Woollard v. Sheridan: Cert Denied - see pg 14

MD AG Gansler has filed his reply brief: http://www.archive.org/download/gov.uscourts.mdd.180772/gov.uscourts.mdd.180772.70.0.pdf

First, the plaintiffs misread footnote #1, the State was just saying that the Judge had more options than an either/or option, as regards the stay.

Then, the State would be hugely inconvenienced if it had to track the permits and the 4th overturned the decision. (psst! MD has had this permitting system for 40 years, and they still can't track the permittees???)

They cite (once again) their own stats to prove that Gura's stats are false. (Gura provided the raw data which MD still doesn't do)

They cite the Moore decision as being correct and Judge Legg's decision as being an "outlier." (this is an attempt to "show" they will win at appeal)

Overall, there is a whole lot of ipse dixit (Assertion of fact without proof - a logical fallacy) going on in these 10 pages.

Now we wait to see if the State has presented enough of a case for Judge Legg to continue the stay.
 
Here's the latest docket entry from the 4th:

04/26/2012 13 MOTION by Appellants Marcus L. Brown, Denis Gallagher, Seymour Goldstein, Terrence Sheridan and Charles M. Thomas, Jr. to extend filing time for opening brief until June 15, 2012; and response brief until July 16, 2012. Date and method of service: 04/26/2012 ecf. [998841658] [12-1437] Matthew Fader

04/26/2012 14 MOTION by Appellants Marcus L. Brown, Denis Gallagher, Seymour Goldstein, Terrence Sheridan and Charles M. Thomas, Jr. to amend/correct caption. Date and method of service: 04/26/2012 ecf. [998841659] [12-1437] Matthew Fader

04/26/2012 15 DESIGNATION OF LEAD COUNSEL (Local Rule 12(b)) by Appellants Marcus L. Brown, Denis Gallagher, Seymour Goldstein, Terrence Sheridan and Charles M. Thomas, Jr.. Name of lead counsel: Matthew J. Fader. [12-1437] Matthew Fader

04/27/2012 16 ORDER filed [998841700] granting Motion to extend filing time [13], updating/ resuming briefing order deadlines. Opening brief and appendix due 06/15/2012. Response brief due 07/16/2012 Copies to all parties... [12-1437] (DSD)

04/30/2012 17 APPEARANCE OF COUNSEL (Local Rule 46(c)) by Cary J. Hansel, Esq. for Raymond Woollard.[998843222] [12-1437] Cary Hansel

04/30/2012 18 ORDER filed [998843313] granting Motion to amend/correct [14], updating case caption. Copies to all parties. [12-1437] (DL)

05/02/2012 19 DESIGNATION OF LEAD COUNSEL (Local Rule 12(b)) by Appellees Second Amendment Foundation, inc. and Raymond Woollard. Name of lead counsel: Alan Gura. [12-1437] Alan Gura
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A couple of notes. Doc #14 was to amend the caption of the case. The case is now, Raymond Woollard v. Denis Gallagher, case #12-1437 (the case # remains the same, only the case name has changed). #13 Motion by appellants was granted (#16), so this Friday (June 15th) will be the opening brief. This translates to the following:

June 15 - Opening brief by MD
July 16 - Response by Woollard (Gura/SAF)
July 30 - Reply by MD

We won't know the date for orals until sometime after the end of July. The 4th Circuit, like the 7th Circuit, does not announce which Judges are on the panel until the morning of argument. Currently, the earliest possible date for orals will be on or after Sept. 18th.

What is really interesting is that by the time orals for this case are scheduled, the 7th may have already rendered a decision in Moore/Shepard.

Why is this interesting?

Decisions in the 7th are generally given deference (great weight) by the other circuits. Because Judge Posner was running the panel in Moore/Shepard, we expect him to author the opinion. His opinions always carry weight. This will all work to our advantage, most especially if Judge Wilkinson is on the panel to hear Woollard.

For those that are tuning in late, Judge J. Harvie Wilkinson wrote a scathing article, roundly criticizing Justice Scalia, after the decision in Heller and also wrote part of the decision in Masciandaro, in which he repeated what the MD Supreme Court said in Williams: (paraphrasing) If the Supreme Court wants the RKBA to include outside the home, it will have to be more explicit.
 
The State's opening brief is out (attached).

Let's see if I can sumarize the arguments of the State:
  • The keeping and carrying of arms in the home is the only thing the 2A stands for. See Heller.
  • This case is about concealed carry and the Court in Heller expressly upheld such limitations to the right.
  • Public carry of firearms was heavily restricted from the 14th century onwards.
  • Heller never recognized a general right to carry.
  • Maryland's Compelling Interest in safeguarding the public and reducing handgun violence is enough to satisfy any reasonable scrutiny.
  • Law abiding citizens with guns would become criminals (guns can do this, ya' know?).
  • If the general public were allowed to carry in public, the streets would run red with blood.
Yup. That about summarizes the arguments.

