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Cobrafreak
06-28-2010, 6:19 AM
So We won SCOTUS. What level of scrutiny was the decision? Did we get "Strict"?

scc1909
06-28-2010, 6:26 AM
Does this help answer the question? (IANAL)

From page 5: "The right to keep and bear arms must be regarded as a substantive guarantee, not a prohibition that could be ignored so long as the States legislated inan evenhanded manner."

Window_Seat
06-28-2010, 6:30 AM
After doing a search of the keyword and the words associated with it, not much came up.

Erik.

badicedog
06-28-2010, 6:31 AM
Wow, so how long until we take our bullet buttons off....:43:

BlindRacer
06-28-2010, 6:33 AM
Does this help answer the question? (IANAL)

From page 5: "The right to keep and bear arms must be regarded as a substantive guarantee, not a prohibition that could be ignored so long as the States legislated inan evenhanded manner."

What does this mean exactly? That there is 'not a prohibition' on the states so that they can still pass restrictions?

Or does it mean that we have the guarantee, and states can't abridge it?

the_quark
06-28-2010, 6:34 AM
NOTHING on scrutiny from my (very quick) reading of the opinion. They don't even actually strike down the Chicago case - they send it back to the lower court to apply Heller. They do reiterate both that it's a fundamental right and therefore they don't think it should be some sort of judicial balancing test, and that they find "self defense in the home" to be at the core of the second amendment, so that has to be a big part of it.

Given how similar in scope Chicago's law is to DC's, the actions of the court should be pretty clear - that ban has to go. But, it hasn't yet formally been struck down.

Chatterbox
06-28-2010, 6:35 AM
What does this mean exactly? That there is 'not a prohibition' on the states so that they can still pass restrictions?

Or does it mean that we have the guarantee, and states can't abridge it?

Yes, the states can still pass restrictions. "As noted by the 38 States that have appeared in this case as amici supporting petitioners, “[s]tate andlocal experimentation with reasonable firearms regula-tions will continue under the Second Amendment.” Brief for State of Texas et al. as Amici Curiae 23."

the_quark
06-28-2010, 6:36 AM
As an aside, if I do say so myself (being a plaintiff), I think this makes Peña a much more important case, as it will probably be the first one to broach the question of what types of firearm may be restricted.

IrishPirate
06-28-2010, 6:39 AM
McDonald was the first step of that thousand mile journey ancient chinese men talked about.....we've got a LOOOOOONNNNNNGGGGGGG road ahead; don't take your bullet buttons off just yet...

monkeshine
06-28-2010, 6:39 AM
I am puzzled by the word prohibition but perhaps they are saying it is a positive right like the 1st amendment, enjoyed by the people individually, and not something which the states can ignore even if they ignore it uniformly and across the board. I look forward to more color on the language but hopefully it is pretty strict on the guaranteeing of the individual right to keep and possess arms.

gunsmith
06-28-2010, 6:40 AM
The right to keep and bear arms must be regarded as a substantive guarantee... Hey, that sounds a lot better then ya gotta be reasonable.

dixieD
06-28-2010, 6:43 AM
What does this mean exactly? That there is 'not a prohibition' on the states so that they can still pass restrictions?

Or does it mean that we have the guarantee, and states can't abridge it?

I think that it means the latter and is a very strong statement to that effect.

BlindRacer
06-28-2010, 6:45 AM
It sounds like it's worded so that they can still restrict things. However, that could be anything from nukes, to simi autos, so this isn't really much of a relief for me yet.

guayuque
06-28-2010, 6:52 AM
What does this mean exactly? That there is 'not a prohibition' on the states so that they can still pass restrictions?

Or does it mean that we have the guarantee, and states can't abridge it?

From what I undestand on a first skim of the opinion, it seems the only guarantee is that a total ban of of in home weapons is unconstitutional.

the_quark
06-28-2010, 6:53 AM
Exactly. As far as what laws are permissible, we're still where we were with Heller - it's just now it applies to the states, too (which is a HUGE win, don't get me wrong!)

But, yes, now begins the long fight of setting those boundaries.

steel
06-28-2010, 6:55 AM
So when do the lawsuits against the state of CA begin?

jl123
06-28-2010, 6:58 AM
So when do the lawsuits against the state of CA begin?

A couple are on hold pending this decision.....so to answer your question, they already have.

IrishPirate
06-28-2010, 7:00 AM
just found this on page 39/40 of the Alito Opinion:

It is important to
keep in mind that Heller, while striking down a law that
prohibited the possession of handguns in the home, recog-
nized that the right to keep and bear arms is not “a right
to keep and carry any weapon whatsoever in any manner
whatsoever and for whatever purpose.” 554 U. S., at ___
(slip op., at 54). We made it clear in Heller that our hold-
ing did not cast doubt on such longstanding regulatory
measures as “prohibitions on the possession of firearms by
felons and the mentally ill,” “laws forbidding the carrying of firearms in sensitive places such as schools and gov-
ernment buildings, or laws imposing conditions and quali-
fications on the commercial sale of arms.” Id., at ___–___
(slip op., at 54–55). We repeat those assurances here.
Despite municipal respondents’ doomsday proclamations,
incorporation does not imperil every law regulating
firearms.

suddenly i'm worried......

Paragun
06-28-2010, 7:04 AM
just found this on page 39/40 of the Alito Opinion:



suddenly i'm worried......

So the 1000 foot ban around schools will still stand?

v/dBrink
06-28-2010, 7:06 AM
does this not sound like strict scrutiny?

page 50:

Finally, JUSTICE BREYER is incorrect that incorporation will require judges to assess the costs and benefits of firearms restrictions and thus to make difficult empirical judgments in an area in which they lack expertise. As we have noted, while his opinion in Heller recommended an interest-balancing test, the Court specifically rejected that suggestion. “The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.” Heller, supra, at ___ (slip op., at 62–63).

