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National 2nd Amend. Political & Legal Discussion Discuss national gun rights and 2A related political topics here. All advice given is NOT legal counsel.

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  #681  
Old 06-01-2019, 1:34 PM
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Are nuclear weapons dangerous sitting in silos all by themselves? Are WWII mines dangerous floating in harbors all by themselves?

Your argument is absurd. Of course guns are dangerous. That's its defining feature. If you don't want a dangerous gun, buy a nerf
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  #682  
Old 06-01-2019, 3:30 PM
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A meteor striking the earth is dangerous. Lightning is dangerous. Sharks and grizzly bears are dangerous. Tornadoes are dangerous. These things are dangerous because they could kill you at any moment if you go near them, completely outside the control of any person.

I've never heard of a person getting shot by a gun just because they were near it.

They are weapons. Just like a sword, or a bow and arrow, or a slingshot, they are not inherently dangerous, because they pose zero risk when they're merely present near someone. It requires human intervention before there is any possibility it can hurt someone. Literally everything on the planet could be used to kill someone.

Is a toilet lid dangerous? I'm pretty sure that someone could knock your lights out with one. So if you're going to categorize firearms as dangerous, you're going to need to also categorize literally every other object in existence that someone could intentionally or unintentionally hurt themselves or someone else with.

We lock them in safes for the same reason that we lock our medicine cabinets, and keep the drain cleaner on the top shelf - because in the hands of a child (or a criminal), there is an extremely elevated risk of being used by someone who will accidentally or purposefully shoot themselves or others. This is why I am all for responsible gun ownership.

Keep your drain cleaner, prescription meds, and guns locked up if there may be kids or criminals around them. It's just basic responsibility - because an irresponsible or criminal person with a drain cleaner, or prescription meds, or a gun is what would be dangerous.

Last edited by cockedandglocked; 06-03-2019 at 9:11 AM..
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  #683  
Old 06-03-2019, 7:00 AM
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So, are there any dates set for this thing to go down?
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  #684  
Old 06-03-2019, 12:37 PM
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Originally Posted by Cortelli View Post
Without expressing any view myself on NFA, FA weapons, flamethrowers, etc. -- do you recognize and acknowledge that your argument is a policy argument -- "some things which the general public should not have."

You've arrived at a policy position and now it is time to construct a legal and constitutional argument that gets you to that policy outcome.
The job of SCOTUS is to decide policy. The tools they use to do that with are laws, tradition, history, social norms, and so on.

On the other side of the coin is the fact that there are 4 words in the 2A found no where else in the Constitution. I agree that on their face they say what they say and should irrefutably mean what they say.

Yet we should all understand that shouting "all crimes are illegal" isn't likely to stop someone from committing a crime. Thus, repeating words which we believe to have real meaning is irrelevant to the reality we live in. That reality is well expressed in the statement found in Heller that "no constitutional right is unlimited".

In such a situation it falls to SCOTUS to decide where the line is drawn. Not IF there is a line, but where it is drawn. Some here wish the line to be on the other side of "shall not be infringed" in any manner whatsoever. The reality is that such a wish coming true is no more likely than meeting the Easter Bunny or Santa Claus in person.

There is a line. The line should uphold the basic principle that the people have the right to keep and bear arms in common use AND allow for those individuals who desire more to posses arms which are regulated due to the specific aspects of their existence which make them dangerous or unusual. Please note these arms are not "banned", their use and possession is merely regulated. Tightly regulated but only regulated nonetheless. They are not banned.

Interestingly enough, such a line would in fact allow for private ownership of warships. As well as fully functional aircraft and ground based heavy armament with fully intact and functional weapons systems. The key with these, like all things, is whether you can afford it, not whether you should have it.

Thus the argument against the 1934 NFA goes counter to that key understanding. There is no Constitutional right to "cheap" or that all arms be "readily available".
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  #685  
Old 06-03-2019, 1:59 PM
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Rplaw: I agree with most every thing you said there except the first line. I don't think it is the courts job to set policy. It is the job of politicians to set policy. It is the job of the court to decide if those policies are legal and constitutional. They should be defining the limits on just how far those laws can go, not creating law.

Last edited by Sputnik; 06-03-2019 at 7:51 PM.. Reason: spelling
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  #686  
Old 06-03-2019, 2:22 PM
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Originally Posted by rplaw View Post
The job of SCOTUS is to decide policy. The tools they use to do that with are laws, tradition, history, social norms, and so on.
The job of SCOTUS is emphatically NOT to decide policy. The job of SCOTUS is to determine cases and controversies according to the law.

