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fizux
08-22-2013, 2:53 PM
Peña v. Cid [Cal. DOJ BoF]
Issue: Handgun Roster

Current Status:
2/26/2015 Appealed to 9th Circuit Court of Appeals - see https://www.calgunsfoundation.org/litigation/pena-v-lindley/

2/26/2015 - judge at Eastern District grants Defense motion to dismiss - http://ia801400.us.archive.org/30/items/gov.uscourts.caed.191444/gov.uscourts.caed.191444.94.0.pdf

As of 2/7/2014: Awaiting Decision on Cross-MSJs; hx on Mtn to Supp. Rec. set for 2/28/2014.

1/28/2014 - Motion to Supplement Record (http://www.archive.org/download/gov.uscourts.caed.191444/gov.uscourts.caed.191444.82.0.pdf), filed by Alan Gura (P&A (http://www.archive.org/download/gov.uscourts.caed.191444/gov.uscourts.caed.191444.82.1.pdf), Decls. by Ruger (http://www.archive.org/download/gov.uscourts.caed.191444/gov.uscourts.caed.191444.82.3.pdf), S&W (http://www.archive.org/download/gov.uscourts.caed.191444/gov.uscourts.caed.191444.82.4.pdf)); hx set for 2/28/2014.
1/16/2014 - Notice of Supp. Auth. (http://www.archive.org/download/gov.uscourts.caed.191444/gov.uscourts.caed.191444.81.0.pdf), filed by Alan Gura (re: D.C. microstamping reqts).
12/31/2013 - Stip (http://www.archive.org/download/gov.uscourts.caed.191444/gov.uscourts.caed.191444.80.0.pdf) IAW 12/18 order.
12/30/2013 - Transcript of 12/16 hx; may be purchased (high $) until released 3/31/2014.
12/18/2013 - Order (http://www.archive.org/download/gov.uscourts.caed.191444/gov.uscourts.caed.191444.78.0.pdf) to file stip w/ supplemental info.
12/16/2013 - MSJ hxs.
12/9/2013 - DOJ's reply (http://www.archive.org/download/gov.uscourts.caed.191444/gov.uscourts.caed.191444.76.0.pdf).
12/9/2013 - CGF's reply (http://www.archive.org/download/gov.uscourts.caed.191444/gov.uscourts.caed.191444.75.0.pdf).
12/2/2013 - DOJ's opposition (http://www.archive.org/download/gov.uscourts.caed.191444/gov.uscourts.caed.191444.74.0.pdf) to CGF's MSJ (SSUMF response (http://www.archive.org/download/gov.uscourts.caed.191444/gov.uscourts.caed.191444.74.8.pdf)).
12/2/2013 - CGF's opposition (http://ia700204.us.archive.org/23/items/gov.uscourts.caed.191444/gov.uscourts.caed.191444.73.0.pdf) to DOJ's MSJ (SSUMF response (http://ia600204.us.archive.org/23/items/gov.uscourts.caed.191444/gov.uscourts.caed.191444.73.1.pdf)).
11/4/2013 - Cross-MSJs hx reset to 12/16/2013.
11/2/2013 - CGF's MSJ Brief (http://www.archive.org/download/gov.uscourts.caed.191444/gov.uscourts.caed.191444.67.1.pdf) [corrected].
11/1/2013 - Glock's Amicus Brief (http://www.archive.org/download/gov.uscourts.caed.191444/gov.uscourts.caed.191444.66.0.pdf).
10/26/2013 - CGF's MSJ filed (P&A (http://www.archive.org/download/gov.uscourts.caed.191444/gov.uscourts.caed.191444.61.1.pdf), SSUMF (http://www.archive.org/download/gov.uscourts.caed.191444/gov.uscourts.caed.191444.63.0.pdf), see docket (http://ia600204.us.archive.org/23/items/gov.uscourts.caed.191444/gov.uscourts.caed.191444.docket.html) for Decls., hx 11/22/2013).
10/25/2013 - Glock, Inc.'s Amicus Motion filed.
10/25/2013 - DOJ's MSJ filed (P&A (http://www.archive.org/download/gov.uscourts.caed.191444/gov.uscourts.caed.191444.55.1.pdf), SSUMF (http://www.archive.org/download/gov.uscourts.caed.191444/gov.uscourts.caed.191444.55.2.pdf), see docket (http://ia600204.us.archive.org/23/items/gov.uscourts.caed.191444/gov.uscourts.caed.191444.docket.html) for Decls., hx 11/22/2013).
7/1/2013 - Answer (http://www.archive.org/download/gov.uscourts.caed.191444/gov.uscourts.caed.191444.54.0.pdf) to SAC.
6/10/2013 - 2nd Amended Complaint (http://www.archive.org/download/gov.uscourts.caed.191444/gov.uscourts.caed.191444.53.0.pdf) (added micro-stamping, by stip).
5/28/2013 - Discovery reopened through 10/4/2013 (limited to micro-stamping), dispositive motions by 11/22/2013.
9/6/2012 - Wilfredo Cid was replaced by Stephen Lindley, Chief, California DOJ Bureau of Firearms.
8/1/2012 - Stay lifted.
8/9/2010 - Stay extended pending further consideration of Nordyke in light of McDonald opinion.
10/2/2009 - Stayed pending Nordyke.
4/30/2009 - Complaint (http://www.archive.org/download/gov.uscourts.caed.191444/gov.uscourts.caed.191444.1.0.pdf).

Trial Court: E.D. Cal.
Case No.: 2:09-cv-01185
Docket: http://ia801400.us.archive.org/30/items/gov.uscourts.caed.191444/gov.uscourts.caed.191444.docket.html

Links:
Related CGN discussion thread: http://www.calguns.net/calgunforum/showthread.php?t=179227
Roster of Handguns Certified for Sale in California: http://certguns.doj.ca.gov/
CA DOJ BOF Newly Added Handguns Models: http://oag.ca.gov/sites/oag.ca.gov/files/pdfs/firearms/recentlyadded.pdf (Thanks ChaoSS (http://www.calguns.net/calgunforum/showpost.php?p=13230631&postcount=7))
CA DOJ BOF De-Certified Handguns Models: http://oag.ca.gov/sites/oag.ca.gov/files/pdfs/firearms/removed.pdf (ditto)
CGF Wiki for this case: http://wiki.calgunsfoundation.org/index.php/Pena_v_Cid
CGF Wiki Litigation page: http://wiki.calgunsfoundation.org/Litigation_Past_and_Present

jdoane9724
09-25-2013, 9:50 AM
Message says server is busy.....

fizux
09-25-2013, 8:15 PM
Message says server is busy.....
Which link, and is it still an issue?

Dvrjon
09-25-2013, 8:47 PM
Which link, and is it still an issue?

Last 2 links - CGF sites

fizux
09-25-2013, 9:04 PM
Last 2 links - CGF sites
Well, considering Oracle is preoccupied by blocking off half of downtown SF for OpenWorld2013, and the outcome of that little sailboat race today, I'm not surprised that a MySQL server is too hammered, uhhh, I mean, "unavailable."

I don't have any control over what happens to the links, but I'll revise my post if they change.

orangeusa
09-25-2013, 9:04 PM
This is what I got.

Sorry! This site is experiencing technical difficulties.
Try waiting a few minutes and reloading.

(Can't contact the database server: mysqlnd cannot connect to MySQL 4.1+ using the old insecure authentication. Please use an administration tool to reset your password with the command SET PASSWORD = PASSWORD('your_existing_password'). This will store a new, and more secure, hash value in mysql.user. If this user is used in other scripts executed by PHP 5.2 or earlier you might need to remove the old-passwords flag from your my.cnf file (mysql.sra321.geovario.com))


--------------------------------------------------------------------------------

You can try searching via Google in the meantime.
Note that their indexes of our content may be out of date.

Calguns Foundation Wiki WWW

command_liner
11-04-2013, 8:41 PM
The wiki is wacky and lacking. Tons of activity in the docket.

Any updates?

REH
11-04-2013, 9:03 PM
Yes, please update.

Librarian
11-04-2013, 9:21 PM
Having looked at the docket, a summary:

On October 25 and 26th Defendant and Plaintiff each filed notice informing the other that on Nov 22 each would file a motion for summary judgement. ETA after a bit of education - thanks, Fabio - the motions are already filed.

Defendants say 'nothing to see here'.

Plaintiffs say 'Roster is unconstitutional'.

Entertaining, but the response to the requests will be more like 'activity', I think.

REH
11-04-2013, 10:25 PM
Thank you

LoneYote
11-04-2013, 11:19 PM
Defendants say 'nothing to see here'.

Plaintiffs say 'Roster is unconstitutional'.

Succinct and entertaining. I am tempted to let you translate all the legalize for me from now on.....

FABIO GETS GOOSED!!!
11-05-2013, 5:42 AM
On October 25 and 26th Defendant and Plaintiff each filed notice informing the other that on Nov 22 each would file a motion for summary judgement.

Not sure what docket you're looking at but the motions have been filed already and November 22nd is the hearing.

Here's my summary:

DOJ says "no substantial burden".

CGF lazily recycles 2009 MSJ and makes no attempt to argue substantial burden.

See my years-old posts on this stinker of a case for predictions how these arguments will play out. :laugh:

Anyone think the 9th Circuit will not adopt a substantial burden test?

GM4spd
11-05-2013, 5:46 AM
Looks like another "urinating into a fan" situation. Pete

FABIO GETS GOOSED!!!
11-05-2013, 6:22 AM
The funniest part of the DOJ's motion is the "substantial burden" precedent cited at page 15 of its points and authorities (http://ia600204.us.archive.org/23/items/gov.uscourts.caed.191444/gov.uscourts.caed.191444.55.1.pdf). :laugh:

fizux
11-05-2013, 9:27 AM
Thanks to all for the gentle reminder to update.

The funniest part of the DOJ's motion is the "substantial burden" precedent cited at page 15 of its points and authorities (http://ia600204.us.archive.org/23/items/gov.uscourts.caed.191444/gov.uscourts.caed.191444.55.1.pdf). :laugh:

Let me guess, Teixeira?

FABIO GETS GOOSED!!!
11-05-2013, 9:48 AM
Teixeira plus a couple more. ; )

BobB35
11-05-2013, 10:03 AM
The funniest part of the DOJ's motion is the "substantial burden" precedent cited at page 15 of its points and authorities (http://ia600204.us.archive.org/23/items/gov.uscourts.caed.191444/gov.uscourts.caed.191444.55.1.pdf). :laugh:

Ah the beauty of Circular logic. We ruled something one way therefore we need to be consistent with our ruling and use that as precedent.

Isn't the point to try to get a definitive ruling on this issue not these multiple circle jerks from all the circuit courts?

This is the ultimate problem with ambiguous laws and Lawyers...at some point they have to be rest with the only method that has been used for years. Complete clean slate.....

chainsaw
11-05-2013, 10:15 AM
Can someone update the state of Teixeira, if there are any updates? Supposedly, there was a hearing in early September, on the MTD. Somehow, I seem to have missed the discussion on Calguns about the outcome of that case. The CGN thread about Teixeira (http://www.calguns.net/calgunforum/showthread.php?t=812127) seems to have turned into the usual disruption of discussion. If there is another thread about it, please point me to it.

SOAR79
11-05-2013, 10:41 AM
tagged

REH
11-05-2013, 11:02 AM
The funniest part of the DOJ's motion is the "substantial burden" precedent cited at page 15 of its points and authorities (http://ia600204.us.archive.org/23/items/gov.uscourts.caed.191444/gov.uscourts.caed.191444.55.1.pdf). :laugh:

I read this document and did not see or missed it, the question as to why the handgun is not safe for some people, non LE and safe for others, LE, living in the ]same state. Also how will micro stamping increase the safety of the firearm? The roster is called, safe hand gun, so the added requirement of micro stamping, has nothing to do with safety.

Can someone help me with this one?

fizux
11-05-2013, 11:03 AM
Can someone update the state of Teixeira, if there are any updates? Supposedly, there was a hearing in early September, on the MTD. Somehow, I seem to have missed the discussion on Calguns about the outcome of that case. The CGN thread about Teixeira (http://www.calguns.net/calgunforum/showthread.php?t=812127) seems to have turned into the usual disruption of discussion. If there is another thread about it, please point me to it.
I've updated my OP in Teixeira.

FABIO GETS GOOSED!!!
11-05-2013, 11:21 AM
Can someone update the state of Teixeira, if there are any updates?

Case was tossed out by the district court and CGF has appealed to 9th circuit lol.

Bhobbs
11-05-2013, 11:22 AM
I wouldn't hold my breath on Pena going anywhere, anytime soon. Best to just forget about it for now.

FABIO GETS GOOSED!!!
11-05-2013, 11:33 AM
Ah the beauty of Circular logic. We ruled something one way therefore we need to be consistent with our ruling and use that as precedent.

What is happening here is (1) CGF is filing cases with weak facts where there is little or no burden on the exercise of the right (2) CGF is losing these cases, and (3) the decisions in these losing cases are being used against them in other cases that also have weak facts/no burden. This is not in the least bit surprising.

Librarian
11-05-2013, 11:59 AM
Not sure what docket you're looking at but the motions have been filed already and November 22nd is the hearing.

Here's my summary:

DOJ says "no substantial burden".

CGF lazily recycles 2009 MSJ and makes no attempt to argue substantial burden.

See my years-old posts on this stinker of a case for predictions how these arguments will play out. :laugh:

Anyone think the 9th Circuit will not adopt a substantial burden test?

Perhaps there is a subtlety I am overlooking, but the language of the submission is TO DEFENDANTS AND THEIR ATTORNEYS OF RECORD:
PLEASE TAKE NOTICE that on November 22, 2013 at 10:00 a.m. or as soon
thereafter as the matter may be heard, [the Plaintiffs]
...
will move this Honorable Court to enter a summary judgment
in their favor and against Defendant
I do see that, as is customary, the parties have offered their preferred text for the outcome.

FABIO GETS GOOSED!!!
11-05-2013, 12:15 PM
Perhaps there is a subtlety I am overlooking, but the language of the submission is I do see that, as is customary, the parties have offered their preferred text for the outcome.

Each motion has been filed and docketed as a "motion for summary judgment" and all of the moving and opposing and reply papers are filed before the hearing. No motion will be filed on the hearing date (which has been continued from Nov. 22nd to mid-December) as your post suggested. See local rule 230(b) (click here (http://www.caed.uscourts.gov/caednew/assets/File/EDCA%20Local%20Rules%20Effective%2010-01-13.pdf) for local rules).

mag360
11-05-2013, 12:38 PM
Well this is sad and frustrating. I can't see how it IS NOT a substantial burden and the damn judges are bought and paid for by the gun banners. Elections have consequences. These fools get appointed by our elected officials or voted in by us.

OleCuss
11-05-2013, 12:56 PM
Well this is sad and frustrating. I can't see how it IS NOT a substantial burden and the damn judges are bought and paid for by the gun banners. Elections have consequences. These fools get appointed by our elected officials or voted in by us.

To begin to understand this it is important to understand two things:

1. In a court of law, plain and simple language doesn't work the same as it does for us. So what some words mean to you and me - doesn't mean the same thing to lawyers and courts.

2. To a significant degree, the meaning of the words in courts/laws are shaped by various court cases. And that is being pointed out by FGG. If you file lousy cases, the resulting lousy opinions change what the words used (in the statutes and in the courts) to mean something (more) injurious to our rights.

If you aren't an expert in RKBA legislation you shouldn't be filing cases - and especially not strategic cases which are likely be precedential or persuasive. Doing so is bad for our rights.

Librarian
11-05-2013, 12:58 PM
Each motion has been filed and docketed as a "motion for summary judgment" and all of the moving and opposing and reply papers are filed before the hearing. No motion will be filed on the hearing date (which has been continued from Nov. 22nd to mid-December) as your post suggested. See local rule 230(b) (click here (http://www.caed.uscourts.gov/caednew/assets/File/EDCA%20Local%20Rules%20Effective%2010-01-13.pdf) for local rules).

Ah. Thanks.

It appears, then, that the language of the notice does not quite mean what the usual English usage would suggest. Not an unexpected condition, just a bit surprising it might apply in that document.

FABIO GETS GOOSED!!!
11-05-2013, 1:24 PM
I can't see how it IS NOT a substantial burden...

Well, all you need to do is make a comparison to Heller 1. In Heller 1, you could not possess a handgun in your home. Any firearm in the home must be disassembled or bound with a trigger lock at all times, with no self-defense exception. Obviously this is a substantial burden because you are unable to defend yourself with any firearm. Can you argue any of this in Pena? No.

OleCuss
11-05-2013, 1:56 PM
I think the counter-argument is that firearms in common use were mentioned as being allowed.

To us non-lawyers that would seem to mean that if a whole bunch of people elsewhere in the country can buy a 4th Generation Glock, then 4th Generation Glocks are in common use and it is my right to buy one.

That means that a scheme which prevents my purchase of a 4th Generation Glock is not merely a substantial burden, it is an insurmountable burden.

I am guessing, however, that the courts will not see it the same way. They will figure that a Gen 3 is equivalent to a Gen 4 (or similar stupidity) and therefore if I can get a Gen 3 I shouldn't complain if I can't get the Gen 4.

kcbrown
11-05-2013, 2:13 PM
Well, all you need to do is make a comparison to Heller 1. In Heller 1, you could not possess a handgun in your home. Any firearm in the home must be disassembled or bound with a trigger lock at all times, with no self-defense exception. Obviously this is a substantial burden because you are unable to defend yourself with any firearm. Can you argue any of this in Pena? No.

However, the implication of this line of thinking is that the state can ban the purchase, possession, etc., of all but one specific make and model of firearm, as "substantial burden" here means "entirely foreclosed", so if the "right" is not entirely foreclosed, there is no "substantial burden".

I note that your specific wording in the above implies that had there been a self-defense "exception" to the requirement that a firearm be disassembled or bound with a trigger lock at all times, then there would not be a "substantial burden" and Heller would thus have gone differently.

Right?

FABIO GETS GOOSED!!!
11-05-2013, 2:14 PM
I think the counter-argument is that firearms in common use were mentioned as being allowed.

That is the counter argument but no court is going to be doing any statistical inquiry into particular makes or models of firearms to see whether they are "in common use." Heller 1 certainly didn't do that (as if the high standard buntline single shot revolver is in common use lol) and didn't even remotely suggest that anyone else should be doing that either. "Handguns" are in common use and there are plenty of handguns on the roster to choose from. As far as the manufacturers are concerned, they must spend a ton hyping up new "Gen 4" models which go bang just like the old models, so boo hoo if they have to incur costs of loaded chamber indicators, etc.

kcbrown
11-05-2013, 2:14 PM
Anyone think the 9th Circuit will not adopt a substantial burden test?

Oh, they will. And just like they tried to do before (http://www.calguns.net/calgunforum/showpost.php?p=6348434&postcount=287), they will turn the court analysis that must happen after a substantial burden is found into a rational basis test.

FABIO GETS GOOSED!!!
11-05-2013, 2:21 PM
...as "substantial burden" here means "entirely foreclosed"...

No, it doesn't.

Right?

Wrong.

Tincon
11-05-2013, 2:22 PM
Well, all you need to do is make a comparison to Heller 1. In Heller 1, you could not possess a handgun in your home. Any firearm in the home must be disassembled or bound with a trigger lock at all times, with no self-defense exception. Obviously this is a substantial burden because you are unable to defend yourself with any firearm. Can you argue any of this in Pena? No.

Are you suggesting that absent a "substantial burden" there is no 2A protection whatsoever? I don't think there is any support for this in Heller 1.

Arguably, absent substantial burden there is going to be some lesser standard, but I very much doubt it will be rational basis. Even under the least restrictive application of intermediate scrutiny, a law which says a gun is unsafe because some recurring fee has not been paid, or because the color is different, is not likely to be upheld.

Of course this (http://www.hoffmang.com/firearms/pena/MSJ-2009-09-02/14-24.pdf) seems to rely entirely on strict scrutiny for whatever reason.

kcbrown
11-05-2013, 2:26 PM
No, it doesn't.


No? Then why did you mention specifically that there was no "self defense" exception? The implication of such is that the existence of a "self defense" exception would have changed the analysis. Otherwise, mention of lack of a "self defense" exception is superfluous.


Here, let me illustrate why I said what I did:


Obviously this is a substantial burden because you are unable to defend yourself with any firearm.


(emphasis mine)

The implication here is that had there been some firearm that Heller could have defended himself with, there would be no "substantial burden". Applying this to Pena, it follows that if it is possible to acquire some firearm, then there must not be a "substantial burden".

The above interpretation is reinforced by your comment about the absence of a "self-defense" exception in Heller.


In what way does your statement not strongly imply the above (I do agree that it's not a direct logical inference, and thus not absolute)? More to the point, if there is a lesser set of circumstances that also leads to a "substantial burden", where, in your opinion, does that line exist as regards Pena?

Why is the roster as it is not a substantial burden while it would be if it had only one make and model of firearm listed?

FABIO GETS GOOSED!!!
11-05-2013, 2:32 PM
Are you suggesting that absent a "substantial burden" there is no 2A protection whatsoever?

Can you ask that a different way? (I.e., what do you mean by "2A protection"?) I think I know what you're asking but not sure.

FABIO GETS GOOSED!!!
11-05-2013, 2:36 PM
The implication of such is that the existence of a "self defense" exception would have changed the analysis.

No, it's not. Have you read Heller lately?

FABIO GETS GOOSED!!!
11-05-2013, 2:37 PM
I can't keep up with your edits that retreat from your original positions lol.

kcbrown
11-05-2013, 2:38 PM
No, it's not. Have you read Heller lately?

I have. But I wasn't commenting on Heller, I was commenting on your statement and what that implied about your opinion here.

