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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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  #241  
Old 11-08-2013, 10:38 AM
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Originally Posted by FABIO GETS GOOSED!!! View Post
No, it wasn't. It was entirely about what the dissent was or was not proposing.
The question I was speaking of was this:

Quote:
Originally Posted by FABIO GETS GOOSED!!! View Post
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?
The question you asked of me above is about what the majority asserts, not what dissent is actually proposing.

But in any case, let's proceed under the assumption that my answer to that question is "yes".


Quote:
Evidently you think he spent 44 pages "implicitly" proposing intermediate scrutiny lol.
No, you're confusing my position with that of Tincon's.


Quote:
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.
Okay, that could be. I thought that such things were cleaned up prior to the decision being published, however.


Quote:
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?
No, logically, he does not.
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  #242  
Old 11-08-2013, 10:39 AM
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FGG btw I want to thank you as well for being frank and forthright, and downright constructive. For the record
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  #243  
Old 11-08-2013, 10:51 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.
Most certainly, it is indisputable that the majority disagrees with dissent's described approach.


Quote:
(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.)
Let's pick this up when we've completed the directed line of inquiry we had going. You asked:

Quote:
Originally Posted by FABIO GETS GOOSED!!! View Post
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?
Assume my answer to that question is "yes". Please ask the followup question.


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Who's right? Who decides who's right?
Seeing how the Supreme Court is going to do as it pleases no matter what, I suppose that doesn't really matter all that much.

That doesn't change the logical implications of what the Court said, only whether they will be logically consistent with their own pronouncements. They almost certainly won't be.
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  #244  
Old 11-08-2013, 10:56 AM
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Originally Posted by kcbrown View Post
No, you're confusing my position with that of Tincon's.
I was mocking Tincon's position there, but it sounded like I was imputing it to you. My bad lol.

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No, logically, he does not.
Then it is your position that the dissent is being illogical when -- immediately after "describing" strict scrutiny as "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 explicitly rejects the application of strict scrutiny to gun cases, is it not?

I put "describing" in quotes because it was you who characterized this text as a "description of strict scrutiny." You haven't "shown" anything of the sort. You haven't even articulated the strict scrutiny standard as traditionally expressed.
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  #245  
Old 11-08-2013, 10:58 AM
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FGG btw I want to thank you as well for being frank and forthright, and downright constructive. For the record
It's a moment of weakness.
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  #246  
Old 11-08-2013, 11:31 AM
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Originally Posted by FABIO GETS GOOSED!!! View Post
Then it is your position that the dissent is being illogical when -- immediately after "describing" strict scrutiny as "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 explicitly rejects the application of strict scrutiny to gun cases, is it not?
Of course. I have not been proceeding under the assumption that the dissent's position is logically sound.


Quote:
I put "describing" in quotes because it was you who characterized this text as a "description of strict scrutiny." You haven't "shown" anything of the sort. You haven't even articulated the strict scrutiny standard as traditionally expressed.
No, I characterized it as Breyer's "description of strict scrutiny":

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Originally Posted by kcbrown View Post
The Supreme Court does not object to Breyer's description of strict scrutiny here. Instead, they object to the adoption of the inquiry he calls out as being the very same inquiry that is used when applying strict scrutiny.
However, the argument I put forth following that, which is:

Quote:
Originally Posted by kcbrown View Post
Therefore, by objecting to Breyer's insistence upon using the methods of strict scrutiny, the court is ipso facto objecting to the use of strict scrutiny itself. Because to claim otherwise is to claim that the Supreme Court is objecting to the fact that the interest balancing inquiry isn't being called one of the "traditionally expressed levels", that they object merely to the fact that Breyer is divorcing what scrutiny does from what it's called.
is incorrect.
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  #247  
Old 11-08-2013, 11:49 AM
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Most certainly, it is indisputable that the majority disagrees with dissent's described approach.

Let's pick this up when we've completed the directed line of inquiry we had going. You asked:

Assume my answer to that question is "yes". Please ask the followup question.
Honestly, I don't remember what the follow up question was so I'll just make my points lol. In arriving at your ultimate position that "one of three things must be true:...", you make two assertions:

Quote:
But the majority does not raise any explicit objection to the characterization of the iteration in question as being identical to a traditional form, nor do I see anywhere that it has provided any means by which one could implicitly object to that characterization.
In other words, "the majority doesn't have a problem with the dissent's description of strict scrutiny." If that is a mischaracterization, please say so. The second assertion is:

Quote:
"Breyer's description of strict scrutiny as applied to gun laws appears to be accurate."
As to the first assertion, of course the majority has a problem with what you term the "description of strict scrutiny," they emphatically reject it and they say it doesn't look like anything they've seen before.

