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California 2nd Amend. Political Discussion & Activism Discuss gun rights activism and 2A related political topics here. All advice given is NOT legal counsel.

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  #1  
Old 09-14-2011, 9:20 PM
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Default SCOTUS 2A Activity - Lowery v. US

Mr. Lowery, a normal 25 year old law abiding resident of D.C., was convicted in the DC courts of illegal possession of a firearm. I need to digress and explain that DC has a version of a "state" court system and this is it. Mr. Lowery appealed as Heller was decided after his conviction and on appeal he claimed that the DC handgun ban as applied to him was unconstitutional in light of Heller. 2-1, the DC "state" court of appeals denied his appeal.

Mr Lowery then petitioned for Cert with SCOTUS. Initially the Solicitor General declined to file opposition. That's usually a death knell for "normal" cases. However, today, SCOTUS requested the views of the SG. That places this case into a position for a high likelyhood of some sort of Supreme Court activity.

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Old 09-14-2011, 9:24 PM
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is SCOTUS shopping for more 2A cases?
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Old 09-14-2011, 9:24 PM
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Interesting... What are the chances of this and Williams both being granted cert?

Erik.
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Old 09-14-2011, 9:34 PM
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Wow! Very interesting, three clean criminal cases pending cert.
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Old 09-14-2011, 9:38 PM
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I am so excited that I nearly fell out of my chair... LOL.... At this rate changes may happen before I figure out how to move out of this state... HAHA
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Old 09-14-2011, 9:41 PM
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Wow, could this be SCOTUS not liking Williams or Masciandro so they go out and find a better case for us?

I will have to read up on this case.
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Old 09-14-2011, 9:53 PM
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Huh... It seems like another "handgun in the home" case. Other than solidifying this aspect of RKBA, what else could it do for us? I will admit I am a bit puzzled.

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Old 09-14-2011, 9:53 PM
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I think this case is wholly independent of Williams and Masciandaro in a way that those tow are not as independent of each other.

-Gene
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Old 09-14-2011, 9:54 PM
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Are the lawyers on it good?
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Old 09-14-2011, 9:56 PM
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Quote:
Originally Posted by SwissFluCase View Post
Huh... It seems like another "handgun in the home" case. Other than solidifying this aspect of RKBA, what else could it do for us?
It could go to scrutiny and otherwise just reinforce that the 2A must be treated like other rights.
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Are the lawyers on it good?
The right people are and have been in touch and don't have concerns.

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Old 09-14-2011, 9:59 PM
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Originally Posted by hoffmang View Post
It could go to scrutiny and otherwise just reinforce that the 2A must be treated like other rights.
Is there any chance we could get strict scrutiny?

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Old 09-14-2011, 10:12 PM
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Originally Posted by SwissFluCase View Post
Is there any chance we could get strict scrutiny?

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We already have heightened via CA9 in Nordyke III where sensitive places might not be so sensitive, no?

Erik.
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Old 09-14-2011, 10:23 PM
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I read the appeals case. I don't see anything too interesting there. It was a pre Heller case. I think the court was bound by precedent to not allow the Second Amendment claim on appeal because it was not raised at trial. I think this case is about procedural issues more than a Second Amendment claim.
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Old 09-14-2011, 10:54 PM
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Quote:
Originally Posted by Crom View Post
I read the appeals case. I don't see anything too interesting there. It was a pre Heller case. I think the court was bound by precedent to not allow the Second Amendment claim on appeal because it was not raised at trial. I think this case is about procedural issues more than a Second Amendment claim.
I beg to differ. The court used a "polite" ruse to ignore the fact that a substantive fundamental right changed during the appeal. The dissent has the far better argument.

Either way, this signals that SCOTUS is serious about most every non obvious felon cert petition....

-Gene
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Old 09-14-2011, 11:57 PM
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How clean is this case? Was he doing anything criminal besides having a handgun?
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Old 09-15-2011, 12:01 AM
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Originally Posted by Dreaded Claymore View Post
How clean is this case? Was he doing anything criminal besides having a handgun?
No record and no criminal activity for Mr. Lowery.

