3rd Circuit Appeals - Upholds LCM Ban

jcutonilli · Sep 13, 2020

kcbrown said:
Wait, what??

Um, just how else exactly would you measure the competence of a lawyer in the arena of Constitutional law litigation except by the quality of their arguments (and/or counterarguments)? You claim you need good arguments to win, right? If a lawyer consistently loses because of poor arguments, under what possible reasonable standard can you still claim him to be "competent"? After all, it's his job to win, no? If a lawyer often fails in his job, then how can you call him "competent"?

I would measure the competency of the lawyer by their argumentS and counterargumentS. I would not judge them by a single argument. The job of the lawyer is to represent the client, not necessarily to win. There are two sides and one side generally wins and the other generally loses. It is not necessarily the argument that determines a win or a loss. Certain cases are very black and white, while others are shades of grey.

A lot of people see the 2A as very black and white (what part of shall not be infringed to you not understand) but the historical prohibition on CCW demonstrates that the 2A is more grey than black and white.

The arguments that are presented in 2A cases are certainly consistent with various precedents on the issues. In that respect I do not see incompetence with respect to their arguments. I would not have expected them to fail.

My problem with the arguments is that they continue to use these same failed arguments and have not adjusted them to try and better address the issues that the court has raised.

fred55 · Sep 13, 2020

I believe the 2A is very clear. The Constitution and Bill of Rights were written for the people, and by the founding fathers. I respectfully submit it has been “legal scholars” who have twisted and argued us into this mess. I don’t believe they will get us out of it; this grayish is far too profitable. No disrespect meant, simply my opinion. fred55

babalou · Sep 13, 2020

Agreed

fred55 said:
I believe the 2A is very clear. The Constitution and Bill of Rights were written for the people, and by the founding fathers. I respectfully submit it has been “legal scholars” who have twisted and argued us into this mess. I don’t believe they will get us out of it; this grayish is far too profitable. No disrespect meant, simply my opinion. fred55

I read all the rough drafts. They cut it down to remove verbose wording but was deemed correct. When they fight over where a damn comma is placed and why, you have a problem. All the rough drafts state that right to bear arms without impedence.

jcutonilli · Sep 13, 2020

fred55 said:
I believe the 2A is very clear. The Constitution and Bill of Rights were written for the people, and by the founding fathers. I respectfully submit it has been “legal scholars” who have twisted and argued us into this mess. I don’t believe they will get us out of it; this grayish is far too profitable. No disrespect meant, simply my opinion. fred55

I understand where you are coming from. I do not like all of the 2A losses that we have experienced either. Unfortunately the same Constitution that has the 2A, allows SCOTUS to resolve the issue. If you want things to change you need to convince SCOTUS. I tend to agree with you that the current "legal scholars" don't seem to be able to get us out of the situation. This is why I started to write these amicus briefs.

OLM-Medic · Sep 13, 2020

LeadSled1 said:
Would somebody please ban magazines greater than 1 round so we can get to the bottom of this shit. The states keep whittling it down and down. Just go for the gusto and be done with it.

the other side knows this is the most effective way because nobody will fight back

CrueChief · Sep 13, 2020

wjackcooper said:
Ok, I agree that we disagree.

In closing, two predications:

1. If Trump is defeated, the resulting Federal Judiciary will use Interest-balancing via intermediate scrutiny (with “public safety” providing cover) to completely neuter the 2A.

2. If trump wins, the resulting Federal Judiciary will use “text, history, and tradition” to restore the 2A to its rightful place as guardian of the Bill of Rights.

Regards
Jack

No chance the 2A gets elevated very much. Too many unelected judges with an agenda.

kcbrown · Sep 13, 2020

jcutonilli said:
I would measure the competency of the lawyer by their argumentS and counterargumentS. I would not judge them by a single argument. The job of the lawyer is to represent the client, not necessarily to win.

Well, let's be clear here. "Win" means either that they win the case or that they reach a settlement that is agreeable to their client. And yes, their job is always to "win" by that definition. Why? Because that is what they were hired by their client to do.

There are two sides and one side generally wins and the other generally loses. It is not necessarily the argument that determines a win or a loss. Certain cases are very black and white, while others are shades of grey.

If, for a given case, the arguments don't determine the win or loss, then what does? Am I detecting a tacit acknowledgement of bias on the part of judges in the system here?

A lot of people see the 2A as very black and white (what part of shall not be infringed to you not understand) but the historical prohibition on CCW demonstrates that the 2A is more grey than black and white.

The arguments that are presented in 2A cases are certainly consistent with various precedents on the issues. In that respect I do not see incompetence with respect to their arguments. I would not have expected them to fail.

And yet, they did fail. When observations contradict your expectations, then it means that whatever guided your expectations is flawed and you have to go back and fix that.

My problem with the arguments is that they continue to use these same failed arguments and have not adjusted them to try and better address the issues that the court has raised.