IrishPirate
06-28-2010, 7:09 AM
does this not sound like strict scrutiny?

page 50:

Finally, JUSTICE BREYER is incorrect that incorporation will require judges to assess the costs and benefits of firearms restrictions and thus to make difficult empirical judgments in an area in which they lack expertise. As we have noted, while his opinion in Heller recommended an interest-balancing test, the Court specifically rejected that suggestion. “The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.” Heller, supra, at ___ (slip op., at 62–63).

just saw that too....:shrug:

Chatterbox
06-28-2010, 7:10 AM
There is no way of knowing which gun laws will be judged to pass the level of scrutiny the court has in mind. Clearly, "rational" scrutiny is out. That leaves intermediate and strict. Note that even under strict scrutiny, the particular readings of law may allow many restrictions to persist . For example, while First Amendment is interpreted under strict scrutiny, many lawsuits claiming that people were engaged in "protected religious activity" have been thrown out.

steel
06-28-2010, 7:11 AM
A couple are on hold pending this decision.....so to answer your question, they already have.

Thanks. :)

Now it's time to take the gloves off...

the_quark
06-28-2010, 7:14 AM
Again, folks, all they've done is reiterated Heller when they're talking about the fact some things are OK to prohibit. They've literally covered absolutely no new ground here. These are the same fights we've always known we were going to have to have - this was the gate we had to get through to begin those fights.

guayuque
06-28-2010, 7:18 AM
So the 1000 foot ban around schools will still stand?

As I stated in a old thread, almost certainly.

guayuque
06-28-2010, 7:18 AM
There is no way of knowing which gun laws will be judged to pass the level of scrutiny the court has in mind. Clearly, "rational" scrutiny is out. That leaves intermediate and strict. Note that even under strict scrutiny, the particular readings of law may allow many restrictions to persist . For example, while First Amendment is interpreted under strict scrutiny, many lawsuits claiming that people were engaged in "protected religious activity" have been thrown out.

Or a new standard we have not seen before.

ElkHunterSL
06-28-2010, 7:24 AM
All I got from the ruling was that we can't be banned from owning a gun in our home, however all gun rules are ok, just not in my home. I don't know if I can think about this every day for the next 5 years until court cases are settled. Ha Ha. Wake me up once everything is finally decided.

Hogxtz
06-28-2010, 7:35 AM
Dont get me wrong, I am very happy about the ruling. But, we have justices that somehow think the second says something about guns in our homes? Freakin tools! Our founding fathers would be ashamed of these idiots.

smokeysbandit
06-28-2010, 7:43 AM
We won but to such a small extent I feel sick as though we lost. It's such a powerless and hostage feeling. I wish I could convince the misses to move to a free state like AZ. Until then, I'll be staying tuned, waiting for Gene's words of wisdom, and hoping for the best. All I want is to be able to drop mags, use 30rd mags, and CCW. If the roster would dissapear that would be cool too. Anything beyond that is gravy. Ugh
-Brandon

Lancear15
06-28-2010, 8:46 AM
Wow, so how long until we take our bullet buttons off....:43:

Two weeks ;)

So when do the lawsuits against the state of CA begin?

A year ago... give or take a few months.

See: Nordyke_v._King (http://wiki.calgunsfoundation.org/index.php/Nordyke_v._King)

Pena_v_Cid (http://wiki.calgunsfoundation.org/index.php/Pena_v_Cid)

Sykes_v._McGinness (http://wiki.calgunsfoundation.org/index.php/Sykes_v._McGinness)

Lancear15
06-28-2010, 8:54 AM
We won but to such a small extent I feel sick as though we lost. It's such a powerless and hostage feeling. I wish I could convince the misses to move to a free state like AZ. Until then, I'll be staying tuned, waiting for Gene's words of wisdom, and hoping for the best. All I want is to be able to drop mags, use 30rd mags, and CCW. If the roster would dissapear that would be cool too. Anything beyond that is gravy. Ugh
-Brandon

The most profound pro-gun SCOTUS decision ever and you "feel sick". The instant gratification monster strikes again.

How do you eat an Elephant?

Lone_Gunman
06-28-2010, 9:03 AM
They repeatedly call it a "fundamental right" in the decision. It is my understanding that "fundamental rights" traditionally are afforded strict scrutiny. At the very least we get intermediate scrutiny which is much much better than what we had.

Racefiend
06-28-2010, 9:06 AM
Dont get me wrong, I am very happy about the ruling. But, we have justices that somehow think the second says something about guns in our homes? Freakin tools! Our founding fathers would be ashamed of these idiots.

Thats what the case was about, bans on guns in the home. The Justices aren't going to give opinions on arguments not made in the case. They did not say the 2nd only applies in the home.

Lone_Gunman
06-28-2010, 9:07 AM
Dont get me wrong, I am very happy about the ruling. But, we have justices that somehow think the second says something about guns in our homes? Freakin tools! Our founding fathers would be ashamed of these idiots.

The question before the court was did Mr. McDonald have the right to posses a handgun in his home. What matters here is that we got incorporation. Future lawsuits will flesh this out. The SCOTUS answered the question before them. Your position is like me infering I can't have ice cream because you asked mom if you could have candy and she said yes you can have candy and sweets are ok. I just have to ask about the ice cream now.

stag1500
06-28-2010, 9:23 AM
So the 1000 foot ban around schools will still stand?

Carrying guns into a school might stand, but the 1000 ft perimeter probably won't.

Casey
06-28-2010, 9:31 AM
" keep and BEAR "comes up 140 times in a quick search of the opinion pdf doc.

I think they may want everybody to know that the keeping ain't much good without the bearing.

BlindRacer
06-28-2010, 9:37 AM
Carrying guns into a school might stand, but the 1000 ft perimeter probably won't.

I agree that carrying into a school probably will stand, but that is so unfortunate. Just another 'right free zone'. If they look at the right, and at how criminals actually act, then there is no reason to not allow them into a school. A non law abiding criminal doesn't care if it's legal or not. And the law abiding ones won't cause any trouble.

Sinixstar
06-28-2010, 9:37 AM
just found this on page 39/40 of the Alito Opinion:

"incorporation does not imperil every law regulating
firearms"

suddenly i'm worried......

I think the key is going to be how that argument is framed.

The first amendment is not limitless either. You are responsible for your words. You can't just run around saying whatever you want about whomever you want. Or rather - you can - but you will have to face consequences (libel, slander, harassment, menacing, etc).

I think the key is going to be framing the debate in a similar context. Libel doesn't somehow prevent you from saying something you shouldn't, it simply provides a remedy to the aggrieved party should they avail themselves of it.

Likewise - gun legislation should not necessarily prevent someone from owning say - an AR-15 with a collapsible stock, flash hider, and beta C mag. However, the use of one in a crime could go to show particularly malicious intent.

