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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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  #201  
Old 11-07-2013, 10:36 PM
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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.
Which is exactly the problem. If judges are unwilling to base their beliefs on data, or unwilling to admit a belief is entirely unfounded if there is no supporting data, what is the point? If a completely unfounded belief is enough (when interest balancing), to outweigh any potential burdening of a fundamental right, then the term "interest balancing" is meaningless.

And if there is no interest balancing, even worse; if proof of efficacy (as part of the measure of governmental or public interest) of a proposed law requires nothing more than a Judge's completely subjective belief (absent any facts or data), and burden is *irrelevant*, we are utterly lost.

The fact that this is in a *dissent* is cold comfort, because there is no reason to think Breyer's opinion is unique, nor that his opinion will be relegated to only dissents in the future.
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  #202  
Old 11-07-2013, 10:39 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
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?
No.
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  #203  
Old 11-07-2013, 10:42 PM
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I agree that the dissent cites a case that frames it that way, giving me room to make that argument.
What kind of dodgy response is that lol? Are you even able to state positively what method of review the Heller dissent was proposing for 2A cases and how 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" operates within that method of review?
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  #204  
Old 11-07-2013, 10:50 PM
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No.
The "interest-balancing inquiry" and the "proportionality approach" are one and the same. The majority objects to the the dissent's interest-balancing inquiry, doesn't it?
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  #205  
Old 11-07-2013, 10:53 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
The "interest-balancing inquiry" and the "proportionality approach" are one and the same. The majority objects to the the dissent's interest-balancing inquiry, doesn't it?
Yes.
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  #206  
Old 11-07-2013, 10:58 PM
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Yes.
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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.”
The majority asserts that the interest-balancing inquiry the dissent is proposing is not the same as strict scrutiny, intermediate scrutiny, or rational basis, doesn't it?
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  #207  
Old 11-07-2013, 10:59 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
The majority objects to the the dissent's interest-balancing inquiry, doesn't it?
FWIW I read it as such from the start. Breyer asserts that a legislature's position can go completely unexamined (i.e deference to the legislature's definition of rational or reasonable) if the burden on a right is sufficiently benign. This is corrosive because the "burden" metric can be entirely subjective.

My argument is that even if the majority disagrees (and their opinion becomes settled case law in the form of a solid legal standard), it simply doesn't matter, because Breyer (and CA courts, and the 9th) also treat governmental/public interest as subjective, since they are (demonstrably) impervious to any request for objective data from the legislature to back their claims of the level governmental/public interest.

So whether or not the scrutiny regime differs from interest balancing is entirely irrelevant.
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  #208  
Old 11-07-2013, 11:04 PM
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The majority asserts that the interest-balancing inquiry the dissent is proposing is not the same as strict scrutiny, intermediate scrutiny, or rational basis, doesn't it?
Strictly speaking, no.
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  #209  
Old 11-07-2013, 11:08 PM
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Strictly speaking, no.
What the heck do you mean by "strictly speaking"? lol. You just agreed that the majority suggested there was no precedent for the interest balancing inquiry. If the interest balancing inquiry were the same as strict scrutiny, there would be precedent for the interest balancing inquiry.
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  #210  
Old 11-07-2013, 11:15 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
What the heck do you mean by "strictly speaking"? lol.
From the decision:

Quote:
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.”
The above, strictly speaking, leaves on the table the possibility that dissent is implicitly proposing one of the traditionally expressed levels.


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You just agreed that the majority suggested there was no precedent for the interest balancing inquiry. If the interest balancing inquiry were the same as strict scrutiny, there would be precedent for the interest balancing inquiry.
I did not claim that the Supreme Court cannot contradict itself. Indeed, it is the essence of my argument that they are.

However, one potential "out" for them may be that their actual claim is that there is no precedent for the interest balancing inquiry being applied to the core protection of an enumerated Constitutional right. Whether that actually has precedent or not, I cannot say.
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  #211  
Old 11-07-2013, 11:15 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
What kind of dodgy response is that lol?
It's an intellectually honest one. If you like I can pretend there is only one possible black and white interpretation and no grey area. That sounds like a kcbrown approach. Then we might as well just shout SHALL NOT BE INFRINGED at each other.

