SCOTUS Cert Filed: SAF and Gura: Lane v. Holder

[Al Norris]

Lane v. Holder, CA4:

02/08/2012 40 CASE TENTATIVELY CALENDARED for oral argument during the May 15 - 18, 2012 argument session. Notify Clerk's Office of any scheduling conflict by: 02/20/2012 [11-1847] (JLE)

03/29/2012 41 CASE CONTINUED FROM TENTATIVE CALENDAR TO AWAITING CALENDAR. [998821695] [11-1847] (JLC)

We were scheduled for orals, now we are not.

 

[Al Norris]

The Internet Archive is flumoxed. The 7-15 opening hearing transcript was made available some time ago. Nobody has wanted to pay to download it from PACER.

I've always been curious as to what happened... So I have it. If you read it, your understanding of the opening brief at appeal will be increased.

 

[KyJim]

I read the transcript. Very interesting. Gura never had a chance with this judge. The ruling based on standing is ludicrous. I had not read the opening brief so downloaded it. Unfortunately the pdf file is password protected.

 

[Davey]

This case has me a little confused.

I read the transcript and it seems like the problem is a lack of FFLs in DC as opposed to laws prohibiting the plaintiffs from buying firearms.

 

[Al Norris]

KyJim, where did you Dl the complaint from? Here is the original: http://www.archive.org/download/gov.uscourts.vaed.265997/gov.uscourts.vaed.265997.1.0.pdf Here is the first amended complaint: http://www.archive.org/download/gov.uscourts.vaed.265997/gov.uscourts.vaed.265997.8.0.pdf Here is the Docket (where all the public files reside): http://www.archive.org/download/gov.uscourts.vaed.265997/gov.uscourts.vaed.265997.docket.html

None of these files are PW protected.

Davey, DC has only one FFL because of the way that DC zones the city. A gun shop that actually has guns, is unlawful (another case on another day). The only active FFL in the city simply transfers the firearms from an out of state FFL to the prospective firearms owner. When he lost his prior lease (partly due to new zoning regulations and partly due to the owner of the building taking back the lease), the City had to pass emergency zoning law to enable this FFL to operate in the Municipal Police Dept!!

 

[maestro pistolero]

I must have missed this, because I can't believe it would have been left out of the pleadings:

The NICS is hooked up to the federal database, is it not? What is the point of engaging two FFLs in two transactions when one can effectively conduct the sale, the NICS and the transfer?

Since this technology is accessible to everyone now, (and notably didn't exist in it's present ubiquity when these interstate commerce in arms laws came into being) doesn't this requirement now fail even a rational basis test?

 

[gc70]

Since the District Judge dismissed the case for lack of standing, the "record" forwarded to the Circuit Court consisted of the briefs of the parties and the transcript of the dismissal hearing. Will that limited record help or hurt Gura in the appeal?

 

[Al Norris]

The appeal is about that dismissal for lack of standing. This, despite everything else that has been mentioned in the appellate briefs.

The CA4 only has to find standing, then send it back to the district court. Gura is hoping that they will also de novo review the injunction. That would be nice, but it isn't necessary to find that, to resolve the appeal.

 

[KyJim]

KyJim, where did you Dl the complaint from? Here is the original: http://www.archive.org/download/gov....265997.1.0.pdf Here is the first amended complaint: http://www.archive.org/download/gov....265997.8.0.pdf Here is the Docket (where all the public files reside): http://www.archive.org/download/gov....97.docket.html

None of these files are PW protected.

I've been a bit busy so just got back to this. The brief I was referring to is http://thefiringline.com/forums/attachment.php?attachmentid=74279&d=1317696638. I can read it now, however. I'm not sure what happened, either some Internet freakiness or some freakiness from my PC. Thanks.

 

[NatoRepublic]

Orals tentatively scheduled for 9/18-9/20

 

[Al Norris]

As NatoRepublic has reported, we're tentatively scheduled for orals. Again.

06/08/2012 43 CASE TENTATIVELY CALENDARED for oral argument during the 9/18/12 - 9/21/12 argument session. Notify Clerk's Office of any scheduling conflict by: 06/18/2012 [11-1847] (JLC)

Just before this, the appellee's filed a supplemental authority:

06/08/2012 42 SUPPLEMENTAL AUTHORITIES (FRAP 28(j)) by Appellee Eric H. Holder, Jr.. [998871493]. [11-1847] Anisha Dasgupta

The authority cites Nordyle and a criminal case from CA2, DeCastro. The cite misreads the CA2 decision. http://caselaw.findlaw.com/us-2nd-circuit/1602105.html

 

[KyJim]

The cite misreads the CA2 decision. http://caselaw.findlaw.com/us-2nd-circuit/1602105.html

I don't know. I read the case like the DOJ. See my post here: http://thefiringline.com/forums/showpost.php?p=5114199&postcount=43

 

[Al Norris]

This amounts to a double post (the same as I just posted in the Kachalksy thread):

A bit of a quote from the DeCastro decision:

The facial constitutionality of § 922(a)(3) is unimpaired by the risk that some state laws governing the sale of firearms may themselves be unconstitutional.