Example - Hollywood bank robbers.
These guys didn't just go into a bank to pull an armed robbery. They went in with enough firepower for an extended gunfight. It could easily be argued that was their intent. This makes their actions more malicious than simple robbery - as they intended to get into a long gunfight with police. One could even argue that the bank robbery was simply a means to that end.

If we allow the debate to be framed in such a way that the mere possession of a weapon becomes a crime - that's no good. Heller/McDonald is designed to give us some basic protections in that regard.

If we can push the debate and frame it that possession of a weapon in the commission of a crime - should be used as one element of evidence in the bigger picture, we're a lot better off.

Now would be the golden opportunity to start pushing for some of this stuff, as cities like Chicago are going to be scrambling to find ways to enact new laws. They want new laws - fine, let's figure out how we can redirect that energy to work in our favor.

It's just like in martial arts. If somebody comes running at you - you don't stand square on and try to oppose them directly. You get slightly to the side and use their own momentum to redirect them away from you.

Redirect the anti-sentiment back onto the criminals where it belongs. Propose laws that say:
Possession of a handgun, not illegal. Use of a handgun in a crime - HIGHLY illegal.
or
No AWB - but using an AW in a crime gets you 20+ years.

These would be "tough new laws to fight crime" - that puts the force of law onto those who would break it - not the rest of us. It's also a way for some of these politicians to come around to a more reasonable way of operating, without completely embarrassing themselves (something they're reluctant to do). Honestly, I could see the Daly's of the world going along with something like this, as it allows them to spin their loss as really being a win...

or something...

Sinixstar
06-28-2010, 9:39 AM
We won but to such a small extent I feel sick as though we lost. It's such a powerless and hostage feeling. I wish I could convince the misses to move to a free state like AZ. Until then, I'll be staying tuned, waiting for Gene's words of wisdom, and hoping for the best. All I want is to be able to drop mags, use 30rd mags, and CCW. If the roster would dissapear that would be cool too. Anything beyond that is gravy. Ugh
-Brandon

I don't know what exactly you were expecting?

Have you been living under a rock for the last year that this has been discussed?

wash
06-28-2010, 9:49 AM
I think we will get strict scrutiny for self defence which is good because all of my weapons are primarily for self defense.

If you have a firearm that is a "hunting" weapon, it will be subject to intermediate scrutiny because hunting is not the core right that the second amendment protects.

The difference is trivial if ALL OF YOUR FIREARMS ARE PRIMARILY FOR SELF DEFENSE.

But that's just for posession, carry will probably be intermediate scrutiny which should mean shall issue CCW and or LOC. Possibly a shall issue LOC permit would survive a court challenge but I don't think the anti's would want that, they would rather have them hidden.

NFA items will hopefully be legal eventually but I think you'll always have to jump through hoops to get them.

hoffmang
06-28-2010, 9:52 AM
They repeatedly call it a "fundamental right" in the decision. It is my understanding that "fundamental rights" traditionally are afforded strict scrutiny. At the very least we get intermediate scrutiny which is much much better than what we had.

This is where we were and where we remain until more cases move through the Federal courts.

-Gene

RomanDad
06-28-2010, 10:12 AM
Its not Rational basis scrutiny- Scalia specifically says so in Heller. (The Court rejected Breyers Intermediate scrutiny argument, but didnt do so in a way that can be quoted).

Its not Intermediate Scrutiny/(aka the "Balancing of Interests" Test- ) Alito says so on page 44 of McDonald...


That only leaves one standard....

Ill get my whips and chains....

RomanDad
06-28-2010, 10:15 AM
Carrying guns into a school might stand, but the 1000 ft perimeter probably won't.

+1...

hill billy
06-28-2010, 10:17 AM
Its not Rational basis scrutiny- Scalia specifically says so in Heller. (The Court rejected Breyers Intermediate scrutiny argument, but didnt do so in a way that can be quoted).

Its not Intermediate Scrutiny/(aka the "Balancing of Interests" Test- ) Alito says so on page 44 of McDonald...


That only leaves one standard....

Ill get my whips and chains....

Cool. I appreciate the breakdown.

Theseus
06-28-2010, 2:26 PM
So the 1000 foot ban around schools will still stand?

I don't believe that it will.

I believe that the ban on school grounds would stand, but "around" or "within 1000 feet" will not stand.

As it mentioned in the decision, and in Heller, the restrictions may stand "in sensitive places," not around, somewhere near, or in the proximity of.

Why should I not be allowed the weapons to defend myself simply because a school is near? It is a ridiculous notion.

thayne
06-28-2010, 3:51 PM
Ok, so. We got strict scrutiny?

RomanDad
06-28-2010, 4:36 PM
Ok, so. We got strict scrutiny?

yes.

383green
06-28-2010, 4:42 PM
I don't believe that it will.

I believe that the ban on school grounds would stand, but "around" or "within 1000 feet" will not stand.

As it mentioned in the decision, and in Heller, the restrictions may stand "in sensitive places," not around, somewhere near, or in the proximity of.

Why should I not be allowed the weapons to defend myself simply because a school is near? It is a ridiculous notion.

If and when the "1000 feet" thing is struck down, will that give you a new opportunity to appeal your case?

hill billy
06-28-2010, 4:50 PM
yes.Romandad, what defines this? Is it an opinion, or can we we say that by using the phrases that Alito did, he has said as much? I think I understand how you are arriving at this conclusion, I am just wondering if the same standard will be be applied by those who seek to minimize the decision.

thayne
06-28-2010, 4:59 PM
Whoopsie.... Strict Scrutiny is IN McDonald... (you are correct... Rational Basis was already dismissed by Heller)... The Court today rejected "intermediate scrutiny" (aka "Interest balancing" from the "time, place and manner" First Amendment cases.- Brandenburg v. Ohio)

McDonald pg 44.

That, my dear friends, is Strict Scrutiny.

I found this in another thread

RomanDad
06-28-2010, 5:20 PM
Romandad, what defines this? Is it an opinion, or can we we say that by using the phrases that Alito did, he has said as much? I think I understand how you are arriving at this conclusion, I am just wondering if the same standard will be be applied by those who seek to minimize the decision.

