SAF Issued file new law suit challenging common semiautomatic rifle ban

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  • jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    Nope.

    What was “conceded” was “this court” has “no discretion.” This stuff is not hard to understand.

    Take a look at what Moss wrote, i.e., “[p]lantiffs acknowledge” that: (1) the “result” sought in Bianchi “is contrary to Kolbe “ (2) ” there is “no discretion but to dismiss” and then (3) asserted that Kolbe “should be overturned by a court competent to do so.”* Then look at what the Judge wrote, "Plaintiff’s conceded that this Court has no discretion but to dismiss Plaintiffs’ complaint.”** It is (or should be) obvious that “this court” (the District Court) is not the 4th Circuit Court of Appeals, or the Supreme Court.

    The 4th Circuit Court of Appeals is a “court competent” to overrule Kolbe, but the realistic objective is a 5 to 4 overturn in the Supreme Court.** The case is simply being postured (by a very “competent” lawyer) to avoid controllable delays.

    Yea!

    Regards
    Jack

    *https://www.courtlistener.com/docket...anchi-v-frosh/ PLAINTIFFS’ RESPONSE TO THE COURT’S ORDER TO SHOW CAUSE
    Page 1.
    “Plaintiffs acknowledge that the result they seek is contrary to Kolbe v. Hogan, 849 F.3d 114 (4th Cir. 2017) (en banc), and therefore that this Court “has ‘no discretion’ but to dismiss” Plaintiffs’ complaint. Eriline Co. S.A. v. Johnson, 440 F.3d 648, 655 n.10 (4th Cir. 2006). Nevertheless, Plaintiffs believe that precedent should be overturned by a court competent to do so.”

    ** https://www.courtlistener.com/docket/18705819/28/bianchi-v-frosh/

    If the lower court truly has no discretion why was Rogers argued differently?

    The fact of the matter is that precedent is not inextricable as the court claims.

    Based on the concession, the 3 judge panel will dismiss the case also because they are not a "competent" court either.

    There is no reason for the en banc to step in because the 4th circuit just like every other court that examined the issue decided the case based on intermediate scrutiny and this case present no new arguments as to why this is wrong.

    SCOTUS will reject it for the same reason.
     

    wjackcooper

    Active Member
    Feb 9, 2011
    689
    Controlling case law and creditable commentators provide no cause for cynicism. Heller/McDonald (prevailing law) precludes interest-balancing (safety v. 2A) via intermediate scrutiny. Justice Alito in McDonald (majority opinion) and Judge (now Justice) Kavanaugh in Heller 11 (dissenting opinion) nailed it:

    *Alito,”n Heller, we held that individual self-defense is “the central component” of the Second Amendment right.” Page 19, McDonald, para. 3. “In Heller, however, we expressly rejected the argument that the scope of the Second Amendment right should be determined by judicial interest balancing,” . . . . Page 39, McDonald, para. 1.

    ** Kavanaugh, in Heller 11 “I read Heller and McDonald as setting forth a test based wholly on text, history, and tradition.” Page 14, Heller 11, para. 1. “Strict and intermediate scrutiny are balancing tests and thus are necessarily encompassed by Heller’s more general rejection of balancing.” Page 22, Heller 11, para. 4.

    The odds continue to appear better than even at 5/4 for a 2A win in the SC. Below is a link to an article (easy, quick read) which was “part of a symposium on the jurisprudence of Supreme Court nominee Amy Coney Barrett” that pretty much sums up the 5/4 SC picture. ***

    Regards
    Jack

    * Justice Alito, majority opinion in 2010, McDonald (Scroll down to pages 19, para. 3 and 39, para. 1.):
    https://www.supremecourt.gov/opinions/09pdf/08-1521.pdf

    ** Judge (now Justice) Kavanaugh, dissenting in 2011, Heller 11: (Scroll about one half way down for his opinion, then to page 14 para. 1 and page 22 para. 4):
    https://www.cadc.uscourts.gov/internet/opinions.nsf/deca496973477c748525791f004d84f9/$file/10-7036-1333156.pdf

