Hodgkins/Dearth v. Holder (SAF Gura) Residency Requirement for Handguns

[esqappellate]

Just listened, and yes, the government couldn't explain why the "sporting purpose" in the statute didn't exclude self defense use if the buyer had no interest in hunting or other sporting purposes. The attorney just made no sense period, and the two male judges weren't buying it.
Henderson(the lone female judge) is an anti, through and through. She will never vote in favor of 2A rights ever as far as I can tell.

Concur.

 

[jrosenberger]

Finally listened to this last night. I originally was very interested in this case because MA, where I reside, has a convoluted mess of regulations on which handguns a dealer can legally sell. So, a challenge to the residency requirement for handgun transfer was big deal. Now, listening to the orals, it seems it may have even broader implications regarding the "sporting purposes" languages sprinkled throughout the GCA.

The court asked a lot of questions relative to importation, but I thought the remedy Dearth was seeking was purchase within the US. If he (or what about other SAF members; I forget the status of SAF's standing at this point) lived somewhere that private gun ownership were completely banned, importation would be no help. The focus on importation reminds me of Chicago's arguments shot down in Ezell.

 

[jrosenberger]

I was curious if any 28js had been filed in this case and found something much more interesting on the docket:

PER CURIAM ORDER filed [1474672], on the court’s own motion, that the parties file supplemental briefs addressing the following issues: (1) Whether non-resident Americans are “home” while visiting the United States; and (2) Whether the Second Amendment extends beyond the home. The supplemental briefs may not exceed 30 pages. Appellants’ supplemental brief is due on Monday, February 10, 2014, and appellee’s supplemental brief is due on Wednesday March 12, 2014. Before Judges: Henderson, Griffith and Randolph. [12-5305]

 

[press1280]

I was curious if any 28js had been filed in this case and found something much more interesting on the docket:

PER CURIAM ORDER filed [1474672], on the court’s own motion, that the parties file supplemental briefs addressing the following issues: (1) Whether non-resident Americans are “home” while visiting the United States; and (2) Whether the Second Amendment extends beyond the home. The supplemental briefs may not exceed 30 pages. Appellants’ supplemental brief is due on Monday, February 10, 2014, and appellee’s supplemental brief is due on Wednesday March 12, 2014. Before Judges: Henderson, Griffith and Randolph. [12-5305]

Definitely interesting. If the opinion does rule on inside/outside the home, it'll create the groundwork for Palmer(if it's ever ruled on) if SCOTUS doesn't take a case first.

 

[Boxcab]

I was curious if any 28js had been filed in this case and found something much more interesting on the docket:

PER CURIAM ORDER filed [1474672], on the court’s own motion, that the parties file supplemental briefs addressing the following issues: (1) Whether non-resident Americans are “home” while visiting the United States; and (2) Whether the Second Amendment extends beyond the home. The supplemental briefs may not exceed 30 pages. Appellants’ supplemental brief is due on Monday, February 10, 2014, and appellee’s supplemental brief is due on Wednesday March 12, 2014. Before Judges: Henderson, Griffith and Randolph. [12-5305]

Nice.

 

[Al Norris]

We have almost quit following this case. A lot has happened since 2011.

It has been up to the DCCA once before and sent back down to the District. Again, the District ruled against Dearth and is now back up to the DCCA. Here is the summary at the Internet Archive. And here is an incomplete summary at the DCCA. First Time at DCCA: 10-5062 CADC Docket. And the (somewhat) current DCCA: 12-5305 CADC Docket

Recap quit working when I upgraded to the latest version (27.0) of Firefox. So I have to do this manually... Going to have to see if I can return to the previous working version!

As you may recall, this case is about a US citizen who is living in another country (Canada) and is opposing the Federal laws that state you must be a resident of a State, in order to buy (transfer) firearms.

Here is the latest DCCA docket:

• 09/04/2013 - Open Document - PER CURIAM ORDER filed [1454853] allocating oral argument time as follows: Appellants -- 15 Minutes, Appellee -- 15 Minutes. One counsel per side to argue; directing party to file Form 72 notice of arguing attorney - due 09/12/2013 [12-5305]
  
• 09/12/2013 - FORM 72 submitted by arguing attorney, Anisha S. Dasgupta, on behalf of Appellee Eric H. Holder, Jr.. [12-5305] (Dasgupta, Anisha)
  
• 09/12/2013 - FORM 72 submitted by arguing attorney, Alan Gura, on behalf of Appellants Stephen Dearth and Second Amendment Foundation, Inc.. [12-5305] (Gura, Alan)
  
• 09/18/2013 - Open Document - LETTER FILED [1457126] by Stephen Dearth and Second Amendment Foundation, Inc. pursuant to FRAP 28j advising of additional authorities [Service Date: 09/18/2013 ] [12-5305] (Gura, Alan)
  
• 09/19/2013 - Open Document - ORAL ARGUMENT HELD before Judges Henderson, Griffith and Randolph. [12-5305]
  
• 01/10/2014 - Open Document - PER CURIAM ORDER filed [1474672], on the court’s own motion, that the parties file supplemental briefs addressing the following issues: (1) Whether non-resident Americans are “home” while visiting the United States; and (2) Whether the Second Amendment extends beyond the home. The supplemental briefs may not exceed 30 pages. Appellants’ supplemental brief is due on Monday, February 10, 2014, and appellee’s supplemental brief is due on Wednesday March 12, 2014. Before Judges: Henderson, Griffith and Randolph. [12-5305]
  
• 02/07/2014 - Open Document - NOTICE filed [1479067] by National Rifle Association of America, Inc. of intention to participate as amicus curiae. [Disclosure Listing: Attached] [Service Date: 02/07/2014 ] [12-5305] (Thompson, David)
  