As to the second assertion, it assumes two things: 1) the text in question is in fact a "description of strict scrutiny" and 2) the description is accurate. Not even Breyer says he is "describing strict scrutiny," but assuming that's what he is doing, it cannot be reconciled with his express rejection of strict scrutiny immediately thereafter.

I just hit refresh and noticed your latest post and will take it from there.
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  #248  
Old 11-08-2013, 12:05 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
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."
You love to leave out the critical part about "explicitly". Sloppy.
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  #249  
Old 11-08-2013, 12:15 PM
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Of course. I have not been proceeding under the assumption that the dissent's position is logically sound.
So everyone on the court is illogical, including the dissent, but his description of strict scrutiny is accurate notwithstanding the illogic of his position, and you can glean what again about the majority using your superior, reality-based powers of logic which nobody on the supreme court appears to possess?

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No, I characterized it as Breyer's "description of strict scrutiny"
Oh I see, it's technically not your description because you weren't the one who made it, right? So are you going to disclaim your personal endorsement of Breyer's description now as well? "Breyer's description of strict scrutiny as applied to gun laws appears to be accurate." Is that you who thinks Breyer's description "appears to be accurate" or is that somebody else?

Quote:
However, the argument I put forth following that, which is:

Quote:
Originally Posted by kcbrown
Therefore, by objecting to Breyer's insistence upon using the methods of strict scrutiny, the court is ipso facto objecting to the use of strict scrutiny itself. Because to claim otherwise is to claim that the Supreme Court is objecting to the fact that the interest balancing inquiry isn't being called one of the "traditionally expressed levels", that they object merely to the fact that Breyer is divorcing what scrutiny does from what it's called.
is incorrect.
I have no idea what you're saying here. Are you admitting you were wrong? Whatever it was you said before that you're saying is incorrect now is incomprehensible.

My patience with you has officially reached its limit.
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  #250  
Old 11-08-2013, 12:24 PM
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Default Article: Glock defends 2nd Amend Foundation's CA law suit.

Interesting article. Nice to see another major gun manufacturer actively joining in CA's continuing 2nd Amendment fight for all of our rights.

Article in its entirety:

"Attorneys for Glock, Inc. have filed an amicus curiae brief supporting the Second Amendment Foundation’s case in California, Pena v. Lindley, a lawsuit challenging the state handgun roster requirements that include microstamping and magazine disconnects.

Glock produces some of the most popular pistols in the world, and their guns are carried by law enforcement professionals and legally-armed private citizens across the United States.

“We are proud of Glock for stepping up to the plate,” said SAF founder and Executive Vice President Alan M. Gottlieb. “Glock believes, as do we, that California’s requirements place an undue burden on both consumers and manufacturers.”

According to the brief filed by attorneys Erik S. Jaffe of Washington, D.C. and John C. Eastman of Orange, Calif., Glock pistols are like the majority of semi-auto pistols manufactured today, because they do not include the magazine disconnect. Indeed, the brief notes that “the overwhelming majority of law enforcement agencies require pistols that do not have a magazine disconnect mechanism.”

Glock pistols, nor any other handgun in common use, can comply with California’s “microstamping” mandate, the brief notes. As a result the newest generation of Glock pistols is not on the California roster, and therefore cannot be sold to private individuals in that state.

“Under the First Amendment,” Gottlieb observed, “California is not allowed to compile a list of books you can read, and under the Second Amendment the state should not be allowed to compile a list of handguns you can own.”

Both Jaffe and Eastman clerked for Supreme Court Justice Clarence Thomas, Gottlieb noted. Mr. Eastman has considerable experience in civil and constitutional litigation, and was a candidate for California attorney general in 2010. He is a law professor at Chapman University. Mr. Jaffe also clerked for Judge Douglas H. Ginsburg of the U.S. Court of appeals in the District of Columbia. He has litigated in Washington, D.C. and has considerable experience in constitutional challenges.