I can certainly agree with this. But that raises the question of why they haven't changed their arguments to address the issues. Surely failure to change one's arguments to address raised issues is a sign of incompetence, no?

jcutonilli · Sep 14, 2020

kcbrown said:
Well, let's be clear here. "Win" means either that they win the case or that they reach a settlement that is agreeable to their client. And yes, their job is always to "win" by that definition. Why? Because that is what they were hired by their client to do.

I still would not call a loss a win.

If, for a given case, the arguments don't determine the win or loss, then what does? Am I detecting a tacit acknowledgement of bias on the part of judges in the system here?

The law. Certain cases are very black and white so the argument does not really affect the outcome. It simply the straight application of law. Many cases are more gray with varying degrees of grayness. Those are the case where the argument matters because thing can be interpreted in different ways.

And yet, they did fail. When observations contradict your expectations, then it means that whatever guided your expectations is flawed and you have to go back and fix that.

That is typically what I do.

I can certainly agree with this. But that raises the question of why they haven't changed their arguments to address the issues. Surely failure to change one's arguments to address raised issues is a sign of incompetence, no?

There may be a perfectly rational explanation as to why they have not changed their arguments. Until I find out, I am not willing to go there.

kcbrown · Sep 15, 2020

jcutonilli said:
I still would not call a loss a win.

Not saying that you did. I wouldn't call a loss a win either.

The law. Certain cases are very black and white so the argument does not really affect the outcome. It simply the straight application of law. Many cases are more gray with varying degrees of grayness. Those are the case where the argument matters because thing can be interpreted in different ways.

OK, well, the cases we're talking about here are most certainly in the gray area, no?

That is typically what I do.

In light of that, what did you find you had to change with respect to your prediction methods? What does that method look like now, in light of the fact that the arguments in question lost anyway?

There may be a perfectly rational explanation as to why they have not changed their arguments. Until I find out, I am not willing to go there.

That's fair as far as it goes, but the thing is: if it causes them to lose the case, then how can it possibly be considered "rational"?

jcutonilli · Sep 16, 2020

kcbrown said:
Not saying that you did. I wouldn't call a loss a win either.

You essentially do when you say something is a win when "they reach a settlement that is agreeable to their client". That may be a benefit but I would not say that is a win.

OK, well, the cases we're talking about here are most certainly in the gray area, no?

Some people would say these cases are black and white, but I would say there is more gray

In light of that, what did you find you had to change with respect to your prediction methods? What does that method look like now, in light of the fact that the arguments in question lost anyway?

I learn that I needed to change my perspective from an advocate to a judge and understand what they are looking at and how they respond to various arguments. It is not about our position, but about how to present the case in a manner that will allow even skeptical judges to accept the argument.

That's fair as far as it goes, but the thing is: if it causes them to lose the case, then how can it possibly be considered "rational"?

It is rational because I believe the lawyers do have a good understanding of the 2A amendment and how to litigate constitutional law. The problem is not the skillset of the person. The problem is figuring the best way to communicate that to the courts.

wjackcooper · Sep 17, 2020

.It is rational because I believe the lawyers do have a good understanding of the 2A amendment and how to litigate constitutional law. The problem is not the skillset of the person. The problem is figuring the best way to communicate that to the courts.

Wow, those among the most able, experienced lawyers in the country don’t know the best way to argue a 2A case!

Thanks for sharing.

Regards
Jack

Applehd · Sep 17, 2020

How about...? the Leftist judges are legislating from the bench because they are in charge, for now... plain and simple... and they're using their powers to do so with impunity. Until the makeup of the courts are changed, we(2A) will continue to lose. The "finest" lawyers on Earth can argue the 2nd Amendment any way they want... only to lose to a Leftist court. Change my mind.

jcutonilli · Sep 17, 2020

Applehd said:
How about...? the Leftist judges are legislating from the bench because they are in charge, for now... plain and simple... and they're using their powers to do so with impunity. Until the makeup of the courts are changed, we(2A) will continue to lose. The "finest" lawyers on Earth can argue the 2nd Amendment any way they want... only to lose to a Leftist court. Change my mind.

wjackcooper said:
Wow, those among the most able, experienced lawyers in the country don’t know the best way to argue a 2A case!

Thanks for sharing.

Regards
Jack

I will start of by saying that the leftist judges do make litigating these cases harder than they should be, but it is ultimately the arguments that are the real problem.

SCOTUS accepted NYSRPA v NYC because they explained the real problem which is that there really is nothing supporting the governments position. The government conceded the case once it was accepted. Not a loss.

In all the rest of the cases they did not explain why the governments position is wrong or why the lower courts got it wrong. All they could say is that the lower courts are really using rational basis, but they could not support that assertion with any facts or explanation.

If you want to pick out individual cases, I will be more than happy to provide more detailed explanations.

wjackcooper · Sep 17, 2020

Applehd said:
How about...? the Leftist judges are legislating from the bench because they are in charge, for now... plain and simple... and they're using their powers to do so with impunity. Until the makeup of the courts are changed, we(2A) will continue to lose. The "finest" lawyers on Earth can argue the 2nd Amendment any way they want... only to lose to a Leftist court. Change my mind.