OK... Here goes... Romandads Judicial Review Primer:

Most of you never went to law school.... So you didnt have to sit up one night and write a flowchart of how to answer a Constitutional law exam question. I did both, and managed to finish #2 in my class. Ill put this in the most simplistic question and answer format I can because I know most of you arent interested in wasting a hundred K and three years of your life to figure this stuff out.

When Youre faced with a Con law question, you ask a series of questions. The answers to those questions lead you to where you go NEXT.

There are a few preliminary questions (standing, ripeness, mootness, etc) that we will skip. The Court decided those when they granted Cert.

So the First question for our purposes is:

1. Does the law violate Substantive Due Process?

You answer this by asking "Does the law interfere with an individual liberty interest?" (the Heller Court said YES! Thats where they stopped. They didnt need to go any further in their review.)

If Yes, you ask:

2. Does it deprive the individual of a "Fundamental Right"?

a) If No: then the level of Scrutiny is "Rational basis."

b) If Yes (and the McDonald Court repeatedly said the 2nd Amendment WAS a FUNDAMENTAL right): then the level of review is Strict Scrutiny. "The law must be narrowly tailored to achieve a compelling state interest, and must be the LEAST restrictive means to achieve that goal."

Thats where a law students analysis would stop. The Court says its incorporated under Substantive DP, its a fundamental individual right, Strict Scrutiny applies.

The intermediate /Balancing interests approach comes from a series of First Amendment (a Fundamental right) cases dealing with the regulation of "Time Place and Manner" restrictions that do not discriminate against particular messages. (I still believe this level of review may be adopted for challenges of "Time, Place, and Manner" laws regulating firearms). But it doesnt apply to OUTRIGHT bans of speech and thus it makes no sense that it would apply to bans of guns either.


But you dont have to rely on my law school Con Law outline... Alito says so himself on page 44 of McDonald.

Finally, Justice Breyer is incorrect that incorporation will require judges to assess the costs and benefits of firearms restrictions and thus make difficult empirical judgments in an area in which they lack expertise. As we have noted, while in his opinion in Heller recommended an interest-balancing test, the Court specifically rejected that suggestion. The very enumeration of the right takes out of the hands of the government-Even the Third Brach of Government- the power to decide on a case-by-case basis whether the right is REALLY WORTH insisting upon.

The test isnt the HAVOC generating, flood gate opening test that Breyer brays on about in his 35 pages of hand wringing, with Judges deciding if a law is efficacious or not... The test is "is the law the most narrowly tailored, least intrusive way for the government to achieve a compelling interest?"

If the government interest is CRIME reduction/ gun violence, (which WITHOUT question IS a Compelling state interest) permanently burdening hundreds of millions of otherwise law abiding people to prevent a small portion of them from committing crimes is NOT a narrowly tailored least restrictive way of accomplishing that.

HowardW56
06-28-2010, 5:31 PM
They repeatedly call it a "fundamental right" in the decision. It is my understanding that "fundamental rights" traditionally are afforded strict scrutiny. At the very least we get intermediate scrutiny which is much much better than what we had.

Doesn't labeling the Second Amendment a fundamental right virtually guarantee strict scrutiny?

Maybe Gene or one of the Legal Eagles can explain this...

I just read the rest of the thread....

NEVER MIND :rolleyes:

I learned something new..... :D

Paladin
06-28-2010, 5:34 PM
RD, so a ban on owning a handgun comes under the strict scrutiny standard of review.

1) Is that equivalent to saying that a Right to Keep Arms is protected by the strict scrutiny standard of review?

2) If yes to #1, does that logically mean that a Right to Bear Arms will be protected by the strict scrutiny standard of review?

RomanDad
06-28-2010, 5:45 PM
RD, so a ban on owning a handgun comes under the strict scrutiny standard of review.

1) Is that equivalent to saying that a Right to Keep Arms is protected by the strict scrutiny standard of review?

2) If yes to #1, does that logically mean that a Right to Bear Arms will be protected by the strict scrutiny standard of review?


Both will generally be Strict Scrutiny.

HOWEVER, I still contend that some "bear" cases will be "intermediate Scrutiny" when the regulation is strictly about Place ("sensitive places" governmental buildings etc..) and Manner (open versus concealed etc.... )

Paladin
06-28-2010, 5:54 PM
Both will generally be Strict Scrutiny.

HOWEVER, I still contend that some "bear" cases will be "intermediate Scrutiny when the regulation is strictly about Place ("sensitive places" governmental buildings etc..) and Manner (open versus concealed etc.... )So the unique phrase "shall not be infringed" is mere surplusage? :whistling: :D

anthonyca
06-28-2010, 6:09 PM
I don't believe that it will.

I believe that the ban on school grounds would stand, but "around" or "within 1000 feet" will not stand.

As it mentioned in the decision, and in Heller, the restrictions may stand "in sensitive places," not around, somewhere near, or in the proximity of.

Why should I not be allowed the weapons to defend myself simply because a school is near? It is a ridiculous notion.

If this law is so unconstitutional, why does the far more draconian federal GFSZ (riffles and handguns) still stand? I know nobody has been charged with it, but it affects everyone in the USA and many of those people are in pro gun circuits.

383green
06-28-2010, 6:12 PM
If this law is so unconstitutional, why does the far more draconian federal GFSZ (riffles and handguns) still stand? I know nobody has been charged with it, but it affects everyone in the USA and many of those people are in pro gun circuits.

It hasn't been legally challenged yet, as far as I know.

advocatusdiaboli
06-28-2010, 6:19 PM
uddenly i'm worried......

I am less so--they listed the restriction the pass, if a law's criteria isn't among them it's adios...

We made it clear in Heller that our hold-
ing did not cast doubt on such longstanding regulatory
measures as:
“prohibitions on the possession of firearms by
felons and the mentally ill,”

“laws forbidding the carrying of firearms in sensitive places such as schools and gov-
ernment buildings, or laws imposing conditions and quali-
fications on the commercial sale of arms.”


That's it--no new taxes or registration fees designed to make ownership prohibitively expensive, no ammo restrictions designed, again, to make ownership prohibitively expensive, no Roster--in short, none of the usual shenanigans. The Antis are going to have to re-group and think this over.

anthonyca
06-28-2010, 6:38 PM
It hasn't been legally challenged yet, as far as I know.

That is my point. Why not go for an easy win? I feel it will not go down so easy. I hope I am wrong.