If a "self-defense" exception would not have changed the analysis, then why did you bother to bring it up? It's not like you to mention characteristics of a case that are unnecessary for the determination of its outcome.

kcbrown
11-05-2013, 2:40 PM
I can't keep up with your edits that retreat from your original positions lol.

Heh. Sorry.

Might want to wait a few minutes before responding to a message of mine, so that it's more likely that my message will be in its final form.

Tincon
11-05-2013, 2:55 PM
Can you ask that a different way? (I.e., what do you mean by "2A protection"?) I think I know what you're asking but not sure.

Some firearms issues fall outside 2A protection. For example, weapons not typically used by law-abiding citizens, weapons that are dangerous and usual (or used in a dangerous or unusual way), or weapons in "sensitive places." In these cases, no scrutiny analysis is required, there is no 2A protection.

Assuming none of the above apply, some level of scrutiny is going to apply. If (as in Heller) there is a "substantial burden," then (as in Heller) any balancing text should be rejected and at a minimum strict scrutiny should be applied. However, even if there is only an incremental burden (and particularly if it is an intentionality burden, as it is here) then some level of scrutiny should be applied. I would argue that the level should be intermediate.

I'm not sure the entire roster as applied could survive such scrutiny, if the proper arguments were made against it.

Heh. Sorry.

Might want to wait a few minutes before responding to a message of mine, so that it's more likely that my message will be in its final form.

Think before you type (or at least before you post).

FABIO GETS GOOSED!!!
11-05-2013, 3:01 PM
If a "self-defense" exception would not have changed the analysis, then why did you bother to bring it up?

You're losing me lol. The argument assisted the plaintiffs in Heller 1. The argument cannot be made in Pena so it cannot assist the Pena plaintiffs.

FABIO GETS GOOSED!!!
11-05-2013, 3:08 PM
If (as in Heller) there is a "substantial burden," then (as in Heller) any balancing text should be rejected and at a minimum strict scrutiny should be applied.

If you are saying that Heller considers intermediate scrutiny a "freestanding, 'interest-balancing'" test, I don't agree.

Tincon
11-05-2013, 3:11 PM
If you are saying that Heller considers intermediate scrutiny a "freestanding, 'interest-balancing'" test, I don't agree.

Well that's a bit off the point, but I have not seen your counter-argument here: http://www.calguns.net/calgunforum/showthread.php?t=844273

FABIO GETS GOOSED!!!
11-05-2013, 3:25 PM
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.”

Does that sound to you like the Heller majority equates intermediate scrutiny with the dissent's interest balancing test?

Tincon
11-05-2013, 3:32 PM
Does that sound to you like the Heller majority equates intermediate scrutiny with the dissent's interest balancing test?

Yes.

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.”

In other words, Breyer is not "explicitly" proposing "intermediate scrutiny" (or any other standard) for 2A analysis. But as I pointed out:

In his dissent, Justice Breyer mentions certain “cases applying intermediate scrutiny. . . .” Heller, 554 U.S. 570, 704 He then cites Turner Broad. Sys., Inc. v. F.C.C., 520 U.S. 180, 195 (1997) (deciding a First Amendment case on the basis of intermediate scrutiny). Justice Breyer goes on to suggest that “[t]here is no cause here to depart from the [intermediate scrutiny] standard set forth in Turner, for the District's decision represents the kind of empirically based judgment that legislatures, not courts, are best suited to make.” Heller, 554 U.S. 570, 705. Justice Breyer then uses the language “interest-balancing inquiry” to describe the intermediate standard he would adopt. Heller, 554 U.S. 570, 689 (2008).

He is clearly making the implicit suggestion that the standard is intermediate scrutiny; the same standard used in the case (Turner) he says "[t]here is no cause here to depart from the standard set forth in". The Heller majority rejects this suggestion.

safewaysecurity
11-05-2013, 3:43 PM
Isn't the whole point of the PENA case that the roster would fail any standard of review including rational basis? I agree that substantia burden can and should be argued since the roster in effect with the microstamping requirements now will effectively ban any new production handsguns, it also drives up prices for all california handguns and hurts low income earners who want to own a gun. I bet the 9th circuit would rule Voter ID laws unconstitutional, yet we're required to provide ID, additional proof of residence, registration, 10 day waiting period, 30 days until being able to buy another handgun, the roster, background check fee, taxes, etc. These requirements would never be held up as constitutional for lesser rights like Abortion or gay marriage or voting.

Tincon
11-05-2013, 3:53 PM
Isn't the whole point of the PENA case that the roster would fail any standard of review including rational basis?

Almost no laws fail rational basis review. Basically, you would have to argue that the only possible purpose of a law is to exercise animus against a politically unpopular group, and the burden would be on the challenger.

SC_SD
11-05-2013, 4:25 PM
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.”

So aren't they just going to argue then that the important govt. interest is, broadly, "public safety" and that gen3, gen 4, whatever other distinction, is immaterial?

That the roster mandates actually don't do much for public safety doesn't appear to be the crux of the case anymore. It would have been more effective if the main argument was that the roster doesn't apply to all transactions equally, wouldn't that (as someone else in this thread brought up) create a more challenging distinction for them to defend?

kcbrown
11-05-2013, 4:28 PM
You're losing me lol. The argument assisted the plaintiffs in Heller 1.


But if the existence of a self-defense exception would not have changed the outcome, then how could its absence have assisted the plaintiffs in Heller?



The argument cannot be made in Pena so it cannot assist the Pena plaintiffs.Who is making the argument in Pena that there is no self-defense exception?


Look, I was presuming that by bringing up the lack of self-defense exception in Heller, there was some relevance of that to your conclusions about Pena and, more generally, "substantial burden" analysis. But it now sounds like the self-defense exception bit was entirely superfluous to your argument. Is that a fair characterization?

curtisfong
11-05-2013, 4:31 PM
Almost no laws fail rational basis review.

Agreed. The set of restrictions on laws that rational basis imposes = {}.

By definition (somehow), legislatures only act rationally. lol™

RipVanWinkle
11-05-2013, 4:33 PM
That is the counter argument but no court is going to be doing any statistical inquiry into particular makes or models of firearms to see whether they are "in common use." Heller 1 certainly didn't do that (as if the high standard buntline single shot revolver is in common use lol) and didn't even remotely suggest that anyone else should be doing that either. "Handguns" are in common use and there are plenty of handguns on the roster to choose from. As far as the manufacturers are concerned, they must spend a ton hyping up new "Gen 4" models which go bang just like the old models, so boo hoo if they have to incur costs of loaded chamber indicators, etc.

I doubt they would have to go into a statistical inquiry of makes and models. In its current iteration the roster appears to be designed to gradually eliminate sales of new center-fire, semi-automatic pistols going forward. The new "Gen 4" won't get by just by caving in and adding CIs and mag. disconnects: they'll have to add micro stamping post 5/17/2013, if I'm reading this correctly.

Without the micro stamping feature no new models will even be allowed to apply for inclusion on the roster. Since I gather that no manufacturer includes micro stamping presently, nor do any have plans to do so in the future, applications for new models have ceased already. As long as manufacturers continue to produce currently approved models, and pay their fees, they can remain on the roster. However, the moment they produce the latest model ("Gen 4", Gen 5", whatever), Poof!, they're out of CA. There will be some trickle back from private parties moving to CA, but I suspect the movement of gun owners out of state will result in a net outflow.

Seems like a clever way to eliminate 2/3 of new handgun sales, or maybe I'm missing something? What's in that Glock document on the docket?

FABIO GETS GOOSED!!!
11-05-2013, 4:38 PM
Justice Breyer goes on to suggest that “[t]here is no cause here to depart from the [intermediate scrutiny] standard set forth in Turner, for the District's decision represents the kind of empirically based judgment that legislatures, not courts, are best suited to make.”

:laugh:

Sloppy.

Tincon
11-05-2013, 4:53 PM
:laugh:

Sloppy.

Hey now, it might be cheap but it isn't sloppy. That is the standard applied in Turner.

We begin where the plurality ended . . . applying the standards for intermediate scrutiny enunciated in O'Brien.

Turner Broad. Sys., Inc. v. F.C.C., 520 U.S. 180, 189, 117 S. Ct. 1174, 1186, 137 L. Ed. 2d 369 (1997)

curtisfong
11-05-2013, 4:55 PM
:laugh:

Sloppy.

So if the courts can't apply intermediate scrutiny (though they can apply the entirely useless, ineffective null set of rules that rational basis represents), what meaning does it have?

Seems like it consists of a null set of rules, just like rational basis does.

Tincon
11-05-2013, 4:57 PM
So if the courts can't apply intermediate scrutiny (though they can apply the entirely useless, ineffective null set of rules that rational basis represents), what meaning does it have?

Seems like it consists of a null set of rules, just like rational basis does.

How did you get all that from "sloppy" and a :laugh:?

FABIO GETS GOOSED!!!
11-05-2013, 5:07 PM
Hey now, it might be cheap but it isn't sloppy. That is the standard applied in Turner.

I've given you a hint by bolding your parenthetical explanation.

Tincon
11-05-2013, 5:09 PM
I've given you a hint by bolding your parenthetical explanation.

Sorry, but I'm not going to play "hint hint" games with you. If you have a credible counter argument to my assertion that the Heller majority rejected intermediate scrutiny, then state it. Otherwise, you are contributing nothing to this conversation.

FABIO GETS GOOSED!!!
11-05-2013, 5:14 PM
Here's another hint, maybe you're not reading the dissenting opinion as carefully as you should be. Maybe "standard" refers to something more specific than "intermediate scrutiny" which you plopped down parenthetically into that sentence.

kcbrown
11-05-2013, 5:15 PM
Sorry, but I'm not going to play "hint hint" games with you. If you have a credible counter argument to my assertion that the Heller majority rejected intermediate scrutiny, then state it. Otherwise, you are contributing nothing to this conversation.

Welcome to the same fun that the rest of us have had to put up with when engaging him.

FABIO GETS GOOSED!!!
11-05-2013, 5:20 PM
Welcome to the same fun that the rest of us have had to put up with when engaging him.

I can't help it if you and Tincon are not careful readers. :laugh:

kcbrown
11-05-2013, 5:26 PM
I can't help it if you and Tincon are not careful readers. :laugh:

"Careful" is not sufficient when your statements leave sufficient ambiguity as to be indeterminate.

Tincon
11-05-2013, 5:28 PM
Here's another hint, maybe you're not reading the dissenting opinion as carefully as you should be. Maybe "standard" refers to something more specific than "intermediate scrutiny" which you plopped down parenthetically into that sentence.

I wonder if this is how you argue/brief cases in front of a judge. "Your Honor, I find opposing counsel's argument uncompelling, as I have repeatedly hinted at in my brief. I would now like to vaguely direct the Court's attention to an entire dissent, and hint further that somewhere therein lies support for my argument." :laugh:

The parenthetical only addresses what the standard in Turner was. Breyer's own words clearly show that the standard he would have applied in Heller was that of Turner. Intermediate.

I respect your opinion and intellect, and I would welcome your mature legal analysis on any point. However, I have no need for, and place no value on, games with "hints" and vague references without proper cites. I would hope there is enough respect here that we can have a mutual conversation of the former type.

Welcome to the same fun that the rest of us have had to put up with when engaging him.

You are one to talk lol.

FABIO GETS GOOSED!!!
11-05-2013, 5:37 PM
Let's have a look at the actual text of the dissenting opinion, in context:

In particular this Court, in First Amendment cases applying intermediate scrutiny, has said that our “sole obligation” in reviewing a legislature’s “predictive judgments” is “to assure that, in formulating its judgments,” the legislature “has drawn reasonable inferences based on substantial evidence.” Turner, 520 U. S., at 195 (internal quotation marks omitted). And judges, looking at the evidence before us, should agree that the District legislature’s predictive judgments satisfy that legal standard. That is to say, the District’s judgment, while open to question, is nevertheless supported by “substantial evidence.”

There is no cause here to depart from the standard set forth in Turner, for the District’s decision represents the kind of empirically based judgment that legislatures, not courts, are best suited to make. See Nixon, 528 U. S., at 402 (BREYER, J., concurring). In fact, deference to legislative judgment seems particularly appropriate here, wherethe judgment has been made by a local legislature, with particular knowledge of local problems and insight into appropriate local solutions.

Anyone see another "standard" here? Like, maybe, the "legal standard" (not "standard of scrutiny") by which a legislature's predictive judgments are reviewed? (Hint: the "legal standard" the dissent is actually referring to is bolded lol.) Does Turner "set forth" an intermediate scrutiny standard, or does it "set forth" the standard by which legislative predictive judgments are reviewed? Notice how the second clause of the sentence that Tincon incompletely quoted (first sentence of second paragraph) refers to legislative judgments?

kcbrown
11-05-2013, 5:43 PM
You are one to talk lol.

LOL!! Touché, mon ami!

Tincon
11-05-2013, 6:24 PM
I see your argument now; that the "legal standard" Breyer refers to in your quote is not scrutiny. Instead, it must be some standard of deference to a legislature's empirical judgment, independent of the level of scrutiny. I disagree. Apparently you also would argue that Breyer did not propose an intermediate standard of scrutiny, which of course I also disagree with.

Let's take a look at section (III), for better context:


I therefore begin by asking a process-based question: How is a court to determine **2851 whether a particular firearm regulation (here, the District's restriction on handguns) is consistent with the Second Amendment? What kind of constitutional standard should the court use? How high a protective hurdle does the Amendment erect?

[So what does "constitutional standard" mean here? Indeed, what is this entire section about? Breyer tells us:

The question matters. The majority is wrong when it says that the District's law is unconstitutional “nder any of the standards of scrutiny that we have applied to enumerated constitutional rights.” Ante, at 2817. How could that be? It certainly would not be unconstitutional under, for example, a “rational basis” standard, which requires a court to uphold regulation so long as it bears a “rational relationship” *688 to a “legitimate governmental purpose.” Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993). The law at issue here, which in part seeks to prevent gun-related accidents, at least bears a “rational relationship” to that “legitimate” life-saving objective. And nothing in the three 19th-century state cases to which the majority turns for support mandates the conclusion that the present District law must fall. See Andrews v. State, 50 Tenn. 165, 177, 186–187, 192 (1871) (striking down, as violating a state constitutional provision adopted in 1870, a statewide ban on a carrying a broad class of weapons, insofar as it applied to revolvers); Nunn v. State, 1 Ga. 243, 246, 250–251 (1846) (striking down similarly broad ban on openly carrying weapons, based on erroneous view that the Federal Second Amendment applied to the States); State v. Reid, 1 Ala. 612, 614–615, 622 (1840) (upholding a concealed-weapon ban against a state constitutional challenge). These cases were decided well (80, 55, and 49 years, respectively) after the framing; they neither claim nor provide any special insight into the intent of the Framers; they involve laws much less narrowly tailored that the one before us; and state cases in any event are not determinative of federal constitutional questions, see, e.g., Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 549, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985) (citing Martin v. Hunter's Lessee, 1 Wheat. 304, 4 L.Ed. 97 (1816)).

scrutiny under which DC's laws would survive.]

Respondent proposes that the Court adopt a “strict scrutiny” test, which would require reviewing with care each gun law to determine whether it is “narrowly tailored to achieve a compelling governmental interest.” Abrams v. Johnson, 521 U.S. 74, 82, 117 S.Ct. 1925, 138 L.Ed.2d 285 (1997); see Brief for Respondent 54–62. But the majority implicitly, and appropriately, rejects that suggestion by broadly approving a set of laws—prohibitions on concealed weapons, forfeiture by criminals of the Second Amendment right, prohibitions on firearms in certain locales, and governmental regulation of commercial firearm sales—whose constitutionality under a strict scrutiny standard would be far from clear. See ante, at 2816.

Indeed, adoption of a true strict-scrutiny standard for evaluating gun regulations would be impossible. That is because almost every gun-control regulation will seek to advance (as the one here does) a “primary concern of every government—a concern for the safety and indeed the lives of its citizens.” United States v. Salerno, 481 U.S. 739, 755, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). The Court has deemed that interest, as well as “ the Government's general interest in preventing crime,” to be “compelling,” see id., at 750, 754, 107 S.Ct. 2095, and the Court has in a wide variety of constitutional contexts found such public-safety concerns sufficiently forceful to justify restrictions on individual liberties, see e.g., Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) (per curiam) (First **2852 Amendment free speech rights); Sherbert v. Verner, 374 U.S. 398, 403, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) (First Amendment religious rights); Brigham City v. Stuart, 547 U.S. 398, 403–404, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) (Fourth Amendment protection of the home); New York v. Quarles, 467 U.S. 649, 655, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984) (Fifth Amendment rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)); Salerno, supra, at 755 (Eighth Amendment bail rights). Thus, any attempt in theory to apply strict scrutiny to gun regulations will in practice turn into an interest-balancing inquiry, with the interests protected by the Second Amendment on one side and the governmental public-safety concerns on the other, the only question being whether the regulation at issue impermissibly burdens the former in the course of advancing the latter.

[More about scrutiny, specifically how Breyer would reject strict scrutiny.

I would simply adopt such an interest-balancing inquiry explicitly. The fact that important interests lie on both sides of the constitutional equation suggests that review of gun-control regulation is not a context in which a court should effectively presume either constitutionality (as in rational-basis review) or unconstitutionality (as in strict scrutiny).

[Now this is very important, Breyer has ruled out both rational basis and strict scrutiny. But CLEARLY he is still talking about scrutiny. He proposes something in-between strict and rational, and elucidates:

Rather, “where a law significantly implicates competing constitutionally protected interests in complex ways,” the Court generally asks whether the statute burdens a protected interest in a way or to an extent that is out of *690 proportion to the statute's salutary effects upon other important governmental interests. See Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 402, 120 S.Ct. 897, 145 L.Ed.2d 886 (2000) (BREYER, J., concurring). Any answer would take account both of the statute's effects upon the competing interests and the existence of any clearly superior less restrictive alternative. See ibid. Contrary to the majority's unsupported suggestion that this sort of “proportionality” approach is unprecedented, see ante, at 2820 – 2821, the Court has applied it in various constitutional contexts, including election-law cases, speech cases, and due process cases. See 528 U.S., at 403, 120 S.Ct. 897 (citing examples where the Court has taken such an approach); see also, e.g., Thompson v. Western States Medical Center, 535 U.S. 357, 388, 122 S.Ct. 1497, 152 L.Ed.2d 563 (2002) (BREYER, J., dissenting) (commercial speech); Burdick v. Takushi, 504 U.S. 428, 433, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992) (election regulation); Mathews v. Eldridge, 424 U.S. 319, 339–349, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (procedural due process); Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) (government employee speech).

[Hmmm, which standard of scrutiny do those case apply?]

In applying this kind of standard [this is important, because this is the same "standard" he is talking about in reference to Turner. When he said "this" he is referring the preceding paragraphs (dealing with scrutiny).] the Court normally defers to a legislature's empirical judgment in matters where a legislature is likely to have greater expertise and greater institutional factfinding capacity. See Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180, 195–196, 117 S.Ct. 1174, 137 L.Ed.2d 369 (1997); see also Nixon, supra, at 403, 120 S.Ct. 897 (BREYER, J., concurring). Nonetheless, a court, not a legislature, must make the ultimate constitutional conclusion, exercising its “independent judicial judgment” in light of the whole record to determine whether a law exceeds constitutional boundaries. Randall v. Sorrell, 548 U.S. 230, 249, 126 S.Ct. 2479, 165 L.Ed.2d 482 (2006) (opinion of BREYER, J.) (citing Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984)).

[paragraph omitted]

Here, we have little prior experience. Courts that do have experience in these matters have uniformly taken an approach that treats empirically-based legislative judgment with a degree of deference. See Winkler, Scrutinizing the Second Amendment, 105 Mich. L.Rev. 683, 687, 716–718 (2007) (describing hundreds of gun-law decisions issued in the last half-century by Supreme Courts in 42 States, which courts with “surprisingly little variation,” have adopted a standard more deferential than strict [B]scrutiny). While these state cases obviously are not controlling, they are instructive. Cf., e.g., Bartkus v. Illinois, 359 U.S. 121, 134, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959) (looking to the “ experience of state courts” as informative of a constitutional question). And they thus provide some comfort regarding the practical wisdom of following the approach that I believe our constitutional precedent would in any event suggest.

And there is "standard" again, talking about scrutiny. Breyer does not have two meanings for the word in his dissent. When he says standard he means scrutiny. And when he discusses the standard the Supreme Court has adopted in so many cases which he cites to (including Turner), the standard is intermediate scrutiny. And the Heller Majority rejects this standard.

curtisfong
11-05-2013, 6:44 PM
I'm still unclear on what other "standard" there is. In any case, it appears to be equivalent to the null set, again.

So what relevance is there to the legal name one gives to equally ineffective and pointless standards?

Tincon
11-05-2013, 6:51 PM
So what relevance is there to the legal name one gives to equally ineffective and pointless standards?

Shockingly, not everyone believes that tripe.

curtisfong
11-05-2013, 6:58 PM
Shockingly, not everyone believes that tripe.

The person who wrote this does:


In fact, deference to legislative judgment seems particularly appropriate here, where the judgment has been made by a local legislature, with particular knowledge of local problems and insight into appropriate local solutions.

Tincon
11-05-2013, 6:59 PM
The person who wrote this does:

Maybe so, but note that you are quoting from the losing side.

ifilef
11-05-2013, 7:03 PM
My prediction is that the court, if it rules on 11/22/13 in Pena, should hold that part of the UHA unconstitutional which requires microstamping, lci, and mag disconnect. The reasoning might be, in part, due to the fact such a requirement is unduly burdensome, represents a restriction on handguns commonly used in this country for lawful purposes, and represents redundant 'safety' features that aren't really necessary and should not withstand scrutiny. I am not an expert in this area, but micro-stamping requirement alone is going to defeat that part of the Act because it does not exist and the requirement essentially bans all semi-automatic handguns hereafter produced for sale in this state.

curtisfong
11-05-2013, 7:04 PM
Maybe so, but note that you are quoting from the losing side.

