Peña v. Cid (Handgun Roster) **CERT DENIED 6-15-2020**

[Tincon]

Originally Posted by speedrrracer

So I'm reading this to say that Breyer at least, when he applies strict scrutiny to a case, starts from the presumption that the law in question in unconstitutional.

Does anyone know if that view (that strict scrutiny means we start from a presumption that the law is unconstitutional) is widely held among the SCOTUS Justices?

That is the current law even for intermediate scrutiny. Only under rational basis is the burden on the challenger.

In determining whether governmental objectives are “important” under intermediate scrutiny, the party seeking to uphold the statute bears the entire burden of providing an “exceedingly persuasive justification” for the classification. Kirchberg v. Feenstra, 450 U.S. 455, 461 (1981).

[speedrrracer]

Originally Posted by Tincon

That is the current law even for intermediate scrutiny. Only under rational basis is the burden on the challenger.

In determining whether governmental objectives are “important” under intermediate scrutiny, the party seeking to uphold the statute bears the entire burden of providing an “exceedingly persuasive justification” for the classification. Kirchberg v. Feenstra, 450 U.S. 455, 461 (1981).

Thank you. So "deferring to the legislature", as Breyer wants, is meeting a standard for "exceedingly persuasive justification"?

To the layperson, that comes across more as abdication, not justification

[Tincon]

Originally Posted by speedrrracer

Thank you. So "deferring to the legislature", as Breyer wants, is meeting a standard for "exceedingly persuasive justification"?

To the layperson, that comes across more as abdication, not justification

In 1A law courts might defer to the legislature where there was no discriminatory application (and no substantial burden on the right). Breyer seems to ignore the inapplicable discriminatory application issue and just go right to the balancing test (part of intermediate scrutiny) for any 2A issue. The Heller majority rejected this approach. Where FGG and I disagree, apparently, is in whether the majority rejected intermediate scrutiny altogether, or just Breyer's twisted application of it.

[curtisfong]

Originally Posted by speedrrracer

Thank you. So "deferring to the legislature", as Breyer wants, is meeting a standard for "exceedingly persuasive justification"?

To the layperson, that comes across more as abdication, not justification

Yep. "deferring to the legislature" is equivalent to refusing to apply any standard at all.

[Tincon]

Originally Posted by curtisfong

Yep. "deferring to the legislature" is equivalent to refusing to apply any standard at all.

Brilliant in depth analysis, as usual.

[curtisfong]

Originally Posted by Tincon

Brilliant in depth analysis, as usual.

Right. So they apply a standard to decide when to "defer to the legislature"

Care to express what standard this is?

[Tincon]

Originally Posted by curtisfong

Right. So they apply a standard to decide when to "defer to the legislature"

Care to express what standard this is?

For 2A or ???

Because for 2A that has been rejected altogether.

[dawgcasa]

Originally Posted by Tincon

In 1A law courts might defer to the legislature where there was no discriminatory application (and no substantial burden on the right). Breyer seems to ignore the inapplicable discriminatory application issue and just go right to the balancing test (part of intermediate scrutiny) for any 2A issue. The Heller majority rejected this approach. Where FGG and I disagree, apparently, is in whether the majority rejected intermediate scrutiny altogether, or just Breyer's twisted application of it.

Agreed. My problem with justices such as Breyer and liberal/progressive politicians overall is they approach things like the 2A from the perspective that collective rights (e.g. 'Public' safety) as always trumping individual rights. Thus their perspective on interest balancing and allowing the discretion to the legislature (.gov) to establish the appropriate 'balance' of collective vs individual enumerated rights based on no real quantitative proof that the imposed regulations actually accomplish the stated .gov 'interest'. Also it's clear that Breyer and others like him believe the 2A should be singled out for 'special' treatment because of its implications on "Public Safety", despite the Heller majority position to the contrary.

And yet these arrogant, hypocritical, self appointed 'superior' guardians of our collective right to life, liberty, and the pursuit of happiness lack the intellectual integrity to apply the very same reasoning to the 4th amendment, which I argue allowing .gov infringement upon would be orders of magnitude more effective in providing for the "Public Safety". Imagine if LEO were allowed by law to perform warrantless searches and seizures based upon no probable cause given their extensive database of information on potential "law breakers". Forget taking guns out of the hands of the law abiding to reduce "gun violence" ... Just bust down doors and incarcerate all 'criminals'. It'd be "The Minority Report" in real life, but I'm betting it would have a quantifiable and measurable affect on overall public safety unlike most current gun regulations. But Breyer's mind won't embrace logic where if A is true then B must be true by similarity because he believes B (the 2A) is unique in the domain of individual rights because "guns kill people". He (and others like him) refuse to admit that people kill people, and that warrantless search and seizures would give them the power to get 'those' people off the streets most effectively. But wait, Breyer doesn't want those other 'good' rights implicated. Welcome to a world where judges and politicians believe they are more qualified to determine what's good or bad for the 'public' than the public themselves or these pesky things documented in the Constitution.