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Originally Posted by FABIO GETS GOOSED!!! View Post
Are you even able to state positively what method of review the Heller dissent was proposing for 2A cases and how 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" operates within that method of review?
Yes, I've said it, the dissent wants intermediate scrutiny. It also wants, as part of that analysis to reject any challenge to a statute 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." Maybe the dissent thinks that is the entirety intermediate scrutiny. It doesn't matter, because either way, intermediate scrutiny is what the majority rejected.
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  #212  
Old 11-07-2013, 11:20 PM
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Which is exactly the problem. If judges are unwilling to base their beliefs on data, or unwilling to admit a belief is entirely unfounded if there is no supporting data, what is the point?

Yes, that's the problem with out government. It is run by human beings with ultimately subjective beliefs. And if a majority of the legislature, the chief executive, and the supreme court want a law, there will be a law. Facts and logic not notwithstanding. That's the system we have. That's the framework of the conversation you have joined here. If you have an idea for a better system, it would be off topic for this thread, but I would really like to hear it. Feel free to make a thread about it. If not, then what the hell is your point?
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  #213  
Old 11-07-2013, 11:20 PM
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the dissent wants intermediate scrutiny. It also wants, as part of that analysis to reject any challenge to a statute 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." Maybe the dissent thinks that is the entirety intermediate scrutiny. It doesn't matter, because either way, intermediate scrutiny is what the majority rejected.
Again, the dissent thinks that if a court determines (perhaps even if a legislature declares that) the burden on a right is innocuous enough, no scrutiny is necessary.

The name he gives it ("intermediate scrutiny", "interest balancing", "proportional judgment") is entirely irrelevant. It is equivalent to saying legislatures can pass whatever they want if they say the right magic words that can be repeated to the right court.
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  #214  
Old 11-07-2013, 11:21 PM
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Again, the dissent thinks that if a court determines (perhaps even if a legislature declares that) the burden on a right is innocuous enough, no scrutiny is necessary.

The name he gives it ("intermediate scrutiny", "interest balancing", "proportional judgment") is entirely irrelevant. It is equivalent to saying legislatures can pass whatever they want if they say the right magic words that can be repeated to the right court.
More pointless crap from you. Yes, they can do that. The government is an evil turd. Can you please move on to something else? Do you realize that you are adding absolutely NOTHING to this conversation?
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  #215  
Old 11-07-2013, 11:23 PM
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If you have an idea for a better system, it would be off topic for this thread, but I would really like to hear it.
My point is that strict scrutiny should include the requirement for objective data as part of the metric for "governmental/public interest" (in this context, public safety correlation with firearms restrictions). This would fit entirely within the current structure, and would not require anything other than a majority of SCOTUS to concur.
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  #216  
Old 11-07-2013, 11:25 PM
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My point is that strict scrutiny should include the requirement for objective data as part of the metric for "governmental/public interest" (in this context, public safety correlation with firearms restrictions). This would fit entirely within the current structure, and would not require anything other than a majority of SCOTUS to concur.
And another majority to undo right? I mean that's what you are worried about anyway, with this case?
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  #217  
Old 11-07-2013, 11:26 PM
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My point is that strict scrutiny should include the requirement for objective data as part of the metric for "governmental/public interest" (in this context, public safety correlation with firearms restrictions). This would fit entirely within the current structure, and would not require anything other than a majority of SCOTUS to concur.
That has the problem of the court approving of data it likes and disapproving of data it doesn't. It fails to preclude cherry-picking of data to support an argument, etc.

It would work if faithfully implemented. But it won't be faithfully implemented for the same reasons the courts behave as they do now.
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  #218  
Old 11-07-2013, 11:30 PM
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And another majority to undo right? I mean that's what you are worried about anyway, with this case?
No. Because what I am proposing does not undo anything, and as we all know, the odds of it being undone in the future is vanishingly small, as SCOTUS rarely reverses itself.