    ***Article: Barrett’s history-first approach (See para. 5) “Barrett would change that calculus as a justice likely to take an expansive view of Second
    Amendment protections.”
    https://www.scotusblog.com/2020/10/...story-first-approach-to-the-second-amendment/
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    Controlling case law and creditable commentators provide no cause for cynicism. Heller/McDonald (prevailing law) precludes interest-balancing (safety v. 2A) via intermediate scrutiny. Justice Alito in McDonald (majority opinion) and Judge (now Justice) Kavanaugh in Heller 11 (dissenting opinion) nailed it:

    *Alito,”n Heller, we held that individual self-defense is “the central component” of the Second Amendment right.” Page 19, McDonald, para. 3. “In Heller, however, we expressly rejected the argument that the scope of the Second Amendment right should be determined by judicial interest balancing,” . . . . Page 39, McDonald, para. 1.

    ** Kavanaugh, in Heller 11 “I read Heller and McDonald as setting forth a test based wholly on text, history, and tradition.” Page 14, Heller 11, para. 1. “Strict and intermediate scrutiny are balancing tests and thus are necessarily encompassed by Heller’s more general rejection of balancing.” Page 22, Heller 11, para. 4.

    The odds continue to appear better than even at 5/4 for a 2A win in the SC. Below is a link to an article (easy, quick read) which was “part of a symposium on the jurisprudence of Supreme Court nominee Amy Coney Barrett” that pretty much sums up the 5/4 SC picture. ***

    Regards
    Jack

    * Justice Alito, majority opinion in 2010, McDonald (Scroll down to pages 19, para. 3 and 39, para. 1.):
    https://www.supremecourt.gov/opinions/09pdf/08-1521.pdf

    ** Judge (now Justice) Kavanaugh, dissenting in 2011, Heller 11: (Scroll about one half way down for his opinion, then to page 14 para. 1 and page 22 para. 4):
    https://www.cadc.uscourts.gov/internet/opinions.nsf/deca496973477c748525791f004d84f9/$file/10-7036-1333156.pdf

    ***Article: Barrett’s history-first approach (See para. 5) “Barrett would change that calculus as a justice likely to take an expansive view of Second
    Amendment protections.”
    https://www.scotusblog.com/2020/10/...story-first-approach-to-the-second-amendment/


    Have you ever read Heller? It seems pretty easy to see that Justice Breyer's interest-balancing approach is not the same as intermediate scrutiny.

    We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach.
    The court routinely uses it for certain 1A issues https://www.law.cornell.edu/wex/intermediate_scrutiny

    Heller does indicated that the DC law would not pass intermediate scrutiny. The specific quote is
    Under any of the standards of scrutiny that we have applied to enumerated constitutional rights,[Footnote 27] banning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” 478 F. 3d, at 400, would fail constitutional muster.

    The problem is that these "most able pro 2A Constitutional lawyers in the country" cannot articulate why the intermediate scrutiny the lower courts are applying is not actually intermediate scrutiny. All they can really do is make baseless claims that it is really rational basis. No explanation is given as to why.

    The answer is rather simple. The "evidence" that is presented does not demonstrate that it will alleviate the stated harms in a direct and material way. The evidence is speculative correlations without the required causation. If you want the court to properly respond, you need to make the appropriate arguments.
     

    Dancingturd

    Member
    Mar 23, 2021
    25
    Frederick County
    so there was an appeal 3/5. When can we expect more news? Sorry, i do not understand legislation and lawsuits very well and I am impatient to hear results! Going to send a few bucks towards SAF.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    so there was an appeal 3/5. When can we expect more news? Sorry, i do not understand legislation and lawsuits very well and I am impatient to hear results! Going to send a few bucks towards SAF.

    They docketed the case on 9 March. The 4th circuit case is 21-1255. It appears that they have filed all the formal notices and disclosures. The court will soon issue a briefing schedule and the plaintiff-appellants (Bianchi) will have 40 days to submit the opening brief. The State will have 30 days to respond and the plaintiff-appellants will have 21 more days to file a reply. The court will likely take 3-6 months after that to dismiss the case.

    The plaintiffs will have 14 days to file a petition for rehearing en banc. The 4th circuit will not likely grant the petition.

