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View Full Version : How far will the current SCOTUS go on the 2A?


elenius
04-24-2009, 7:52 AM
Suppose we had the perfect cases lined up for everything we want (or want to avoid): Incorporation, AWs, CCW, LOC, "sensitive places", NFA, licensing, registration, etc etc. Suppose also that we could have SCOTUS hear them ASAP. Would we really want them to?

Heller was won with a close 5-4 majority. How far will they go in terms of the items above? It only takes one of the 5 to not like scary looking rifles for us to lose 2A protection of AWs forever, for example. Do we really want to risk that? Which things should be put on the backburner until the court makeup improves? Do we think it will improve? Maybe this is the best court we are ever going to get, and a once in a lifetime opportunity? Is this battle best fought in "friendly" circuit courts for the time being, to the extend possible? (I realize that the friendly circuits may not have as many bad laws to strike down).

AEC1
04-24-2009, 8:25 AM
I dont see the makeup of the court improving durring the current administration, and we do need to be careful what we take ot them now. Kennedy is a strange one, I wouldnt push him to much right now, I am sure smart minds are making very calculated moves for this very reason, this is also why they are very very quick to point out that we need to be careful and pick our battles, if the wrong case with the wrong plantiff gets there it could screw us for a long time.

dustoff31
04-24-2009, 8:32 AM
In issuing the Heller decision, I think that SCOTUS has gone about as far as they are willing to go, except for upholding incorporation cases.

I just don't see them overturning the NFA, or getting too concerned with licensing and registration issues so long as they are not outright bans.

Is this the best court we will ever get? I don't know. But I do know that it isn't going to get any better at least for the forseeable future.

AngelDecoys
04-24-2009, 8:36 AM
It only takes one of the 5 to not like scary looking rifles for us to lose 2A protection of AWs forever, for example. Do we really want to risk that?

Consider that 1st Amendment issues are still being hammered out 100 years after the fact. Why would we expect 2nd issues to be hammered out quickly?

IMO, all of it is better heard sooner over later. Given Kennedy is the swing vote right now, even he thinks AR's a common arms (Staples). All 'common arms' now being off the table via Heller.

nobody_special
04-24-2009, 8:59 AM
After Nordyke, I'm starting to think that the courts will not actually overturn many laws at all. The "sensitive places" issue from Nordyke is going to be a real problem for carry rights. We need a ruling that clearly applies Heller outside of the home.

Here's my rundown, in order from easiest to most difficult:

Heller subtly suggested that licensing would be overturned, which is to be expected under the definition of a right. Registration is only subtly different from licensing, and a very strong case can be made against registration fees. This should be pretty easy to win.

Current CCW policies are vulnerable to an equal protection challenge. That does not mean we will get shall-issue.

Waiting periods and one-gun-per-month laws should be pretty easy to challenge, and I expect the latter law to fail. The former should fall as well though I can see judges arguing that the delay is reasonable given the compelling government interest etc.

The handgun roster and AWB should fall, though I can see the courts going either way. The exceptions to these laws for police in their private capacity will be a significant help, though it's not an air-tight case. After all, police have other firearm-related benefits such as 50-state CCW privileges. Absent those exceptions it'd be an uphill battle. Sure, AWs aren't unusual anymore but I think many judges will be blind to that fact.

Magazine capacity restrictions will be another tough fight, I tend to doubt that we'll win that one though again I think it's rather important that we do.

The NFA will not be overturned, period.

elenius
04-24-2009, 9:13 AM
Some of these things, like AWs, NFA, and perhaps high caps, will probably depend on how seriously the courts take the more "militaristic" side of the 2nd amendment.

Here's what I mean. Heller ruled that clearly we have a right to "personal protection" in our homes against burglars etc. This right isn't really infringed all that much by magazine capacity restrictions, AW bans, or the NFA stuff. Let's call this the "domestic" aspect of the 2A.

But Heller also hinted, and Nordyke said more clearly, that the 2nd is also about stopping foreign invasions, terrorism, and government tyranny. This right would certainly be infringed by AW bans, MG bans, high cap bans, etc. This is what I mean by the "militaristic" aspect of the 2A.

The big question is, is the current supreme court ready to get serious about the militaristic aspect of the 2nd amendment? If not, it may be too soon to try to get these things. We can still work on the "domestic" aspect and expand personal protection with handguns to outside the home, and perhaps get a reasonable definition of "sensitive" areas.