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Old 09-15-2011, 2:13 AM
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Quote:
Originally Posted by Window_Seat View Post
We already have heightened via CA9 in Nordyke III where sensitive places might not be so sensitive, no?
Um, no. The "heightened scrutiny" in CA9 is not what you seek...

CA9 in Nordyke got it all kinds of wrong.


Remember that in Heller, SCOTUS said:

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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. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. 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.

That has some serious implications for scrutiny, namely that we shouldn't get scrutiny at all if the right is substantially burdened, for scrutiny is precisely a means by which the judiciary decides, on a case by case basis, whether or not the right is worth insisting upon! No, if the right is substantially burdened then the law in question is invalid on its face.
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Old 09-15-2011, 2:35 AM
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Supreme Court docket 11-5241

Quote:
Originally Posted by SwissFluCase View Post
Huh... It seems like another "handgun in the home" case. Other than solidifying this aspect of RKBA, what else could it do for us? I will admit I am a bit puzzled.

Regards,


SwissFluCase
I have not read the plaintiff's cert petition, but the biggest thing is it could get a gun owner out of jail, the other is that his conviction was for possessing an unregistered firearm. The Court could either do a simple GVR ("See Heller and McDonald, it is a fundamental right to possess a handgun in the home for self defense. Try again.") or could expand the question to have Lowery and the US argue if the mandatory registration of ordinary weapons is Constitutional.

If Lowery acquired the firearm in another state and then moved to DC, it could have even more interesting aspects about freedom of travel or the commerce clause. Really, we'd need to read his cert petition to see what all the issues are.

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Old 09-15-2011, 5:34 AM
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Quote:
Originally Posted by hoffmang View Post
I beg to differ. The court used a "polite" ruse to ignore the fact that a substantive fundamental right changed during the appeal. The dissent has the far better argument.

Either way, this signals that SCOTUS is serious about most every non obvious felon cert petition....

-Gene

They surely do.


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Old 09-15-2011, 6:04 AM
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Another aspect it could help us on Williams is the lack of application for a handgun permit we/he/everyone knew couldn't get at the time and thus didn't apply for because it was a futile act.
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Old 09-15-2011, 8:41 AM
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By the way, is the cert petition available? Didn't know if it would on PACER yet or not.
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Old 09-15-2011, 8:49 AM
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would SCOTUS even consider taking and ruling on more than one case in one term?

it could be very interesting if they take 2 or 3 very similar cases but its doubtful.

some relief and clearification is needed. i'd really love it if they would just rule strict scrutiny applies and outside of the home is included. simple done and in no fewer words. If they do take more than one case this year i imagine that they are growing very tired of the lwoer courts mocking or only partially adhearing to the last two decissions that were handed down. This may work in our favor (cautiously optimistic) that if their patience has run thin a very decissive and clear shot accross the bow my be coming
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Old 09-15-2011, 8:54 AM
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Quote:
Originally Posted by SwissFluCase View Post
Huh... It seems like another "handgun in the home" case. Other than solidifying this aspect of RKBA, what else could it do for us? I will admit I am a bit puzzled.
As others have noted there are a couple of good things that could come out of this one. For example as someone said the court could rule that registration and/or requiring a permit to buy/possess handguns fails strict scrutiny. That's huge because it cleans up Heller and McDonald and eliminates the continuing licensing/registration games in DC, Chicago, and NYC and perhaps explicitly toss waiting periods and HSC/FOID cards as unconstitutional delays/barriers/prior restraints of an enumerated right. Even if they don't go that far it could produce a strict scrutiny ruling that could help hundreds of otherwise law abiding citizens convicted of mere unlicensed possession in jurisdictions like DC, NYC, and Chicago where it was nearly impossible to legally purchase and/or possess handguns.

