Kachalsky v. Cacase - NY Carry - Cert Filed

Gary L. Griffiths said:
No right is absolute. Does a convict on death row have the right to keep and bear arms? If not, then the right isn't absolute. There are other restrictions that even most gun rights activists would agree are reasonable. To date, the SCOTUS has said only that the people have the absolute right to keep and bear arms in their homes, although they have hinted that the right isn't exclusive to the home. What "reasonable" restrictions are will be the subject of litigation until well into the second half of this century.
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The SCOTUS has done a lot more than "hint" that the RKBA extends beyond the home. ALL the arguments to the effect that the 2nd Amendment (as "ratified" by Heller) only applies within the home completely ignores the facts that (a) Heller spoke specifically to the home because that's the question that was asked, and (b) nowhere in the text of the 2nd Amendment is "in the home" mentioned or even implied.

But what this case is about (as well as the Maryland case) is not what "reasonable" regulations may be uniformly applied to the bearing of arms, but the prohibition of exercising a Constitutionally-guaranteed right for no clearly defined reason other than not being able to articulate a sufficiently scary-sounding immediate threat against your person.

As the key saying puts it, "One should not need a permission slip to exercise a fundamental right."
 
The good folks over at MD Shooters (thank you Esqappellate for buying the audios - yes, plural) have assembled the Kachalsky oral arguments into one MP3 file and this is being hoster by Maryland Shall Issue (MSI - the local on the ground org). It is available, here. The file runs at 36.3 MB (1 hr and 20 min), so it is probably best to right click the link and save to your own computer.

Folks, this is unprecedented, as the CA2 generally allows only 10 minutes per side. Here, Alan Gura presents his side for 40 solid minutes, before the State gets its turn and the panel still allows Gura some rebuttal time!

The panel is very well briefed (as can be seen by the amount of questions they "harass" Gura with). Oh, and he doesn't fall for the "in the Bar" thing that he got tongue-tied at the 7th with!
 
There were two distinct differences with regard to questioning.

When judges wanted to question Gura they used hypothetical situations and reducto ad absurdum questions. When the judges questioned the states attorney, they used facts and case law.

I found that to be most interesting of all.
 
If I may give my own observations and interpretations?

At oral arguments, judges more often than not question a plaintiff/appellant, who is challenging the constitutionality of a law (remembering that the law is presumed to be constitutional to begin with). Such questioning can seem brutal, but the judges are merely trying to get a grip on just how far the plaintiff/appellants theory extends.

If you really listen to what is happening, as soon as Gura answers on point, the judge(s) move to a new question. Why was Gura "grilled" so much more than the State? Because Gura has more to say to the panel than the State.

The very questions the judges asked, show several things. They are 2A novices. They wanted to get to the logical implications of Gura's theory. They wanted to see the policy implications. They were also very well versed in the briefings.

Gura possibly made the best point of all, when he talked about the 1A analogy and "prior restraint." If the judges didn't at first "get it," they certainly did when Gura used the "permission from the King," analogy - They used it against the State AG, later on.

Even though the NY AG used a TPM analogy as the constitutional reason for keeping the law intact, the judges didn't let him off the hook. It's rationing of a right and the AG was backed into a corner of his own making. That corner was first painted when the NY AG finally admitted that self-defense occurs outside the home.

It was obvious to me that certainly 1, perhaps 2 judges were leaning towards Gura's arguments. There was a lot of cross-talk between them.
 
After listening to it again, they did a pretty good job grilling the defense. They had him on the defensive a lot and he really sounded at a loss most of the time, like he couldn't believe they were actually questioning him.

It'll be interesting to see how this goes, since NJ has a similar law regarding CC.
 
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The decision of the district court is affirmed.

Kachalsky et al. v. Cty. of Westchester et al.

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 2 pages of writing on why they will not address 2A concerns by importing certain 1A standards. This, despite the fact that the CA4 and CA3 (and even another CA2 panel - US v. DeCastro) did import some of that reasoning.

The core of the right, as seen by this CA2 panel, is "in the home." Anything else deserves 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 which the law stands.
 
Not the exact same issues but I feel better about Moore/Shepard

An older lady who went through training and was licensed to carry in other states and who would have been armed except for Illinois' outright ban - who was brutally beaten in a church...

That's a pretty good case.

Moore is a corrections officer IIRC and at one time did carry on the job, but switched from being a state employee to a private security contractor employee - something like that. That's a pretty good case too - at least to point out the arbitrary nature of the Illinois law.

Wouldn't it make sense for SAF to wait to hear what the 7th says before deciding what to do with Kachalsky?
 
This decision will have little to no affect on the IL cases.

It will have great effect on both Woollard and Piszczatoski.

The MD AG didn't waste anytime. They have filed a 28J letter citing to Kachalsky.
 

