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Kolbe et al v. Hogan (CA4 En Banc)


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#31 skinnyb82

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Posted 22 February 2017 - 06:23 PM

Chief Judge Traxler delivered the dissent. He was on the original panel which ruled strict scrutiny is the applicable standard of review. Clinton appointees aren't ALL ideologues and same goes for Obama appointees. Judge Harris, an Obama appointee, delivered a vicious dissent in Robinson (majority said those who carry forfeit Fourth Amendment rights, I'm guessing she was on the side of the Fourth Amendment and not the Second). So it's not ALWAYS along political lines. Only about 90% of the time, and that's a very low-ball estimate. This will not stand with SCOTUS. They GVR'd Caetano, they may GVR this case as well since the circuit concocted a brand new, and completely idiotic, test for determining whether a firearm is protected by the Second Amendment. I mean, beyond...I wish I could say that this court hasn't done this crap before but I'd be lying if I did. And Judge Wilkinson's concurrence....he's consistent. He opposed Roe v. Wade on the exact same basis that he opposed the original panel ruling. The Tenth Amendment. So I'll give him points for putting his money where his mouth is and that's about all he gets from me. Sent from my VS987 using Tapatalk

Edited by skinnyb82, 22 February 2017 - 06:25 PM.

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#32 gearsmithy

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Posted 22 February 2017 - 07:08 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.  

 

That's basically the only 'rationale' they have and it's the most basic violation of logic rules.

 

Racecars are go really fast

Racecars have spoilers

Civics have spoilers

Therefore, Civics go really fast

 

The stupidity is strong with the anti's.



#33 Druid

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Posted 22 February 2017 - 07:20 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.  

 

That's basically the only 'rationale' they have and it's the most basic violation of logic rules.

 

Racecars are go really fast

Racecars have spoilers

Civics have spoilers

Therefore, Civics go really fast

 

The stupidity is strong with the anti's.

 

Exactly

ugly-spoiler-1.jpg



#34 Druid

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Posted 22 February 2017 - 07:21 PM

Seems the left will move on this quickly to try and get it to SCOTUS before Gorsuch can get in.



#35 skinnyb82

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Posted 22 February 2017 - 07:26 PM

The last two sentences contained in footnote 9 in the dissent. "I have searched the record in vain for the statistics on how many standing armies issue AR-15s or semiautomatic-only-weapons to their troops. I do not believe there are any." That is correct. No army wants to be outgunned and issuing semiautomatic rifles to all soldiers would do just that. These maroons don't get it at all. So much of the majority's reasoning has been expressly rejected by courts across the nation. The "alternatives" argument, for example, was rejected by the D.C. Circuit in Parker v. District of Columbia and by the Heller Court itself. Assertions made in Hollis v. Holder which were flatly rejected by the Fifth Circuit. The Heller Court wasn't persuaded by the "weapons of war" nonsense, it was rejected nine years before it was adopted (sounds like judicial version of John Kerry, "I was for it before I was against it...."). They seem to believe that Heller states that ONLY handguns cannot be banned. Everything else is fair game. There as so many flaws in this that it isn't even worth the Justices' time to hear arguments. Just GVR it like Caetano as it is clearly defective. Looks like CA4 is turning into CA9. That's the legacy of the Democratic Party, besides the whole evisceration of the rule of law, the family, the dissent ("if you disagree with us, you're a whatever-o-phobe"), the economy, and basically shortchanging the American People. I could go on and on, but...that isn't necessary. Sent from my VS987 using Tapatalk
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#36 FarmHand357

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Posted 22 February 2017 - 07:29 PM

Skinny makes me feel so much better about the future of this arbitrary and capricious ruling.  Thanks.


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#37 quackersmacker

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Posted 22 February 2017 - 07:31 PM

Chief Judge Traxler delivered the dissent. He was on the original panel which ruled strict scrutiny is the applicable standard of review. Clinton appointees aren't ALL ideologues and same goes for Obama appointees. Judge Harris, an Obama appointee, delivered a vicious dissent in Robinson (majority said those who carry forfeit Fourth Amendment rights, I'm guessing she was on the side of the Fourth Amendment and not the Second). So it's not ALWAYS along political lines. Only about 90% of the time, and that's a very low-ball estimate. This will not stand with SCOTUS. They GVR'd Caetano, they may GVR this case as well since the circuit concocted a brand new, and completely idiotic, test for determining whether a firearm is protected by the Second Amendment. I mean, beyond...I wish I could say that this court hasn't done this crap before but I'd be lying if I did. And Judge Wilkinson's concurrence....he's consistent. He opposed Roe v. Wade on the exact same basis that he opposed the original panel ruling. The Tenth Amendment. So I'll give him points for putting his money where his mouth is and that's about all he gets from me. Sent from my VS987 using Tapatalk