Hmmm... Didn't we read all of this at District?
 

Attachments

Yup. That about summarizes the arguments.
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Let's hope they stick with that in front of the Supreme Court.

Heller said that the right to self defense was most acute in the home, but in no way limited the right to location.
 
It was pointed out (over at MDShooters) that 1) This is much the same argument used by IL in their briefs to the CA7 and 2) They are trying to rewrite the much documented history that the Heller Court used.

We heard how the panel in Moore dealt with that.
 
Too many courts are trying to claim that Heller only addressed possession in the home. In fact, the SCOTUS spoke primarily to "in the home" in Heller for the simple reason that the lawsuit was about possession in the home.

Once you get beyond that, any high school English teacher can tell you that a sentence reading "The right to keep and bear arms shall not be infringed" is talking about ONE right, not two. The gun grabbers love to paint the SCOTUS as "activist" when they support the RKBA, but they are silent when a truly activist lower court tries to divide what is clearly ONE right into two rights: (1) a right to "keep" arms (only in the home -- a word and concept not appearing in the 2nd Amendment at all); and (2) a separate right to "bear" arms.

That said, even if it were construed as two separate and independent rights, the 2nd Amendment still says they "shall not be infringed."

This attempt to split what is clearly and grammatically one right into two separate and apparently unrelated rights is nothing more nor less than lower courts thumbing their noses at the SCOTUS. And I am under the impression that more than a few of the nine justices of the SCOTUS become rather testy when they perceive that lower courts are thumbing their noses at them.
 
When Heller first came out I said its not going to be a slam dunk. Heller was pretty obvious in its ruling. It is a individual right. A person is entitled to defend themselves using a firearm and that there can be some regulation and that it should not be prohibitive in a person owning a firearm.

These are the same folks that said the Second Amendment did not mean what it said and are still in denial. They are going to have to be beat down by the judicial system and citizens voting till they are in submission. They will always be scheming to take away 2A rights because they don't beleive in individual rights to start with. They see the elite class and the government being the ultimate arbiter of rights and think that people are not smart enough to decide what is best for them.

An example of this was Ann Richards who was the governor of Texas. We the citizens of Texas approved a nonbinding resolution that asked for the right for concealed carry. Ann Richards had vetoed a previous bill for that. She vowed that no such law would pass while she was governor. So we kicked her out of office and sent her packing to do Doritos commercials for a candidate that said he would sign the bill if elected.

The job is not going to get done till the citizens come together and impose their will on the politicians. This is being done in states that are resistant to gun rights for individuals. So even with court decisions we must be vocal about our rights to the politicians and when they refuse to honor the law take them to court and vote them out.
 
To Maestro's post: I definitely wouldn't want to be that lawyer either, especially since they'll most likely be making it to the EXACT same Heller majority. It'll be fun to see them tell SCOTUS that they MEANT to make the right homebound. I can just see it now-Scalia(or Alito) telling the state's attorney,"I wrote that opinion and know that isn't what we said."

If we hear that the attorney might as well have a seat and give up the rest of his time. It'll only get worse.
 
Self Defense vs Recreation

Based on a cursory reading of the State's position they still view the RKBA as a permission, not a RIGHT, and only for recreational purposes. This is why MD "allows" transportion an unloaded firearms, locked & secured in one's vehicle, to places like gunshops & ranges. This has NOTHING to do with Self Defense.

Let us remember, in both Heller & McDonald, that the Supreme Court ruled that citizens have the RIGHT to keep & bear arms for Self Defense. As has been noted above that this right is most crucial in the home, but nowhere did the Supreme Court limit Self Defense to in the home. So MD's position, as well as many other states & DC, is that one may keep & bear arms in the home but they many NOT use them for Self Defense - even in the home. They may keep arms for recreation but NOT for Self Defense. This is in complete discord with the rulings in Heller and McDonald.

This is where I believe the issue truly lies: the RIGHT to Self Defense. It is based on a RIGHT to life and the RIGHT to defend that life. By denying citizens a RIGHT to Self Defense anywhere is denial of their unquestionable RIGHT to life. Self Defense is a Natural Right. IMHO this is what the 2nd Amendment was designed to protect as ruled by the Supreme Court. Twice.
 