Attachments

I see hope for Moore in Kachalsky

Even if we believed that we should look solely to this highly ambiguous history and tradition to determine the meaning of the Amendment, we would find that the cited sources do not directly address the specific question before us: Can New York limit handgun licenses to those demonstrating a special need for self-protection? Unlike the cases and statutes discussed above, New York’s proper cause requirement does not operate as a complete ban on the possession of handguns in public.
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What they have in Illinois DOES operate as a complete ban on the possession of handguns in public. I think when Karl Trieble tried
to intimate that the law didn't, Judge Posner rejected that - I'm referring to the 4 corners of the house argument, which Posner replied something like - "if you live in an apartment - you don't have any land"

I know Judge Posner isn't beholden to other circuit court judges but my reasoning is this - if the judges in Kachalsky could see that an ourtright ban on public carrying is unconstitutional, then the Judges at the 7th circuit must certainly see that also. And if Judges Katzmann, Wesley and Lynch consider the proper cause exception in NY to cause NY's law to not be a complete ban on the possession of handguns in public, then IL, which has no proper cause provision must therefore have in existance a complete ban on the possession of handguns in public which is unconstitutional.

Judge Williams talked about it in her example of a woman being stalked, and having to to disarm herself when going to and from work, and the stalker of course knowing that under Illinois law she would be vulnerable during that time...

Trieble replied "It's a difficult policy choice that the legislature has made..."

Posner interupts "Sounds pretty easy, other states do make an exception for people who have a protective order..."
 
I listened to the orals from Moore again...

It's actually amazing how many times the judges used the word "ban" in referring to Illinois UUW law.

They didn't call it Illinois regulation - they referred to it as a ban.
 
So let's explore what Gura can do, at this moment.

  1. Ask for reconsideration of the panel.
  2. Ask for an en banc hearing.
  3. Petition the SCOTUS for a grant of certiorari.
The first two items are generally done together in a single motion (per esqappellate, a retired appellate attorney over at MDShooters). IIRC, there is a 14 day time limit to file the motion. Considering that the CA2 very seldom accepts motions for en banc hearings, this would be a long shot. If accepted, Alan Gura runs the risk of a negative ruling with a well written decision (as opposed to this piece of circular writing).

If Gura decides to seek a petition of cert, he can attempt to get it before the Court in this years session. Or, he can take his time (he has until Feb. 27, 2013 to file) to craft a very well written brief, with the goal towards next years court session (and an early Oct. 2013 hearing date).

Understand, there are risks in carrying this case further. Alan Gura will necessarily be weighing those risks. The State of New York will continue to quantify this case as a concealed carry case, as opposed to Gura's general right to carry. This will be an obstacle, as the lower courts have assumed the State is correct and relegated Gura's actual case to footnotes. This will be no small feat to turn this around, at this stage.

Should Gura go for cert, and it is granted, the Court will not simply GVR the case (as some have implied). The Court will have to reach the merits and give some guidance to the lower courts before any such remand can be made.

A more likely scenario (should cert be sought and granted) would be for the Court to decide if public carry is close enough to the core right of self-defense, that the State law should fall. That's not as easy as it might seem to us, on first blush.

I believe that Justice Thomas and Justice Alito would be on our side. C.J. Roberts and Justice Scalia would lean towards our side, but would have to be convinced.

Justice Kennedy however, would have to be coerced. Such coercion would necessarily entail Judge Posner (CA7 - Moore/Sheppard) issuing a well written decision in favor of the SAF/NRA. Gura holding back (in the hopes of a favorable CA7 decision) in filing for cert is a tactical response I believe he will make.

Judge Posner is very well respected in legal circles, even within the Supreme Court. A decision written by him (Posner) striking the IL law and stating that citizens must be allowed some manner of carry for self-defense, would go a long way towards turning the current case from one of concealed carry alone, back to allowable carry in some form. This would probably move Justice Kennedy over to our side.

Too, should a favorable decision be given at the CA7, and IL moves for cert, the odds for Kalchalsky would have just increased.

There are several other scenarios, depending upon what the CA4 and CA3 decide. So, at this point in time, the dynamics are pretty fluid.

With all that in mind, see: N.Y.'s Concealed Gun Licensing Scheme Is Upheld by Circuit
 
Excellent summary and analysis as usual, Al.

Gura holding back (in the hopes of a favorable CA7 decision) in filing for cert is a tactical response I believe he will make.
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Agreed. And even in the case of an unfavorable decision, he will have the opportunity to craft the cert request accordingly. Glad to hear he can wait if strategy so dictates.

If I correctly recall Posner's views on the matter, the idea that bearing is a home-bound right will get NO consideration from him. Since this case seems to rest on that error, it will have no persuasive authority with him. Here's to Posner doing the right thing. :)

For we who are vested in a good outcome: What drama, what nail biting! So much at stake.
 
In a rather sudden turn of events (Lisa Madigan filed for rehearing in the Moore/sheppard cases in the 7th circuit today), it appears that Alan Gura is not willing to wait and is attempting to force the issue.

Today, the SAF filed a petition for cert to the SCOTUS. The Kachalsky case still had about 50 days left on the clock to file. We could get a ruling on Woollard in that time as well as theoretically, Moore could very well also be decided.

Alan Gura is not waiting to see who else files first. He has taken the bull by the proverbial horns and s hoping for another case by the same Court that has ruled twice before in his favor (Heller and McDonald).

Should the Court grant cert, every single 2A case will come to a screeching halt.

Gene Hoffman, CalGuns Foundations is hosting the petition: http://www.hoffmang.com/firearms/kachalsky/Kachalsky-Cert-Petition-2013-01-08.pdf
 
There is a good chance that cert may be granted before the summer recess. If so, don't expect orals until the 2013 session this fall. Any decision would be after that... June 2014.
 
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