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Kolbe et al v. Hogan (CA4 En Banc)


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#1 skinnyb82

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Posted 29 May 2016 - 01:07 PM

Kolbe was reheard by Judges Traxler, Wilkinson, Niemeyer, Motz, King, Gregory, Shedd, Agee, Keenan, Wynn, Diaz, Floyd, and Thacker.

Wilkinson is....Posner mocked Wilkinson's opinion in Masciandaro, the post-Heller "terra incognita" passage in his Moore opinion. I see the en banc panel drew 2/3 of the "We don't have a bleeping clue" (so certify and issue a certificate of appeal ability, maroons) panel that heard and decided Woollard.

Oral arguments:



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#2 Sweeper13

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Posted 29 May 2016 - 01:18 PM

Wow, they dont wait to get into the lawyer. Sounds like somebody is going to lose a lung with all the coughing.

 

Thanks Skinny for keeping us posted.


Edited by Sweeper13, 29 May 2016 - 01:19 PM.


#3 Davey

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Posted 29 May 2016 - 01:34 PM

What is this one about?

#4 Sweeper13

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Posted 29 May 2016 - 01:51 PM

Here u go. Skinny posted about the case Feb 4th

 

http://illinoiscarry...showtopic=60134



#5 Mr. Fife

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Posted 29 May 2016 - 03:27 PM

I'm waiting for the Cliff Notes version without the legalese.


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#6 skinnyb82

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Posted 29 May 2016 - 05:50 PM

The court sua sponte granted en banc rehearing, vacated the panel opinion back in February. Original panel, I think we know where they stand. I know where Senior Judge Wilkinson stands, and it isn't with the law-abiding citizens of Maryland. I listened to this while mowing my lawn. Couldn't believe the idiotic hypotheticals that were being directed toward Sweeney. The "Let's say....manufacturer creates a new gun, and then gives it away for free so it's common. Will that be able to be banned if it's commonly owned?" Oh, yeah, ok let's assume a manufacturer invests a metric crapton of money to develop a new, revolutionary firearm, then gives away its product so as to nefariously skirt any possible AWB. The manufacturer will be insolvent, but hey at least the guns won't be able to be banned. Sent from my VS987 using Tapatalk
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#7 Indigo

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Posted 29 May 2016 - 06:25 PM

I just finished listening to the oral arguments, and my blood pressure is up, and I need a drink.  A number of the judges seem simply to not understand what "in common use" means, and they can come up with the strangest hypothetical situations.  A positive for the State of Maryland is that at least their lawyer seems to have a better grasp on his arguments than do the State of Illinois' lawyers, even though they don't have any better legal underpinning than the Illinois and Chicago cases.  If the en banc panel upholds the Maryland AWB, it will interesting to see what happens when it gets to SCOTUS, although the lack of Scalia makes me nervous.


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#8 MrTriple

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Posted 29 May 2016 - 07:33 PM

I just finished listening to the oral arguments, and my blood pressure is up, and I need a drink.  A number of the judges seem simply to not understand what "in common use" means, and they can come up with the strangest hypothetical situations.  A positive for the State of Maryland is that at least their lawyer seems to have a better grasp on his arguments than do the State of Illinois' lawyers, even though they don't have any better legal underpinning than the Illinois and Chicago cases.  If the en banc panel upholds the Maryland AWB, it will interesting to see what happens when it gets to SCOTUS, although the lack of Scalia makes me nervous.


It wouldn't be good. Kennedy is completely unreliable, meaning that, for all intents and purposes, you can only rely on 3 of the 8 justices to vote properly. If Trump wins, not only do we get an even swap for Scalia but we'll probably also get to replace Ginsburg because she already announced that she planned to retire in five years almost five years ago.
"The point of [so-called "assault weapon" bans]...is not to ban firearms that are dangerous, it's to ban firearms that gun owners want to own because the people making the laws don't like gun owners. If we want to buy non-semiauto AR-style rifles, they'll ban those too, and for the same reason."