“Glock definitely has an interest in this case,” Gottlieb said, “and their expertise could be crucial at this point. We’re glad they have chosen to weigh in.”


http://www.outdoorhub.com/news/glock...ndations-suit/
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  #251  
Old 11-08-2013, 12:26 PM
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You love to leave out the critical part about "explicitly". Sloppy.
Your response to 44 pages of the dissent "implicitly" proposing intermediate scrutiny when he could have just come right out and said "I'm proposing intermediate scrutiny" is what again? Is that what the majority is doing as well, "implicitly" rejecting intermediate scrutiny instead of "explicitly" saying that's what they're doing (like they did explicitly with rational basis)? You still haven't answered the question I've asked about 3 or 4 times already by the way.
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  #252  
Old 11-08-2013, 12:33 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
So everyone on the court is illogical, including the dissent, but his description of strict scrutiny is accurate notwithstanding the illogic of his position,
Correct. But note that the "description" here is merely this:

Quote:
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.
Quote:
Oh I see, it's technically not your description because you weren't the one who made it, right? So are you going to disclaim your personal endorsement of Breyer's description now as well? "Breyer's description of strict scrutiny as applied to gun laws appears to be accurate." Is that you who thinks Breyer's description "appears to be accurate" or is that somebody else?
I believe his description, such as it is, is accurate. However, I did not invent it, so it is not mine. Since you seem to thrive on pedantry, I thought it best to be explicit about such things.


Quote:
I have no idea what you're saying here. Are you admitting you were wrong?
Yes. In particular, this is incorrect:

Quote:
Breyer's insistence upon using the methods of strict scrutiny
Breyer claims that he is using the methods of strict scrutiny ("I would simply adopt such an interest balancing inquiry explicitly", where said interest balancing inquiry is the one in his description of strict scrutiny), but in reality he is not, and that has become plain as a result of our discussion so far (so yes, it has been useful, informative, etc.). That is a logical inconsistency in the dissent's position. All arguments of mine that depend on that particular statement are thus rendered null.
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  #253  
Old 11-08-2013, 12:42 PM
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Nice! The sleeping Bear awakes!
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  #254  
Old 11-08-2013, 12:43 PM
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Nice... So maybe when the Gen 10 Glocks roll around we can own them in California!
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  #255  
Old 11-08-2013, 1:22 PM
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Originally Posted by kcbrown View Post
Breyer claims that he is using the methods of strict scrutiny ("I would simply adopt such an interest balancing inquiry explicitly", where said interest balancing inquiry is the one in his description of strict scrutiny), but in reality he is not, and that has become plain as a result of our discussion so far (so yes, it has been useful, informative, etc.). That is a logical inconsistency in the dissent's position.
The discussion evidently has not been as useful, informative, etc., as you seem to think, as I never said or implied the dissent has not adopted the interest-balancing inquiry he describes. I think the dissent actually does just that (i.e., he adopts the "interest-balancing inquiry") and then in the dissenting opinion he applies it to the DC firearm laws being challenged.
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  #256  
Old 11-08-2013, 1:40 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
Your response to 44 pages of the dissent "implicitly" proposing intermediate scrutiny when he could have just come right out and said "I'm proposing intermediate scrutiny" is what again? Is that what the majority is doing as well, "implicitly" rejecting intermediate scrutiny instead of "explicitly" saying that's what they're doing (like they did explicitly with rational basis)? You still haven't answered the question I've asked about 3 or 4 times already by the way.
I assumed that question was rhetorical, since I haven't fully developed my mind reading technology yet. But if I had to speculate, I'd say he knew intermediate scrutiny would, and should, be rejected for a fundamental right. So he tries to call it something else. But it's still intermediate scrutiny.
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  #257  
Old 11-08-2013, 1:44 PM
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The two questions were rhetorical, here's the question that's been asked multiple times before that you haven't answered:

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?
For reference:

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 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.
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  #258  
Old 11-08-2013, 1:55 PM
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No. He mentions Turner more than once, and the second reference to Turner is likely more inclusive of his "interest balancing" intermediate scrutiny test. This would explain why he says "the standard" in Turner. Are you suggesting that the only standard mentioned in Turner is deference to the legislature?
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Old 11-08-2013, 2:05 PM
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Originally Posted by Tincon View Post
No. He mentions Turner more than once, and the second reference to Turner is likely more inclusive of his "interest balancing" intermediate scrutiny test.
I'm not sure that answers the question, I'm not talking about citations to turner but the specific terms "that legal standard" and "the standard set forth in Turner" in bold in the quote above. Put another way, do both instances refer to a standard of scrutiny?