His is not the opinion of the losing side in the big picture, in my judgement. From what I can tell, when it comes to the 2A, most judges feel that the courts should defer to the legislature, if not under intermediate scrutiny, certainly rational basis.

curtisfong
11-05-2013, 7:06 PM
My prediction is that the court, if it rules on 11/22/13 in Pena, should hold that part of the UHA unconstitutional which requires microstamping, lci, and mag disconnect. The reasoning might be, in part, due to the fact such a requirement is unduly burdensome, represents a restriction on handguns commonly used in this country for lawful purposes, and represents redundant 'safety' features that aren't really necessary and should not withstand scrutiny. I am not an expert in this area, but micro-stamping requirement alone is going to defeat that part of the Act because it does not exist and the requirement essentially bans all semi-automatic handguns hereafter produced for sale in this state.

As outlined before, I see no reason for this optimism.

Even if Pena's case were not fatally flawed (which many claim it is), it is likely that every court (short of SCOTUS) will defer to legislative judgement, up to, and including intermediate scrutiny.

Tincon
11-05-2013, 7:06 PM
His is not the opinion of the losing side in the big picture, in my judgement. From what I can tell, when it comes to the 2A, most judges feel that the courts should defer to the legislature, if not under intermediate scrutiny, certainly rational basis.

Regardless oh how you think they feel, they are all subordinate to the Supreme Court.

kcbrown
11-05-2013, 7:13 PM
Intermediate scrutiny, strict scrutiny, doesn't matter. The bottom line is that Heller said this, perhaps bringing an unusual amount of clarity to the table:


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.


Whatever else you may debate about scrutiny, the bottom line is that any method of deciding on a case-by-case basis whether the right is really worth insisting upon is a method that is in conflict with Heller.

We're left with one question: what does it mean to insist upon the right? That is a straightforward thing: insisting upon the right means that if the right is infringed upon by a law, the right, and not the law, wins. For the very purpose of a right is to protect the actions under its protection from government intrusion.

All forms of scrutiny currently in use decide, on a case-by-case basis, whether the right is really worth insisting upon. We know this because those methods decide whether to let the law stand or fall after infringement has already been acknowledged. Scrutiny is not a means for deciding the scope of a right. That is defined by historical understanding:


Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.




Fabio insists that the methods of scrutiny previously employed by the Supreme Court can't possibly run afoul of the aforementioned prose since, after all, the Supreme Court did use them. But the aforementioned prose leaves no such exceptions. Word games will not get you out of that particular conflict. To insist that scrutiny does not run afoul of that language on the basis that the Supreme Court has used scrutiny in the past is to engage in doublespeak, to insist not just that the meaning of a term must be whatever the Supreme Court means, but also that the Supreme Court can never contradict itself. But to do that is to insist that the Supreme Court has never overturned itself. Not only is the latter provably false as regards entire decisions, it is also false as regards individual bits and pieces of legal thinking.


And so, we're left with but one simple question: did the Supreme Court mean what it said here, or not? If not, then there is no reason to treat any of the decision as carrying any weight at all. If so, then the above analysis stands.

speedrrracer
11-05-2013, 7:22 PM
We're left with one question: what does it mean to insist upon the right? That is a straightforward thing: insisting upon the right means that if the right is infringed upon by a law, the right, and not the law, wins.


I think this is too broad. The Court has made clear some infringements are perfectly acceptable, and on any right. Statement needs to be tightened up to reflect that fact.

kcbrown
11-05-2013, 7:24 PM
Regardless oh how you think they feel, they are all subordinate to the Supreme Court.

The evidence shows otherwise. Were they truly subordinate to the Supreme Court, there would be no question about whether or not the 2nd Amendment applies outside the home.

And yet, there exists at least one appellate court which insists that the right does not apply outside the home (the 2nd Circuit in Kachalsky, if my memory serves, and most certainly the Maryland supreme court). And this, despite the indisputable fact that the Supreme Court crafted pages of prose of discussion about laws governing keep and bear outside the home that would withstand a 2nd Amendment challenge. The Supreme Court does not, that I know of, does not talk about exceptions to something when the something that they are exceptions to does not exist.


No, the lower courts are in rebellion against the Supreme Court on this issue, and I think the evidence on that is essentially incontrovertible. And since the Supreme Court has limited bandwidth, in practice it is not the Supreme Court that the lower courts are subordinate to. In practice, they are subordinate to nobody, and it is only through a "gentleman's agreement" that they adhere to any semblance of precedent at all, for the lower courts can simply repeatedly rule however they wish until the Supreme Court stops granting cert to the inevitable appeals, at which point the lower courts rulings stand.

sumdood
11-05-2013, 7:28 PM
I'm no expert on any of this. But what FGG pointed out is a very valid argument.

The opposition says there is no substantial burden and the argument posed by [CGF?] doesn't even oppose that statement.

Seems like a concern to me.

kcbrown
11-05-2013, 7:30 PM
Maybe so, but note that you are quoting from the losing side.

The person who penned that opinion is a member of the court, and it would be idiotic to argue that the quoted bit of his opinion does not, in fact, control how he votes on decisions of the court. Moreover, he was joined by three other justices (two of whom have since departed) in his opinion, so one must presume that they, too, agree with the quoted bit of his dissent.

So yes, in fact the Supreme Court also defers to the legislature when there are not sufficient votes in opposition to that.

ifilef
11-05-2013, 7:36 PM
As outlined before, I see no reason for this optimism.

Even if Pena's case were not fatally flawed (which many claim it is), it is likely that every court (short of SCOTUS) will defer to legislative judgement, up to, and including intermediate scrutiny.

No offense, but you are not a lawyer because of the way that you spell 'judgment' and the legislature does not render judgments, they just pass or reject legislation.

We have a USDC looking at a state's irrational and overreaching regulatory scheme, that will significantly infringe on 2nd Amend. fundamental rights, especially re micro-stamping issue; also equal protection might fly on that issue and on lci and mag safeties. That micro-stamping has no rational basis given the current state of the industry and has no relationship to the original intent of the law to prevent unsafe handgun availability. It also stifles commerce and denies California residents access to guns in common use-literally all semi-automatic handguns.

curtisfong
11-05-2013, 7:40 PM
rational basis

You sure you want to hang your hat on this, given the other posts in this thread?

ifilef
11-05-2013, 7:48 PM
You sure you want to hang your hat on this, given the other posts in this thread?

I just read both summary judgment motions in the case, and ventured my prediction based on those motions. I would deem the micro-stamping unconstitutional and strike it from the Act for reasons cited in Gura brief; and when only 11 and 14% of handguns nationwide have lci and mag disconnect safeties and should basically be ignored according to the CA position in its Handgun Safety Certificate Guide, I'd probably strike those also. Just my opinion.

kcbrown
11-05-2013, 8:43 PM
No offense, but you are not a lawyer because of the way that you spell 'judgment' and the legislature does not render judgments, they just pass or reject legislation.

We have a USDC looking at a state's irrational and overreaching regulatory scheme, that will significantly infringe on 2nd Amend. fundamental rights, especially re micro-stamping issue; also equal protection might fly on that issue and on lci and mag safeties. That micro-stamping has no rational basis given the current state of the industry and has no relationship to the original intent of the law to prevent unsafe handgun availability. It also stifles commerce and denies California residents access to guns in common use-literally all semi-automatic handguns.

Well, seeing how "rational basis" has, it seems, been interpreted to mean that a law is valid if one can merely imagine a situation in which the law in question would serve the interest it claims to serve, it's difficult to see how even the microstamping law can be claimed to fail under "rational basis" examination. Remember, too, that "rational" to the courts can (and probably does) mean something very different than "rational" does in the real world.

"Rational basis" is another illustration of how the court system has abandoned its mandate as an effective check on the other branches of government.

Tincon
11-05-2013, 9:00 PM
I'm no expert on any of this. But what FGG pointed out is a very valid argument.

The opposition says there is no substantial burden and the argument posed by [CGF?] doesn't even oppose that statement.

Seems like a concern to me.

To me as well. Then again CGF losing a case due to shoddy legal work is nothing new.

curtisfong
11-05-2013, 9:12 PM
Still waiting for a case where you and FGG get a court to apply rational basis to strike down a law. lol™

FABIO GETS GOOSED!!!
11-05-2013, 9:59 PM
I'm still unclear on what other "standard" there is.

Are you talking about the "standard set forth in Turner" mentioned in the dissenting opinion? The "standard set forth in Turner" is (quoting Turner, the standard under consideration is in bold):

In reviewing the constitutionality of a statute, "courts must accord substantial deference to the predictive judgments of Congress." Id. at 665. Our sole obligation is "to assure that, in formulating its judgments, Congress has drawn reasonable inferences based on substantial evidence." Id. at 666.

So when the Heller dissent says that "[t]here is no cause here to depart from the standard set forth in Turner," he means the "legal standard" by which the predictive judgments of Congress are reviewed, i.e., is the predictive judgment supported by substantial evidence? Here, immediately after quoting the same Turner standard that I just quoted above, the dissent argues that DC's predictive judgments satisfy "that legal standard," in other words, DC's judgment is supported by substantial evidence:

And judges, looking at the evidence before us, should agree that the District legislature’s predictive judgments satisfy that legal standard. That is to say, the District’s judgment, while open to question, is nevertheless supported by “substantial evidence.”

"Legal standard" is not synonymous with "standard of scrutiny"...this is Tincon's error. In context, following an 8 page discussion of the competing statistics (DC's vs Heller's), "that legal standard" and "the standard set forth in Turner" are one and the same: the legal standard by which predictive judgments are reviewed. The dissent thinks DC's statistics meet that standard.

You do agree that when the dissent says "that legal standard" and "the standard set forth in Turner," he is talking about the same thing, right Tincon? :laugh:

FABIO GETS GOOSED!!!
11-05-2013, 10:10 PM
Still waiting for a case where you and FGG get a court to apply rational basis to strike down a law. lol™

CGF should have hammered that IMO.

FABIO GETS GOOSED!!!
11-05-2013, 10:30 PM
[Hmmm, which standard of scrutiny do those case apply?

Hmmm indeed! :laugh:

FABIO GETS GOOSED!!!
11-05-2013, 10:40 PM
"Careful" is not sufficient when your statements leave sufficient ambiguity as to be indeterminate.

I'm not talking about my statements lol.

kcbrown
11-05-2013, 11:09 PM
"Careful" is not sufficient when your statements leave sufficient ambiguity as to be indeterminate.


I'm not talking about my statements lol.

Oh, the incredible irony of you having said the above in that context...

FABIO GETS GOOSED!!!
11-05-2013, 11:15 PM
Oh, the incredible irony of you having said the above in that context...

On the incredible italics...

Tell me, is it that hard to make the connection between this:

Here's another hint, maybe you're not reading the dissenting opinion as carefully as you should be.

and in the very next post, this?:

I can't help it if you and Tincon are not careful readers.

In case this is too indeterminate for you, you have the same problem, not reading the opinion carefully. :laugh:

kcbrown
11-06-2013, 12:40 AM
In case this is too indeterminate for you, you have the same problem, not reading the opinion carefully. :laugh:

Listen, you're the one who insists that scrutiny is not a means of determining on a case by case basis whether or not the right is really worth insisting upon when that is exactly what it is.

So either the opinion really is indeterminate (since your reading of it as regards scrutiny contradicts its plain meaning, and if its plain meaning isn't the right one and, instead, your doublespeak interpretation is, then it means that the decision lacks clarity), or you're wrong. Which is it?


You'll note that I didn't back Tincon on his specific method of determination that Heller takes intermediate scrutiny off the table.

FABIO GETS GOOSED!!!
11-06-2013, 6:28 AM
Listen, you're the one who insists that scrutiny is not a means of determining on a case by case basis whether or not the right is really worth insisting upon when that is exactly what it is.

The Heller majority disagrees with you. Here are two questions for you:

Is the first amendment is an enumerated constitutional right?

Has intermediate scrutiny been applied to the first amendment?

You'll note that I didn't back Tincon on his specific method of determination that Heller takes intermediate scrutiny off the table.

I'm afraid he has himself in a bit of a pickle on "" and "[Hmmm, which standard of scrutiny do those case apply?]" lol.

Tincon, your position is "that legal standard" and "the standard set forth in [I]Turner" (quoted from adjacent paragraphs in the Heller dissent) are the same thing i.e. intermediate scrutiny, right?

kcbrown
11-06-2013, 10:05 AM
Here are two questions for you:

Is the first amendment is an enumerated constitutional right?


Yep.



Has intermediate scrutiny been applied to the first amendment?


Yep.


What, you think that suddenly makes scrutiny exempt from the bit of text I quoted?

Either the Supreme Court meant what it said in the passage I quoted (which, for the record, contains no exemptions or carve-outs), or it didn't. Which is it?



The Heller majority disagrees with you.


That presumes that the Supreme Court never contradicts itself, never overturns itself.

That is the "we have always been at war with Eastasia" argument.

Californio
11-06-2013, 10:07 AM
kcbrown,

You are arguing with a Statist. Just like the Congress believes the Commerce Clause gives them Carte Blanche, Fabio, he/she, believes that Government can and does infringe on any Right they choose, whenever they choose, the old 1st Amendment game.

The bottom line with the Fabio mentality there really is no reason for a Bill of Rights or Constitution because all Rights and Power emanates from the Government/State and can be curtailed when the mood strikes.

Natural Law, the idea behind the Bill of Rights, is no longer considered, it becomes a matter of what Rights the Government will allow.

How far we have come from the original intent, with the Circular Law Game.

Natural Law is pretty much a dead idea and thus the Bill of Rights takes on a whole new meaning under the Statist Collective Agenda.

Nature always has the last laugh, but it takes time, so a single generation never sees the end result and people like Fabio never see how wrong they were.

cire raeb
11-06-2013, 10:43 AM
The sooner the SCOTUS rules, the sooner we can tell the Libtards to take the roster and stick it up their butt.

FABIO GETS GOOSED!!!
11-06-2013, 11:13 AM
The first amendment is an enumerated constitutional right. (Presumably the Heller majority is aware of this.)

Intermediate scrutiny has been applied to the first amendment. (Presumably the Heller majroity is aware of this too.)

The Heller majority "know[s] of no other enumerated constitutional right whose core protection has been subjected to a freestanding 'interest-balancing' approach" i.e. method of "decid[ing] on a case-by-case basis whether the right is really worth insisting upon."

Ergo, the Heller majority does not consider intermediate scrutiny (or strict scrutiny for that matter) to be "a freestanding 'interest-balancing' approach."

I get that you think all forms of scrutiny are balancing tests, methods of deciding on a case by case basis, etc.

fizux
11-06-2013, 11:32 AM
"Interest balancing" is code for "we can rationalize this away eventually using an incremental approach."

Also, I have attached Glock's amicus and CGF's corrected P&A to the OP.

IVC
11-06-2013, 11:46 AM
That is the counter argument but no court is going to be doing any statistical inquiry into particular makes or models of firearms to see whether they are "in common use." Heller 1 certainly didn't do that (as if the high standard buntline single shot revolver is in common use lol) and didn't even remotely suggest that anyone else should be doing that either.

You are implying that in avoidance of doing the statistical inquiry the court will necessarilly adopt the most limiting definition of "a handgun is available, therefore handguns are available" instead of the most permissive definition of "a handgun is banned therefore handguns are not available."

Besides the two extremes, there are many shades of gray in between that the court could consider and the most restrictive reading, which is what you suggest, is quite unreasonable and a logical stretch (see below).

"Handguns" are in common use and there are plenty of handguns on the roster to choose from.

A smooth bore, black powder, front loading, single shot hand musket is a "handgun" and is available (as C&R). It is a "handgun." Handguns are in common use, therefore allowing *only* the musket satisfies the condition of "handguns are not banned."

The problem with the often-repeated argument that as long as some handguns are permitted handguns are permitted is that the term "handgun" is a very broad term that includes non comparable firearms.

Further, if the "equivalency of handguns" as a hypothesis is to stand (implying that one is a good as the next and that G3 and G4 Glocks are essentially the same), then the roster should actually be struck down as there is no compelling reason to ban G4 while the equivalent G3 is allowed to stand (in the assumed equivalency G4 is no more dangerous than G3). If the argument is that the LCI, magazine disconnect and microstamping make G4 fundamentally different from G3 from the safety perspective, then the roster should again be stricken down as it bans the very common subclass of handguns to which G4 belongs, but G3 doesn't. In this case the "common use" would apply to subclass of G3 (allegedly safe) and subclass G4 (allegedly unsafe) separately - the "common use" would then have to be read that "handguns in subclass of G4, which are common in all other states, cannot be banned."

The state must decide whether G3 and G4 are the same (cannot ban G4 because it's the same as the permitted G3) or are different (must allow G4 because that particular class is in common use everywhere else). Either way the roster appears unreasonable.

kcbrown
11-06-2013, 12:51 PM
The first amendment is an enumerated constitutional right. (Presumably the Heller majority is aware of this.)

Intermediate scrutiny has been applied to the first amendment. (Presumably the Heller majroity is aware of this too.)

The Heller majority "know[s] of no other enumerated constitutional right whose core protection has been subjected to a freestanding 'interest-balancing' approach" i.e. method of "decid[ing] on a case-by-case basis whether the right is really worth insisting upon."

Ergo, the Heller majority does not consider intermediate scrutiny (or strict scrutiny for that matter) to be "a freestanding 'interest-balancing' approach."


Tell me: what are the operative differences between the "interest balancing" test that Breyer was proposing (and which the Supreme Court rejected) and the various methods of scrutiny that have been employed by the Supreme Court? This question is especially relevant as regards strict scrutiny.




I get that you think all forms of scrutiny are balancing tests, methods of deciding on a case by case basis, etc.Either scrutiny methods are used to decide on a case by case basis whether the right is really worth insisting upon, or they're not. You claim they're not. On what basis do you make this claim other than the inane assertion that SCOTUS would never contradict itself?

elSquid
11-06-2013, 2:21 PM
Further, if the "equivalency of handguns" as a hypothesis is to stand (implying that one is a good as the next and that G3 and G4 Glocks are essentially the same), then the roster should actually be struck down as there is no compelling reason to ban G4 while the equivalent G3 is allowed to stand (in the assumed equivalency G4 is no more dangerous than G3). If the argument is that the LCI, magazine disconnect and microstamping make G4 fundamentally different from G3 from the safety perspective, then the roster should again be stricken down as it bans the very common subclass of handguns to which G4 belongs, but G3 doesn't. In this case the "common use" would apply to subclass of G3 (allegedly safe) and subclass G4 (allegedly unsafe) separately - the "common use" would then have to be read that "handguns in subclass of G4, which are common in all other states, cannot be banned."

The state must decide whether G3 and G4 are the same (cannot ban G4 because it's the same as the permitted G3) or are different (must allow G4 because that particular class is in common use everywhere else). Either way the roster appears unreasonable.

I'll play Devil's Advocate; read the following with that in mind. Also, I'm going to be terse.

- the state has the power to regulate consumer goods, wrt safety.

- firearms are consumer goods.

- the state has determined that a mag disconnect and an LCI are desireable safety features for semi auto handguns

- the state has not invented these features; they arose spontaneously in pistol designs over the last 100 years

- the state has decided that all new handgun models to be sold in CA must have these features.

- CA is a large market, 30+ million persons, so manufactures will create product specifically for this market ( example, current SIG CA models, certain CA designed rifles equipped w/BB, etc - are all currently available for purchase )

- the state realizes that such changes will not occur overnight, so pistols that are already on the roster are allowed to remain. The expectation is that, over time, manufacturers will replace these firearms with versions that incorporate the new safety requirements. This balances the need that citizens have today for defensive pistols, with the state's long term goal of increasing product safety.

I imagine that the state can come up with examples outside of the firearm domain where safety changes have been mandated, showing that firearms are not being singled out for special attention.

: shrug :

-- Michael

Californio
11-06-2013, 2:40 PM
That is why the Statist or Collective view is so dangerous because it is insidiously open-ended and will have no end to which it can be applied to control human behavior, in the end it will lead to tyranny, human history teaches this simple fact.


I'll play Devil's Advocate; read the following with that in mind. Also, I'm going to be terse.

- the state has the power to regulate consumer goods, wrt safety.

- firearms are consumer goods.

- the state has determined that a mag disconnect and an LCI are desireable safety features for semi auto handguns

- the state has not invented these features; they arose spontaneously in pistol designs over the last 100 years

- the state has decided that all new handgun models to be sold in CA must have these features.

- CA is a large market, 30+ million persons, so manufactures will create product specifically for this market ( example, current SIG CA models, certain CA designed rifles equipped w/BB, etc - are all currently available for purchase )

- the state realizes that such changes will not occur overnight, so pistols that are already on the roster are allowed to remain. The expectation is that, over time, manufacturers will replace these firearms with versions that incorporate the new safety requirements. This balances the need that citizens have today for defensive pistols, with the state's long term goal of increasing product safety.

I imagine that the state can come up with examples outside of the firearm domain where safety changes have been mandated, showing that firearms are not being singled out for special attention.

: shrug :

-- Michael

tabrisnet
11-06-2013, 2:44 PM
Scrutiny is not, strictly speaking, about choosing on a case by case basis, it is about choosing on a law by law basis, and a generic act basis. That is, for the most part scrutiny is a facial challenge, not merely as applied. As applied is 'on a case by case basis'.

First, what rights, if any, does the law limit.
Second, what aspects of these rights are limited, and how close to the core of the right are they.
How this second part becomes a particular level of scrutiny is so far a black box... That and who/what determines 'how core to the right' the aspect of the right that is limited is another point of debate. But they are the important parts.

elSquid
11-06-2013, 3:25 PM
That is why the Statist or Collective view is so dangerous because it is insidiously open-ended and will have no end to which it can be applied to control human behavior, in the end it will lead to tyranny, human history teaches this simple fact.