[RipVanWinkle]

Originally Posted by Tincon

In 1A law courts might defer to the legislature where there was no discriminatory application (and no substantial burden on the right). Breyer seems to ignore the inapplicable discriminatory application issue and just go right to the balancing test (part of intermediate scrutiny) for any 2A issue. The Heller majority rejected this approach. Where FGG and I disagree, apparently, is in whether the majority rejected intermediate scrutiny altogether, or just Breyer's twisted application of it.

You mention the magic phrase here: "substantial burden on the right." This is the heart of the defense's argument in Peña v. Cid. It's also been the basis of Fabio's criticism of the plaintiff's case. See post #12 http://www.calguns.net/calgunforum/s...d.php?t=812117 in this thread. The defense urges the court to adopt the substantial burden standard in DeCastro:

Rather, heightened scrutiny is triggered only by those restrictions that (like the complete prohibition on handguns struck down in Heller) operate as a substantial burden on the ability of law-abiding citizens to possess and use a firearm for self-defense (or for other lawful purposes).

http://caselaw.findlaw.com/us-2nd-circuit/1602105.html

In other words, DeCastro first applies the "Substantial Burden Test" to determine if the law being challenged substantially burdens (whatever that means) the right in question. If the law or regulation is found not to substantially burden the right then no heightened scrutiny is required, end of inquiry.

Because § 922(a)(3) does not substantially burden the fundamental right to obtain a firearm sufficient for self-defense, and attempts only to assist states in the enforcement of their own gun laws, it does not infringe the Second Amendment right to keep and bear arms, and its sweep is therefore plainly legitimate.

Compare that with this quote from the Heller majority rejecting Breyer's argument for an "interest balancing inquiry".

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.

It could be argued that this procedure is at odds with Heller, because the "Substantial Burden Test", at least as manifested in DeCastro, appears to be nothing more that a "judge empowering 'interest balancing inquiry'" in which the minimal burden on the right to obtain a firearm for self defense is outweighed by the assistance to the states in the enforcement of their own gun laws; exactly what the Heller majority explicitly rejects.

Worse, it puts the cart before the horse insofar as it is used to circumvent the "traditionally expressed levels (strict scrutiny, intermediate scrutiny, rational basis)" that Heller prefers for constitutionally enumerated fundamental rights. Failing the "Substantial Burden Test" allows the lower courts to switch the inquiry off onto a dead end siding.

I don't know if that is the exact basis for Fabio's criticism of the plaintiffs case, but given the defense's reliance on the DeCastro standard and the precedents in the district courts, Teixeira, Richards, the plaintiffs had better be prepared to confront the "Substantial Burden Test" head on in Peña.

[Tincon]

It could be argued that this procedure is at odds with Heller, because the "Substantial Burden Test", at least as manifested in DeCastro, appears to be nothing more that a "judge empowering 'interest balancing inquiry'" in which the minimal burden on the right to obtain a firearm for self defense is outweighed by the assistance to the states in the enforcement of their own gun laws; exactly what the Heller majority explicitly rejects.

Well, that's certainly my argument.

[speedrrracer]

Originally Posted by FABIO GETS GOOSED!!!

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.

Hoping for a bit of an education here -- so Heller 1 says you could never possess a handgun in your home... this seems to be a total, blanket, all-encompassing ban. Way beyond "substantial", is it not?

For example, they could have said, you can not possess a handgun in your home on weekends, but weekdays are OK. Or only half the time.

Somewhere this side of "total" is still "substantial", no?

Or do they mean substantial in the sense of "concerning the essence" -- so, effecting the core of the right? If self-defense is the core, can't the Roster (since it limits my choices to a small fraction of the available options, most of which are older, inferior models) be said to be of substantial burden? I'm kind of thinking about the abortion logic from SCOTUS, where they ruled you have to have access to the best possible procedures for your abortion, not just some subset of procedures of which the legislature approved.

Thanks for any explanation!

[FABIO GETS GOOSED!!!]

Originally Posted by speedrrracer

Or do they mean substantial in the sense of "concerning the essence" -- so, effecting the core of the right? If self-defense is the core, can't the Roster (since it limits my choices to a small fraction of the available options, most of which are older, inferior models) be said to be of substantial burden?

The question would be, how severe does the regulation burden effective self-defense? The inquiry could potentially include a look at whether the regulation "leaves law abiding citizens with reasonable alternative means for obtaining firearms sufficient for self-defense purposes" (I'm quoting the 2011 Nordyke panel opinion there). The CGF MSJ is a lazy, recycled version of the MSJ that was filed back in 2009, and although CGF jettisoned the journal articles which provided all kinds of data helpful for the state on magazine disconnects and loaded chamber indicators ( ), 3 of the 4 individual plaintiffs' supporting declarations do not even attempt to provide any fact-specific evidence of "burden."

