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Kharn
01-29-2010, 12:01 PM
McDonald/Gura's reply brief (http://www.chicagoguncase.com/wp-content/uploads/2010/01/08-1521rb.pdf)
NRA's reply brief (http://www.chicagoguncase.com/wp-content/uploads/2010/01/08-1521rb_nra.pdf)

NRA brief seemed to do a good job destroying the 'ordered liberty' concept put forth by Chicago saying it was a lot more 'order' than it was 'liberty', haven't had a chance to read McDonald/Gura's brief.

wildhawker
01-29-2010, 12:19 PM
Already loving it...


SUMMARY OF ARGUMENT
1. Respondents offer no coherent alternative
interpretation of the Privileges or Immunities Clause,
nor do they defend the reasoning of The Slaughter-
House Cases, 83 U.S. (16 Wall.) 36 (1873). Relying
on illogical assumptions, selective quotation of the
Fourteenth Amendment’s opponents and discredited
scholarship, Respondents aver only that the Clause
is either indeterminate or redundant of other provisions.
It is neither. And included within the Clause’s
protection is the right to keep and bear arms as
understood in 1868 America.
2. Ignoring their present violation of Petitioners’
Fourteenth Amendment rights, Respondents
condemn imaginary future consequences of accurate
constitutional interpretation, failing to acknowledge
that applying constitutional text as plainly intended
by the Framers and understood by the ratifying
public possesses high intrinsic value. Nowhere is that
value higher than when enforcing basic national civil
rights standards, a task Respondents suggest is
undesirable.
Enforcing the Privileges or Immunities Clause
does not threaten the rights of immigrants and corporations.
The threat—to all individuals—is posed by
Respondents’ argument that the Fourteenth Amendment
was never understood to secure civil rights.
3. Regarding selective due process incorporation,
Respondents’ veneration of precedent would have
well-served their treatment of District of Columbia v.
Heller, 128 S. Ct. 2783 (2008); Duncan v. Louisiana,
391 U.S. 145 (1968); and Washington v. Glucksberg,
521 U.S. 702 (1997).
Respondents misstate the due process incorporation
standards. This Court applies enumerated and
unenumerated rights of substantive due process by
way of Duncan and Glucksberg, respectively. Both
approaches are rooted in the unique history of the
American people. Only by denying the role of Anglo-
American tradition and ignoring this Court’s clear
recent pronouncements on the right to arms can
Respondents deny that right is a fundamental aspect
of American constitutional liberty.
4. Unable to articulate the correct standard for
substantive due process incorporation, or interpret
the Privileges or Immunities Clause, Respondents
offer irrelevant political arguments against application
of the right to keep and bear arms against the
States, failing to accept that the decision to secure
the right in our Constitution has already been made.

That was the sound of a legal brief bodyslam.

command_liner
01-29-2010, 12:52 PM
At last year's post-Nordyke lunch, I offered to Alan to publish a
book of his collected works to date. This brief should be added
to the publish list.

The clear, blunt, logical language used by Gura is desperately
needed throughout government. We are all suffering under billions
of weasel words made into law by committees of cowardly idiots.

This brief is beyond blunt; it is a whipping of the position espoused
by Chicago.

IrishPirate
01-29-2010, 12:59 PM
I'm glad we have logic on our side....that and the Constitution...

I have a feeling the decision in this case will reach epic status in the media. Like if Michael Jackson died while molested the balloon boy during a Jon and Kate custody hearing in Haiti. EPIC...

2009_gunner
01-29-2010, 1:03 PM
One of my favorite parts of the brief so far

The fundamental flaw underlying Respondents’ approach is their erroneous conception of rights as something granted by the Constitution when judges deem it suits public policy. See, e.g., Respondents Br. 11; Mayors Br. 2, 30. The Second Amendment, like the First, grants nothing. These secure pre-existing rights against the federal government. Heller, 128 S. Ct. at 2812. In 1868, the Nation decided to secure them against the States as well.

jb7706
01-29-2010, 1:16 PM
A paper based on little more than a Google
search should not be used against decades of detailed,
disciplined scholarly work by some of the Nation’s
leading legal historians.

...these were found to be unreliable and, in
many places, sheer gibberish.

Do no evil indeed. :)

wildhawker
01-29-2010, 1:26 PM
CGF FTW

In a similar vein, Respondents and their amici
rely heavily on the now-discredited works of Charles
Fairman and Raoul Berger, incorporation’s leading
opponents whose work has failed to withstand serious
critical evaluation. In a brief surveying many of
Fairman and Berger’s errors, one amicus observes:
Both Fairman and Berger are unreliable
sources in the debate over incorporation in
that they approached their work from a nowrepudiated
historical perspective that was
hostile toward the Reconstruction and contemptuous
of the Framers of the Fourteenth
Amendment.
Calguns Foundation Br. 5; cf. Michael Curtis, The Bill
of Rights After Heller, 60 HASTINGS L.J. 1445, 1483
(2009) (Fairman endorsed political results of Colfax
Massacre; Berger favorably cited racially-tinged critique
of Sen. Howard).

command_liner
01-29-2010, 1:33 PM
One of my favorite parts of the brief so far

[ quote omitted ]

Very important. This might be the kiss of death. Compare to this
week's Citizens United case. Basically the same point was argued,
and freedom won.

Given the great O's disrespectful response, I cannot see the court
bending to Obama's misguided rants.

wildhawker
01-29-2010, 4:24 PM
Nicely played, Mr. Gura.

NRA’s novel theory, at 40, that Cruikshank did
not bar the Second Amendment’s application to the
States, contradicts over a century of understanding.
See, e.g., Heller, 128 S. Ct. at 2813 (“States, we said,
were free to restrict or protect the right under their
police powers”). Erroneous precedent should be overruled,
not tortured further to achieve politicallydesirable
results.

wildhawker
01-29-2010, 4:25 PM
Nicely played, Mr. Gura.

NRA’s novel theory, at 40, that Cruikshank did
not bar the Second Amendment’s application to the
States, contradicts over a century of understanding.
See, e.g., Heller, 128 S. Ct. at 2813 (“States, we said,
were free to restrict or protect the right under their
police powers”). Erroneous precedent should be overruled,
not tortured further to achieve politically desirable
results.

wildhawker
01-29-2010, 4:29 PM
Ouch.


Had Petitioners’ arguments threatened much disruption,
Respondents might have garnered support
from more than three states.

wildhawker
01-29-2010, 4:37 PM
Indeed.