C'mon, skinny, play fair and stop showing off.  Unless I missed it somewhere, do you think that virtually anyone on this forum knows what GVR means? A GVR order is a type of order issued on occasion by the Supreme Court of the United States, in which the Court grants a petition for certiorari, vacates the decision of the court below, and remands the case for further proceedings (hence the acronym by which they are known)     


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#38 skinnyb82

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Posted 22 February 2017 - 07:49 PM

Ah sorry, I've used the acronym on multiple occasions and I get kinda complacent when it comes to definitions haha. Yup, GVR; grant, vacate (with a little per curiam explaining to CA4 why they're dead wrong), and remand the case for yet another rehearing consistent with the opinion (issued by the Supreme Court). Alito and Thomas will have a field day with this one. It's so far out there that even Ginsburg, Breyer, Sotomayor, and Kagan should vote to vacate it as they are bound by Heller. Caetano was unanimous, as it should have been. Massachusetts spat in the face of SCOTUS and the Court put the Commonwealth in its place. But this monstrosity....is far, FAR worse than Caetano. It's far worse than anything I've ever seen. Well, Second Amendment cases at least. They didn't just decide that intermediate scrutiny is the proper standard of review. They went above and beyond, going to the lengths of providing the governments in their jurisdiction with a roadmap how to ban protected firearms and "get away with it." This madness needs to end. @FarmHand357, don't be. I watched CA9 ignore the plain language of Section 1182(f) of the INA. I listened to one judge harp about "the record" not containing this and that, omitting the fact that it was the District Judge himself who didn't develop the record, and they conveniently overlooked that whole thing before striking down Trump's EO so...I really do not have a whole lot of faith in the Judiciary right now. Call it...I don't know, but the same eight Justices who presided over Caetano kicked it back down, telling MA they screwed up. I have to believe that the Court will kick Kolbe back down because of that idiotic test that was concocted by the Fourth Circuit. It follows absolutely no logical line of reasoning whatsoever. It doesn't spit in the face of Heller. It...does something that I cannot describe here. Sent from my VS987 using Tapatalk

Edited by skinnyb82, 22 February 2017 - 07:58 PM.

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#39 quackersmacker

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Posted 22 February 2017 - 09:08 PM

WOWWWWWWWWWWWWWWWW!       How can we get you on the Supreme Court!   Who ARE you?   I'm  in!     


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#40 skinnyb82

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Posted 22 February 2017 - 10:42 PM

I suddenly recalled hearing a line of questioning, and I'm not completely sure which judges were asking the AAG from Maryland how far the government could go before strict scrutiny is triggered. After reading this opinion, it truly makes me think that this load of horse manure, conjured up "test" for determining whether a weapon has Second Amendment protection or not is due to the responses to the question. IIRC he didn't even want to answer the question at first. He was only there to argue that the banned weapons aren't protected arms. Not tell them his legal opinion on what is a protected arm. Oops, he did. Single shot pistol. I definitely recall hearing that after being pressed. Thought that the judges honestly wanted to know what the State of Maryland's opinion on what is protected, since it was arguing all of those banned weapons aren't and therefore there is no protection at all. Could've been a "let's see how far we can take this" instead. Honestly, I wouldn't be the least bit surprised with the composition of that court for the foreseeable future. Sent from my VS987 using Tapatalk
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#41 kwc

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Posted 23 February 2017 - 05:10 AM

@skinnyb82, I sure hope you're right on this. Many in the conservative-leaning media are far less optimistic. For example:

https://www.conserva...common-firearms

Indeed, in the case of lower courts upholding sweeping gun bans, the silence of more than three justices willing to grant cert to petitioners (it takes four) is deafening. As Justice Thomas has noted in his dissent on the denial of cert on the two previous assault weapons bans, the other justices (presumably Roberts and Kennedy included) are clearly allowing the Second Amendment to become a second-class right. And Roberts was allowing this to happen even when Scalia was on the court. Thus, don’t expect this to change after Gorsuch takes his seat on the high court.


