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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  
Old 11-05-2013, 3:38 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
No, it's not. Have you read Heller lately?
I have. But I wasn't commenting on Heller, I was commenting on your statement and what that implied about your opinion here.

If a "self-defense" exception would not have changed the analysis, then why did you bother to bring it up? It's not like you to mention characteristics of a case that are unnecessary for the determination of its outcome.
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  #42  
Old 11-05-2013, 3:40 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
I can't keep up with your edits that retreat from your original positions lol.
Heh. Sorry.

Might want to wait a few minutes before responding to a message of mine, so that it's more likely that my message will be in its final form.
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  #43  
Old 11-05-2013, 3:55 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
Can you ask that a different way? (I.e., what do you mean by "2A protection"?) I think I know what you're asking but not sure.
Some firearms issues fall outside 2A protection. For example, weapons not typically used by law-abiding citizens, weapons that are dangerous and usual (or used in a dangerous or unusual way), or weapons in "sensitive places." In these cases, no scrutiny analysis is required, there is no 2A protection.

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

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

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Originally Posted by kcbrown View Post
Heh. Sorry.

Might want to wait a few minutes before responding to a message of mine, so that it's more likely that my message will be in its final form.
Think before you type (or at least before you post).
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Last edited by Tincon; 11-05-2013 at 3:57 PM..
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  #44  
Old 11-05-2013, 4:01 PM
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If a "self-defense" exception would not have changed the analysis, then why did you bother to bring it up?
You're losing me lol. The argument assisted the plaintiffs in Heller 1. The argument cannot be made in Pena so it cannot assist the Pena plaintiffs.
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Old 11-05-2013, 4:08 PM
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If (as in Heller) there is a "substantial burden," then (as in Heller) any balancing text should be rejected and at a minimum strict scrutiny should be applied.
If you are saying that Heller considers intermediate scrutiny a "freestanding, 'interest-balancing'" test, I don't agree.
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  #46  
Old 11-05-2013, 4:11 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
If you are saying that Heller considers intermediate scrutiny a "freestanding, 'interest-balancing'" test, I don't agree.
Well that's a bit off the point, but I have not seen your counter-argument here: http://www.calguns.net/calgunforum/s...d.php?t=844273
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  #47  
Old 11-05-2013, 4:25 PM
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Originally Posted by Heller opinion
He proposes, explicitly at least, none of the traditionally expressed levels (strict scrutiny, intermediate scrutiny, rational basis), but rather a judge-empowering “interest balancing inquiry” that “asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests.”
Does that sound to you like the Heller majority equates intermediate scrutiny with the dissent's interest balancing test?
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  #48  
Old 11-05-2013, 4:32 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
Does that sound to you like the Heller majority equates intermediate scrutiny with the dissent's interest balancing test?
Yes.

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He proposes, explicitly at least, none of the traditionally expressed levels (strict scrutiny, intermediate scrutiny, rational basis), but rather a judge-empowering “interest balancing inquiry” that “asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests.”
In other words, Breyer is not "explicitly" proposing "intermediate scrutiny" (or any other standard) for 2A analysis. But as I pointed out:

