PISZCZATOSKI submission date

[hvymax]

Gura starts off for a while with no interruption, and then Aldisert(very old judge) professes that Kachalsky was "powerful".

NJ's lawyer is absolutely getting annihilated by Judge Hardiman, who has absolutely done his homework on the issue. NJ's lawyer seems like she's WAAAAYYY out of her league. Her facts are wrong, she can't remember statutes,exc.
Still listening.......

I thought she was going to cry at a few points. The truth must be a right wing conspiracy because if she would have admitted the truth she would have lost.

 

[esqappellate]

Note: Court has entered an ordering instructing the parties to prepare a transcript of the argument!! Very unusual.

"During argument today, the Court directed counsel to file a transcript of oral argument. The transcript of oral argument is to be filed no later than Tuesday, February 26, 2013 in the above-entitled case(s). Liaison counsel should immediately advise the Clerk’s Office of the court reporter or agency handling the transcription of oral argument. At the direction of the Court,
the costs should be shared equally between the parties"

 

[press1280]

Note: Court has entered an ordering instructing the parties to prepare a transcript of the argument!! Very unusual.

"During argument today, the Court directed counsel to file a transcript of oral argument. The transcript of oral argument is to be filed no later than Tuesday, February 26, 2013 in the above-entitled case(s). Liaison counsel should immediately advise the Clerk’s Office of the court reporter or agency handling the transcription of oral argument. At the direction of the Court,
the costs should be shared equally between the parties"

Why would they ask counsel to file a transcript of the argument???

After listening all the way through, looks like we'll need Judge Stark in order to win here. The old judge seemed like he thought NJ's modern Jim Crow law was just fine.
NJ's attorney was awful, just kept rpeating the same lines over and over.

 

[esqappellate]

Why would they ask counsel to file a transcript of the argument???

After listening all the way through, looks like we'll need Judge Stark in order to win here. The old judge seemed like he thought NJ's modern Jim Crow law was just fine.
NJ's attorney was awful, just kept rpeating the same lines over and over.

It was at the request of Judge aldisert He probably can't hear very well. so he wants to read it. Argument here is quite important.

 

[JPG]

Did they ask for the transcript so that the NJ attorney could explain things better (site laws, etc.) than was explained in court?

 

[esqappellate]

Did they ask for the transcript so that the NJ attorney could explain things better (site laws, etc.) than was explained in court?

No, NJ gets a supp. brief. That is separate from the transcript of the argument. That trans is done by a court reporter from the tape

 

[Peaceful John]

Aldisert is very much in NJ's corner. Hardiman is killing NJ's counsel. NJ's counsel is avoiding the obvious traps. she can't be truly responsive to Hardiman without losing the case. She knows that. Note she got NOWHERE with any judge in the argument that the right is home bound. Wow, she is denying that the objective is to limit guns on the streets. Hardiman is right "it is inescapable" To protect the public by having fewer guns on the street!! Aldisert is wrong in saying that "justifiable need" is without standard is the main argument for Gura. Vagueness is not the test, Good job on rebuttal

EsqAppellate, that being the case does it seem like the more probable outcome would be an agreement between Aldisert and Stark to punt to SCOTUS?

 

[Kharn]

Aldisert is ancient, for sure. I am surprised he is still sitting. I have no clue concerning the 2A views of these three judges.

Aldisert turns 94 in November.
He was appointed by Johnson, in 1968.

 

[esqappellate]

EsqAppellate, that being the case does it seem like the more probable outcome would be an agreement between Aldisert and Stark to punt to SCOTUS?

On first hearing, I could not discern Start's views. I am going to have to listen closely again. Hardiman certainly seemed to understand the argument. Aldisert was setting up straw men. If they go the way Kachalsky held, then easier for SCT to deny cert. If they reverse, then the conflict is direct. Since NY asked for an extension, there is a small chance that they will rush to decide the case before cert is decided. I would not expect them to rush to a decision. If cert is granted in Kachalsky, they will probably sit on the case.

 

[press1280]

It was at the request of Judge aldisert He probably can't hear very well. so he wants to read it. Argument here is quite important.

Got it, that makes sense.

I'm curious what your take was with the exchange near the end with Judge Stark and the NJ attorney at about 56:00. To me it seemed she was cornered when confronted about NJ's position being "only in the home" and that a purpose of justifiable need was to prevent most NJ citizens from carrying. She stumbled all over the place.

 

[JPG]

Aldisert turns 94 in November.
He was appointed by Johnson, in 1968.

That is dedication. I don't think he is living of Social Security. Way to go.

 

[esqappellate]

That is dedication. I don't think he is living of Social Security. Way to go.

Indeed, of course, federal judges are paid for life....even the ones on senior status. I don't mind. Their pay is a pittance compared what they could command in the private sector.

 

[esqappellate]

Got it, that makes sense.

I'm curious what your take was with the exchange near the end with Judge Stark and the NJ attorney at about 56:00. To me it seemed she was cornered when confronted about NJ's position being "only in the home" and that a purpose of justifiable need was to prevent most NJ citizens from carrying. She stumbled all over the place.

