on the side of good.

Which also means he is writing a narrow and/or watered down opinion and/or assigning it to one of the justices that will write such an opinion.

My biggest fear for the next however many years there is a conservative majority/super majority on the court that Roberts is going to keep throwing his hat in with the winning side and writing narrow, watered down opinions to drastically limit any scope of 2A victories.

I don't believe the problem is Roberts. They took the NYSRPA case but none of the others. In the NYSRPA case the NYSRPA was able to articulate the lack of basis for intermediate scrutiny. None of the other case have really done that. This case does not really address that issue either.

Kavanaugh voted with Roberts to dismiss the NYSRPA case. His voting record to date suggests that Kavanaugh is going to vote like Roberts. Gorsuch is less like Roberts than Kavanaugh, but going to be more like Roberts than Alito or Thomas. It is too early to know how ACB will vote, but the early decisions suggest she will be more like Roberts than Alito or Thomas.

My biggest fear is that we will never get to SCOTUS because of the poor arguments presented by our side.

TheOriginalMexicanBob · Mar 2, 2021

jcutonilli said:
My biggest fear is that we will never get to SCOTUS because of the poor arguments presented by our side.

Years ago when I attended submachine gun instructor school the lead instructor (from the NRA) talked about this very thing. It's not just getting SCOTUS to hear a case...it has to be the right case...argued the right way. If the wrong case makes it to SCOTUS or is not argued effectively the cost of losing is very high...and the decision lasts a long time.

The instructor stated that both the anti-gun and pro-gun side know that and it's for all the marbles. The wrong case or the right case ineffectively presented for either side means a big loss. That's why at that level cases are very selectively supported and researched and it takes top legal minds to argue them.

TexDefender · Mar 2, 2021

Slackdaddy said:
And for 25 years, THIS is what I wrongly "assumed" the NRA would be doing.
Signing up for SAF now

It really doesn't matter, the more gun right organizations that fight the better.

dblas · Mar 3, 2021

jcutonilli said:
SCOTUS has already denied the petition for this case

https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/17-127.html

They denied the petition at its first conference without any dissent written. Seems pretty clear to me that the plaintiffs did not argue the case correctly and that there really is not much more offered in this case.

That was Kolbe v Hogan and a different make-up of the SCOTUS.

We shall se if the SCOTUS makes the same decision when it gets to them, and what their make up is when they do.

wjackcooper · Mar 4, 2021

jcutonilli said:
SCOTUS has already denied the petition for this case

https://www.supremecourt.gov/search.aspx?filename=/docket/docketfiles/html/public/17-127.html

They denied the petition at its first conference without any dissent written. Seems pretty clear to me that the plaintiffs did not argue the case correctly and that there really is not much more offered in this case.

Nope,

Different ball game: “[T]his case” is Bianchi in 2021, not Kolbe in 2017 when a combination of Kennedy, Ginsberg, Sotomayor, Kagan and Breyer (not to mention Roberts) could control the court.

Regards
Jack

wjackcooper · Mar 4, 2021

jcutonilli said:
My biggest fear is that we will never get to SCOTUS because of the poor arguments presented by our side.

Wow!

Sharing your fears about what you perceive to be cogent arguments (or at least a short summary) with Paul Clement paul.clement@kirkland.com and Nicole Moss nmoss@ccooperKirk.com would likely be therapeutic.

Please be sure and copy us in.

Regards
Jack

jcutonilli · Mar 4, 2021

dblas said:
That was Kolbe v Hogan and a different make-up of the SCOTUS.

We shall se if the SCOTUS makes the same decision when it gets to them, and what their make up is when they do.

wjackcooper said:
Nope,

Different ball game: “[T]his case” is Bianchi in 2021, not Kolbe in 2017 when a combination of Kennedy, Ginsberg, Sotomayor, Kagan and Breyer (not to mention Roberts) could control the court.

Regards
Jack

A case is more than the name. It is really about the arguments presented. Both the judge of this case and the plaintiffs themselves acknowledge that this case is the same.