I would acquire new semiautomatic handguns of the kind in common use throughout the United States, for traditional lawful purposes including self-defense, but cannot do so owing to California’s rostering scheme.

The fourth (one-armed plaintiff) declaration says this:

7. I was born without an arm below the right elbow.

8. The Glock 21 SF with a standard magazine release is listed on the California
Handgun Roster.

9. However, the Glock-21 SF with ambidextrous magazine release is superior for lefthanded shooters such myself, as opposed to the approved version of the Glock 21.

Ok, I guess the court can just take his word for it that it's "superior" lol. Interestingly the Glock amicus brief at least tries to mount an argument that mag disconnects are a "significant disadvantage" and that is the closest argument you'll see to "burden" in this case.

[kcbrown]

Originally Posted by FABIO GETS GOOSED!!!

The question would be, how severe does the regulation burden effective self-defense?

Is that the only way a Constitutional infringement can occur here?

I mean, self-defense is regarded as the core of the right, but not, as far as I know, the entirety of it.


By way of analogy to the 1st Amendment, the core of that right is, as far as I know, political speech. But aren't regulations which sufficiently burden some other aspect of the right to free speech (i.e., non-political speech) still regarded as infringing for Constitutional analysis purposes?

I realize that 2nd Amendment jurisprudence is in its infancy, but it's not clear to me what logical basis the courts would have for treating the right it protects any differently (much less worse) than the rights protected by other Amendments.

[elSquid]

Originally Posted by kcbrown

By way of analogy to the 1st Amendment, the core of that right is, as far as I know, political speech. But aren't regulations which sufficiently burden some other aspect of the right to free speech (i.e., non-political speech) still regarded as infringing for Constitutional analysis purposes?

I realize that 2nd Amendment jurisprudence is in its infancy, but it's not clear to me what logical basis the courts would have for treating the right it protects any differently (much less worse) than the rights protected by other Amendments.

From:

http://classes.lls.edu/archive/manhe...lowcharts.html

"First Amendment Flowcharts"

The below is one of many...



It's highly likely that something similar will develop for the 2nd over the next 100 years...

-- Michael

[fizux]

In 100 years, I think it will look closer to this ppt slide:
http://msnbcmedia.msn.com/i/MSNBC/Co...gel-big-9a.jpg

[RipVanWinkle]

Originally Posted by speedrrracer

Or do they mean substantial in the sense of "concerning the essence" -- so, effecting the core of the right? If self-defense is the core, can't the Roster (since it limits my choices to a small fraction of the available options, most of which are older, inferior models) be said to be of substantial burden? I'm kind of thinking about the abortion logic from SCOTUS, where they ruled you have to have access to the best possible procedures for your abortion, not just some subset of procedures of which the legislature approved.

Thanks for any explanation!

I have no claims to expertise on any of this stuff, but there is one aspect of this case that I would emphasize were I making an argument that the statute in question imposes a severe burden on the right to keep and bear arms for lawful purposes. If the law regulating the roster had been left as it was when the litigation started, it would be more difficult to demonstrate such a burden.

However, the legislature wasn't content to leave well enough alone, but went a bridge too far. They added the micro-stamping requirement to to the law commencing 05/17/2003, knowing full well that no currently manufactured firearms can meet the standard, and no designs incorporating that technology are currently under development. Presumably, no new semi-automatic, center-fire handguns have been submitted for testing since last May.

The rationale for the micro-stamping requirement does not rely on any claim that it improves the safety of a handgun, nor does it offer much in the way of crime prevention. It may be of some use in consolidating evidence after a crime has been committed. In short, it might address the issue of public safety only in an attenuated fashion, diminishing the safety argument on which most gun control laws rely, and can only appeal to less important government interests.

What it does accomplish, going forward, is to render new models of the most common and preferred handguns for self defense purposes, semi-automatic centerfire pistols, unlawful for sale in California. This is the most common type of handgun in use, accounting for a little more than 2/3 of all handguns sold. That constitutes a severe burden on the right to acquire arms for purposes of self defense, and it targets the particular class of weapons that are best suited for that purpose without addressing any important, much less compelling, government interest.

Feel free to flesh out this argument.

[speedrrracer]

Originally Posted by RipVanWinkle

That constitutes a severe burden on the right to acquire arms for purposes of self defense, and it targets the particular class of weapons that are best suited for that purpose without addressing any important, much less compelling, government interest.

I kind of disagree on this initial part, although you sort of back away in the second part -- with the Roster, you can still acquire arms. There are pistols on the Roster, so when you're this generic, the argument doesn't hold water.

