NJ Carry: Drake v. Filko (Muller v. Maenz)

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Yesterday, the 3rd Circuit ordered the parties to file supplemental briefs in regards both the Kachalsky (CA2) and Moore (CA7) decisions. Briefs can be no more than 10 double-spaced pages and must be filed no later than Monday, Jan. 28th.
 

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Just waded through the reply. One of my favorite parts was the discussion of the different level of review required when a law is a regulation vis a prohibition. A prohibition madates strict scrutiny, a regulation (time, place and manner) requires only intermediate scrutiny. It will be interesting to see what the 3rd does--will if follow NY and deny a challenge to "good cause" rquirements, or follow the 7th and conclude that there must be some form of carry allowed in order tocomply with constitutional mandates. The fifference between the two cases, though, is that Illinois bans concealed carry entirely, while NY, as Md and NJ, only make it nearly impossible to carry because of the discretion granted public officials. With all the Sandy Hook broohaha and the recent NY firearms ban, I think a bunch of courts that might be inclined to follow Woolard or Moore are having second thoughts. (One thng I always hated about Con Law was that it always seemed to me more political and result driven than, despite the lip service, driven by logic.) Then again, a grant of cert in Kachalsky will put all of these cases on hold for at least another year.

Good brief. I think Jensen probably did write as it lacks some of the fire Gura is known for.
 
The case that may be the tipping point is, Woollard.

Should the CA4 reach a favorable (for us) decision, despite what the CA2 decided, despite Sandy Hook, then we will most likely see a cert grant in Kachalksy.

The CA3 judges are not stupid. They know all of this. Their choices are to side with the badly worded and decided decision in the CA2, or to go with the decision by CA7 Judge Posner and that of the district court by Judge Legg (remembering that 2 other cases in the CA4 were also decided in favor of the right to carry, at about the same time as Woollard).

The CA3 panel could conceivably render a decision before the cert stage is over in Kachalsky. This could be an indicator to the SCOTUS.

Likely scenario at this point in time is for both the CA4 and the CA3 to hold their decisions until after a grant or denial of cert in Kachalsky.

ETA: Both David Jensen and David Sigale are understudies to Alan Gura.
 
I don't knoe the rules on petitions for cert. How long does the SCOTUS have to decide whether to grant? (In my state appellate syustem, there are mandatory and jurisdictional time frames, but I don't think the feds have them.)
 
Pursuant to the CA3 request for a supplemental briefing on the decisions in Kachalsky and the decision in Moore, Alan Gura and New Jersey both filed their respective briefs.

In eleven double-spaced pages, Alan Gura lays out exactly why the ca2 decision was wrong and why the CA7 decision was correct. This is a very compelling brief.

Whatever activity may lie at the Second Amendment’s core, “the interest in self-protection is as great outside as inside the home.” Id. “To confine the right to be armed to the home is to divorce the Second Amendment from the right of self-defense described in Heller and McDonald.” Id. at 12. Accordingly, the Seventh Circuit expects that ordinary Chicagoans will soon be able to carry handguns for self-defense. Id. New Jersey’s denial of the right to bear arms for all but those with exceptional self-defense needs would not survive Moore.

Moore properly recognized that “degrees of scrutiny” are not always required, as indeed they were not in that case. Id. at *26-*27. Nor are they required here, where the State simply denies that bearing arms is a right. And while intermediate scrutiny might weigh “the curtailment of gun rights” of a narrow criminal class against state interests, justifying laws infringing “the gun rights of the [state’s] entire law-abiding adult population” requires “a stronger showing.” Id. at *21.

CONCLUSION​

Kachalsky largely discards history, text and precedent. Moore provides the better example of the path forward.
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New Jersey, on the other hand, starts with false assumptions right out of the gate:

In Moore v. Madigan, the Seventh Circuit struck down a handgun licensing scheme from Illinois that operated as a complete prohibition on possession of a handgun in public. 2012 U.S. App. LEXIS 25264, at *21-22.
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There was no licensing scheme at all in IL. What was struck down was a pair of laws that forbade any public carry at all.

From that point, agrees completely with the decision in Kachalsky (of course) and twist the Moore decision, in carefully selected quotes, so that in appearance, Judge Posner agrees with New Jersey (and by inference, kachalsky).

Like the above quote, this is also a misleading argument. Judge Posner took the kachalsky panel to task over their shoddy decision.
 

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^^ Excellent reading, and as usual thanks for your diligence in posting the PDF files.


BTW, I know that I read the files, and the count of "viewed" still reads zero. I would not put too much stock in the counter.



Willie

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I've only made it through the first 20 minutes, but that is some heavyweight discussion going on. I'm kind of sad they went "intermediate scrutiny" so quick and used it as a baseline...and the one judge's admiration of Kachalsky...

So, people who are more acquainted with oral arguments, what's your take?
 
