Kolbe v O'Malley Motion For Summary Judgement Filed 17 March 2014

[fabsroman]

Here's a question - pardon my ignorance of the finer points of the court when it comes to this kind of thing - but part of the reason she didn't allow for the plaintiff's point of view was because according to her, we didn't provide evidence to support our assertions. Are we going to be able to go back and fill in those blanks when this gets pushed forward, or do we have to lie in the bed we made?

The appeal is usually based upon the record. At the appellate level, the record is what is introduced into evidence at the trial level (e.g, deposition testimony, studies, expert opinions, any testimony/evidence offered at trial). There was no trial in this matter.

Usually, appeals are based on errors in the law, not on evidence. Now, when appealing the granting of a Summary Judgment by the trial court judge, it can be overturned and remanded to the trial court IF the appellate court finds that there was a dispute of fact AND that fact was material to the determination of the case. If it ends up being that the trial court was in error in its granting of Summary Judgment, then the matter gets remanded to the trial court so a trial can take place in front of the trier of fact (i.e., Judge or Jury) depending on the case.

In summary, the evidence is what it is right now. Pretty sure the discovery period ended quite a while ago if a Motion for Summary Judgment was filed and ruled on. Unless there are really some insane circumstances at the appellate level, no new evidence can be entered.

 

[L0gic]

All I had to do was read Defendant's Motion for Summary Judgment GRANTED. We lost.

I'm in a good mood today with a ton of work to do, so I'll read the opinion when I am already in a crappy mood. No sense ruining a good day.

Guess it is off to the 4th Circuit at this point without any trial at the District Court level. SUCKS!!!!!!!!!!!!

They got me doing code at work (and I'm not a coder by profession) and I just made a big breakthrough. Come home and the internet is out which happily took just cycling the networking equipment. When I finally get online, I see this ruling. Consider my balloon popped.

How she can say no evidence supporting lawful use when there is no evidence of their unlawful use either is beyond me. Its equivalent to saying you can't prove you didn't do it so off to jail you go.

Oh wait, she is a Clinton appointee. Must be payback since D.C. got their caboose handed to them.

 

[swinokur]

We didn't understand the 4CA 's reasoning in Woolard either. What's changed?

 

[fabsroman]

I agree with the bolded statement (as if you needed my approval ). I think that arms in use by the military are what is protected.

How else can a citizenry overthrow a tyrannical government if it does not have the same level of weapons as the tyrannical government?

However, I am glad you approve.

 

[fabsroman]

We didn't understand the 4CA 's reasoning in Woolard either. What's changed?

I have already said this. Unless one side is wrong as can be, Judges can find something in the law to go whatever way they want. I've seen it with cases in SCOTUS, and when they really cannot find any precedent in the law to support the way they want to go, then they use public policy.

How can SCOTUS, 9 of the most learned Judges in the country, decide things 5-4 so often? Is the law really that undecided? NO!!!!! They just decide how they want to go on a personal/policy basis and then go and find some BS to justify it.

It does not matter if we understand the reasoning that got them to their result. All that matters is, that is the result.

 

[swinokur]

yes indeed. exactly

 

[rem87062597]

I have already said this. Unless one side is wrong as can be, Judges can find something in the law to go whatever way they want. I've seen it with cases in SCOTUS, and when they really cannot find any precedent in the law to support the way they want to go, then they use public policy.

How can SCOTUS, 9 of the most learned Judges in the country, decide things 5-4 so often? Is the law really that undecided? NO!!!!! They just decide how they want to go on a personal/policy basis and then go and find some BS to justify it.

It does not matter if we understand the reasoning that got them to their result. All that matters is, that is the result.

Which means we need to get this to SCOTUS before that 5-4 changes to 4-5.

 

[fabsroman]

Which means we need to get this to SCOTUS before that 5-4 changes to 4-5.

Did you see what Kennedy did for Obamacare? There is no telling what he would do with this case. He made a fine into a tax. Essentially, we are getting "taxed" for not doing something mandated by the government, instead of fined. Like I said, they can figure out a way to go whichever way they please.

Yes, let's get to SCOTUS and hope that Kennedy is still on our side, because as it stands right now there is nothing to lose.

 

[FlatsFlite]

Did you see what Kennedy did for Obamacare? There is no telling what he would do with this case. He made a fine into a tax. Essentially, we are getting "taxed" for not doing something mandated by the government, instead of fined. Like I said, they can figure out a way to go whichever way they please.

Yes, let's get to SCOTUS and hope that Kennedy is still on our side, because as it stands right now there is nothing to lose.

That was Roberts I believe.

 

[willyb]

this ruling completely blows. while I am dismayed, I would like to thank everyone who has put in time, effort, or monetary donations toward preserving our rights.

