3rd Circuit Appeals - Upholds LCM Ban

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  • jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    \
    Just released yesterday. Panel says it is bound by the last appeal in the third on the issue. But there is a really good dissent

    https://www2.ca3.uscourts.gov/opinarch/193142p.pdf

    It is not that great. The judge talked around the issue but did not exactly call it out.

    They danced around the fact that the government presents correlation without demonstrating causation. Without causation the government's case is mere speculation, which is allowed under rational basis, but is not substantial enough to survive intermediate scrutiny.

    You need to clearly articulate the reasons so the court can understand the issue.
     

    LeadSled1

    Ultimate Member
    MDS Supporter
    Apr 25, 2009
    4,245
    MD
    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.
     

    BeoBill

    Crank in the Third Row
    MDS Supporter
    Oct 3, 2013
    27,062
    南馬里蘭州鮑伊
    \
    Just released yesterday. Panel says it is bound by the last appeal in the third on the issue. But there is a really good dissent

    https://www2.ca3.uscourts.gov/opinarch/193142p.pdf

    Trophy_Shopfiy_1024x1024.png
     

    pcfixer

    Ultimate Member
    May 24, 2009
    5,948
    Marylandstan
    This case demonstrates next time is that much harder and they are that much more reluctant to deviate from any precedent that gets set the first time.

    Clearly not in keeping with Heller, McDonald, Wren & Rogers v Grewal. There is no historical restriction on magazine's.

    . “Some laws, however, broadly divest an individual of his Second Amendment rights” altogether. Ibid. This case gives us the ideal opportunity to at least begin analyzing which restrictions are consistent with the historical scope of the right to bear arms.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    Clearly not in keeping with Heller, McDonald, Wren & Rogers v Grewal. There is no historical restriction on magazine's.

    This case is consistent with Drake, Rogers v Grewal, and the prior NJ LCM case. Wren is not precedential in the 3CA. SCOTUS has not stepped in to overturn any of these cases, so it is not so out of line with their precedents.
     

    press1280

    Ultimate Member
    Jun 11, 2010
    7,878
    WV
    Let's see if they appeal for en banc. The majority opinion seems to leave it an open question whether the prior panel got it wrong and acknowledges a well written dissent. It would be interesting if any of the majority votes for en banc.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    Let's see if they appeal for en banc. The majority opinion seems to leave it an open question whether the prior panel got it wrong and acknowledges a well written dissent. It would be interesting if any of the majority votes for en banc.

    It certainly does not hurt them to appeal for en banc. I do not see this case going anywhere because it does not appear that they have advanced any new arguments.
     

    wjackcooper

    Active Member
    Feb 9, 2011
    689
    This case is consistent with Drake, Rogers v Grewal, and the prior NJ LCM case. Wren is not precedential in the 3CA. SCOTUS has not stepped in to overturn any of these cases, so it is not so out of line with their precedents.

    Two Republican Judges decided the case (in effect ruling against the 2A) based on finding they were bound by Third Circuit precedent. Judge Matey (Trump appointee) dissented based (in large part) on Heller/McDonald, which is SC precedent.*

    In any event, I hope nobody here is under the impressions: That (1) failing to comply with the Heller/McDonald “clear repudiation” of safety v. 2A interest-balancing,** and that (2) using “disputed public safety implications” to support a ruling are in compliance with the “law of the land” in a 2A case.***

    One thing is for sure, if Trump is defeated intermediate scrutiny and safety (no matter the merits) will be the tools used by the resulting Federal Judiciary to damage the 2A, probably beyond repair.

    Regards
    Jack

    *The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts . . . .”
    https://constitutioncenter.org/interactive-constitution/article/article-iii

    **”First, the widespread popularity of the two-step balancing test does not address the clear repudiation of interest-balancing by the Supreme Court in Heller and McDonald. See pages 30 thru 32 of Judge Matey’s dissent.*https://www2.ca3.uscourts.gov/opinarch/193142p.pdf

    ***“Municipal respondents cite no case in which we have refrained from holding that a provision of the Bill of Rights is binding on the States on the ground that the right at issue has disputed public safety implications.”
    https://www.supremecourt.gov/opinions/09pdf/08-1521.pdf McDonald, opinion of the Court, page 36 paragraphs 2 and 3.
     