The problem is the right to acquire the arms best suited for purposes of self-defense, and I don't mean pistols in general, which I think is what you mean.

All pistols are not equal for each person's circumstances. And as with my (probably misguided) attempt at the Stenberg v Carhart (or whatever it was) abortion case, you have a right for the best procedure for your particular situation.

Just because we can all buy some old, discontinued model of pistol brand X does not mean that pistol is best for me, and in fact it might pose life-threatening problems.

The micro-stamping thing just exacerbates the problem. It completely freezes us off from all advancements in safety, reliability, etc. It shouldn't fly if we forced all women to get an abortion from a doctor in the 1970s instead of having the full benefit of modern advancements, and it shouldn't fly now that we force all Californians to have outdated firearms.

I must have mis-read something, but I thought enumerated rights were given elevated protection compared to non-enumerated rights. Is that incorrect?
If so, how do abortions get the latest / greatest, but the 2A does not?

Re-reading Fabio's post, perhaps the problem isn't the available set of arguments against the Roster, but rather the specific set of arguments presented in Pena. If the arguments in Pena are weak / insufficient / "recycled", can they be augmented / amended?

[Tincon]

Keeping in mind that this substantial burden test has not been endorsed by, and has arguably been rejected by, the Supreme Court.

[taperxz]

Originally Posted by FABIO GETS GOOSED!!!

The question would be, how severe does the regulation burden effective self-defense?

It slowly extinguishes the right.

The regulation as of now and with the micro stamping will force gun owners in this state to be left behind the modern weapons technology.

The most effective weapons that are not on the roster will not be available to us do to these regulations.

In 100 years of this, we will have only antique handguns available to us and the rest of the country and the criminals bringing the modern weapons into CA will have modern handguns. Thus, leaving the law abiding citizen virtually defenseless.

[curtisfong]

Originally Posted by taperxz

It slowly extinguishes the right.

A logical viewpoint, but one that is unlikely to mean anything in court, IMO.

[RipVanWinkle]

Originally Posted by speedrrracer

-- with the Roster, you can still acquire arms. There are pistols on the Roster, so when you're this generic, the argument doesn't hold water.

Yes, there are pistols on the roster, but how long will they continue to be there? Say Glock or Ruger comes out with a new model that doesn't include micro-stamping, consequently stopping production of the previous model that the new model replaces. The new model will be ineligible to even apply for roster testing, and they won't continue to pay for keeping the old model on the roster because they aren't making or selling them any longer. The old models in the hands of private parties can still be traded in PPTs, but FFLs won't be stocking or selling them. The supply of center-fire semi-auto pistols, the class of weapons most desired and appropriate for lawful purposes of self defense, will dry up. That's the burden on the right.

It's as though CARB declared that only new all-electric vehicles would be allowed in CA after 05/17/2013. The only new vehicles that could be sold would be Teslas, Volts, Leafs (Leaves?) etc. All new car models with internal combustion engines, including hybrids, could no longer be sold. Existing vehicles that are in private hands could be traded in private party transactions on the used car market, but no new fuel burners would be allowed. Would Ford continue to pay the state of CA so they could keep selling 2013 model Mustangs and Fusions here? Would they maintain production of the old models when they've re-tooled for the 2014 models, the 2015 models,........?

My fanciful auto example above at least has the virtue (from the regulator's point of view) of broadly having an interest in "public safety". In the gun control world "public safety" is the trump card in the "important (compelling) government interest" game. Micro-stamping is only peripherally (if at all) related to "public safety". It's an overreach on the part of the legislature and a weak point in a "substantial burden" argument.

[taperxz]

Originally Posted by curtisfong

A logical viewpoint, but one that is unlikely to mean anything in court, IMO.

Its so logical that it is the basis of the case.

A law is not just for today. A good law stands the test of time. Why would anyone want to uphold a bad law in court? All its doing is kicking the can down the road.

(which we have seen a lot of lately)

[fizux]

Originally Posted by speedrrracer

with the Roster, you can still acquire arms. There are pistols on the Roster, so when you're this generic, the argument doesn't hold water.

This sounds eerily like "if it wasn't made prior to 1789, it isn't an Arm protected by the 2A" and "D.C.'s ordinance doesn't ban all handguns, just those that weren't registered before 1976."

You have 4A rights in your car, as long as you registered them with Deming PD before 2012.

[curtisfong]

Originally Posted by taperxz

Its so logical that it is the basis of the case.

A law is not just for today. A good law stands the test of time. Why would anyone want to uphold a bad law in court? All its doing is kicking the can down the road.

(which we have seen a lot of lately)

Obviously, I agree with you 100%... but making that determination is something the courts simply can't do.. unless you happen to find a judge, by luck, who not only agrees with you, but also is willing to make that part of his/her decision w/o any supporting law or precedent.