Today was the day for any amici for the State of Maryland, to file. Here's what the docket shows (curtesy Krucam at MDShooters):

06/22/2012 25 Open Restricted Document AMICUS CURIAE/INTERVENOR BRIEF by The American Public Health Association and American College of Preventive Medicine in electronic and paper format. Type of Brief: Amicus Curiae. Method of Filing Paper Copies: courier. Date Paper Copies Mailed, Dispatched, or Delivered to Court: 06/21/2012. [998881277] [12-1437] Jennifer DeRose

06/22/2012 26 AMICUS CURIAE/INTERVENOR BRIEF by Legal Community Against Violence in electronic and paper format. Type of Brief: Amicus Curiae. Method of Filing Paper Copies: courier. Date Paper Copies Mailed, Dispatched, or Delivered to Court: 06/22/2012. [998881388] [12-1437] Mitchell Dolin

06/22/2012 27 ORDER filed [998881417] granting filing of amicus curiae brief (FRAP 29(e)) Party added: American Public Health Association and American College of Preventive Medicine. Copies to all parties. [12-1437] (DL)

06/22/2012 28 APPEARANCE OF COUNSEL (Local Rule 46(c)) by Jennifer DeRose for American College of Preventive Medicine and American Public Health Association.[998881423] [12-1437] (DL)

06/22/2012 29 DISCLOSURE OF CORPORATE AFFILIATIONS (Local Rule 26.1) by Amici Supporting Appellant American College of Preventive Medicine and American Public Health Association. Was any question on Disclosure Form answered yes? No [998881425] [12-1437] (DL)

06/22/2012 30 Docket correction requested from Ms. Jennifer Ann DeRose for American College of Preventive Medicine and American Public Health Association. Re: [25] amicus curiae Brief. Access to amicus curiae Brief has been restricted to case participants. [12-1437] (DL)

06/22/2012 31 ORDER filed [998881500] granting filing of amicus curiae brief (FRAP 29(e)) Party added: Legal Community Against Violence. Copies to all parties. [12-1437] (DL)

06/22/2012 32 APPEARANCE OF COUNSEL (Local Rule 46(c)) by Mitchell F. Dolin for Legal Community Against Violence.[998881504] [12-1437] (DL)

06/22/2012 33 DISCLOSURE OF CORPORATE AFFILIATIONS (Local Rule 26.1) by Amicus Supporting Appellant Legal Community Against Violence. Was any question on Disclosure Form answered yes? No [998881516] [12-1437] (DL)

06/22/2012 34 AMICUS CURIAE/INTERVENOR BRIEF by AMICI CURIAE OF LEGAL HISTORIANS IN SUPPORT OF APPELLANTS AND REVERSAL in electronic and paper format. Type of Brief: Amicus Curiae. Method of Filing Paper Copies: hand delivery. Date Paper Copies Mailed, Dispatched, or Delivered to Court: 06/22/2012. [998881614] [12-1437] Andrew White
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  1. #25 Amicus from The American Public Health Association and American College of Preventive Medicine. Locked by item #30 as restricted to case participants.
  2. #26 Amicus from Legal Community Against Violence LCAV.
  3. #34 Amicus from Legal Historians.

I've asked Krucam to upload the Historians brief. Hopefully, he will be along in a bit to do that.
 

Attachments

Here's the Legal Historians brief.
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I found that not only disenheartening, but intellectually suspect.

They have to dig pretty deep to find historical precedents for the prohibition on carry, but when presented with counter-evidence like Nunn v. State, they sink to pointing out Judge Lumpkin's support of slavery by way of a tenuous rebuttal.

If this is the best professional veneer the opposition can muster, I'm feeling optimistic indeed.
 
Going through, the LCAV amicus is especially hilarious.

1) They decide to skip historical context of "wear, bear, or carry in case of confrontation" that SCOTUS laid out, and instead submit the abbreviated statement with the term that SCOTUS agree to no 2A rights outside the home because they said that the 2A "does not allow for anyone to carry at any time) [shortened].

2) Quoting Kachalsky, which is a farce of aruling in the 2CA. The judge there ruled on the lines of militia being military where Heller states otherwise and that the 2A is for hunting and that handguns aren't used for hunting, which goes against NYS' own laws for hunting which has handgun provisions.

3) "good cause" is a widely accepted standard, except that it is not the standard within 41 states.

4) "Good and substantial reason" does not burden constitutional standards, even though they have been repeatedly shot down when used for abridging the 1A.

5) "In the home only" blah blah blah. I think we all know how that one goes.

6) *** is up with the 16th and 17th century English law references?! The constitution was a far cry from the Magna Carta in scope and precedence. I'm still trying to wrap my head around these citations.

7) LCAV tries to argue that the 2A should not be expanded upon, but the SCOTUS drastically expanded on the scope when it turned from the previously used "collective right" to the more expansive "individual right".