Personally, I think a more fruitful approach would be to attack the 'safety' features - LCI/mag disconnect - and their efficacy.

Example: we've all heard of scenarios where a young child gains access to a striker fired gun and unfortunantly shoots themself or another.

Responsible owners would not leave such a firearm in said condition unattended in the first place, so these safety features are not really applicable there.

Irresponsible owners are unlikely to safe the firearm; the magazine will be in place and the firearm loaded.

Which of these firearms are 'more' dangerous in the scenario given:

a) a striker-fired polymer gun with no external safety that has an LCI and a mag disconnect?

b) a 1911 without LCI/disco but with a grip safety that must be depressed and a manual safety that must be flicked off to fire?

c) an H&K P7 with a squeeze cocker that requires a solid grip to overcome?

d) a DA/SA pistol that requires a heavy DA initial trigger pull?

Of the four, I think most would agree that the 'state-approved' option is the one that is most easily fired by a child.

That's a logical argument. Can it be made into a legal one?

-- Michael

kcbrown
11-06-2013, 3:32 PM
Scrutiny is not, strictly speaking, about choosing on a case by case basis, it is about choosing on a law by law basis, and a generic act basis. That is, for the most part scrutiny is a facial challenge, not merely as applied. As applied is 'on a case by case basis'.


But the application of the "interest balancing" test in Breyer's dissent wasn't what SCOTUS rejected, it was the test itself that they rejected.

OleCuss
11-06-2013, 3:43 PM
kcbrown,

You are arguing with a Statist. Just like the Congress believes the Commerce Clause gives them Carte Blanche, Fabio, he/she, believes that Government can and does infringe on any Right they choose, whenever they choose, the old 1st Amendment game.

The bottom line with the Fabio mentality there really is no reason for a Bill of Rights or Constitution because all Rights and Power emanates from the Government/State and can be curtailed when the mood strikes.
.
.
.

Not sure I'd really agree here.

FGG seems to have a very good understanding of how the courts (and, I suppose, lawyers) view the issues and cases under discussion.

He tells us how the courts will view such things and he is typically pretty correct.

Knowing and explaining how the courts will view a situation (and even thinking that it is logical based on the law) is not necessarily the same thing as believing that this is how things ought to be.

IVC
11-06-2013, 3:49 PM
- the state has decided that all new handgun models to be sold in CA must have these features.

It's this decision that is arbitrary and capricious.

Consider Glocks. Either G3 is more dangerous than G4 and should NOT be grandfathered in, or G3 and G4 are about the same and G4 should NOT be banned.

In fact, the state should have not only banned transfer of G3-s, but the possession as well. That's the only consistent position if G3-s are truly unsafe. This would be by far the preferred solution since they would have an extremely high burden to clear to justify a confiscation.

If the extra features are not really about safety, but are about a soft policy where the state only believes it would be "a good idea", it can pass the Rational Basis test and not much more. This is insufficient for a protected right, particularly when the extra features are not common in modern firearms and are indeed used to limit supply in CA. Not to mention that microstamping doesn't exist, so requiring this particular feature might not even pass the Rational Basis.

FABIO GETS GOOSED!!!
11-06-2013, 4:04 PM
You claim they're not.

No, I'm not making that claim.

I've already quoted the text (http://www.calguns.net/calgunforum/showpost.php?p=12700261&postcount=47) where the Heller majority identifies the particular aspect of the dissent's "judge-empowering 'interest balancing inquiry'" that differentiates that inquiry from the traditionally expressed levels of scrutiny.

IVC
11-06-2013, 4:11 PM
FGG seems to have a very good understanding of how the courts (and, I suppose, lawyers) view the issues and cases under discussion.

FGG is indeed very proficient with the legal procedure to the point that he/she appears much more like a judge than an attorney. However, this same attention to detail *within* the current framework precludes FGG from accounting for paradigm shifting effects that come from the *outside* of the framework.

If it were sufficient to understand the system and analyze each case to come to an agreement as it would be in, e.g., science, we would never have circuit splits or dissenting opinions. Since we know that dissenting judges are not just "stupid" for not seeing the cases the "right way," there is more at work than the code of civil procedure.

So, I would pay a lot of attention to FGG's analysis of cases up to about the level of Court of Appeals, but when it comes to CA/SCOTUS I would also want to hear competing analyses.

tabrisnet
11-06-2013, 4:19 PM
But the application of the "interest balancing" test in Breyer's dissent wasn't what SCOTUS rejected, it was the test itself that they rejected.

Are you sure we're disagreeing here ? An "interest balancing test" is not a question of scrutiny. There seems to be some confusion about that... Scrutiny applies to law. Other tests may apply to cases, but scrutiny does not. An "interest balancing test" sounds like something that may apply on a case by case basis, which was in fact rejected by the court.

kcbrown
11-06-2013, 4:45 PM
No, I'm not making that claim.

I've already quoted the text (http://www.calguns.net/calgunforum/showpost.php?p=12700261&postcount=47) where the Heller majority identifies the particular aspect of the dissent's "judge-empowering 'interest balancing inquiry'" that differentiates that inquiry from the traditionally expressed levels of scrutiny.

Here's the text you quoted:


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.”


But the text of Breyer's that they cite is this:


Indeed, adoption of a true strict-scrutiny standard for evaluating gun regulations would be impossible. That is because almost every gun-control regulation will seek to advance (as the one here does) a "primary concern of every government—a concern for the safety and indeed the lives of its citizens." United States v. Salerno, 481 U.S. 739, 755, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987) (http://scholar.google.com/scholar_case?case=5741581181224640770&q=district+of+columbia+v+heller&hl=en&as_sdt=2006). The Court has deemed that interest, as well as "the Government's general interest in preventing crime," to be "compelling," see id., at 750, 754, 107 S.Ct. 2095, and the Court has in a wide variety of constitutional contexts found such public-safety concerns sufficiently forceful to justify restrictions on individual liberties, see e.g., Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) (per curiam) (http://scholar.google.com/scholar_case?case=15538842772335942956&q=district+of+columbia+v+heller&hl=en&as_sdt=2006) (First 2852*2852 Amendment free speech rights); Sherbert v. Verner, 374 U.S. 398, 403, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) (http://scholar.google.com/scholar_case?case=17526177081953259048&q=district+of+columbia+v+heller&hl=en&as_sdt=2006) (First Amendment religious rights); Brigham City v. Stuart, 547 U.S. 398, 403-404, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) (http://scholar.google.com/scholar_case?case=6234529070422029398&q=district+of+columbia+v+heller&hl=en&as_sdt=2006) (Fourth Amendment protection of the home); New York v. Quarles, 467 U.S. 649, 655, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984) (http://scholar.google.com/scholar_case?case=13717772316457971707&q=district+of+columbia+v+heller&hl=en&as_sdt=2006) (Fifth Amendment rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (http://scholar.google.com/scholar_case?case=6386252699535531764&q=district+of+columbia+v+heller&hl=en&as_sdt=2006)); Salerno, supra, at 755 (http://scholar.google.com/scholar_case?case=5741581181224640770&q=district+of+columbia+v+heller&hl=en&as_sdt=2006) (Eighth Amendment bail rights). Thus, any attempt in theory to apply strict scrutiny to gun regulations will in practice turn into an interest-balancing inquiry, with the interests protected by the Second Amendment on one side and the governmental public-safety concerns on the other, the only question being whether the regulation at issue impermissibly burdens the former in the course of advancing the latter.

I would simply adopt such an interest-balancing inquiry explicitly.


The Supreme Court does not object to Breyer's description of strict scrutiny here. Instead, they object to the adoption of the inquiry he calls out as being the very same inquiry that is used when applying strict scrutiny.

Therefore, by objecting to Breyer's insistence upon using the methods of strict scrutiny, the court is ipso facto objecting to the use of strict scrutiny itself. Because to claim otherwise is to claim that the Supreme Court is objecting to the fact that the interest balancing inquiry isn't being called one of the "traditionally expressed levels", that they object merely to the fact that Breyer is divorcing what scrutiny does from what it's called.


There are only three ways you can now go here, and that is either to admit that the Supreme Court contradicted itself within its own decision, or to admit that the Supreme Court means to reject all forms of testing (which include the traditional methods of scrutiny) that are used to "decide, on a case by case basis, whether the right is really worth insisting upon", or to admit that the Supreme Court doesn't mean what it says. The fact that the Court has reversed itself in the past both in terms of entire decisions as well as bits and pieces thereof makes the second option possible.

kcbrown
11-06-2013, 4:50 PM
Are you sure we're disagreeing here ? An "interest balancing test" is not a question of scrutiny. There seems to be some confusion about that... Scrutiny applies to law.


But interest balancing is merely a means of balancing one interest against another. The interest of government is one, whilst the interest of the citizenry in exercising a right is another. Scrutiny pits these two against each other in the context of deciding whether or not the law should stand.


Other tests may apply to cases, but scrutiny does not. An "interest balancing test" sounds like something that may apply on a case by case basis, which was in fact rejected by the court.But the inquiry Breyer would perform is that of whether the law should stand in the face of its imposition upon the right. That is a question of application to the law itself.

FABIO GETS GOOSED!!!
11-06-2013, 4:59 PM
The Supreme Court does not object to Breyer's description of strict scrutiny here.

The majority absolutely does object to that description, in the same quote I linked to...where they directly quote Breyer.

elSquid
11-06-2013, 5:02 PM
In fact, the state should have not only banned transfer of G3-s, but the possession as well. That's the only consistent position if G3-s are truly unsafe. This would be by far the preferred solution since they would have an extremely high burden to clear to justify a confiscation.

Are there any examples of a ban and confiscation for a non-Constitutionally protected consumer good on the basis of safety here in the PRC? Does that ever happen? What about 3-wheeled ATVs...what happened there?

A somewhat goofy example to consider is the foie gras/force feeding ban. Banned because of cruelty to animals, but with a grace period to allow the market to adapt. It was 'still cruel' after the law was passed, but force feeding was still allowed for a period of time.

What about CA emissions laws? Were there any instances of cars being banned and confiscated due to the laws, or did the state proceed with the assumption that, over time, new cars that satisfied more stringent requirements would displace older, polluting cars already in existence?

Does the state generally realize that change doesn't occur overnight?

If the extra features are not really about safety, but are about a soft policy where the state only believes it would be "a good idea", it can pass the Rational Basis test and not much more. This is insufficient for a protected right, particularly when the extra features are not common in modern firearms and are indeed used to limit supply in CA.

The largest handgun manufacturers in the country, S&W and Ruger, offer a variety of pistols in different calibers and sizes that have a mag disconnect and an LCI. So clearly the manufacturers can and have responded to the safety requirements. Consumers can buy any of these new models or any of the grandfathered ones on the roster.

Can safety requirements satisfy intermediate scrutiny? Don't know, as like most people on the forum I don't really have a true understanding of how intermediate has been applied across the body of law. The more I learn about conlaw, the greater the appreciation that I have that the world doesn't work in the manner that I previously thought it did. :)

Not to mention that microstamping doesn't exist, so requiring this particular feature might not even pass the Rational Basis.

Hard to say, different kettle of fish.

-- Michael

kcbrown
11-06-2013, 5:40 PM
The majority absolutely does object to that description, in the same quote I linked to...where they directly quote Breyer.

What they directly quoted was not Breyer's description of strict scrutiny. Breyer's description is the bit of text I bolded, and that does not appear to be quoted by the majority in any part of the decision.

I see nothing in the majority's decision that shows that they object to that description, only that they object to the application of what is described.

kcbrown
11-06-2013, 5:48 PM
The majority absolutely does object to that description, in the same quote I linked to...where they directly quote Breyer.

Let's suppose they do object to that description (i.e., the bit of Breyer's dissent that I bolded).

In what way is that description incorrect?

hardlyworking
11-06-2013, 8:10 PM
I'll play Devil's Advocate; read the following with that in mind. Also, I'm going to be terse.

- the state has the power to regulate consumer goods, wrt safety.

- firearms are consumer goods.

- the state has determined that a mag disconnect and an LCI are desireable safety features for semi auto handguns

- the state has not invented these features; they arose spontaneously in pistol designs over the last 100 years

- the state has decided that all new handgun models to be sold in CA must have these features.

- CA is a large market, 30+ million persons, so manufactures will create product specifically for this market ( example, current SIG CA models, certain CA designed rifles equipped w/BB, etc - are all currently available for purchase )

- the state realizes that such changes will not occur overnight, so pistols that are already on the roster are allowed to remain. The expectation is that, over time, manufacturers will replace these firearms with versions that incorporate the new safety requirements. This balances the need that citizens have today for defensive pistols, with the state's long term goal of increasing product safety.

I imagine that the state can come up with examples outside of the firearm domain where safety changes have been mandated, showing that firearms are not being singled out for special attention.

: shrug :

-- Michael

Still catching up with the thread but this was nicely done elSquid. A fine devil's advocating. Hopefully we can counter this!

hardlyworking
11-06-2013, 8:16 PM
The more I learn about conlaw, the greater the appreciation that I have that the world doesn't work in the manner that I previously thought it did. :)
Damn, ain't that the truth :oji:

hardlyworking
11-06-2013, 8:43 PM
Rather, the burden is in depriving them of access to newer pistol models in common use by “law-abiding citizens for lawful purposes” in other states, Heller, 554 U.S. at 625, 627, based on nothing more than the government’s opinion as to the importance of uncommon features that will still be absent from a host of grandfathered pistols sold in California in any event. Given that context, the burden is certainly substantial when compared to a minimal government interest inconsistently pursued.
That is a damn convincing bit of argument there. Please work!

Sgt Raven
11-06-2013, 11:29 PM
Are there any examples of a ban and confiscation for a non-Constitutionally protected consumer good on the basis of safety here in the PRC? Does that ever happen? What about 3-wheeled ATVs...what happened there?

A somewhat goofy example to consider is the foie gras/force feeding ban. Banned because of cruelty to animals, but with a grace period to allow the market to adapt. It was 'still cruel' after the law was passed, but force feeding was still allowed for a period of time.

What about CA emissions laws? Were there any instances of cars being banned and confiscated due to the laws, or did the state proceed with the assumption that, over time, new cars that satisfied more stringent requirements would displace older, polluting cars already in existence?

Does the state generally realize that change doesn't occur overnight?



The largest handgun manufacturers in the country, S&W and Ruger, offer a variety of pistols in different calibers and sizes that have a mag disconnect and an LCI. So clearly the manufacturers can and have responded to the safety requirements. Consumers can buy any of these new models or any of the grandfathered ones on the roster.

Can safety requirements satisfy intermediate scrutiny? Don't know, as like most people on the forum I don't really have a true understanding of how intermediate has been applied across the body of law. The more I learn about conlaw, the greater the appreciation that I have that the world doesn't work in the manner that I previously thought it did. :)



Hard to say, different kettle of fish.

-- Michael
Well Construction and Farm Equipment plus OTR Big Rig Trucks CARB has forced Companies to update their older equipment, either with new smog controls or newer equipment....

Californio
11-07-2013, 7:45 AM
Because Fabio he/she is a Statist. Look, Law is not logical it is Sociological. If it were logical 2+2 would always equal 4 but it doesn't. It is not science.

Humans have a propensity to Rationalize their Behavior and their Laws reflect this all through History.

Example : Slavery, Suspension of Habeas Corpus, Internment of Japanese Americans, Curfews for German Americans, Homosexuality and Gitmo quickly come to mind.

The current Philosophy of Law is a statist position, that is how the law is being Sociologically manipulated.

I do not agree with the Statist position but I understand it.

If Fabio's claim to Fame is to analyze the Court and prognosticate what Statist manipulation they will use to get their way, so be it - nothing really novel.

The genius is to try and find a way around the Statist Mindset.

I watch two shows "Life below Zero" and "Yukon Men", you see AR-15's and standard capacity magazines, as prized arms, as well as other firearms. Nice to know that an AR-15 will function below zero. Anyway these people live in a Natural Environment and are just another member of the food chain. Their Society revolves around hunting and gathering so they would be adverse to the Statist Agenda and the laws they champion. They need protection from the Bear and Wolf.

Now in the Urban Jungle we have Bear and Wolf in the form of Hardened Gang Members and Hard Drug Users. The City Sissy Statists like to believe that their Police is all we need for protection from the bear and wolf and we don't have need to protect ourselves. Well unless they successfully develop Pre-Crime, the Police are an after the fact response force to a life threatening event.

Their Police are not burdened by arbitrary controls on what tools can be used as a form of defense against the bear and wolf and neither should we have such restrictions.

It is true the mentally ill are the threat, in a Natural Environment the mentally ill simply perish as food to the bear and wolf. In the City they commit henious crime and suicide by their own hand or police.

So the Statist Agenda is to remove all firearms from society, to prevent the heinous crime of the mentally ill but leave us vunerable to the bear and wolf.

I would rather the Statist build a mechanism for the treatment of the mentally ill, which they really seem to avoid like the plague and leave me Free to deal with the Bear and Wolf, if and when they threaten my family.










Not sure I'd really agree here.

FGG seems to have a very good understanding of how the courts (and, I suppose, lawyers) view the issues and cases under discussion.

He tells us how the courts will view such things and he is typically pretty correct.

Knowing and explaining how the courts will view a situation (and even thinking that it is logical based on the law) is not necessarily the same thing as believing that this is how things ought to be.

tabrisnet
11-07-2013, 8:10 AM
Are you sure we're disagreeing here ? An "interest balancing test" is not a question of scrutiny. There seems to be some confusion about that... Scrutiny applies to law.

But interest balancing is merely a means of balancing one interest against another. The interest of government is one, whilst the interest of the citizenry in exercising a right is another. Scrutiny pits these two against each other in the context of deciding whether or not the law should stand.


But the inquiry Breyer would perform is that of whether the law should stand in the face of its imposition upon the right. That is a question of application to the law itself.

First, yes, he is asking that. But he also has rejected the [free standing] interest balancing test.

My read of scrutiny is that there aren't 3 tests. there is 1. The level of scrutiny is the _result_ of the test. Almost any law passes rational basis, unless a protected class is covered. Intermediate scrutiny is merely a heightened rational basis. Potentially a distinction without a difference.
Almost no law passes strict scrutiny.


rational basis - does the government have an interest, and do they have a reason for passing this law. Since "Because I think it will make children safer" is a reason, there's not much suport needed on this basis. But it is the reason for various "statements of fact" that go into bills introductions
intermediate scrutiny - do they have reason, and does it infringe upon the right to a significant degree.
strict scrutiny - does it infringe on the right? Well, OFF WITH THE LAW'S HEAD!

FABIO GETS GOOSED!!!
11-07-2013, 8:38 AM
Breyer's description is the bit of text I bolded, and that does not appear to be quoted by the majority in any part of the decision.

What the dissent says in the text bolded by you is another way of saying the same thing he says in the text quoted by the majority. Both describe the dissent's "'proportionality' approach" and it is the dissent who labels that approach an "interest-balancing inquiry." The dissent puts the proportionality approach in a nutshell here:

The ultimate question is whether the statute imposes burdens that, when viewed in light of the statute’s legitimate objectives, are disproportionate.

The majority doesn't have to cite or quote every iteration of this "interest-balancing inquiry" to preserve its objection to all of them.

FABIO GETS GOOSED!!!
11-07-2013, 8:40 AM
In what way is that description incorrect?

"Incorrect" in the sense of "your answers to the math homework are incorrect according to the teacher's guide which has the correct answers"?

REH
11-07-2013, 9:10 AM
I'll play Devil's Advocate; read the following with that in mind. Also, I'm going to be terse.

- the state has the power to regulate consumer goods, wrt safety.

- firearms are consumer goods.

- the state has determined that a mag disconnect and an LCI are desireable safety features for semi auto handguns

- the state has not invented these features; they arose spontaneously in pistol designs over the last 100 years

- the state has decided that all new handgun models to be sold in CA must have these features.

- CA is a large market, 30+ million persons, so manufactures will create product specifically for this market ( example, current SIG CA models, certain CA designed rifles equipped w/BB, etc - are all currently available for purchase )

- the state realizes that such changes will not occur overnight, so pistols that are already on the roster are allowed to remain. The expectation is that, over time, manufacturers will replace these firearms with versions that incorporate the new safety requirements. This balances the need that citizens have today for defensive pistols, with the state's long term goal of increasing product safety.

I imagine that the state can come up with examples outside of the firearm domain where safety changes have been mandated, showing that firearms are not being singled out for special attention.

: shrug :

-- Michael

You forgot to address two items…………

If a handgun is not on the “safe roster”, it is considered unsafe and cannot be sold retail in California. This unsafe gun can be sold to LEO and used in their course of duty. If it is not safe for one group, then is it not safe for all, groups, correct?

If this roster is addressing safety, then how will micro stamping make the handgun safer?

OleCuss
11-07-2013, 9:45 AM
Because Fabio he/she is a Statist. Look, Law is not logical it is Sociological. If it were logical 2+2 would always equal 4 but it doesn't. It is not science.

Humans have a propensity to Rationalize their Behavior and their Laws reflect this all through History.

Example : Slavery, Suspension of Habeas Corpus, Internment of Japanese Americans, Curfews for German Americans, Homosexuality and Gitmo quickly come to mind.

The current Philosophy of Law is a statist position, that is how the law is being Sociologically manipulated.

I do not agree with the Statist position but I understand it.

If Fabio's claim to Fame is to analyze the Court and prognosticate what Statist manipulation they will use to get their way, so be it - nothing really novel.

The genius is to try and find a way around the Statist Mindset.