The court, as an entity, is totally unconcerned whether or not a law will stand the test of time.

Now, I am not a lawyer. Perhaps there is case law (and precedent), in which a court has struck down a law due to some logical flaws it presents in the very, very long run.

I doubt it. I assume the courts will simply say "if there is a long term problem, the legislature will no doubt fix it when the problem arises".

[speedrrracer]

Originally Posted by RipVanWinkle

Yes, there are pistols on the roster, but how long will they continue to be there?

Another excellent point, I agree. I suppose it shows a future burden, and I suppose a court will regard it as pointless. "Come back when the problem has manifested itself, not before"

My fanciful auto example above at least has the virtue (from the regulator's point of view) of broadly having an interest in "public safety". In the gun control world "public safety" is the trump card in the "important (compelling) government interest" game. Micro-stamping is only peripherally (if at all) related to "public safety". It's an overreach on the part of the legislature and a weak point in a "substantial burden" argument.

Nitpicky of me, probably, but no one ever mentions the public safety side of having the best tools for self-defense. Isn't a newer model of a pistol, with improvements to reliability, design & safety, also in the interests of public safety?

Originally Posted by Tincon

Keeping in mind that this substantial burden test has not been endorsed by, and has arguably been rejected by, the Supreme Court.

OK, thank you. So the other likely option is levels of scrutiny, is that correct?

Also, I wanted to ask you, since you agree w/Fabio that the Pena case is not well done, and since you also feel the NRA's briefs were instrumental in helping to win Heller, can the NRA (or anyone) swoop in with some epic briefs and help win Pena? Is it too late for such things (and in that case why didn't they swoop in earlier?) or can such things not be done at this level, or?

[Tincon]

[QUOTE=speedrrracer;12756691]
OK, thank you. So the other likely option is levels of scrutiny, is that correct?
QUOTE]

Well that seems most likely. There is a reading of Heller that implies a (somewhat novel) categorical approach, where any actual infringement on the right is unconstitutional. However, I think it is much more likely that we will see a traditional scrutiny approach applied.

Originally Posted by speedrrracer

Also, I wanted to ask you, since you agree w/Fabio that the Pena case is not well done, and since you also feel the NRA's briefs were instrumental in helping to win Heller, can the NRA (or anyone) swoop in with some epic briefs and help win Pena? Is it too late for such things (and in that case why didn't they swoop in earlier?) or can such things not be done at this level, or?

It hasn't even been tried yet, and will likely be disposed of by MSJ in favor of defendant. I think amicus briefs have more value at the appellate level.

[kcbrown]

Now that the 9th Circuit has officially adopted the "substantial burden" test (in US v Chovan) combined with their holding that it is only "in the home" that is the core of the right, you can pretty much kiss the entire right to keep and bear arms in public goodbye, as well much of it as regards "in the home". Most certainly, the roster will be upheld on that basis, and that means that California will be able to ban all handguns as long as it leaves one make and model on the table, where said make and model will be required to have a plethora of "features" for the purpose of "public safety" -- features such as built-in OnStar-like tracking capability, user identification, etc. They'll be able to get away with dropping all currently rostered guns that lack the "new" features as long as at least one make and model is currently being sold with the "new" features, because requiring someone to buy a new gun is obviously not a substantial burden on their right, just an inconvenience. They'll be able to ratchet up the requirements in that way.

Similarly, they'll be able to neuter the guns in question, requiring that they be single-shot, since that's the kind of handguns that existed back during the ratification of the 2nd Amendment. After all, it doesn't represent a substantial burden on the right...


At least you can take comfort that it won't be long before these same courts start upholding restrictions on all other rights, such as the right to free speech, through the same "substantial burden" argument. Which is to say, those who hate the right to keep and bear arms but who favor other rights will soon find themselves in the same boat as those of us who favor the right to keep and bear arms. And we will rightly be able to tell them that they deserved the outcome, for if there is anyone who deserves to have their rights stricken, it is those who clamor for it.


All of what we're seeing is the weakening to the point of ineffectiveness of the judiciary's role as a check against government power. With doctrines in place such as "constitutional avoidance", "presumption of constitutionality", and now "substantial burden", the judiciary is now little more than a rubber stamping machine for government control.

And that is entirely consistent with history.

[IVC]

Originally Posted by kcbrown

Now that the 9th Circuit has officially adopted the "substantial burden" test (in US v Chovan) combined with their holding that it is only "in the home" that is the core of the right, you can pretty much kiss the entire right to keep and bear arms in public goodbye, as well much of it as regards "in the home".

Except that the CA-7 in determined that the right to *carry* exists and used that reasoning to strike down the IL no-issue.

We're in 9th, but the split of this magnitude cannot stand.