Footnote 13

Disturbingly, Respondents endorse criminalization of
constitutionally-protected activity as a useful pretext to arrest
suspected criminals. Respondents Br. 16; Mayors Br. generally.
The argument endorses nothing less than a total police state.
Petitioners—and millions upon millions of American gun owners
—are not drug-dealing gangsters. Heller makes clear that
dangerous people can be deprived of arms. Heller, 128 S. Ct. at
2817. Yet even Chicago’s drug-dealing gangsters enjoy some constitutional
rights. See Morales. Enforcing the Constitution qualifies
as “law enforcement,” too.

Social science is a poor substitute for constitutional
rights. Buck v. Bell, 274 U.S. 200 (1927). The
people’s decision to constitutionally-protect the right
to arms is not necessarily unsound.(15) In any event, it
was the people’s decision to make, and that decision
must now be enforced.

2009_gunner
01-29-2010, 5:08 PM
Indeed.

Good! I'm glad he exposes the anti's argument that gun legislation makes for a good "tool" for the police.

These Gura briefs attack every type of mentally disturbed and unsound argument put forth by the gun grabbers. I agree with the thought that these briefs could be printed. Maybe they should be essential reading for all gun owners.

hoffmang
01-29-2010, 5:22 PM
I love that Chicago's best quote against "P or I means rights" had this a paragraph before it:


But I want also to invite attention to the meaning of the words “privileges and im- munities” as used in this section of the amendment. It appears to be assumed in the popular mind, and too often by the law makers, that these are words of the most general and comprehensive nature, and that they embrace the whole catalogue of human rights, and that they confer the power and the obligation to enact affirmative and most dangerous laws.

Fitting that its by a Mr. Kerr...

-Gene

r/k/b/a
01-29-2010, 6:34 PM
I really like the way Gura worked in the Citizens United decision. He really knocked Chicago flat. The first footnote on the NRA brief is very good.

383green
01-29-2010, 9:34 PM
The concept of “ordered liberty” Respondents invoke twenty-seven times never referred to the government’s liberty to issue orders.


The awesomeness of this burn leaves me staggering. :thumbsup:

383green
01-29-2010, 10:15 PM
Indeed, all the violence and crime that Respondents worry about is already against the law, regardless of the handgun ban.

This reflects the core of the stupidity of weapon laws: Why would somebody who is already so morally bankrupt as to murder another, be dissuaded from that course of action by a mere restriction upon the possession of an inanimate object?

bignotti
01-29-2010, 10:30 PM
Gura's reply is nothing less than verbal kung fu.

Librarian
01-30-2010, 8:27 AM
Dave Hardy has a 'Cliffs Notes' version of both filings at http://armsandthelaw.com/

Maestro Pistolero
01-30-2010, 8:42 AM
Here you go California. Let's hope that the court takes this bait when the ruling is drafted.

NRA: Moreover, allowing a patchwork of local
laws to ban various types of firearms in different
parts of the country would chill the exercise of
Second Amendment rights everywhere and hinder
travel between jurisdictions.

1JimMarch
01-30-2010, 8:45 AM
Does it occur to anyone else that a win for us using P&I instead of Due Process could have a very positive PR gain?

In other words, Liberals might be willing to say "OK, we lost on guns, but hey these gun guys went and got us a lot of other cool stuff along the way!"

Or put another way, a common Liberal criticism of the NRA is that the 2nd Amendment is the only thing they care about. And given the general shredding of the whole rest of the Constitution by Dubya...it's not entirely an unfair critique. This is a way of potentially turning all that around, and striking a win for the WHOLE Constitution.

Too bad the NRA isn't smart enough to see that...

Mulay El Raisuli
01-30-2010, 9:13 AM
I have now read them both. There's a LOT to like in both of them. Most of the good parts have been commented upon, so I'll comment on the best (un-commented upon) part:



Respondents’ formulation of “ordered liberty” as a
but-for requirement for modern civilization would
leave few rights incorporated. England may be civilized,
but it establishes an official church headed by
that nation’s monarch, who presides over a legislative
body partially composed of birthright nobles.
England’s lack of protection for free speech has transformed
that nation into a center for libel tourism,
rendering English judgments of dubious enforceability
in American courts. See, e.g., Governor Patterson
Signs Legislation Protecting New Yorkers Against
Infringement of First Amendment Rights by Foreign
Libel Judgments, http://www.state.ny.us/governor/
press/press_0501082.html (May 1, 2008); N.Y. C.P.L.R.
§ 5304(b)(8).11

Japan, too, is civilized. However, last year saw
the first use of juries in Japanese criminal trials in
over half a century, in a form fundamentally inconsistent
with Sixth Amendment standards. Douglas
Levin, Saiban-in-Seido: Lost in Translation? How the
Source of Power Underlying Japan’s Proposed Lay Assessor System May Determine Its Fate, 10 ASIANPACIFIC
L. & POL’Y J. 199, 205 (2008).


It is too easy to identify nations that in some
respect fail to maintain an American standard of
individual liberty, yet remain more-or-less free. But
American constitutional liberty is not defined by the
lowest common denominator of freedom prevailing
among other nations. The right to arms is consistent
with our relatively greater protection of individual
liberty.12




Footnote 11:
Modeling constitutional standards on English practice
would defeat the purpose of the American Revolution. In any
event, English gun prohibition failed to produce much “ordered
liberty.” James Slack, Culture of violence: Gun crime goes up by
89% in a decade, THE DAILY MAIL, Oct. 29, 2009, http://
www.dailymail.co.uk/news/article-1223193/Culture-violence-Guncrime-
goes-89-decade.html



Footnote 12:
High gun ownership corresponds to greater political, civil
and economic freedom, and lower corruption. David Kopel, et al.,
Is There a Relationship Between Guns and Freedom? Comparative
Results from 59 Nations, 13 TEX. REV. L. & POLITICS 1
(2008).



I like this part because 'what other countries do' is being used an argument for what we should do far too often. Its bad enough when Liberals in general spout such nonsense. Its much worse when a SCOTUS Justice (Ginsburg) manifests such stupidity.

In any event, we shouldn't be conforming our conduct to the rest of the world. The rest of the world should be conforming their conduct to ours.


The Raisuli

dantodd
01-30-2010, 9:16 AM
Does it occur to anyone else that a win for us using P&I instead of Due Process could have a very positive PR gain?

In other words, Liberals might be willing to say "OK, we lost on guns, but hey these gun guys went and got us a lot of other cool stuff along the way!"

Or put another way, a common Liberal criticism of the NRA is that the 2nd Amendment is the only thing they care about. And given the general shredding of the whole rest of the Constitution by Dubya...it's not entirely an unfair critique. This is a way of potentially turning all that around, and striking a win for the WHOLE Constitution.

Too bad the NRA isn't smart enough to see that...