The historical scholars Amicus Brief was interesting, but I'm wondering about the actual precedents set forth by him as to how it actually pertains to historical perspective. For instance, he quotes that Jefferson tried to put forth a law that limited people from carrying in order to combat poaching. "Put forth" would not be the same as "passed". Further, I see not historical analysis of the plethora of information that showed that founding fathers would not agree with modern gun control laws. For instance, how does one agree that militia is the intent, yet AWB's and magazine capacity limits are still laws in some states. He also skips two other parts: hunting and modern pistols on the battleground. Both are disproven against their rather cloistered look into the 2A. Modern pistols are indeed used for hunting in most, if not all, areas of the country. Because of significant advancements within the firearms industry, pistols are much more powerful and accurate compared with their smooth bore forebears. On the modern battlefield, pistols have become ever-present. If one were to argue the militia intent (which was of course STRUCK DOWN), then this too must be ignored because in today's world, the pistol is still used for combat.

In summation, the state and their amicii attempt to put a historical spin on the framers intent without any modern context to the RKBA, never mind the actual recent rulings from the SCOTUS that affirms that the 2A was HISTORICALLY to be considered "to keep and carry in case of confrontation".
 
What we are seeing, to a lessor extent, are the same arguments used to argue against Heller. We saw the same thing in McDonald, if you remember.

At the end of the day, when all of your well played arguments no longer hold sway, when your ideology has been thoroughly trashed, what can you do?

You re-argue your case with all the tired old arguments that you had used before. Hoping against all hope that this time, the outcome will be different.

Don Quixote would be proud!

Not to be left out, the Brady's filed an amicus late last night (they were having money problems and had to have a fund raiser to do this). Thanks again to Krucam, over at MDShooters, who checked the docket early this AM.
 

Attachments

Brady Campaign's opening argument:

"Don't look too closely at the Second Amendment - it's scary uncharted territory and we won't like what you'll see."
 
The government has done the research for us, and it's all available on the internet.

In 2004, then AG Ashcroft commissioned a study on whether the 2nd Amendment secured an individual right to keep and bear arms. His conclusion, supported by exhaustive research, was "Yes."

http://www.justice.gov/olc/secondamendment2.pdf

Twenty years before that, the United States Senate commissioned its own study of the 2nd Amendment, published in February 1982. This report also concluded that the RKBA is and always has been an individual right.

http://www.guncite.com/journals/senrpt/senrpt.html

Thus, for the anti-gun crew to continually claim that the Heller and McDonald decisions are the acts of an "activist" court, rewriting and undoing hundreds of years of precedent, is quite simply a flat-out lie.

These two studies can be found on the Internet but there have been multiple attempts to make them disappear. I long ago downloaded them onto my hard drive, and it's interesting that where I was able to find them today is NOT where I found them when I first copied them. Since there's no way to know how long they will stay available, I would strongly suggest that each of you who is interested in this (and if you weren't interested you probably wouldn't be reading this thread) download both reports and maintain your own copies. If we all do that, they can never be made to completely disappear.

And be sure to tell other people about them. The Senate report was 30 years ago, AG Ashcroft's report was 8 years ago. How many of you even knew of their existence?
 
And be sure to tell other people about them. The Senate report was 30 years ago, AG Ashcroft's report was 8 years ago. How many of you even knew of their existence?
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This is the first I've heard of either, and I've been watching this issue pretty close for 25 years.
 
^^^ Case in point.

The Ashcroft report is meticulously researched and chock full or legal citations. Any attorney in a pro RKBA case who isn't citing it as a persuasive authority just isn't doing his job.

It's 107 pages long. Here's the conclusion:

CONCLUSION

For the foregoing reasons, we conclude that the Second Amendment secures an individual right to keep and to bear arms. Current case law leaves open and unsettled the question of whose right is secured by the Amendment. Although we do not address the scope of the right, our examination of the original meaning of the Amendment provides extensive reasons to conclude that the Second Amendment secures an individual right, and no persuasive basis for either the collective-right or quasi-collective-right views. The text of the Amendment’s operative clause, setting out a “right of the people to keep and bear Arms,” is clear and is reinforced by the Constitution’s structure. The Amendment’s prefatory clause, properly understood, is fully consistent with this interpretation. The broader history of the Anglo-American right of individuals to have and use arms, from England’s Revolution of 1688-1689 to the ratification of the Second Amendment a hundred years later, leads to the same conclusion. Finally, the first hundred years of interpretations of the Amendment, and especially the commentaries and case law in the pre-Civil War period closest to the Amendment’s ratification, confirm what the text and history of the Second Amendment require.
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So much for the "historians."
 
I started reading the Brady brief. I am immediately struck by this:

Amici Curiae The Brady Center said:
Amicus brings a broad and deep perspective to the issues raised here and has a compelling interest in ensuring that the Second Amendment does not impede reasonable governmental action to prevent gun violence.
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(Emphasis supplied)

A compelling interest in "ensuring that the Second Amendment does not impede" reasonable governmental action?!?!?

[sarcasm]Don't let that pesky Constitution get in the way of our plans. [/sarcasm]
 
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