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2nd Amend. Litigation Updates & Legal Discussion Discuss California 2A related litigation and legal topics here. All advice given is NOT legal counsel. |
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#41
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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.
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The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional. The real world laughs at optimism. And here's why. |
#42
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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.
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The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional. The real world laughs at optimism. And here's why. |
#43
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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. Think before you type (or at least before you post).
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My posts may contain general information related to the law, however, THEY ARE NOT LEGAL ADVICE AND I AM NOT A LAWYER. I recommend you consult a lawyer if you want legal advice. No attorney-client or confidential relationship exists or will be formed between myself and any other person on the basis of these posts. Pronouns I may use (such as "you" and "your") do NOT refer to any particular person under any circumstance. Last edited by Tincon; 11-05-2013 at 2:57 PM.. |
#44
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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.
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#45
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If you are saying that Heller considers intermediate scrutiny a "freestanding, 'interest-balancing'" test, I don't agree.
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#46
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My posts may contain general information related to the law, however, THEY ARE NOT LEGAL ADVICE AND I AM NOT A LAWYER. I recommend you consult a lawyer if you want legal advice. No attorney-client or confidential relationship exists or will be formed between myself and any other person on the basis of these posts. Pronouns I may use (such as "you" and "your") do NOT refer to any particular person under any circumstance. |
#47
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#48
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My posts may contain general information related to the law, however, THEY ARE NOT LEGAL ADVICE AND I AM NOT A LAWYER. I recommend you consult a lawyer if you want legal advice. No attorney-client or confidential relationship exists or will be formed between myself and any other person on the basis of these posts. Pronouns I may use (such as "you" and "your") do NOT refer to any particular person under any circumstance. Last edited by Tincon; 11-05-2013 at 3:37 PM.. |
#49
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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.
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"Extremism in the defense of liberty is no vice, but let me remind you also that moderation in the persuit of justice is no virtue" -Barry Goldwater “Remember that a government big enough to give you everything you want is also big enough to take away everything you have.” -Gerald Ford ^ |
#50
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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.
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My posts may contain general information related to the law, however, THEY ARE NOT LEGAL ADVICE AND I AM NOT A LAWYER. I recommend you consult a lawyer if you want legal advice. No attorney-client or confidential relationship exists or will be formed between myself and any other person on the basis of these posts. Pronouns I may use (such as "you" and "your") do NOT refer to any particular person under any circumstance. |
#51
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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? |
#52
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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?
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The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional. The real world laughs at optimism. And here's why. |
#53
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Agreed. The set of restrictions on laws that rational basis imposes = {}.
By definition (somehow), legislatures only act rationally. lol™
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The Rifle on the Wall "“[S]cientific proof” of both gun-rights and gun-control theories “is very hard to get”; therefore, requiring “some substantial scientific proof to show that a [firearm] law will indeed substantially reduce crime and injury” is tantamount to applying strict scrutiny to, and almost certainly will lead to invalidation of, the law." - Kamala Harris Lawyers and their Stockholm Syndrome |
#54
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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? |
#55
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Sloppy.
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#56
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Hey now, it might be cheap but it isn't sloppy. That is the standard applied in Turner.
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My posts may contain general information related to the law, however, THEY ARE NOT LEGAL ADVICE AND I AM NOT A LAWYER. I recommend you consult a lawyer if you want legal advice. No attorney-client or confidential relationship exists or will be formed between myself and any other person on the basis of these posts. Pronouns I may use (such as "you" and "your") do NOT refer to any particular person under any circumstance. |
#57
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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.
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The Rifle on the Wall "“[S]cientific proof” of both gun-rights and gun-control theories “is very hard to get”; therefore, requiring “some substantial scientific proof to show that a [firearm] law will indeed substantially reduce crime and injury” is tantamount to applying strict scrutiny to, and almost certainly will lead to invalidation of, the law." - Kamala Harris Lawyers and their Stockholm Syndrome |
#58
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My posts may contain general information related to the law, however, THEY ARE NOT LEGAL ADVICE AND I AM NOT A LAWYER. I recommend you consult a lawyer if you want legal advice. No attorney-client or confidential relationship exists or will be formed between myself and any other person on the basis of these posts. Pronouns I may use (such as "you" and "your") do NOT refer to any particular person under any circumstance. |
#59
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I've given you a hint by bolding your parenthetical explanation.
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#60
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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.
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My posts may contain general information related to the law, however, THEY ARE NOT LEGAL ADVICE AND I AM NOT A LAWYER. I recommend you consult a lawyer if you want legal advice. No attorney-client or confidential relationship exists or will be formed between myself and any other person on the basis of these posts. Pronouns I may use (such as "you" and "your") do NOT refer to any particular person under any circumstance. |
#61
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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.
