SAF v NJ (MULLER et al v. MAENZA et al)

[Live_Free_orDie 1]

Can you say Nepotism...it's alive and well in NJ.

[diamondd817 826]

Here is a professional analysis from another site:

 

 

 

"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.

 

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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.

 

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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. "

[Bob B 103]

^^^Great analysis.

[SJG 253]

You can rest assure that if NJ looses the appeal they will ask for a re-hearing en banc before the entire Third Circuit, as opposed to the three judge panel, and if that is denied, they will appeal to the Supreme Court, which may or may not grant their appeal. Even if we win in the Third Circuit, NJ State Court Judge's are not bound by the decision of the Third Circuit, even on constitutional decisions, unless injunctive relief is granted. The case before the Third Circuit is not a class action and can only indirectly impact others, unless and until, the U.S. Supreme Court, gets the issue

[raz-0 1,259]

Oddly we still dont know the requirements to get a CCW in this state. So they cant really narrow it. Its a state secret I remember this being upheld last year.(no Link)

I think the odds are slim to none of us winning this case. Suing for gun rights in NJ is like suing the devil and having the trial held in hell. But it is a step we must take.

 

This isn't nj, it's the circuit court.

 

What you hear with the deputy ag is essentially the fundament of nj law making and enforcement hitting a wall of actual professionalism and competence on both the part of gura and the court. My take was that the court was looking for any reason to give the state what they want, and in the end nj failed to ask anything reasonable that could be forced into making sense. Their argument was "because we said so" and the court basically said "we won't be seen dead ignoring 100% of precedent to back 'we said so'."

 

Unless the court is prepared to create nj's argument out of whole cloth, I think they are at least going to be forced to provide an objective standard for justifiable need.

[Live_Free_orDie 1]

I "neead" to say...most of you on this forum appear to be more intelligent than the AAG.

[TK421 2]

I "neead" to say...most of you on this forum appear to be more intelligent than the AAG.

 

That's because most of us are not encumbered by a condescending and hypocritical liberal ideology that is so concerned with “protecting” people they can’t understand when they are shackling the freedoms afforded those people to protect themselves.

[Pythagoras 2]

 

 

That's because most of us are not encumbered by a condescending and hypocritical liberal ideology that is so concerned with “protecting” people they can’t understand when they are shackling the freedoms afforded those people to protect themselves.

 

Also...we actually read the freaking Constitution. She should try it sometime.

[1911Fan 1]

I'm cautiously optimistic this might go in our favor. VERY CAUTIOUSLY OPTIMISTIC!

[ryan_j 0]

I'm cautiously optimistic this might go in our favor. VERY CAUTIOUSLY OPTIMISTIC!

 

You neeead to be... Oh great, now her voice is stuck in my head.

[millsan1 3]

I feel the neead to stab myself in the ears after listening go AAG stumble through her own arguments.

 

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[71ragtopgoat 23]

I have to admit the AAG was nowhere near prepared to defend the law. Or maybe the law is indefensible ?

The older sounding judge was doing everything he could to try and make a case for NJ but the AG was so unprepared she could not run with the ball she was handed.

That being said I have no faith in any east coast courts when it comes to conservative parts of the Constitution.

I think the most overturned appeals court is the one that covers Cali and then this one.

[ChrisJM981 924]

You can rest assure that if NJ looses the appeal they will ask for a re-hearing en banc before the entire Third Circuit, as opposed to the three judge panel, and if that is denied, they will appeal to the Supreme Court, which may or may not grant their appeal. Even if we win in the Third Circuit, NJ State Court Judge's are not bound by the decision of the Third Circuit, even on constitutional decisions, unless injunctive relief is granted. The case before the Third Circuit is not a class action and can only indirectly impact others, unless and until, the U.S. Supreme Court, gets the issue

 

Do you know the makeup of the entire 3rd Circuit?

[SJG 253]

I do not understand your question. The make up? All Judges of the United States Court of Appeals for the Circuit as distinguished from a panel of only three

[PDM 91]

Rehearing en banc is very rare. Something along the line of 1% or 2% of requests for rehearing are granted I believe. I think just the fact that the 3rd circuit clearly will hold that the 2A applies outside the home is huge. The simple fact is that the NJ statute, as applied, acts as an absolute bar on carrying a firearm outside the home so the analysis shouldn't be that hard under intermediate scrutiny. I wish Gura had been prepared with some clear statistics showing that permits are never granted except to particular classes of people (retired police, armored car guards (limited permits), and politicians).