Not only positive PR but is all but assures the case will not be overturned in the event a court of a different makeup comes around in 5 or 10 years. While denying stare decisis to another case in Citizens United was the right thing to do constitutionally it does set a precedence for denying power to cases which are more recent and not yet firmly set. While P or I wouldn't insulate Heller it would lock McDonald up FOREVER.

dustoff31
01-30-2010, 9:31 AM
Does it occur to anyone else that a win for us using P&I instead of Due Process could have a very positive PR gain?

In other words, Liberals might be willing to say "OK, we lost on guns, but hey these gun guys went and got us a lot of other cool stuff along the way!"


Yeah, and monkeys might fly out of my butt. But I seriously doubt it.

This is not an endorsement of DP over P/I, or vice versa, simply my view that rabid anti's will never, ever, quit or shut up.

Maestro Pistolero
01-30-2010, 9:33 AM
Preceding a statement with "with all due respect" can generally be translated as "I have zero respect for you."

I know that is just a sig line, but it reminds me of:

" . . . with all due deference to the seperation of powers . . . "

I don't think our president made any new friends on the court at the state of the union address. I would hope the justices would not be swayed in either direction, even by such an outrageous and unprecedented public whipping by a president on national TV. And one month before the court decides this case brought against his home city. I, for one, was appalled by the hubris.

OT rant over.

dantodd
01-30-2010, 9:33 AM
Yeah, and monkeys might fly out of my butt. But I seriously doubt it.

This is not an endorsement of DP over P/I, or vice versa, simply my view that rabid anti's will never, ever, quit or shut up.

He didn't say rabid antis, he said liberals. While it may seem that the 2 are inextricably linked in CA this is not so and it certainly isn't in the rest of the nation. There are plenty of folks who are interested in civil rights but have little interest in 2A either direction. This COULD be good for fence sitters.

dantodd
01-30-2010, 9:35 AM
I know that is just a sig line, but it reminds me of:

" . . . with all due deference to the seperation of powers . . . "

I don't think our president made any new friends on the court at the state of the union address. I would hope the justices would not be swayed in either direction, even by such an outrageous and unprecedented public whipping by a president on national TV. And one month before the court decides this case brought against his home city. I, for one, was appalled by the hubris.

OT rant over.

I had the same exact thought. Nothing will win friends like telling them they got it wrong. Even if they don't all agree on the specific ruling you can damn well bet they don't like when someone calls into question the process by which those 9 people wield so much power.

Maestro Pistolero
01-30-2010, 9:38 AM
My brain instantly translated it into: "With no deference whatsoever for the separation of powers, from this so-called constitutional scholar . . ."

dustoff31
01-30-2010, 9:49 AM
He didn't say rabid antis, he said liberals. While it may seem that the 2 are inextricably linked in CA this is not so and it certainly isn't in the rest of the nation. There are plenty of folks who are interested in civil rights but have little interest in 2A either direction. This COULD be good for fence sitters.

Anything is possible. But you'll excuse me if I don't hold my breath.

putput
01-30-2010, 10:24 AM
Is it just me or did these two briefs together argue for both Due Process AND P&I? Nice.

I like a lot about both of these but here's one I haven't seen posted yet.

It is the task of government to ensure that rights are exercised responsibly by punishing those who act irresponsibly. Governments cannot avoid this task, however difficult, by simply eliminating rights wholesale.

1JimMarch
01-30-2010, 10:31 AM
Living in Tucson, I end up hanging out with a metric buttload of Liberals who are either into guns or at least tolerant.

Just one example: some of the local anti-gun crazies tried to get the Pima County Democratic Party HQ building declared a no-CCW zone. The proposal got shot down in flames. ALL Democratic Party buildings in Arizona (including the state HQ in Phoenix) are guns-allowed zones.

Ponder that for a bit, while you assume that California-style Democrats are dominant everywhere.

kcbrown
01-30-2010, 10:31 AM
In any event, we shouldn't be conforming our conduct to the rest of the world. The rest of the world should be conforming their conduct to ours.


I agree with the sentiment, but I would add the caveat that the above should hold only when the country being conformed to is doing things right.

I know that you are almost certainly not advocating that other countries copy our missteps, but I thought it might be useful to make that clear...

Maestro Pistolero
01-30-2010, 10:39 AM
Living in Tucson, I end up hanging out with a metric buttload of Liberals who are either into guns or at least tolerant.

Just one example: some of the local anti-gun crazies tried to get the Pima County Democratic Party HQ building declared a no-CCW zone. The proposal got shot down in flames. ALL Democratic Party buildings in Arizona (including the state HQ in Phoenix) are guns-allowed zones.

Ponder that for a bit, while you assume that California-style Democrats are dominant everywhere.

F'ing great! So there are at least some Democrat facilities in which one could feel safe. What a monument to the stupidity and absurdity of the 'D' party line on gun control.

BobB35
01-30-2010, 10:45 AM
Living in Tucson, I end up hanging out with a metric buttload of Liberals who are either into guns or at least tolerant.

Just one example: some of the local anti-gun crazies tried to get the Pima County Democratic Party HQ building declared a no-CCW zone. The proposal got shot down in flames. ALL Democratic Party buildings in Arizona (including the state HQ in Phoenix) are guns-allowed zones.

Ponder that for a bit, while you assume that California-style Democrats are dominant everywhere.

Which makes you wonder how Pelosi ended up being speaker of the house. If all of these democrats are against the most liberal crackpot ideas out of CA and NY, why is the party run by these kooks? Something has never clicked for me between the coastal liberals and those from the midwest and mountian states. They seem to come from different planets yet all vote the same?

wolf13
01-30-2010, 11:06 AM
Which makes you wonder how Pelosi ended up being speaker of the house. If all of these democrats are against the most liberal crackpot ideas out of CA and NY, why is the party run by these kooks? Something has never clicked for me between the coastal liberals and those from the midwest and mountian states. They seem to come from different planets yet all vote the same?

Party politics. At the end of the day, they still want their job, and want to be on important committees. While parties aren't nearly as strong as they once were, they still have some pull on things. Voting against your party's speaker nominee is not a smart move if you wish to have any influence or get a good committee spot.

sholling
01-30-2010, 11:31 AM
I know that is just a sig line, but it reminds me of:

" . . . with all due deference to the seperation of powers . . . "

I don't think our president made any new friends on the court at the state of the union address. I would hope the justices would not be swayed in either direction, even by such an outrageous and unprecedented public whipping by a president on national TV. And one month before the court decides this case brought against his home city. I, for one, was appalled by the hubris.

OT rant over.
I suspect that this may have been 50% of the reason for publicly b-slapping the justices and I have to wonder if it had the desired effect. I expect that the 4 conservative justices are bristling but what about our unreliable 5th justice. Will he be chastened into ruling against McDonald on both arguments? Or at least follow Progressive orthodoxy and uphold Stare Decisis no matter how repugnant to the constitution and rule for DP only?