Yep, that's a pretty good listen. Gura is good, and I think the state floundered pretty bad. Their only argument was that they feel it's not safe :rolleyes:

I'm not sure who the younger sounding judge is, but he really flustered the assistant DA. He nailed her on not allowing open carry, that Vermont has the least restrictive regulations and there aren't "blood in the streets" from gun owners. Even the older judge got into the act.

They even tried the "long standing law/tradition". She even brought up that even ENGLAND in colonial times banned concealed carry. The freaking people we waged WAR on because of their attempts to disarm us.

They really chewed up the DA, if we lose this one I'd be SHOCKED. :D

I feel that even the judges know this one is badly written. Just because it's been around awhile doesn't make it right.
 
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I think the first thing that should be noted is that Alan Gura was treated very deferentially. He was not interrupted very often and when he was, he was allowed to complete his thoughts. The same cannot be said of the States Attorney.

The older gentleman was Judge Aldisert (appointed by Pres. Johnson, in 1968. He is 94). If you paid attention, he was definitely in mind of handing the State the Kachalsky decision, lock stock and barrel.

The judge you heard the most from was, Judge Hardiman. He was prepared. He literally tore into the States Attorney. While she avoided the obvious traps, she floundered all the way through her argument. Note that she denies that the intention of the law was to limit guns on the street. Even after Hardiman stated, "it is inescapable."

You had to listen closely to hear Judge Stark. See the file at about 56 minutes, when he tries to corner the lady into admitting the State only recognizes, "in the home."

I think we can count on judge Aldisert to find for the State. Although judge Stark handed the NRA a defeat on 07-27-2012 (Doe v. Wilmington Housing Authority - #53 on the list), I can't really tell where he is at on this issue.

We can hope that Hardiman and Stark decide for us. Such a 2-1 decision would mean a definite circuit split and pretty much guarantee cert in Kachalsky. A defeat here would more than likely mean that the SCOTUS would deny cert.

So, while we are waiting on cert stage completion for Kalchalsky, we can now hope that either CA3 or CA4 (or both) decide in our favor, pushing the probability of a grant of cert in Kachalsky closer to 1.
 
Here's to hoping. I'm already getting my condo prepped for sale, because frankly spending an extra 15 or 20 minutes commuting in from PA would be worth it. If we could get some of these laws removed, and somehow fix New Jersey's permit system this wouldn't be such a bad place to live.

Frankly I can't see how any reasonable judge who understands and follows the constitution and recent supreme court rulings could find for the state in this case. The ONE thing I can see hurting us on this is that most people in NJ know that you aren't getting a concealed carry license, therefore they never bother applying. It would be much more compelling if 20,000 people applied and only 100 where issued in the last couple of years. However, I doubt that many have bothered trying in the last 10 years or more because it's a waste of time.
 
Their only argument was that they feel it's not safe
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Specifically, at the 51-minute mark in which the state's attorney states that "the 2nd amendment could result in people seriously being harmed."

Aldisert said that "the concept of 'justifiable need' is without standard" and seemed most concerned with her lack of preparation, and he gave her ten days to file a supplemental brief answering open questions. I got the impression the court was trying to be gracious in the face of what they saw as vast incompetence.
 
I got the impression the court was trying to be gracious in the face of what they saw as vast incompetence.
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This is part of the problem in NJ. The arrogant assumption that we have no rights except those which the state deigns to give us. They really can't seem to comprehend that they don't have carte blanche to do whatever they want, so they don't even bother preparing to defend these laws because they don't think they can be overturned. From the looks of things, they are set to move 24 new gun restriction bills out committee today to be voted on. These are thing like "In home inspections" before you can own a gun. All guns must be locked and unloaded even in the home, etc.
 
Aldisert said that "the concept of 'justifiable need' is without standard" and seemed most concerned with her lack of preparation, and he gave her ten days to file a supplemental brief answering open questions. I got the impression the court was trying to be gracious in the face of what they saw as vast incompetence.
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I took it as Aldisert trying to salvage her case for her. It was pretty clear from the outset that he'd planned to just parrot the Kachalsky decision but Gura's response to his question about Kachalsky made that harder to do without at least some creative straw grasping. I suspect that reason that Aldisert was to give her 10 days to find him some better straws. I'll be shocked if he doesn't find for the state but the other two just might possibly perhaps conceivably maybe rule in our favor. ;)
 
This is part of the problem in NJ. The arrogant assumption that we have no rights except those which the state deigns to give us.
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Go back and listen starting at the 50-minute mark. The judges seem to disagree. The court hammered the state's attorney pretty hard, and the judges' questions showed they'd done some research beforehand.

The attorney seemed unprepared to answer several key questions the judges seem concerned with, but giving her a chance to file a supplemental brief seems more a courtesy than an expectation of results.
 
Go back and listen starting at the 50-minute mark. The judges seem to disagree.
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It's what gives me hope. I was referring to the state and DA assumptions, not the judges (in case there was a misunderstanding who I was referring too).
 
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