It's too bad that (IMO) the SCOTUS is unlikely to take on two 2nd Amendment cases in a single term because while this one has the potential to strike registration and licensing purchase/possession, it's unlikely to effect carry due to the stubborn refusal of the lower courts to accept the 2nd Amendment as an actual right to keep and bear arm. On the other hand at least one of the other cases has the potential to mandate either shall issue LTC or strike the license requirement from LTC and perhaps help hundreds of otherwise law abiding citizens convicted of unlicensed carry in no-issue/may-issue states.

Two different cases with the potential to be a modern Emancipation Proclamation for two different classes of victims of unconstitutional gun laws and establish strict scrutiny as the standard of review. Now the question is could/would the court combine two different 2nd Amendment questions (possession/carry) and swing a wide strict scrutiny axe at the concept of requiring permission/registration of enumerated rights. My layman's guess is that it's unlikely.

Is there much chance that they'll take on two 2nd Amendment cases in a single term?
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Old 09-15-2011, 8:54 AM
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Originally Posted by ddestruel View Post
would SCOTUS even consider taking and ruling on more than one case in one term?

it could be very interesting if they take 2 or 3 very similar cases but its doubtful.
They should take all 3 considering they're 130 years behind on this stuff, having only 2 or 3 good rulings on 2A matters EVER out of thousands of rulings issued. I don't think I could get that badly behind at a job even if I were blind and deaf playing professional tennis. To make up for time lost they should at least feel the need to rectify it.
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In Pennsylvania Your permit to carry concealed is called a License to carry fire arms. Other states call it a CCW. In New Jersey it's called a crime.
Discretionary Issue is the new Separate but Equal.

Last edited by yellowfin; 09-15-2011 at 8:56 AM..
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Old 09-15-2011, 9:39 AM
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Quote:
Originally Posted by yellowfin View Post
They should take all 3 considering they're 130 years behind on this stuff, having only 2 or 3 good rulings on 2A matters EVER out of thousands of rulings issued. I don't think I could get that badly behind at a job even if I were blind and deaf playing professional tennis. To make up for time lost they should at least feel the need to rectify it.
I agree. I have a feeling that they will end up taking more than one this session...at least now that this case is in the open. I don't think they will take both carry cases, but this and one of the carry cases are likely.

The way I see it, is that Heller was clearing the land. McDonald was laying the foundation. Once the foundation is dry, there's no reason that a few walls can't be raised at the same time. Plumbing, electrical, and especially decorating will have to come a lot later. However, since we're still working on the core of the right, these issues can be resolved at the same time, since the foundation to these issues are resolved, and especially applied to the states as a whole.

Hopefully that makes as much since as it did in my head.
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Old 09-15-2011, 10:16 AM
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I'm inclined to believe that the justices are not amused when their decisions are not taken seriously by lower courts.
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Old 09-15-2011, 10:29 AM
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Quote:
Originally Posted by pitchbaby View Post
I am so excited that I nearly fell out of my chair... LOL.... At this rate changes may happen before I figure out how to move out of this state... HAHA
Although I also hope that this means good things for the 2A in the future, I'm more excited to hear that a law-abiding citizen might actually get some justice.
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Old 09-15-2011, 10:30 AM
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I am trying to find the plaintiff's cert petition. I don't think the Supreme Court has a Case Management/Electronic Case File (CM/ECF) PACER site.

Does anyone have a copy of the cert petition or know how to obtain it?
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Old 09-15-2011, 10:41 AM
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I'm inclined to believe that the justices are not amused when their decisions are not taken seriously by lower courts.
It shouldn't surprise them too much since they put it together with more holes in it than a colander and as much teeth in it as a sponge.
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Old 09-15-2011, 10:54 AM
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Quote:
Originally Posted by yellowfin View Post
Another aspect it could help us on Williams is the lack of application for a handgun permit we/he/everyone knew couldn't get at the time and thus didn't apply for because it was a futile act.
This was my immediate thought.
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Old 09-15-2011, 11:09 AM
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Quote:
Originally Posted by sholling View Post
As others have noted there are a couple of good things that could come out of this one. For example as someone said the court could rule that registration and/or requiring a permit to buy/possess handguns fails strict scrutiny. That's huge because it cleans up Heller and McDonald and eliminates the continuing licensing/registration games in DC, Chicago, and NYC and perhaps explicitly toss waiting periods and HSC/FOID cards as unconstitutional delays/barriers/prior restraints of an enumerated right. Even if they don't go that far it could produce a strict scrutiny ruling that could help hundreds of otherwise law abiding citizens convicted of mere unlicensed possession in jurisdictions like DC, NYC, and Chicago where it was nearly impossible to legally purchase and/or possess handguns.