I've always felt that liberals on the court would reject the DP argument, but that they would agonize and possibly accept P&I while holding their collective(ist) noses. However after the public presidential rebuke I'm afraid that they will be emboldened to reject both P&I and DP on the alter of stare dicisis.

Will we see a Marbury v. Madison moment of judicial independence or will the court fold? My only feeling is that this presidential stunt will hurt us. I'm just not sure how badly.

/OT rely to OT rant ;)

1JimMarch
01-30-2010, 11:40 AM
The Democrats in AZ don't see gun control as a major issue. They don't freak out over it either way, which on one level is great.

But on another level, they don't understand what a damage crazy gal like Pelosi does to their own chances.

bwiese
01-30-2010, 12:12 PM
I have now read them both. There's a LOT to like in both of them.

Very very true. And while there are issues with Clements getting 10 min. of time, the actual brief from the NRA is very good.

hoffmang
01-30-2010, 12:26 PM
Very very true. And while there are issues with Clements getting 10 min. of time, the actual brief from the NRA is very good.

Isn't it odd that the brief that's supposed to be more in support of Due Process doesn't quote the modern due process cases like Glucksberg, Palko, and most notably absent - Nordyke?

Maybe Clement's time wasn't about due process at all...

-Gene

Maestro Pistolero
01-30-2010, 1:47 PM
I was happy to see that the NRA brief at least included the 'P or I' route as a valid alternative. I really liked the brief. I feel a little differently about the NRAs presence at orals now.

hoffmang
01-30-2010, 1:50 PM
This was just pointed out to me. Heh.

http://images.cheezburger.com/completestore/2010/1/30/129093643148348844.png

-Gene

wildhawker
01-30-2010, 2:17 PM
That's pretty good.

Mulay El Raisuli
01-31-2010, 4:13 AM
Isn't it odd that the brief that's supposed to be more in support of Due Process doesn't quote the modern due process cases like Glucksberg, Palko, and most notably absent - Nordyke?

Maybe Clement's time wasn't about due process at all...

-Gene


"Oh, what a tangled web we weave....."


The Raisuli

Mulay El Raisuli
01-31-2010, 4:16 AM
I agree with the sentiment, but I would add the caveat that the above should hold only when the country being conformed to is doing things right.

I know that you are almost certainly not advocating that other countries copy our missteps, but I thought it might be useful to make that clear...


Well, yes. But I wasn't thinking about specifics (because ANY system includes screw ups of one sort or another) so much as the basics. We have those down better than anybody.


The Raisuli

Mulay El Raisuli
01-31-2010, 5:43 AM
Very very true. And while there are issues with Clements getting 10 min. of time, the actual brief from the NRA is very good.


Upon further reflection, I do have one tiny little problem with the NRA Brief.

Pages 2-3


This case, like Heller, also does not present an
occasion on which to decide the standard of review to
be applied in analyzing laws touching on the right to
keep and bear arms. The ruling below rested
exclusively on the holding that the right to keep and
bear arms has not yet been incorporated against the
States, and the only question presented in this case
is whether it should be. The standard of review issue
is not part of the question presented and is not fairly
included within that question. Even if it were, the
handgun bans at issue in this case are substantively
identical to the ban in Heller, which the Court struck
down while pointedly declining to identify a standard
of review with precision. See 128 S. Ct. at 2817–18
(“Under any of the standards of scrutiny that we
have applied to enumerated constitutional rights,
banning from the home the most preferred firearm in
the nation to keep and use for protection of one’s
home and family would fail constitutional muster”
(internal quotation marks and citation omitted)).
Thus, to the extent the Second Amendment is
incorporated, Heller dictates the demise of the bans
at issue here without the need to settle upon a
comprehensive standard of review.2

Footnote 2:
The decision by the United States, which surely has an
interest in the standard of review, not to participate in this case
underscores that the issue is not properly presented.



And, at pages 14-15;


...Further, the question of what standard of
review should apply to laws infringing on Second
Amendment rights is not at issue here: As in Heller,
the Chicago and Oak Park handgun bans would not
withstand any constitutional analysis. See 128 S. Ct.
at 2817–18.


While it's true that Chicago & Oak Park over the line on any level of scrutiny, I'm not seeing any advantage to emphasize (because they said it twice) that the level of review should not be decided at this time. It took 2 YEARS to get from the decision in Heller to getting Chicago & Oak Park before SCOTUS. I don't see anything substantive happening until the lower courts are told just how they're to look at the cases that are surely coming their way. Palmer has problems just because of this. Why not get that settled NOW?

In effect, Heller gave us the car. McDonald will put it at the starting line. But we can't actually start the race until we have a defined level of review because that's the 'gas' that will allow us to drive over our enemies. So, why wait?


The Raisuli

Kharn
01-31-2010, 7:44 AM
Incrementalism is a better approach than hoping to win the lottery. Gura did not pick a client attempting to own an Uzi for CCWing in NYC for a reason.

Davidwhitewolf
01-31-2010, 8:38 AM
I love that Chicago's best quote against "P or I means rights" had this a paragraph before it:



Fitting that its by a Mr. Kerr...

-Gene

Gene, I'm enjoying the back-and-forth between you and Prof. Kerr over at Volokh (http://volokh.com/2010/01/29/an-unusual-argument/). I was not a fan of Kerr before; (http://volokh.com/posts/1184357129.shtml) even less so now.

There's got to be a Kerr-Gura backstory to all this. :43: Blunt, non-genteel writing (Gura's forte) sure seems to get Prof. Kerr's panties in a bunch.

wildhawker
01-31-2010, 8:45 AM
Scrutiny is not a question before the court, as the Chicago ban is nearly identical to D.C.s now-stricken ban and the Heller decision made it clear that the ban was unconstitutional regardless if intermediate or strict scrutiny were to be applied (rational basis was squarely rejected).

We'll very likely see a more defined scrutiny rule(s) in the "bear" cases.

I do wonder if the double-mention was purposefully inserted to attempt a preemption of any scrutiny questions to/answers by Clement; the NRA's position is that scrutiny is not a matter before the court, and so we should see Clement adhere to this mantra.

This is a good thing.

Maestro Pistolero
01-31-2010, 9:15 AM
I'm not seeing any advantage to emphasize (because they said it twice) that the level of review should not be decided at this time.A couple of thoughts:

1. If the court would decide to include in this ruling what level of scrutiny is to be applied, the statement by the NRA is unlikely to dissuade them. They know the scope of this case, so if they go into scrutiny, they will be creating their own pretext. If they do 'go there' we had better hope it's in the direction of strict scrutiny, prehaps with the door cracked open to allow shall issue ccw regulation, and that's it.