    Last edited:

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    Two Republican Judges decided the case (in effect ruling against the 2A) based on finding they were bound by Third Circuit precedent. Judge Matey (Trump appointee) dissented based (in large part) on Heller/McDonald, which is SC precedent.*

    In any event, I hope nobody here is under the impressions: That (1) failing to comply with the Heller/McDonald “clear repudiation” of safety v. 2A interest-balancing,** and that (2) using “disputed public safety implications” to support a ruling are in compliance with the “law of the land” in a 2A case.***

    One thing is for sure, if Trump is defeated intermediate scrutiny and safety (no matter the merits) will be the tools used by the resulting Federal Judiciary to damage the 2A, probably beyond repair.

    Regards
    Jack

    *The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts . . . .”
    https://constitutioncenter.org/interactive-constitution/article/article-iii

    **”First, the widespread popularity of the two-step balancing test does not address the clear repudiation of interest-balancing by the Supreme Court in Heller and McDonald. See pages 30 thru 32 of Judge Matey’s dissent.*https://www2.ca3.uscourts.gov/opinarch/193142p.pdf

    ***“Municipal respondents cite no case in which we have refrained from holding that a provision of the Bill of Rights is binding on the States on the ground that the right at issue has disputed public safety implications.”
    https://www.supremecourt.gov/opinions/09pdf/08-1521.pdf McDonald, opinion of the Court, page 36 paragraphs 2 and 3.

    The problem with Heller is that it left a lot of issues unresolved. While it did acknowledge that the "interest balancing" approach proposed by Breyer was inappropriate, it seems to acknowledge that the law would fail "any of the standards of scrutiny that we have applied to enumerated constitutional rights" such as intermediate scrutiny.

    It also acknowledges that there are certain policy choices ("variety of tools") for addressing public safety issues such as handgun violence, but that "the enshrinement of constitutional rights necessarily takes certain policy choices off the table." They only addressed the absolute prohibition of handguns as a policy choice that was off the table.

    The lower courts have stepped in an chosen intermediate scrutiny and has allowed certain policy choices that appear to meet this standard. While I believe they have misapplied Heller and the other standards, the question is why have they done this. None of the plaintiffs have presented a case that SCOTUS is willing to accept (except NYSRPA v NYC which resolved itself before they could issue an opinion.).
     

    pcfixer

    Ultimate Member
    May 24, 2009
    5,948
    Marylandstan
    Two Republican Judges decided the case (in effect ruling against the 2A) based on finding they were bound by Third Circuit precedent. Judge Matey (Trump appointee) dissented based (in large part) on Heller/McDonald, which is SC precedent.*

    In any event, I hope nobody here is under the impressions: That (1) failing to comply with the Heller/McDonald “clear repudiation” of safety v. 2A interest-balancing,** and that (2) using “disputed public safety implications” to support a ruling are in compliance with the “law of the land” in a 2A case.***

    One thing is for sure, if Trump is defeated intermediate scrutiny and safety (no matter the merits) will be the tools used by the resulting Federal Judiciary to damage the 2A, probably beyond repair.

    Regards
    Jack

    *The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts . . . .”
    https://constitutioncenter.org/interactive-constitution/article/article-iii

    **”First, the widespread popularity of the two-step balancing test does not address the clear repudiation of interest-balancing by the Supreme Court in Heller and McDonald. See pages 30 thru 32 of Judge Matey’s dissent.*https://www2.ca3.uscourts.gov/opinarch/193142p.pdf

    ***“Municipal respondents cite no case in which we have refrained from holding that a provision of the Bill of Rights is binding on the States on the ground that the right at issue has disputed public safety implications.”
    https://www.supremecourt.gov/opinions/09pdf/08-1521.pdf McDonald, opinion of the Court, page 36 paragraphs 2 and 3.

    Judge Matey's dissent. :thumbsup: Page 33

    I would
    decline to invoke that discretion here, as I conclude that determining whether magazines enjoy the guarantees of the
    Second Amendment, and whether that protection varies based on their capacity, would “not reopen issues decided in earlier
    stages of the same litigation.”
    Agostini v. Felton, 521 U.S. 203, 236 (1997).
    Both issues affect the rights of individuals throughout our Circuit. Likewise, resolving those questions
    will allow state governments to design public safety solutions that respect the freedoms guarded by the Second Amendment.

    So I would reverse the order of the District Court, hold that magazines are arms under the Constitution, and remand this
    matter to permit the State to provide evidence that the Act is narrowly tailored to advance the State’s interests. For these
    reasons, I respectfully dissent.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    Judge Matey's dissent. :thumbsup: Page 33

    You keep asking the wrong question. It is not so much why you are right, it is more about why the other side is wrong. Unless you defeat the other side's argument, it is still valid and the majority of judges can legitimately vote for that argument because it is not wrong. It is exactly why the courts keep deciding thing against us, because we fail to legitimately explain why the other argument is wrong.

