Jump to content
Indianajonze

Vanaski Retiring!! Breaking News!! 3rd Circuit to Flip Conservative!!!

Recommended Posts

24 minutes ago, FedUpWithNJ said:

Not even back to 15. They're asking for en banc review of the  3-panel decision to deny preliminary injunctive relief from the original ban. The original case is still proceeding in the district court. So if en banc review is granted, and if the original decision is overturned, then an injunction will be granted until such time as the district case is decided. You'll be able to possess 15 round mags until that case is done. If it is decided in the negative (which is almost certain - this is NJ), then another injunction will need to be applied for until the appeal is heard, otherwise you'll have to do again whatever you did on Kristallnacht v1 (December 10).

thanks for clarifying. So we should know for sure 2023?

  • Haha 1

Share this post


Link to post
Share on other sites
51 minutes ago, FedUpWithNJ said:

Not even back to 15. They're asking for en banc review of the  3-panel decision to deny preliminary injunctive relief from the original ban. The original case is still proceeding in the district court. So if en banc review is granted, and if the original decision is overturned, then an injunction will be granted until such time as the district case is decided. You'll be able to possess 15 round mags until that case is done. If it is decided in the negative (which is almost certain - this is NJ), then another injunction will need to be applied for until the appeal is heard, otherwise you'll have to do again whatever you did on Kristallnacht v1 (December 10).

What makes you say this would be preliminary?

The hearing was for an injunction of the law, I have yet to see if this will be a permanent or temporary injunction for further review. 

The district judges can make any rulings as to why the law is unconstitutional, theit opinions could indicate 15 rounds is fine, or outright claim any limit is wrong. 

  • Like 1

Share this post


Link to post
Share on other sites
2 hours ago, JackDaWack said:

What makes you say this would be preliminary?

The hearing was for an injunction of the law, I have yet to see if this will be a permanent or temporary injunction for further review. 

The district judges can make any rulings as to why the law is unconstitutional, theit opinions could indicate 15 rounds is fine, or outright claim any limit is wrong. 

I was basing it on this timeline:

Quote

The same day that Act A2761 was signed into law, Plaintiffs filed a complaint
in the District of New Jersey alleging, among other things, that the State’s ban on
magazines capable of holding 11–15 rounds violates the Second Amendment, see
JA59–60, and they subsequently moved for a preliminary injunction. After a three-
day evidentiary hearing, the District Court denied Plaintiffs’ motion on September
28, and Plaintiffs immediately appealed. JA1–2, 438. This Court granted expedited
consideration of Plaintiffs’ appeal. On December 5, 2018, the panel affirmed the
denial of injunctive relief over Judge Bibas’s dissent. This petition followed.

Rereading, the "denial of injunctive relief" does not  refer to the preliminary injunction but to the appeal itself. So en banc review could result in anything - you're right.

Edit: actually, it's still unclear. The "denial of injunctive relief" does refer to the preliminary injunction: "For the foregoing reasons, we will affirm the order denying Plaintiffs’ motion for a preliminary injunction."

So if the en banc review overturns this, can it do more than grant the motion for preliminary injunction? (IANAL)

Edit 2: Reading the actual opinions, Bibas (the good guy) says this in his dissent:

Quote

The majority stands in good company: five other circuits
have upheld limits on magazine sizes. These courts, like the
New Jersey legislature, rightly worry about how best to reduce
gun violence. But they err in subjecting the Second Amend-
ment to different, watered-down rules and demanding little if
any proof. So I would enjoin this Act until New Jersey provides
real evidence to satisfy its burden of proving the Act constitu-
tional.

So here at least injunction " until New Jersey provides real evidence to satisfy its burden of proving the Act constitu-tional" is the contemplated remedy, not more.

Edited by FedUpWithNJ

Share this post


Link to post
Share on other sites

Where I feel the court erred is accepting the law without grandfathering.  Numerous courts have upheld mag limits alone, but establishing a limit without grandfathering existing mags, thereby turning a whole class of citizens into felons overnight, seems like a clear violation of the takings clause regardless of the level of scrutiny applied.  That alone should rule the law unconstitutional.   The last time something like that occurred it required a constitutional amendment after a pretty brutal, drawn out conflict that shook this country to the core.

Share this post


Link to post
Share on other sites

The question will be can a new appointment be confirmed before a decision is made.  I’m sure the current guy will retire before then but not sure a replacement will be on place. The decision to hear, or the decision itself, made be made by a split circuit. 