2. Since scrutiny is not within the scope of the question being decided, there has been no opportunity for either side to argue it. Do we really want the court, three of whom felt that the DC ban did not violate the 2nd, and one of whom (Sotomayor) would have likely joined them, weighing in on the scrutiny question before Gura and the NRA have even had a chance to argue it?

hoffmang
01-31-2010, 11:12 AM
While it's true that Chicago & Oak Park over the line on any level of scrutiny, I'm not seeing any advantage to emphasize (because they said it twice) that the level of review should not be decided at this time. It took 2 YEARS to get from the decision in Heller to getting Chicago & Oak Park before SCOTUS. I don't see anything substantive happening until the lower courts are told just how they're to look at the cases that are surely coming their way. Palmer has problems just because of this. Why not get that settled NOW?
As I've been saying to you consistently over the last 12 months, scrutiny is not likely to be talked about much, if at all, in this case.


There's got to be a Kerr-Gura backstory to all this. :43: Blunt, non-genteel writing (Gura's forte) sure seems to get Prof. Kerr's panties in a bunch.

Last time I disagreed with Orin, he insulted me and then banned me. And there certainly is some backstory (http://volokh.com/2009/12/06/does-the-cert-grant-in-mcdonald-suggest-the-court-would-rethink-slaughterhouse/#comment-702311)...

-Gene

Maestro Pistolero
01-31-2010, 1:30 PM
As I've been saying to you consistently over the last 12 months, scrutiny is not likely to be talked about much, if at all, in this case.
You may be right, and although the court specifically declined to cover scrutiny in Heller, it was discussed here with Scalia writing for the majority:

JUSTICE BREYER moves on to make a broad jurispruden-
tial point: He criticizes us for declining to establish a level
of scrutiny for evaluating Second Amendment restrictions.
He proposes, explicitly at least, none of the traditionally
expressed levels (strict scrutiny, intermediate scrutiny,
rational basis), but rather a judge-empowering “interest-
balancing inquiry” that “asks whether the statute burdens
a protected interest in a way or to an extent that is out of
proportion to the statute’s salutary effects upon other
important governmental interests.” Post, at 10. After an
exhaustive discussion of the arguments for and against
gun control, JUSTICE BREYER arrives at his interest-
balanced answer: because handgun violence is a problem,
because the law is limited to an urban area, and because
there were somewhat similar restrictions in the founding
period (a false proposition that we have already dis-
cussed), the interest-balancing inquiry results in the
constitutionality of the handgun ban. QED.
We know of no other enumerated constitutional right
whose core protection has been subjected to a freestanding
“interest-balancing” approach. The very enumeration of
the right takes out of the hands of government—even the
Cite as: 554 U. S. ____ (2008) 63

Opinion of the Court
Third Branch of Government—the power to decide on a
case-by-case basis whether the right is really worth insist-
ing upon. A constitutional guarantee subject to future
judges’ assessments of its usefulness is no constitutional
guarantee at all.


Could this be a foreshadow that strict scrutiny will be used when the time comes? Breyer, at least, doesn't seem to have a problem with taking up scrutiny whether it's in the scope of the case or not. But I don't think we would much like his version of scrutiny when it comes to 2A.

hoffmang
01-31-2010, 2:20 PM
Could this be a foreshadow that strict scrutiny will be used when the time comes? Breyer, at least, doesn't seem to have a problem with taking up scrutiny whether it's in the scope of the case or not. But I don't think we would much like his version of scrutiny when it comes to 2A.

U.S. v. Skoien (http://lonelymachines.org/2009/11/19/us-v-skoien-and-review-standards/) already takes the position that self defense is going to be strict scrutiny and sport will require intermediate scrutiny. I think scrutiny is going to be stricter the closer to self defense, keep, and in the home the case is while weaking a bit as you go about in public with firearms (kind of like speech actually - subject to time place and manner restrictions.) Interestingly, I think Skoien may mean that hunting regs have to pass intermediate scrutiny - which most do.

-Gene

Kharn
01-31-2010, 2:25 PM
What about the hunting regulations that say no loaded long-guns in vehicles (in some states), to prevent road hunting/poaching?

wildhawker
01-31-2010, 2:41 PM
What about the hunting regulations that say no loaded long-guns in vehicles (in some states), to prevent road hunting/poaching?

It would seem reasonable to expect that the government will have to prove such regulations meet the burden requirements of intermediate scrutiny; further, unless actually hunting I would expect that loaded carry would fall under the pretenses of self-defense unless you were foolish enough to admit or stipulate otherwise.

Meplat
01-31-2010, 3:23 PM
Well said. As a libertarian I have two or more dogs in this fight.

Does it occur to anyone else that a win for us using P&I instead of Due Process could have a very positive PR gain?

In other words, Liberals might be willing to say "OK, we lost on guns, but hey these gun guys went and got us a lot of other cool stuff along the way!"

Or put another way, a common Liberal criticism of the NRA is that the 2nd Amendment is the only thing they care about. And given the general shredding of the whole rest of the Constitution by Dubya...it's not entirely an unfair critique. This is a way of potentially turning all that around, and striking a win for the WHOLE Constitution.

Too bad the NRA isn't smart enough to see that...

dantodd
01-31-2010, 5:36 PM
U.S. v. Skoien (http://lonelymachines.org/2009/11/19/us-v-skoien-and-review-standards/) already takes the position that self defense is going to be strict scrutiny and sport will require intermediate scrutiny. I think scrutiny is going to be stricter the closer to self defense, keep, and in the home the case is while weaking a bit as you go about in public with firearms (kind of like speech actually - subject to time place and manner restrictions.) Interestingly, I think Skoien may mean that hunting regs have to pass intermediate scrutiny - which most do.

-Gene

Where lies protection against tyranny, on this sliding scale of scrutiny?

Meplat
01-31-2010, 5:53 PM
I don't know about other states but CA game laws consider a gun with an empty chamber and a loaded magazine "unloaded". And they do not cover handguns. I think that would pass intermediate scrutiny, maybe strict. What about the hunting regulations that say no loaded long-guns in vehicles (in some states), to prevent road hunting/poaching?

Hopi
01-31-2010, 6:03 PM
Where lies protection against tyranny, on this sliding scale of scrutiny?

The 4th Box (http://sec-soapbox.blogspot.com/2007/02/liberty-boxes.html).......no?

kcbrown
01-31-2010, 6:35 PM
Question:

Aren't we running a significant risk by taking it slow and easy with respect to the 2A issues that need a Supreme Court decision, such as the level of scrutiny to be applied?

