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

danb · Sep 6, 2018

jcutonilli said:
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.

"Public safety" is not the appropriate grounds for debating restricting a right. Every right can be restricted in the name of public safety. I have no doubt we would all be safer if the police could search your house at any time for no reason, or judges could compel people to testify against themselves (else we assume they are guilty of the worst offense). The recidivism rate for inmates is over 50% so lets just keep people in jail forever for small offenses. Heck, lets just execute them and be done with it. Especially the morons who post hateful bigoted ideas on Twitter. Execute the Twitter Nazis first and the antifa next.

In short, I dont give a crap about the "evidence" for public safety and nor should you. Not even if you have a double blind controlled randomized trial where some people get guns and some dont, and show the impact on public safety with a p value of 1%. Which you dont, by the way, have that study. And if you dont even know what I just said there, you are not qualified to assess the evidence either. Which would be most judges and lawyers. The "evidence" for public safety is purely based on correlation, not science, and we all know correlation is not causation. So, the correlative "evidence" can in truth be read either way.

Sounds like you think I dont get it, but also SAF, David Kopel, CATO, and a bunch of legal scholars. Write your own amicus brief. My money is on Kopel and SAF, not random internet opinion. They have a good track record. But I could be wrong, so I encourage you to write one.

jcutonilli · Sep 6, 2018

whistlersmother said:
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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The interest in individual is more about individual safety than individual rights. (e.g https://en.wikipedia.org/wiki/Town_of_Castle_Rock_v._Gonzales)

You can get infringements on 1A, 4A, and 5A based on public safety. A Terry stop https://en.wikipedia.org/wiki/Terry_stop is an example where the 4A is infinged based on the governments safety. Korematsu https://en.wikipedia.org/wiki/Korematsu_v._United_States is a 1A case. I believe the 2A cases are all modern day Korematsu's (public safety at any cost)

jcutonilli · Sep 6, 2018

danb said:
"Public safety" is not the appropriate grounds for debating restricting a right. Every right can be restricted in the name of public safety. I have no doubt we would all be safer if the police could search your house at any time for no reason, or judges could compel people to testify against themselves (else we assume they are guilty of the worst offense). The recidivism rate for inmates is over 50% so lets just keep people in jail forever for small offenses. Heck, lets just execute them and be done with it. Especially the morons who post hateful bigoted ideas on Twitter. Execute the Twitter Nazis first and the antifa next.

In short, I dont give a crap about the "evidence" for public safety and nor should you. Not even if you have a double blind controlled randomized trial where some people get guns and some dont, and show the impact on public safety with a p value of 1%. Which you dont, by the way, have that study. And if you dont even know what I just said there, you are not qualified to assess the evidence either. Which would be most judges and lawyers. The "evidence" for public safety is purely based on correlation, not science, and we all know correlation is not causation. So, the correlative "evidence" can in truth be read either way.

Sounds like you think I dont get it, but also SAF, David Kopel, CATO, and a bunch of legal scholars. Write your own amicus brief. My money is on Kopel and SAF, not random internet opinion. They have a good track record. But I could be wrong, so I encourage you to write one.

Maybe you don't understand what public safety is. It definitely gets thrown around without much explanation.

I believe that I am a member of the public given that is what the public is. My individual safety (self-defense) is a negligible part of public safety because I am a negligible part of the public. If I look at everyone's individual safety (self-defense) I get public safety. I am unsure why you think you need some kind of correlation, it seems to be a definition thing.

It is not my opinion that matters. It is the courts opinion that matters. There are a huge number of cases that have been lost on the grounds that public safety trumps self defense. SAF, CATO, and numerous other legal scholars have been part of those cases and have lost. A fool and his money are soon parted.

whistlersmother · Sep 6, 2018

jcutonilli said:
The interest in individual is more about individual safety than individual rights. (e.g https://en.wikipedia.org/wiki/Town_of_Castle_Rock_v._Gonzales)

You can get infringements on 1A, 4A, and 5A based on public safety. A Terry stop https://en.wikipedia.org/wiki/Terry_stop is an example where the 4A is infinged based on the governments safety. Korematsu https://en.wikipedia.org/wiki/Korematsu_v._United_States is a 1A case. I believe the 2A cases are all modern day Korematsu's (public safety at any cost)

Again, if this is so, then the 4A must be completely infringed since it's in the public's safety that the government should be able to search anyone for anything for illegal items that affect that safety.

Likewise for the 5A. It's for public's safety that suspects must be compelled to admit their guilt - it gets a dangerous person out of public.

Indeed, if the BoR is about public safety, then why have it at all since most of the BoR directly conflicts with public safety.

