Decision in Kachalsky LOSS

[Brooklyn]

Denying cert does not equal upholding the ruling.

Hoist by my own petard .. . But still it anti good.

 

[fightinbluhen51]

This is what I'm hoping, but I'm hardly an expert.

I hope that it is simply a case of the "best plaintiff."

Heller was carefully chosen. So was McDonald. Perhaps Woollard fits this mold as well?

 

[annihilation-time]

Which IMLO leaves it facing the same outcome. If they didn't see a rationale for cert in Kachalsky, they won't see one in Woollard either. The two rulings are too similar to one another, again just IMLO, for one of them to offer a perspective in cert review that the other doesn't.

Maybe SCOTUS wants to expand on what Judge Legg said.

 

[JD-IAFF]

I hope that it is simply a case of the "best plaintiff."

Heller was carefully chosen. So was McDonald. Perhaps Woollard fits this mold as well?

I'm not seeing what's special about Raymond Woollard or his situation in comparison to Kachalsky & Nikolov.

Alan Kachalsky is an attorney in NY, well regarded professionally as far as I can ascertain. Nikolov is a director of some research company and a 1LT in the CAP. They're both upstanding citizens, and they made pretty much the same argument that Woollard did (or I should say that Gura made the same argument, almost boilerplate IMO, in both cases.)

That "best plaintiff" argument would have to boil down to substantial differences between NY's permitting scheme and MD's, and I have to be frank in saying that I don't see much of a difference between them from a legal standpoint.

I could be wrong due to my tendency to be conservative where SCOTUS is concerned, in which case you're all welcome to throw the pies , but deep down I see Woollard going the same route as Kachalsky.

 

[JD-IAFF]

Maybe SCOTUS wants to expand on what Judge Legg said.

Maybe we'll win the lottery and retire

 

[fightinbluhen51]

I'm not seeing what's special about Raymond Woollard or his situation in comparison to Kachalsky & Nikolov.

Alan Kachalsky is an attorney in NY, well regarded professionally as far as I can ascertain. Nikolov is a director of some research company and a 1LT in the CAP. They're both upstanding citizens, and they made pretty much the same argument that Woollard did (or I should say that Gura made the same argument, almost boilerplate IMO, in both cases.)

That "best plaintiff" argument would have to boil down to substantial differences between NY's permitting scheme and MD's, and I have to be frank in saying that I don't see much of a difference between them from a legal standpoint.

I could be wrong due to my tendency to be conservative where SCOTUS is concerned, in which case you're all welcome to throw the pies , but deep down I see Woollard going the same route as Kachalsky.

Unfortunately, I do as well.

The one thing that sticks out as significant though, Woollard had a permit; did these other gentleman have theirs?

 

[AliasNeo07]

Maybe we'll win the lottery and retire

Yep.

This really sucks.

 

[MJD438]

Posner gave IL 6 months to change their statute. I suspect that IL is waiting to see what happens with the others before deciding whether to move forward with pursuing cert or just change the statute.

I suspect that in the end they'll change the IL statute to something that closely resembles those in NY and MD. Doing so will arguably nullify the argument in Moore without IL essentially ceding anything in practice. It's the smarter move for them to make from a strategic standpoint.

They have until 23MAY2013 (90 days from denial of en banc) to file for cert in Moore, right? Does the 90 days mean calendar days, business days, or some other combination? IANAL, and I tried to read SCOTUS Rule 30, which seems to imply calendar days, as long as the final day does not land on a weekend or a holiday.

 

[JD-IAFF]

Unfortunately, I do as well.

The one thing that sticks out as significant though, Woollard had a permit; did these other gentleman have theirs?

To my knowledge, no. They both applied for permits, AFAICT, with the explicit purpose of being denied in order to establish standing to bring suit.

That said, the argument leads me back to the same place. Kachalsky and Nikolov (again, presuming that neither ever had a permit, which I can't substantiate) never had a good and substantial reason which satisfied NY's statute (in the judgment of the state). Woollard had such a reason at one time, but no longer does (again, in the judgment of the state).

They're both making essentially the same argument of "I shouldn't have to demonstrate a good and substantial reason to carry a gun. The state should have to demonstrate a good and substantial reason that I can't do so."

Which is what troubles me about the denial. If they don't see merit in that argument originating from NY, they arguably won't see merit in what is the same argument originating from MD.

 

[esqappellate]

To my knowledge, no. They both applied for permits, AFAICT, with the explicit purpose of being denied in order to establish standing to bring suit.

That said, the argument leads me back to the same place. Kachalsky and Nikolov (again, presuming that neither ever had a permit, which I can't substantiate) never had a good and substantial reason which satisfied NY's statute (in the judgment of the state). Woollard had such a reason at one time, but no longer does (again, in the judgment of the state).