I think it is telling that you need some special makeup of the court in order to win. You seem to be implicitly acknowledging that your arguments are not going to win with the majority of the court. Why should we continue to make poor arguments that have demonstrably been shown to fail with the court?

dblas · Mar 4, 2021

jcutonilli said:
A case is more than the name. It is really about the arguments presented. Both the judge of this case and the plaintiffs themselves acknowledge that this case is the same.

I think it is telling that you need some special makeup of the court in order to win. You seem to be implicitly acknowledging that your arguments are not going to win with the majority of the court. Why should we continue to make poor arguments that have demonstrably been shown to fail with the court?

If you think you can do better then feel free to volunteer your services.

jcutonilli · Mar 4, 2021

wjackcooper said:
Wow!

Sharing your fears about what you perceive to be cogent arguments (or at least a short summary) with Paul Clement paul.clement@kirkland.com and Nicole Moss nmoss@ccooperKirk.com would likely be therapeutic.

Please be sure and copy us in.

Regards
Jack

I don't believe they care and are primarily responsive to their clients.

I have sent Clement several requests for permission to file an amicus brief. Not one of them have been answered. Every other lawyer I have contacted about permission to file an amicus brief has responded affirmatively. The general practice is to freely grant amicus briefs.

I have not contacted Moss, but I have tried to contact another of the firms attorneys and have not gotten a response.

jcutonilli · Mar 4, 2021

dblas said:
If you think you can do better then feel free to volunteer your services.

I have. Read my amicus briefs

DanGuy48 · Mar 4, 2021

Seagrave1963 said:
For those that use Amazon, SAF can be supported with each purchase through Amazon. Select Second Amendment Foundation in the Amazon Smile page on your account. Easy to do and automatic each purchase. As Amazon says: "Every little bit counts. When millions of supporters shop at AmazonSmile, charitable donations quickly add up."

Thanks for this info. I don’t like a lot about Amazon but if I can use them to help SAF, I can order things with a smile.

pcfixer · Mar 5, 2021

Judge closed case. https://www.courtlistener.com/docket/18705819/28/bianchi-v-frosh/

OMINIC BIANCHL, et al. *
Plaintiffs *
vs. * Civil Action No. JKB-20-3495
BRIAN E, FROSH, et al. *
Defendants *
dietok ink
ORDER

Plaintiffs brought this lawsuit against Defendants pursuant to 42 U.S.C. § 1983, alleging
deprivation of Plaintiffs’ rights under the Second and Fourteenth Amendments to the U.S.
Constitution. (See Compl. ff] 64-73, ECF No. 1.) Plaintiffs acknowledged in their Complaint that
Plaintiffs’ theory of liability is foreclosed by the Fourth Circuit’s opinion deciding Kolbe v. Hogan,
849 F.3d 114 (4th Cir. 2017) (id 75), and indeed, Plaintiffs’ suit seems to have no grounding in
law. Accordingly, this Court ordered Plaintiffs to show cause, why this case should not be
dismissed sua sponte for plain failure to state a claim upon which relief may be granted. (ECF
No. 26.) On February 19, 2021, in their response to the Court’s order to show cause, Plaintiffs
conceded that “this Court has no discretion but to dismiss Plaintiffs’ complaint.” (ECF No, 27 at
1 (internal citations and quotations omitted).) The Court agrees. See Eriline Co. S.A. v. Johnson,
440 F.3d 648, 655 n.10 (4th Cir, 2006).

Accordingly, it is hereby ORDERED:

1. Plaintiffs’ Complaint (ECF No. 1) is DISMISSED.

2. The Clerk is directed to CLOSE THIS CASE,
Case 1:20-cv-03495-JKB Document 28 Filed 03/04/21 Page 2 of 2

Dated this ” day of March, 202

jcutonilli · Mar 5, 2021

pcfixer said:
Judge closed case. https://www.courtlistener.com/docket/18705819/28/bianchi-v-frosh/

wjackcooper said:
Yep!