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jcutonilli · Sep 6, 2018

whistlersmother said:
Again, if this is so, then the 4A must be completely infringed since it's in the public's safety that the government should be able to search anyone for anything for illegal items that affect that safety.

Likewise for the 5A. It's for public's safety that suspects must be compelled to admit their guilt - it gets a dangerous person out of public.

Indeed, if the BoR is about public safety, then why have it at all since most of the BoR directly conflicts with public safety.

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I have never said that the Bill of Rights is about public safety. It is very clearly about rights. It is the court that has interpreted these rights to have some limitations (i.e. not unlimited). Public safety tends to be a reason the courts have used to limit your rights. They have not used public safety in the way you have stated. I would guess that it is because public safety is only indirectly related for the cases you have stated.

danb · Sep 6, 2018

jcutonilli said:
Maybe you don't understand what public safety is. It definitely gets thrown around without much explanation.

I believe that I am a member of the public given that is what the public is. My individual safety (self-defense) is a negligible part of public safety because I am a negligible part of the public. If I look at everyone's individual safety (self-defense) I get public safety. I am unsure why you think you need some kind of correlation, it seems to be a definition thing.

It is not my opinion that matters. It is the courts opinion that matters. There are a huge number of cases that have been lost on the grounds that public safety trumps self defense. SAF, CATO, and numerous other legal scholars have been part of those cases and have lost. A fool and his money are soon parted.

"Public safety" has not beem defined that way since at least Ben "Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety" Franklin.

And even if it was, Guns or dogs do not prevent all crime. Your average predator, being lazy, will seek an easier target. However you are still not safe from your averge psychotic meth addict that does not care enough about their own life. You may, or may not, be able to get your gun unholstered in time in that case.

Vast majority of appeals are not even granted. Again, if you are so sure of your argument file your own amicus brief.

motorcoachdoug · Sep 7, 2018

A question I have if the state wins at 1CA and no En Banc or En Banc is denied and cert is granted at SCOTUS, does 1ca want to take the chance be slapped down like the MA highest court was in CAETANO vs MA over the stun gun???

GlocksAndPatriots · Sep 7, 2018

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.

Exactly. That jcutonilli insists that we could have won these cases had they been argued differently is deluding himself.

Allen65 · Sep 7, 2018

The outcome of NYSRPA vs NY in the thread here:
https://www.mdshooters.com/showthread.php?t=220711
backs up what Danb is saying. That court wouldn't have decided against NY no matter what evidence or arguments were presented. NY's attorneys probably didn't even need to show up to present a defense, the level of the court's deference to NY was so extreme.

jcutonilli · Sep 7, 2018

motorcoachdoug said:
A question I have if the state wins at 1CA and no En Banc or En Banc is denied and cert is granted at SCOTUS, does 1ca want to take the chance be slapped down like the MA highest court was in CAETANO vs MA over the stun gun???

If the state wins they will not petition for cert. If the plaintiffs loose and cert is granted the state has no choice.

If they plaintiffs win they will not petition for cert. It is unclear if the state will petition for cert in that case. DC did not in Wren. I would guess it would depend on what exactly is said.

jcutonilli · Sep 7, 2018

GlocksAndPatriots said:
Exactly. That jcutonilli insists that we could have won these cases had they been argued differently is deluding himself.

Allen65 said:
The outcome of NYSRPA vs NY in the thred here:
https://www.mdshooters.com/showthread.php?t=220711
backs up what Danb is saying. That court wouldn't have decided against NY no matter what evidence or arguments were presented. NY's attorneys probably didn't even need to show up to present a defense, the level of the court's deference to NY was so extreme.

Why don't you turn your guns in now. The result is apparently inevitable and there is nothing anyone can do according to you.

You are not going to know until you try. Apparently that is not something either of you are willing to do.

GlocksAndPatriots · Sep 7, 2018

jcutonilli said:
Why don't you turn your guns in now. The result is apparently inevitable and there is nothing anyone can do according to you.

You are not going to know until you try. Apparently that is not something either of you are willing to do.

I'm not turning in guns, and I'm willing to die for my beliefs (meaning I'm willing to fire at LEOs who unconstitutionally try to take our guns).

But I'm not going to waste time advocating court action among people determined to act in bad faith. Not until SCOTUS changes.

motorcoachdoug · Sep 7, 2018

jcutonilli said:
If the state wins they will not petition for cert. If the plaintiffs loose and cert is granted the state has no choice.

If they plaintiffs win they will not petition for cert. It is unclear if the state will petition for cert in that case. DC did not in Wren. I would guess it would depend on what exactly is said.