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#9 skinnyb82

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Posted 29 May 2016 - 09:47 PM

Listen to Fader's arguments in re handguns and possibly banning them. He's the same Maryland AAG that argued Woollard. He was talking in circles, contradicting himself when he was asked in what type of situation strict scrutiny would be applicable. I don't know who that judge is that said let's dispense with the federalism nonsense, proceeded to rip apart Maryland's position, basically said since the Court in Heller applied strict scrutiny when it comes to the most dangerous of all firearms, strict scrutiny must be applied here, too. Maryland's argument fails because they refuse to even state that the firearms in question ARE protected by the 2A, even though SCOTUS in Heller said you can't substitute bans, yet that's precisely what MD has done. "You have enough options for self-defense" is NOT an argument in support of....anything. Imagine if the government were to say "We're banning construction of new churches. There's plenty as it is, you don't NEED to start your own so go to one of the existing churches." Right, I bet that would go over great (actually it probably would nowadays). Sent from my VS987 using Tapatalk
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#10 Indigo

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Posted 30 May 2016 - 07:29 AM

Listen to Fader's arguments in re handguns and possibly banning them. He's the same Maryland AAG that argued Woollard. He was talking in circles, contradicting himself when he was asked in what type of situation strict scrutiny would be applicable. I don't know who that judge is that said let's dispense with the federalism nonsense, proceeded to rip apart Maryland's position, basically said since the Court in Heller applied strict scrutiny when it comes to the most dangerous of all firearms, strict scrutiny must be applied here, too. Maryland's argument fails because they refuse to even state that the firearms in question ARE protected by the 2A, even though SCOTUS in Heller said you can't substitute bans, yet that's precisely what MD has done. "You have enough options for self-defense" is NOT an argument in support of....anything. Imagine if the government were to say "We're banning construction of new churches. There's plenty as it is, you don't NEED to start your own so go to one of the existing churches." Right, I bet that would go over great (actually it probably would nowadays). Sent from my VS987 using Tapatalk

I didn't mean to imply that Fader was good, except in comparison to the lawyers Illinois sends to argue these cases.  I've heard high school debaters that do better!  Any intellectually honest court must throw out this ban.  Too bad CA9 isn't one of them.


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#11 skinnyb82

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Posted 30 May 2016 - 11:35 AM

Oh, no, of course I don't think you would give Fader an ounce of credit haha. The guy is slimy. I noticed Fader stammering, stopping his argument altogether, reversing course. Sweeney did an excellent job deflecting red herrings thrown his way. I can say that Wilkinson is a write-off, but not because he's anti-gun. He objected to Roe on the exact same grounds (federalism) as he objects to this challenge. Sometimes judges will go after counsel for the "side" which they support, only to test their own intellect. Other times, well, the opposite. Attacking for the sake of attacking. The thing is that, if Heller struck down a complete and total ban on handguns ownership in D.C., then strict scrutiny was applied because the dangerousness and commonality test regarding handguns in D.C., well, as Sweeney pointed out, there were no handguns in D.C. prior to Heller. Commanlity test dictates the Maryland FSA fails on that. Dangerousness test also fails because handguns are used in 98% (wild guess) of gun-related homicides. If the handgun is far more dangerous than, say, a SPAS-12 (which has never been used in a mass shooting), then the Maryland FSA fails. Basically, strict scrutiny applies, the FSA fails. Sent from my VS987 using Tapatalk

Edited by skinnyb82, 30 May 2016 - 11:36 AM.

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#12 alskid

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Posted 21 February 2017 - 04:38 PM

http://www.thetrutha...e-magazine-ban/

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Posted 21 February 2017 - 06:36 PM

That leaves Wilson v Cook as the last chance at a circuit split.

I'm not very confident on Trumps SC pick he doesn't have enough history on firearms cases.

Sykes was better.

Hillary Clinton is an "Original Classification Authority" - she knows exactly what she did with her emails.

