Hightower Hearing in front of the First Circuit Court Of Appeals June 6, 2012

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This morning Alan Gura argued Stacey Hightower's case for declaring suitability as unconstitutional and that there is a right to carry embedded in the 2nd Amendment to the US Constitution.

Please see here for more information on the case. Below those who attended will update the thread with their recollections. The court posts recordings of oral arguments on it's website and the first person to find it can post said recordings below.
 
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Bump for the morning. The other thread point here got locked so a little nudge to get it started. Myself, jar or whomever else who shows up at the courthouse will post here once we are out of the comms free zone.
 
Just seeing it in print is enough to make me... [bow]

http://www.ca1.uscourts.gov/files/calendar/calendar.pdf

DOCKET TO BE CALLED WEDNESDAY, JUNE 6, 2012 AT 9:30 A.M.
NUMBER COURT OF APPEALS PANEL COURTROOM, 7TH, FLOOR.
BEFORE JUDGES: Lynch, Lipez, Thompson


11-1246 United States v. David L. Place.
Appellant 10 min. Appellee 10 min.


11-2281 Stacey Hightower v. City of Boston, et al.
Appellant 15 min. Appellee 15 min.
 
Will there be a live audio stream? I know, we're spoiled.

Sent from my cell phone using Forum Runner. Please excuse spelling errors, formatting, and absent links.
 
RichM said:
Will there be a live audio stream? I know, we're spoiled.

Sent from my cell phone using Forum Runner. Please excuse spelling errors, formatting, and absent links.
Click to expand...
The First Circuit does not stream audio or video. We're hoping to have a copy of the audio to post at some point.
 
terraformer said:
Bump for the morning. The other thread point here got locked so a little nudge to get it started. Myself, jar or whomever else who shows up at the courthouse will post here once we are out of the comms free zone.
Click to expand...

JFR2 said:
Go get 'em, guys!

-JR
Click to expand...


May I suggest that we wait for someone that was there to reply?
The Comm2A group is incommunicado due to being in the courthouse.
Everytime this thread is bumped my heart jumps.
Many people's eyes are watching this thread and are ruminating waiting for an update.
 
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I'll defer to terraformer and co for the serious legal analysis. My impression from the questions asked was that 2 of the judges were interested and well informed about the case. The third only asked one question the whole time and to me it had an air of 'Why do you want to have those icky guns?'.

The judges seemed very interested in the due process angle and I think if we get a favorable decision, it's more likely to turn on the due process issue than the 2A issue. There wasn't much discussion of the 2A outside the home issue in general, it really focused on the procedural/factual issues of the case specifically and on the constitutionality of the suitability standard.

I'm just an interested layperson, and even experienced appellate attorneys have trouble predicting outcomes from oral arguments, so take all this with a huge grain of salt. We'll know when the decision comes out, probably in 3-6 months.
 
I need to fill Brent in and get back to my day job so real quick, I think jar has a good handle on it. It wasn't terrible, it wasn't great. Should know within the next three or so month. Once they post the recording it will be posted here. There was some statement from the judge that Boston's use of a form created an objective standard for suitability which was...well lets just say we hope she abandon's that as it's laughable. The best line for me was when the AAG salinger popped up and claimed our interpretation of open carry in Boston is wrong despite us quoting verbatim the city's attorney...
 
jar said:
I'll defer to terraformer and co for the serious legal analysis. My impression from the questions asked was that 2 of the judges were interested and well informed about the case. The third only asked one question the whole time and to me it had an air of 'Why do you want to have those icky guns?'.

The judges seemed very interested in the due process angle and I think if we get a favorable decision, it's more likely to turn on the due process issue than the 2A issue. There wasn't much discussion of the 2A outside the home issue in general, it really focused on the procedural/factual issues of the case specifically and on the constitutionality of the suitability standard.

I'm just an interested layperson, and even experienced appellate attorneys have trouble predicting outcomes from oral arguments, so take all this with a huge grain of salt. We'll know when the decision comes out, probably in 3-6 months.
Click to expand...
Not terribly surprising, they know they are making big-time law here. They would want to be sure to CTAs legally...

I would think due process is the primary reason that Suitability should not stand. Even in Scalia's world there are "reasonable restrictions," so without further guidance from SCOTUS on just what the heck that means (and why god why he even said it [sad2]), the issue is whether such a restriction as suitability can be constitutional.

From a Due Process perspective - Hell NO!
 
That the panel focused on due process is a very good thing. This case is unique in that Hightower had a license, it was revoked and her guns was seized. All without any hearing, due process, or even allegation of dangerousness.

Depending upon one's expectations, this could turn out to be a very good case for us. I doubt the First Circuit will conclude that the second amendment extended outside the home. But I do think they'll take serious issue with the lack of due process in a way that makes a CLEO much more accountable for justifying their denial or revocation of a license. And that would be progress.
 
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Weird, 3 other cases argued today were added to the audio feed, but not Hightower. I wonder what the story is with that.
 
Knuckle Dragger said:
The the panel focused on due process is a very good thing. This case is unique in that Hightower had a license, it was revoked and her guns was seized. All without any hearing, due process, or even allegation of dangerousness.

Depending upon one's expectations, this could turn out to be a very good case for us. I doubt the First Circuit will conclude that the second amendment extended outside the home. But I do think they'll take serious issue with the lack of due process in a way that makes a CLEO much more accountable for justifying their denial or revocation of a license. And that would be progress.
Click to expand...

Yeah, a ruling requiring due process in LTC decisions would radically change the landscape in MA. If enough burden is put on the police chiefs to justify any use of their discretion in LTC issuance, they're not going to want it anymore. If future license appeals are reviewed de novo instead of the current 'abuse of discretion' standard (in MA courts, which Gura wisely pointed out to the panel is even more deferential than the usual sense of that term in the federal courts), that's a massive game changer.

Also, if it takes suitability off the table, that will open up some avenues of activism that are currently foreclosed by the chilling effect of arbitrary suitability denials/revocations.

Another issue I forgot in my earlier post: The attorney for the state very deliberately tried to conflate the various issues involved in the difference between the LTC-A-NR and LTC-B. For example, he made one reference to "large capacity weapons, such as M16 rifles". If the court does find for Hightower under a 2A approach, it'll be interesting to see how they unravel this. Does any other state mix a distinction in what you can own with whether you can carry in the same permit? I believe New York almost does in that pistol permits are required to own handguns and some of them allow carry, but I can't think of anywhere that has stepped ownership requirements finer than pistol/long gun.

- - - Updated - - -

Audio is out: http://www.ca1.uscourts.gov/files/audio/11-2281.mp3 Thanks to Al Norris for the pointer.
 

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