SwissFluCase
04-24-2009, 9:22 AM
I think a lot of what we got now was from changing our (the RKBA community) argument from "sporting use" to "Self Defense". Even the anti's have to frame their arguments in this light now. When I was a kid everyone expected that a 2A ruling would cover hunting rifles at the most; sporting purpose.

We need to unite our rallying call around military arms first, and challenge the rhetoric from the anti's about "weapons of war on our streets". After we get loud and consistent in these calls we will have a much better chance at doing away with things like the NFA. For now we really need to focus on personal self defense as our strategy, as this is what the courts are receptive to right now. We also need to get the PR going for military arms so we can push that when the time comes.

Regards,


SwissFluCase

ad6mj
04-24-2009, 9:23 AM
Kennedy is a strange one, I wouldnt push him to much right now, I am sure smart minds are making very calculated moves for this very reason, this is also why they are very very quick to point out that we need to be careful and pick our battles, if the wrong case with the wrong plantiff gets there it could screw us for a long time.

We might very well not be the ones picking the battle. Too much delay and some criminal may beat us to the punch.

SwissFluCase
04-24-2009, 9:25 AM
We might very well not be the ones picking the battle. Too much delay and some criminal may beat us to the punch.

Maloney...

Regards,


SwissFluCase

wash
04-24-2009, 9:30 AM
We are not going to have a perfect storm where all of these issues are addressed by SCOTUS in a short time frame.

I don't think we would want it either. Attitudes are not going to change overnight and we don't want to seem like gun nuts that want to repeal everything back to the NFA so that we can buy hand grenades at Walmart.

CSDGuy
04-24-2009, 9:35 AM
Shove a lot of issues at SCOTUS all at once, and I don't think they'll go very far on the 2A at all. Bring them on incrementally and build appropriately on previous cases and I think that, ultimately, SCOTUS will go pretty far...

You just have to lead them slowly to where you want to go... and eventually they'll get there. Try to drag them, and they'll balk.

gbran
04-24-2009, 9:46 AM
Are we reading too much into the Heller ruling. Seems to me SCOTUS didn't didn't restrict or rule on RKBA outside of the home, but rather addressed their ruling narrowly to the DC ban which did deal with guns in the home. Heller didn't challenge any restrictions other than in the home.

elenius
04-24-2009, 9:48 AM
Are we reading too much into the Heller ruling. Seems to me SCOTUS didn't didn't restrict or rule on RKBA outside of the home, but rather addressed their ruling narrowly to the DC ban which did deal with guns in the home. Heller didn't challenge any restrictions other than in the home.

Yes, but we may still have to go back to the supreme court to get a new ruling on self defense outside the home in order to strike down laws against it.

dustoff31
04-24-2009, 10:00 AM
Some of these things, like AWs, NFA, and perhaps high caps, will probably depend on how seriously the courts take the more "militaristic" side of the 2nd amendment.

Here's what I mean. Heller ruled that clearly we have a right to "personal protection" in our homes against burglars etc. This right isn't really infringed all that much by magazine capacity restrictions, AW bans, or the NFA stuff. Let's call this the "domestic" aspect of the 2A.

But Heller also hinted, and Nordyke said more clearly, that the 2nd is also about stopping foreign invasions, terrorism, and government tyranny. This right would certainly be infringed by AW bans, MG bans, high cap bans, etc. This is what I mean by the "militaristic" aspect of the 2A.

The big question is, is the current supreme court ready to get serious about the militaristic aspect of the 2nd amendment? If not, it may be too soon to try to get these things. We can still work on the "domestic" aspect and expand personal protection with handguns to outside the home, and perhaps get a reasonable definition of "sensitive" areas.

Other than NFA, these are state law issues. With incorporation, in theory they shouldn't even make it past the federal circut courts, if that far. And if people vote properly, they won't.