Quote:
This would explain why he says "the standard" in Turner. Are you suggesting that the only standard mentioned in Turner is deference to the legislature?
"Mentioned" or "set forth"?
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  #260  
Old 11-08-2013, 2:11 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
I'm not sure that answers the question, I'm not talking about citations to turner but the specific terms "that legal standard" and "the standard set forth in Turner" in bold in the quote above. Put another way, do both refer to a standard of scrutiny?
Well, when you put it that way, no. And I realize that is inconsistent with my prior position on "standard."

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Originally Posted by FABIO GETS GOOSED!!! View Post
"Mentioned" or "set forth"?
Eh, good point.
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Old 11-08-2013, 2:34 PM
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Your exegesis could use some careful revision IMO, I'm not saying that disparagingly but encouragingly. I suspect a better argument could be made that the dissent is applying intermediate scrutiny, using the dissent's application of the "interest balancing-inquiry" in the dissenting opinion itself to illustrate, but I haven't thought through the details; using the "standard set forth in Turner" argument as the centerpiece is problematic IMO for the reasons discussed.
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Old 11-08-2013, 2:49 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
The discussion evidently has not been as useful, informative, etc., as you seem to think, as I never said or implied the dissent has not adopted the interest-balancing inquiry he describes. I think the dissent actually does just that (i.e., he adopts the "interest-balancing inquiry") and then in the dissenting opinion he applies it to the DC firearm laws being challenged.
Interesting.

Then let's get to the specifics.

Is the following statement by the dissent correct?

Quote:
Thus, any attempt in theory to apply strict scrutiny to gun regulations will in practice turn into an interest-balancing inquiry,
Yes or no.
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Old 11-08-2013, 2:55 PM
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Your exegesis could use some careful revision IMO, I'm not saying that disparagingly but encouragingly. I suspect a better argument could be made that the dissent is applying intermediate scrutiny, using the dissent's application of the "interest balancing-inquiry" in the dissenting opinion itself to illustrate, but I haven't thought through the details; using the "standard set forth in Turner" argument as the centerpiece is problematic IMO for the reasons discussed.
Maybe so, and I appreciate the constructive criticism. But the dissent's views, and the majority's rejection of them, are most definitely not the centerpiece of the overall argument.
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Old 11-08-2013, 3:03 PM
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Originally Posted by kcbrown View Post
Is the following statement by the dissent correct?

Yes or no.
To be honest, without further research I don't feel I have sufficient command of the strict scrutiny standard and its application to render an opinion on that. My hypothesis would be no.
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Old 11-08-2013, 3:10 PM
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To be honest, without further research I don't feel I have sufficient command of the strict scrutiny standard and its application to render an opinion on that. My hypothesis would be no.
This may explain our disagreement (well, some of it, at any rate).

Let's go with your hypothesis for the moment. Why, according to that hypothesis, is dissent's statement incorrect?
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Old 11-08-2013, 3:35 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
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?
That's an interesting question. He certainly thinks they pass the rational basis test:

Quote:
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 56. 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” to a “legitimate governmental purpose.”Heller v.Doe, 509 U. S. 312, 320 (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.
A Strict Scrutiny schema gleaned from various sources:

Strict Scrutiny

The law or policy must satisfy three tests:

It must be justified by a compelling governmental interest.

The law or policy must be narrowly tailored to achieve that goal or interest.

The law or policy must be the least restrictive means for achieving that interest, that is, there cannot be a less restrictive way to effectively achieve the compelling government interest.

Breyer on "compelling government interest" with respect to the Heller laws

Quote:
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 (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, and the Court has in a wide variety of constitutional contexts found such public-safety concerns sufficiently forceful to justify restrictions on individual liberties......
The laws pass the "compelling government interest" test, but Breyer thinks a True strict-scrutiny standard is impossible.

