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Woollard v. Gallagher (CA4) - Petition for Rehearing En Banc


skinnyb82

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Petition for rehearing en banc in Woollard v. Gallagher (Sheridan), filed on the 4th. Pulled it off of CA4's PACER for your enjoyment. Gura's got a pair of cajones, he basically called the original panel's ruling and opinion dead wrong. Three arguments:

 

"I. The Panel did not treat the right to bear arms as a fundamental right, and improperly limited its scope"

 

"Maryland simply cannot presume the 'right' does not exist, and burden handgun carry license applicants with making a showing that, by definition, few will be able to meet. It was thus error for the panel to assume that any sort of means-ends scrutiny applies here."

 

"II. The Panel did not correctly apply intermediate scrutiny, but rational basis review" (He really goes to town on this one)

 

"Yet the panel held the State met its burden by citing to hearsay statistics and anecdotal policy arguments—all contained in three affidavits rife with contested facts and signed by government employees. By whatever name it is called, the Supreme Court has repeatedly warned against this type of analysis...(cites McDonald)"

 

"The primary 'evidence' asserted to meet the State’s heavy burden were three affidavits from government employees. All three were police officers, one of whom was the Secretary and Superintendent of the Maryland State Police—a man who reports directly to the governor of the State whose actions were challenged. These affidavits were rife with untested supposition, hearsay and 'statistics'—the value and meaning of which are the focus of significant debate even amongst social scientists and statisticians in this field." Then goes to town on the theft argument

 

"In finding a substantial government interest at stake, the panel also credited Maryland’s relative violent crime rates in comparison to other States. In doing so, it failed to recognize that Maryland has one of the most restrictive handgun licensing regimes in the country and is still eighth in violent crime, second in robbery and third in homicide."

 

"III. As this Court previously declared, individuals exercising the right to bear arms retain Fourth Amendment rights"

 

And the conclusion is nothing but a masterpiece. Here's the whole thing.

WoollardvGallagher - Petition for En Banc.pdf

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Fox News has some article up about it. Adam Winkler opined that "The justices have to be cognizant of the politics of guns at this moment in time. Newtown makes it less likely the justices will want to wade into the gun issue." Oh, right, because Scalia gives a damn. Sotomayor is on record saying she wants to hear more gun control cases. They know they need to put this issue to bed or it's gonna keep being litigated until they do take it up. When's it going to be a better time? This isn't even an issue like "should AR-15s be legal" anyway. I (and everyone else who owns a firearm except our resident trolls) say better now than if Obama gets another SCOTUS appointment. Another thing is that the NY AG and Gura et al disagree on the existence of a circuit split. Apparently the NY AG has not read the majority opinion in Moore v. Madigan. I'm gonna take his opinions regarding firearms law, or the law period with a grain of salt given that he's gonna end up in front of SCOTUS one way or another seeing as how he's tasked with enforcing the SAFE Act, aka the most unconstitutional, gun grabbing garbage this country has ever seen. I wonder if he could say with a straight face that the SAFE Act is Constitutional.
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Right:

 

http://www.thehighroad.org/attachment.php?attachmentid=175144&stc=1&d=1353560819

 

I lifted this fro The Firing Line

 

 

Gura said the Illinois ruling "brings this split into sharp relief at the federal appellate level."

 

But Schneiderman said the decision in Illinois stressed the unique nature of the state law that was struck down and contrasted that law with the statutes in New York and elsewhere that give officials wide discretion in deciding whether to grant permits to carry guns in public.

 

From the post over there:

 

I guess Schneiderman is arguing that there is no split because Moore deals with a "unique" outright ban in Illinois while the situation in New York is completely different. Kachalski and Moore are Apples and Oranges - no relation, no split.

 

Gura says that a split exists between CA2 and CA7 in that CA2 says that "the Second Amendment has no practical impact beyond the threshold of one’s home." While "In contrast, the Seventh Circuit has now twice invalidated restrictions on Second Amendment rights outside the home. That court asserts that the right is equally important outside the home as inside, and has declared that regardless of location"

 

We could find out Monday if the case will be heard by SCOTUS - that would be cool.

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Petition for rehearing en banc in Woollard v. Gallagher (Sheridan), filed on the 4th. Pulled it off of CA4's PACER for your enjoyment. Gura's got a pair of cajones, he basically called the original panel's ruling and opinion dead wrong. Three arguments:

 

"I. The Panel did not treat the right to bear arms as a fundamental right, and improperly limited its scope"

 

"Maryland simply cannot presume the 'right' does not exist, and burden handgun carry license applicants with making a showing that, by definition, few will be able to meet. It was thus error for the panel to assume that any sort of means-ends scrutiny applies here."

 

"II. The Panel did not correctly apply intermediate scrutiny, but rational basis review" (He really goes to town on this one)

 

"Yet the panel held the State met its burden by citing to hearsay statistics and anecdotal policy arguments—all contained in three affidavits rife with contested facts and signed by government employees. By whatever name it is called, the Supreme Court has repeatedly warned against this type of analysis...(cites McDonald)"

 

"The primary 'evidence' asserted to meet the State’s heavy burden were three affidavits from government employees. All three were police officers, one of whom was the Secretary and Superintendent of the Maryland State Police—a man who reports directly to the governor of the State whose actions were challenged. These affidavits were rife with untested supposition, hearsay and 'statistics'—the value and meaning of which are the focus of significant debate even amongst social scientists and statisticians in this field." Then goes to town on the theft argument

 

"In finding a substantial government interest at stake, the panel also credited Maryland’s relative violent crime rates in comparison to other States. In doing so, it failed to recognize that Maryland has one of the most restrictive handgun licensing regimes in the country and is still eighth in violent crime, second in robbery and third in homicide."