Quote:
In his dissent, Justice Breyer mentions certain “cases applying intermediate scrutiny. . . .” Heller, 554 U.S. 570, 704 He then cites Turner Broad. Sys., Inc. v. F.C.C., 520 U.S. 180, 195 (1997) (deciding a First Amendment case on the basis of intermediate scrutiny). Justice Breyer goes on to suggest that “[t]here is no cause here to depart from the [intermediate scrutiny] standard set forth in Turner, for the District's decision represents the kind of empirically based judgment that legislatures, not courts, are best suited to make.” Heller, 554 U.S. 570, 705. Justice Breyer then uses the language “interest-balancing inquiry” to describe the intermediate standard he would adopt. Heller, 554 U.S. 570, 689 (2008).
He is clearly making the implicit suggestion that the standard is intermediate scrutiny; the same standard used in the case (Turner) he says "[t]here is no cause here to depart from the standard set forth in". The Heller majority rejects this suggestion.
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Last edited by Tincon; 11-05-2013 at 4:37 PM..
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  #49  
Old 11-05-2013, 4:43 PM
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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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  #50  
Old 11-05-2013, 4:53 PM
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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?
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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  #51  
Old 11-05-2013, 5:25 PM
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Quote:
He proposes, explicitly at least, none of the traditionally expressed levels (strict scrutiny, intermediate scrutiny, rational basis), but rather a judge-empowering “interest balancing inquiry” that “asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests.”
So aren't they just going to argue then that the important govt. interest is, broadly, "public safety" and that gen3, gen 4, whatever other distinction, is immaterial?

That the roster mandates actually don't do much for public safety doesn't appear to be the crux of the case anymore. It would have been more effective if the main argument was that the roster doesn't apply to all transactions equally, wouldn't that (as someone else in this thread brought up) create a more challenging distinction for them to defend?
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  #52  
Old 11-05-2013, 5:28 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
You're losing me lol. The argument assisted the plaintiffs in Heller 1.
But if the existence of a self-defense exception would not have changed the outcome, then how could its absence have assisted the plaintiffs in Heller?


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


Look, I was presuming that by bringing up the lack of self-defense exception in Heller, there was some relevance of that to your conclusions about Pena and, more generally, "substantial burden" analysis. But it now sounds like the self-defense exception bit was entirely superfluous to your argument. Is that a fair characterization?
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  #53  
Old 11-05-2013, 5:31 PM
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Almost no laws fail rational basis review.
Agreed. The set of restrictions on laws that rational basis imposes = {}.

By definition (somehow), legislatures only act rationally. lol™
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  #54  
Old 11-05-2013, 5:33 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
That is the counter argument but no court is going to be doing any statistical inquiry into particular makes or models of firearms to see whether they are "in common use." Heller 1 certainly didn't do that (as if the high standard buntline single shot revolver is in common use lol) and didn't even remotely suggest that anyone else should be doing that either. "Handguns" are in common use and there are plenty of handguns on the roster to choose from. As far as the manufacturers are concerned, they must spend a ton hyping up new "Gen 4" models which go bang just like the old models, so boo hoo if they have to incur costs of loaded chamber indicators, etc.
I doubt they would have to go into a statistical inquiry of makes and models. In its current iteration the roster appears to be designed to gradually eliminate sales of new center-fire, semi-automatic pistols going forward. The new "Gen 4" won't get by just by caving in and adding CIs and mag. disconnects: they'll have to add micro stamping post 5/17/2013, if I'm reading this correctly.

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

Seems like a clever way to eliminate 2/3 of new handgun sales, or maybe I'm missing something? What's in that Glock document on the docket?
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  #55  
Old 11-05-2013, 5:38 PM
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Originally Posted by Tincon View Post
Justice Breyer goes on to suggest that “[t]here is no cause here to depart from the [intermediate scrutiny] standard set forth in Turner, for the District's decision represents the kind of empirically based judgment that legislatures, not courts, are best suited to make.”


Sloppy.
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  #56  
Old 11-05-2013, 5:53 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post


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

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

Turner Broad. Sys., Inc. v. F.C.C., 520 U.S. 180, 189, 117 S. Ct. 1174, 1186, 137 L. Ed. 2d 369 (1997)
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  #57  
Old 11-05-2013, 5:55 PM
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Sloppy.
So if the courts can't apply intermediate scrutiny (though they can apply the entirely useless, ineffective null set of rules that rational basis represents), what meaning does it have?