[fizux]

Originally Posted by IVC

Except that the CA-7 in determined that the right to *carry* exists and used that reasoning to strike down the IL no-issue.

We're in 9th, but the split of this magnitude cannot stand.

Unless there is a really major earthquake, California isn't leaving 9CA for 7CA anytime soon. Once SCOTUS resolves that split, the California legislature will view the decision as an invitation to find new ways to ban all guns under the guise of "public safety."

[kcbrown]

Originally Posted by IVC

Except that the CA-7 in determined that the right to *carry* exists and used that reasoning to strike down the IL no-issue.

We're in 9th, but the split of this magnitude cannot stand.

Yes, well, the split of this magnitude already exists between the 7th circuit and all the others (save, perhaps, for the 10th), and SCOTUS has nevertheless let it stand.

So what, exactly, will change here? Absolutely nothing, that's what.

The notion that the Supreme Court is more interested in an issue when there is a circuit split than when there is not presupposes that the Court would be less interested in an issue when all of the lower courts are consistently ruling incorrectly on it than when some are ruling correctly on it. But if that is the case, then it follows that the Supreme Court is interested more in harmony of the courts than whether or not they are upholding the Constitution properly. And if that is the case, then there is little reason to believe that the Supreme Court will have much interest in hearing a carry case after the 9th Circuit has opined, since the 9th's opinion will have no effect on whether or not a split exists, nor (based on Chovan) will it have any effect on the way carry in public has been treated by the courts overall. The 7th Circuit stands as a stark exception to the rest, but it is alone.

No, I have absolutely no reason at this point to believe that the Supreme Court has any interest in the issue of RKBA in public, and every reason to believe that it does not, particularly since there is absolutely no evidence of interest on its part (only of at most two of its members, one of whom has no credibility at all), and plenty of evidence to the contrary.


Additionally, you are presuming here that the acknowledgement of the right to carry in public is actually meaningful in and of itself. It is not. The 9th Circuit's construction makes it possible for it to simultaneously claim that said right exists (but that it is not the "core") and that any law motivated by public safety will stand, because that is precisely the end result of applying "intermediate scrutiny" to RKBA. This is because of the very nature of the right, in that it inherently involves objects which are dangerous by definition, so any reduction in the possession or access to that which is protected by the right is automatically in the interests of "public safety".

Scrutiny works well enough (for the most part) when the object of the Constitutional protection is perceived as generally harmless, because peaceful uses of such an object do not result in harm. It does not work at all when the object of the Constitutional protection automatically causes it to run squarely into conflict with a "compelling government interest", particularly when use of the object in question for the purpose of satisfying the core of the right has a high probability of resulting in harm. Arms are inherently of the latter variety, because they must be in order to be effective.

The judiciary is generally intent on writing RKBA out of the Constitution to the degree it can, and the constructions it uses for typical Constitutional analysis make it possible to accomplish that very nearly automatically. FGG has argued here that the Supreme Court in Heller does not regard scrutiny as being in conflict with its decision, but it seems to me that the wording they used is solid indication that the majority was keenly aware that the very nature of the right in question would cause it to be automatically neutered by all forms of "scrutiny".

Either the right stands and scrutiny is inapplicable to it, or scrutiny stands and the right falls. There is no other possible outcome.

[curtisfong]

I don't see any incentive for SCOTUS to resolve a Circuit split on an issue they aren't willing to speak plainly on at this point.

[IVC]

Originally Posted by kcbrown

So what, exactly, will change here? Absolutely nothing, that's what.

You're mixing time scales. We've had two major rulings in 2008 and 2010 after over half a century of lower court cases interpreting 2A as being a collective right. It appears that the SCOTUS is currently in a waiting pattern until they can tell how the lower courts will interpret the two recent rulings and until they have something to work with.

So, most likely little will change in the short term, but that's not an indication of the implicit endorsement of what's going on by SCOTUS. Time and time again they've said that not taking a case is no indication of their intent.

Besides, look at the animated GIF of "right to carry" in the past 25 or so years. It's clear that we have today only a few strongholds of anti gun legislators, while the rest of the country can not only carry, but we have many "constitutional carry" states. Also, many states have RKBA in their state constitutions and are under completely different rule set than CA.

Nationally, the trend is going our way, we have a confirmed individual right, the second AWB didn't pass and there was little appetite for introducing any gun control legislation even after the latest massacre that was particularly gruesome and sickening since it involved children. I guess Bradys were dancing in the streets when it happened since they finally got their "perfect storm" of emotional "for the children" type tragedy, yet nothing happened. If this doesn't warrant at least *some* "cautious optimism," I don't know what would.

[M. D. Van Norman]

Originally Posted by IVC

It appears that the SCOTUS is currently in a waiting pattern until they can tell how the lower courts will interpret the two recent rulings and until they have something to work with.

