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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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  #161  
Old 11-07-2013, 8:03 PM
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Originally Posted by kcbrown View Post
I figured by "impossible arguments", you were referring to arguments that were logically inconsistent.
Really, I just meant that saying the Supreme Court screwed up is not a good argument for a lawyer to make.
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  #162  
Old 11-07-2013, 8:09 PM
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Originally Posted by Tincon View Post
Really, I just meant that saying the Supreme Court screwed up is not a good argument for a lawyer to make.
Which is exactly why travesties like Cruikshank will NEVER be reversed. The level of arrogance and self proclaimed infallibility displayed by judges (and the court system as a whole) always rankles.
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  #163  
Old 11-07-2013, 8:12 PM
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You're bloviating again. You challenged me twice, here:

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Originally Posted by kcbrown View Post
I see nothing in the majority's decision that shows that they object to that description, only that they object to the application of what is described.
and here:

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Originally Posted by kcbrown View Post
Is it the same thing he says in the text quoted by the majority? How?

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

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Originally Posted by kcbrown View Post
It is not enough to assert that the above is the same as the bit that the majority quoted, you have to show that it is.
That's what I'm doing so just answer the simple questions that I am asking and stop bloviating.

Quote:
Originally Posted by Heller dissent
Thus, any attempt in theory to apply strict scrutiny to gun regulations will in practice turn into an interest-balancing inquiry, with the interests protected by the Second Amendment on one side and the governmental public-safety concerns on the other, the only question being whether the regulation at issue impermissibly burdens the former in the course of advancing the latter.
The dissent is endorsing only one approach (the "interest-balancing inquiry) which asks only one question ("the only question being..."), right?

Yes or no.

Last edited by FABIO GETS GOOSED!!!; 11-07-2013 at 8:18 PM..
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  #164  
Old 11-07-2013, 8:20 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
The dissent is endorsing only one approach (the "interest-balancing inquiry) which asks only one question ("the only question being..."), right?

Yes or no.
In the context of gun laws, yes, that is the approach being endorsed by the dissent.
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  #165  
Old 11-07-2013, 8:25 PM
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In the context of gun laws, yes, that is the approach being endorsed by the dissent.
I'd have to disagree. Every level of scrutiny asks more than one question.

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

Sorry to interject.
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  #166  
Old 11-07-2013, 8:27 PM
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Originally Posted by kcbrown View Post
In the context of gun laws, yes, that is the approach being endorsed by the dissent.
I'm going to ask it again, in Heller (and "in the context of gun laws" if it makes you feel better to include that) the dissent endorses one and only one approach (the interest balancing approach), that asks one and only one question ("the only question being...), right?
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  #167  
Old 11-07-2013, 8:33 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
I'm going to ask it again, in Heller (and "in the context of gun laws" if it makes you feel better to include that) the dissent endorses one and only one approach (the interest balancing approach), that asks one and only one question ("the only question being...), right?
Yes.
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  #168  
Old 11-07-2013, 8:35 PM
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Originally Posted by Tincon View Post
The answer must be that the question of whether "in formulating its judgments, Congress has drawn reasonable inferences based on substantial evidence" is part of the intermediate scrutiny ("interest-balancing inquiry") standard that SCOTUS has rejected.
This is your "[Hmmm, which standard of scrutiny do those case apply?]" right? Is this a good time to take a look at those cases in the passage you quoted right before "[Hmmm..." which you claim apply "intermediate scrutiny"?

Last edited by FABIO GETS GOOSED!!!; 11-07-2013 at 8:40 PM..
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  #169  
Old 11-07-2013, 8:37 PM
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Originally Posted by kcbrown View Post
Yes.
Not only does the Heller dissent endorse the "interest-balancing inquiry," in the dissenting opinion he applies it to the DC laws in question, right?
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  #170  
Old 11-07-2013, 8:42 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
Not only does the Heller dissent endorse the "interest-balancing inquiry," in the dissenting opinion he applies it to the DC laws in question, right?
I presume so, seeing how it seems pointless to argue in favor of an approach to evaluating a law and then not actually apply it to the law.
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  #171  
Old 11-07-2013, 8:43 PM
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Is that a yes or a no?
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  #172  
Old 11-07-2013, 8:44 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
Is that a yes or a no?
Heh. It's a yes.
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  #173  
Old 11-07-2013, 8:49 PM
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We're going to make a very brief trip back to elementary school. Would you agree that a paragraph's topic sentence usually announces the subject of the rest of the paragraph?
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  #174  
Old 11-07-2013, 8:52 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
We're going to make a very brief trip back to elementary school. Would you agree that a paragraph's topic sentence usually announces the subject of the rest of the paragraph?
Yes.
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  #175  
Old 11-07-2013, 8:56 PM
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If a paragraph began with this topic sentence:

Quote:
I would simply adopt such an interest-balancing inquiry explicitly.
you would expect the subject of the paragraph to be the adoption of the interest-balancing inquiry, right?
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  #176  
Old 11-07-2013, 8:58 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
If a paragraph began with this topic sentence:



you would expect the subject of the paragraph to be the adoption of the interest-balancing inquiry, right?
Yes.
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  #177  
Old 11-07-2013, 9:15 PM
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I would simply adopt such an interest-balancing inquiry explicitly. The fact that important interests lie on both sides of the constitutional equation suggests that review of gun-control regulation is not a context in which a court should effectively presume either constitutionality (as in rational-basis review) or unconstitutionality (as in strict scrutiny). Rather, “where a law significantly implicates competing constitutionally protected interests in complex ways,” the Court generally asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects uponother important governmental interests. See Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 402 (2000) (BREYER, J., concurring). Any answer would take account both of the statute’s effects upon the competing interests and the existence of any clearly superior lessrestrictive alternative. See ibid. Contrary to the majority’s unsupported suggestion that this sort of “proportionality” approach is unprecedented, see ante, at 62, the Court has applied it in various constitutional contexts, including election-law cases, speech cases, and due process cases. [citations omitted]
In the second sentence of this paragraph (in bold) -- which begins with the topic sentence "I would simply adopt such an interest-balancing inquiry explicitly"--the dissent rejects a method of review in which constitutionality is presumed (rational basis) or in which unconstitutionality is presumed (strict scrutiny), right?

Last edited by FABIO GETS GOOSED!!!; 11-07-2013 at 9:21 PM..
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  #178  
Old 11-07-2013, 9:19 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
In the second sentence of this paragraph -- which begins with the topic sentence "I would simply adopt such an interest-balancing inquiry explicitly"--the dissent rejects a method of review in which constitutionality is presumed (rational basis) or in which unconstitutionality is presumed (strict scrutiny), right?
Right.
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  #179  
Old 11-07-2013, 9:20 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
This is your "[Hmmm, which standard of scrutiny do those case apply?]" right? Is this a good time to take a look at those cases in the passage you quoted right before "[Hmmm..." which you claim apply "intermediate scrutiny"?
Ok you got me there, I may have jumped the gun. Those cases are in the middle of a section where Breyer is advocating for what is clearly intermediate scrutiny. However, those cases don't apply scrutiny at all, instead they discuss where a scrutiny analysis is inappropriate. But while you caught me being sloppy (this time) my conclusion in no way depended on that remark or the content of those cases. Nor are they precluded by those cases. For example:
Quote:
Under this standard, the rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights. Thus, as we have recognized when those rights are subjected to “severe” restrictions, the regulation must be “narrowly drawn to advance a state interest of compelling importance.” But when a state election law provision imposes only “reasonable, nondiscriminatory restrictions” upon the First and Fourteenth Amendment rights of voters, “the State's important regulatory interests are generally sufficient to justify” the restrictions. We apply this standard in considering petitioner's challenge to Hawaii's ban on write-in ballots.

Burdick v. Takushi, 504 U.S. 428, 434, 112 S. Ct. 2059, 2063-64, 119 L. Ed. 2d 245 (1992) (internal citations removed).
This opinion states that strict scrutiny applies to 1A cases, except where the statutory provision imposes only “reasonable, nondiscriminatory restrictions” upon the First and Fourteenth Amendment rights of voters, and “the State's important regulatory interests are generally sufficient to justify” the restrictions.

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

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

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

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

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

See, I even gave you hints.
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Last edited by Tincon; 11-07-2013 at 9:22 PM..
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  #180  
Old 11-07-2013, 9:21 PM
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If the the 14th is not considered applicable by the ruling class, what about the position that micro stamping to enhance the safety of a firearm? The micro stamping at minimum should be tossed out by the court
Micro stamping falls under rational basis in that the legislature rationalized that we'd all be safer if cartridges used in crimes could be traced back to the original purchaser of the weapon and the courts will therefore accept that there is a rational basis for the law. The fact that micro stamping has nothing to do with the safety of the weapon itself, and is not generally available, likely to be ineffective, and will dramatically increase the cost of handguns to the peasant class does not matter because LEOs (a more equal class) are exempt, and because the other more equal classes (judges and legislators) can afford higher priced guns. As long as one model of handgun remains available, even if unaffordable to the peasant class, then in the minds of judges (a more equal class) that will be enough to satisfy the right to keep common handguns in the home.