In any case, if SCOTUS did issue a GVR, could the 4th Circuit Court of Appeals still in the end uphold a ban using logic similar to the 7th Circuit's Friedman v. Highland Park decision?
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#42 skinnyb82

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Posted 23 February 2017 - 07:18 AM

I'm hopeful due to the opinion being so deeply flawed. The majority had to make up an ad hoc test and ignore facts, Heller and McDonald, among others, in order to come to their desired conclusion. I thought SCOTUS made it abundantly clear that courts cannot say "it didn't exist during Jefferson's lifetime so you can't have it" and that modern weapons are included. That other wishy-washy tests like "does it look scary?" also do not qualify. "Dangerous and unusual." What part of "and" do they not understand? All weapons are dangerous. They're not uncommonly owned. No other court has said that. Wish SCOTUS could've published the Caetano order and Alito's concurrence. I think they could be getting tired of seeing cert petitions with the same issues, same idiotic reasoning and issued that unsigned order. Justices off the record except Alito who wrote a signed concurrence, joined by Thomas, providing abundant clarity. As usual, it was completely ignored. Tantamount to judicial insubordination. Sent from my VS987 using Tapatalk
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#43 mikew

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Posted 23 February 2017 - 03:10 PM

In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense. - Justice James C. McReynolds, US v Miller 1939
 



#44 Speedyellow

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Posted 23 February 2017 - 05:41 PM

 

In the absence of any evidence tending to show that possession or use of a "shotgun having a barrel of less than eighteen inches in length" at this time has some reasonable relationship to the preservation or efficiency of a well regulated militia, we cannot say that the Second Amendment guarantees the right to keep and bear such an instrument. Certainly it is not within judicial notice that this weapon is any part of the ordinary military equipment, or that its use could contribute to the common defense. - Justice James C. McReynolds, US v Miller 1939
 

 

Wow.  I actually didn't know until today that from the '30s at least into the '80s, the Feds argued and SCOTUS ruled that the only protected guns are those useful for military duty.  And today the 4th Circuit rules that the only protected guns are those NOT useful for military duty.  Wonderful.  



#45 skinnyb82

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Posted 24 February 2017 - 06:41 PM

Yes, they've ignored every single precedential disposition issued by SCOTUS regarding protected arms. It's a complete joke. I just saw some idiot lawyer from the Center for American Progress (Center for Stripping You of Your Civil Liberties) call it an "evidence-based" ruling. That's funny because no credible evidence was presented on behalf of the State of Maryland. Some retired BATFE agent said some crap about how dangerous these guns are, then admitted that he prefers one for self-defense. Was she talking about that kind of evidence? It wasn't grounded in anything other than political ideology and it is intellectually dishonest to represent the ruling as anything other than an ideological one. Sent from my VS987 using Tapatalk
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#46 tkroenlein

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Posted 24 February 2017 - 08:26 PM

Yeah, though I don't like it one bit, US V Miller is really the foundation of US firearms regulation. Ya wouldn't think they'd forget that one.

I guess this is what an activist judiciary looks like. :(


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#47 357

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Posted 24 February 2017 - 08:30 PM

Wow, so the most popular rifle in America owned by millions of people is called dangerous and unusual and a machine gun ( assault weapon).
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#48 skinnyb82

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Posted 25 February 2017 - 07:42 AM

Ironically, the M1 Garand is NOT banned by the Maryland FSA. Traxler notes this, yet another blatant defect in the majority’s reasoning. If this were about "weapons of war" then why didn't they ban an actual weapon of war? Oh, that's right, because it's about skeery lookin' guns.

"[I]tis legal in Maryland to possess a rifle that was actually used by our military on the battlefield, but illegal to possess a rifle never used by our military.”

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#49 gearsmithy

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Posted 25 February 2017 - 09:45 AM

Ohh c'mon skinny, you know just as well as everyone else here that wood guns can't be shot at children.



#50 FST_Kent

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Posted 25 February 2017 - 05:05 PM

Yeah, though I don't like it one bit, US V Miller is really the foundation of US firearms regulation.


How many know Miller had prevailed in the lower court rulings, but had passed away before his case was heard before the Supreme Court and his lawyer never showed?

Plaintiffs argued a short barrel shotgun wasn't used by the military and had no military purpose when in fact they were in service and highly effective. So effective the Germans wanted shotguns banned from the battlefield in WWI.

So there was no defense ever heard and the justices must have never checked or cared.

#51 Gamma

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Posted 25 February 2017 - 06:10 PM

Miller was not even a final decision really, it was a remand to the lower court for a specific fact-finding. Since the defendant was deceased, the case was moot and that fact finding was never performed. It was not, as generally presented, a determination that a short barreled shotgun was unsuitable for military use, it was a declaration that there was no record for or against that determination, and such a determination was important to their decision.
Illinois' FCCA is a prime example of the maxim that sufficiently advanced incompetence is indistinguishable from malice.