I mean, the justices who are on our side aren't getting any younger, and Scalia and Kennedy are both over 70 years old. And we will have an anti-2A President for at least the next 2 years. If anything happens to any of the Heller 5 in that time frame, then we are screwed, are we not?

So aren't we taking a bigger risk by taking our time on this than by pushing as hard as we reasonably can? Doesn't that mean we should, if possible and reasonable, get scrutiny guidance now instead of later, since later may be too late for us?

What are our expectations, if any, with respect to changes to the makeup of the Court in the next couple of years?

Hopi
01-31-2010, 6:44 PM
Question:

Aren't we running a significant risk by taking it slow and easy with respect to the 2A issues that need a Supreme Court decision, such as the level of scrutiny to be applied?

I mean, the justices who are on our side aren't getting any younger, and Scalia and Kennedy are both over 70 years old. And we will have an anti-2A President for at least the next 2 years. If anything happens to any of the Heller 5 in that time frame, then we are screwed, are we not?

So aren't we taking a bigger risk by taking our time on this than by pushing as hard as we reasonably can? Doesn't that mean we should, if possible and reasonable, get scrutiny guidance now instead of later, since later may be too late for us?

What are our expectations, if any, with respect to changes to the makeup of the Court in the next couple of years?



There's two bulls standing on top of a mountain. The younger one says to the older one: "Hey pop, let's say we run down there and *say hi to* one of them cows". The older one says: "No son. Lets walk down and *say hi to* 'em all".

:D ...

Meplat
01-31-2010, 6:50 PM
These considerations make the midterm elections hue. We need to make sure that Obama loses his supermajority at the vary least. Other wise he can stick another Marxist on the court without opposition.


Question:

Aren't we running a significant risk by taking it slow and easy with respect to the 2A issues that need a Supreme Court decision, such as the level of scrutiny to be applied?

I mean, the justices who are on our side aren't getting any younger, and Scalia and Kennedy are both over 70 years old. And we will have an anti-2A President for at least the next 2 years. If anything happens to any of the Heller 5 in that time frame, then we are screwed, are we not?

So aren't we taking a bigger risk by taking our time on this than by pushing as hard as we reasonably can? Doesn't that mean we should, if possible and reasonable, get scrutiny guidance now instead of later, since later may be too late for us?

What are our expectations, if any, with respect to changes to the makeup of the Court in the next couple of years?

kcbrown
01-31-2010, 6:54 PM
There's two bulls standing on top of a mountain. The younger one says to the older one: "Hey pop, let's say we run down there and *say hi to* one of them cows". The older one says: "No son. Lets walk down and *say hi to* 'em all". :D ...

Oh, I totally agree with that: assuming you don't take so much time walking down there that the cows run off before you get there!

I'm not saying that taking our time to get it right is the wrong thing to do when all else is equal -- it's most certainly the right thing to do. I'm asking if it's the right strategy in the face of the possibility that all else isn't equal.

What's our fallback strategy in the event that one of the Heller 5 gets replaced before we're able to get rulings on the most important 2A pieces?

Meplat
01-31-2010, 6:58 PM
What if Barock keeps his supermajority and decides to add a couple justices? It's been done before.:43:


Oh, I totally agree with that: assuming you don't take so much time walking down there that the cows run off before you get there!

I'm not saying that taking our time to get it right is the wrong thing to do when all else is equal -- it's most certainly the right thing to do. I'm asking if it's the right strategy in the face of the possibility that all else isn't equal.

What's our fallback strategy in the event that one of the Heller 5 gets replaced before we're able to get rulings on the most important 2A pieces?

yellowfin
01-31-2010, 7:25 PM
The problem isn't just judges over time. We have other issues that put us up against the clock, most notably the pace of encroaching regulation and demographic dilution. We need to win fast enough to turn things around before the damage is irreversible, to where there's not enough left to save. I know we are doing the right things to win and our side is being smart, but we do have to win fast enough AND (this doesn't get talked about enough, hardly at all in fact) win permanently, weeding out and ultimately eradicate the opposition's threat. We have got to do better than settling and ending up with another Punic Wars scenario.

7x57
01-31-2010, 8:06 PM
U.S. v. Skoien (http://lonelymachines.org/2009/11/19/us-v-skoien-and-review-standards/) already takes the position that self defense is going to be strict scrutiny and sport will require intermediate scrutiny. I think scrutiny is going to be stricter the closer to self defense, keep, and in the home the case is while weaking a bit as you go about in public with firearms (kind of like speech actually - subject to time place and manner restrictions.) Interestingly, I think Skoien may mean that hunting regs have to pass intermediate scrutiny - which most do.


Hmm. You know, I guess offhand I don't really see a problem with that. Everyone wants hunting to be subject to sound management, for example, and I wonder if too strict a level of scrutiny might make that harder? (Maybe not, if the courts would accept "health of the herd" as sufficient public interest.)

It also does fit what I believe to be the reason for deleting the self-defense condition on the English right. I think the reason for deleting it was not that self-defense was not fundamental, but rather that they understood that it could be taken away indirectly by too strong a limitation--I believe I have seen period discussions of the right already being eroded in England through the game laws, and so "every lawful purpose" was a way to protect the core right to defense of person and property.

So at least on the surface (weasel-worded because I won't necessarily see technical pitfalls) it seems historically reasonable and a fine policy outcome for us. Getting strict scrutiny for self-defense is more than I have really expected to drag out of the courts, so that sounds like the road to satisfying me that the law is still obeyed on every subject except, I suspect, the nasty issue of the NFA categories.

The great thing about being a distrustful cynic is that tolerable good news makes you pleasantly surprised all out of proportion. :D

7x57

7x57
01-31-2010, 8:17 PM
These considerations make the midterm elections hue. We need to make sure that Obama loses his supermajority at the vary least. Other wise he can stick another Marxist on the court without opposition.

He *will* lose his supermajority in November. That's the good news. The bad is that I believe a lot of otherwise reliable R's to be unreliable on appointments. I think it's hard for them to explain to their constituents why they're worth going to the wall for, or something. And there's lots of cover for R's who don't themselves believe it's worth going to the wall for.

That said--the grassroots appear likely to be more determined to block bad appointments than any other large group in the party. So the stronger they are, the more likely it is that there will be some determination to fight. And guess what the trend is.... :43:

That would then bring us to the problem of people who have some unfortunate ideas about what would be a bad appointment, but that's mostly a problem when a RINO president is making them.

7x57

7x57
01-31-2010, 8:19 PM
What if Barock keeps his supermajority and decides to add a couple justices? It's been done before.:43:

More fallout than seizing control of the health industry. I don't believe even Pelosi (who I think has more chutzpah than Obama) will try it before November. Afterwards, they won't be able to.