Keep in mind that judges will remain friendly to the feeling of exclusivity of may-issue licensed concealed carry because as members of the judiciary (a more equal class) they are given special treatment. Not only would no sheriff dare turn down a judge or even a retired judge's application, but the legislature has granted them longer terms between license renewal in recognition of their more equal status. It's going to be next to impossible to get a judge to rule that "all animals are equal - period" when it reduces them to being no better and no more privileged than we peasants. Their egos won't allow that.
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Last edited by sholling; 11-07-2013 at 9:32 PM..
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  #181  
Old 11-07-2013, 9:26 PM
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I would simply adopt such an interest-balancing inquiry explicitly. The fact that important interests lie on both sides of the constitutional equation suggests that review of gun-control regulation is not a context in which a court should effectively presume either constitutionality (as in rational-basis review) or unconstitutionality (as in strict scrutiny). Rather, “where a law significantly implicates competing constitutionally protected interests in complex ways,” the Court generally asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests. See Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 402 (2000) (BREYER, J., concurring). Any answer would take account both of the statute’s effects upon the competing interests and the existence of any clearly superior lessrestrictive alternative. See ibid. Contrary to the majority’s unsupported suggestion that this sort of “proportionality” approach is unprecedented, see ante, at 62, the Court has applied it in various constitutional contexts, including election-law cases, speech cases, and due process cases. [citations omitted]
In the third sentence of this paragraph (in bold), the dissent instead approves a method of review that "asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests", right?
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  #182  
Old 11-07-2013, 9:30 PM
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Those cases are in the middle of a section where Breyer is advocating for what is clearly intermediate scrutiny.
Those cases are actually in the same paragraph I'm discussing with kcbrown, aren't they?
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  #183  
Old 11-07-2013, 9:30 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
In the third sentence of this paragraph (in bold), the dissent instead approves a method of review that "asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests", right?
No. Just as was done in Burdick, the dissent proposes that as a preliminary matter before applying scrutiny (in the case of Burdick, strict scrutiny), the court should examine certain factors, to determine if "the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests." This is independent of scrutiny. The Heller majority rejects this right along with intermediate scrutiny.

Quote:
Those cases are actually in the same paragraph I'm discussing with kcbrown, aren't they?
Yes, they are part of a paragraph discussing when scrutiny should be applied. The rest of that section discusses what sort of scrutiny should be applied.
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Last edited by Tincon; 11-07-2013 at 9:33 PM..
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  #184  
Old 11-07-2013, 9:31 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
In the third sentence of this paragraph (in bold), the dissent instead approves a method of review that "asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests", right?
Right.
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  #185  
Old 11-07-2013, 9:35 PM
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I would simply adopt such an interest-balancing inquiry explicitly. The fact that important interests lie on both sides of the constitutional equation suggests that review of gun-control regulation is not a context in which a court should effectively presume either constitutionality (as in rational-basis review) or unconstitutionality (as in strict scrutiny). Rather, “where a law significantly implicates competing constitutionally protected interests in complex ways,” the Court generally asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests. See Nixon v. Shrink Missouri Government PAC, 528 U. S. 377, 402 (2000) (BREYER, J., concurring). Any answer would take account both of the statute’s effects upon the competing interests and the existence of any clearly superior lessrestrictive alternative. See ibid. Contrary to the majority’s unsupported suggestion that this sort of “proportionality” approach is unprecedented, see ante, at 62, the Court has applied it in various constitutional contexts, including election-law cases, speech cases, and due process cases. [citations omitted]
When the dissent mentions the "'proportionality' approach" in the fifth sentence (in bold), he's referring to the method of review that he approved in the third sentence, isn't he?
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  #186  
Old 11-07-2013, 9:38 PM
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When the dissent mentions the "'proportionality' approach" in the fifth sentence (in bold), he's referring to the method of review that he approved in the third sentence, isn't he?
Yes.
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  #187  
Old 11-07-2013, 9:40 PM
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Just as was done in Burdick, the dissent proposes that as a preliminary matter before applying scrutiny (in the case of Burdick, strict scrutiny), the court should examine certain factors, to determine if "the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests." This is independent of scrutiny. The Heller majority rejects this right along with intermediate scrutiny.
Just to be crystal clear here, your position is that the determination whether "the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute's salutary effects upon other important governmental interests" is just a "preliminary matter" the precedes the application of scrutiny?
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Old 11-07-2013, 9:41 PM
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I would simply adopt such an interest-balancing inquiry explicitly.
Is the conclusion of his intermediate scrutiny "balancing test" argument.

Then he begins an argument about how scrutiny should be skipped unless "the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests."