I watch two shows "Life below Zero" and "Yukon Men", you see AR-15's and standard capacity magazines, as prized arms, as well as other firearms. Nice to know that an AR-15 will function below zero. Anyway these people live in a Natural Environment and are just another member of the food chain. Their Society revolves around hunting and gathering so they would be adverse to the Statist Agenda and the laws they champion. They need protection from the Bear and Wolf.

Now in the Urban Jungle we have Bear and Wolf in the form of Hardened Gang Members and Hard Drug Users. The City Sissy Statists like to believe that their Police is all we need for protection from the bear and wolf and we don't have need to protect ourselves. Well unless they successfully develop Pre-Crime, the Police are an after the fact response force to a life threatening event.

Their Police are not burdened by arbitrary controls on what tools can be used as a form of defense against the bear and wolf and neither should we have such restrictions.

It is true the mentally ill are the threat, in a Natural Environment the mentally ill simply perish as food to the bear and wolf. In the City they commit henious crime and suicide by their own hand or police.

So the Statist Agenda is to remove all firearms from society, to prevent the heinous crime of the mentally ill but leave us vunerable to the bear and wolf.

I would rather the Statist build a mechanism for the treatment of the mentally ill, which they really seem to avoid like the plague and leave me Free to deal with the Bear and Wolf, if and when they threaten my family.

Wow!!! Thank you for all that.

But I'm still not at all convinced that FGG is, himself, a statist.

I know there are questions out there, but I happen to think that FGG wants to advance liberty. He sometimes sounds sorta like he doesn't, but that is usually in the context of conveying to us bad news about how the courts are going to view things.

It is entirely possible I'm more pro-RKBA than FGG is, but I'd not count on it.

Net effect is that I believe that FGG is on the side of liberty. I think he finds it amusing to tweak a bunch of us, but if you really pay attention to what he and NIR say - you learn stuff.

sholling
11-07-2013, 9:56 AM
You forgot to address two items…………

If a handgun is not on the “safe roster”, it is considered unsafe and cannot be sold retail in California. This unsafe gun can be sold to LEO and used in their course of duty. If it is not safe for one group, then is it not safe for all, groups, correct?

I believe you're asking about a 14th Amendment equal protection challenge. As Orwell said "All animals are equal, but some animals are more equal than others", and in this country the ruling class and their minions are generally considered more equal than we in the peasant class and thus not subject to the same rules. That Orwellian "All animals are equal, but some animals are more equal than others" description of "equal" seems to satisfy the requirements of the equal protection clause in the eyes of most judges and nearly all legislators (who along with LEOs, benefit from their "more equal" class status).

curtisfong
11-07-2013, 10:00 AM
For all his faults, I don't believe FGG is a statist. He almost always constrains his comments to things as they are, not as they should be.

sholling
11-07-2013, 10:03 AM
Wow!!! Thank you for all that.

But I'm still not at all convinced that FGG is, himself, a statist.

I know there are questions out there, but I happen to think that FGG wants to advance liberty. He sometimes sounds sorta like he doesn't, but that is usually in the context of conveying to us bad news about how the courts are going to view things.

It is entirely possible I'm more pro-RKBA than FGG is, but I'd not count on it.

Net effect is that I believe that FGG is on the side of liberty. I think he finds it amusing to tweak a bunch of us, but if you really pay attention to what he and NIR say - you learn stuff.
I tend to agree. FGG's predictions can be frustrating and even infuriating reading but his predictions seem to come true more often than not. I sometimes wonder what a pro 2nd Amendment case brought by FGG would look like. I suspect that it would be extremely well thought out, that every contingency and argument would be addressed, that every "i" would be dotted and every "t" would be crossed, and that there would be little wiggle room left for either the defense or the judge. I'm not sure he'd take such a case but it would be interesting to observe.

curtisfong
11-07-2013, 10:47 AM
I sometimes wonder what a pro 2nd Amendment case brought by FGG would look like. I suspect that it would be extremely well thought out, that every contingency and argument would be addressed, that every "i" would be dotted and every "t" would be crossed, and that there would be little wiggle room left for either the defense or the judge. I'm not sure he'd take such a case but it would be interesting to observe.

Ditto. But honestly, I don't think there is any 2A case he would bring, since I think he wouldn't knowingly bring a case he couldn't argue flawlessly.

Californio
11-07-2013, 11:18 AM
Learn Stuff?

What briefs has FGG or NIR filed on our behalf?

What cases have they consulted on?

Has anything by either one of them enriched us in the courtroom?

Liberty, then support it, if you have the training to do so.


The Carnival Amusement of the Internet does not win cases or provide information to win cases.

Yes, playing with us in the sand box.

In reality nothing they say means anything.



Law is like a flag it waves in the wind, going left and right depending on the Social Stomach for it.

Once in a great while we are shocked by the outcome.

https://en.wikipedia.org/wiki/United_States_v._The_Amistad

Against all odds the correct decision was reached.

Can you imagine a body of Law that supported the owning of Human Beings.

Nothing rational or logical about that except Human Greed and Depravity.



Between 1983 and 2006 I bought one firearm and thought all was rational and sane in California.

In 2006 I desired to purchase a S&W Model 29-2 in 6.5", made in the 1970's, and sadly found out that unless I could find someone in California to sell me theirs PPT, I was SOL.

Because this revolver is not on an Arbitrary Bureaucratic List?

I was prohibited from importing one into California. A six shot revolver that weights 45oz+-. Highly concealable and very dangerous, if it drops on your foot.

Really, laws like this one need to fall.

So if FGG is for Liberty and against bad law, I expect an Amicus Brief.

Lots of Laughs














Wow!!! Thank you for all that.

But I'm still not at all convinced that FGG is, himself, a statist.

I know there are questions out there, but I happen to think that FGG wants to advance liberty. He sometimes sounds sorta like he doesn't, but that is usually in the context of conveying to us bad news about how the courts are going to view things.

It is entirely possible I'm more pro-RKBA than FGG is, but I'd not count on it.

Net effect is that I believe that FGG is on the side of liberty. I think he finds it amusing to tweak a bunch of us, but if you really pay attention to what he and NIR say - you learn stuff.

SC_SD
11-07-2013, 11:26 AM
Really, laws like this one need to fall.

FIFY.

If you have a serious point, how can anyone address it with 500 non sequiturs coming in from every direction?

So if FGGXYZ calguns poster is for Liberty and against bad law, I expect an Amicus Brief.

"LOL", likewise

OleCuss
11-07-2013, 11:36 AM
You have to understand, FGG appears to have a life and work outside of filing the kinds of strategic RKBA cases we would like to see. I don't know exactly what that life and work consist of, but he has stated previously (in somewhat general terms) why he is not going to be doing things like consulting for CGF. FGG seems to cherish his limited anonymity and I think that should be respected.

I also think that a little vagueness in FGG's opinions on the merits of the basic beliefs about the RKBA is also wise for a variety of reasons. Why I think so is a bit complex and if asked why I think that, I'm going to flat out refuse to even try to explain it.

NIR? That is a somewhat different case. He (I assume it's a "he") seems very competent and it would not surprise me at all to discover that he is doing things in firearms litigation which you and I either don't know about - or don't know that it is NIR who is doing it. Don't underestimate NIR - seems to me to be very competent and capable of flying well under the radar in very effective ways.

NIR and FGG may both be very competent, but I think they may vary dramatically in what they can, should, or would do in terms of firearms litigation.

And do understand that I do not know the real name of either of them or exactly what they do.

kcbrown
11-07-2013, 11:57 AM
What the dissent says in the text bolded by you is another way of saying the same thing he says in the text quoted by the majority. Both describe the dissent's "'proportionality' approach" and it is the dissent who labels that approach an "interest-balancing inquiry."


Is it the same thing he says in the text quoted by the majority? How?

Where in the bolded text is there any reference whatsoever to "proportionality"?

I'll quote the relevant bit again for reference:


Thus, any attempt in theory to apply strict scrutiny to gun regulations will in practice turn into an interest-balancing inquiry, with the interests protected by the Second Amendment on one side and the governmental public-safety concerns on the other, the only question being whether the regulation at issue impermissibly burdens the former in the course of advancing the latter.

So again I must ask: in what way is the above an incorrect description of strict scrutiny, particularly as applied to gun regulations? It is not enough to assert that the above is the same as the bit that the majority quoted, you have to show that it is. But more than that, you have to show how the above is not the same as strict scrutiny when applied to gun laws.



The majority doesn't have to cite or quote every iteration of this "interest-balancing inquiry" to preserve its objection to all of them.But that's the point here: the iteration in question is called out as being identical to one of the traditional forms that they use. If they object to all of those iterations, then that obviously includes the iterations that are identical to the traditional form(s). And the problem here is that objection to something that is identical to those traditional forms is the same as objecting to those traditional forms.

The only way the iteration I quoted above can be safely objected to is if it is not identical to one of the traditional forms. But the majority does not raise any explicit objection to the characterization of the iteration in question as being identical to a traditional form, nor do I see anywhere that it has provided any means by which one could implicitly object to that characterization.


Breyer's description of strict scrutiny as applied to gun laws appears to be accurate. Absent a substantive argument that it is not (one that relies on more than mere argument by assertion), since the majority objects to the use of the method in that description, the only logical conclusion that one can arrive at is that one of three things must be true:



The Supreme Court is contradicting itself in its own opinion.
The Supreme Court admonishes against the use of scrutiny for, at the very least, 2nd Amendment cases.
The Supreme Court doesn't mean what it says.


Which is it?

kcbrown
11-07-2013, 12:04 PM
"Incorrect" in the sense of "your answers to the math homework are incorrect according to the teacher's guide which has the correct answers"?

No. Incorrect in the sense of not being a match with the actual, real-world application of strict scrutiny to gun regulations and other similar regulations where the state cites public safety as its compelling interest.

tabrisnet
11-07-2013, 12:16 PM
Is it the same thing he says in the text quoted by the majority? How?

Where in the bolded text is there any reference whatsoever to "proportionality"?

I'll quote the relevant bit again for reference:


Thus, any attempt in theory to apply strict scrutiny to gun regulations will in practice turn into an interest-balancing inquiry, with the interests protected by the Second Amendment on one side and the governmental public-safety concerns on the other, the only question being whether the regulation at issue impermissibly burdens the former in the course of advancing the latter.

So again I must ask: in what way is the above an incorrect description of strict scrutiny, particularly as applied to gun regulations? It is not enough to assert that the above is the same as the bit that the majority quoted, you have to show that it is. But more than that, you have to show how the above is not the same as strict scrutiny when applied to gun laws.

The majority doesn't have to cite or quote every iteration of this "interest-balancing inquiry" to preserve its objection to all of them.

But that's the point here: the iteration in question is called out as being identical to one of the traditional forms that they use. If they object to all of those iterations, then that obviously includes the iterations that are identical to the traditional form(s). And the problem here is that objection to something that is identical to those traditional forms is the same as objecting to those traditional forms.

The only way the iteration I quoted above can be safely objected to is if it is not identical to one of the traditional forms. But the majority does not raise any explicit objection to the characterization of the iteration in question as being identical to a traditional form, nor do I see anywhere that it has provided any means by which one could implicitly object to that characterization.


Breyer's description of strict scrutiny as applied to gun laws appears to be accurate. Absent a substantive argument that it is not (one that relies on more than mere argument by assertion), since the majority objects to the use of the method in that description, the only logical conclusion that one can arrive at is that one of three things must be true:



The Supreme Court is contradicting itself in its own opinion.
The Supreme Court admonishes against the use of scrutiny for, at the very least, 2nd Amendment cases.
The Supreme Court doesn't mean what it says.


Which is it?


yipe. I'm so far thinking, from the various readings here, that it's #2. that is, scrutiny as such is not expected to apply to the 2A.

And saying that strict scrutiny requires an interest balancing approach is a very odd reading to me.
B/c interest balancing is aka "court & prosecutorial discretion" and "on a case by case basis". case by case basis is also known as "the law usually is right".

Tincon
11-07-2013, 12:23 PM
The Supreme Court is contradicting itself in its own opinion.
The Supreme Court admonishes against the use of scrutiny for, at the very least, 2nd Amendment cases.
The Supreme Court doesn't mean what it says.



Between you, me, and the internet, I think you are right about this. But as I can't fit any of that into a legal argument, I'm going with SCOTUS has rejected intermediate scrutiny. All the counter arguments (including FGG's) require that you make one of those 3 impossible arguments (well, not logically impossible, but a lawyer would look very silly making them).

FGG, I apologize for not responding to you in-depth, but I've been busy with actual work.

hardlyworking
11-07-2013, 12:48 PM
Wow!!! Thank you for all that.

But I'm still not at all convinced that FGG is, himself, a statist.

I know there are questions out there, but I happen to think that FGG wants to advance liberty. He sometimes sounds sorta like he doesn't, but that is usually in the context of conveying to us bad news about how the courts are going to view things.

It is entirely possible I'm more pro-RKBA than FGG is, but I'd not count on it.

Net effect is that I believe that FGG is on the side of liberty. I think he finds it amusing to tweak a bunch of us, but if you really pay attention to what he and NIR say - you learn stuff.

I agree, and sadly I haven't seen Navy In Rwanda here in a while. As aggravating as FGG can be at times, think of him as your debate coach, warning you of the ways you are about to get hammered in front of a judge who does not share your views on the presumption of liberty and a highly regulated government with the balance of power resting on The People.

elSquid
11-07-2013, 1:10 PM
You forgot to address two items…………

If a handgun is not on the “safe roster”, it is considered unsafe and cannot be sold retail in California. This unsafe gun can be sold to LEO and used in their course of duty. If it is not safe for one group, then is it not safe for all, groups, correct?


<Devil'sAdvocacyContinues>

In order to become a LEO in CA, an individual must pass formalized training standards. These typically involve (x) days of classroom instruction, followed by (y) days of range time and (z)hundred/thousand rounds fired under the supervision of a qualified instructor. Once on the job, officers are expected to re-qualify with their service/backup handgun monthly\quarterly\etc. If an officer fails, they are required to undergo remedial training/other consequences. Depending on department policies and individual assignments, many officers partake in additional firearms training during the course of their careers.

In order to purchase a handgun in the state of CA, a non-LEO person must pass a simple multiple choice exam.

Currently there are no training requirements to be met. Outside a relatively small group of firearms enthusiasts, many handgun owners do not seek additional handgun training. Most handgun owners in this state do not compete in formal handgun competition. In fact, most handgun owners are not enthusiasts and do not regularly practice with their firearm at all; for these folks, a handgun is an appliance no different from a natural gas stove or a water heater.

Bearing that in mind, it is reasonable for the state to set minimum safety standards for handguns. For pistols, these standards include an LCI ( which is intended to help notify untrained users that the firearm has a round chambered ) and a mag disconnect ( which is intended to allow for a simple mechanism for a novice user to 'safe' a pistol: press 'the button', the mag ejects and the gun is 'safe')

Because of a generally greater level of training and competence, LEOs are exempted from the restrictions of the roster. It should be noted that this exemption only applies to active-duty officers; retired officers are excluded.

</Devil'sAdvocacyContinues>


If this roster is addressing safety, then how will micro stamping make the handgun safer?

<Devil'sAdvocacyContinues>
Microstamping isn't about making safer handguns.
</Devil'sAdvocacyContinues>

-- Michael

REH
11-07-2013, 1:12 PM
I believe you're asking about a 14th Amendment equal protection challenge. As Orwell said "All animals are equal, but some animals are more equal than others", and in this country the ruling class and their minions are generally considered more equal than we in the peasant class and thus not subject to the same rules. That Orwellian "All animals are equal, but some animals are more equal than others" description of "equal" seems to satisfy the requirements of the equal protection clause in the eyes of most judges and nearly all legislators (who along with LEOs, benefit from their "more equal" class status).

If the the 14th is not considered applicable by the ruling class, what about the position that micro stamping to enhance the safety of a firearm? The micro stamping at minimum should be tossed out by the court

FABIO GETS GOOSED!!!
11-07-2013, 1:15 PM
Let me walk you through it.

When the dissent says:

I would simply adopt such an interest-balancing inquiry explicitly.

he's referring to the "interest-balancing inquiry" he has just described in the immediately preceding sentence:

Thus, any attempt in theory to apply strict scrutiny to gun regulations will in practice turn into an interest-balancing inquiry, with the interests protected by the Second Amendment on one side and the governmental public-safety concerns on the other, the only question being whether the regulation at issue impermissibly burdens the former in the course of advancing the latter.

Right? (That's asking for a simple yes or no by the way.)

FABIO GETS GOOSED!!!
11-07-2013, 1:19 PM
FGG, I apologize for not responding to you in-depth, but I've been busy with actual work.

No problem. I looked back in this thread and I could have ratcheted things down a notch, sorry about that haha. Let me finish this exchange with kcbrown before moving on.

IVC
11-07-2013, 1:19 PM
<Devil'sAdvocacyContinues>
Microstamping isn't about making safer handguns.
</Devil'sAdvocacyContinues>

This is not "devil's advocacy" since it's one of the points our side is making.

IVC
11-07-2013, 1:42 PM
Bearing that in mind, it is reasonable for the state to set minimum safety standards for handguns. For pistols, these standards include an LCI ( which is intended to help notify untrained users that the firearm has a round chambered ) and a mag disconnect ( which is intended to allow for a simple mechanism for a novice user to 'safe' a pistol: press 'the button', the mag ejects and the gun is 'safe').

The state easily passes "Rational Basis," no question about that.

It's when it comes to the elevated levels of scrutiny that the state must start proving its assertions and must start considering alternative less restrictive ways of achieving the same goal. At that time the state doesn't control the narrative anymore and their claim of marginal and non-detectable safety improvement is measured against the massive ban on modern semi automatic handguns.

We don't need to prove that the "state is wrong," just that their approach is too restrictive since there are other ways to achieve the same (marginal/non-detectable) improvement in safety.

fizux
11-07-2013, 1:47 PM
<Devil'sAdvocacyContinues>
In order to become a LEO in CA, an individual must pass formalized training standards. These typically involve (x) days of classroom instruction, followed by (y) days of range time and (z)hundred/thousand rounds fired under the supervision of a qualified instructor. Once on the job, officers are expected to re-qualify with their service/backup handgun monthly\quarterly\etc. If an officer fails, they are required to undergo remedial training/other consequences. Depending on department policies and individual assignments, many officers partake in additional firearms training during the course of their careers.

In order to purchase a handgun in the state of CA, a non-LEO person must pass a simple multiple choice exam.

Currently there are no training requirements to be met. ....

Because of a generally greater level of training and competence, LEOs are exempted from the restrictions of the roster. It should be noted that this exemption only applies to active-duty officers; retired officers are excluded.
</Devil'sAdvocacyContinues>

How is a retired LEO (that received the same training and is required to requalify annually according to the same standards as active police officers) less safe than an active officer? Does that interest in public safety outweigh the burden on the 2A right?

How about current active/reserve military members that shoot waaay more than most, if not all, members of SFPD? How about USPSA competitors looking for a new Open Division gun -- are they somehow safer with a LCI?

Me thinks this is akin to creating a list of "certified not-unsafe" pr0n. Submit 3 copies of each video, magazine, etc., to CA DOJ, and pay $200/yr. Oh yeah, and you can only buy/sell pr0n through a CA DOJ approved dealer that updates a statewide registry of pr0n possessors with the specific material acquired by the buyer; delivery only after a background check, DROS fee, and 10-day wait -- we wouldn't want those registered sex offenders to have access to naughty stuff. Its for the children!
... wayddaminit ... didn't SF try prior restraint with pr0n already? Isn't the burden on the gov't to file an action to enjoin with clear and convincing evidence? Cooper v. Mitchell Bros., 454 U.S. 90 (1981) [Applying U.S. Const. standard], followed by Cooper v. Mitchell Bros., 128 Cal.App.3d 937 (1982) [State standards no stricter than U.S. Const.].

fizux
11-07-2013, 2:23 PM
The state easily passes "Rational Basis," no question about that.I disagree. What public purpose is served by distinguishing handgun colors -- black from FDE or OD green? Is it safer to preclude an otherwise "safe" pistol from being sold new with ambidextrous safeties or mag releases?

IVC
11-07-2013, 2:47 PM
Rational Basis is an extremely low standard where legislators are presumed to be acting in a rational manner. A challenger would have all the burden of proof to the contrary.

curtisfong
11-07-2013, 3:48 PM
I disagree. What public purpose is served by distinguishing handgun colors -- black from FDE or OD green? Is it safer to preclude an otherwise "safe" pistol from being sold new with ambidextrous safeties or mag releases?

Your disagreeing with the wrong premise. You are arguing that "rational basis" should mean something other than "the legislature says its rational".

Unfortunately that is not the case. "Rational basis" means the courts defer to legislatures as to what "rational" is (in CA, when it comes to the 2A).

Tincon
11-07-2013, 4:48 PM
Your disagreeing with the wrong premise. You are arguing that "rational basis" should mean something other than "the legislature says its rational".

Unfortunately that is not the case. "Rational basis" means the courts defer to legislatures as to what "rational" is (in CA, when it comes to the 2A).

No, it does not.

fizux
11-07-2013, 4:52 PM
No, it does not.
When it comes to 2A in CA, I think curtisfong is correct. For any other regulation (whether implicating a right or otherwise), rational basis has to be at least vaguely rational.

RipVanWinkle
11-07-2013, 4:58 PM
The Supreme Court is contradicting itself in its own opinion.
The Supreme Court admonishes against the use of scrutiny for, at the very least, 2nd Amendment cases.
The Supreme Court doesn't mean what it says.


Which is it?

Possibly 2.?

I was investigating intermediate scrutiny in 1A cases, per FGG's earlier questions, and I came across a couple of academic articles on that topic focusing on problems with levels of scrutiny. These articles are about 1A issues, but the development of levels of scrutiny is a lot more extensive than in 2A cases. Both articles are critical of the levels of scrutiny approach to legal analysis.