It's too bad that (IMO) the SCOTUS is unlikely to take on two 2nd Amendment cases in a single term because while this one has the potential to strike registration and licensing purchase/possession, it's unlikely to effect carry due to the stubborn refusal of the lower courts to accept the 2nd Amendment as an actual right to keep and bear arm. On the other hand at least one of the other cases has the potential to mandate either shall issue LTC or strike the license requirement from LTC and perhaps help hundreds of otherwise law abiding citizens convicted of unlicensed carry in no-issue/may-issue states.

Two different cases with the potential to be a modern Emancipation Proclamation for two different classes of victims of unconstitutional gun laws and establish strict scrutiny as the standard of review. Now the question is could/would the court combine two different 2nd Amendment questions (possession/carry) and swing a wide strict scrutiny axe at the concept of requiring permission/registration of enumerated rights. My layman's guess is that it's unlikely.

Is there much chance that they'll take on two 2nd Amendment cases in a single term?
I see... This could be a boon for places like NYC, and compared to our lack of LTC, they are in a much worse place. This could strike at the heart of the GCA of 1968, if I have a right to acquire a pistol from wherever I can if I cannot get one legally near my home.

I would agree that addressing LTC would better benefit most of us, however making sure that legal access to arms is guaranteed would really strengthen the core foundation. Hopefully we will see both.

Regards,


SwissFluCase
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Old 09-15-2011, 11:28 AM
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Quote:
Originally Posted by Gene View Post
The court used a "polite" ruse to ignore the fact that a substantive fundamental right changed during the appeal. The dissent has the far better argument.
I like the way you phrased that, Gene.

Have you looked at Herrington v. U.S., another D.C. Circuit decision, this one coming a mere 2 months after Lowery? Pretty much the same set of facts, on appeal (this one is not as clean a case as it seems), but using a different "ruse" to actually reverse the conviction.

In Lowery, the prosecution did prove that Mr. Lowery did not have a registered firearm (in 2006). Nor did Lowery attempt to use a 2A argument that would have perserved that argument in appeals, as did Plummer. The prosecution did, however inadvertantly, prove that Lowery was not a disqualified person.

In Herrington, the prosecution didn't bother to prove that Herrington did not have a registration, nor did they attempt to prove Herrington was a disqualified person. Nor did Herrington attempt a 2A argument to be preserved through appeals.

In Lowery, the dissent argued for remand, as the 2A argument could not have been made at all, therefore no record was developed as to whether or not Lowery was qualified to register.

In Herrington, that distinction was made by the Circuit panel and used as "plain error" to overturn the conviction, along with the fact that the prosecution did not attempt to prove that Herrington was not a disqualified person.

The Lowery conviction was upheld while the Herrington conviction was reversed.
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Old 09-15-2011, 12:42 PM
Crom Crom is offline
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Default I have attached the Cert Petition

Here is the question presented to the Supreme Court:

Quote:
Whether the “right to keep and bear arms” protected by the Second Amendment of the
United States Constitution as enunciated in District of Columbia v. Heller, 554 U.S. _____, 128
S..Ct. 2783, 171 L.Ed. 637 (2008) applies retroactively to a person who possessed a handgun in
his own home without a registration certificate that was not obtainable at that time by ordinary,
law-abiding citizens; and had not asserted his Second Amendment right at a trial held prior to
Heller.
I would hope the the court would say "Yes" and therefore Grant Vacate and Remand. This will help us, but I don't think it will be a landmark decision like Heller or McDonald. I'd be glad to be wrong though.