Granted, there are many situations where there is no clearly, unequivocally "right" answer due to silence in the law, ambiguity in the law, etc. And SCOTUS and lower courts will apply policy preferences in such circumstances, in part by relying on tradition, history, social norms and so on -- but importantly, IMHO, of those that approved the law -- i.e., one hopes they do so with regard to, as best they can determine, the policy preferences expressed by the *proper* policy makers - those elected by the people.

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On the other side of the coin is the fact that there are 4 words in the 2A found no where else in the Constitution. I agree that on their face they say what they say and should irrefutably mean what they say.

Yet we should all understand that shouting "all crimes are illegal" isn't likely to stop someone from committing a crime. Thus, repeating words which we believe to have real meaning is irrelevant to the reality we live in. That reality is well expressed in the statement found in Heller that "no constitutional right is unlimited".

In such a situation it falls to SCOTUS to decide where the line is drawn. Not IF there is a line, but where it is drawn.
And one would hope that SCOTUS would rely primarily on the written law, in this case, the Constitution. Where it may be necessary to draw some inferences and look to other policy choices on how a law or portion of a law should be interpreted, it is again emphatically NOT SCOTUS' job to engage in a free-wheeling 'analysis' of what the desired outcome should be ("we all know some bubbas who shouldn't have guns so let's figure out a way to keep those guns away from bubbas") and then work backwards from there.

As I noted in my previous comment - I am not expressing a view on what the particular analysis should result in, nor in the applicability of such analysis to NFA, GCA, etc.

I am only pushing back on your stated view of the role of the courts in a republic with a written constitution and written laws. Your arguments here make it seem as if you believe the courts to be some sort of "super legislature" that gets to override the policy preferences of the elected branches and/or interpret previously passed laws (including the constitution) in accordance with new policy preferences or circumstances.

It is not an uncommon view; but it is a pretty unappealing view, IMHO, for one who wishes to live under a rule of law, in a republic, with policy preferences expressed through the people's elected representatives, subject only to constitutional restrictions on the majority's ability to affect enumerated rights belonging to individuals regardless of the will of the majority (absent a constitutionally acceptable method to change such rights - i.e., a constitutional amendment).
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  #687  
Old 06-03-2019, 6:21 PM
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Originally Posted by Cortelli View Post
The job of SCOTUS is emphatically NOT to decide policy. The job of SCOTUS is to determine cases and controversies according to the law.
Unfortunately, deciding what a law means is, effectively, deciding on policy. Even Heller admits this when the court said that the Constitution takes certain policy choices are off the table.

Quote:
Granted, there are many situations where there is no clearly, unequivocally "right" answer due to silence in the law, ambiguity in the law, etc. And SCOTUS and lower courts will apply policy preferences in such circumstances, in part by relying on tradition, history, social norms and so on -- but importantly, IMHO, of those that approved the law -- i.e., one hopes they do so with regard to, as best they can determine, the policy preferences expressed by the *proper* policy makers - those elected by the people.
And, who steps in when those *proper* "policy makers" infringe? And what do they do?

The SCOTUS decides policy. Lower Courts decide issues, but the SCOTUS decides National policy. It's strange to believe this, but it's true.



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And one would hope that SCOTUS would rely primarily on the written law, in this case, the Constitution. Where it may be necessary to draw some inferences and look to other policy choices on how a law or portion of a law should be interpreted, it is again emphatically NOT SCOTUS' job to engage in a free-wheeling 'analysis' of what the desired outcome should be ("we all know some bubbas who shouldn't have guns so let's figure out a way to keep those guns away from bubbas") and then work backwards from there.

As I noted in my previous comment - I am not expressing a view on what the particular analysis should result in, nor in the applicability of such analysis to NFA, GCA, etc.

I am only pushing back on your stated view of the role of the courts in a republic with a written constitution and written laws. Your arguments here make it seem as if you believe the courts to be some sort of "super legislature" that gets to override the policy preferences of the elected branches and/or interpret previously passed laws (including the constitution) in accordance with new policy preferences or circumstances.

It is not an uncommon view; but it is a pretty unappealing view, IMHO, for one who wishes to live under a rule of law, in a republic, with policy preferences expressed through the people's elected representatives, subject only to constitutional restrictions on the majority's ability to affect enumerated rights belonging to individuals regardless of the will of the majority (absent a constitutionally acceptable method to change such rights - i.e., a constitutional amendment).
I agree with you to a point. However, the role of the Courts is to be able to place limits on both the administrative and legislative branches as well as the general public. In order to do this, the courts must take public policy into account in addition to the law.

Law AND equity reign in a courtroom. This includes the SCOTUS and it's decisions are sweeping. Thus, when the SCOTUS makes a decision, it must include a determination on policy as well as the law.