 

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#14 ScottFM

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Posted 22 February 2017 - 07:18 AM

Told you DC Vs. Heller is not the clear victory some thought it would be. It gives the states a lot more authority to regulate guns. 

 

"The state recognized that the Supreme Court’s decision in D.C. v. Heller protects citizens’ right to keep handguns in the home. But it argued that the firearms it had proscribed constituted “dangerous and unusual weapons,” which the Heller court said could be outlawed. Indeed, Maryland pointed out, the Heller court explicitly declares that especially dangerous weapons “that are most useful in military service—M-16 rifles and the like—may be banned.”"

 

The really interesting part is that the concurrence speaks to stronger 10th Amendment like issues, IOW let the people in each state decide what is best for themselves. Federal preemption of gun laws took a back seat in this decision and a strong state's rights view was put forth. As I have said in past posts; sometimes we want a strong federal government because we are one country and sometimes we are fifty states. The court felt that in this case we were fifty separate states. 

 

The other issue, as someone above noted is the issue about "dangerous and unusual weapons" along with "common use." These terms are very much ambiguous and open to argument, opinion, and emotion. IOW they are gonna cause issues for years to come!


Edited by ScottFM, 22 February 2017 - 07:20 AM.

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#15 gangrel

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Posted 22 February 2017 - 09:17 AM

 

Told you DC Vs. Heller is not the clear victory some thought it would be. It gives the states a lot more authority to regulate guns. 

 

"The state recognized that the Supreme Court’s decision in D.C. v. Heller protects citizens’ right to keep handguns in the home. But it argued that the firearms it had proscribed constituted “dangerous and unusual weapons,” which the Heller court said could be outlawed. Indeed, Maryland pointed out, the Heller court explicitly declares that especially dangerous weapons “that are most useful in military service—M-16 rifles and the like—may be banned.”"

 

The really interesting part is that the concurrence speaks to stronger 10th Amendment like issues, IOW let the people in each state decide what is best for themselves. Federal preemption of gun laws took a back seat in this decision and a strong state's rights view was put forth. As I have said in past posts; sometimes we want a strong federal government because we are one country and sometimes we are fifty states. The court felt that in this case we were fifty separate states. 

 

The other issue, as someone above noted is the issue about "dangerous and unusual weapons" along with "common use." These terms are very much ambiguous and open to argument, opinion, and emotion. IOW they are gonna cause issues for years to come!

 

1) The AR-15 is NOT "M-16 rifles and the like".  It is not select fire or full auto.  

2)  It is also not "high powered", as the .308 Win has almost double the ft/lbs of energy as the 5.56 NATO.  

3)  Heller allowed for the banning of "dangerous and unusual", but it also specifically forbade the banning of "guns that are in common use."  The AR15 -s the most commonly owned rifle in the US.

 

We don't need a circuit split, we just need a friendly SCOTUS, which we should have in a few months.


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#16 tkroenlein

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Posted 22 February 2017 - 10:09 AM

Did the en banc court overturn the panel's finding to apply strict scrutiny? Or just the decision? It would be nice if the strict scrutiny thing was left intact.


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#17 skinnyb82

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Posted 22 February 2017 - 10:59 AM

The majority ruled that the district judge properly applied intermediate s scrutiny (she did not, but moot point). Some terrible en banc rulings coming out of the Fourth Circus starting with the cell site emulation ruling, then Robinson, now Kolbe. Obama really turned that circuit court into a kangaroo court. Sent from my VS987 using Tapatalk
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#18 skinnyb82

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Posted 22 February 2017 - 11:31 AM