What I fear is that the current standard (yes, even taking in to account the rejection of the dissent's "interest balancing" approach) is toothless, NOT that Heller is in any danger of being reversed.

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That has the problem of the court approving of data it likes and disapproving of data it doesn't. It fails to preclude cherry-picking of data to support an argument, etc.
Of course. But it is a start, and better than the garbage that Breyer spewed in his dissent (even if it was rejected by the majority).

ETA: And why not take a scientific approach, and include some sort of testable metric that can be applied in the future, and provide sunset provisions if the metrics fail?
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Lawyers and their Stockholm Syndrome

Last edited by curtisfong; 11-07-2013 at 11:34 PM..
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  #219  
Old 11-07-2013, 11:31 PM
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That has the problem of the court approving of data it likes and disapproving of data it doesn't. It fails to preclude cherry-picking of data to support an argument, etc.

It would work if faithfully implemented. But it won't be faithfully implemented for the same reasons the courts behave as they do now.
It certainly does not change the fact that the Justices are human beings. And if they are doing whatever they want now, a bit of precedent requiring "objective facts," whatever that means, won't stop them. It's also fantasy. So I'm actually a bit tired of repeatedly hearing about how they will do what they want. If it's true then there is not point to taking part in a discussion of the law. So why hang around here?
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  #220  
Old 11-07-2013, 11:32 PM
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Of course. But it is a start, and better than the garbage that Breyer spewed in his dissent (even if it was rejected by the majority).
Why only a start? You were asked what can be done. All you can come up with is a start?
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  #221  
Old 11-07-2013, 11:44 PM
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It certainly does not change the fact that the Justices are human beings. And if they are doing whatever they want now, a bit of precedent requiring "objective facts," whatever that means, won't stop them. It's also fantasy. So I'm actually a bit tired of repeatedly hearing about how they will do what they want. If it's true then there is not point to taking part in a discussion of the law. So why hang around here?
Firstly, because not all judges are so intent on ruling as they please on the issue, just most of them.

Secondly, because I find it to be educational and informative, and one cannot generally know in advance whether or not the benefits of such will prove useful in the future.

And finally, because it's fun.


While I may disagree with FGG as regards the logical implications of the statements that the Supreme Court has made, I expect that he is correct in how the Supreme Court will actually interpret what they've written. After all, as I said, nothing prevents the Supreme Court from contradicting itself. If presented with an argument that the use of a traditional method of scrutiny is invalid in the 2nd Amendment context as a result of it being a method to "decide on a case-by-case basis whether the right is really worth insisting upon", the Supreme Court will simply reject that argument. Not because the argument lacks logical soundness, and not because the Court didn't say what it did, but simply because it can. It can, and will, give some bull**** excuse for upholding scrutiny in the face of what they said in Heller, but they'll uphold it nonetheless. That excuse will have further logical implications that the Court will also ignore later should they be brought up. Lather, rinse, repeat. It's how we got where we are today.
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  #222  
Old 11-07-2013, 11:50 PM
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It certainly does not change the fact that the Justices are human beings.
Merely being human is insufficient to justify what the courts have become today. Humans have a choice as to whether they will support liberty or squash it. That is especially true of those on the court who have been tasked with acting as a check on the power of the other branches of government.

Merely being human also got us the Third Reich, the Soviet Union, Communist China, fascist Italy, East Germany, etc. Are those societies to also be so easily excused for their evils?
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  #223  
Old 11-08-2013, 12:10 AM
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The above, strictly speaking, leaves on the table the possibility that dissent is implicitly proposing one of the traditionally expressed levels.
Why not simply propose one of the traditionally expressed levels explicitly? The dissent never does that, does he? When the majority says "explicitly at least," does the the dissent ever respond, "well actually, I am proposing one of the traditionally expressed levels of scrutiny"? What the dissent does do is reject strict scrutiny and rational basis:

Quote:
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).
and instead endorse the "interest-balancing inquiry" i.e. "proportionality approach" which you acknowledge is the only approach he endorses, citing Nixon as authority for this approach:

Quote:
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).
If the dissent was implicitly proposing the last of the traditionally expressed levels of scrutiny on the table (intermediate), Nixon would be an odd choice as Nixon upholds a prior Supreme Court case that explicitly rejected intermediate scrutiny. Not one of the other cases in the laundry list found in the paragraph where the dissent announces he is adopting the interest-balancing approach identifies itself as applying intermediate scrutiny. (These are Tincon's "[Hmmm, which standard of scrutiny do those case apply?]" cases.) Nixon rejects intermediate scrutiny, some of the cases cited in that paragaraph identify some scrutiny other than one of the traditionally expressed levels, others do not mention "scrutiny" at all. Could the dissent have gone any more out of his way in that paragraph to not cite any intermediate scrutiny cases? If the dissent wanted intermediate scrutiny, why would he not just say so explicitly, why would he cite as the primary example of his "interest-balancing approach" a case that flat out rejects intermediate scrutiny, and why in the paragraph in which he announces he is adopting the interest-balancing approach explicitly would he cite a string of cases none of which apply intermediate scrutiny as traditionally expressed (if they even mention "scrutiny" at all)? Are intermediate scrutiny cases that hard to find and cite? Is it that hard to just come right out and say "I am proposing intermediate scrutiny"?

Last edited by FABIO GETS GOOSED!!!; 11-08-2013 at 12:18 AM..
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  #224  
Old 11-08-2013, 12:18 AM
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I'd have to disagree. Every level of scrutiny asks more than one question.
Yes, in the general case, but look at the context, which is that of gun laws. In this case, the hurdle of compelling government interest has been immediately overcome by the "public safety" claim. For strict scrutiny, what does that leave?

  1. Whether the law is "narrowly tailored".
  2. Whether the law is the "least restrictive means".

But both of those are merely specific questions that are used to determine whether the law in question impermissibly burdens the right in the course of advancing the government interest in question.

The dissent's approach broadens and generalizes that inquiry, but the dissent's approach is still a superset of the approach taken by strict scrutiny. If one objects to the dissent's approach on the basis that it decides, on a case by case basis, whether the right is really worth insisting upon, then one by extension objects to traditional forms of scrutiny on the same basis, precisely because those forms are specific cases of the more general approach proposed by the dissent. They all share this specific trait.


Had the majority objected to dissent's approach on the basis of being "overbroad" or something of that sort, then there would be nothing to argue. But their objection was specific, foundational, and equally applicable to the traditional forms of scrutiny.
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Old 11-08-2013, 12:24 AM
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Why not simply propose one of the traditionally expressed levels explicitly? The dissent never does that, does he?
Then why did the majority bother saying what they did? Why mention that dissent didn't explicitly propose a traditionally expressed level of scrutiny unless there is the possibility that they somehow implicitly did so?
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Old 11-08-2013, 12:26 AM
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The dissent's approach broadens and generalizes that inquiry, but the dissent's approach is still a superset of the approach taken by strict scrutiny.
Says who, the dissent?
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Old 11-08-2013, 12:37 AM
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Says who, the dissent?
As regards application to gun laws, at least, yes.

But I am making that claim if nobody else is.
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Old 11-08-2013, 12:43 AM
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Then why did the majority bother saying what they did? Why mention that dissent didn't explicitly propose a traditionally expressed level of scrutiny unless there is the possibility that they somehow implicitly did so?
So, you don't have a good answer why the dissent didn't just come right out and say "I am proposing intermediate scrutiny", do you?
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Old 11-08-2013, 12:46 AM
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As regards application to gun laws, at least, yes.

But I am making that claim if nobody else is.
The Heller majority certainly isn't making that claim.
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Old 11-08-2013, 12:54 AM
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So, you don't have a good answer why the dissent didn't just come right out and say "I am proposing intermediate scrutiny", do you?
Your question was originally about what the majority was asserting, not what the dissent was proposing.