Sometimes the first sentence of a paragraph is what I was taught in school is called a "transition". Particularly when it comes in the middle of a section of paragraphs where the first one explains what the "topic" of the section is...
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Old 11-07-2013, 9:42 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
Just to be crystal clear here, your position is that the determination whether "the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute's salutary effects upon other important governmental interests" is just a "preliminary matter" the precedes the application of scrutiny?
What else do you think this means:
Quote:
Under this standard, the rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights. Thus, as we have recognized when those rights are subjected to “severe” restrictions, the regulation must be “narrowly drawn to advance a state interest of compelling importance.” But when a state election law provision imposes only “reasonable, nondiscriminatory restrictions” upon the First and Fourteenth Amendment rights of voters, “the State's important regulatory interests are generally sufficient to justify” the restrictions. We apply this standard in considering petitioner's challenge to Hawaii's ban on write-in ballots.

Burdick v. Takushi, 504 U.S. 428, 434, 112 S. Ct. 2059, 2063-64, 119 L. Ed. 2d 245 (1992) (internal citations removed).
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Old 11-07-2013, 9:44 PM
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Hey I answered your question, will you answer mine (I can wait 'till later, just want to know if I can look forward to that).
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Old 11-07-2013, 9:44 PM
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Quote:
Originally Posted by Tincon View Post
What else do you think this means:
Is that a yes or a no?
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Old 11-07-2013, 9:46 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
Is that a yes or a no?
Yes, in at least some cases. Otherwise you get, "it depends". It was certainly the case in Burdick , which was cited in your favorite paragraph in the dissent.
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Old 11-07-2013, 9:47 PM
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Originally Posted by Tincon View Post
Hey I answered your question, will you answer mine (I can wait 'till later, just want to know if I can look forward to that).
Yes, I will.
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Old 11-07-2013, 9:50 PM
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Originally Posted by Tincon View Post
Yes, in at least some cases. Otherwise you get, "it depends". It was certainly the case in Burdick , which was cited in your favorite paragraph in the dissent.
Christ, now you're doing kcbrown edits too?

How about: is it your position that the determination whether "the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute's salutary effects upon other important governmental interests" is just a "preliminary matter" that precedes the application of scrutiny in 2A cases such as DC v Heller?

Last edited by FABIO GETS GOOSED!!!; 11-07-2013 at 10:13 PM..
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Old 11-07-2013, 10:00 PM
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Contrary to the majority’s unsupported suggestion that this sort of “proportionality” approach is unprecedented, see ante, at 62,the Court has applied it in various constitutional contexts, including election-law cases, speech cases, and due process cases.
Please quote the specific text "ante, at 62" where the majority "suggest[s] that this sort of 'proportionality' approach is unprecedented."

(Hint: last paragraph, first sentence.)

ETA: Link to Heller opinion here.

Last edited by FABIO GETS GOOSED!!!; 11-07-2013 at 10:07 PM..
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Old 11-07-2013, 10:15 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
Please quote the specific text "ante, at 62" where the majority "suggest[s] that this sort of 'proportionality' approach is unprecedented."

Here:

Quote:
Originally Posted by District of Columbia v. Heller, 128 S. Ct. 2783 - Supreme Court 2008 at 2821
We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding "interest-balancing" approach.
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Old 11-07-2013, 10:16 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
Christ, now you're doing kcbrown edits too?

How about: is it your position that the determination whether "the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute's salutary effects upon other important governmental interests" is just a "preliminary matter" the precedes the application of scrutiny in 2A cases such as DC v Heller?
My bad. I felt pressured to give you a "Yes" but your question was an incomplete hypothetical. As to your current question, no, the majority rejected that approach. I do think that's what Breyer wanted, because he (incorrectly) believes that banning guns will save lives, which should somehow trump almost any application of the right.
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Old 11-07-2013, 10:22 PM
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Quote:
Originally Posted by Tincon View Post
My bad. I felt pressured to give you a "Yes" but your question was an incomplete hypothetical. As to your current question, no, the majority rejected that approach. I do think that's what Breyer wanted, because he (incorrectly) believes that banning guns will save lives, which should somehow trump almost any application of the right.
We were talking about what the dissent was proposing, i.e., that the determination whether "the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute's salutary effects upon other important governmental interests" is just a "preliminary matter" the precedes the application of scrutiny in 2A cases such as Heller v DC. You agree that was what the dissent was proposing right?
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Old 11-07-2013, 10:27 PM
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Quote:
Originally Posted by FABIO GETS GOOSED!!! View Post
We were talking about what the dissent was proposing, i.e., that the determination whether "the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute's salutary effects upon other important governmental interests" is just a "preliminary matter" the precedes the application of scrutiny in 2A cases such as Heller v DC. You agree that was what the dissent was proposing right?
I agree that the dissent cites a case that frames it that way, giving me room to make that argument.
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Old 11-07-2013, 10:35 PM
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Quote:
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Here:
Earlier you disagreed with me that the dissent's "interest balancing inquiry" and the "proportionality approach" were the same thing. Are you sticking to that position?
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