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#62
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Welcome to the same fun that the rest of us have had to put up with when engaging him.
__________________
The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional. The real world laughs at optimism. And here's why. |
#63
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I can't help it if you and Tincon are not careful readers.
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#64
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"Careful" is not sufficient when your statements leave sufficient ambiguity as to be indeterminate.
__________________
The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional. The real world laughs at optimism. And here's why. |
#65
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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. You are one to talk lol.
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My posts may contain general information related to the law, however, THEY ARE NOT LEGAL ADVICE AND I AM NOT A LAWYER. I recommend you consult a lawyer if you want legal advice. No attorney-client or confidential relationship exists or will be formed between myself and any other person on the basis of these posts. Pronouns I may use (such as "you" and "your") do NOT refer to any particular person under any circumstance. |
#66
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Let's have a look at the actual text of the dissenting opinion, in context:
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Last edited by FABIO GETS GOOSED!!!; 11-05-2013 at 5:57 PM.. |
#67
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The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional. The real world laughs at optimism. And here's why. |
#68
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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: Quote:
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My posts may contain general information related to the law, however, THEY ARE NOT LEGAL ADVICE AND I AM NOT A LAWYER. I recommend you consult a lawyer if you want legal advice. No attorney-client or confidential relationship exists or will be formed between myself and any other person on the basis of these posts. Pronouns I may use (such as "you" and "your") do NOT refer to any particular person under any circumstance. |
#69
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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?
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The Rifle on the Wall "“[S]cientific proof” of both gun-rights and gun-control theories “is very hard to get”; therefore, requiring “some substantial scientific proof to show that a [firearm] law will indeed substantially reduce crime and injury” is tantamount to applying strict scrutiny to, and almost certainly will lead to invalidation of, the law." - Kamala Harris Lawyers and their Stockholm Syndrome |
#70
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Shockingly, not everyone believes that tripe.
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My posts may contain general information related to the law, however, THEY ARE NOT LEGAL ADVICE AND I AM NOT A LAWYER. I recommend you consult a lawyer if you want legal advice. No attorney-client or confidential relationship exists or will be formed between myself and any other person on the basis of these posts. Pronouns I may use (such as "you" and "your") do NOT refer to any particular person under any circumstance. |
#71
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The person who wrote this does:
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The Rifle on the Wall "“[S]cientific proof” of both gun-rights and gun-control theories “is very hard to get”; therefore, requiring “some substantial scientific proof to show that a [firearm] law will indeed substantially reduce crime and injury” is tantamount to applying strict scrutiny to, and almost certainly will lead to invalidation of, the law." - Kamala Harris Lawyers and their Stockholm Syndrome |
#72
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Maybe so, but note that you are quoting from the losing side.
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My posts may contain general information related to the law, however, THEY ARE NOT LEGAL ADVICE AND I AM NOT A LAWYER. I recommend you consult a lawyer if you want legal advice. No attorney-client or confidential relationship exists or will be formed between myself and any other person on the basis of these posts. Pronouns I may use (such as "you" and "your") do NOT refer to any particular person under any circumstance. |
#73
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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.
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#74
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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.
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The Rifle on the Wall "“[S]cientific proof” of both gun-rights and gun-control theories “is very hard to get”; therefore, requiring “some substantial scientific proof to show that a [firearm] law will indeed substantially reduce crime and injury” is tantamount to applying strict scrutiny to, and almost certainly will lead to invalidation of, the law." - Kamala Harris Lawyers and their Stockholm Syndrome |
#75
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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.
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The Rifle on the Wall "“[S]cientific proof” of both gun-rights and gun-control theories “is very hard to get”; therefore, requiring “some substantial scientific proof to show that a [firearm] law will indeed substantially reduce crime and injury” is tantamount to applying strict scrutiny to, and almost certainly will lead to invalidation of, the law." - Kamala Harris Lawyers and their Stockholm Syndrome |
#76
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Regardless oh how you think they feel, they are all subordinate to the Supreme Court.
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My posts may contain general information related to the law, however, THEY ARE NOT LEGAL ADVICE AND I AM NOT A LAWYER. I recommend you consult a lawyer if you want legal advice. No attorney-client or confidential relationship exists or will be formed between myself and any other person on the basis of these posts. Pronouns I may use (such as "you" and "your") do NOT refer to any particular person under any circumstance. |
#77
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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:
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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: Quote:
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.
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The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional. The real world laughs at optimism. And here's why. |
#78
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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.
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#79
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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.
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The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional. The real world laughs at optimism. And here's why. |
#80
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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.
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