En Banc Decision In Tyler

[esqappellate]

A win, of sorts.

 

[Not_an_outlaw]

Boggs - Says strict scrutiny.
Batchelder - Should not use interest balancing (I think)
Hellerstedt - dissent but supports second
Sutton - its not a scrutiny. He either is or is not mentally defective

I need to read Greeno!

 

[krucam]

Very good it seems. The adjudication of mental illness from decades ago following a divorce shouldn't be a lifelong prohibitor.

 

[danb]

If I count correctly, it was 10-6. Some of those 10 people would have gone farther and wanted to overturn prior circuit precedent or apply strict scrutiny.

 

[esqappellate]

If I count correctly, it was 10-6. Some of those 10 people would have gone farther and wanted to overturn prior circuit precedent or apply strict scrutiny.

That's right. The government's first position was that the Second Amendment didn't apply at all to plaintiff's claim, viz that Section 922 disqualification was not open to an "as applied" challenge. The gov's fall back was that if review is permitted, then it should only be intermediate scrutiny. The panel held that strict scrutiny applied. The en banc court held that an as-applied challenge is permitted but applied intermediate scrutiny. So the gov. won that much on rehearing en banc but they still lost on their argument that the 2A didn't apply at all. A half loaf for both sides. Still, for this individual plaintiff, it is likely he will succeed on his as-applied challenge and get his rights back. That will be determined on remand. But even that much is not clear. As the lead opinion states:
"As we see it, the government may justify § 922(g)(4) in one of two ways: (1) with additional evidence explaining the necessity of § 922(g)(4)’s lifetime ban or (2) with evidence showing that § 922(g)(4) is constitutional as applied to Tyler because he would be a risk to himself or others were he allowed to possess a firearm."

 

[wolfwood]

how do you cite this opinion since it just came out?

 

[esqappellate]

how do you cite this opinion since it just came out?

As a slip op. Name, docket number and date and (en banc), e.g., Tyler v. HILLSDALE COUNTY SHERIFF’S DEPARTMENT, ___ F.3d ___ No. 13-1876 (6th Cir. Sept. 15, 2016) (en banc). If you use a pin cite to a particular page, it would be Slip op. at _

 

[wolfwood]

thanks I've got a DV case this is going into

 

[danb]

Seems like this is a lot more than a half a loaf. The ability to get your rights back on a case by case basis might be as good as it gets for non violent felons and the mentally ill. Plus, for law abiding citizens, it would set the bar a lot higher on .gov burden of proof. It is intermediate scrutiny, but the kind where .gov actually has an evidenciary burden (not the "because guns" rational basis flavor of intermediate scrutiny).

I can even see some liberal Supreme Court justices going along with this too.

 

[Not_an_outlaw]

Does anyone think this may help those who have a BS disqualifying crime 30 years ago be able to purchase? How can the government show that after 30 years of not having as much as a speeding ticket continue be disqualified for a bar fight at 21?

 

[Brooklyn]

Interesting... A win under IS...

A proper application of IS will likely end the liberal gun control agenda.. and also allow the court to play both ends of the argument..

Pure politics .... We will win much more than we lose under IS..

 

[teratos]

Will this affect Kolbe?

 

[esqappellate]

Will this affect Kolbe?

Nope, not likely.

 

[press1280]

Does anyone think this may help those who have a BS disqualifying crime 30 years ago be able to purchase? How can the government show that after 30 years of not having as much as a speeding ticket continue be disqualified for a bar fight at 21?

Folks in the 6th Circuit will be helped. Other circuits, maybe, maybe not. The 4th Circuit rejected the challenge of that one guy who was prohibited of a fight four decades old.

 

[press1280]

This case just underscores the amount of confusion in the lower courts. Just look at how all over the place these judges are.

What's also sad is several judges here thought the government had proven it's case and Tyler should be forever denied his 2A right. Very frightening. Fortunately the 6th Circuit is one of the better Circuits right now. If this was CA2 he'd be screwed.

 

[esqappellate]

Folks in the 6th Circuit will be helped. Other circuits, maybe, maybe not. The 4th Circuit rejected the challenge of that one guy who was prohibited of a fight four decades old.

I think that was actually the D.C. Circuit in Schrader v. Holder, 704 F.3d 980, 986 (D.C. Cir. 2013).

 

[press1280]

I think that was actually the D.C. Circuit in Schrader v. Holder, 704 F.3d 980, 986 (D.C. Cir. 2013).

Thanks, I was trying to remember the case.

 

[GlocksAndPatriots]

This case just underscores the amount of confusion in the lower courts. Just look at how all over the place these judges are.

What's also sad is several judges here thought the government had proven it's case and Tyler should be forever denied his 2A right. Very frightening. Fortunately the 6th Circuit is one of the better Circuits right now. If this was CA2 he'd be screwed.

Ultimately, the blame all rests at the Supreme Court's door. Whether Scalia wrote the opinion with confusing references to "presumptive lawfulness" or whether he left out a standard of review intentionally or to get a 5th vote, the decision was ambiguous enough as it is. And then even more so, SCOTUS deserves blame for denying cert and allowing obviously bad Circuit Court decisions to stand. And the Republicans in Congress deserve blame as well.

 

[bunnybunny]

When we will know if the government is petitioning SOCTUS for cert?

 

[esqappellate]

When we will know if the government is petitioning SOCTUS for cert?

When they do. Or ask for an extension to do so