Judge Traxler's dissent is what will get the cert grant. This nonsense test they applied hasn't been adopted by any court, ever. The "if it looks like a military-style weapon, you can ban it and it'll be constitutional." This is a Kozinski style dissent. Unapologetically critical of the majority and unafraid to ruffle feathers. He opens with this: "TRAXLER, Circuit Judge, with whom NIEMEYER, SHEDD, and AGEE, Circuit Judges, join, dissenting: Today the majority holds that the Government can take semiautomatic rifles away from law-abiding American citizens. In South Carolina, North Carolina, Virginia, West Virginia and Maryland, the Government can now tell you that you cannot hunt with these rifles. The Government can tell you that you cannot shoot at targets with them. And, most importantly, the Government can tell you that you cannot use them to defend yourself and your family in your home. In concluding that the Second Amendment does not even apply, the majority has gone to greater lengths than any other court to eviscerate the constitutionally guaranteed right to keep and bear arms." Ripping their new "test" to determine if a firearm falls within the scope of the core right. "Rather than apply the Supreme Court’s common-use test to determine whether the Second Amendment applies to a particular type of weapon or magazine, the majority creates a heretofore unknown 'test,' which is whether the firearm in question is 'most useful in military service.'" And the best footnote I have ever seen. This is about as in-your-face critical as possible. He attacks the majority for being activists, deliberately misrepresenting statistics, and making blind (and incorrect) assumptions. "It is evident that my good friends in the majority simply do not like Heller’s determination that firearms commonly possessed for lawful purposes are covered by the Second Amendment. In the majority view, Heller’s 'commonly possessed' test produces unacceptable results in this case, providing Second Amendment coverage for semiautomatics rifles owned by less than 1% of the American public and thwarting 'efforts by the other 99%' to ban them. Majority Op. at 60. This assertion rests on the false premise that every American who does not own a semiautomatic rifle wishes to ban them. That is quite a stretch. In fact, a recent Gallup poll shows that public support for a so-called assault weapons ban is at 36%. Thus, for what it is worth, substantially more Americans oppose a ban than favor it. See www.gallup.com/poll 196658/support-assault-weapons-ban-record-low.aspx (last visited Feb. 13, 2017)." Sent from my VS987 using Tapatalk
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#19 BigJim

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Posted 22 February 2017 - 11:50 AM

 

"Rather than apply the Supreme Court’s common-use test to determine whether the Second Amendment applies to a particular type of weapon or magazine, the majority creates a heretofore unknown 'test,' which is whether the firearm in question is 'most useful in military service.'"

If you apply this new test then the AR and AK riffles commonly sold through out this nation are legal for private citizens to own since these riffles are not most useful in military service.  What military organization issues its troops semi-auto only riffles?


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#20 Trevis

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Posted 22 February 2017 - 11:59 AM

 

 

"Rather than apply the Supreme Court’s common-use test to determine whether the Second Amendment applies to a particular type of weapon or magazine, the majority creates a heretofore unknown 'test,' which is whether the firearm in question is 'most useful in military service.'"

If you apply this new test then the AR and AK riffles commonly sold through out this nation are legal for private citizens to own since these riffles are not most useful in military service.  What military organization issues its troops semi-auto only riffles?

 

I'm guessing that's just another on the pile of problems with this ruling. They are classifying firearms by their appearance, not by what they actually are. Even so, reading the second amendment, IMO, shows that we should have access to arms necessary to maintain a militia, which is basically a stand in for the military when private citizens need to defend themselves collectively. How can any sort of classification against mere possession of common arms really stand?


Edited by Trevis, 22 February 2017 - 11:59 AM.

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#21 quackersmacker

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Posted 22 February 2017 - 12:10 PM

The majority ruled that the district judge properly applied intermediate s scrutiny (she did not, but moot point). Some terrible en banc rulings coming out of the Fourth Circus starting with the cell site emulation ruling, then Robinson, now Kolbe. Obama really turned that circuit court into a kangaroo court. Sent from my VS987 using Tapatalk

Yeah, of the 15 judges,  GHW Bush appointed 4,    Clinton  4,    and  Obama 7.   This is what we get, when that is what we got!


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#22 gangrel

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Posted 22 February 2017 - 12:43 PM

 

The majority ruled that the district judge properly applied intermediate s scrutiny (she did not, but moot point). Some terrible en banc rulings coming out of the Fourth Circus starting with the cell site emulation ruling, then Robinson, now Kolbe. Obama really turned that circuit court into a kangaroo court. Sent from my VS987 using Tapatalk

Yeah, of the 15 judges,  GHW Bush appointed 4,    Clinton  4,    and  Obama 7.   This is what we get, when that is what we got!