The first article gives a brief history of the subject and contains a small empirical study suggesting that despite a paucity of Supreme Court guidance appellate courts have forged ahead, with less than optimal results. Worth reading if you've a high tolerance for ambiguity and counter factual conditionals! I'm including a link and a quote of the abstract:

http://illinoislawreview.org/wp-content/ilr-content/articles/2007/3/Bhagwat.pdf


THE TEST THAT ATE EVERYTHING:
INTERMEDIATE SCRUTINY IN FIRST
AMENDMENT JURISPRUDENCE
Ashutosh Bhagwat

There is little doubt that over the past thirty years, the most important doctrinal development in the jurisprudence of constitutional rights has been the formulation, and proliferation, of “tiers of scrutiny,” which courts employ to reconcile individual liberties with societal needs. The First Amendment “intermediate scrutiny” tier was born as a product of the merger of several distinct and narrow branches of the Supreme Court’s jurisprudence and, over the years, has attained central importance in the overall structure of free speech law. Indeed, so important and ubiquitous has intermediate scrutiny
become that Justice Scalia has described it as a “default standard,” and it has been the standard of review in countless significant Supreme Court and courts of appeals cases over the past quarter century. Despite this importance, however, scholarly analysis of First Amendment intermediate scrutiny has been curiously muted. This article seeks to fill this major gap in modern First Amendment scholarship by offering a comprehensive assessment of the intermediate scrutiny test. After providing a historical description of the development of intermediate scrutiny since the mid-1980s, this article argues that despite uncertainties that still exist in the Supreme Court, it is clear that a distinct body of intermediate scrutiny free speech jurisprudence has emerged at the appellate level. Then, this article turns to an examination of how the intermediate scrutiny test has in fact been
applied in the courts of appeals since its emergence. Because an examination of the case law reveals that the intermediate scrutiny test does not function very well in practice, this article concludes that the proper doctrinal solution is disaggregation. Disaggregation, the dismantling of the intermediate scrutiny test into its constituent parts, will create a more detailed jurisprudence regarding how appellate courts should balance speech rights and societal interests in different areas of free speech law.

The second article, by Eugene Volokh, is here:

http://www2.law.ucla.edu/volokh/scrutiny.htm

I don't know whether these academic articles have any influence on judges, but it's possible that there's some dissatisfaction with the levels of scrutiny approach among the judiciary, and that's appearing in the Heller decision. Scalia may be just being more inscrutable than FGG. ;)

elSquid
11-07-2013, 5:43 PM
This is not "devil's advocacy" since it's one of the points our side is making.

Currently, federal law mandates that manufacturers inscribe a unique identifier on each firearm produced. Is this requirement unconstitutional?

Microstamping requires that a pistol mark spent casings with an identifier. Is this requirement generally unconstitutional? Or is it unconstitutional because of the current problems with implementation? If the implementation details are 'worked out', will microstamping then pass muster?



It's when it comes to the elevated levels of scrutiny that the state must start proving its assertions and must start considering alternative less restrictive ways of achieving the same goal. At that time the state doesn't control the narrative anymore and their claim of marginal and non-detectable safety improvement is measured against the massive ban on modern semi automatic handguns.


My concern is that the "massive ban" isn't really one. According to a quick check of the roster there are 1244 models on the list, and from my recent expeditions to gunstores it appears that there are many different types of firearms available for sale. As mentioned before, the largest handgun manufacturers in the country - Ruger and S&W - have adapted their designs to meet roster requirements. SIG actually makes handguns specifically targeted for CA (http://www.sigsauer.com/CatalogProductList/state-compliant-products-california-compliant-pistols.aspx).

I wonder how the "massive ban" argument would fare when presented to the courts? A very simple question to ask of any individual - and I'll ask you ;) - is of the handguns currently on the list, how many would you feel would be suitable for personal defense? 10? 20? 100? More? How difficult would it be for you to walk into a gunstore tomorrow and purchase a suitable defensive handgun from the choices available on the roster?

I also wonder if the "massive ban" claim really devolves into "I have a Constitutional right to own whatever handgun I want for personal defense."
How will the courts view that?

An example: Norinco makes pretty neat, good quality 1911 clones. Unfortunately not only are those handguns not on the roster, they can't be legally imported into the country. Does my right to buy a new Norinco not only invalidate state law, but federal trade laws as well? Would the courts ever say "yes"?

-- Michael

elSquid
11-07-2013, 6:02 PM
How is a retired LEO (that received the same training and is required to requalify annually according to the same standards as active police officers) less safe than an active officer? Does that interest in public safety outweigh the burden on the 2A right?

How about current active/reserve military members that shoot waaay more than most, if not all, members of SFPD? How about USPSA competitors looking for a new Open Division gun -- are they somehow safer with a LCI?


Sounds like an argument that is less about the roster, and more about providing a means for Joe-nonActiveLEObutSkilledWithaGun-Average to also get an exemption.

Kind of like the 1in30 dealer sale rule for handguns...



Me thinks this is akin to creating a list of "certified not-unsafe" pr0n. Submit 3 copies of each video, magazine, etc., to CA DOJ, and pay $200/yr. Oh yeah, and you can only buy/sell pr0n through a CA DOJ approved dealer that updates a statewide registry of pr0n possessors with the specific material acquired by the buyer; delivery only after a background check, DROS fee, and 10-day wait -- we wouldn't want those registered sex offenders to have access to naughty stuff. Its for the children!
... wayddaminit ... didn't SF try prior restraint with pr0n already? Isn't the burden on the gov't to file an action to enjoin with clear and convincing evidence? Cooper v. Mitchell Bros., 454 U.S. 90 (1981) [Applying U.S. Const. standard], followed by Cooper v. Mitchell Bros., 128 Cal.App.3d 937 (1982) [State standards no stricter than U.S. Const.].

Serious question: when can I expect all the listed restrictions on firearms to be invalidated based on Cooper v Mitchell Bros?

-- Michael

IVC
11-07-2013, 6:07 PM
Currently, federal law mandates that manufacturers inscribe a unique identifier on each firearm produced. Is this requirement unconstitutional?

No, it doesn't affect the firearm and doesn't add any measurable cost.

Microstamping requires that a pistol mark spent casings with an identifier. Is this requirement generally unconstitutional? Or is it unconstitutional because of the current problems with implementation? If the implementation details are 'worked out', will microstamping then pass muster?

It's unconstitutional because of the "current problems with the implementation," or to be more precise, because such handguns don't exist at all. If it's worked out and it consists of some simple modification of the firing pin and chamber it would most likely be constitutional (and irrelevant). As long as it is not used to limit access to spare parts or to start registration of barrels and firing pins.

My concern is that the "massive ban" isn't really one. According to a quick check of the roster there are 1244 models on the list, and from my recent expeditions to gunstores it appears that there are many different types of firearms available for sale.

This is the same argument as "magazine capacity." How many are "sufficient" before it becomes an infringement?

I wonder how the "massive ban" argument would fare when presented to the courts? A very simple question to ask of any individual - and I'll ask you ;) - is of the handguns currently on the list, how many would you feel would be suitable for personal defense? 10? 20? 100? More? How difficult would it be for you to walk into a gunstore tomorrow and purchase a suitable defensive handgun from the choices available on the roster?

This is the crux of the disagreement. It's not "how many are sufficient" (the most restrictive way to implement a policy), but "why are some handguns that are bona fide suitable for self defense banned" (the least restrictive way to implement a policy.)

The state must justify the ban and the justification for the ban cannot be reversed by requiring us to justify a need. That's the main change post-Heller when 2A was recognized as pertaining to an individual civil right and the simple "rational basis" is no longer sufficient. The burden is now on the state.

curtisfong
11-07-2013, 6:50 PM
No, it does not.

I think Breyer's dissent in Heller perfectly captures the position of CA courts. And until SCOTUS says otherwise with more clarity, this will stand.

kcbrown
11-07-2013, 7:07 PM
Let me walk you through it.

When the dissent says:



he's referring to the "interest-balancing inquiry" he has just described in the immediately preceding sentence:



Right? (That's asking for a simple yes or no by the way.)

Yes, of course. But the problem here is that he has characterized that "interest-balancing inquiry" as being precisely what the application of strict scrutiny to gun regulations simplifies to. You can't simply dismiss the "interest-balancing inquiry" itself. You have to address the claim that strict scrutiny when applied to gun laws becomes the very interest-balancing inquiry that the majority objects to.

If the dissent is correct in that characterization, then by objecting to that "interest-balancing inquiry", the Supreme Court is objecting to the application of strict scrutiny to gun laws.

So everything revolves around whether or not the dissent's characterization of the application of strict scrutiny to gun laws is correct. And that obviously leads to the question of, if the characterization is incorrect, how that characterization is incorrect in such a way that the Supreme Court would object to it but not to strict scrutiny itself.

The problem for the interpretation you seem to subscribe to here (or that, at the very least, you appear to be putting forth) is that there is no indication whatsoever that the dissent's description of strict scrutiny as applied to gun laws is incorrect in any way, much less in a way that makes a difference here. Nothing stated by the majority indicates any shortcomings whatsoever of the characterization in question.

Indeed, the Court's very statements about what they object to do in fact apply to the traditional methods of scrutiny, namely that they are used to "decide, on a case by case basis, whether the right is really worth insisting upon", for they are used to determine neither the scope of the right nor whether the law in question infringes upon the right (for if that were the question being answered, then the issue of "government interest" would not enter into the equation at all), and that leaves only whether or not the right prevails. But insisting upon the right means the right must prevail when it is infringed upon by a law. Since traditional methods of scrutiny are used to decide whether or not to uphold the law anyway, it is in fact a means to decide, on a case by case basis, whether the right is really worth insisting upon. And that is something the Supreme Court explicitly objects to in Heller.


At the end of the day, it is all about this simple fact: any judicial method of analysis which allows some laws to infringe upon the right while disallowing others is, in fact, a method that is used to determine on a case by case basis whether the right is really worth insisting upon. One simply cannot claim that the right is being insisted upon while simultaneously allowing infringement of it! The latter contradicts the former, and that's that.

The Supreme Court could even state up front that traditional scrutiny methods do not conflict with the basis of their objection to dissent's "interest balancing" test, but that alone doesn't make it so. The Supreme Court could state that the moon is made of cheese, but that would not make it any less false. Argument by assertion is just as invalid when used by the Supreme Court as it is when used by anyone else.

fizux
11-07-2013, 7:08 PM
Sounds like an argument that is less about the roster, and more about providing a means for Joe-nonActiveLEObutSkilledWithaGun-Average to also get an exemption.

Kind of like the 1in30 dealer sale rule for handguns...
You don't need an exception to buy a book that isn't on the "not unsafe book" roster. I think the proper analysis is that firearms should be presumptively lawful, and the State should have the burden of showing with clear and convincing evidence that a particular model is "dangerous" {defined in parallel with obscenity; devoid of artistic, historical, or self defense value, etc.}. So a claymore mine is probably going to be an easy win, but it's going to be up to the State to prove that Glock gen4s are "dangerous," not our job to pay Glock to prove to DOJ that the gun meets arbitrary lines drawn in the sand by folks that have never touched a firearm.


Serious question: when can I expect all the listed restrictions on firearms to be invalidated based on Cooper v Mitchell Bros?
We only wish. Bow-chicka-bow-bow.

kcbrown
11-07-2013, 7:38 PM
Between you, me, and the internet, I think you are right about this. But as I can't fit any of that into a legal argument, I'm going with SCOTUS has rejected intermediate scrutiny. All the counter arguments (including FGG's) require that you make one of those 3 impossible arguments (well, not logically impossible, but a lawyer would look very silly making them).


I figured by "impossible arguments", you were referring to arguments that were logically inconsistent. I agree, all of the counterarguments do require insisting upon illogic in that way. Or, at least, nobody has managed to put forth a counterargument that withstands the rigors of a logical analysis.

I won't dismiss out of hand the possibility of such a counterargument, but I see absolutely no flaw in the logic of the argument I've put forth on this, and it is, to my knowledge, comprehensive.

Tincon
11-07-2013, 8:03 PM
I figured by "impossible arguments", you were referring to arguments that were logically inconsistent.

Really, I just meant that saying the Supreme Court screwed up is not a good argument for a lawyer to make.

curtisfong
11-07-2013, 8:09 PM
Really, I just meant that saying the Supreme Court screwed up is not a good argument for a lawyer to make.

Which is exactly why travesties like Cruikshank will NEVER be reversed. The level of arrogance and self proclaimed infallibility displayed by judges (and the court system as a whole) always rankles.

FABIO GETS GOOSED!!!
11-07-2013, 8:12 PM
You're bloviating again. You challenged me twice, here:

I see nothing in the majority's decision that shows that they object to that description, only that they object to the application of what is described.

and here:

Is it the same thing he says in the text quoted by the majority? How?

Where in the bolded text is there any reference whatsoever to "proportionality"?

Then you said I had to show that the "interest balancing inquiry" described in the text you quoted and bolded is the same thing as the "proportionality approach" the majority objects to in the text I quoted:

It is not enough to assert that the above is the same as the bit that the majority quoted, you have to show that it is.

That's what I'm doing so just answer the simple questions that I am asking and stop bloviating.

Thus, any attempt in theory to apply strict scrutiny to gun regulations will in practice turn into an interest-balancing inquiry, with the interests protected by the Second Amendment on one side and the governmental public-safety concerns on the other, the only question being whether the regulation at issue impermissibly burdens the former in the course of advancing the latter.

The dissent is endorsing only one approach (the "interest-balancing inquiry) which asks only one question ("the only question being..."), right?

Yes or no.

kcbrown
11-07-2013, 8:20 PM
The dissent is endorsing only one approach (the "interest-balancing inquiry) which asks only one question ("the only question being..."), right?

Yes or no.

In the context of gun laws, yes, that is the approach being endorsed by the dissent.

Tincon
11-07-2013, 8:25 PM
In the context of gun laws, yes, that is the approach being endorsed by the dissent.

I'd have to disagree. Every level of scrutiny asks more than one question.

The answer must be that the question of whether "in formulating its judgments, Congress has drawn reasonable inferences based on substantial evidence" is part of the intermediate scrutiny ("interest-balancing inquiry") standard that SCOTUS has rejected.

Sorry to interject.

FABIO GETS GOOSED!!!
11-07-2013, 8:27 PM
In the context of gun laws, yes, that is the approach being endorsed by the dissent.

I'm going to ask it again, in Heller (and "in the context of gun laws" if it makes you feel better to include that) the dissent endorses one and only one approach (the interest balancing approach), that asks one and only one question ("the only question being...), right?

kcbrown
11-07-2013, 8:33 PM
I'm going to ask it again, in Heller (and "in the context of gun laws" if it makes you feel better to include that) the dissent endorses one and only one approach (the interest balancing approach), that asks one and only one question ("the only question being...), right?

Yes.

FABIO GETS GOOSED!!!
11-07-2013, 8:35 PM
The answer must be that the question of whether "in formulating its judgments, Congress has drawn reasonable inferences based on substantial evidence" is part of the intermediate scrutiny ("interest-balancing inquiry") standard that SCOTUS has rejected.

This is your "[Hmmm, which standard of scrutiny do those case apply?]" right? Is this a good time to take a look at those cases in the passage you quoted right before "[Hmmm..." which you claim apply "intermediate scrutiny"?

FABIO GETS GOOSED!!!
11-07-2013, 8:37 PM
Yes.

Not only does the Heller dissent endorse the "interest-balancing inquiry," in the dissenting opinion he applies it to the DC laws in question, right?

kcbrown
11-07-2013, 8:42 PM
Not only does the Heller dissent endorse the "interest-balancing inquiry," in the dissenting opinion he applies it to the DC laws in question, right?

I presume so, seeing how it seems pointless to argue in favor of an approach to evaluating a law and then not actually apply it to the law.

FABIO GETS GOOSED!!!
11-07-2013, 8:43 PM
Is that a yes or a no?

kcbrown
11-07-2013, 8:44 PM
Is that a yes or a no?

Heh. It's a yes.

FABIO GETS GOOSED!!!
11-07-2013, 8:49 PM
We're going to make a very brief trip back to elementary school. Would you agree that a paragraph's topic sentence usually announces the subject of the rest of the paragraph?

kcbrown
11-07-2013, 8:52 PM
We're going to make a very brief trip back to elementary school. Would you agree that a paragraph's topic sentence usually announces the subject of the rest of the paragraph?

Yes.

FABIO GETS GOOSED!!!
11-07-2013, 8:56 PM
If a paragraph began with this topic sentence:

I would simply adopt such an interest-balancing inquiry explicitly.

you would expect the subject of the paragraph to be the adoption of the interest-balancing inquiry, right?

kcbrown
11-07-2013, 8:58 PM
If a paragraph began with this topic sentence:



you would expect the subject of the paragraph to be the adoption of the interest-balancing inquiry, right?

Yes.

FABIO GETS GOOSED!!!
11-07-2013, 9:15 PM
I would simply adopt such an interest-balancing inquiry explicitly. The fact that important interests lie on both sides of the constitutional equation suggests that review of gun-control regulation is not a context in which a court should effectively presume either constitutionality (as in rational-basis review) or unconstitutionality (as in strict scrutiny). Rather, “where a law significantly implicates competing constitutionally protected interests in complex ways,” the Court generally 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 uponother important governmental interests. See Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 402 (2000) (BREYER, J., concurring). Any answer would take account both of the statute’s effects upon the competing interests and the existence of any clearly superior lessrestrictive alternative. See ibid. Contrary to the majority’s unsupported suggestion that this sort of “proportionality” approach is unprecedented, see ante, at 62, the Court has applied it in various constitutional contexts, including election-law cases, speech cases, and due process cases. [citations omitted]

In the second sentence of this paragraph (in bold) -- which begins with the topic sentence "I would simply adopt such an interest-balancing inquiry explicitly"--the dissent rejects a method of review in which constitutionality is presumed (rational basis) or in which unconstitutionality is presumed (strict scrutiny), right?

kcbrown
11-07-2013, 9:19 PM
In the second sentence of this paragraph -- which begins with the topic sentence "I would simply adopt such an interest-balancing inquiry explicitly"--the dissent rejects a method of review in which constitutionality is presumed (rational basis) or in which unconstitutionality is presumed (strict scrutiny), right?

Right.

Tincon
11-07-2013, 9:20 PM
This is your "[Hmmm, which standard of scrutiny do those case apply?]" right? Is this a good time to take a look at those cases in the passage you quoted right before "[Hmmm..." which you claim apply "intermediate scrutiny"?

Ok you got me there, I may have jumped the gun. Those cases are in the middle of a section where Breyer is advocating for what is clearly intermediate scrutiny. However, those cases don't apply scrutiny at all, instead they discuss where a scrutiny analysis is inappropriate. But while you caught me being sloppy (this time) my conclusion in no way depended on that remark or the content of those cases. Nor are they precluded by those cases. For example:

Under this standard, the rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights. Thus, as we have recognized when those rights are subjected to “severe” restrictions, the regulation must be “narrowly drawn to advance a state interest of compelling importance.” But when a state election law provision imposes only “reasonable, nondiscriminatory restrictions” upon the First and Fourteenth Amendment rights of voters, “the State's important regulatory interests are generally sufficient to justify” the restrictions. We apply this standard in considering petitioner's challenge to Hawaii's ban on write-in ballots.

Burdick v. Takushi, 504 U.S. 428, 434, 112 S. Ct. 2059, 2063-64, 119 L. Ed. 2d 245 (1992) (internal citations removed).

This opinion states that strict scrutiny applies to 1A cases, except where the statutory provision imposes only “reasonable, nondiscriminatory restrictions” upon the First and Fourteenth Amendment rights of voters, and “the State's important regulatory interests are generally sufficient to justify” the restrictions.

That makes sense of course, since the objectives of the First Amendment are partially served in the absence of discrimination. Where there is discrimination however, the Court will not look then to the State's purportedly important regulatory interests. They will instead apply strict scrutiny. But the discrimination factor has no analog here. Instead the Heller majority has given us other factors by which to determine if the statute should be subject to scrutiny under 2A. Namely, "sensitive place" exceptions, "typical lawful use" and "dangerous and unusual". Those replace "discrimination" in 2A analysis.

But in any case, this issue of what part of the dissent was rejected is just one of the reasons I think the court has made it clear that strict scrutiny applies. Allow me to ask you a few questions.

Which standard of scrutiny has the Supreme Court held should be applied to a "fundamental right protected by the Constitution?" (Hint: Perry Educ. ***’n v. Perry Local Educators’ ***’n, 460 U.S. 37, 54 (1983).)

And has the Supreme Court held that right to keep and bear arms protected by the Second Amendment of the Constitution is one of the "fundamental rights necessary to our system of ordered liberty?” (Hint: McDonald, 130 S.Ct. 3020, 3042.)

Has the Supreme Court held that there is no reason why the “Second Amendment should be singled out for special—and specially unfavorable—treatment?” (Hint: McDonald, 130 S.Ct. 3020, 3043.)

See, I even gave you hints. ;)

sholling
11-07-2013, 9:21 PM
If the the 14th is not considered applicable by the ruling class, what about the position that micro stamping to enhance the safety of a firearm? The micro stamping at minimum should be tossed out by the court
Micro stamping falls under rational basis in that the legislature rationalized that we'd all be safer if cartridges used in crimes could be traced back to the original purchaser of the weapon and the courts will therefore accept that there is a rational basis for the law. The fact that micro stamping has nothing to do with the safety of the weapon itself, and is not generally available, likely to be ineffective, and will dramatically increase the cost of handguns to the peasant class does not matter because LEOs (a more equal class) are exempt, and because the other more equal classes (judges and legislators) can afford higher priced guns. As long as one model of handgun remains available, even if unaffordable to the peasant class, then in the minds of judges (a more equal class) that will be enough to satisfy the right to keep common handguns in the home.

