Woollard v. Sheridan: Cert Denied - see pg 14

I was quite surprised that Gura filed for en bancm as indications were he was going straight to SCOTUS. Then again, one of the fundamental errors of the court of appeal was, as Gura points out here, that the judgment arose on summary judgment. The rule on summary judgment is that disputed issues of fact cannot be resolved by the court; that is for the trier of fact. The judge can only resolve questions of law. Here, the court of appeal adopted one set of facts--the declarations of governmental employees--as meeting the State's burden of proof, even though contrary evidence was presented by Plaintiffs that demonstrated the falsity of the facts assumed by the government declarants. The CA swept aside the dispute in the evidence merely by concluding that it had no power to judge the legislative "facts"--even if they are wrong--only if the right magic phrases are invoked of a substantial governmental interest.
 
This is actually a quite smart move by Mr. Gura.

It keeps the Woollaed case alive at the CA4 while we wait to see if cert will be granted in Kachalsky. Should cert be granted, the CA4 will have no option but to put the en banc petition on hold pending a decision at the SCOTUS.

As an added bonus, because the case is technically still alive, it removes the CA4 decision from the table. Thereby making the split between CA7 and CA2 all the more real.

As esqappellate would say, "quite brilliant."
 
Anybody notice this possible error in the brief?
“[T]he government may not rely upon mere ‘anecdote and supposition.’” Carter, 669 F.3d at 418. Yet the panel cites the affiants’ guesswork to suggest what might happen if more guns were carried. The claim is made, without any further support, that fewer guns will be available for criminals to steal if more [sic] (should be fewer?) are carried. But each of these three law enforcement officials would doubtless admit that the vast majority of property theft in Maryland occurs in homes. A reasonable argument could be made, therefore, that guns would be better protected from criminals if carried rather than left unguarded at home. In any event, “The theft argument is paternalistic . . . there is no ‘thieves’ veto’” of constitutionally-protected activity.
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In the first bolded passage, Gura is talking about the state's claim (which I believe he misstates). In the second bolded passage he is making the point that the opposite argument is actually more plausible.
 
"This is actually a quite smart move by Mr. Gura.

It keeps the Woollaed case alive at the CA4 while we wait to see if cert will be granted in Kachalsky. Should cert be granted, the CA4 will have no option but to put the en banc petition on hold pending a decision at the SCOTUS.

As an added bonus, because the case is technically still alive, it removes the CA4 decision from the table. Thereby making the split between CA7 and CA2 all the more real.

As esqappellate would say, "quite brilliant." ""

Al, I couldn't agree more, it was a smart move and it exactly the right one with Kachalsky pending. The petition for rehearing operates to stay the mandate of the ca4 and a court of appeals operates only through its mandate in the case (which means there is no remand until it issues). I am betting that we get good news from the SCT on April 15. If so, the CA4 will likely hold Woollard until a decision in Kachalsky. In the meantime, the mandate is stayed. If the ca4 stubbornly denies rehearing anyhow, then Gura moves for a stay of mandate under Rule 41 and files a hold cert petition. Easy as pie.
 
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Ca7 & Ca2

I was under the impression that these rulings weren't true splits. Could this hinder a much needed positive ruling for carry?
 
In the Moore opinion Posner says:

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 this case, like Heller and McDonald is just about self-defense.

'The Supreme Court has decided that the amendment confers a right to bear arms for self-defense, which is as important outside the home as inside.
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How can that logically coexist with "May Issue" and "Good Cause" ???

An American wishing to exercise the right to exist, the right of self-preservation must be prescient and apply to the state for permission to exercise that right at the appointed time to prevent their own death? And after the threat is ended, they relinquish that right again?

It's obviously not practicable.

The other argument would be that only Americans with definate knowledge of a threat to their person have the right of self-defense. Americans who are attacked and killed with no warning and no way of anticipating the threat - don't have the right of self-defense.

How is there not a split?
 