 

"III. As this Court previously declared, individuals exercising the right to bear arms retain Fourth Amendment rights"

 

And the conclusion is nothing but a masterpiece. Here's the whole thing.

 

Thank you for the post and the link.

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If it does, who thinks Lisa will then jump on the bandwagon and appeal our case?

 

I think it is a good bet she asks SCOTUS to take a look, and it is a good bet SCOTUS grants cert, and it is a good bet a stay of the mandate is issued.

 

But I would not bet the farm on any of it.

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She's got nothing to gain by filing petition for writ and a lot to lose. She won't file. I really love how she said that she'd wait to see what the ILGA does. It's like "well I'm gonna wait to see if they pass a (BAD) law, if they don't then I'll appeal to SCOTUS." Yeah, right. If SCOTUS takes Kachalsky then there's little reason for them to take up Moore as well since arguing the merits of may issue moots the whole no issue...issue. If SCOTUS doesn't take Kachalsky it'd be because of the whole political climate which means they would deny writ for Moore too. It would just be a stall tactic.

 

Sent from my SCH-R530U using Tapatalk 2

 

 

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If SCOTUS doesn't take Kachalsky it'd be because of the whole political climate which means they would deny writ for Moore too. It would just be a stall tactic.

 

Hadn't thought of that, and I agree. Personally, I think our AG is waiting to see what SCOTUS does with Kachalsky before deciding.

 

If they deny cert SCOTUS is effectively saying may issue is ok, and its formally the precedent for the 2nd circuit at least.

 

My guess, if cert is denied, she'll not appeal - but it's because the denial of cert gives the Chicago machine the reasons to push for a bad may-issue bill.

 

If SCOTUS grants, then it's still up in the air what our AG does, IMO. I think she has more to lose by filing for cert.

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IMO I highly doubt that SCOTUS will be influenced by all of the fighting over guns. Kachalsky involves carry outside the home not what size magazines can have or if your AR has a foregrip, none of the issues contended at the national level. heck, no one is making a big stink about carry. Even Manchin-Toomey has a provision for those with carry permits. Totally different matter at hand. If SCOTUS is influenced by what's going on then, as you said, they are affirming may issue for now. I just can't see them doing that without taking the case. They WILL hear a may issue challenge and we need them to hear it sooner rather than later. Just address the issue of carry outside the home.

 

Sent from my SCH-R530U using Tapatalk 2

 

 

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The only thing it could do is buy time while the Madiganistanis wear down legislators who'd rather get to work on the budget crisis.

 

It would be cool though if SCOTUS ruled on the case and only gave Illinois 30 days to comply...

yea i would love that.
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That was nice and quick. I was a bit off-put that he had appealed en banc, but now he can appeal to SCOTUS and possibly get a hearing this session if they grant cert.

 

Hopefully SCOTUS jumps on this case fast and shuts little Lisa up quick! I dont know the time frame for them deciding on whether or not to take a case, I'm sure Skinny will be along soon or someone else that can give us an idea of time frames.

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SCOTUS conferences on the 19th, 26th, and every Friday in May. Last Friday in May is the last conference for the term so 6 more. Gura needs to get on it because there's a mandatory 30 day period to file responses and amici. That is unless respondents waive right to respond...which would signal that they believe the petition is frivolous snd expect SCOTUS to deny cert and they wanna get the denial before June.

 

Sent from my SCH-R530U using Tapatalk 2

 

 

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SCOTUS conferences on the 19th, 26th, and every Friday in May. Last Friday in May is the last conference for the term so 6 more. Gura needs to get on it because there's a mandatory 30 day period to file responses and amici. That is unless respondents waive right to respond...which would signal that they believe the petition is frivolous snd expect SCOTUS to deny cert and they wanna get the denial before June.

 

Sent from my SCH-R530U using Tapatalk 2

 

He better move quick then because you know the opposing team will use up every second of the 30 days. By the close of business today would be fantastic.

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Wow...."The petition for rehearing en banc was circulated to the full court. No judge requested a poll under Fed. R. App. P. 35. The court denies the petition for rehearing en banc."

Not ONE judge? Uhhhh.....ehhh, that's weird.

 

I guess thats why it was so fast, didn't have to wait for someone to write a decent.

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That's because they already had it locked and loaded. Three numbskulls can overturn a district court ruling, then not a single sitting judge on a federal appellate court bothers to even poll the judges? What the heck, seriously.

 

Gura knew there was no way in heck CA4 would rehear it. I was reading a comment over on MD Shooters made by someone who presumably knows Alan Gura personally or professionally (he referenced a conversation with him, or some sort of correspondence). The Court apparently wants Moore, something about the tempo of the case being similar to how SCOTUS operates but if Lisa does nothing, then all the default option for cert to is Woollard. He made the point that Woollard is not like Kachalsky, which is 100% about concealed carry and is dissimilar to Woollard in that CA2 affirmed the lower court's ruling while CA4 overturned a lower court's ruling, so this is not just about carry. Gura filed for en banc as a stall tactic to let Kachalsky take its course and see if Lisa is gonna file petition for writ in Moore. He also would prefer Moore (another reversal of not one but two lower court rulings, but in opposite order) but if that doesn't happen, he will take Woollard to SCOTUS because that's the only case they'll be able to hear that involves carry outside the home. Basically, his backup plan or his cleanup batter is Woollard if Moore doesn't go anywhere.

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