Bianchi is progressing precisely according to plan. The fact that Kolbe is controlling law in the 4th Circuit (where it is extremely unlikely to be reversed) is, for now, a positive factor in that it expedites the Bianchi appeal process. The simple objective is to get Bianchi out of the District Court and before the 4th Circuit Court of Appeals, then to the SC where (and while) five conservative Justices can (and maybe will) control the result.

Yay everything is progression precisely according to plan. There certainly is nothing in this order that the 4th Circuit will reverse because the plaintiffs conceded the case.

I am still confused as to why SCOTUS will take a case where the plaintiff conceded the case. Rogers did not do this in their case. https://casetext.com/case/thomas-r-rogers-assn-of-nj-rifle-pistol-clubs-inc-v-grewal

wjackcooper · Mar 7, 2021

jcutonilli said:
I have. Read my amicus briefs

Clement and Moss (for obvious reasons) may not be interested in gratuitous amicus briefs authored by other than those who are known to be well versed in Constitution Law. Examples would include: E. Volokh, D. Kopel, A. Gura, S. Halbrook, R. Barnett, I. Shapiro and W. Olson. All of these Lawyers (and more) may be participating in one, or both of these cases.

At any rate, the suggestion was that “haring your fears about what you perceive to be cogent arguments (or at least a short summary) with Paul Clement paul.clement@kirkland.com and Nicole Moss nmoss@ccooperKirk.com would likely be therapeutic.”

Again, please copy us in.

Regards
Jack

wjackcooper · Mar 7, 2021

jcutonilli said:
There certainly is nothing in this order that the 4th Circuit will reverse because the plaintiffs conceded the case.[/url]

Nope.

What was “conceded” was “this court” has “no discretion.” This stuff is not hard to understand.

Take a look at what Moss wrote, i.e., “[p]lantiffs acknowledge” that: (1) the “result” sought in Bianchi “is contrary to Kolbe “ (2) ” there is “no discretion but to dismiss” and then (3) asserted that Kolbe “should be overturned by a court competent to do so.”* Then look at what the Judge wrote, "Plaintiff’s conceded that this Court has no discretion but to dismiss Plaintiffs’ complaint.”** It is (or should be) obvious that “this court” (the District Court) is not the 4th Circuit Court of Appeals, or the Supreme Court.

The 4th Circuit Court of Appeals is a “court competent” to overrule Kolbe, but the realistic objective is a 5 to 4 overturn in the Supreme Court.** The case is simply being postured (by a very “competent” lawyer) to avoid controllable delays.

Yea!

Regards
Jack

*https://www.courtlistener.com/docket...anchi-v-frosh/ PLAINTIFFS’ RESPONSE TO THE COURT’S ORDER TO SHOW CAUSE
Page 1.
“Plaintiffs acknowledge that the result they seek is contrary to Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017) (en banc), and therefore that this Court “has ‘no discretion’ but to dismiss” Plaintiffs’ complaint. Eriline Co. S.A. v. Johnson, 440 F.3d 648, 655 n.10 (4th Cir. 2006). Nevertheless, Plaintiffs believe that precedent should be overturned by a court competent to do so.”

** https://www.courtlistener.com/docket/18705819/28/bianchi-v-frosh/

jcutonilli · Mar 7, 2021

wjackcooper said:
Clement and Moss (for obvious reasons) may not be interested in gratuitous amicus briefs authored by other than those who are known to be well versed in Constitution Law. Examples would include: E. Volokh, D. Kopel, A. Gura, S. Halbrook, R. Barnett, I. Shapiro and W. Olson. All of these Lawyers (and more) may be participating in one, or both of these cases.

At any rate, the suggestion was that “haring your fears about what you perceive to be cogent arguments (or at least a short summary) with Paul Clement paul.clement@kirkland.com and Nicole Moss nmoss@ccooperKirk.com would likely be therapeutic.”

Again, please copy us in.

Regards
Jack

As stated previously I don't believe that they will be responsive. My amicus briefs are a matter of the record. Feel free to send them an email an let us know the response, if any.

This case did not last long enough for any amici to respond.

SAF Issued file new law suit challenging common semiautomatic rifle ban

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