I am going to listen to that again. She was being cornered a lot. She did not expect it, it would seem. I rather enjoyed hearing her squirm. They treated Gura with kit gloves by comparison. Note, we really can not read much into this argument. Aldisert is likely to sustain the NJ law. Hardiiman at least understands the issues well, but then so did the panel in Kachalsky.

EDIT: THIS exchange starting at minute 56 is most interesting. First Stark pins her down on outside the home. She quivers, dodges but ultimately holds firm. Then he closely questions on whether she concedes the purpose is a "desire to limit the overall number of handguns in public." She denies it (fortunately for her), but then falls back on "public safety." She dodged the questions, but she is nailed by Hardiman with his "inescapable" point. Stark, then points out her "public safety" rationale is just another way of saying fewer guns. Then NJ counsel offered to do a supp. brief. on the rationale or purpose of the bill, viz., more accidents and more misuse. She is not going to finding any legislative finding that persons who can satisfy the standard are less likely to have accidents or misuse the firearm. She is in a corner. The questions are very, very good. At which time Aldisert chimes in on the point whether "justifiable need is without standard." That's a softball from Aldisert -- he is looking for help here, as he is making an argument to his colleagues on the bench, to limit the argument to a vaguenss point so he can rule that it isn't vague, QED. Stark and Hardiman show no sign of buying that limited construction of the claim. This will be an interesting opinion. The panel understands the points, especially Hardiman and Stark. Whether they are willing to go where logic leads is hard to say. The Kachalsky panel understood it too, but ultimately bailed with that very damaging opinion. That Kachalsky's rationale was rejected in Moore is a big help, as it gives this panel something to chew on.

 

[Storm40]

wth is a "knee-id"?
I know she's saying need, but damn, it is driving me nuts.
ack! just heard "re-see-uhved" (received)

and, she doesn't know anything about her own case, it seems to me. lots of squirming, as noted.

 

[Bob A]

Poor child was eaten for lunch by Gura. He thanked her for stating that the 2nd amendment differed from the rest, and beat her down with the high court's direct denial of that argument.

Not a career-enhancing performance by counsel for the state.

 

[esqappellate]

Poor child was eaten for lunch by Gura. He thanked her for stating that the 2nd amendment differed from the rest, and beat her down with the high court's direct denial of that argument.

Not a career-enhancing performance by counsel for the state.

Agreed. But, she didn't do *that* badly under very pointed and penetrating questions that demonstrate the logical holes in her theory of the case. She was able to avoid giving the case away -- she just kept falling back to the mantra of "public safety." Holes abound in that rationale and both Stark and Hardiman found them. The theory is indefensible logically, but those are the cards she were dealt. Strong close by Gura in rebutal.

 

[Les Gawlik]

Wow. She's bad, very bad. I can't believe she admits she saw a cite in her opponents brief and didn't bother to check it out. Vague "feelings," more like a cocktail party than an appellate argument. Aldisert tries to throw her a rope, and she doesn't have the knowledge to grasp it. She should have broken down in tears, and crawled out of the courtroom. Unfortunately, even that disastrous performance may be enough.

They pounced on Gura for arguing that there are no effective limits on the discretion to deny permits. At least one judge told him that argument was a loser, and he should have argued that the limits were too stringent. One can always leave New Jersey, grow a mustache and live under an assumed name, so the last resort concept of CC permit standard IS way too tough.

What NJ and MD is a set of statistics showing the number of permit applications, denials AND the number of those persons who would have filed for a permit BUT FOR the incredibly restrictive standard. Without that number, I don't think we will win.

 

[esqappellate]

Wow. She's bad, very bad. I can't believe she admits she saw a cite in her opponents brief and didn't bother to check it out. Vague "feelings," more like a cocktail party than an appellate argument. Aldisert tries to throw her a rope, and she doesn't have the knowledge to grasp it. She should have broken down in tears, and crawled out of the courtroom. Unfortunately, even that disastrous performance may be enough.

They pounced on Gura for arguing that saying there are no effective limits on the discretion to deny permits. At least one judge told him that argument was a loser, and he should have argued that the limits were too stringent. One can always leave New Jersey, grow a mustache and live under an assumed name, so the last resort concept of CC permit standard IS way too tough.

What NJ and MD is a set of statistics showing the number of permit applications, denials AND the number of those persons who would have filed for a permit BUT FOR the incredibly restrictive standard. Without that number, I don't think we will win.