383green
06-28-2010, 6:42 PM
That is my point. Why not go for an easy win? I feel it will not go down so easy. I hope I am wrong.

So, go ahead and challenge it, then... ;)

advocatusdiaboli
06-28-2010, 6:53 PM
So, go ahead and challenge it, then... ;)

No, that's exactly what the anti-gun forces hope we do--run off half-cokced and unorganized and file a case without thinking of the strategic implications--without a battle plan. And then lose it and have precedent to fight, making our task harder and wait longer. Then, worst case, maybe Obama get's another justice and we lose incorporation and it's all lost. We might still prevail but it will take longer and costs a lot more--money that could be better used. Please let the pros handle this.

N6ATF
06-28-2010, 7:44 PM
So the unique phrase "shall not be infringed" is mere surplusage? :whistling: :D

As long as we don't bring the founding fathers in the TARDIS and have them serve on the jury for a multiple-defendant treason trial...

383green
06-28-2010, 7:48 PM
No, that's exactly what the anti-gun forces hope we do--run off half-cokced and unorganized and file a case without thinking of the strategic implications--without a battle plan. And then lose it and have precedent to fight, making our task harder and wait longer. Then, worst case, maybe Obama get's another justice and we lose incorporation and it's all lost. We might still prevail but it will take longer and costs a lot more--money that could be better used. Please let the pros handle this.

I guess that my sarcasm wasn't clear enough. I entirely agree with you that The Right People are running an effective strategic campaign, and the GFSZ still stands because it hasn't been the right battle to engage in yet.

guayuque
06-28-2010, 7:53 PM
Both will generally be Strict Scrutiny.

HOWEVER, I still contend that some "bear" cases will be "intermediate Scrutiny" when the regulation is strictly about Place ("sensitive places" governmental buildings etc..) and Manner (open versus concealed etc.... )

That's the most troubling part to me. Given every opportunity to discuss what type of test might apply, SCOTUS declined. They made some of the noises but did not opt for a review standard. All of this ocurred while the majority repeated that various forms of regulation would be probably accepted. It is really ambiguous.

I do agree, though, with your assessment that the most attractive attack now might be the CCW issue. At least on first read.

GuyW
06-28-2010, 8:06 PM
So the unique phrase "shall not be infringed" is mere surplusage? :whistling: :D

Oh - you know those Founders! Always throwing in superfilous text to impress each other...

.

Barabas
06-28-2010, 8:15 PM
It is really ambiguous.

Could it be any other way? They aren't willing to be the Justices that allowed violent felons the right to self-defense. The country would go up in flames tomorrow if that happened. I'd love to be wrong about that, but we've seen the political reality of that right here on calguns.

“We will see laws that serve no useful purpose other than to annoy gun owners struck down and others that are actually critically necessary for public safety upheld.” -Alan Gura

dantodd
06-29-2010, 12:52 AM
That is my point. Why not go for an easy win? I feel it will not go down so easy. I hope I am wrong.

There is essentially no reason to take down the GFSZ law. If you want to carry in a GFSZ just apply for a CCW. CCW holders are exempt from the GFSZ laws. Admittedly it would be nice if the GFSZ law were simply gone but since it is so easy to get around it might be wiser to go after other low hanging fruit that is more onerous.

press1280
06-29-2010, 2:15 AM
So We won SCOTUS. What level of scrutiny was the decision? Did we get "Strict"?

I didn't see it specifically written in the opinion which means an anti-gun court will try not to use it,even though there is plenty of dicta that points that way. The decision was more or less all about incorporation, not much more about the 2A right itself.
I believe the US v. Skoien case(just reheard en banc a few weeks ago) in the 7th Circuit might be the first to establish any concrete standard.

Scott Connors
06-29-2010, 3:12 AM
No, that's exactly what the anti-gun forces hope we do--run off half-cokced and unorganized and file a case without thinking of the strategic implications--without a battle plan. And then lose it and have precedent to fight, making our task harder and wait longer. Then, worst case, maybe Obama get's another justice and we lose incorporation and it's all lost. We might still prevail but it will take longer and costs a lot more--money that could be better used. Please let the pros handle this.

Litigation isn't a blind banzai charge into the courts screaming at the top of our lungs. Think of the island hopping strategy that the US used against Japan: isolate, attack and pacify vital links on the way to the main objective while bypassing those pockets that we don't need to reach the prize, knowing that when we take out that main objective these others will wither on the vine and die.

Sobriquet
06-29-2010, 3:49 AM
Both will generally be Strict Scrutiny.

HOWEVER, I still contend that some "bear" cases will be "intermediate Scrutiny" when the regulation is strictly about Place ("sensitive places" governmental buildings etc..) and Manner (open versus concealed etc.... )

After reading through McDonald carefully, I have to concur with everything RomanDad has posted in this thread.

I also think the bet that intermediate scrutiny will be applied to some "bear" cases is a safe one. When analyzing time, place, or manner restrictions on speech (also a fundamental right), intermediate scrutiny is applied.

dantodd
06-29-2010, 6:51 AM
After reading through McDonald carefully, I have to concur with everything RomanDad has posted in this thread.

I also think the bet that intermediate scrutiny will be applied to some "bear" cases is a safe one. When analyzing time, place, or manner restrictions on speech (also a fundamental right), intermediate scrutiny is applied.

If this is right we may have considerably stronger protections against time manner and place infringements because a temporary loss of speech is much less harmful than the temporary loss of self-defense could be.

EBR Works
06-29-2010, 8:36 AM
This from SCOTUSblog analysis just in case anyone missed it:

Justice Samuel A. Alito, Jr., in the Court’s main opinion, did make one thing unmistakably clear to lower court judges: the right to have a gun for self-defense in the home is a “fundamental” constitutional right. That one-word label carries enormous import. Ordinarily, if a right is deemed to be fundamental, any law that seeks to limit it will be judged by the stiffest constitutional test there is: it must satisfy “strict scrutiny,” meaning that it will be struck down if the government’s need for it is not “compelling” and if the approach it takes is not the narrowest possible way to get at the problem. Some laws can survive “strict scrutiny,” but not a great many do.

The entire analysis here:

http://www.scotusblog.com/2010/06/analysis-gun-rights-go-national/

hill billy
06-29-2010, 8:41 AM
This from SCOTUSblog analysis just in case anyone missed it:



The entire analysis here:

http://www.scotusblog.com/2010/06/analysis-gun-rights-go-national/
I did miss that. How very cool.:cool::cool::cool:

EBR Works
06-29-2010, 8:46 AM
Pretty exciting, if true! Seems like RomanDad nailed it.