Share this post


Link to post
Share on other sites
9 minutes ago, FedUpWithNJ said:

They deem it not to be a taking because you had other options: modify or sell your mags. Bibas doesn't dissent from the majority on this.

Bibas argued the entire law was unconstitutional based on the criteria for justifying public safety, and the undue burden placed on LCM owners... It's not specifically mentioned, but its covered in his dissent in a round about way. The entirety of his dissent is that that state made zero argument in limiting the rights of individuals. The dissenting opinion doesn't have to hit every point of the case when the fundamentals of the law are found to be unconstitutional. His main argument discredits every sub argument of the majority opinion. 

  • Like 1

Share this post


Link to post
Share on other sites
43 minutes ago, JackDaWack said:

Bibas argued the entire law was unconstitutional based on the criteria for justifying public safety, and the undue burden placed on LCM owners... It's not specifically mentioned, but its covered in his dissent in a round about way. The entirety of his dissent is that that state made zero argument in limiting the rights of individuals. The dissenting opinion doesn't have to hit every point of the case when the fundamentals of the law are found to be unconstitutional. His main argument discredits every sub argument of the majority opinion. 

I don't agree that "his main argument discredits every sub argument of the majority opinion".  ANJRPC argued three constitutional violations: 2nd, 5th (taking) and 14th (equal protection) amendment violations. It's true they only have to prevail on one of them to win their case, but it's not true that prevailing on one of them means they automatically establish the other two.

Since Bibas only dissents on the 2nd amendment argument, his opinion has nothing to say about the 5th or 14th amendment arguments. And given how contentious 2nd amendment cases are, you can be confident he would have used the 5th or 14th amendment arguments first if he felt there was an obvious flaw in the majority's reasoning there.

Share this post


Link to post
Share on other sites
53 minutes ago, FedUpWithNJ said:

I don't agree that "his main argument discredits every sub argument of the majority opinion".  ANJRPC argued three constitutional violations: 2nd, 5th (taking) and 14th (equal protection) amendment violations. It's true they only have to prevail on one of them to win their case, but it's not true that prevailing on one of them means they automatically establish the other two.

Since Bibas only dissents on the 2nd amendment argument, his opinion has nothing to say about the 5th or 14th amendment arguments. And given how contentious 2nd amendment cases are, you can be confident he would have used the 5th or 14th amendment arguments first if he felt there was an obvious flaw in the majority's reasoning there.

You just proved my point, and made two contradictory statements. 

It doesn't matter what his opinion is on the other two which is why he doesn't give it. The Majority has to address each violation argued. 

If he argued that the magazines are covered under the second, and that the state provided no justification for public safety. That then means the state cannot require you to forfeit them, and that an equal class is established under the removal of enforcing the law. Their is a blanketed understanding of the implications of what he said.

  • Like 2

Share this post


Link to post
Share on other sites
26 minutes ago, JackDaWack said:

You just proved my point, and made two complete contradictory statements. 

It doesn't matter what his opinion is on the other two which is why he doesn't give it. The Majority has to address each violation argued. 

If he argued that the magazines are covered under the second, and that the state provided no justification for public safety. That then means the state cannot require you to forfeit them, and that an equal class is established under the removal of enforcing the law. Their is a blanketed understanding of the implications of what he said.

So if ANJRPC had argued that the mag ban violated the establishment clause and Bibas didn't address the majority's dissent to that argument, you would claim the mag ban violates religious freedom? (yeah, I know, for some of us it really does, but I don't think any court will agree with us)

Share this post


Link to post
Share on other sites
3 minutes ago, FedUpWithNJ said:

So if ANJRPC had argued that the mag ban violated the establishment clause and Bibas didn't address the majority's dissent to that argument, you would claim the mag ban violates religious freedom? (yeah, I know, for some of us it really does, but I don't think any court will agree with us)

When the girl in WaWa early Sunday morning asks where I'm headed, my smartass reply is

The Church of John M. Browning

Eugene Stoner, Pastor.

  • Haha 2

Share this post


Link to post
Share on other sites
Just now, FedUpWithNJ said:

So if ANJRPC had argued that the mag ban violated the establishment clause and Bibas didn't address the majority's dissent to that argument, you would claim the mag ban violates religious freedom? (yeah, I know, for some of us it really does, but I don't think any court will agree with us)

It's a dissenting opinion, it carries zero meaning in the eyes of the court. If he doesn't opinion directly on it then he doesn't give an direct alternative opinion, that doesn't mean he doesn't have one. In this specific case, if he affirms the second is violated, he affirms violation of all the others. The government cant remove that which is a right to own, and you cant have unequal classes of individuals if people are rightful to protected arms. 