 

And yet...a Clinton appointee wrote the dissent, joined by two GHWB appointees and a GWB appointee.  Go figure.


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#23 mic6010

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Posted 22 February 2017 - 03:07 PM

"A Republic, if you can keep it"

Typical of the year 2017 right. Proving to Americans yet again what a bought and paid for legal system we have. Courts of law are no better than a joke these days. They might as well have actual kangaroos sitting on the bench in robes. Courts no longer care about rights, the Constitution or the intentions of our fore fathers. They simply vote along politically biased lines and for the people who paid for them to be sitting in that chair. 

 

It can only be a good thing in the end though. It will show people just how unless the system is and why it has no merit or authority over their lives. People these days are too much like sheep and these kinds of rulings serve as wake up calls. At least for the half of the country that's still paying attention.  I mean when only one court in the land can actually interpret the law correctly and they refuse to do so until they have a democratic majority then what does that mean ? It means everything is null and void right. It means its time to hit the reset button and start again.

Two separate countries 2020 !!!. Its never to late the fix the mistakes of the past today...


Edited by mic6010, 22 February 2017 - 03:08 PM.

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#24 gangrel

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Posted 22 February 2017 - 03:09 PM

"A Republic, if you can keep it"

Typical of the year 2017 right. Proving to Americans yet again what a bought and paid for legal system we have. Courts of law are no better than a joke these days. They might as well have actual kangaroos sitting on the bench in robes. Courts no longer care about rights, the Constitution or the intentions of our fore fathers. They simply vote along politically biased lines and for the people who paid for them to be sitting in that chair. 

 

It can only be a good thing in the end though. It will show people just how unless the system is and why it has no merit or authority over their lives. People these days are too much like sheep and these kinds of rulings serve as wake up calls. At least for the half of the country that's still paying attention.  I mean when only one court in the land can actually interpret the law correctly and they refuse to do so until they have a democratic majority then what does that mean ? It means everything is null and void right. It means its time to hit the reset button and start again.

Two separate countries 2020 !!!. Its never to late the fix the mistakes of the past today...

You did catch the part where the dissenting opinion (the one saying CA4 is getting this one wrong) was written by a Clinton appointee, didn't you?


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#25 mic6010

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Posted 22 February 2017 - 03:14 PM

 

"A Republic, if you can keep it"

Typical of the year 2017 right. Proving to Americans yet again what a bought and paid for legal system we have. Courts of law are no better than a joke these days. They might as well have actual kangaroos sitting on the bench in robes. Courts no longer care about rights, the Constitution or the intentions of our fore fathers. They simply vote along politically biased lines and for the people who paid for them to be sitting in that chair. 

 

It can only be a good thing in the end though. It will show people just how unless the system is and why it has no merit or authority over their lives. People these days are too much like sheep and these kinds of rulings serve as wake up calls. At least for the half of the country that's still paying attention.  I mean when only one court in the land can actually interpret the law correctly and they refuse to do so until they have a democratic majority then what does that mean ? It means everything is null and void right. It means its time to hit the reset button and start again.

Two separate countries 2020 !!!. Its never to late the fix the mistakes of the past today...

You did catch the part where the dissenting opinion (the one saying CA4 is getting this one wrong) was written by a Clinton appointee, didn't you?

 

Is that supposed to be the big finish ? I guess its not totally rigged and politically biased because a Clinton appointee wrote the dissent ? lol.

But hey If I was running a kangaroo court that's exactly how I would have it done. Not that any of it matters who wrote the dissent..even if said judge really believed it. The panel still voted the way it did. The better question is do you agree with that ruling ? Because no logical interpretation of the Constitution or Heller gets you to what they just ruled. It can only be one thing that got them there.