No other court has the power or ability to do this.
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  #688  
Old 06-03-2019, 7:13 PM
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When are we expecting a decision? After Summer still?
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  #689  
Old 06-03-2019, 8:06 PM
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When are we expecting a decision? After Summer still?
Weren't they saying October? (or thereabouts)
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  #690  
Old 06-04-2019, 8:00 AM
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Originally Posted by rplaw View Post
Unfortunately, deciding what a law means is, effectively, deciding on policy. Even Heller admits this when the court said that the Constitution takes certain policy choices are off the table.

And, who steps in when those *proper* "policy makers" infringe? And what do they do?
Where a law is found unconstitutional, yes the court is overriding a policy choice made by the elected branches. Absent a constitutional infirmity in the law at issue, neither SCOTUS nor any other court has a veto over policy decisions.

The scope of possible policy is huge; Article III courts can (in reality, should) only check those policy choices that exceed constitutional limits. While calling out those limits might be said to be "making policy," there is an enormous difference between (1) laboring to determine the limit set by the constitution / law and (2) seeking to place the limit where "proper" policy dictates it should be.

Quote:
The SCOTUS decides policy. Lower Courts decide issues, but the SCOTUS decides National policy. It's strange to believe this, but it's true.
Well, IMHO, we see lower courts deciding policy all the time. Once there is a general sense that courts have a policy-making role beyond merely checking policy choices that exceed constitutional limits, lots of jurists will stretch their wings on policy choices given that they each have unique insights, wisdom, and judgment beyond mere elected officials.

Quote:
I agree with you to a point. However, the role of the Courts is to be able to place limits on both the administrative and legislative branches as well as the general public. In order to do this, the courts must take public policy into account in addition to the law.

Law AND equity reign in a courtroom. This includes the SCOTUS and it's decisions are sweeping. Thus, when the SCOTUS makes a decision, it must include a determination on policy as well as the law.
This is where I think we disagree (or maybe mostly agree, but I see it as a greater danger that needs to be called out and resisted wherever it pops up its head instead of going along with it).

I believe that the courts' role of limiting the other branches is a function of the written law (including the constitution); and where genuine ambiguity requires interpretation - which is a high percentage of the time at the appeals court level - an aggressively deferential "policy-making" approach is the proper role for the courts. The courts at least give lip service to this concept as well, but stunningly it doesn't stop even a district court judge from venturing into policy choices when an opportunity presents itself.

It may be that I place too much emphasis on this issue, but I see acquiescence to a the general idea that courts (or even just SCOTUS) has a proper and important role in determining policy is a danger to self-rule, enumerated minority rights, and separation of powers.

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No other court has the power or ability to do this.
How I wish this were true. You should tell the district court judges and appellate judges this. While higher courts may formally overrule lower decisions, and while circuit court decisions technically only apply to the circuit at issue, SCOTUS can't and won't review every decision, and plenty of national policies have flowed from a single circuit court decision.

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1931—Stephen Reinhardt is born in New York. Appointed to the Ninth Circuit by Jimmy Carter in 1980, Judge Reinhardt has earned notoriety as the “liberal badboy of the federal judiciary.” In his overtly political view of judging, “The judgments about the Constitution are value judgments. Judges exercise their own independent value judgments. You reach the answer that essentially your values tell you to reach.” Undeterred by, and indeed defiantly proud of, being perhaps the most overturned judge in history (frequently by a unanimous Supreme Court), Reinhardt declares, “They can’t catch them all.” Link: https://www.nationalreview.com/bench...vism-march-27/
It is not enough to call out policy-making by courts only when they reach decisions that the majority of the public would deem egregious (i.e., contrary to public policy) -- we need to make clear that the proper role in policy making of courts, including SCOTUS, should be extraordinarily limited.
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  #691  
Old 06-04-2019, 10:37 PM
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Weren't they saying October? (or thereabouts)
No. The oral arguments will occur in October 2019. The decision will be after the oral arguments. Up until June 2020.

Deep breaths. You've got this.
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  #692  
Old 06-05-2019, 8:02 AM
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A meteor striking the earth is dangerous. Lightning is dangerous. Sharks and grizzly bears are dangerous. Tornadoes are dangerous. These things are dangerous because they could kill you at any moment if you go near them, completely outside the control of any person.

I've never heard of a person getting shot by a gun just because they were near it.

They are weapons. Just like a sword, or a bow and arrow, or a slingshot, they are not inherently dangerous, because they pose zero risk when they're merely present near someone. It requires human intervention before there is any possibility it can hurt someone. Literally everything on the planet could be used to kill someone.

Is a toilet lid dangerous? I'm pretty sure that someone could knock your lights out with one. So if you're going to categorize firearms as dangerous, you're going to need to also categorize literally every other object in existence that someone could intentionally or unintentionally hurt themselves or someone else with.