If he was going to be part of the majority opinion I would image he would hit every argument with purpose, he focused on one here, and well. 

Share this post


Link to post
Share on other sites
13 minutes ago, FedUpWithNJ said:

So if ANJRPC had argued that the mag ban violated the establishment clause and Bibas didn't address the majority's dissent to that argument, you would claim the mag ban violates religious freedom? (yeah, I know, for some of us it really does, but I don't think any court will agree with us)

I think the point is that Bibas’ dissent was based on the fact that the state did not meet the bar necessary to burden any Right, whether it is 2nd, 4th, or 5th. 

  • Like 2

Share this post


Link to post
Share on other sites
17 minutes ago, JackDaWack said:

It's a dissenting opinion, it carries zero meaning in the eyes of the court. If he doesn't opinion directly on it then he doesn't give an direct alternative opinion, that doesn't mean he doesn't have one. In this specific case, if he affirms the second is violated, he affirms violation of all the others. The government cant remove that which is a right to own, and you cant have unequal classes of individuals if people are rightful to protected arms. 

If he was going to be part of the majority opinion I would image he would hit every argument with purpose, he focused on one here, and well. 

I hear what you are saying, but I don't see how 2nd amendment violation implies 5th or 14th in this case. The 5th is particularly easy to carve out in my opinion. If you can sell or modify your mags, then they didn't take anything away from you, regardless of whether the ban violates your 2nd amendment rights.

That said, it occurred to me that Bibas may have had a constructive reason for not addressing the 5th and 14th arguments: neither of those help us if we win. If ANJRPC prevail on the 14th, all Trenton will do is amend the act so it no longer exempts retired LEOs. Who is  going to charge a retired LEO with possession of a 15 round mag? Another LEO? There's a reason you never see cops in court on speeding tickets. And on the 5th, they'll just offer to buy all the 15 round mags off us. At a (generous) 20 bucks a pop, even if they have to purchase 10 million of them, that's less than the state's unfunded pension liabilities grow by over a long weekend.

 

Share this post


Link to post
Share on other sites
5 minutes ago, voyager9 said:

I think the point is that Bibas’ dissent was based on the fact that the state did not meet the bar necessary to burden any Right, whether it is 2nd, 4th, or 5th. 

He pretty much focuses 100% on the second amendment and the level of "scrutiny" required to burden our rights there. It's true the same level applies to the other rights, but he didn't argue that the standard wasn't met.

Share this post


Link to post
Share on other sites
15 minutes ago, FedUpWithNJ said:

I hear what you are saying, but I don't see how 2nd amendment violation implies 5th or 14th in this case. The 5th is particularly easy to carve out in my opinion. If you can sell or modify your mags, then they didn't take anything away from you, regardless of whether the ban violates your 2nd amendment rights.

That said, it occurred to me that Bibas may have had a constructive reason for not addressing the 5th and 14th arguments: neither of those help us if we win. If AJNRPC prevail on the 14th, all Trenton will do is amend the act so it no longer exempts retired LEOs. Who is  going to charge a retired LEO with possession of a 15 round mag? Another LEO? There's a reason you never see cops in court on speeding tickets. And on the 5th, they'll just offer to buy all the 15 round mags off us. At a (generous) 20 bucks a pop, even if they have to purchase 10 million of them, that's less than the state's unfunded pension liabilities grow by over a long weekend.

 

The point is, there is no reason to bring them up. If he believes the law didnt meet the requirements of the 2nd amendment, then it cannot possibly meet any other. If he agreed with the majority about the second, then it would make sense to mention the others if he didn't agree, but thats not the case.

If we "win", then we get back our mags, or more.... the 5th and 14th arguments become completely moot.

Share this post


Link to post
Share on other sites
11 minutes ago, JackDaWack said:

If he believes the law didnt meet the requirements of the 2nd amendment, then it cannot possibly meet any other.

Ok, we'll just have to agree to disagree. Whether the law violates 2nd, 5th or 14th amendments are disjoint questions - it can violate one without violating the others. That doesn't have to be the case, but one of the things about the constitution I find beautiful is that the enumerated rights are all pretty orthogonal to one another.

Share this post


Link to post
Share on other sites
1 minute ago, FedUpWithNJ said:

Ok, we'll just have to agree to disagree. Whether the law violates 2nd, 5th or 14th amendments are disjoint questions - they can violate one without violating the others. That doesn't have to be the case, but one of the things about the constitution I find beautiful is that the enumerated rights are all pretty orthogonal to one another.