And the closing remarks by Chief Judge Dennis Jacobs:

Had Decastro opted to utilize the lawful means by which he could have acquired a handgun in New York and done so, § 922(a)(3) would have played no role in regulating that transaction. By the same token, § 922(a)(3) by its terms did not preclude Decastro from acquiring the handgun in question from the Florida dealer because all that the federal statute effected were minor limitations on the channels through which that handgun was to be shipped from Florida to New York. Even though acquisition is indeed often necessary to effectuate the Second Amendment right to keep and bear arms, any limitations on Decastro's acquisition were those occasioned by his own refusal to comply with New York State's requirements for possessing a handgun, and the federal statute, therefore, played no demonstrable role in precluding Decastro from purchasing a firearm in either state so as to exercise his Second Amendment right. For these reasons, § 922(a)(3), as applied, does not substantially burden Decastro's Second Amendment right to own a firearm in defense of his home and hearth. See District of Columbia v. Heller, 554 U.S. 570, 635, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008).

None of the above is the case with Lane.. The decision in this criminal case is not on point with the civil litigation at bar.

 

[Al Norris]

Busy time for Alan Gura at the 4th!

Orals in Lane have now been scheduled.

08/15/2012 48 CASE CALENDARED for oral argument. Date: 10/23/2012. Registration Time: 8:45 - 9:00. Daily Arguments Begin: 9:30. [11-1847] (JLC)

08/15/2012 49 ORAL ARGUMENT ACKNOWLEDGMENT by Appellants Michelle Lane, Second Amendment Foundation, inc., Amanda Welling and Matthew Welling. Counsel arguing: Alan Gura Opening argument time: 14 minutes Rebuttal argument time: 6 minutes [998916680] [11-1847] Alan Gura

08/15/2012 50 ORAL ARGUMENT ACKNOWLEDGMENT by Appellee W. Steven Flaherty. Counsel arguing: Earle Duncan Getchell, Jr. Answering argument time: To Be Determined [998916995] [11-1847] Earle Getchell

 

[Al Norris]

Orals for Lane are here: http://coop.ca4.uscourts.gov/OAarchive/mp3/11-1847-20121023.mp3

 

[maestro pistolero]

Just finished listening. Government attorney did well, but i don't know how she can escape the irrefutable logic that, in an age of instant background checks, and pre-authorized pistol purchases, there can be no rational basis or narrowly tailored government interest in making a consumer use an additional FFL in his or her own state. If one wishes to purchase a firearm for self-defense while 2,000 miles from home, the inability to do so regardless of the ready availability of qualifying background information from law enforcement is CLEARLY an injury that lacks justification.

Al, I look forward, as always to your analysis. Krucam, and Esquapellate (from Maryland Shooters) also provide fascinating insights. This case and Woolard (oral MP3 up tomorrow, IIRC) will provide ample fodder for the weekend reading/listening.

 

[Al Norris]

I'm going to hold off commenting on this, until after I listen to the arguments, one more time.

 

[k_dawg]

I see the issue as no different than restricting any other product protected by the Bill of Rights.

Could you imagine if a DC citizen could not purchase a newspaper in Virginia? Or, expect no due process in Virginia?

They are equally repugnant in a free society.

 

[Al Norris]

After reviewing the audio, I think it fair to say that this panel was quite aware of the implications of doing away with the handgun restrictions of § 922(b)(3).

This is evident, not only in the way in which Mr. Gura was questioned (which if taken alone - and out of context - appeared to be badgering), but also in the way that the Gov. was "attacked" by the same panel when it was their turn at bar.

Gura did a masterful job of defending his client in the face of questioning that called the alleged injury itself into question. He never backed down and rather forcefully told the panel it was wrong if it perceived any part of the injury to be caused by 3rd parties, as the court suggested.

Contrast that to the Governments position that the injury, if any, was in fact caused by 3rd parties, not present in the litigation, and not by the government itself (due to the law at issue). The Government further claimed that FFL couldn't possibly be held accountable for not knowing all the ins-and-outs of the various States handgun laws.

Gura rebutted this by bringing up the fact that rifle and shotgun transactions are held to the same standards as handgun transactions (the FFL must know the various laws in order to proceed with the transaction), barring the interstate ban on handgun transactions (the law being questioned).

Not much time was spent on the defense of the VA laws, and I believe that they will be dismissed.

The only real thing the court might hang it hat on, is the "public safety" aspect of "helping" the States with their own police power.

I find that Gura's arguments are persuasive (but then I'm biased), however if the decision is against Lane, this then is where it will reside.

 

[Johannes_Paulsen]

Best part ever is on or about 28:38. One of the justices asks: "What important purpose does the Federal law serve?"

The gov't attorney kills time with throat-clearing for a bit, then at about 29:09, she begins her answer which, basically is: This law is needed to enforce penalties against those who unknowingly or inadvertently make an honest mistake.