    The plaintiffs will then have 150 days (currently, but the court may change it back to 90 days if they feel COVID is over by then) to file a cert petition. The cert petition process is roughly the same timeframe as the 4th circuit, although there are typically extensions filed by one or both parties that extend the process several months. They typically schedule the first conference several weeks after the last brief.

    The court will likely deny the petition in its first conference just like the Kolbe case. Some people think that the court makeup is the reason for all these denials and that SCOTUS may take the case because of ACB. I believe the problem is with the arguments and none of the cases have articulated why the intermediate scrutiny process is being misapplied.
     

    Deep Thought

    Active Member
    Jan 27, 2013
    575
    Columbia, MD
    The court will likely deny the petition in its first conference just like the Kolbe case. Some people think that the court makeup is the reason for all these denials and that SCOTUS may take the case because of ACB. I believe the problem is with the arguments and none of the cases have articulated why the intermediate scrutiny process is being misapplied.

    Will this case be the first test with ACB? I suppose the outcome may enlighten us as to which theory is correct.
     

    trickg

    Guns 'n Drums
    MDS Supporter
    Jul 22, 2008
    14,598
    Glen Burnie
    So I'm a complete knucklehead here, but I wanted to ask the question - in light of Biden's speech yesterday, if we win this one in the courts, does that mean he's cut off at the knees for being able to even propose a ban on ARs and institute magazine capacity limits?
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    So I'm a complete knucklehead here, but I wanted to ask the question - in light of Biden's speech yesterday, if we win this one in the courts, does that mean he's cut off at the knees for being able to even propose a ban on ARs and institute magazine capacity limits?

    He will propose a ban or what ever else he chooses long before this case is resolved.
     

    lazarus

    Ultimate Member
    Jun 23, 2015
    13,678
    He will propose a ban or what ever else he chooses long before this case is resolved.

    Yup. IMHO, I want this case to get the SCOTUS and them strike down the ruling with a vengeance.

    That said, I don’t think an AWB, even a much more limited one than what Feinstein keeps writing, is going to pass. I think you’d have a hard time getting an Republicans on board and you’d probably lose at least a couple democrats too. And not just Manchin.

    AWBs and such are talking points for democrats. But some of them are from rural enough states they understand they’ll be out on their ass if they pass one. I don’t even think Schumer would push one out for a vote.

    I do think if Democrats actually want to pass something they’ll drag out the Manchin-Toomey limited background check expansion and pass that. They’d probably get enough Republicans and all Dems onboard for it and then they can say they did things.

    Biden will likely do some executive actions. From the supposed reports, try to regulatory ban 80s, expand the definition of “in the business” and work on grants for “gun crime prevention”.

    Probably could do that all by regulatory fiat, though I think the 80 thing they’ll lose at. The law is pretty clear on what a firearm is and if companies making 80s sue the ATF for classifying their 80s as firearms they are probably going to win if the ATF is going to start denying all applications and retro ban existing approved 80s.
     

    Allen65

    Ultimate Member
    MDS Supporter
    Jun 29, 2013
    7,063
    Anne Arundel County
    Biden will likely do some executive actions. From the supposed reports, try to regulatory ban 80s, expand the definition of “in the business” and work on grants for “gun crime prevention”.

    Probably could do that all by regulatory fiat, though I think the 80 thing they’ll lose at. The law is pretty clear on what a firearm is and if companies making 80s sue the ATF for classifying their 80s as firearms they are probably going to win if the ATF is going to start denying all applications and retro ban existing approved 80s.

    80% isn"t defined anywhere in law. An object is either a firearm under GCA 68, or it's not. Banning individuals from building their own firearms would require a statutory change.

    ATF does have regulatory discretionary authority to decide when a chunk of metal has enough "firearm features" to legally be a firearm. So they could roll things back like making an open mag well and buffer threads being present constitute a firearm even if the fcg pocket is untouched. But they'd have a huge legal problem if they tried to say any sale of a receiver frame prior to the regulatory change was now considered a crime.
     

    camo556

    Ultimate Member
    Aug 29, 2021
    2,634
    "Waiver of right of respondents Brian Frosh, et al. to respond filed."

    lol.

    It'll never happen, but once i'd like the supreme court just to grant cert without a reply and make them shit their pants.
     

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