Quote:
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.
I think Breyer is adding something here that isn't called for in the Strict Scrutiny schema. The second test only asks if the law or policy is narrowly tailored to achieve the compelling government interest. It doesn't require the interest-balancing test. The rationale he offers for the interest-balancing is this:

Quote:
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.
Well, the constitutionality of the enumerated right has to be presumed, since it's, like, actually in the constitution! There is no "constitutional equation." The law or policy advancing a compelling government interest is what's under scrutiny. Is it narrowly tailored to achieve that interest? Is it the least restrictive means for achieving that interest?

So the answer is no, he wouldn't endorse strict scrutiny as commonly performed; and no, it doesn't always devolve into an interest balancing inquiry; and no, there's nothing unique about gun regulations in this respect.

Last edited by RipVanWinkle; 11-08-2013 at 3:44 PM.. Reason: added "t"
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Old 11-08-2013, 3:36 PM
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Originally Posted by kcbrown View Post
This may explain our disagreement.
Implicit in what I said is that I don't think you have "shown" that the methods used by the dissent in the course of its "interest-balancing inquiry" are in fact the methods of strict scrutiny, or that Breyer is claiming that they are. (If you are not making these claims, please say so.) Your position as I understand it depends on these assumptions, and you have done not much more than say "the description looks accurate to me." (Again if that is not your current position say so.) I think the dissent's rejection of strict scrutiny is evidence simply that he is rejecting strict scrutiny, and not evidence that he is being "illogical" or contradictory by simultaneously endorsing and rejecting strict scrutiny. I also think that evidence (i.e., the dissent's rejecting strict scrutiny) is consistent with the majority's assertion that they do not recognize the methods of the interest-balancing inquiry as belonging to any of the traditionally expressed levels of scrutiny.
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Old 11-08-2013, 3:42 PM
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Good post RipVanWinkle; my hypothesis based on my general understanding of the strict scrutiny standard is that the particularized weighing of burdens in the dissent's "interest-balancing inquiry" aka "proportionality approach" is not included in the "strict scrutiny schema" as you say.
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Old 11-08-2013, 3:57 PM
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Last couple posts of mine were rush jobs, trying to get out of the office in a hurry...will try to make clarifying edits later.
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Old 11-08-2013, 4:04 PM
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Originally Posted by FABIO GETS GOOSED!!! View Post
Implicit in what I said is that I don't think you have "shown" that the methods used by the dissent in the course of its "interest-balancing inquiry" are in fact the methods of strict scrutiny, or that Breyer is claiming that they are. (If you are not making these claims, please say so.)
I originally made the first claim. That is the claim that I have since retreated from.

However, it looks to me like Breyer is claiming that he is using the "interest balancing inquiry" of strict scrutiny. Since he has already reduced the question of compelling government interest to a constant, I suppose that leaves this question: is what remains of strict scrutiny in practice, as Breyer appears to claim, an "interest balancing inquiry" and, if so, is there anything left of strict scrutiny that is not covered by that inquiry?


Quote:
Your position as I understand it depends on these assumptions, and you have done not much more than say "the description looks accurate to me." (Again if that is not your current position say so.)
You'll recall that I've asked on more than one occasion how that description is not accurate, and you have not been forthcoming with any answer to that.

I was attempting to use this particular line of thought as a means of providing additional support for my position, but my position does not strictly depend on it.


Quote:
I think the dissent's rejection of strict scrutiny is evidence simply that he is rejecting strict scrutiny, and not evidence that he is being "illogical" or contradictory by simultaneously endorsing and rejecting strict scrutiny.
If that is the case, then it follows that either what remains of strict scrutiny after the "compelling government interest" hurdle is overcome is not an "interest balancing inquiry", or there remains some additional thing about strict scrutiny that is not covered by the "interest balancing inquiry" that dissent claims to adopt.


Quote:
I also think that evidence (i.e., the dissent's rejecting strict scrutiny) is consistent with the majority's assertion that they do not recognize the methods of the interest-balancing inquiry as belonging to any of the traditionally expressed levels of scrutiny.
I agree with this. But note that what dissent rejects is what he claims is strict scrutiny's "presumption of unconstitutionality". That may merely be some rejection of some part of strict scrutiny, or it may be rejection of all of it. Regardless, it is most certainly the case that the "interest balancing inquiry" put forth by the dissent is not identical to strict scrutiny, and as such cannot be called strict scrutiny.