7x57

dantodd
01-31-2010, 8:45 PM
The 4th Box (http://sec-soapbox.blogspot.com/2007/02/liberty-boxes.html).......no?

My question was geared toward level of scrutiny.

hoffmang
01-31-2010, 9:16 PM
Strict scrutiny on keep with time/place/manner restrictions on carry get you plenty of anti-tyranny control. If you can own 'em, own the ammo, and carry 'em, It's not at all clear how a tyrannical government can keep you from employing them for the strict scrutiny protected right of self defense.

Something tells me if you've reached Deacons for Defense style altercations with your local government, a hypothetical ban on carrying after dark isn't going to be something you worry about violating...

As to "moving slowly" well.. it took us a total of 11 days after Nordyke to file 2 lawsuits in California... Don't worry about us having a sense of urgency. However, being too urgent can cause "premature ejaculation"...

-Gene

dantodd
01-31-2010, 10:30 PM
As to "moving slowly" well.. it took us a total of 11 days after Nordyke to file 2 lawsuits in California... Don't worry about us having a sense of urgency. However, being too urgent can cause "premature ejaculation"...

The system has consistently been the impediment to progress. When the air is clear the suits are a flying. How many days after Heller were NRA, NRA, and McDonald filed? As you said 11 days post-Nordyke and we had Sykes and Pena.

I think people just get antsy waiting on the judicial process to grind through. This is actually good though. As much as I relish the idea of being free from unjust regulation I want it done right and done well. This is why the judiciary takes its time with things. Let the legislature pass stupid bills one day after a tragedy or scandal. I want the courts to get it right above all else.

Gray Peterson
01-31-2010, 10:47 PM
The system has consistently been the impediment to progress. When the air is clear the suits are a flying. How many days after Heller were NRA, NRA, and McDonald filed? As you said 11 days post-Nordyke and we had Sykes and Pena.

I think people just get antsy waiting on the judicial process to grind through. This is actually good though. As much as I relish the idea of being free from unjust regulation I want it done right and done well. This is why the judiciary takes its time with things. Let the legislature pass stupid bills one day after a tragedy or scandal. I want the courts to get it right above all else.

Parker then Heller took 5 years. Now McDonald only took two years from filing on June 26, 2008 to now having a decision 2 years later. Palmer will likely be decided on in district court, I predict similar fast results. Let's hope that DC is stupid enough to appeal it to SCOTUS.

Mulay El Raisuli
02-01-2010, 4:04 AM
As I've been saying to you consistently over the last 12 months, scrutiny is not likely to be talked about much, if at all, in this case.

-Gene


Which is why I have consistently wondered why we aren't working on this.


The Raisuli

Al Norris
02-01-2010, 4:42 AM
As I've been saying to you consistently over the last 12 months, scrutiny is not likely to be talked about much, if at all, in this case.
Which is why I have consistently wondered why we aren't working on this.
A house must have a good foundation, first and foremost, if it is to stand and weather the years.

The keeping of arms is that foundation, without which there will be nothing to bear.

dantodd
02-01-2010, 7:08 AM
As I've been saying to you consistently over the last 12 months, scrutiny is not likely to be talked about much, if at all, in this case.Which is why I have consistently wondered why we aren't working on this.


Is it not rather presumptuous of you to assume that EVERYTHING being worked on is openly discussed here?

Mulay El Raisuli
02-02-2010, 3:49 AM
Is it not rather presumptuous of you to assume that EVERYTHING being worked on is openly discussed here?


If this were at the planning stages, yes, it would be. But, I commented on Briefs already filed. I fail to see how we can 'work on' a matter that is already being foreclosed on.


A house must have a good foundation, first and foremost, if it is to stand and weather the years.

The keeping of arms is that foundation, without which there will be nothing to bear.


But we already have that foundation. Now it seems as if the plan is to put up the walls & then cut out the windows. Wouldn't it be better if the walls already had the cut-outs before we put them up? Especially given that such can be done? Even more especially given that there's a storm coming & wouldn't be nice to have things done before it starts to rain?


The Raisuli

Al Norris
02-02-2010, 1:49 PM
But we already have that foundation.
No... Heller prepared the ground. McDonald is the forms being poured. Scrutiny will be the walls, while bearing arms will be the windows.

Gray Peterson
02-02-2010, 2:25 PM
No... Heller prepared the ground. McDonald is the forms being poured. Scrutiny will be the walls, while bearing arms will be the windows.

Outstanding analysis, Al. You're generally correct.

Kharn
02-02-2010, 3:35 PM
Which is why I have consistently wondered why we aren't working on this.


The RaisuliYou can't directly file a suit to have the courts determine a level of scrutiny. It is tangential to the ruling in other suits filed, such as the one that held self defense is strict scrutiny but hunting is only intermediate.

Al Norris
02-02-2010, 7:34 PM
Outstanding analysis, Al. You're generally correct.
That's always the problem of using analogies, but thank you.

Mulay El Raisuli
02-03-2010, 6:20 AM
You can't directly file a suit to have the courts determine a level of scrutiny. It is tangential to the ruling in other suits filed, such as the one that held self defense is strict scrutiny but hunting is only intermediate.


I understand that. So, what's the advantage of closing the door on being able to argue for a strict level of review if the opportunity presents itself?


The Raisuli

dantodd
02-03-2010, 7:21 AM
I understand that. So, what's the advantage of closing the door on being able to argue for a strict level of review if the opportunity presents itself?


Nothing wrong with arguing strict review if the opportunity presents itself. And you can be fairly sure that there are cases coming where just such a thing will be argued. McDonald is NOT such an opportunity. (But I'm sure Gura is prepared in the unlikely event that a justice goes off the rails and brings it up.)

Maestro Pistolero
02-03-2010, 8:33 AM
I understand that. So, what's the advantage of closing the door on being able to argue for a strict level of review if the opportunity presents itself?
You can bet Gura will have an answer ready.
McDonald is NOT such an opportunity.Unless the justices ask some questions. It won't be in the ruling, but it will be on everyone's mind. Heller wasn't about machine guns, either, but it came up in orals.

dantodd
02-03-2010, 12:44 PM
Heller wasn't about machine guns, either, but it came up in orals.

One could almost think that you are trying to instigate something when you make a statement like that. Just read the thread about Dividing time in Mcdonald, or do a search on "Clement" for more background on that question.

Maestro Pistolero
02-03-2010, 2:17 PM
One could almost think that you are trying to instigate something when you make a statement like that. Just read the thread about Dividing time in Mcdonald, or do a search on "Clement" for more background on that question.I have, and there was no intent to instigate. Merely pointing out that the justices are free to ask any question, no matter how tangential to the question at hand, and that they have in the past.

dantodd
02-03-2010, 2:33 PM
I have, and there was no intent to instigate. Merely pointing out that the justices are free to ask any question, no matter how tangential to the question at hand, and that they have in the past.