Seems like it consists of a null set of rules, just like rational basis does.
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  #58  
Old 11-05-2013, 5:57 PM
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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.
How did you get all that from "sloppy" and a ?
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Old 11-05-2013, 6:07 PM
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Hey now, it might be cheap but it isn't sloppy. That is the standard applied in Turner.
I've given you a hint by bolding your parenthetical explanation.
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Old 11-05-2013, 6:09 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
I've given you a hint by bolding your parenthetical explanation.
Sorry, but I'm not going to play "hint hint" games with you. If you have a credible counter argument to my assertion that the Heller majority rejected intermediate scrutiny, then state it. Otherwise, you are contributing nothing to this conversation.
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Old 11-05-2013, 6:14 PM
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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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Old 11-05-2013, 6:15 PM
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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.
Welcome to the same fun that the rest of us have had to put up with when engaging him.
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Old 11-05-2013, 6:20 PM
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Welcome to the same fun that the rest of us have had to put up with when engaging him.
I can't help it if you and Tincon are not careful readers.
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Old 11-05-2013, 6:26 PM
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I can't help it if you and Tincon are not careful readers.
"Careful" is not sufficient when your statements leave sufficient ambiguity as to be indeterminate.
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Old 11-05-2013, 6:28 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
Here's another hint, maybe you're not reading the dissenting opinion as carefully as you should be. Maybe "standard" refers to something more specific than "intermediate scrutiny" which you plopped down parenthetically into that sentence.
I wonder if this is how you argue/brief cases in front of a judge. "Your Honor, I find opposing counsel's argument uncompelling, as I have repeatedly hinted at in my brief. I would now like to vaguely direct the Court's attention to an entire dissent, and hint further that somewhere therein lies support for my argument."

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.

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Welcome to the same fun that the rest of us have had to put up with when engaging him.
You are one to talk lol.
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Old 11-05-2013, 6:37 PM
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Let's have a look at the actual text of the dissenting opinion, in context:

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

There is no cause here to depart from the standard set forth in Turner, for the District’s decision represents the kind of empirically based judgment that legislatures, not courts, are best suited to make. See Nixon, 528 U. S., at 402 (BREYER, J., concurring). In fact, deference to legislative judgment seems particularly appropriate here, wherethe judgment has been made by a local legislature, with particular knowledge of local problems and insight into appropriate local solutions.
Anyone see another "standard" here? Like, maybe, the "legal standard" (not "standard of scrutiny") by which a legislature's predictive judgments are reviewed? (Hint: the "legal standard" the dissent is actually referring to is bolded lol.) Does Turner "set forth" an intermediate scrutiny standard, or does it "set forth" the standard by which legislative predictive judgments are reviewed? Notice how the second clause of the sentence that Tincon incompletely quoted (first sentence of second paragraph) refers to legislative judgments?
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  #67  
Old 11-05-2013, 6:43 PM
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You are one to talk lol.
LOL!! Touché, mon ami!
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Old 11-05-2013, 7:24 PM
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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:
I therefore begin by asking a process-based question: How is a court to determine **2851 whether a particular firearm regulation (here, the District's restriction on handguns) is consistent with the Second Amendment? What kind of constitutional standard should the court use? How high a protective hurdle does the Amendment erect?

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

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

[Breyer clearly thinks there is a standard of scrutiny under which DC's laws would survive.]

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

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

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

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

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

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

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

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

[paragraph omitted]