Yep.

The obvious (at least to those who count to five) problem has been the Kennedy/Roberts fear of the 2A, i.e., guns; which served to ratify the anti 2A, emotion based rulings of Democrat Judges on the lower courts.

Regards
Jack

Applehd · Sep 17, 2020

jcutonilli said:
...

So... you are saying that I am not wrong...?

wjackcooper said:
...

...and you are saying that I am right...?

I must be paying attention. :rolleyes:

jcutonilli · Sep 17, 2020

wjackcooper said:
Yep.

The obvious (at least to those who count to five) problem has been the Kennedy/Roberts fear of the 2A, i.e., guns; which served to ratify the anti 2A, emotion based rulings of Democrat Judges on the lower courts.

Regards
Jack

Why don't you want to respond to what I have said. You are clearly wrong. NYSPRA v NYC demonstrates that SCOTUS will step in if the issues are properly acknowledged.

jcutonilli · Sep 17, 2020

Applehd said:
So... you are saying that I am not wrong...?

...and you are saying that I am right...?

I must be paying attention.

No you are clearly wrong about the reasons. While I did acknowledge that the judges are making thing harder, I stated the arguments were the real issue.

Stated a different way, with the correct arguments, even the leftist judges will likely overturn the infringing laws. SCOTUS will step in and correct the situation just like they did in NYSRPA v NYC. What is needed are better arguments that address the issues that these judges are raising.

kcbrown · Sep 17, 2020

jcutonilli said:
You essentially do when you say something is a win when "they reach a settlement that is agreeable to their client". That may be a benefit but I would not say that is a win.

The only reason I put that in there is to cover the case where "win" is defined by the client. But if you're talking about the case where "win" is defined as getting a sufficiently favorable decision out of the court, then I agree. I'll proceed from here under the assumption that "win" means that we get a favorable decision from the court.

Some people would say these cases are black and white, but I would say there is more gray

I agree, there's more gray. So much so that it's not even clear to the judiciary what analysis standard to use. The Supreme Court used a historical analysis approach to Heller, for instance, and some courts have followed that path, while other courts have reverted to "scrutiny", with some of them even going so far as to use what amounts to rational basis while claiming "intermediate scrutiny" (something you pointed out yourself in your amicus brief, as I recall).

I learn that I needed to change my perspective from an advocate to a judge and understand what they are looking at and how they respond to various arguments. It is not about our position, but about how to present the case in a manner that will allow even skeptical judges to accept the argument.

Interesting. Fair enough.

Well, let's suppose for a moment that the judge in question believes that "intermediate scrutiny" is the proper standard, and that even mild correlation is enough to prove the validity of the law. What argument would you construct to convince that judge to accept your argument over that of the government?

It is rational because I believe the lawyers do have a good understanding of the 2A amendment and how to litigate constitutional law. The problem is not the skillset of the person. The problem is figuring the best way to communicate that to the courts.

I thought the problem was the arguments themselves. But now it appears that the problem isn't with the arguments, but rather with the way they're communicated. Can you be more specific here? If the problem is only with the way they're communicated then that leads right back to the question of competence, since proper communication of the argument is one of the necessary skills for a competent litigator.

kcbrown · Sep 17, 2020

jcutonilli said:
Why don't you want to respond to what I have said. You are clearly wrong. NYSPRA v NYC demonstrates that SCOTUS will step in if the issues are properly acknowledged.

NYSRPA v NYC demonstrates that SCOTUS might step in if the issues are properly acknowledged. To say more than that is to assert that every other 2A case ever raised to SCOTUS, and for which cert was denied, failed to properly acknowledge the issues. And that's a wide brush to paint with.

wjackcooper · Sep 17, 2020

jcutonilli said:
Why don't you want to respond to what I have said. You are clearly wrong. NYSPRA v NYC demonstrates that SCOTUS will step in if the issues are properly acknowledged.

Holly smoke!

I was reluctant to point out what should be easy to understand. That the court ducked out (mooted) the case actually demonstrates the continuing wimp out.*

Regards
Jack

*“JUSTICE ALITO, with whom JUSTICE GORSUCH joins, and with whom JUSTICE THOMAS joins except for Part IV–B, dissenting. By incorrectly dismissing this case as moot, the Court permits our docket to be manipulated in a way that should not be countenanced. Twelve years ago in District of Columbia v. Heller, 554 U. S. 570 (2008), we held that the Second Amendment protects the right of ordinary Americans to keep and bear arms. Two years later, our decision in McDonald v. Chicago, 561 U. S. 742 (2010), established that this right is fully applicable to the States.”

18-280 New York State Rifle & Pistol Assn., Inc. v. City Of New York (04/27/2020)https://www.supremecourt.gov/opinions/19pdf/18-280_ba7d.pdf

3rd Circuit Appeals - Upholds LCM Ban

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