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There is a split in reasoning for sure. For there to be an actual split in holdings, the two statutes would have to be indistinguishable in principle. A recent split in actual holdings is what the Court looks for, not a split in reasoning. And it is at least arguable that a may issue good cause requirement that allows some to carry, in theory at least, is not the same statute as a complete ban. Gura argues, persuasively I think, that there is no real difference for purposes of the 2A. The Court might agree. I will go out on a limb here and predict that the court will grant cert. There does NOT have to be a split -- they grant or deny whatever they want, regardless. The issue is certainly important enough!
 
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http://www.foxnews.com/politics/2013/04/12/high-court-weighs-taking-up-new-case-on-gun-rights/

Another factor that often influences the justices' decision to take up a case is when lower courts come to different conclusions about the law's meaning. Gura's clients and New York Attorney General Eric Schneiderman, defending the law, disagree about whether there is a split among federal appeals courts.

Gura said the Illinois ruling "brings this split into sharp relief at the federal appellate level."

But Schneiderman said the decision in Illinois stressed the unique nature of the state law that was struck down and contrasted that law with the statutes in New York and elsewhere that give officials wide discretion in deciding whether to grant permits to carry guns in public.
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I guess Schneiderman is arguing that there is no split because Moore deals with a "unique" outright ban in Illinois while the situation in New York is completely different. Kachalski and Moore are Apples and Oranges - no relation, no split.

Gura says that a split exists between CA2 and CA7 in that CA2 says that "the Second Amendment has no practical impact beyond the threshold of one’s home." While "In contrast, the Seventh Circuit has now twice invalidated restrictions on Second Amendment rights outside the home. That court asserts that the right is equally important outside the home as inside, and has declared that regardless of location"
 
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Gura did an admirable job in his reply shredding the state's argument that there is no split, that the distinction made is meaningless, as both laws deny the right to bear arms outside the home, one entirely and the other with complete administrative discretion.
 
Yes, BigBird. This particular case is toast.

ETA: Gura will file for cert. But if the treatment of Kachalsky is any indication, cert will not be granted here, either.
 
Text of order denying rehearing en banc:


"The petition for rehearing en banc was circulated to the full court. No judge requested a poll under Fed. R. App. P. 35. The court denies the petition for rehearing en banc.
For the Court
/s/ Patricia S. Connor, Clerk"
 
This case(Woollard) is certainly not dead, but Kachalsky is dead. Woollard now has 90 days(or longer if Gura asks for an extension) to file for cert. He should stall as long as possible to give Peruta/Richards and Muller an opportunity to be decided. One of those goes our way, then Woollard has a great shot.
 
As I remarked in the 2A Cases Thread, Woolard has filed for cert.

I had forgotten that Alan Gura was traveling abroad, when I emailed him for a copy of the petition, but he contacted the MD attorney, Cary Hansel, who forwarded a copy. We have yet to know who the amici are that wish to file, but I'm sure that with Mr. Hansel's help, we can receive copies of those files, when they are filed.

The first 52 pages of the PDF are the petition with the remaining pages being the prior opinions and other errata.
 

Attachments

From a non-legal POV, the petition really seems to be geared to...irritate? poke? provoke a response from? SCOTUS.

This sounds like my niece tattling on my nephew to their mother:

8 The lower court employed the term “Heller right” five
times. See App. 16a, 21a, 23a n.5, 24a & n.5; cf. McDonald, 130
S. Ct. at 3103 & 3115 (Stevens, J., dissenting). But Heller
created no rights. Petitioners assert a fundamental right
codified in the Second Amendment.
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I'm worried about the inclusion of the abortion comparison / contrast. It's yet another very divisive issue, and I don't know if it helps prod the Court into granting cert. I'm sure Gura has an infinitely better insight into the Court's psychological makeup than I ever will, so I imagine it's the Right Choice, but from the outside, it sure seems to be playing with fire.

Or maybe this is a commonly-done thing and I'm just unaware? Can anyone speak to this?
 
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