Decision in Kachalsky LOSS

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    Al Norris

    Spud Head
    Dec 1, 2010
    746
    Rupert, Idaho
    The CA2 panel did exactly what many of us thought. Although the suit was aimed at carry in public, as part and parcel of the right, the court looked only at concealed carry and concluded that the NY State law was a valid regulation. This, regardless of the fact that open carry is completely banned. The court sweeps past this with barely any regard at all.

    The court does spend a couple of pages of writing on why they will not address 2A concerns by importing certain 1A standards. Their reasoning is distorted, and distorts what the other circuits have actually said.

    The core of the right, as seen by this CA2 panel, is "in the home." Anything else deserves (much) less scrutiny. Here, the court couches its "reasonable regulation" in terms of intermediate scrutiny. This, like so many district court decisions is nothing more than rational basis (in a shiny new dress) in which the law stands.
     
    esqappellate

    esqappellate

    President, MSI
    Feb 12, 2012
    7,408
    jrosenberger said:
    Wouldn't it depend on how the court holds for protection of carry in public?



    If SCOTUS holds that public carry is part of the "core" of the 2A, this reasoning is wrong. I agree that such a holding wouldn't guarantee Kachalsky would go the other way, but wouldn't it be sufficient for a remand? (Assuming the timeline went that way.)
    Click to expand...

    I would agree that it would depend on how the SCT defined that core right. But I don't expect Moore to go that far as it is not necessary. The CA7 would merely hold that the 2A right extends outside the home and that thus a complete ban at issue in Illinois is not constitutional. They might opine that regulations of the right are open to Illinois and they might even cite Kachalsky for that proposition. Now, if Illinois were to be so foolish as to seek cert, it would all depend on what the SCT were to say in affirming a win in Moore. Color me doubtful that the Court will hold that there NO difference between the home and the public under the 2A. The Court has made that distinction as to other constitutional rights (see CA2 opinion at 30-31).

    In any event, we will need a CA7 decision very soon if it is to compete with this case on the SCT docket. Gura has some interesting decisions to make.
     
    esqappellate

    esqappellate

    President, MSI
    Feb 12, 2012
    7,408
    Al Norris said:
    The CA2 panel did exactly what many of us thought. Although the suit was aimed at carry in public, as part and parcel of the right, the court looked only at concealed carry and concluded that the NY State law was a valid regulation. This, regardless of the fact that open carry is completely banned. The court sweeps past this with barely any regard at all.

    The court does spend a couple of pages of writing on why they will not address 2A concerns by importing certain 1A standards. Their reasoning is distorted, and distorts what the other circuits have actually said.

    The core of the right, as seen by this CA2 panel, is "in the home." Anything else deserves (much) less scrutiny. Here, the court couches its "reasonable regulation" in terms of intermediate scrutiny. This, like so many district court decisions is nothing more than rational basis (in a shiny new dress) in which the law stands.
    Click to expand...

    I agree. It is basically a matter of the court saying that is permissible because they say it is. That is *always* a problem associated with different levels of "scrutiny" -- there are no bright lines so its always up to the judges.
     
    J

    jrosenberger

    Active Member
    Jan 19, 2011
    332
    NH
    esqappellate said:
    In any event, we will need a CA7 decision very soon if it is to compete with this case on the SCT docket. Gura has some interesting decisions to make.
    Click to expand...

    Beyond the obvious of petitioning for rehearing en banc and cert (after the inevitable denial of en banc) on the last possible day what else can he do about it?

    Thanks again for giving so freely of your time participating here. I question some of your statements not to suggest you're wrong (though there's a first time for everything;)), but primarily to clarify my own thinking.
     
    esqappellate

    esqappellate

    President, MSI
    Feb 12, 2012
    7,408
    jrosenberger said:
    Beyond the obvious of petitioning for rehearing en banc and cert (after the inevitable denial of en banc) on the last possible day what else can he do about it?

    Thanks again for giving so freely of your time participating here. I question some of your statements not to suggest you're wrong (though there's a first time for everything;)), but primarily to clarify my own thinking.
    Click to expand...

    Please don't hesitate to question -- I enjoy the exchange and I was wrong just last year (it was my 2d time -- gasp :D).

    Under SCT rules, a petitioner for cert has 90 days to file a petition from a final judgment. That time can run from the denial of rehearing (either panel or en banc) or from the original panel decision if rehearing is not sought. The Court will not grant an extension of time just to allow the petitioner more time to decide -- the extension request would have to say that they are definitely filing and then offer a *very* good reason for the request. Generally extension requests on an initial petition for cert. are discouraged and risky.