Keep in mind that judges will remain friendly to the feeling of exclusivity of may-issue licensed concealed carry because as members of the judiciary (a more equal class) they are given special treatment. Not only would no sheriff dare turn down a judge or even a retired judge's application, but the legislature has granted them longer terms between license renewal in recognition of their more equal status. It's going to be next to impossible to get a judge to rule that "all animals are equal - period" when it reduces them to being no better and no more privileged than we peasants. Their egos won't allow that.

FABIO GETS GOOSED!!!
11-07-2013, 9:26 PM
I would simply adopt such an interest-balancing inquiry explicitly. The fact that important interests lie on both sides of the constitutional equation suggests that review of gun-control regulation is not a context in which a court should effectively presume either constitutionality (as in rational-basis review) or unconstitutionality (as in strict scrutiny). Rather, “where a law significantly implicates competing constitutionally protected interests in complex ways,” the Court generally 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. See Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 402 (2000) (BREYER, J., concurring). Any answer would take account both of the statute’s effects upon the competing interests and the existence of any clearly superior lessrestrictive alternative. See ibid. Contrary to the majority’s unsupported suggestion that this sort of “proportionality” approach is unprecedented, see ante, at 62, the Court has applied it in various constitutional contexts, including election-law cases, speech cases, and due process cases. [citations omitted]

In the third sentence of this paragraph (in bold), the dissent instead approves a method of review 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", right?

FABIO GETS GOOSED!!!
11-07-2013, 9:30 PM
Those cases are in the middle of a section where Breyer is advocating for what is clearly intermediate scrutiny.

Those cases are actually in the same paragraph I'm discussing with kcbrown, aren't they?

Tincon
11-07-2013, 9:30 PM
In the third sentence of this paragraph (in bold), the dissent instead approves a method of review 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", right?

No. Just as was done in Burdick, the dissent proposes that as a preliminary matter before applying scrutiny (in the case of Burdick, strict scrutiny), the court should examine certain factors, to determine if "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." This is independent of scrutiny. The Heller majority rejects this right along with intermediate scrutiny.

Those cases are actually in the same paragraph I'm discussing with kcbrown, aren't they?

Yes, they are part of a paragraph discussing when scrutiny should be applied. The rest of that section discusses what sort of scrutiny should be applied.

kcbrown
11-07-2013, 9:31 PM
In the third sentence of this paragraph (in bold), the dissent instead approves a method of review 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", right?

Right.

FABIO GETS GOOSED!!!
11-07-2013, 9:35 PM
I would simply adopt such an interest-balancing inquiry explicitly. The fact that important interests lie on both sides of the constitutional equation suggests that review of gun-control regulation is not a context in which a court should effectively presume either constitutionality (as in rational-basis review) or unconstitutionality (as in strict scrutiny). Rather, “where a law significantly implicates competing constitutionally protected interests in complex ways,” the Court generally 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. See Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 402 (2000) (BREYER, J., concurring). Any answer would take account both of the statute’s effects upon the competing interests and the existence of any clearly superior lessrestrictive alternative. See ibid. Contrary to the majority’s unsupported suggestion that this sort of “proportionality” approach is unprecedented, see ante, at 62, the Court has applied it in various constitutional contexts, including election-law cases, speech cases, and due process cases. [citations omitted]

When the dissent mentions the "'proportionality' approach" in the fifth sentence (in bold), he's referring to the method of review that he approved in the third sentence, isn't he?

kcbrown
11-07-2013, 9:38 PM
When the dissent mentions the "'proportionality' approach" in the fifth sentence (in bold), he's referring to the method of review that he approved in the third sentence, isn't he?

Yes.

FABIO GETS GOOSED!!!
11-07-2013, 9:40 PM
Just as was done in Burdick, the dissent proposes that as a preliminary matter before applying scrutiny (in the case of Burdick, strict scrutiny), the court should examine certain factors, to determine if "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." This is independent of scrutiny. The Heller majority rejects this right along with intermediate scrutiny.

Just to be crystal clear here, your position is that the determination 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" is just a "preliminary matter" the precedes the application of scrutiny?

Tincon
11-07-2013, 9:41 PM
This sentence: I would simply adopt such an interest-balancing inquiry explicitly.

Is the conclusion of his intermediate scrutiny "balancing test" argument.

Then he begins an argument about how scrutiny should be skipped unless "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."

Sometimes the first sentence of a paragraph is what I was taught in school is called a "transition". Particularly when it comes in the middle of a section of paragraphs where the first one explains what the "topic" of the section is...

Tincon
11-07-2013, 9:42 PM
Just to be crystal clear here, your position is that the determination 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" is just a "preliminary matter" the precedes the application of scrutiny?

What else do you think this means: Under this standard, the rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights. Thus, as we have recognized when those rights are subjected to “severe” restrictions, the regulation must be “narrowly drawn to advance a state interest of compelling importance.” But when a state election law provision imposes only “reasonable, nondiscriminatory restrictions” upon the First and Fourteenth Amendment rights of voters, “the State's important regulatory interests are generally sufficient to justify” the restrictions. We apply this standard in considering petitioner's challenge to Hawaii's ban on write-in ballots.

Burdick v. Takushi, 504 U.S. 428, 434, 112 S. Ct. 2059, 2063-64, 119 L. Ed. 2d 245 (1992) (internal citations removed).

Tincon
11-07-2013, 9:44 PM
Hey I answered your question, will you answer mine (I can wait 'till later, just want to know if I can look forward to that).

FABIO GETS GOOSED!!!
11-07-2013, 9:44 PM
What else do you think this means:

Is that a yes or a no?

Tincon
11-07-2013, 9:46 PM
Is that a yes or a no?

Yes, in at least some cases. Otherwise you get, "it depends". It was certainly the case in Burdick , which was cited in your favorite paragraph in the dissent.

FABIO GETS GOOSED!!!
11-07-2013, 9:47 PM
Hey I answered your question, will you answer mine (I can wait 'till later, just want to know if I can look forward to that).

Yes, I will.

FABIO GETS GOOSED!!!
11-07-2013, 9:50 PM
Yes, in at least some cases. Otherwise you get, "it depends". It was certainly the case in Burdick , which was cited in your favorite paragraph in the dissent.

Christ, now you're doing kcbrown edits too?

How about: is it your position that the determination 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" is just a "preliminary matter" that precedes the application of scrutiny in 2A cases such as DC v Heller?

FABIO GETS GOOSED!!!
11-07-2013, 10:00 PM
Contrary to the majority’s unsupported suggestion that this sort of “proportionality” approach is unprecedented, see ante, at 62,the Court has applied it in various constitutional contexts, including election-law cases, speech cases, and due process cases.

Please quote the specific text "ante, at 62" where the majority "suggest[s] that this sort of 'proportionality' approach is unprecedented."

(Hint: last paragraph, first sentence.)

ETA: Link to Heller opinion here (http://www.supremecourt.gov/opinions/07pdf/07-290.pdf).

kcbrown
11-07-2013, 10:15 PM
Please quote the specific text "ante, at 62" where the majority "suggest[s] that this sort of 'proportionality' approach is unprecedented."


Here:


We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding "interest-balancing" approach.

Tincon
11-07-2013, 10:16 PM
Christ, now you're doing kcbrown edits too?

How about: is it your position that the determination 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" is just a "preliminary matter" the precedes the application of scrutiny in 2A cases such as DC v Heller?

My bad. I felt pressured to give you a "Yes" but your question was an incomplete hypothetical. As to your current question, no, the majority rejected that approach. I do think that's what Breyer wanted, because he (incorrectly) believes that banning guns will save lives, which should somehow trump almost any application of the right.

FABIO GETS GOOSED!!!
11-07-2013, 10:22 PM
My bad. I felt pressured to give you a "Yes" but your question was an incomplete hypothetical. As to your current question, no, the majority rejected that approach. I do think that's what Breyer wanted, because he (incorrectly) believes that banning guns will save lives, which should somehow trump almost any application of the right.

We were talking about what the dissent was proposing, i.e., that the determination 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" is just a "preliminary matter" the precedes the application of scrutiny in 2A cases such as Heller v DC. You agree that was what the dissent was proposing right?

Tincon
11-07-2013, 10:27 PM
We were talking about what the dissent was proposing, i.e., that the determination 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" is just a "preliminary matter" the precedes the application of scrutiny in 2A cases such as Heller v DC. You agree that was what the dissent was proposing right?

I agree that the dissent cites a case that frames it that way, giving me room to make that argument.

FABIO GETS GOOSED!!!
11-07-2013, 10:35 PM
Here:

Earlier you disagreed with me that the dissent's "interest balancing inquiry" and the "proportionality approach" were the same thing. Are you sticking to that position?

curtisfong
11-07-2013, 10:36 PM
I do think that's what Breyer wanted, because he (incorrectly) believes that banning guns will save lives, which should somehow trump almost any application of the right.

Which is exactly the problem. If judges are unwilling to base their beliefs on data, or unwilling to admit a belief is entirely unfounded if there is no supporting data, what is the point? If a completely unfounded belief is enough (when interest balancing), to outweigh any potential burdening of a fundamental right, then the term "interest balancing" is meaningless.

And if there is no interest balancing, even worse; if proof of efficacy (as part of the measure of governmental or public interest) of a proposed law requires nothing more than a Judge's completely subjective belief (absent any facts or data), and burden is *irrelevant*, we are utterly lost.

The fact that this is in a *dissent* is cold comfort, because there is no reason to think Breyer's opinion is unique, nor that his opinion will be relegated to only dissents in the future.

kcbrown
11-07-2013, 10:39 PM
Earlier you disagreed with me that the dissent's "interest balancing inquiry" and the "proportionality approach" were the same thing. Are you sticking to that position?

No.

FABIO GETS GOOSED!!!
11-07-2013, 10:42 PM
I agree that the dissent cites a case that frames it that way, giving me room to make that argument.

What kind of dodgy response is that lol? Are you even able to state positively what method of review the Heller dissent was proposing for 2A cases and how the determination 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" operates within that method of review?

FABIO GETS GOOSED!!!
11-07-2013, 10:50 PM
No.

The "interest-balancing inquiry" and the "proportionality approach" are one and the same. The majority objects to the the dissent's interest-balancing inquiry, doesn't it?

kcbrown
11-07-2013, 10:53 PM
The "interest-balancing inquiry" and the "proportionality approach" are one and the same. The majority objects to the the dissent's interest-balancing inquiry, doesn't it?

Yes.

FABIO GETS GOOSED!!!
11-07-2013, 10:58 PM
Yes.

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.”

The majority asserts that the interest-balancing inquiry the dissent is proposing is not the same as strict scrutiny, intermediate scrutiny, or rational basis, doesn't it?

curtisfong
11-07-2013, 10:59 PM
The majority objects to the the dissent's interest-balancing inquiry, doesn't it?

FWIW I read it as such from the start. Breyer asserts that a legislature's position can go completely unexamined (i.e deference to the legislature's definition of rational or reasonable) if the burden on a right is sufficiently benign. This is corrosive because the "burden" metric can be entirely subjective.

My argument is that even if the majority disagrees (and their opinion becomes settled case law in the form of a solid legal standard), it simply doesn't matter, because Breyer (and CA courts, and the 9th) also treat governmental/public interest as subjective, since they are (demonstrably) impervious to any request for objective data from the legislature to back their claims of the level governmental/public interest.

So whether or not the scrutiny regime differs from interest balancing is entirely irrelevant.

kcbrown
11-07-2013, 11:04 PM
The majority asserts that the interest-balancing inquiry the dissent is proposing is not the same as strict scrutiny, intermediate scrutiny, or rational basis, doesn't it?

Strictly speaking, no.

FABIO GETS GOOSED!!!
11-07-2013, 11:08 PM
Strictly speaking, no.

What the heck do you mean by "strictly speaking"? lol. You just agreed that the majority suggested there was no precedent for the interest balancing inquiry. If the interest balancing inquiry were the same as strict scrutiny, there would be precedent for the interest balancing inquiry.

kcbrown
11-07-2013, 11:15 PM
What the heck do you mean by "strictly speaking"? lol.


From the decision:


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.”


The above, strictly speaking, leaves on the table the possibility that dissent is implicitly proposing one of the traditionally expressed levels.



You just agreed that the majority suggested there was no precedent for the interest balancing inquiry. If the interest balancing inquiry were the same as strict scrutiny, there would be precedent for the interest balancing inquiry.I did not claim that the Supreme Court cannot contradict itself. Indeed, it is the essence of my argument that they are.

However, one potential "out" for them may be that their actual claim is that there is no precedent for the interest balancing inquiry being applied to the core protection of an enumerated Constitutional right. Whether that actually has precedent or not, I cannot say.

Tincon
11-07-2013, 11:15 PM
What kind of dodgy response is that lol?

It's an intellectually honest one. If you like I can pretend there is only one possible black and white interpretation and no grey area. That sounds like a kcbrown approach. Then we might as well just shout SHALL NOT BE INFRINGED at each other.

Are you even able to state positively what method of review the Heller dissent was proposing for 2A cases and how the determination 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" operates within that method of review?

Yes, I've said it, the dissent wants intermediate scrutiny. It also wants, as part of that analysis to reject any challenge to a statute unless "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." Maybe the dissent thinks that is the entirety intermediate scrutiny. It doesn't matter, because either way, intermediate scrutiny is what the majority rejected.

Tincon
11-07-2013, 11:20 PM
Which is exactly the problem. If judges are unwilling to base their beliefs on data, or unwilling to admit a belief is entirely unfounded if there is no supporting data, what is the point?



Yes, that's the problem with out government. It is run by human beings with ultimately subjective beliefs. And if a majority of the legislature, the chief executive, and the supreme court want a law, there will be a law. Facts and logic not notwithstanding. That's the system we have. That's the framework of the conversation you have joined here. If you have an idea for a better system, it would be off topic for this thread, but I would really like to hear it. Feel free to make a thread about it. If not, then what the hell is your point?

curtisfong
11-07-2013, 11:20 PM
the dissent wants intermediate scrutiny. It also wants, as part of that analysis to reject any challenge to a statute unless "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." Maybe the dissent thinks that is the entirety intermediate scrutiny. It doesn't matter, because either way, intermediate scrutiny is what the majority rejected.

Again, the dissent thinks that if a court determines (perhaps even if a legislature declares that) the burden on a right is innocuous enough, no scrutiny is necessary.

The name he gives it ("intermediate scrutiny", "interest balancing", "proportional judgment") is entirely irrelevant. It is equivalent to saying legislatures can pass whatever they want if they say the right magic words that can be repeated to the right court.

Tincon
11-07-2013, 11:21 PM
Again, the dissent thinks that if a court determines (perhaps even if a legislature declares that) the burden on a right is innocuous enough, no scrutiny is necessary.

The name he gives it ("intermediate scrutiny", "interest balancing", "proportional judgment") is entirely irrelevant. It is equivalent to saying legislatures can pass whatever they want if they say the right magic words that can be repeated to the right court.

More pointless crap from you. Yes, they can do that. The government is an evil turd. Can you please move on to something else? Do you realize that you are adding absolutely NOTHING to this conversation?

curtisfong
11-07-2013, 11:23 PM
If you have an idea for a better system, it would be off topic for this thread, but I would really like to hear it.

My point is that strict scrutiny should include the requirement for objective data as part of the metric for "governmental/public interest" (in this context, public safety correlation with firearms restrictions). This would fit entirely within the current structure, and would not require anything other than a majority of SCOTUS to concur.

Tincon
11-07-2013, 11:25 PM
My point is that strict scrutiny should include the requirement for objective data as part of the metric for "governmental/public interest" (in this context, public safety correlation with firearms restrictions). This would fit entirely within the current structure, and would not require anything other than a majority of SCOTUS to concur.

And another majority to undo right? I mean that's what you are worried about anyway, with this case?

kcbrown
11-07-2013, 11:26 PM
My point is that strict scrutiny should include the requirement for objective data as part of the metric for "governmental/public interest" (in this context, public safety correlation with firearms restrictions). This would fit entirely within the current structure, and would not require anything other than a majority of SCOTUS to concur.

That has the problem of the court approving of data it likes and disapproving of data it doesn't. It fails to preclude cherry-picking of data to support an argument, etc.

It would work if faithfully implemented. But it won't be faithfully implemented for the same reasons the courts behave as they do now.

curtisfong
11-07-2013, 11:30 PM
And another majority to undo right? I mean that's what you are worried about anyway, with this case?

No. Because what I am proposing does not undo anything, and as we all know, the odds of it being undone in the future is vanishingly small, as SCOTUS rarely reverses itself.

What I fear is that the current standard (yes, even taking in to account the rejection of the dissent's "interest balancing" approach) is toothless, NOT that Heller is in any danger of being reversed.

That has the problem of the court approving of data it likes and disapproving of data it doesn't. It fails to preclude cherry-picking of data to support an argument, etc.

Of course. But it is a start, and better than the garbage that Breyer spewed in his dissent (even if it was rejected by the majority).

ETA: And why not take a scientific approach, and include some sort of testable metric that can be applied in the future, and provide sunset provisions if the metrics fail?

Tincon
11-07-2013, 11:31 PM
That has the problem of the court approving of data it likes and disapproving of data it doesn't. It fails to preclude cherry-picking of data to support an argument, etc.

It would work if faithfully implemented. But it won't be faithfully implemented for the same reasons the courts behave as they do now.

It certainly does not change the fact that the Justices are human beings. And if they are doing whatever they want now, a bit of precedent requiring "objective facts," whatever that means, won't stop them. It's also fantasy. So I'm actually a bit tired of repeatedly hearing about how they will do what they want. If it's true then there is not point to taking part in a discussion of the law. So why hang around here?

Tincon
11-07-2013, 11:32 PM
Of course. But it is a start, and better than the garbage that Breyer spewed in his dissent (even if it was rejected by the majority).

Why only a start? You were asked what can be done. All you can come up with is a start?

kcbrown
11-07-2013, 11:44 PM
It certainly does not change the fact that the Justices are human beings. And if they are doing whatever they want now, a bit of precedent requiring "objective facts," whatever that means, won't stop them. It's also fantasy. So I'm actually a bit tired of repeatedly hearing about how they will do what they want. If it's true then there is not point to taking part in a discussion of the law. So why hang around here?

Firstly, because not all judges are so intent on ruling as they please on the issue, just most of them.

Secondly, because I find it to be educational and informative, and one cannot generally know in advance whether or not the benefits of such will prove useful in the future.

And finally, because it's fun. :D


While I may disagree with FGG as regards the logical implications of the statements that the Supreme Court has made, I expect that he is correct in how the Supreme Court will actually interpret what they've written. After all, as I said, nothing prevents the Supreme Court from contradicting itself. If presented with an argument that the use of a traditional method of scrutiny is invalid in the 2nd Amendment context as a result of it being a method to "decide on a case-by-case basis whether the right is really worth insisting upon", the Supreme Court will simply reject that argument. Not because the argument lacks logical soundness, and not because the Court didn't say what it did, but simply because it can. It can, and will, give some bull**** excuse for upholding scrutiny in the face of what they said in Heller, but they'll uphold it nonetheless. That excuse will have further logical implications that the Court will also ignore later should they be brought up. Lather, rinse, repeat. It's how we got where we are today.

kcbrown
11-07-2013, 11:50 PM
It certainly does not change the fact that the Justices are human beings.


Merely being human is insufficient to justify what the courts have become today. Humans have a choice as to whether they will support liberty or squash it. That is especially true of those on the court who have been tasked with acting as a check on the power of the other branches of government.

Merely being human also got us the Third Reich, the Soviet Union, Communist China, fascist Italy, East Germany, etc. Are those societies to also be so easily excused for their evils?

FABIO GETS GOOSED!!!
11-08-2013, 12:10 AM
The above, strictly speaking, leaves on the table the possibility that dissent is implicitly proposing one of the traditionally expressed levels.

Why not simply propose one of the traditionally expressed levels explicitly? The dissent never does that, does he? When the majority says "explicitly at least," does the the dissent ever respond, "well actually, I am proposing one of the traditionally expressed levels of scrutiny"? What the dissent does do is reject strict scrutiny and rational basis:

The fact that important interests lie on both sides of the constitutional equation suggests that review of gun-control regulation is not a context in which a court should effectively presume either constitutionality (as in rational-basis review) or unconstitutionality (as in strict scrutiny).

and instead endorse the "interest-balancing inquiry" i.e. "proportionality approach" which you acknowledge is the only approach he endorses, citing Nixon as authority for this approach:

Rather, “where a law significantly implicates competing constitutionally protected interests in complex ways,” the Court generally 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. See Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 402 (2000) (BREYER, J., concurring).

If the dissent was implicitly proposing the last of the traditionally expressed levels of scrutiny on the table (intermediate), Nixon would be an odd choice as Nixon upholds a prior Supreme Court case that explicitly rejected intermediate scrutiny. Not one of the other cases in the laundry list found in the paragraph where the dissent announces he is adopting the interest-balancing approach identifies itself as applying intermediate scrutiny. (These are Tincon's "[Hmmm, which standard of scrutiny do those case apply?]" cases.) Nixon rejects intermediate scrutiny, some of the cases cited in that paragaraph identify some scrutiny other than one of the traditionally expressed levels, others do not mention "scrutiny" at all. Could the dissent have gone any more out of his way in that paragraph to not cite any intermediate scrutiny cases? If the dissent wanted intermediate scrutiny, why would he not just say so explicitly, why would he cite as the primary example of his "interest-balancing approach" a case that flat out rejects intermediate scrutiny, and why in the paragraph in which he announces he is adopting the interest-balancing approach explicitly would he cite a string of cases none of which apply intermediate scrutiny as traditionally expressed (if they even mention "scrutiny" at all)? Are intermediate scrutiny cases that hard to find and cite? Is it that hard to just come right out and say "I am proposing intermediate scrutiny"?

kcbrown
11-08-2013, 12:18 AM
I'd have to disagree. Every level of scrutiny asks more than one question.