Anyone here care to argue with or make additional points about this analysis?

EBR Works
06-29-2010, 8:57 AM
Some interesting reading here that states otherwise:

http://www.scotusblog.com/2010/06/analysis-state-gun-regulations-and-mcdonald/

yellowfin
06-29-2010, 9:09 AM
The ideal testing grounds for levels of scrutiny will be in the destroying of NYC's laws. Every one of them violate strict scrutiny, and almost every one of them violate intermediate, so we'd get to see exactly where the lines are drawn simply by what is brought up as to how and why they fail. It's the closest approximation in a state to DC's absurd and convoluted mess as it gets.

Does anyone have a Gura bat signal search light we up here in NYS can borrow?

glockman19
06-29-2010, 9:10 AM
I believe that existing federal law already provides "Reasonable Restrictions"...No Felons, No Mentaly Adjunct, No violent Misdemenors/AKA DV.

I believe that when they compare the 2A to other amendments in the Bill of Rights that they will have "Strict Scrutiny", also because they will forsee the numerous attempts to restrict Constitutional Rights on the state level and want to provide a framework.

Becaues of the opposition, This will take some time.

carsonwales
06-29-2010, 9:14 AM
OK... Here goes... Romandads Judicial Review Primer:



The test inst the HAVOC generating, flood gate opening test that Breyer brays on about in his 35 pages of hand wringing, with Judges deciding if a law is efficacious or not... The test is "is the law the most narrowly tailored, least intrusive way for the government to achieve a compelling interest?"

If the government interest is CRIME reduction/ gun violence, (which WITHOUT question IS a Compelling state interest) permanently burdening hundreds of millions of otherwise law abiding people to prevent a small portion of them from committing crimes is NOT a narrowly tailored least restrictive way of accomplishing that.

If your right, and you sound right...it would seem to be a slam dunk case to have the California Approved Handgun List thrown out rather easily...

If my recollection is correct, some of the XD pistols are not on the list simply because they have olive drab coloring...and have not been submitted for testing...

If a law abiding citizen filed a lawsuit for being denied the ability to purchase one of these off list pistols because he liked green instead of black I would think that case would be an instant winner after McDonald...

CW

pguevara
06-29-2010, 9:23 AM
Nice flowchart RomanDad!

Good point on intermediate scrutiny on "time, place, manner" restrictions to the "bear" part of the RTKBA. This is consistent with First Amendment precedent. Will also make strict scrutiny on restrictions to the "keep" part more palatable to courts.

FYI, I am one of those unfortunates who wasted 100K+ and 3 years. Probably only needed 1.5 years and $50K for law school plus 2-3 years of practical experience to figure out "the law." But that's a different topic for another board ;)






OK... Here goes... Romandads Judicial Review Primer:

Most of you never went to law school.... So you didnt have to sit up one night and write a flowchart of how to answer a Constitutional law exam question. I did both, and managed to finish #2 in my class. Ill put this in the most simplistic question and answer format I can because I know most of you arent interested in wasting a hundred K and three years of your life to figure this stuff out.

When Youre faced with a Con law question, you ask a series of questions. The answers to those questions lead you to where you go NEXT.

There are a few preliminary questions (standing, ripeness, mootness, etc) that we will skip. The Court decided those when they granted Cert.

So the First question for our purposes is:

1. Does the law violate Substantive Due Process?

You answer this by asking "Does the law interfere with an individual liberty interest?" (the Heller Court said YES! Thats where they stopped. They didnt need to go any further in their review.)

If Yes, you ask:

2. Does it deprive the individual of a "Fundamental Right"?

a) If No: then the level of Scrutiny is "Rational basis."

b) If Yes (and the McDonald Court repeatedly said the 2nd Amendment WAS a FUNDAMENTAL right): then the level of review is Strict Scrutiny. "The law must be narrowly tailored to achieve a compelling state interest, and must be the LEAST restrictive means to achieve that goal."

Thats where a law students analysis would stop. The Court says its incorporated under Substantive DP, its a fundamental individual right, Strict Scrutiny applies.

The intermediate /Balancing interests approach comes from a series of First Amendment (a Fundamental right) cases dealing with the regulation of "Time Place and Manner" restrictions that do not discriminate against particular messages. (I still believe this level of review may be adopted for challenges of "Time, Place, and Manner" laws regulating firearms). But it doesnt apply to OUTRIGHT bans of speech and thus it makes no sense that it would apply to bans of guns either.


But you dont have to rely on my law school Con Law outline... Alito says so himself on page 44 of McDonald.



The test isnt the HAVOC generating, flood gate opening test that Breyer brays on about in his 35 pages of hand wringing, with Judges deciding if a law is efficacious or not... The test is "is the law the most narrowly tailored, least intrusive way for the government to achieve a compelling interest?"

If the government interest is CRIME reduction/ gun violence, (which WITHOUT question IS a Compelling state interest) permanently burdening hundreds of millions of otherwise law abiding people to prevent a small portion of them from committing crimes is NOT a narrowly tailored least restrictive way of accomplishing that.

yellowfin
06-29-2010, 9:30 AM
The problem with "compelling state interest" is that some states feel a compelling interest to limit the number of gun owners and rights thereof.

wash
06-29-2010, 9:31 AM
The ideal testing grounds for levels of scrutiny will be in the destroying of NYC's laws. Every one of them violate strict scrutiny, and almost every one of them violate intermediate, so we'd get to see exactly where the lines are drawn simply by what is brought up as to how and why they fail. It's the closest approximation in a state to DC's absurd and convoluted mess as it gets.

Does anyone have a Gura bat signal search light we up here in NYS can borrow?
Hold your horses a little bit.

The SAF and Alan Gura are taking the fight to South Carolina first.

It's a strategic move. Once he gets the right decision in SC, he can import that to NY. It's a lot easier that way.

We've had Nordyke on the burner over here for something like 10 years. It was just Heller and McDonald that are finally allowing it to be a big win for us. That's the type of fight you would get in NY.

In South Carolina things will go much easier, then it's an easy case to slam NY for unconstitutional laws.