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#26 gangrel

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Posted 22 February 2017 - 03:50 PM

 

 

"A Republic, if you can keep it"

Typical of the year 2017 right. Proving to Americans yet again what a bought and paid for legal system we have. Courts of law are no better than a joke these days. They might as well have actual kangaroos sitting on the bench in robes. Courts no longer care about rights, the Constitution or the intentions of our fore fathers. They simply vote along politically biased lines and for the people who paid for them to be sitting in that chair. 

 

It can only be a good thing in the end though. It will show people just how unless the system is and why it has no merit or authority over their lives. People these days are too much like sheep and these kinds of rulings serve as wake up calls. At least for the half of the country that's still paying attention.  I mean when only one court in the land can actually interpret the law correctly and they refuse to do so until they have a democratic majority then what does that mean ? It means everything is null and void right. It means its time to hit the reset button and start again.

Two separate countries 2020 !!!. Its never to late the fix the mistakes of the past today...

You did catch the part where the dissenting opinion (the one saying CA4 is getting this one wrong) was written by a Clinton appointee, didn't you?

 

Is that supposed to be the big finish ? I guess its not totally rigged and politically biased because a Clinton appointee wrote the dissent ? lol.

But hey If I was running a kangaroo court that's exactly how I would have it done. Not that any of it matters who wrote the dissent..even if said judge really believed it. The panel still voted the way it did. The better question is do you agree with that ruling ? Because no logical interpretation of the Constitution or Heller gets you to what they just ruled. It can only be one thing that got them there.

 

I'm not saying that it's not kangaroo court, or that the majority opinion wasn't an exercise in buffoonery...or even that partisan politics are not rearing their ugly head here.  I am simply pointing out that one Democrat appointee wrote the dissenting opinion, and one Republican appointee sided with the majority.  Not straight party lines.  Who knows...maybe Traxler drew the Liberal short straw, and Wilkinson and Gregory decided to take one for the team to arrive at the pre-ordained decision.  Of course, that means they are all colluding to achieve the same agenda, which is a much scarier prospect than them deciding on party lines.

 

Or, maybe they've all just been listening to eachother a little too much.

 

I don't see this one surviving SCOTUS.


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#27 Uncle Harley

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Posted 22 February 2017 - 03:50 PM

 

 

1) The AR-15 is NOT "M-16 rifles and the like".  It is not select fire or full auto.  

2)  It is also not "high powered", as the .308 Win has almost double the ft/lbs of energy as the 5.56 NATO.  

3)  Heller allowed for the banning of "dangerous and unusual", but it also specifically forbade the banning of "guns that are in common use."  The AR15 -s the most commonly owned rifle in the US.

 

We don't need a circuit split, we just need a friendly SCOTUS, which we should have in a few months.

 

Exactly!   The AR 15 is the Iphone of the gun worlds.  


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#28 gangrel

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Posted 22 February 2017 - 03:51 PM

 

 

1) The AR-15 is NOT "M-16 rifles and the like".  It is not select fire or full auto.  

2)  It is also not "high powered", as the .308 Win has almost double the ft/lbs of energy as the 5.56 NATO.  

3)  Heller allowed for the banning of "dangerous and unusual", but it also specifically forbade the banning of "guns that are in common use."  The AR15 -s the most commonly owned rifle in the US.

 

We don't need a circuit split, we just need a friendly SCOTUS, which we should have in a few months.

 

Exactly!   The AR 15 is the Iphone of the gun worlds.  

 

Thanks.  Now I have to ditch my AR15s.  What is the Android of the gun worlds again?


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#29 quackersmacker

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Posted 22 February 2017 - 05:04 PM

 


Thanks.  Now I have to ditch my AR15s.  What is the Android of the gun worlds again?

 

Thread Winner, Ding Ding!!!!!


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#30 DD123

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Posted 22 February 2017 - 05:11 PM

What aggravates me about this ruling is that the rationale behind the majority decision is basically this:

 

Because a Fiero with a body kit looks like a Ferrari, we're going to ban it because Ferrari's are illegal.  


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