They're both making essentially the same argument of "I shouldn't have to demonstrate a good and substantial reason to carry a gun. The state should have to demonstrate a good and substantial reason that I can't do so."

Which is what troubles me about the denial. If they don't see merit in that argument originating from NY, they arguably won't see merit in what is the same argument originating from MD.

I agree. I don't see cert getting granted in Woollard. Kachalsky and Woollard are indisguishable in principle. The best chance for cert now is Moore, if Illinois is dumb enough to ask for it. After that, perhaps the 9th or the 3d circuits will create a direct conflict by striking down a state carry statute. That would do it. I don't have high hopes at this stage.

 

[esqappellate]

They have until 23MAY2013 (90 days from denial of en banc) to file for cert in Moore, right? Does the 90 days mean calendar days, business days, or some other combination? IANAL, and I tried to read SCOTUS Rule 30, which seems to imply calendar days, as long as the final day does not land on a weekend or a holiday.

Calendar days.

 

[fightinbluhen51]

Dave Hardy weights in (very briefly).

http://armsandthelaw.com/archives/2013/04/cert_denied_in_1.php

 

[annihilation-time]

Maybe we'll win the lottery and retire

That'll be problem solved for me. I'll be moving south if I buy the winning ticket.

 

[MJD438]

I agree. I don't see cert getting granted in Woollard. Kachalsky and Woollard are indisguishable in principle. The best chance for cert now is Moore, if Illinois is dumb enough to ask for it. After that, perhaps the 9th or the 3d circuits will create a direct conflict by striking down a state carry statute. That would do it. I don't have high hopes at this stage.

So, because the SCOTUS is evidently bowing to political pressure (yes, I know that we do not have any direct information on that count, since the "conference" is secret by design), our inalienable rights guaranteed under 2A just had another nail added to the coffin...

 

[fightinbluhen51]

I agree. I don't see cert getting granted in Woollard. Kachalsky and Woollard are indisguishable in principle. The best chance for cert now is Moore, if Illinois is dumb enough to ask for it. After that, perhaps the 9th or the 3d circuits will create a direct conflict by striking down a state carry statute. That would do it. I don't have high hopes at this stage.

So this basically says, all rights end at your door step, or are subject to state rationing.

This is 1000x worse than any Roe v Wade decision (and I don't care to draw a straw and pick a side in that one as it's above my pay grade).

I guess the dream premonition I had last night was right.

 

[Inigoes]

I don't see cert getting granted in Woollard. Kachalsky and Woollard are indisguishable in principle. The best chance for cert now is Moore, if Illinois is dumb enough to ask for it. After that, perhaps the 9th or the 3d circuits will create a direct conflict by striking down a state carry statute. That would do it. I don't have high hopes at this stage.

The difference I see, that would make the Woolard case more palatable for the SCOTUS.

Woolard has already showed harm based the state's subjective/discretionary issuance, while Kachalsky would significantly rein in state's discretion.

The court wants to tread lightly on this new fundemental right, instead of using clear language for some reason.

 

[JD-IAFF]

They have until 23MAY2013 (90 days from denial of en banc) to file for cert in Moore, right? Does the 90 days mean calendar days, business days, or some other combination? IANAL, and I tried to read SCOTUS Rule 30, which seems to imply calendar days, as long as the final day does not land on a weekend or a holiday.

It's calendar days. The 90 day window gets extended to the following working day for the court if the 90 day mark falls on a weekend or a federal holiday, otherwise it's a dead set 90 days unless one of the justices agrees to extend the deadline, which they have the discretion to do for up to another 60 calendar days.

The rules can be confusing. Consult 28 USC § 2101 for further clarity. It's a tad easier to read.

 

[esqappellate]

So, because the SCOTUS is evidently bowing to political pressure (yes, I know that we do not have any direct information on that count, since the "conference" is secret by design), our inalienable rights guaranteed under 2A just had another nail added to the coffin...

We just don't know what the reasoning was. Maybe they are waiting for Moore. Or maybe waiting to see what happens in the 3d or 9th Circuits.

 

[esqappellate]

The difference I see, that would make the Woolard case more palatable for the SCOTUS.

Woolard has already showed harm based the state's subjective/discretionary issuance, while Kachalsky would significantly rein in state's discretion.
The court wants to tread lightly on this new fundemental right, instead of using clear language for some reason.

Honestly, I just don't see that making a bit of difference. Both cases would rein in discretion or bar its use by the State. I agree they want to tread lightly. The case for that is Moore.

 

[Inigoes]

Honestly, I just don't see that making a bit of difference. Both cases would rein in discretion or bar its use by the State. I agree they want to tread lightly. The case for that is Moore.

Perhaps

The other card could be the wait and see what happens with Woollard ala Black in the 4th

A lot of balls are flying in the air right now, with the outcomes being to numerous to contemplate.