[BigHayden 77]

I believe that the complaint seeks to have the statute completely invalidated, in which case if the 3rd cir rules in our favor the statute would basically be rendered a nullity and it would be legal to carry with no permit whatsoever. I am guessing that the court would stay its order for a period of time, as happened in Illinois, to leave the current law in place and give NJ time to come up with something that satisfies the court's ruling. One option would be for NJ to keep all of the aspects of the statute the same, but change the justifiable need to include any expressed desire to defend oneself outside the home, or something like that. Or they could try to play games and narrow the definition (as one of the judges suggested could have been Gura's approach) of justifiable need without going all the way to shall issue.

 

The petitioners are only challenging the "justifiable need" portion of the law. If we win, we still have to get a permit, but we would not have to provide a "justifiable need" to our police chief and a circuit court judge. We would be "shall issue", not permit-less carry.

[Vlad G 345]

I wish Gura had been prepared with some clear statistics showing that permits are never granted except to particular classes of people (retired police, armored car guards (limited permits), and politicians).

 

Oh I think he knew the numbers, and played stupid. The thing is we don't apply for permits. The people who apply are mostly those that will get them. So if he presented numbers like 95% are approved it would have hurt the case. Instead his answer was spot on, it doesn't matter how many are proved these 4 people I represent were denied and the case is about their rights, not the rights of politicians and cops.

[PDM 91]

Excellent point vlad. I had forgotten that basic fact. I suppose one could compile a statistic of percentage of non-Leo's and non-armored guards whose applications are granted which would likely be close to zero (other than a few politicians) but I don't know if that information is available.

[millsan1 3]

I emailed Gura complimenting him on the arguments. Offered to submit affidavit of being de facto denied but he said it would not be useful.

 

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[n4p226r 105]

I do not understand your question. The make up? All Judges of the United States Court of Appeals for the Circuit as distinguished from a panel of only three

 

What are their voting records and Who put them on the court. Clinton, Obama, Reagan, bush. I think that's his question. Like current Supreme Court is kinda 50/50

[ryan_j 0]

Oh I think he knew the numbers, and played stupid. The thing is we don't apply for permits. The people who apply are mostly those that will get them. So if he presented numbers like 95% are approved it would have hurt the case. Instead his answer was spot on, it doesn't matter how many are proved these 4 people I represent were denied and the case is about their rights, not the rights of politicians and cops.

 

I have to agree with this. The issue is NOT about percentages. It is about individuals and an individual right... imagine if slavery was OK because the majority of Americans were free people, and that was accepted as a valid argument... We'd still have slavery.

[n4p226r 105]

is it normal for one guy to be pro one side, and the other pro the other, and the 3rd to keep quiet? it seems like the old guy is going to be on NJ side 100%. the guy that spoke the most our side. the 3rd guy never spoke really. i think it will be 2-1 our side based on what i've heard, but thats if they base it on the arguments presented and not pre-conceived notions. after the last month or so, we can see what pre-conceived decisions give us though

[Naleman 0]

Any news?

 

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[RubberBullets 65]

Any news?

 

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[n4p226r 105]

Any way to tell if the NJAG submitted the extra stuff they had 10 days to submit?

[diamondd817 826]

Any way to tell if the NJAG submitted the extra stuff they had 10 days to submit?

 

 

Yes, NJ AG submitted. Gura responded.

 

Gura's supplemental brief filed today 3/4/2013.

 

Here are the supplemental briefs for NJ and Gura:

Piszczatoski -Supplemental Brief Gura (1).pdf

Piszczatoski - Supp.BrNewJersey.pdf

[n4p226r 105]

Wonder if the fact that nobody replies and that they have such a small denial rate will hurt

[njpilot 671]

The document submitted by the Lt from the State Police Firearms Division said he does Handgun Permits. He said that numerous times. Not Carry Permits, but Handgun Permits. Are we sure of exactly what he was talking about?

[DngrZne 0]

Why hasn't it been mentioned, unless it was and I missed it, that it's not only an issue of applying and being denied, but forever having to explain that you were denied and why? If it was just a matter of being denied I guarantee many more people would try. I certainly would.

[diamondd817 826]

The document submitted by the Lt from the State Police Firearms Division said he does Handgun Permits. He said that numerous times. Not Carry Permits, but Handgun Permits. Are we sure of exactly what he was talking about?

 

I dont know what the NJSP guy is talking about, but from listening to the orals and reading the supplemental briefs it seems NJ's case is extremely weak. Gura is on top of his game. He is fascinating to listen to. He is sharp, and well informed. The NJ AG was like a pile of mush.

 

I for one think we are going to win.