The lower courts are ignoring the rulings or holding them strictly to the facts of those specific cases, even though the implications for the right are clearly much broader.

Originally Posted by IVC

It’s clear that we have today only a few strongholds of anti gun legislators, while the rest of the country can not only carry, but we have many “constitutional carry” states.

Unfortunately, the prohibitionist strongholds are home to nearly 100 million people, who will continue to suffer thanks to the Supreme Court’s ersatz federalism. But yeah, the rest of the country isn’t doing so badly. That’s why it’s time for me to go there.

[kcbrown]

Originally Posted by IVC

You're mixing time scales. We've had two major rulings in 2008 and 2010 after over half a century of lower court cases interpreting 2A as being a collective right. It appears that the SCOTUS is currently in a waiting pattern until they can tell how the lower courts will interpret the two recent rulings and until they have something to work with.

The timeline of the civil rights cases post-Brown casts serious doubt on this. That timeline was much more aggressive. The time between the issuance of Brown v Board of Education (1954) and the first of the followup cases was less than one year (Bolling v Sharpe was decided in 1954, the equivalent of Heller and McDonald having been decided in the very same year). After that, it was a scant one year until the next case ("Brown II", in 1955). Then another 3 years for NAACP v Alabama (and that had made it to the Supreme Court three prior times), then Cooper v Aaron in 1958, then Boynton v Virginia in 1960, then Heart of Atlanta Motel v United States in 1964 (which upheld the Civil Rights Act of 1964, so there was no real delay on that case).

No, the Supreme Court has illustrated that it is perfectly capable of acting swiftly when it actually has the interest in doing so. That it is not doing so here indicates that it lacks the interest. Remember: A -> B means that !B -> !A. Since interest implies swift action, lack of swift action implies lack of interest.

The Supreme Court has plenty to work with. But in any case, your hypothesis presupposes that the Supreme Court is unable to reach the correct conclusions about fundamental Constitutional issues without "guidance" from the lower courts, which would imply a reversal of roles of sorts, with the Supreme Court actually being an inferior court ("supreme" in name only).

So, most likely little will change in the short term, but that's not an indication of the implicit endorsement of what's going on by SCOTUS. Time and time again they've said that not taking a case is no indication of their intent.

Yes. But how often have they proven that? I submit that it is very rare. ETA: And in any case, we're not talking about refusal to take one case, we're talking about refusal to take case after case on the same subject. When you ask the same question over and over again (and in different ways, to boot) and get no answer every time, it should be obvious that you're not going to get an answer.

Besides, look at the animated GIF of "right to carry" in the past 25 or so years. It's clear that we have today only a few strongholds of anti gun legislators, while the rest of the country can not only carry, but we have many "constitutional carry" states. Also, many states have RKBA in their state constitutions and are under completely different rule set than CA.

We're talking about the 2nd Amendment here, not state constitutions. And in any case, we're also talking about what is supposed to be a right. That states can currently choose to infringe upon the right or not at their pleasure makes what we're talking about a privilege. It will not be a real right until there is no place in the land where the government can infringe upon it and get away with it.

Nationally, the trend is going our way, we have a confirmed individual right, the second AWB didn't pass and there was little appetite for introducing any gun control legislation even after the latest massacre that was particularly gruesome and sickening since it involved children. I guess Bradys were dancing in the streets when it happened since they finally got their "perfect storm" of emotional "for the children" type tragedy, yet nothing happened. If this doesn't warrant at least *some* "cautious optimism," I don't know what would.

That's true as far as it goes, but fails to account for shifting demographics and the ongoing destruction of the Republican party. Colorado is proof of that shift. There may indeed be cause for some cautious optimism, but it must be very cautious indeed.

[IVC]

Originally Posted by kcbrown

No, the Supreme Court has illustrated that it is perfectly capable of acting swiftly when it actually has the interest in doing so. That it is not doing so here indicates that it lacks the interest. Remember: A -> B means that !B -> !A. Since interest implies swift action, lack of swift action implies lack of interest.

The perfect case was Moore v. Madigan and Madigan decided to weasel out - the fiduciary duty to see the laws defended took the back seat to the political platform of stopping gun rights as much as possible.

All other cases involved "may issue" and I would agree that there is no interest in addressing "may issue," but I wouldn't read it past that as we have no proof to the contrary.

In addition to the "right licensing schemes" we also have all sorts of attempts on types of firearms that can be owned, ammunition rationing, etc. These are very relevant and important issues and until we have a consistent denial of certiorari for a broad range of gun related issues I wouldn't share your gloom. Not saying it won't happen, just that we're not there yet.

Originally Posted by kcbrown

There may indeed be cause for some cautious optimism, but it must be very cautious indeed.

This is the second time I've seen you use the word "optimism" in a non-derogatory manner. It must be getting pretty cold in hell.