Believe me, I would like to see NY laws change but I know that our side is following a winning strategy.

yellowfin
06-29-2010, 9:33 AM
Nordyke has been going for 10 years, true, but upon the first hint of victory Sykes and Peña were filed. I'm merely humbly suggesting that there's a lot of Peña like material here to be had. LOTS of it. And in fact, Mr. Gura himself has said so.

Havoc70
06-29-2010, 9:37 AM
Hold your horses a little bit.

The SAF and Alan Gura are taking the fight to South Carolina first.


I thought he was going after North Carolina? South Carolina has very sane gun laws.

N6ATF
06-29-2010, 9:39 AM
The problem with "compelling state interest" is that some states feel a compelling interest to limit the number of law-abiding citizens gun owners and rights thereof.

Fixed. Criminals are their only constituents.

maxd
06-29-2010, 10:14 AM
The court held that gun ownership is a "Fundamental Right", i.e. same as free speach etc. In Heller, J.Scalia said that it is a "Natural Right" (even better). As such the court must and can only review it under "strict scrutiny" and as such it is guarranteed by the bill of rights. Let freedom ring.

bwiese
06-29-2010, 11:35 AM
I think we'll get pretty high level of scrutiny from McDonald.

Nobody wrote it directly - but Alito (IIRC) kept saying "fundamental" in relation to the RKBA right and rights under the 14th A. Dozens of times.

A fundamental right has damned high scrutiny associated with it. Not rational basis, and much higher than intermediate.

The relevant scrutiny level for the particular right in question must be in the same general league as other BoR rights.

In fact the "reasonable restrictions" they listed (felons, mentally ill, various 'sensitive places', commercial regulation of sale, and guns that are both 'dangerous' AND 'unusual') may turn out to be the bulk of restrictions outside NFA.

In CA, we won't avoid certain registration paperwork, background checks, etc. - but we can kill Daley's insurance proposal, NYC's 6 month wait for a handgun permit, DC's renewal every 3? years of gun ID/registration card [rights don't expire for nonfelons], Rostering and AW stuff, etc. Even the 10 day wait for multiple gun owners can go away - especially if these folks have a COE card.

EBR Works
06-29-2010, 11:41 AM
I think we'll get pretty high level of scrutiny from McDonald.

Nobody wrote it directly - but Alito (IIRC) kept saying "fundamental" in relation to the RKBA right and rights under the 14th A. Dozens of times.

A fundamental right has damned high scrutiny associated with it. Not rational basis, and much higher than intermediate.

The relevant scrutiny level for the particular right in question must be in the same general league as other BoR rights.

In fact the "reasonable restrictions" they listed (felons, mentally ill, various 'sensitive places', commercial regulation of sale, and guns that are both 'dangerous' AND 'unusual') may turn out to be the bulk of restrictions outside NFA.

In CA, we won't avoid certain registration paperwork, background checks, etc. - but we can kill Daley's insurance proposal, NYC's 6 month wait for a handgun permit, DC's renewal every 3? years of gun ID/registration card [rights don't expire for nonfelons], Rostering and AW stuff, etc. Even the 10 day wait for multiple gun owners can go away - especially if these folks have a COE card.

Awesome!

:jump:

Peaceful John
06-29-2010, 12:05 PM
We won but to such a small extent I feel sick as though we lost. It's such a powerless and hostage feeling. I wish I could convince the misses to move to a free state like AZ. Until then, I'll be staying tuned, waiting for Gene's words of wisdom, and hoping for the best. All I want is to be able to drop mags, use 30rd mags, and CCW. If the roster would dissapear that would be cool too. Anything beyond that is gravy. Ugh
-Brandon

Please consider that California has no 2nd A analogue. Prior to Monday, the Federal 2nd A was not applicable to California. With *nothing* supporting individual gun rights in the state, the legislature could (and did) pass any darned law it wished and we had no judicial standing to object. That is now no longer the case. For the first time, and in one fell swoop, the U.S. Supreme Court established that gun owners, including those of us in California, share a common, pre-existing but thus far not fully defined body of rights and we have standing to sue to discover, protect and expand them. It is now our job to get to it. I wish everyone could share my cautious optimism in the decision.

Peaceful John
06-29-2010, 12:11 PM
I think we will get strict scrutiny for self defence which is good because all of my weapons are primarily for self defense.

If you have a firearm that is a "hunting" weapon, it will be subject to intermediate scrutiny because hunting is not the core right that the second amendment protects.

The difference is trivial if ALL OF YOUR FIREARMS ARE PRIMARILY FOR SELF DEFENSE.

But that's just for posession, carry will probably be intermediate scrutiny which should mean shall issue CCW and or LOC. Possibly a shall issue LOC permit would survive a court challenge but I don't think the anti's would want that, they would rather have them hidden.

NFA items will hopefully be legal eventually but I think you'll always have to jump through hoops to get them.

Good points, but it's not yet clear to me how one can separate self defense (strict) from carrying the gun that permits the self defense (intermediate).

Hunt
06-29-2010, 12:24 PM
...

Redirect the anti-sentiment back onto the criminals where it belongs. Propose laws that say:
Possession of a handgun, not illegal. Use of a handgun in a crime - HIGHLY illegal.
or
No AWB - but using an AW in a crime gets you 20+ years.

These would be "tough new laws to fight crime" - that puts the force of law onto those who would break it - not the rest of us. It's also a way for some of these politicians to come around to a more reasonable way of operating, without completely embarrassing themselves (something they're reluctant to do). Honestly, I could see the Daly's of the world going along with something like this, as it allows them to spin their loss as really being a win...

or something...
I like this tack as well but we must be very concerned about what is a crime. If we look at how things are going lately the laws keep stacking up higher and higher. Will brandishing a firearm in an intimidating manner become a felony? For example, you hear some noise in your backyard and you take your AR and check it out, you find some teenagers doing stupid teenage stuff, it's harmless, so you send them on their way. Maybe you just commited a felony? We have to be very very careful with the application of associated laws. This is where the local antis can win big. If we take an honest look at how the courts have become so repressive these days (anything and everything is fair game for a regulation and fine) we need to pay attention and challenge the larger issue that will negatively impact gun rights. And that issue is Liberty.