Yes i know that if the state are the plaintiffs and they win of course they would not ask for a En Banc or cert at all but if the defendants do lose I would skip the En Banc and write for a cert. Because if i feel the En Banc would rule for the state, to me it would not be worth asking for a En Banc unless my lawyer said we should ask otherwise I would go straight to cert. I have the feeling MA Supreme Court is still smarting from the smackdown by SCOTUS over the stun gun case.

jcutonilli · Sep 7, 2018

GlocksAndPatriots said:
I'm not turning in guns, and I'm willing to die for my beliefs (meaning I'm willing to fire at LEOs who unconstitutionally try to take our guns).

But I'm not going to waste time advocating court action among people determined to act in bad faith. Not until SCOTUS changes.

Does that mean you are going to fire on the courts because they are unconstitutionally trying to take our guns?

I am unsure how you can conclude that the courts are acting in bad faith given that the cases have been argued only one way.

jcutonilli · Sep 7, 2018

motorcoachdoug said:
Yes i know that if the state are the plaintiffs and they win of course they would not ask for a En Banc or cert at all but if the defendants do lose I would skip the En Banc and write for a cert. Because if i feel the En Banc would rule for the state, to me it would not be worth asking for a En Banc unless my lawyer said we should ask otherwise I would go straight to cert. I have the feeling MA Supreme Court is still smarting from the smackdown by SCOTUS over the stun gun case.

The plaintiffs are the side that initially brings the suit. In this case it is Worman et al. The defendants are the side that initially get sued. In this case it is the State et al

At the circuit court level, the side that appeals the decision (lower court loser) is called the Appellant, while the other side is called the Appellee. In this case the Appellant is the plaintiff Worman et al. The Appellee is the defendant State et al.

At the Supreme Court level the side that appeals the decision (circuit court decision) is the Petitioner, while the other side is the Respondent

You seem to be confusing the various terms. I would not predetermine the outcome. I would wait until the judgment came out and determine whether to initiate an en Banc based on what the various Judges opinions were. I saw a paper that indicated that you are more likely to get cert than you are to get an en Banc.

Additionally, this case is a federal case, the MA Supreme Court has nothing to do with it. The State would be the lawyers from the MA Attorney General's Office.

Bob A · Sep 7, 2018

What's to prevent you from filing an amicus brief based on your reasoning regarding public safety on an individual level?

(Obviously IANAL. Question asked in good faith.)

Allen65 · Sep 7, 2018

jcutonilli said:
Why don't you turn your guns in now. The result is apparently inevitable and there is nothing anyone can do according to you.

You are not going to know until you try. Apparently that is not something either of you are willing to do.

I never said I wasn't willing to try. But a 2A success for someone in 1CA can only come at SCOTUS level, so someone who raises a challenge needs to have a plan to persevere to that level.

GlocksAndPatriots · Sep 7, 2018

jcutonilli said:
Does that mean you are going to fire on the courts because they are unconstitutionally trying to take our guns?

I am unsure how you can conclude that the courts are acting in bad faith given that the cases have been argued only one way.

The courts aren't doing anything. They're just standing by and not doing their Constitutional duty.

jcutonilli · Sep 7, 2018

Bob A said:
What's to prevent you from filing an amicus brief based on your reasoning regarding public safety on an individual level?

(Obviously IANAL. Question asked in good faith.)

Primarily timing. Any amicus brief needs to be submitted within 7 days of the supporting parties brief, which has already passed for this case.

motorcoachdoug · Sep 8, 2018

jcutonilli said:
The plaintiffs are the side that initially brings the suit. In this case it is Worman et al. The defendants are the side that initially get sued. In this case it is the State et al

At the circuit court level, the side that appeals the decision (lower court loser) is called the Appellant, while the other side is called the Appellee. In this case the Appellant is the plaintiff Worman et al. The Appellee is the defendant State et al.

At the Supreme Court level the side that appeals the decision (circuit court decision) is the Petitioner, while the other side is the Respondent

You seem to be confusing the various terms. I would not predetermine the outcome. I would wait until the judgment came out and determine whether to initiate an en Banc based on what the various Judges opinions were. I saw a paper that indicated that you are more likely to get cert than you are to get an en Banc.

Additionally, this case is a federal case, the MA Supreme Court has nothing to do with it. The State would be the lawyers from the MA Attorney General's Office.

All true about it being a federal case but what are the odds that 1ca does not want to be smacked down by SCOTUS like the MA Supreme Court was by all the justices, and yes I did have ah senior moment about who was appealing the court decision but i do know the difference as well. Thank you anyway.

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

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