Yes, in the general case, but look at the context, which is that of gun laws. In this case, the hurdle of compelling government interest has been immediately overcome by the "public safety" claim. For strict scrutiny, what does that leave?



Whether the law is "narrowly tailored".
Whether the law is the "least restrictive means".


But both of those are merely specific questions that are used to determine whether the law in question impermissibly burdens the right in the course of advancing the government interest in question.

The dissent's approach broadens and generalizes that inquiry, but the dissent's approach is still a superset of the approach taken by strict scrutiny. If one objects to the dissent's approach on the basis that it decides, on a case by case basis, whether the right is really worth insisting upon, then one by extension objects to traditional forms of scrutiny on the same basis, precisely because those forms are specific cases of the more general approach proposed by the dissent. They all share this specific trait.


Had the majority objected to dissent's approach on the basis of being "overbroad" or something of that sort, then there would be nothing to argue. But their objection was specific, foundational, and equally applicable to the traditional forms of scrutiny.

kcbrown
11-08-2013, 12:24 AM
Why not simply propose one of the traditionally expressed levels explicitly? The dissent never does that, does he?


Then why did the majority bother saying what they did? Why mention that dissent didn't explicitly propose a traditionally expressed level of scrutiny unless there is the possibility that they somehow implicitly did so?

FABIO GETS GOOSED!!!
11-08-2013, 12:26 AM
The dissent's approach broadens and generalizes that inquiry, but the dissent's approach is still a superset of the approach taken by strict scrutiny.

Says who, the dissent?

kcbrown
11-08-2013, 12:37 AM
Says who, the dissent?

As regards application to gun laws, at least, yes.

But I am making that claim if nobody else is.

FABIO GETS GOOSED!!!
11-08-2013, 12:43 AM
Then why did the majority bother saying what they did? Why mention that dissent didn't explicitly propose a traditionally expressed level of scrutiny unless there is the possibility that they somehow implicitly did so?

So, you don't have a good answer why the dissent didn't just come right out and say "I am proposing intermediate scrutiny", do you?

FABIO GETS GOOSED!!!
11-08-2013, 12:46 AM
As regards application to gun laws, at least, yes.

But I am making that claim if nobody else is.

The Heller majority certainly isn't making that claim.

kcbrown
11-08-2013, 12:54 AM
So, you don't have a good answer why the dissent didn't just come right out and say "I am proposing intermediate scrutiny", do you?

Your question was originally about what the majority was asserting, not what the dissent was proposing.

If the majority was asserting without question that dissent was proposing something different than the traditional methods of scrutiny, they would not have included a potential exception, would they?

So, you don't have a good answer why the majority included a potential exception in their statement about that difference, do you?

kcbrown
11-08-2013, 12:54 AM
The Heller majority certainly isn't making that claim.

The Heller majority does not have to make the claim for the claim to be true.

kcbrown
11-08-2013, 1:20 AM
The majority asserts that the interest-balancing inquiry the dissent is proposing is not the same as strict scrutiny, intermediate scrutiny, or rational basis, doesn't it?

Let's proceed from here under the assumption that my answer to this question is "yes".

ETA: the approach you've been using here is much appreciated. There is much more clarity as a result of these pointed and highly targeted questions than with the more general questions that you typically ask. I would request that you engage more in the manner that you have here than in the way you previously had.

CaliforniaLiberal
11-08-2013, 1:40 AM
Please quote the specific text "ante, at 62" where the majority "suggest[s] that this sort of 'proportionality' approach is unprecedented."

(Hint: last paragraph, first sentence.)

ETA: Link to Heller opinion here (http://www.supremecourt.gov/opinions/07pdf/07-290.pdf).


Thank you Fabio, from my heart.

Sparkling clarity, that even a layman such as myself can follow and learn.

You precisely pin your interlocutors and demonstrate the weaknesses of their arguments and points of view. So much more satisfying than that LOL smiley that I can't reproduce.

Actual LINKS by God!

Previously I'm sure that someone with three-quarters of your legal experience could follow along but the unwashed masses were left floundering.

Please keep going, your posts are of benefit to all.

FABIO GETS GOOSED!!!
11-08-2013, 5:36 AM
Your question was originally about what the majority was asserting, not what the dissent was proposing.

No, it wasn't. It was entirely about what the dissent was or was not proposing. Evidently you think he spent 44 pages "implicitly" proposing intermediate scrutiny lol. Why would the majority say what it said? Why would it leave on the table the possibility that the dissent was proposing one or the other of the traditionally expressed levels of scrutiny --especially when the dissent explicitly rejects two of them? If we knew when in the drafting process the comment was made (with or without having seen the dissenting opinion), that would help the speculation, but my best guess is that it is a dig on the analytical soundness of the dissent's approach, or possibly to elicit a response from the dissent which the majority could then criticize. Ultimately I think it's some kind of rhetorical maneuver.

Here's a question that is not directed to anyone in particular. If Breyer thinks that any application of strict scrutiny to gun regulations will inevitably "turn into" the "interest-balancing inquiry" he endorses, does he have any real objection to its application?

FABIO GETS GOOSED!!!
11-08-2013, 5:58 AM
Thank you Fabio, from my heart.

Sparkling clarity, that even a layman such as myself can follow and learn.

You precisely pin your interlocutors and demonstrate the weaknesses of their arguments and points of view. So much more satisfying than that LOL smiley that I can't reproduce.

Actual LINKS by God!

Previously I'm sure that someone with three-quarters of your legal experience could follow along but the unwashed masses were left floundering.

Please keep going, your posts are of benefit to all.

The underlying theme here is careful reading. If kcbrown had read the dissenting opinion carefully, he would not have disagreed with me about the "interest-balancing inquiry" and the "proportionality approach" being the same thing. (By the way, it is unlikely that I will ever go to the same lengths I just did to illustrate that lol.) If Tincon had read the dissenting opinion carefully, he would never have made the assertion that the laundry list of opinions in the paragraph under consideration were "intermediate scrutiny" cases when in fact none of them applied intermediate scrutiny at all. These careful reading errors go directly to the essential points that each is trying to make. I think I've pretty comprehensively discussed why I think the dissent was not proposing intermediate scrutiny, but there was a question I threw out there to Tincon that has not been answered. Here is the linchpin of Tincon's argument (http://www.calguns.net/calgunforum/showpost.php?p=12644511&postcount=1) that the interest-balancing inquiry the dissent is proposing is intermediate scrutiny (and therefore by rejecting the interest-balancing inquiry the majority is rejecting intermediate scrutiny):

The US Supreme Court has also rejected the tier of scrutiny immediately below strict, intermediate. In his dissent, Justice Breyer mentions certain “cases applying intermediate scrutiny. . . .” Heller, 554 U.S. 570, 704 He then cites Turner Broad. Sys., Inc. v. F.C.C., 520 U.S. 180, 195 (1997) (deciding a First Amendment case on the basis of intermediate scrutiny). Justice Breyer goes on to suggest that “[t]here is no cause here to depart from the standard set forth in [I]Turner, for the District's decision represents the kind of empirically based judgment that legislatures, not courts, are best suited to make.” Heller, 554 U.S. 570, 705. Justice Breyer then uses the language “interest-balancing inquiry” to describe the intermediate standard he would adopt. Heller, 554 U.S. 570, 689 (2008).

As I mentioned earlier, in the sentence in bold, Tincon deposited the parenthetical "[intermediate scrutiny]" before "standard." This is how the sentence actually reads in context:

In particular this Court, in First Amendment cases applying intermediate scrutiny, has said that our “sole obligation” in reviewing a legislature’s “predictive judgments” is “to assure that, in formulating its judgments,” the legislature “has drawn reasonable inferences based onsubstantial evidence.” Turner, 520 U. S., at 195 (internal quotation marks omitted). And judges, looking at the evidence before us, should agree that the District legislature’s predictive judgments satisfy that legal standard. That is to say, the District’s judgment, while open to question, is nevertheless supported by “substantial evidence.”

There is no cause here to depart from the standard set forth in Turner, for the District’s decision represents the kind of empirically based judgment that legislatures, not courts, are best suited to make.

I disagree that the "standard" in this passage refers to a "standard of scrutiny", instead I think it refers to a more discrete "legal standard" (which although a component of intermediate scrutiny is not a standard of review itself), i.e., are the legislature's predictive judgments supported by substantial evidence? The specific question I asked is:

You do agree that when the dissent says "that legal standard" and "the standard set forth in Turner," he is talking about the same thing, right Tincon? :laugh:

The point I am leading to here won't take very long.

FABIO GETS GOOSED!!!
11-08-2013, 7:07 AM
The Heller majority does not have to make the claim for the claim to be true.

Breyer is trying to peddle an approach (Heller is not the first instance, see Nixon) and it is not getting any traction. The Heller majority is not buying the dissent's claim that any application of strict scrutiny to gun case will inevitably "turn into" the interest-balancing inquiry that the dissent endorses and which we have been discussing in this thread. (Note that the majority is rejecting the specific interest-balancing inquiry proposed by the dissent, not any approach that balances interests, as not all interest-balancing approaches balance interests in the particularized way that the dissent's "proportionality approach" does.) Who's right? Who decides who's right?

Tincon
11-08-2013, 8:46 AM
Breyer is trying to peddle an approach (Heller is not the first instance, see Nixon) and it is not getting any traction. The Heller majority is not buying the dissent's claim that any application of strict scrutiny to gun case will inevitably "turn into" the interest-balancing inquiry that the dissent endorses and which we have been discussing in this thread. (Note that the majority is rejecting the specific interest-balancing inquiry proposed by the dissent, not any approach that balances interests, as not all interest-balancing approaches balance interests in the particularized way that the dissent's "proportionality approach" does.) Who's right? Who decides who's right?

I think you have gone off into the weeds. Clearly Breyer was proposing a standard of scrutiny greater than rational basis and less then strict. Hence, intermediate. I realize he wants to add some other test ala Nixon , and whether that is something to be a preliminary matter or which swallows the entire scrutiny analysis, I don't know. In any event, the majority rejected his intermediate scrutiny standard.

Maybe there are other intermediate scrutiny standards that might be more appealing. But it hardly matters, because the majority's rejection of the dissent is just a final nail in the coffin for intermediate scrutiny, for the other reasons I mentioned, which are even stronger.

If I still owe you an answer, I don't see the question.

FABIO GETS GOOSED!!!
11-08-2013, 9:17 AM
If I still owe you an answer, I don't see the question.

You do agree that when the dissent says "that legal standard" and "the standard set forth in Turner," he is talking about the same thing, right Tincon?

(We're talking about your parenthetical "[intermediate scrutiny]".)

curtisfong
11-08-2013, 9:17 AM
You guys are arguing over semantics. You think "intermediate scrutiny" is anything that isn't rational basis or strict scrutiny. FGG thinks any standard that involves interest balancing (i.e. burden vs governmental interest) isn't scrutiny, but an independent standard.

That said, I don't think Breyer was suggesting a standard *always* stronger than rational basis. He suggested it depends, on a case by case basis, on the burden on the right imposed by the regulation. As I said, this means that if a court (or even a legislature) determines that the burden is low enough, not even rational basis need be applied.

Assuming, that is, that you still think rational basis has meaning other than "the legislature determined the regulation is rational".

FABIO GETS GOOSED!!!
11-08-2013, 9:36 AM
You think "intermediate scrutiny" is anything that isn't rational basis or strict scrutiny.

I think that's what Tincon thinks as well and if it is I disagree. The Heller majority says "traditionally expressed levels (strict scrutiny, intermediate scrutiny, rational basis)". It is not labeling everything in between "rational basis" and "strict scrutiny" as "intermediate."

kcbrown
11-08-2013, 9:38 AM
No, it wasn't. It was entirely about what the dissent was or was not proposing.


The question I was speaking of was this:

The majority asserts that the interest-balancing inquiry the dissent is proposing is not the same as strict scrutiny, intermediate scrutiny, or rational basis, doesn't it?

The question you asked of me above is about what the majority asserts, not what dissent is actually proposing.

But in any case, let's proceed under the assumption that my answer to that question is "yes".



Evidently you think he spent 44 pages "implicitly" proposing intermediate scrutiny lol.
No, you're confusing my position with that of Tincon's.



Why would the majority say what it said? Why would it leave on the table the possibility that the dissent was proposing one or the other of the traditionally expressed levels of scrutiny --especially when the dissent explicitly rejects two of them? If we knew when in the drafting process the comment was made (with or without having seen the dissenting opinion), that would help the speculation, but my best guess is that it is a dig on the analytical soundness of the dissent's approach, or possibly to elicit a response from the dissent which the majority could then criticize. Ultimately I think it's some kind of rhetorical maneuver.
Okay, that could be. I thought that such things were cleaned up prior to the decision being published, however.



Here's a question that is not directed to anyone in particular. If Breyer thinks that any application of strict scrutiny to gun regulations will inevitably "turn into" the "interest-balancing inquiry" he endorses, does he have any real objection to its application?No, logically, he does not.

curtisfong
11-08-2013, 9:39 AM
FGG btw I want to thank you as well for being frank and forthright, and downright constructive. For the record :)

kcbrown
11-08-2013, 9:51 AM
Breyer is trying to peddle an approach (Heller is not the first instance, see Nixon) and it is not getting any traction. The Heller majority is not buying the dissent's claim that any application of strict scrutiny to gun case will inevitably "turn into" the interest-balancing inquiry that the dissent endorses and which we have been discussing in this thread.


Most certainly, it is indisputable that the majority disagrees with dissent's described approach.



(Note that the majority is rejecting the specific interest-balancing inquiry proposed by the dissent, not any approach that balances interests, as not all interest-balancing approaches balance interests in the particularized way that the dissent's "proportionality approach" does.)
Let's pick this up when we've completed the directed line of inquiry we had going. You asked:

The majority asserts that the interest-balancing inquiry the dissent is proposing is not the same as strict scrutiny, intermediate scrutiny, or rational basis, doesn't it?

Assume my answer to that question is "yes". Please ask the followup question.



Who's right? Who decides who's right?Seeing how the Supreme Court is going to do as it pleases no matter what, I suppose that doesn't really matter all that much.

That doesn't change the logical implications of what the Court said, only whether they will be logically consistent with their own pronouncements. They almost certainly won't be.

FABIO GETS GOOSED!!!
11-08-2013, 9:56 AM
No, you're confusing my position with that of Tincon's.

I was mocking Tincon's position there, but it sounded like I was imputing it to you. My bad lol.

No, logically, he does not.

Then it is your position that the dissent is being illogical when -- immediately after "describing" strict scrutiny as "an interest-balancing inquiry, with the interests protected by the Second Amendment on one side and the governmental public-safety concerns on the other, the only question being whether the regulation at issue impermissibly burdens the former in the course of advancing the latter" -- the dissent explicitly rejects the application of strict scrutiny to gun cases, is it not?

I put "describing" in quotes because it was you who characterized this text as a "description of strict scrutiny." You haven't "shown" anything of the sort. You haven't even articulated the strict scrutiny standard as traditionally expressed.

FABIO GETS GOOSED!!!
11-08-2013, 9:58 AM
FGG btw I want to thank you as well for being frank and forthright, and downright constructive. For the record :)

It's a moment of weakness. :laugh:

kcbrown
11-08-2013, 10:31 AM
Then it is your position that the dissent is being illogical when -- immediately after "describing" strict scrutiny as "an interest-balancing inquiry, with the interests protected by the Second Amendment on one side and the governmental public-safety concerns on the other, the only question being whether the regulation at issue impermissibly burdens the former in the course of advancing the latter" -- the dissent explicitly rejects the application of strict scrutiny to gun cases, is it not?


Of course. I have not been proceeding under the assumption that the dissent's position is logically sound.



I put "describing" in quotes because it was you who characterized this text as a "description of strict scrutiny." You haven't "shown" anything of the sort. You haven't even articulated the strict scrutiny standard as traditionally expressed.No, I characterized it as Breyer's "description of strict scrutiny":


The Supreme Court does not object to Breyer's description of strict scrutiny here. Instead, they object to the adoption of the inquiry he calls out as being the very same inquiry that is used when applying strict scrutiny.


However, the argument I put forth following that, which is:


Therefore, by objecting to Breyer's insistence upon using the methods of strict scrutiny, the court is ipso facto objecting to the use of strict scrutiny itself. Because to claim otherwise is to claim that the Supreme Court is objecting to the fact that the interest balancing inquiry isn't being called one of the "traditionally expressed levels", that they object merely to the fact that Breyer is divorcing what scrutiny does from what it's called.


is incorrect.

FABIO GETS GOOSED!!!
11-08-2013, 10:49 AM
Most certainly, it is indisputable that the majority disagrees with dissent's described approach.

Let's pick this up when we've completed the directed line of inquiry we had going. You asked:

Assume my answer to that question is "yes". Please ask the followup question.

Honestly, I don't remember what the follow up question was so I'll just make my points lol. In arriving at your ultimate position that "one of three things must be true:...", you make two assertions:

But the majority does not raise any explicit objection to the characterization of the iteration in question as being identical to a traditional form, nor do I see anywhere that it has provided any means by which one could implicitly object to that characterization.

In other words, "the majority doesn't have a problem with the dissent's description of strict scrutiny." If that is a mischaracterization, please say so. The second assertion is:

"Breyer's description of strict scrutiny as applied to gun laws appears to be accurate."

As to the first assertion, of course the majority has a problem with what you term the "description of strict scrutiny," they emphatically reject it and they say it doesn't look like anything they've seen before.

As to the second assertion, it assumes two things: 1) the text in question is in fact a "description of strict scrutiny" and 2) the description is accurate. Not even Breyer says he is "describing strict scrutiny," but assuming that's what he is doing, it cannot be reconciled with his express rejection of strict scrutiny immediately thereafter.

I just hit refresh and noticed your latest post and will take it from there.

Tincon
11-08-2013, 11:05 AM
I think that's what Tincon thinks as well and if it is I disagree. The Heller majority says "traditionally expressed levels (strict scrutiny, intermediate scrutiny, rational basis)". It is not labeling everything in between "rational basis" and "strict scrutiny" as "intermediate."

You love to leave out the critical part about "explicitly". Sloppy. :laugh:

FABIO GETS GOOSED!!!
11-08-2013, 11:15 AM
Of course. I have not been proceeding under the assumption that the dissent's position is logically sound.

So everyone on the court is illogical, including the dissent, but his description of strict scrutiny is accurate notwithstanding the illogic of his position, and you can glean what again about the majority using your superior, reality-based powers of logic which nobody on the supreme court appears to possess?

No, I characterized it as Breyer's "description of strict scrutiny"

Oh I see, it's technically not your description because you weren't the one who made it, right? So are you going to disclaim your personal endorsement of Breyer's description now as well? "Breyer's description of strict scrutiny as applied to gun laws appears to be accurate." Is that you who thinks Breyer's description "appears to be accurate" or is that somebody else?

However, the argument I put forth following that, which is:


Originally Posted by kcbrown
Therefore, by objecting to Breyer's insistence upon using the methods of strict scrutiny, the court is ipso facto objecting to the use of strict scrutiny itself. Because to claim otherwise is to claim that the Supreme Court is objecting to the fact that the interest balancing inquiry isn't being called one of the "traditionally expressed levels", that they object merely to the fact that Breyer is divorcing what scrutiny does from what it's called.

is incorrect.

I have no idea what you're saying here. Are you admitting you were wrong? Whatever it was you said before that you're saying is incorrect now is incomprehensible.

My patience with you has officially reached its limit.

TrailerparkTrash
11-08-2013, 11:24 AM
Interesting article. Nice to see another major gun manufacturer actively joining in CA's continuing 2nd Amendment fight for all of our rights.

Article in its entirety:

"Attorneys for Glock, Inc. have filed an amicus curiae brief supporting the Second Amendment Foundation’s case in California, Pena v. Lindley, a lawsuit challenging the state handgun roster requirements that include microstamping and magazine disconnects.

Glock produces some of the most popular pistols in the world, and their guns are carried by law enforcement professionals and legally-armed private citizens across the United States.

“We are proud of Glock for stepping up to the plate,” said SAF founder and Executive Vice President Alan M. Gottlieb. “Glock believes, as do we, that California’s requirements place an undue burden on both consumers and manufacturers.”

According to the brief filed by attorneys Erik S. Jaffe of Washington, D.C. and John C. Eastman of Orange, Calif., Glock pistols are like the majority of semi-auto pistols manufactured today, because they do not include the magazine disconnect. Indeed, the brief notes that “the overwhelming majority of law enforcement agencies require pistols that do not have a magazine disconnect mechanism.”

Glock pistols, nor any other handgun in common use, can comply with California’s “microstamping” mandate, the brief notes. As a result the newest generation of Glock pistols is not on the California roster, and therefore cannot be sold to private individuals in that state.

“Under the First Amendment,” Gottlieb observed, “California is not allowed to compile a list of books you can read, and under the Second Amendment the state should not be allowed to compile a list of handguns you can own.”

Both Jaffe and Eastman clerked for Supreme Court Justice Clarence Thomas, Gottlieb noted. Mr. Eastman has considerable experience in civil and constitutional litigation, and was a candidate for California attorney general in 2010. He is a law professor at Chapman University. Mr. Jaffe also clerked for Judge Douglas H. Ginsburg of the U.S. Court of appeals in the District of Columbia. He has litigated in Washington, D.C. and has considerable experience in constitutional challenges.

“Glock definitely has an interest in this case,” Gottlieb said, “and their expertise could be crucial at this point. We’re glad they have chosen to weigh in.”

http://www.outdoorhub.com/news/glock-supports-second-amendment-foundations-suit/