ETA: In light of the fact that you intend to make clarifying edits later, please regard the above as preliminary.
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Old 11-08-2013, 4:27 PM
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The discussion evidently has not been as useful, informative, etc., as you seem to think
Perhaps not, but I'm beginning to see that, perhaps, it is not so much that you hold a specific opinion about the decisions and their implications, but rather that you hold opinions about our opinions.

And, further, that you basically force us to justify our opinions by asking (sometimes frustratingly vague) questions.


My opinion of you was wrong. What you're doing is immensely valuable, if sometimes frustrating, and I apologize for being enough of a dullard to take this long to really see it. While you may have reached the limit of your patience with me, I must ask you to nonetheless persevere.

So carry on poking holes in my arguments! And I think I'll try following your suggestions of where to look, etc., even if they're vague. While others have found your method of direction frustrating, I can see a wisdom in it as well as some immense benefit that can come from it.

My only request is this: if you see something we say that is incorrect after an attempt to research the answers to your questions, don't merely say that they're incorrect; rather, drop more hints, more things to research that may lead to eventual enlightenment.
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Old 11-08-2013, 11:34 PM
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I still find it difficult to see strict scrutiny as an interest balancing act.

That is, in rational basis, the government's interest tends to come first. In strict scrutiny, the government's interest comes last.
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Old 11-08-2013, 11:55 PM
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I still find it difficult to see strict scrutiny as an interest balancing act.

That is, in rational basis, the government's interest tends to come first. In strict scrutiny, the government's interest comes last.
Not really.

In strict scrutiny, the law stands unless the government interest in question isn't "compelling" (for gun laws, it always will be), the law isn't "narrowly tailored" (an ostensibly subjective question), or the law isn't the "least restrictive means" (which in practice is actually just a guideline since there are laws that have withstood this test despite not actually being the least restrictive means. In practice, this means the law stands if the court doesn't deem the law to be too restrictive). In other words, it's perfectly fine to infringe upon even the most important rights in whatever ways you wish as long as you use a sufficiently soft touch.

When pitted against the most sacrosanct, most heavily protected rights, the above is the most the courts do with the laws that are acknowledged to infringe upon them.

Strict scrutiny isn't as strict as you might think: http://papers.ssrn.com/sol3/papers.c...ract_id=897360



In rational basis, on the other hand, the right is essentially deemed to not exist at all.


There's a reason we're now so incredibly burdened with laws and regulations covering anything and everything. Between the above and the doctrines of "constitutional avoidance" and "presumption of constitutionality", the hurdle for challenging any law, even those that infringe upon the most sacrosanct rights, is monumentally high.

But not impossible. The courts haven't entirely abandoned their posts. But they do seem to be asleep at them.
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Old 11-10-2013, 6:35 PM
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I have to thank kcbrown, tincon, and FGG for keeping this discussion going and in such an educational and enlightening manner. It prompted me to read Breyers dissent. After which, I am more concerned that the interpretation of the COTUS is left in the hands of such people.

My biggest problem (and there are many) arises with this statement:

Quote:
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, where the judgment has been made by a local legislature, with particular knowledge of local problems and insight into appropriate local solutions.
...
Different localities may seek to solve similar problems in different ways, and a “city must be allowed a reasonable opportunity to experiment with solutions to admittedly serious problems."
Given a completely impartial (local) legislature, I would tend to agree with this. However, either Breyer is being disingenuous or he is completely out of touch with the reality of the (that of 2008) political climate.

I really don't care what type of scrutiny or interest balancing tests he is proposing, simply because Breyer and the other dissenters will never admit that the individuals RKBA can ever outweigh the governmental interest of "protecting the citizenry" (ie. reducing crime and perceived public safety).
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Old 11-10-2013, 8:00 PM
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I really don't care what type of scrutiny or interest balancing tests he is proposing, simply because Breyer and the other dissenters will never admit that the individuals RKBA can ever outweigh the governmental interest of "protecting the citizenry" (ie. reducing crime and perceived public safety).
It raises the very valid question: what's the point of even recognizing the existence of a right if one defers to the legislature anyway?

Deferring to the legislature on a matter involving a Constitutionally-protected right is identical to insisting that the right doesn't exist at all. The protection of a right via enumeration in the Constitution, as the Supreme Court majority in Heller said, "takes off the table the power to decide, on a case by case basis, whether the right is really worth insisting upon".