    So there isn't a lot of room to play here beyond seeking rehearing or not. I tend to doubt that ILL will seek cert with Kachalsky now decided -- they will just enact draconian carry restrictions and fight another day. So unless he seeks rehearing in the cA2, Gura can't wait to see if the State seeks cert in Moore, and even then, he would be still behind Moore, as ILL could seek rehearing too. If I were Gura, I would seriously consider forgoing rehearing in Kachalsky and filing a petition as soon as possible. With Kachalsky now decided, the odds are long that we will win in the ca3 or the ca4. So waiting for a circuit split may not be a good idea.
     
    Maverick0313

    Maverick0313

    Retired and loving it
    Jul 16, 2009
    9,183
    Bridgeville, DE
    esqappellate said:
    Please don't hesitate to question -- I enjoy the exchange and I was wrong just last year (it was my 2d time -- gasp :D).

    Under SCT rules, a petitioner for cert has 90 days to file a petition from a final judgment. That time can run from the denial of rehearing (either panel or en banc) or from the original panel decision if rehearing is not sought. The Court will not grant an extension of time just to allow the petitioner more time to decide -- the extension request would have to say that they are definitely filing and then offer a *very* good reason for the request. Generally extension requests on an initial petition for cert. are discouraged and risky.

    So there isn't a lot of room to play here beyond seeking rehearing or not. I tend to doubt that ILL will seek cert with Kachalsky now decided -- they will just enact draconian carry restrictions and fight another day. So unless he seeks rehearing in the cA2, Gura can't wait to see if the State seeks cert in Moore, and even then, he would be still behind Moore, as ILL could seek rehearing too. If I were Gura, I would seriously consider forgoing rehearing in Kachalsky and filing a petition as soon as possible. With Kachalsky now decided, the odds are long that we will win in the ca3 or the ca4. So waiting for a circuit split may not be a good idea.
    Click to expand...

    You are DA MAN. Thanks for clearing up some of this....:thumbsup:
     
    OnTarget

    OnTarget

    Ultimate Member
    Mar 29, 2009
    3,154
    WV
    One reason I've haven't joined in this thread discussions on this CCW subject:
    In my humble opinion, the courts rule on feelings rather than facts, plus the politics of the day. It's a waste of my time to hope for the best, which is rarely achieved.
    I'd rather frustrate myself elsewhere.
     
    Inigoes

    Inigoes

    Head'n for the hills
    MDS Supporter
    Dec 21, 2008
    49,555
    SoMD / West PA
    krucam said:
    Time for the Supreme Court to decide this "in the Home" question once and for all....



    They give Heller a fair reading, recognizing its limitations:


    Although we have two courts in this one upholding the Statute at question, I'd say the language in this one is begging for an answer from One First. Although we would rather take a winning case up, I don't see why this one wouldn't stand a decent chance of a successful Cert Petition by itself, no split and with an 0-2 record. It may be our only "shot" for this term.

    Peterson (CA10), Sheppard/Moore (CA7) and Woollard (CA4) opinions should be coming shortly and will certainly be aware of the Kachalsky ruling. An active appeal will change the tone favorably, if not substantially.



    There is a difference between "keep" vs "keep and bear"....
    Click to expand...

    Yes, it would be nice to see the CA4 uphold Judge Legg's decision forcing the SCOTUS to answer the question.
     
    MJD438

    MJD438

    Ultimate Member
    MDS Supporter
    Feb 28, 2012
    5,854
    Somewhere in MD
    Just hit WTOP radio broadcasting...they spun it as if the plaintiffs wanted application-less CCW but did play up the "justification" aspect of the NY state requirements.
     
    smokey

    smokey

    2A TEACHER
    Jan 31, 2008
    31,522
    I find a difficult challenge to be "law-abiding" in md. "A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed." This is simple for anyone with two eyes and half a brain to understand. It is plain language that needs no interpretation. When there is an unconstitutional law that conflicts this, it is an assault on my rationality and patriotism to be forced to follow that plainly unconstitutional law.

    As far as "in the home"...HOW DARE they think they can somehow ALLOW me to defend myself under my own roof. I will keep and bear arms in my house and defend my family, this will never change, regardless of what "law" is imposed on the people. The second amendment clearly extends beyond my roof, saying I somehow have legal protection to carry tools for defense under my own roof seems so absurdly redundant that it isn't worth mentioning. There's a lot of places in law that I'm infuriated at the blatant attacks on american liberty by our legislators, the 2A issues just happen to be the most obvious domestic terrorism by enemies of the state I see. /rant
     
    aquaman

    aquaman

    Ultimate Member
    Sep 21, 2008
    7,499
    Belcamp, MD
    It is simple to understand Smokey but there are people who don't like those words so they try to change the meaning or interpret them differently. So now we have to hope 5 people who wear robes decide we have a right we already know we have.
     
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