Peaceful John
06-29-2010, 12:26 PM
OK... Here goes... Romandads Judicial Review Primer:

Most of you never went to law school.... So you didnt have to sit up one night and write a flowchart of how to answer a Constitutional law exam question. I did both, and managed to finish #2 in my class. Ill put this in the most simplistic question and answer format I can because I know most of you arent interested in wasting a hundred K and three years of your life to figure this stuff out.

When Youre faced with a Con law question, you ask a series of questions. The answers to those questions lead you to where you go NEXT.

There are a few preliminary questions (standing, ripeness, mootness, etc) that we will skip. The Court decided those when they granted Cert.

So the First question for our purposes is:

1. Does the law violate Substantive Due Process?

You answer this by asking "Does the law interfere with an individual liberty interest?" (the Heller Court said YES! Thats where they stopped. They didnt need to go any further in their review.)

If Yes, you ask:

2. Does it deprive the individual of a "Fundamental Right"?

a) If No: then the level of Scrutiny is "Rational basis."

b) If Yes (and the McDonald Court repeatedly said the 2nd Amendment WAS a FUNDAMENTAL right): then the level of review is Strict Scrutiny. "The law must be narrowly tailored to achieve a compelling state interest, and must be the LEAST restrictive means to achieve that goal."

Thats where a law students analysis would stop. The Court says its incorporated under Substantive DP, its a fundamental individual right, Strict Scrutiny applies.

The intermediate /Balancing interests approach comes from a series of First Amendment (a Fundamental right) cases dealing with the regulation of "Time Place and Manner" restrictions that do not discriminate against particular messages. (I still believe this level of review may be adopted for challenges of "Time, Place, and Manner" laws regulating firearms). But it doesnt apply to OUTRIGHT bans of speech and thus it makes no sense that it would apply to bans of guns either.


But you dont have to rely on my law school Con Law outline... Alito says so himself on page 44 of McDonald.



The test isnt the HAVOC generating, flood gate opening test that Breyer brays on about in his 35 pages of hand wringing, with Judges deciding if a law is efficacious or not... The test is "is the law the most narrowly tailored, least intrusive way for the government to achieve a compelling interest?"

If the government interest is CRIME reduction/ gun violence, (which WITHOUT question IS a Compelling state interest) permanently burdening hundreds of millions of otherwise law abiding people to prevent a small portion of them from committing crimes is NOT a narrowly tailored least restrictive way of accomplishing that.


Some, if not most of us are not lawyers but have an interest in the subject at least as it applys to the RKBA. The problem is not having the interest, it is being unable interpret legal processes. Postings like this -- and it's not the first "explanatory" posting you've done, RomanDad -- are wonderfully useful and serve to keep us on (mostly) the same page. I'm grateful.

Hunt
06-29-2010, 12:30 PM
Some, if not most of us are not lawyers but have an interest in the subject at least as it applys to the RKBA. The problem is not having the interest, it is being unable interpret legal processes. Postings like this -- and it's not the first "explanatory" posting you've done, RomanDad -- are wonderfully useful and serve to keep us on (mostly) the same page. I'm grateful.

thanks Roman Dad

wash
06-29-2010, 12:35 PM
Nordyke has been going for 10 years, true, but upon the first hint of victory Sykes and Peña were filed. I'm merely humbly suggesting that there's a lot of Peña like material here to be had. LOTS of it. And in fact, Mr. Gura himself has said so.
That's 100% right, there are lots of Pena-like cases to be had in NY but the idea is that you knock one down and that makes the rest easier. Then you look at where you should make the first case.

Pena happened in CA because Alan couldn't do it in D.C., they expanded their roster so much that he couldn't find anything to sue over. California was the only state with a roster and an incorporated second amendment at the time. The location of Pena was also carefully picked within California to have the greatest chance of success.

Believe me, when the right people say it's time to sue NY, I will be in full support. To give you a WWII analogy, they just haven't finished building the A-bomb to drop on Tokyo.

I'm very excited about what's going on in the Carolinas, Chicago and D.C. because it will all help us in California. It will also help in NY, it might just take a little more time to trickle up...

wash
06-29-2010, 12:43 PM
Good points, but it's not yet clear to me how one can separate self defense (strict) from carrying the gun that permits the self defense (intermediate).
I wish I were a better legal mind to answer it but the way I understand it is that it's like the first amendment.

You can say whatever you want but they can regulate what you can say in certain places.

So no Hustler magazine in kindergarden would lead to no guns in kindergarden but I'm pretty sure you can read a Hustler sitting on a bus stop across the street...

Monte
06-29-2010, 1:19 PM
Some interesting reading here that states otherwise:

http://www.scotusblog.com/2010/06/analysis-state-gun-regulations-and-mcdonald/

I haven't had a chance to read this all the way through, but I have noticed a couple of things skimming over it.

They cite LCAV throughout, including a definition of an assault weapon ("a class of semi-automatic firearms designed with military features to allow rapid and accurate spray firing") and one for "junk guns" ("cheap, easily concealed, and more likely to misfire or malfunction than other firearms").

And there's this little nugget, which is obviously way off the mark, considering how common the AR design is - and we all know the AR is designed for rapic and accurate spray firing. :p
There are nonetheless two reasons why narrowly-defined bans on assault weapons are likely to be deemed consistent with the Second Amendment. First, those weapons may be deemed “dangerous and unusual,” and thus outside the Amendment’s protective scope.

Hunt
06-29-2010, 1:31 PM
...

You can say whatever you want but they can regulate what you can say in certain places.

...

this is why we need an asymetrical approach. Locals may make something like, "any traffic violation while in possession of a firearm" a felony. If we don't examine the importance of protecting individual Liberty as a principle there is too much wiggle room for the locals to infringe.
After all, they do have a "compelling State interest for public safety"

advocatusdiaboli
06-29-2010, 6:41 PM
The problem with "compelling state interest" is that some states feel a compelling interest to limit the number of gun owners and rights thereof.

Yep. The PRK is big on their own special brand of compelling interest led by Saldana and her crew. While I celebrate McDonald, it was far weaker than I'd hoped and it will mean years of hand-to-hand combat over yards of ground to get what should have been taken in a good carpet bombing.

Scarecrow Repair
06-29-2010, 10:06 PM
So the unique phrase "shall not be infringed" is mere surplusage? :whistling: :D

Those who wrote that phrase infringed it themselves, in that felons, mentally ill, etc were not considered to have the right, at least in a lot of places. The founders saw no infringement in that.