I'm not saying that violating the second is defacto violating the 5th or 14th. Im just saying that once it's determined the state cant limit your possession of Mags, the other arguments become moot. They don't always address each point as an individual item

Share this post


Link to post
Share on other sites
2 minutes ago, JackDaWack said:

I'm not saying that violating the second is defacto violating the 5th or 14th. Im just saying that once it's determined the state cant limit your possession of Mags, the other arguments become moot. They don't always address each point as an individual item

Ok. You originally said "his main argument discredits every sub argument of the majority opinion".  If by "discredit" you mean "render moot" then I agree.

Share this post


Link to post
Share on other sites
5 minutes ago, GlennS87 said:

If it is ruled unconstitutional would one be able to bring action to recover the cost of destroyed or altered magazines?

Maybe a class action suit? I would think the filing fees alone for individuals filing separate suits would exceed the cost of purchasing new magazines and therefore not be worth it.

Share this post


Link to post
Share on other sites

Even if they grant en banc review, and even if the majority agrees with Bibas (which they should), I would still caution against too much optimism. Bibas, in summarizing his dissent:

Quote

The majority’s concerns are understandable. Guns kill people. States should be able to experiment with reasonable gun laws to promote public safety. And they need not wait for mass shootings before acting. The government’s and the majority’s position may thus be wise policy. But that is not for us to decide. The Second Amendment is an equal part of the Bill of Rights. And the Supreme Court has repeatedly told us not to treat it differently.


So we must apply strict scrutiny to protect people’s core right to defend themselves and their families in their homes. That means holding the government to a demanding burden of proof. Here, the government has offered no concrete evidence that magazine restrictions have saved or will save potential victims. Nor has it made any showing of tailoring.


I would thus enjoin the law and remand to let the government provide evidence that the Act will advance its interests and is tailored to do so. On remand, the government would be free to introduce real studies of any causal evidence that large-magazine limits prevent harm from mass shootings or gun violence in general. It could also introduce proof of tailoring and discuss its existing laws and alternatives. The challengers could try to rebut those studies. And we could then find whether the government has met its burden to justify this law. But it has not yet done that. So the law may well irreparably harm the challengers by infringing their constitutional rights. I respectfully dissent.

There's a lot of room for NJ to come back and buttress their case with stronger evidence that magazine limits reduce gun violence. It may be that such evidence is still fairly weak (I would suspect so), but the problem with the 2nd amendment relative to, say, the 1st, is that we already accept considerable restrictions on our right to bear arms, whereas free speech is almost unfettered, limited only in corner cases like shouting fire in a crowded theater.

It's easy in a first amendment case to say whether the government has met its burden of proof; it almost certainly has not. But I have no right to keep and bear rocket launchers. Or automatic weapons. Or sawn-off shotguns. Or missile launchers. Or mortars. Or even to concealed carry (although this may change). And none of those restrictions are necessarily grounded in the kind of evidence Bibas is calling for. So what does strict scrutiny mean for the 2nd amendment?

Share this post


Link to post
Share on other sites
39 minutes ago, FedUpWithNJ said:

Even if they grant en banc review, and even if the majority agrees with Bibas (which they should), I would still caution against too much optimism. Bibas, in summarizing his dissent:

There's a lot of room for NJ to come back and buttress their case with stronger evidence that magazine limits reduce gun violence. It may be that such evidence is still fairly weak (I would suspect so), but the problem with the 2nd amendment relative to, say, the 1st, is that we already accept considerable restrictions on our right to bear arms, whereas free speech is almost unfettered, limited only in corner cases like shouting fire in a crowded theater.

It's easy in a first amendment case to say whether the government has met its burden of proof; it almost certainly has not. But I have no right to keep and bear rocket launchers. Or automatic weapons. Or sawn-off shotguns. Or missile launchers. Or mortars. Or even to concealed carry (although this may change). And none of those restrictions are necessarily grounded in the kind of evidence Bibas is calling for. So what does strict scrutiny mean for the 2nd amendment?

He actually addressed the issue in relative terms to the limitations of the first, and asks for the same level of scrutiny be applied to the second. He states very clearly that in limiting either right, the state must show an abundance of proof that it would disproportionately benefit public safety. 

It is actually easier to remove the free speech of individuals since it only requires judges to determine if your speech directly endangered the safety of others. Whether that be making threats or causing false public alarm. That becomes an issue of "intent". 