• 02/10/2014 - APPELLANT SUPPLEMENTAL BRIEF [1479259] filed by Stephen Dearth and Second Amendment Foundation, Inc. [Service Date: 02/10/2014 ] Length of Brief: 30 pages. [12-5305] (Gura, Alan)
  
• 02/10/2014 - Open Document - CORRECTED APPELLANT SUPPLEMENTAL BRIEF [1479282] filed by Stephen Dearth and Second Amendment Foundation, Inc. [Service Date: 02/10/2014 ] Length of Brief: 30 pages. [12-5305] (Gura, Alan)
  
• 02/12/2014 - Open Document - MOTION filed [1479883] by National Rifle Association of America, Inc. to participate as amicus curiae. [Disclosure Listing: Attached] [Service Date: 02/12/2014 ] [12-5305] (Cooper, Charles)

The Supplemental and the NRA Amicus briefs are below.

 

[Patrick]

Thank you. This is another interesting one. If the right is 'fundamental;' and available to all, then can the government require you to provide a native address to exercise the same?

Important to those who live in multiple states; work in a state different from their residence state; or who might be itinerant due to other reasons (military service, college, between jobs, homeless, whatever).

Don't laugh. It's not an uncommon problem. I used to 'live' on one coast but travel almost 90% of my time - usually thousands of miles from home. There were stretches where I'd not see my house for months. I had a friend who was a US Citizen but worked so long in Toronto that he gave up his US address - who wants to pay double rent? According to BATFE, he could never buy a gun in his own natural-born nation because he lacked the paper of some state bureaucracy.

Now that would have been a good plaintiff.

 

[esqappellate]

Well this case is getting weirder and weirder. Court has ordered supplemental briefing on specific issues and reargument of the case in March. See attached.

 

[danb]

huh? ""Whether appellant Dearth is alleging that 18 U.S.C. § 922(a)(9) is facially
unconstitutional, unconstitutional as applied to him, or both."

Seems like something you would want to have known the first time around...

I read this list of orders, and it feels like some judges had a senior moment and could not remember the case, or realized that they did not pay enough attention the fist time. Wait, we are going to do what again? Strike down the GCA. Hang on, we need to find out what the question is and whether the SAF has standing. Again, still.

 

[Elliotte]

Well this case is getting weirder and weirder. Court has ordered supplemental briefing on specific issues and reargument of the case in March. See attached.

So they want 30-page briefs on the new questions (and only the new questions) due 1/30, then in March they're going to reargue the whole case, both the new stuff and the old.

 

[Kharn]

Does re-argument allow a change in panel members, or will the original three remain on the case?

 

[esqappellate]

Does re-argument allow a change in panel members, or will the original three remain on the case?

Panel stays the same

 

[wolfwood]

huh? ""Whether appellant Dearth is alleging that 18 U.S.C. § 922(a)(9) is facially
unconstitutional, unconstitutional as applied to him, or both."

Seems like something you would want to have known the first time around...

I read this list of orders, and it feels like some judges had a senior moment and could not remember the case, or realized that they did not pay enough attention the fist time. Wait, we are going to do what again? Strike down the GCA. Hang on, we need to find out what the question is and whether the SAF has standing. Again, still.

This is two judges have decided and one judge in really really can't make up his mind.

 

[Maestro Pistolero]

This is two judges have decided and one judge in really really can't make up his mind.

What would be the disadvantage to arguing 'facially', AND 'as applied':

"Even if the court disagrees with the argument of facial unconstitutionality, it is still unconstitutional as applied."

 

[wolfwood]

Well I don't think there is a disadvantage to it per se. The Court might just want to know what they are being asked to issue a ruling on if there is some ambiguity in the pleadings. This is just conjecture but presumably the Court would need to write an opinion addressing the Salerno factors (I don't know what those are I am just getting that case from the order) only if the plaintiffs is challenging the statute facially. The Court may not want to take the time and effort to write that opinion if the plaintiff is only making an as applied challenge.

 

[esqappellate]

Well I don't think there is a disadvantage to it per se. The Court might just want to know what they are being asked to issue a ruling on if there is some ambiguity in the pleadings. This is just conjecture but presumably the Court would need to write an opinion addressing the Salerno factors (I don't know what those are I am just getting that case from the order) only if the plaintiffs is challenging the statute facially. The Court may not want to take the time and effort to write that opinion if the plaintiff is only making an as applied challenge.

This. If they are confused as to the nature of the claim, it is fair to make plaintiffs lay it out specifically. They much rather limit the impact of any ruling striking down the statute to an "as applied" challenge.

 

[Maestro Pistolero]

So then why did not argue 'facial' with 'as applied' in place as a back up argument? One thing is certain: If it is not asked for, it will not be granted. If the court wishes to only grant an as applied challenge avoiding the broader challenge, that is it's prerogative.

 

[Inigoes]

Anyone know what went on in oral arguments 3/9/2015?

ORAL ARGUMENT HELD before Judges Henderson, Griffith and Randolph. [12-5305]
http://michellawyers.com/dearth-v-holder/

 

[esqappellate]

Anyone know what went on in oral arguments 3/9/2015?

ORAL ARGUMENT HELD before Judges Henderson, Griffith and Randolph. [12-5305]
http://michellawyers.com/dearth-v-holder/

I would say not well. Listen for yourself:
http://www.cadc.uscourts.gov/record...View&StartKey=20150320150309&Count=10&scode=2

 

[Inigoes]

I would say not well. Listen for yourself:
http://www.cadc.uscourts.gov/record...View&StartKey=20150320150309&Count=10&scode=2

The court was beating up both sides.