Much thanks to Enid. The case may be accessed on Lexis.
Attached Files
File Type: pdf Lowery.pdf (191.4 KB, 46 views)
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Old 09-15-2011, 1:45 PM
ed bernay ed bernay is offline
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Originally Posted by Crom View Post
Here is the question presented to the Supreme Court:

I would hope the the court would say "Yes" and therefore Grant Vacate and Remand. This will help us, but I don't think it will be a landmark decision like Heller or McDonald. I'd be glad to be wrong though.

Much thanks to Enid. The case may be accessed on Lexis.
Seems to me that this could be a pretty good case if it goes our way. I reckon there will be many challenges to convictions where the only "crime" was a failure to follow an unconstitutional requirement (in my view) to register a firearm in common use. That could discourage many local governments from persecuting its citizens when their only "crime" is exercising their 2nd amendment rights MOST NOTABLY IN THEIR HOME.
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Old 09-15-2011, 1:52 PM
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Default

That is PERFECT for getting us a win in Williams.
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In Pennsylvania Your permit to carry concealed is called a License to carry fire arms. Other states call it a CCW. In New Jersey it's called a crime.
Discretionary Issue is the new Separate but Equal.
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Old 09-15-2011, 2:01 PM
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Originally Posted by Knuckle Dragger View Post
I'm inclined to believe that the justices are not amused when their decisions are not taken seriously by lower courts.

Then why dont they put some teeth in their very decisions? Seems to me at some point the judiciary is going to have to at least warn bureaucrats that tampering with the Bill of Rights to the point of "infringing" might bring THEM in front a court.
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Old 09-15-2011, 2:23 PM
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You can't immediately lock someone up for violating what was not established as a Constitutional right until that moment. The Court will only warn them they're doing it wrong and that they must stop, then wait and reassess the situation if it occurs again.

If it occurs too often, the Court will send the US Marshals to enforce their judgements and supervise the conduct in question. How would you like the Marshals to stop by your local sheriff once per week and watch him rubber-stamp every LTC application that crosses his desk? I doubt it will ever happen, but it is a possibility for certain places (Chicago, DC, NYC, etc).
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Old 09-15-2011, 2:44 PM
Untamed1972 Untamed1972 is offline
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Originally Posted by Kharn View Post
You can't immediately lock someone up for violating what was not established as a Constitutional right until that moment. The Court will only warn them they're doing it wrong and that they must stop, then wait and reassess the situation if it occurs again.

If it occurs too often, the Court will send the US Marshals to enforce their judgements and supervise the conduct in question. How would you like the Marshals to stop by your local sheriff once per week and watch him rubber-stamp every LTC application that crosses his desk? I doubt it will ever happen, but it is a possibility for certain places (Chicago, DC, NYC, etc).
I would PAY MONEY to get to watch that! Where do I buy tix? LOL
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Old 09-15-2011, 2:45 PM
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Default SCOTUS & Multiple Cases

I dunno, guys. To this layman it would appear that 2A justice is one of the last remaining biggies -- and the temptation to leave a judicial legacy may be considerable. This might be our year.

John
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Old 09-15-2011, 2:52 PM
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It shouldn't surprise them too much since they put it together with more holes in it than a colander and as much teeth in it as a sponge.
I'm not a lawyer but I suspect that landmark constitutional cases are a lot like seduction both from the attorney's point of view (case selection) and from the point of view of Justices. You don't just walk up to a girl you don't know and carry her off to your room and I suspect that the conservatives in the Heller majority couldn't just ask Kennedy to jump head first into the 2nd Amendment's bed. It starts with a kiss and getting her used to the idea (1st base - Heller). Then when she's comfortable try for 2nd base (McDonald). Now that Kennedy is comfortable with the concept of Heller and McDonald it's a chance to ease him into being comfortable with lifting license to possess and possibly registration retroactively (finishing 2nd base). He's probably more comfortable with banning or at least coming down hard on license to buy/possess requirements than he is with right to carry. Fortunately a state court challenged him and his libertarian instincts may push him into joining the rest of the court in explaining it to the lower courts with a strong right to bear ruling (3rd base). But hey sometimes you score a triple.
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