 

[ericahls]

After this ruling I fell safer already. Now off the the range with my evil "assult riffles"

 

[krucam]

Taking a deep breath here...

OK, we lost at District in front of an obviously very biased Judge. Move on...

This is one of a handful of cases (NY, CO, CA) challenging "common use guns" and "standard capacity mags". I believe all have lost at District, someone correct me if I'm incorrect, please.

As we had a dozen "carry" cases filed after McDonald with only a few (Palmer/Baker/Richards/Peruta) surviving, the Heavy Hitters (SAF/NRA) did the heavy lifting.

Now, with ALL DUE RESPECT to Mr Sweeney, who I believe did ADMIRABLY at Orals, will SAF/NRA now step in to pick up at the Appellate Level?

Is it time to make a real push for "common use" weapons & "standard capacity" magazines? If so, why?

We have "Bear" spelled out in the BOR. This MUST be resolved.

Dicta from Miller on "common use" is a worthwhile teaser, worthy of pursuing I believe. I believe the "common use" chase, while not spelled out in the BOR, IS a worthwhile pursuit. If it isn't stopped now, we face a long climb in a decade if re-pursued. "Bear" will always be the carved in stone, pre-existing right that it is.

The two paths are both very worthy in terms of setting the medium term goals.

 

[krucam]

this ruling completely blows. while I am dismayed, I would like to thank everyone who has put in time, effort, or monetary donations toward preserving our rights.

Concur...thanks Mr Sweeney, thanks MSI.

 

[DC-W]

Taking a deep breath here...

OK, we lost at District in front of an obviously very biased Judge. Move on...

This is one of a handful of cases (NY, CO, CA) challenging "common use guns" and "standard capacity mags". I believe all have lost at District, someone correct me if I'm incorrect, please.

As we had a dozen "carry" cases filed after McDonald with only a few (Palmer/Baker/Richards/Peruta) surviving, the Heavy Hitters (SAF/NRA) did the heavy lifting.

Now, with ALL DUE RESPECT to Mr Sweeney, who I believe did ADMIRABLY at Orals, will SAF/NRA now step in to pick up at the Appellate Level?

Is it time to make a real push for "common use" weapons & "standard capacity" magazines? If so, why?

We have "Bear" spelled out in the BOR. This MUST be resolved.

Dicta from Miller on "common use" is a worthwhile teaser, worthy of pursuing I believe. I believe the "common use" chase, while not spelled out in the BOR, IS a worthwhile pursuit. If it isn't stopped now, we face a long climb in a decade if re-pursued. "Bear" will always be the carved in stone, pre-existing right that it is.

The two paths are both very worthy in terms of setting the medium term goals.

Excellent post.

This case is a HUGE deal and all those able to support a favorable ruling should do so.

 

[krucam]

Excellent post.

This case is a HUGE deal and all those able to support a favorable ruling should do so.

Was it over when the Germans bombed Pearl Harbor???

 

[DC-W]

Was it over when the Germans bombed Pearl Harbor???

It was when we dropped the A-Bomb in Berlin.

 

[Cyndi59]

Add me to the AR-15 and AK-47 list please..I own both

 

[Mr H]

looks like time for a poll

 

[Soul Rebel]

this district court c**t totally missed the point. the standard is not what is commonly owned by citizens, its what is common use by the military.

 

[Patrick]

It was when we dropped the A-Bomb in Berlin.

...from the planes that took off from our 58th state.


On a serious note, the ruling attempted to determine facts from the evidence. That makes the evidence noteworthy.

An entire class of firearms was ruled to fall outside the Second Amendment. Once you do that, everything that follows is just tragic nuance.

Take heart in a few things:

- Gun Control is limited to the "edges" of the Second Amendment. Today's courts are willing to cede significant margin to the government, and widen that "edge".

- But to get there, they need to do things like rule an entire class of firearms - including the most popular long guns in the USA for the last generation - outside the penumbra of the Second Amendment.

Follow it through and see how even this "loss" advances the ball down the court. It acknowledges that they literally cannot regulate firearms without removing them from the protection of the Second Amendment. Stop and think about the corollary: if those same arms are covered by the Constitution, they essentially set themselves to cede the fact they cannot be regulated in this manner.

In other words, if their entire regulatory scheme is based on a straw-man argument (the guns are outside 2A), what happens to it when the straw man falls?

You cannot get these lines drawn unless you go to court, and you cannot go to court unless you have someone using the law to harm you. And you cannot get these things decided in the Supreme Court without losing. Losing is part of the plan.

SCOTUS has not bitten some of the more recent cases on carry, but nobody on either side of this debate think that remains the case much longer. These questions are going to get answered.