    That is what happened here two judges voted for the other argument, while one voted for the 2A argument.
     

    wjackcooper

    Active Member
    Feb 9, 2011
    689
    You keep asking the wrong question. It is not so much why you are right, it is more about why the other side is wrong. Unless you defeat the other side's argument, it is still valid and the majority of judges can legitimately vote for that argument because it is not wrong. It is exactly why the courts keep deciding thing against us, because we fail to legitimately explain why the other argument is wrong.

    That is what happened here two judges voted for the other argument, while one voted for the 2A argument.

    You seem convinced : That (1) failing to comply with the Heller/McDonald “clear repudiation” of safety v. 2A balancing is ok, and that (2) using “disputed public safety implications” to support a 2A ruling is ok, and that (3) lawyers with the ability and experience of Paul Clement, Allen Grau, and Stephen Halbrook, et.al. are incompetent, obviously further discussion here will be of no help.

    Again we can only agree that we disagree.

    Regards
    Jack
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    You seem convinced : That (1) failing to comply with the Heller/McDonald “clear repudiation” of safety v. 2A balancing is ok, and that (2) using “disputed public safety implications” to support a 2A ruling is ok, and that (3) lawyers with the ability and experience of Paul Clement, Allen Grau, and Stephen Halbrook, et.al. are incompetent, obviously further discussion here will be of no help.

    Again we can only agree that we disagree.

    Regards
    Jack

    Everything you said is completely wrong.

    I certainly don't believe the lower courts have correctly evaluated the 2A with respect to public safety. The have gotten it wrong, but it is not so wrong that SCOTUS has stepped in to correct the problem. I believe the key is to understand why SCOTUS is not stepping in. Part of that is understanding the basis as to what is correct about the lower court decisions so that holes in the argument can be found and exploited.

    I don't believe I have ever said that any lawyer is incompetent. I believe what I have said is that they have made poor arguments. I judge that based on what is accepted by the court. At the end of the day it does not matter what any of us thinks is the answer. All that matters is what we can get a court to accept.
     

    wjackcooper

    Active Member
    Feb 9, 2011
    689
    Everything you said is completely wrong.

    I certainly don't believe the lower courts have correctly evaluated the 2A with respect to public safety. The have gotten it wrong, but it is not so wrong that SCOTUS has stepped in to correct the problem. I believe the key is to understand why SCOTUS is not stepping in. Part of that is understanding the basis as to what is correct about the lower court decisions so that holes in the argument can be found and exploited.

    I don't believe I have ever said that any lawyer is incompetent. I believe what I have said is that they have made poor arguments. I judge that based on what is accepted by the court. At the end of the day it does not matter what any of us thinks is the answer. All that matters is what we can get a court to accept.

    Take a look at your post.

    Seems to me you remain convinced that:

    1. “Public safety” (not text, History and tradition) ought to be the controlling approach to 2A litigation.
    2. lawyers who make “poor arguments” are not incompetent lawyers.
    3. The Kennedy/Roberts wimp out is not the “key” to the post Heller/McDonald problem.

    Regards
    Jack
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    Take a look at your post.

    Seems to me you remain convinced that:

    1. “Public safety” (not text, History and tradition) ought to be the controlling approach to 2A litigation.
    2. lawyers who make “poor arguments” are not incompetent lawyers.
    3. The Kennedy/Roberts wimp out is not the “key” to the post Heller/McDonald problem.

    Regards
    Jack

    1. I am not sure what you mean by "Public safety". I do believe that the public has the ability to provide its own safety and that the government is incapable of providing public safety to its individual citizens. Text, history and tradition help understand certain limits of what that entails.

    2. I don't believe you can link the quality of an argument with the competency of the lawyer.

    3. Yes see NYSRPA as an example of a 2A case that was accepted.
     

    wjackcooper

    Active Member
    Feb 9, 2011
    689
    1. I am not sure what you mean by "Public safety". I do believe that the public has the ability to provide its own safety and that the government is incapable of providing public safety to its individual citizens. Text, history and tradition help understand certain limits of what that entails.

    2. I don't believe you can link the quality of an argument with the competency of the lawyer.

    3. Yes see NYSRPA as an example of a 2A case that was accepted.

    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
     

    kcbrown

    Super Genius
    Jun 16, 2012
    1,393
    2. I don't believe you can link the quality of an argument with the competency of the lawyer.

    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"?
     

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