When a Constitutional right is being infringed by a law, the only reasonable way to interpret the above statement is that the right, and not the law, always wins unless, at the very least, some other Constitutionally-protected right is being protected by the law. Otherwise, what is the real difference between insisting upon the right and not insisting upon it? Insistence upon the right must have a real-world effect that favors the right in some meaningful and substantial way, else it means nothing at all.
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Old 11-10-2013, 9:09 PM
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Originally Posted by kcbrown View Post
It raises the very valid question: what's the point of even recognizing the existence of a right if one defers to the legislature anyway?

...

When a Constitutional right is being infringed by a law, the only reasonable way to interpret the above statement is that the right, and not the law, always wins unless, at the very least, some other Constitutionally-protected right is being protected by the law. Otherwise, what is the real difference between insisting upon the right and not insisting upon it? Insistence upon the right must have a real-world effect that favors the right in some meaningful and substantial way, else it means nothing at all.
Ok, so let's step back to the First Amendment, the prototypical case. There are limits to free speech, at least some of which are reasonable.

How can we find these reasonable limits?

Presumably we cannot regulate nor license the ownership of tongues or pencils.
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Old 11-11-2013, 12:12 AM
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Originally Posted by mshill View Post
I really don't care what type of scrutiny or interest balancing tests he is proposing, simply because Breyer and the other dissenters will never admit that the individuals RKBA can ever outweigh the governmental interest of "protecting the citizenry" (ie. reducing crime and perceived public safety).
I think you are right, and outside of what is in that dissent, I don't really care what Breyer thinks either. The reason the dissent matters is because the Heller majority explicitly rejected something in it. If it can be successfully argued that what they rejected was intermediate scrutiny, it gets us one step closer to locking in strict scrutiny for 2A.
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Old 11-11-2013, 7:18 AM
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I think you are right, and outside of what is in that dissent, I don't really care what Breyer thinks either. The reason the dissent matters is because the Heller majority explicitly rejected something in it. If it can be successfully argued that what they rejected was intermediate scrutiny, it gets us one step closer to locking in strict scrutiny for 2A.
I have to re-read the majority opinion but like everyone knows we are just one stroke away from interest balancing BS.
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Old 11-11-2013, 10:18 AM
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I think you are right, and outside of what is in that dissent, I don't really care what Breyer thinks either. The reason the dissent matters is because the Heller majority explicitly rejected something in it. If it can be successfully argued that what they rejected was intermediate scrutiny, it gets us one step closer to locking in strict scrutiny for 2A.
I may be on thin ice here, but I think Justice Breyer would view the "Balancing" as between the constitutional, collective right of Congress to make laws,
Quote:
Article. I.

Section. 1.

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.
and the individual right to keep and bear arms.

He probably would argue that as the interests of the government become more compelling, the presumption of constitutionality of laws increases. He views the "constitutional conflict" as between the right of Congress to legislate, and the right to keep and bear arms.

The majority, having decided that the right to keep and bear arms for self defense is an individual right (remember, that was also in dispute in this case), wants to adjudicate the issue in the framework of existing law dealing with challenges to laws impinging on enumerated, individual constitutional rights.

The bulk of that jurisprudence has dealt with 1st amendment issues and is the source of the "Levels of Scrutiny" approach. The whole basis of that approach presupposes that as the law(s) under examination impinges more on the core right, the assumption of constitutionality diminishes, or evaporates entirely. When strict Scrutiny is applicable the case of the government (constitutional right to legislate) must be very compelling indeed to even be worthy of a hearing.

I think the Heller majority wants to retain the "Levels of Scrutiny" framework for all such cases, for obvious reasons of at least consistency and economy. Breyer, on the other hand, wants to carve out a special exception for gun rights. He says so:

Quote:
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)
That's what the majority is objecting to. Breyer would never make this kind of argument in a 1A case.

Quote:
I have to re-read the majority opinion but like everyone knows we are just one stroke away from interest balancing BS.
Maybe, but then they're opting for adjudicating on a case by case basis whether any particular constitutional right is worth insisting upon.
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Old 11-11-2013, 10:53 AM
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Quote:
Originally Posted by Justice Breyer
...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)
So I'm reading this to say that Breyer at least, when he applies strict scrutiny to a case, starts from the presumption that the law in question in unconstitutional.

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