In the case of firearms, it can always be argued that disarming the public would put them at lesser odds of safety or self defense. In relative terms to how often a mass shooting takes place. 

Share this post


Link to post
Share on other sites
11 minutes ago, JackDaWack said:

He actually addressed the issue in relative terms to the limitations of the first, and asks for the same level of scrutiny be applied to the second. He states very clearly that in limiting either right, the state must show an abundance of proof that it would disproportionately benefit public safety. 

Yes, he did. I am not questioning whether the level of scrutiny should be the same for all constitutional rights (strict vs intermediate or rational basis) , but whether strict scrutiny itself means the same thing for all rights. Prima facie to me at least, the argument that strict scrutiny is the same standard regardless of whether it is the 1st, 2nd or 20th amendment, is at least historically inaccurate, even if we believe it should be the case going forwards.

Share this post


Link to post
Share on other sites

hold on, they cannot limit guaranteed rights because of supposed safety concerns.  He is right, no state has proved the 'gun violence' numbers and if break them down, cell phones are a far greater danger.  A right is a right, regardless and it cannot be subjugated to stall worth of public opinion which is exactly what some of these states are doing.

Share this post


Link to post
Share on other sites
1 minute ago, FedUpWithNJ said:

Yes, he did. But it is just one judge's opinion. Prima facie to me at least, the argument that strict scrutiny is the same standard with respect to burdening any of our constitutional rights is at least historically inaccurate, even if we believe that should be the case going forwards.

Well, the idea is that the cases create a standard for scrutiny, and that it is the states job to prove whether it meets it or not. The idea is that they use the same level of scrutiny... That the individuals right is greater than the whole when it serves a purpose to the individual. That is if there is an argument to remove it for the benefit of the public. 

I see the argument as, even if smaller mags prevent Mass shootings, at least in NJ they are so infrequent, that limiting an individuals right to better protect themselves actually out weighs the comparison. 

 

Share this post


Link to post
Share on other sites

Join the conversation

You can post now and register later. If you have an account, sign in now to post with your account.

Guest
Reply to this topic...

×   Pasted as rich text.   Paste as plain text instead

  Only 75 emoji are allowed.

×   Your link has been automatically embedded.   Display as a link instead

×   Your previous content has been restored.   Clear editor

×   You cannot paste images directly. Upload or insert images from URL.

Loading...

  • Recently Browsing   0 members

    No registered users viewing this page.



  • olight.jpg

    Use Promo Code "NJGF10" for 10% Off Regular Items

  • Supporting Vendors

  • Latest Topics

  • Posts

    • I very seriously doubt this has anything to do with terrorism.    1) Harbor pilots are VERY seriously vetted, and highly trained. Not to mention extremely well paid. My experience knowing a few of them, and knowing how they are recruited and screened tells me that there is a slim to highly unlikely chance that a harbor pilot would have participated in anything like that.    2) Maintenance of foreign flag ships is well known to be dubious. Especially these days. These were NOT US flag, Jones act sailors. It was (to my understanding) a largely Indian crew on that ship, with a Ukrainian Captain. Indian crews are not exactly known for being stellar.    3) The bunkers (fuel) these ships use is ‘Bunker C’, which is a heavy, dirty fuel oil that can, and usually is, pretty contaminated. This stuff ain’t your car grade gasoline or diesel fuel. It’s nasty.   It requires nearly constant filter changes and maintenance to the engine/generators. The ship took on fuel prior to departing port, which would stir up all kinds of shit in the fuel tanks, which would contribute to particulates in the fuel lines/filters.    4) I’d say the posting of the chief engineer for Maserek above was pretty spot on as far as chain of events.    This was a shitty accident, with horrible timing and outcome. Not a terror attack. 
    • I saw Lara's interview on Bannon's War Room, and that gave me pause for thought. Her conjecture depends primarily on the veracity of her sources. Regardless, if it's not applicable in any way to this ship disaster, the methods described seem valid to me. And worthy of consideration for the future. As I said before, IMO something is coming. Death by a thousand cuts? Lara Logan Provides Comprehensive Baltimore Update: Experts in Behavioral Analytics, Counter-Terrorism, and National Security Analyze Recent Incident | The Gateway Pundit | by Jim Hᴏft
    • Another big windfall for governments'. The 'winner'? Not so much. Mega Millions $1.13 billion winner is facing mega tax bill. The amount is staggering. - nj.com
×
×
  • Create New...