#52 skinnyb82

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Posted 26 February 2017 - 03:50 PM

I think that we can all agree that they had decided this case before it had been briefed for the three-judge panel. Just listen to the asinine questions posed to Sweeney. "Would a howitzer be a protected arm?" Come on, people. They decided that if this case came out in favor of the plaintiffs, they would convene an en banc court and vacate that favorable ruling. That's what they did with Peruta and several others (Teixeira in CA9 and in CA4, Robinson the "you have fewer rights if you carry" case and Graham the cell site case). Convene an en banc court whenever they don't like the conclusion reached by the panel. That isn't the purpose of the en banc court. They are abusing the entire process to ram their ideology down our throats. My logic is that, since Caetano was summarily and unanimously reversed, this will be summarily reversed as well since the reasoning applied is far more convoluted than the reasoning applied by the MA court in determining whether a stun gun is protected under the 2A. The Court is still bound by Heller and this ruling is so messed up that the per curiam order should simply state "Try again. Judgment vacated, case remanded...." Sent from my VS987 using Tapatalk
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#53 Charles Nichols

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Posted 03 March 2017 - 02:23 AM

Miller was not even a final decision really, it was a remand to the lower court for a specific fact-finding. Since the defendant was deceased, the case was moot and that fact finding was never performed. It was not, as generally presented, a determination that a short barreled shotgun was unsuitable for military use, it was a declaration that there was no record for or against that determination, and such a determination was important to their decision.

 

"Miller stands only for the proposition that the Second Amendment right, whatever its nature, extends only to certain types of weapons." District of Columbia v. Heller, 128 S. Ct. 2783, 2814 (Supreme Court 2008).(emphasis added).



#54 BradS

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Posted 03 March 2017 - 08:55 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.

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The part in bold has my attention more than the 2A stuff.

I wasn't aware there had been a court decision on the use of Stingrays.

Off to google to di some reading up....
my target stands classified thread:

http://illinoiscarry...topic=40920&hl=

#55 gearsmithy

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Posted 03 March 2017 - 10:47 AM

Just listen to the asinine questions posed to Sweeney. "Would a howitzer be a protected arm?"

 

Is there an audio recording of this?



#56 Gamma

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Posted 21 July 2017 - 08:13 PM

https://www.nraila.o...rylands-gun-ban

 


A group of Maryland citizens, with the support of the National Rifle Association, filed a petition to the United States Supreme Court on Friday seeking to reverse a Court of Appeals ruling that stripped some of America’s most popular rifles of Second Amendment protection. The 4th Circuit ruling in the case Kolbe v. Hogan is a direct contradiction of the Supreme Court’s 2008 decision, District of Columbia v. Heller, which re-affirmed American citizens’ right to self-defense.


Illinois' FCCA is a prime example of the maxim that sufficiently advanced incompetence is indistinguishable from malice.

#57 Charles Nichols

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Posted 21 July 2017 - 08:24 PM

Cert Petition and Appendix - 325 pages.



#58 MrTriple

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Posted 21 July 2017 - 09:02 PM

These idiots need to stop appealing all these cases until Breyer, Ginsburg, or Kennedy retire. Until they're replaced, the numbers aren't there to get these cases heard and ruled on. Even Roberts is a loose cannon after his Obamacare decision. If he was indeed blackmailed, who's to say he won't be on 2A cases as well?
"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."

-Hapless

#59 Gamma

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Posted 21 July 2017 - 10:08 PM

Isn't there a time limit after the appellate court decision to file?


Illinois' FCCA is a prime example of the maxim that sufficiently advanced incompetence is indistinguishable from malice.

#60 skinnyb82

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Posted 22 July 2017 - 07:18 AM

Isn't there a time limit after the appellate court decision to file?


Yup and the clock would have run out without an extension. As per Supreme Court Rule 13.1:

"Unless otherwise provided by law, a petition for a writ of certiorari to review a judgment in any case, civil or criminal, entered by a state court of last resort or a United States court of appeals (including the United States Court of Appeals for the Armed Forces) is timely when it is filed with the Clerk of this Court within 90 days after entry of the judgment."

Three months. But here's the docket entry (Roberts granted an extension):

"No. 16A1074
Title: Stephen V. Kolbe, et al., Applicants
v.
Lawrence J. Hogan, Jr., Governor of Maryland, et al.
Docketed: May 5, 2017
Lower Ct: United States Court of Appeals for the Fourth Circuit  
Case Nos.: (14-1945)
~~~Date~~~ ~~~~~~~Proceedings  and  Orders~~~~~~~~~~~~~~~~~~~~~

May 3 2017 Application (16A1074) to extend the time to file a petition for a writ of certiorari from May 22, 2017 to July 21, 2017, submitted to The Chief Justice.

May 10 2017 Application (16A1074) granted by The Chief Justice extending the time to file until July 21, 2017."

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Edited by skinnyb82, 22 July 2017 - 07:26 AM.

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