[kcbrown]

Originally Posted by IVC

The perfect case was Moore v. Madigan and Madigan decided to weasel out - the fiduciary duty to see the laws defended took the back seat to the political platform of stopping gun rights as much as possible.

All other cases involved "may issue" and I would agree that there is no interest in addressing "may issue," but I wouldn't read it past that as we have no proof to the contrary.

But that's the same thing as stating that they have no interest in upholding the right to keep and bear arms in public, precisely because a right which can be exercised only when the government approves on a case-by-case basis due to its discretion is no right at all, but is instead a privilege.

You're trying to avoid directly saying what I'm saying. It won't work.

In addition to the "right licensing schemes" we also have all sorts of attempts on types of firearms that can be owned, ammunition rationing, etc. These are very relevant and important issues and until we have a consistent denial of certiorari for a broad range of gun related issues I wouldn't share your gloom. Not saying it won't happen, just that we're not there yet.

Well, let me put it this way: if the Supreme Court really does intend to limit the right to the home, then they will grant cert to some of those cases but continue to deny cert to the public carry cases. If they are completely done with the 2nd Amendment, then they won't. But the real question is the right in public. Since the majority of self-defense situations occur there, the right in public is of even greater importance than that of the home, even if it happens to be more difficult for the judiciary to swallow.

My statements as regards the Supreme Court are mainly with respect to the right in public, not necessarily the 2nd Amendment as a whole. My hypothesis is that they're done with us as regards upholding the right beyond the home. I have much less of an opinion with respect to the in-the-home aspect of it, because there just isn't any real data to go on yet.

However, the rest of the judiciary is another matter. I have reason to believe that the rest of the judiciary will attempt to neuter the right in the home to the degree they can. Osterweil v Bartlett should serve as a warning about that.

This is the second time I've seen you use the word "optimism" in a non-derogatory manner. It must be getting pretty cold in hell.

That's because I'm a realist, though a very stark one. Neither heaven nor hell has room for one such as me.

[IVC]

Originally Posted by kcbrown

But that's the same thing as stating that they have no interest in upholding the right to keep and bear arms in public, precisely because a right which can be exercised only when the government approves on a case-by-case basis due to its discretion is no right at all, but is instead a privilege.

Up to a point. Some exercise of 1A also requires a permit, e.g., for large gatherings in a city. The permit by itself doesn't make it a "privilege" unless the permitting process is abused, in which case the courts would have to intervene to rectify it.

Let's say, for the sake of argument, that the Supreme Court wants to say that permits for carrying are permissible in general, but the right has to be available to the general public. How are they to say it without having to address very detailed and location-specific restrictions that come with "may issue" in places such as NY or CA? There is very little room to make a "narrow ruling" and avoid unintended consequences.

I would say that Madigan put us in a sort of a pickle by refusing to appeal Moore, albeit at the price of IL going "shall issue" and having a standing decision in CA-7 that 2A exists outside the home. After Moore, I'd say that our side will have to use a slightly different approach to get an appealing case before SCOTUS. I'm not quite clear on what the new approach should be, but the consistent refusal from SCOTUS to take up "may issue" cases leads me to believe that the strategy needs to change.

On a separate note, let's not forget that the SCOTUS could've granted cert in some of the recent cases and explicitly stated that the "2A right is limited to home" if your interpretation of their intent were correct. This didn't happen, so I would be careful with the tea leaves for the time being.

[kcbrown]

Originally Posted by IVC

Up to a point. Some exercise of 1A also requires a permit, e.g., for large gatherings in a city. The permit by itself doesn't make it a "privilege" unless the permitting process is abused, in which case the courts would have to intervene to rectify it.

You missed the key part of my sentence: "on a case-by-case basis due to its discretion".

Permits for speech are not discretionary, and, in fact, the Supreme Court has issued decisions against such discretionary permits for speech (see, e.g., City of Lakewood v Plain Dealer Publishing). Further, permits for speech do not govern the entirety of the right in public, but only very specific exercises of it. Permits for carry, on the other hand, govern the right in public in its entirety. That makes the latter a much greater burden on the right. I know of no other right, much less a Constitutionally protected one, that has some public component to it which has the entirety of its public component controlled through government permits. Not even the right of travel has that kind of burden on it.

On a separate note, let's not forget that the SCOTUS could've granted cert in some of the recent cases and explicitly stated that the "2A right is limited to home" if your interpretation of their intent were correct. This didn't happen, so I would be careful with the tea leaves for the time being.

It is far more politically dangerous for SCOTUS to do that than it is for it to accomplish exactly the same thing by doing nothing at all, and letting the lower courts do the dirty work of denying the right.

[ddestruel]

were orals today?

[Bhobbs]

Originally Posted by ddestruel

were orals today?

I think they were. I saw Gene post something about orals being today.