If the majority was asserting without question that dissent was proposing something different than the traditional methods of scrutiny, they would not have included a potential exception, would they?

So, you don't have a good answer why the majority included a potential exception in their statement about that difference, do you?
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Old 11-08-2013, 12:54 AM
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The Heller majority certainly isn't making that claim.
The Heller majority does not have to make the claim for the claim to be true.
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Old 11-08-2013, 1:20 AM
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The majority asserts that the interest-balancing inquiry the dissent is proposing is not the same as strict scrutiny, intermediate scrutiny, or rational basis, doesn't it?
Let's proceed from here under the assumption that my answer to this question is "yes".

ETA: the approach you've been using here is much appreciated. There is much more clarity as a result of these pointed and highly targeted questions than with the more general questions that you typically ask. I would request that you engage more in the manner that you have here than in the way you previously had.
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Last edited by kcbrown; 11-08-2013 at 1:44 AM..
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Old 11-08-2013, 1:40 AM
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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."

(Hint: last paragraph, first sentence.)

ETA: Link to Heller opinion here.

Thank you Fabio, from my heart.

Sparkling clarity, that even a layman such as myself can follow and learn.

You precisely pin your interlocutors and demonstrate the weaknesses of their arguments and points of view. So much more satisfying than that LOL smiley that I can't reproduce.

Actual LINKS by God!

Previously I'm sure that someone with three-quarters of your legal experience could follow along but the unwashed masses were left floundering.

Please keep going, your posts are of benefit to all.
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Old 11-08-2013, 5:36 AM
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Your question was originally about what the majority was asserting, not what the dissent was proposing.
No, it wasn't. It was entirely about what the dissent was or was not proposing. Evidently you think he spent 44 pages "implicitly" proposing intermediate scrutiny lol. Why would the majority say what it said? Why would it leave on the table the possibility that the dissent was proposing one or the other of the traditionally expressed levels of scrutiny --especially when the dissent explicitly rejects two of them? If we knew when in the drafting process the comment was made (with or without having seen the dissenting opinion), that would help the speculation, but my best guess is that it is a dig on the analytical soundness of the dissent's approach, or possibly to elicit a response from the dissent which the majority could then criticize. Ultimately I think it's some kind of rhetorical maneuver.

Here's a question that is not directed to anyone in particular. If Breyer thinks that any application of strict scrutiny to gun regulations will inevitably "turn into" the "interest-balancing inquiry" he endorses, does he have any real objection to its application?
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Old 11-08-2013, 5:58 AM
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Thank you Fabio, from my heart.

Sparkling clarity, that even a layman such as myself can follow and learn.

You precisely pin your interlocutors and demonstrate the weaknesses of their arguments and points of view. So much more satisfying than that LOL smiley that I can't reproduce.

Actual LINKS by God!

Previously I'm sure that someone with three-quarters of your legal experience could follow along but the unwashed masses were left floundering.

Please keep going, your posts are of benefit to all.
The underlying theme here is careful reading. If kcbrown had read the dissenting opinion carefully, he would not have disagreed with me about the "interest-balancing inquiry" and the "proportionality approach" being the same thing. (By the way, it is unlikely that I will ever go to the same lengths I just did to illustrate that lol.) If Tincon had read the dissenting opinion carefully, he would never have made the assertion that the laundry list of opinions in the paragraph under consideration were "intermediate scrutiny" cases when in fact none of them applied intermediate scrutiny at all. These careful reading errors go directly to the essential points that each is trying to make. I think I've pretty comprehensively discussed why I think the dissent was not proposing intermediate scrutiny, but there was a question I threw out there to Tincon that has not been answered. Here is the linchpin of Tincon's argument that the interest-balancing inquiry the dissent is proposing is intermediate scrutiny (and therefore by rejecting the interest-balancing inquiry the majority is rejecting intermediate scrutiny):

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Originally Posted by Tincon View Post
The US Supreme Court has also rejected the tier of scrutiny immediately below strict, intermediate. 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).
As I mentioned earlier, in the sentence in bold, Tincon deposited the parenthetical "[intermediate scrutiny]" before "standard." This is how the sentence actually reads in context:

Quote:
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 onsubstantial 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.
I disagree that the "standard" in this passage refers to a "standard of scrutiny", instead I think it refers to a more discrete "legal standard" (which although a component of intermediate scrutiny is not a standard of review itself), i.e., are the legislature's predictive judgments supported by substantial evidence? The specific question I asked is:

Quote:
Originally Posted by FABIO GETS GOOSED!!! View Post
You do agree that when the dissent says "that legal standard" and "the standard set forth in Turner," he is talking about the same thing, right Tincon?
The point I am leading to here won't take very long.

Last edited by FABIO GETS GOOSED!!!; 11-08-2013 at 1:47 PM..
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Old 11-08-2013, 7:07 AM
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The Heller majority does not have to make the claim for the claim to be true.
Breyer is trying to peddle an approach (Heller is not the first instance, see Nixon) and it is not getting any traction. The Heller majority is not buying the dissent's claim that any application of strict scrutiny to gun case will inevitably "turn into" the interest-balancing inquiry that the dissent endorses and which we have been discussing in this thread. (Note that the majority is rejecting the specific interest-balancing inquiry proposed by the dissent, not any approach that balances interests, as not all interest-balancing approaches balance interests in the particularized way that the dissent's "proportionality approach" does.) Who's right? Who decides who's right?
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Old 11-08-2013, 8:46 AM
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Originally Posted by FABIO GETS GOOSED!!! View Post
Breyer is trying to peddle an approach (Heller is not the first instance, see Nixon) and it is not getting any traction. The Heller majority is not buying the dissent's claim that any application of strict scrutiny to gun case will inevitably "turn into" the interest-balancing inquiry that the dissent endorses and which we have been discussing in this thread. (Note that the majority is rejecting the specific interest-balancing inquiry proposed by the dissent, not any approach that balances interests, as not all interest-balancing approaches balance interests in the particularized way that the dissent's "proportionality approach" does.) Who's right? Who decides who's right?
I think you have gone off into the weeds. Clearly Breyer was proposing a standard of scrutiny greater than rational basis and less then strict. Hence, intermediate. I realize he wants to add some other test ala Nixon , and whether that is something to be a preliminary matter or which swallows the entire scrutiny analysis, I don't know. In any event, the majority rejected his intermediate scrutiny standard.

Maybe there are other intermediate scrutiny standards that might be more appealing. But it hardly matters, because the majority's rejection of the dissent is just a final nail in the coffin for intermediate scrutiny, for the other reasons I mentioned, which are even stronger.

If I still owe you an answer, I don't see the question.
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Last edited by Tincon; 11-08-2013 at 8:52 AM..
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Old 11-08-2013, 9:17 AM
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If I still owe you an answer, I don't see the question.
Quote:
You do agree that when the dissent says "that legal standard" and "the standard set forth in Turner," he is talking about the same thing, right Tincon?
(We're talking about your parenthetical "[intermediate scrutiny]".)
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Old 11-08-2013, 9:17 AM
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You guys are arguing over semantics. You think "intermediate scrutiny" is anything that isn't rational basis or strict scrutiny. FGG thinks any standard that involves interest balancing (i.e. burden vs governmental interest) isn't scrutiny, but an independent standard.

That said, I don't think Breyer was suggesting a standard *always* stronger than rational basis. He suggested it depends, on a case by case basis, on the burden on the right imposed by the regulation. As I said, this means that if a court (or even a legislature) determines that the burden is low enough, not even rational basis need be applied.

Assuming, that is, that you still think rational basis has meaning other than "the legislature determined the regulation is rational".
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Old 11-08-2013, 9:36 AM
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You think "intermediate scrutiny" is anything that isn't rational basis or strict scrutiny.
I think that's what Tincon thinks as well and if it is I disagree. The Heller majority says "traditionally expressed levels (strict scrutiny, intermediate scrutiny, rational basis)". It is not labeling everything in between "rational basis" and "strict scrutiny" as "intermediate."
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