I wouldn't put too much stock in SCOTUS getting real excited about the militaristic aspects. Even most gunnies don't have more than a passing interest in that end of things, except for perhaps they do own, or believe that it's one's right to own ARs and such.

yellowfin
04-24-2009, 10:01 AM
The NFA needs to be divided and conquered and the terms of the argument changed. "I want all the scary stuff the military has" is going to get shot down (no pun intended) all too easily, for sure. Not all NFA items are at all the same nor should they be regarded and argued in the same light and language as our opposition uses. SBR and SBS are fantastic for home defense with nothing dangerous about them, a perfectly reasonable Heller protected class. Suppressors are for effective hearing protection and also ideal for home defense. Full auto when it was sold to civilians prior to 1934 had lots of recognized legitimate use as well. Ernest Hemingway used it to fend off sharks and pirates. Railroad workers defended freight and mail with it. It was advertised to ranchers to be used against wolves and coyotes.

elenius
04-24-2009, 10:05 AM
Other than NFA, these are state law issues. With incorporation, in theory they shouldn't even make it past the federal circut courts, if that far. And if people vote properly, they won't.


Yeah but the circuits may not make the right decisions.


I wouldn't put too much stock in SCOTUS getting real excited about the militaristic aspects. Even most gunnies don't have more than a passing interest in that end of things, except for perhaps they do own, or believe that it's one's right to own ARs and such.

I agree. Strangely though, it seems like we here in the 9th circuit have the strongest protection for those types of things, with the Nordyke decision, at least in theory. I'm sure a different 3-judge panel will be ready to explain those aspects away.

dustoff31
04-24-2009, 10:17 AM
The NFA needs to be divided and conquered and the terms of the argument changed. "I want all the scary stuff the military has" is going to get shot down (no pun intended) all too easily, for sure. Not all NFA items are at all the same nor should they be regarded and argued in the same light and language as our opposition uses. SBR and SBS are fantastic for home defense with nothing dangerous about them, a perfectly reasonable Heller protected class. Suppressors are for effective hearing protection and also ideal for home defense. Full auto when it was sold to civilians prior to 1934 had lots of recognized legitimate use as well. Ernest Hemingway used it to fend off sharks and pirates. Railroad workers defended freight and mail with it. It was advertised to ranchers to be used against wolves and coyotes.

But again, these are state issues. Outside CA, one can have as much of this stuff as they can afford.

As for MGs quite frankly, the only real problem area (IMHO) is the ban on new production. Because the cost of tranferrable MGs is prohibitive for the average person.

I do agree with you on seperating the issues. Perhaps trying to remove the new production ban while leaving the transfer tax and registration in place would be a start.

Legasat
04-24-2009, 2:37 PM
It's not actually this SCOTUS that I am worried about. If the current administration gets to nominate more than one or two replacements...the future could be very bleak

DDT
04-24-2009, 2:50 PM
Shove a lot of issues at SCOTUS all at once, and I don't think they'll go very far on the 2A at all. Bring them on incrementally and build appropriately on previous cases and I think that, ultimately, SCOTUS will go pretty far...

You just have to lead them slowly to where you want to go... and eventually they'll get there. Try to drag them, and they'll balk.

Problem is the "current" SCOTUS may not last terribly long. If it changes in the next 4-8 years it won't be pretty for us.

CCWFacts
04-24-2009, 3:08 PM
Problem is the "current" SCOTUS may not last terribly long. If it changes in the next 4-8 years it won't be pretty for us.

Yeah. I feel that this is going to be the most gun-friendly SCOTUS we're going to have within this generation.

press1280
04-24-2009, 8:01 PM
Are we reading too much into the Heller ruling. Seems to me SCOTUS didn't didn't restrict or rule on RKBA outside of the home, but rather addressed their ruling narrowly to the DC ban which did deal with guns in the home. Heller didn't challenge any restrictions other than in the home.

Although not part of the court's holding, they did mention that few laws came close to DC's ban, and some were overturned. They mentioned several state cases from the 1800's in which OC was banned, like Nunn v. State, which actually said the 2A didn't apply to the states, but the states couldn't violate it anyway! These laws were also overturned.
So while it wasn't ruled upon, it will serve as a guidepost since the few SCOTUS 2A cases primarily dealt with non-incorporation(Cruikshank,Presser) or felon cases in which the scope of the right wasn't really dealt with.

DDT
04-24-2009, 8:17 PM
Yeah. I feel that this is going to be the most gun-friendly SCOTUS we're going to have within this generation.

It really depends on the ability of some of the "friendlies" to stay healthy until 2013 or 2017. I think if another anti-gun president follows President Obama we are in deep trouble. I doubt we'll keep a healthy court past 2020.

yellowfin
04-24-2009, 9:22 PM
I'd say the odds are good we'll kick out TPFI in 4 years given that people are hacked off with him now as it is if he continues on the present course.