Interesting. I heard Aldisert say that Gura is running through open doors on outside the home. Minute 6:03. That suggested to me that he thought that the 2A applies outside the home under existing 3d Circuit precedent. I think Hardiman was alluding to the same point, saying that the 2A applies and thus the court gets to step two (intermediate scrutiny). Gura didn't hear that in the question, but I did. But no one on the bench really disputed Gura's point that the standard, however, strict or clear, acted in such a way to require citizens to get the state's permission first and that it was so strict as to effectively deny many citizens, including these very clients, of access to the right. I heard NO support for the idea that the right is limited to the home -- that dct ruling is dead in the water according to Hardiman. He sees the only issue is whether there is a "sufficient fit" between the restriction and the state interest proffered. The state's proffered interest is public safety. The panel, at least Stark and Hardiman were very skeptical of the State's argument that the purpose was not simply to restrict the exercise of the right. Both referred to the *state's* burden, not Gura's burden, to show the tie between the restriction and the state's interest. We are seeing the influence of Posner's opinion here in Moore. Hardiman makes that point in discussing Kachalsky. Gura could still win even if the court finds that the standard is not vague.

 

[Les Gawlik]

Interesting. I heard Aldisert say that Gura is running through open doors. That suggested to me that he thought that Gura was needlessly resisting the point that "justifiable need" is not vague but even so was too strict to survive constitutional attack. I think Hardiman was alluding to the same point. Gura didn't hear that in the question, but I did. But no one on the bench really disputed Gura's point that the standard, however, strict or clear, acted in such a way to require citizens to get the state's permission first and that it was so strict as to effectively deny many citizens, including these very clients, of access to the right. I heard NO support for the idea that the right is limited to the home -- that dct ruling is dead in the water. The panel, at least Stark and Hardiman were very skeptical of the State's argument that the purpose was not simply to restrict the exercise of the right. Both referred to the *state's* burden, not Gura's burden, to show the tie between the restriction and the state's interest.

Perhaps I should have phrased it differently. I though Hardiman criticized Gura for arguing the NJ standard was impermissibly vague. Hardiman said he knew what it meant, and he thought the better argument was that the standard is clear, but is an impermissible burden on the exercise of the right. And it clearly is. It's as bad or worse than G&S.

The problem with our strategy is that our opposition can use fear, uncertainty and doubt against us. We must turn that around. For example, most of us are not counted in the Woollard equation. We could have introduced 1/ the number of Utah CC holders who do not have a Maryland CC. I'll bet that number is growing leaps and bounds. Those are people who have gone to the trouble of taking a course and obtaining a CC that is absolutely of no help to them in their home state. Were I a judge, that would be a compelling bit of information regarding the number of people who have been oppressed into not even trying to obtain their right by the bullying tactics of the state. Because you know the state turns around and trumpets the percentage of permits it does issue, and says, "Who, me?"

We need statisticians and pollsters to join our side. The opponents do it all the time, and courts eat it up when they want to.


1/ If we did, sorry. Once ranting, it's hard to stop

 

[esqappellate]

Perhaps I should have phrased it differently. I though Hardiman criticized Gura for arguing the NJ standard was impermissibly vague. Hardiman said he knew what it meant, and he thought the better argument was that the standard is clear, but is an impermissible burden on the exercise of the right. And it clearly is. It's as bad or worse than G&S.

The problem with our strategy is that our opposition can use fear, uncertainty and doubt against us. We must turn that around. For example, most of us are not counted in the Woollard equation. We could have introduced 1/ the number of Utah CC holders who do not have a Maryland CC. I'll bet that number is growing leaps and bounds. Those are people who have gone to the trouble of taking a course and obtaining a CC that is absolutely of no help to them in their home state. Were I a judge, that would be a compelling bit of information regarding the number of people who have been oppressed into not even trying to obtain their right by the bullying tactics of the state. Because you know the state turns around and trumpets the percentage of permits it does issue, and says, "Who, me?"

We need statisticians and pollsters to join our side. The opponents to it all the time, and courts eat it up when they want to.


1/ If we did, sorry. Once ranting, it's hard to stop

I think Gura needs to modify the "unbridled discretion" point. As the panel points out, the discretion in NJ is not so much as unbridled (there is a standard of sorts), but that it is so strict and and unconstrained as to effectively limit access to the right. It would be great to have numbers on denials, but that backfires, as the deterrence effect of the standard prevents many from applying at all. The bigger point is the one pushed by Gura, viz., that an individual's right should not be subject to some official's determination of "need" to exercise the right. However strict or lenient the standard is, that point is ultimately the winning argument, as it was in Woollard, IF the panel is willing to go there with that result. Stark led her down that garden path and then crushed her with the park and speech example. Her response is that guns are different. But Stark responded with a reference to the minority of states point and Gura crushed her with Heller's and McDonald's point that the 2A is to be treated no differently than other constitutional rights. Aldisert is clearly uncomfortable with the result -- to him the state may require "an objective need for self defense" under the 2A. Not at all clear how Hardiman and Stark feel (in their gut) about the result. It may turn on their gut rather than their minds. These two guys have the intellect to see the holes in the State's argument. Very impressively so. Whether they possess sufficient judicial courage to strike this NJ statute down is a different question. Kachalsky panel saw the holes too, but they refused to go where the logic leads. That panel proves that if judges don't want to go there, they will try to find a way not to go there, even if that does violence to the law or logic. Posner has the courage, many judges do not.