In the case you referenced the questions were not spontaneous

Mulay El Raisuli
02-04-2010, 4:15 AM
Nothing wrong with arguing strict review if the opportunity presents itself. And you can be fairly sure that there are cases coming where just such a thing will be argued. McDonald is NOT such an opportunity. (But I'm sure Gura is prepared in the unlikely event that a justice goes off the rails and brings it up.)


Why wouldn't McDonald be such an opportunity? How to look at a case, especially a precedent setting/shattering one such as this practically begs that the issue of 'scrutiny' be decided.

Also, I have been less than clear here. I started my comments in re scrutiny to show why I think Clement just might not be our friend here. Its one thing to not push scrutiny (for whatever reason) but its quite another to try & slam the door (because he said it twice) on the issue. I never made that real clear & apologize for that.


The Raisuli

Al Norris
02-04-2010, 7:36 AM
Why wouldn't McDonald be such an opportunity? How to look at a case, especially a precedent setting/shattering one such as this practically begs that the issue of 'scrutiny' be decided.
The question that the Court will answer, will provide some guidance for scrutiny (but the Court will not answer that question directly, as that question is not before the Court). If incorporated, the right will have been declared to be a fundamental right. Fundamental rights, at their core, are given strict judicial scrutiny.

The caveat has always been that the further you get from the core, the less scrutiny the courts will apply to the differing cases. Heller held that the right to keep arms for self-defense was the core right.

We see this at work in U.S. v. Skoien (http://www.ca7.uscourts.gov/fdocs/docs.fwx?submit=showbr&shofile=08-3770_002.pdf). A 7th circuit case that was sent back to the trial court with the explicit instructions that the Government must prove that the Lautenberg Amendment (§ 922(g)(9)) meets the level of intermediate scrutiny.

The Circuit panel suggested that § 922(g)(9) would fail if the firearm had been kept for self-defense, but that Skoien was arguing that his right to keep a firearm for hunting was violated, a less form of scrutiny was applicable:
Skoien admitted he had gone deer hunting that morning and used the shotgun to kill a deer. He argued below and maintains here that prosecuting him under § 922(g)(9) for possessing the shotgun violates his Second Amendment right to bear arms for hunting. He has not, however, asserted a right to possess the gun for self-defense. As such, the government’s application of § 922(g)(9) in this case requires less rigorous justification than strict scrutiny because the core right of self-defense identified in Heller is not implicated.

This is completely different from McDonald. Here, we are arguing that the same rules that applied to D.C., should apply (be incorporated) as against the States and local governments (Chicago). Heller already set the level of scrutiny for keeping arms for self-defense (albeit in the home). There is no need to argue that portion, nor will the Court address this in its opinion.

In this sense, McDonald is Heller part two. That is why this case is not the vehicle for an answer on the question of scrutiny.

Maestro Pistolero
02-04-2010, 10:15 AM
The question that the Court will answer, will provide some guidance for scrutinyOf course, despite what others say about it, this case can't be decided without any discussion of scrutiny, although egregious ban in question couldn't escape any level of scrutiny.
Heller already set the level of scrutiny for keeping arms for self-defense (albeit in the home.) Right. And I think you understand that distinction to be the scope of the case, not the scope of the right. Lots of folks are confused by that.
The Circuit panel suggested that § 922(g)(9) would fail if the firearm had been kept for self-defense, but that Skoien was arguing that his right to keep a firearm for hunting was violated, a less form of scrutiny was applicable:
Hunting, for all of the history of the evolution of humans was about staying alive, just as much as self defense. Modern food production only temporarily, and conditionally changes that fact. If food production in modern society were interrupted for any reason, the validity of this point would come clear to most of us in a short number of days. Hunting should be preserved as a core right as well. If you can't eat, eventually, you won't have a life to defend.

Al Norris
02-04-2010, 2:04 PM
Modern food production only temporarily, and conditionally changes that fact.
If food production/distribution were interrupted, our problems would be much greater than what some written law said... Just saying, is all.

dantodd
02-04-2010, 2:13 PM
Why wouldn't McDonald be such an opportunity? How to look at a case, especially a precedent setting/shattering one such as this practically begs that the issue of 'scrutiny' be decided.

Because the unconstitutionality of the ban has already been established. The only question at issue is if the right is to held against non-federal governments. Unless you are suggesting that perhaps the states may have to meet a different level of scrutiny than the federal government the scrutiny question has already been decided in Heller. (The answer is that they refused to answer the question because the ban violated even the least stringent scrutiny.

Hunt
02-04-2010, 5:34 PM
Of course, despite what others say about it, this case can't be decided without any discussion of scrutiny, although egregious ban in question couldn't escape any level of scrutiny.
Right. And I think you understand that distinction to be the scope of the case, not the scope of the right. Lots of folks are confused by that.

Hunting, for all of the history of the evolution of humans was about staying alive, just as much as self defense. Modern food production only temporarily, and conditionally changes that fact. If food production in modern society were interrupted for any reason, the validity of this point would come clear to most of us in a short number of days. Hunting should be preserved as a core right as well. If you can't eat, eventually, you won't have a life to defend.
there are religious considerations concerning hunting for Eskimos and probably other Native Americans. If there are practice of religion protections for them who is to say a contemporary ubarnite should not have similarly protected practices? I hunt game for subsistence as part of my religious practice.

Mulay El Raisuli
02-05-2010, 4:25 AM
Because the unconstitutionality of the ban has already been established. The only question at issue is if the right is to held against non-federal governments. Unless you are suggesting that perhaps the states may have to meet a different level of scrutiny than the federal government the scrutiny question has already been decided in Heller. (The answer is that they refused to answer the question because the ban violated even the least stringent scrutiny.


Actually, the scrutiny question was specifically NOT answered in Heller. For the reason you said (that DC's ban violated any level of scrutiny). That's the problem with your comment. The problem with Al Norris' comment is that while the 7th. does seem to accept that strict scrutiny is the case for the self defense aspect of the Right, it is the fact that SCOTUS did not settle the issue that leaves "seems" the best anyone can say. IOW, we don't have a definitive answer & we really should.

Yes, as Norris says, fundamental right are given strict scrutiny. USUALLY. But I'd be a lot happier if SCOTUS would make it plainer than day that this was the case in re THIS Right.

Which leads me back to Clement. Uncertainty does us no good at all. Uncertainty leads only to delay & lives being lost while this all gets hashed out. Clement's emphasis to the court that the issue not be decided doesn't strike me as the actions of a friend.


The Raisuli