Here, we have little prior experience. Courts that do have experience in these matters have uniformly taken an approach that treats empirically-based legislative judgment with a degree of deference. See Winkler, Scrutinizing the Second Amendment, 105 Mich. L.Rev. 683, 687, 716–718 (2007) (describing hundreds of gun-law decisions issued in the last half-century by Supreme Courts in 42 States, which courts with “surprisingly little variation,” have adopted a standard more deferential than strict scrutiny). While these state cases obviously are not controlling, they are instructive. Cf., e.g., Bartkus v. Illinois, 359 U.S. 121, 134, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959) (looking to the “ experience of state courts” as informative of a constitutional question). And they thus provide some comfort regarding the practical wisdom of following the approach that I believe our constitutional precedent would in any event suggest.
And there is "standard" again, talking about scrutiny. Breyer does not have two meanings for the word in his dissent. When he says standard he means scrutiny. And when he discusses the standard the Supreme Court has adopted in so many cases which he cites to (including Turner), the standard is intermediate scrutiny. And the Heller Majority rejects this standard.
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  #69  
Old 11-05-2013, 7:44 PM
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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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Old 11-05-2013, 7:51 PM
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Originally Posted by curtisfong View Post
So what relevance is there to the legal name one gives to equally ineffective and pointless standards?
Shockingly, not everyone believes that tripe.
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Old 11-05-2013, 7:58 PM
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Originally Posted by Tincon View Post
Shockingly, not everyone believes that tripe.
The person who wrote this does:

Quote:
In fact, deference to legislative judgment seems particularly appropriate here, where the judgment has been made by a local legislature, with particular knowledge of local problems and insight into appropriate local solutions.
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Old 11-05-2013, 7:59 PM
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Originally Posted by curtisfong View Post
The person who wrote this does:
Maybe so, but note that you are quoting from the losing side.
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Old 11-05-2013, 8:03 PM
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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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Old 11-05-2013, 8:04 PM
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Maybe so, but note that you are quoting from the losing side.
His is not the opinion of the losing side in the big picture, in my judgement. From what I can tell, when it comes to the 2A, most judges feel that the courts should defer to the legislature, if not under intermediate scrutiny, certainly rational basis.
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"“[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." - Kamela Harris

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Old 11-05-2013, 8:06 PM
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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.
As outlined before, I see no reason for this optimism.

Even if Pena's case were not fatally flawed (which many claim it is), it is likely that every court (short of SCOTUS) will defer to legislative judgement, up to, and including intermediate scrutiny.
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Old 11-05-2013, 8:06 PM
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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.
Regardless oh how you think they feel, they are all subordinate to the Supreme Court.
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Old 11-05-2013, 8:13 PM
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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:

Quote:
Originally Posted by District of Columbia v. Heller, 128 S. Ct. 2783 - Supreme Court 2008 at 2821
The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon.
Whatever else you may debate about scrutiny, the bottom line is that any method of deciding on a case-by-case basis whether the right is really worth insisting upon is a method that is in conflict with Heller.

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

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

Quote:
Originally Posted by District of Columbia v. Heller, 128 S. Ct. 2783 - Supreme Court 2008 at 2821
Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.


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


And so, we're left with but one simple question: did the Supreme Court mean what it said here, or not? If not, then there is no reason to treat any of the decision as carrying any weight at all. If so, then the above analysis stands.
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Old 11-05-2013, 8:22 PM
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Originally Posted by kcbrown View Post

We're left with one question: what does it mean to insist upon the right? That is a straightforward thing: insisting upon the right means that if the right is infringed upon by a law, the right, and not the law, wins.
I think this is too broad. The Court has made clear some infringements are perfectly acceptable, and on any right. Statement needs to be tightened up to reflect that fact.
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Old 11-05-2013, 8:24 PM
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Regardless oh how you think they feel, they are all subordinate to the Supreme Court.
The evidence shows otherwise. Were they truly subordinate to the Supreme Court, there would be no question about whether or not the 2nd Amendment applies outside the home.

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


No, the lower courts are in rebellion against the Supreme Court on this issue, and I think the evidence on that is essentially incontrovertible. And since the Supreme Court has limited bandwidth, in practice it is not the Supreme Court that the lower courts are subordinate to. In practice, they are subordinate to nobody, and it is only through a "gentleman's agreement" that they adhere to any semblance of precedent at all, for the lower courts can simply repeatedly rule however they wish until the Supreme Court stops granting cert to the inevitable appeals, at which point the lower courts rulings stand.
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Old 11-05-2013, 8:28 PM
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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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