We lock them in safes for the same reason that we lock our medicine cabinets, and keep the drain cleaner on the top shelf - because in the hands of a child (or a criminal), there is an extremely elevated risk of being used by someone who will accidentally or purposefully shoot themselves or others. This is why I am all for responsible gun ownership.

Keep your drain cleaner, prescription meds, and guns locked up if there may be kids or criminals around them. It's just basic responsibility - because an irresponsible or criminal person with a drain cleaner, or prescription meds, or a gun is what would be dangerous.
I don’t think you understand what the word dangerous means, an this is the sort of sophistry that does not help our argument.

Guns are dangerous and that is the point.
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  #693  
Old 06-05-2019, 8:06 AM
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Knives are designed to cut things, including flesh. Are knives also dangerous all by themselves, sitting in my kitchen drawer or folded up in my pocket, not being handled? I think you are still giving too much credit to inanimate objects.
Another sophistry. Yes, knives are dangerous too, so are power toolls, or cars. Their proper use requires care and practice and training, to a lesser extent than with guns.

That is the common meaning of the word and denying it makes gun advocates look like blabbering idiots.
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  #694  
Old 06-05-2019, 10:28 AM
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No. The oral arguments will occur in October 2019. The decision will be after the oral arguments. Up until the end of June 2020.
Fixed it for ya.

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Originally Posted by Kukuforguns View Post
Deep breaths. You've got this.
This. Everyone, just enjoy the month of June not even thinking about this case. My guess is we'll find out when orals are scheduled on the first Monday in July. When that happens, we can go back to enjoying the summer and Sept before closely monitoring CGN for updates.

Until then, just EDC pepper spray, obey the 4-S Rule, and enjoy life!

ETA: The 4-S rule: (1) Avoid being around Stupid people; (2) avoid going to Stupid places; (3) avoid doing Stupid things; and (4) avoid being out at Stupid times.
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  #695  
Old 06-08-2019, 9:38 AM
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I wonder if SCOTUS is having the 2nd A cases that haven't been granted or denied cert pile up so that once NYSRPA is decided, they'll all get GVR'ed.
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  #696  
Old 06-08-2019, 9:52 AM
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Fixed it for ya.

This. Everyone, just enjoy the month of June not even thinking about this case. My guess is we'll find out when orals are scheduled on the first Monday in July. When that happens, we can go back to enjoying the summer and Sept before closely monitoring CGN for updates.

Until then, just EDC pepper spray, obey the 4-S Rule, and enjoy life!

ETA: The 4-S rule: (1) Avoid being around Stupid people; (2) avoid going to Stupid places; (3) avoid doing Stupid things; and (4) avoid being out at Stupid times.
Thanks for clearing that up. I thought you were referring to the 3S; rule, I.e. shoot, shovel and shut up. Thought maybe I missed a step.
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Old 06-08-2019, 10:07 AM
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Thanks for clearing that up. I thought you were referring to the 3S; rule, I.e. shoot, shovel and shut up. Thought maybe I missed a step.
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Old 06-09-2019, 8:46 AM
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*snipped for brevity but to provide clarity as to whom I'm replying to*
SCOTUS decides policy. It doesn't take all the cases from lower courts because either the lower court followed prior precedent, or because the lower court, on policy, made the correct decision and another decision in that particular matter isn't warranted or necessary at that time.

In illustration of how decisions made on policy are formed, the 1964 Civil Rights Act was challenged in Court and the SCOTUS ultimately decided the Act was constitutional based on policy considerations. Considerations of fairness, equal protection, and so on.

As a matter of policy, supporting the Act as constitutional was necessary to implement and adhere to existing legal precedent and statutory/constitutional language for the betterment of society. The Constitution, had it been strictly adhered to, would have required that the decision go the other way. Such a decision would have been extremely poor policy as a nation.

Many SCOTUS decisions are in this arena and there is no statutory or constitutional basis for them.

The exceptions to the warrant requirement of the 4A are more examples of these types of decisions. You can rightly say that there is nothing in the 4th which allows the gov to proceed with acts which otherwise violate the clear prohibitions in the 4th absent a warrant. However, good public policy sometimes requires the government be able to act in an expeditious manner. Prohibiting such merely because past lawmakers or the framers didn't and couldn't envision everything and thereby codify it is poor policy.

This is not to say that the courts, or SCOTUS, can just jump in and make things up to suit their whims. There are constraints on their ability to decide things in certain ways. Constraints they can push slightly but they must also obey the restrictions in the document which governs them and their position of power. They are not omnipotent.
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Last edited by rplaw; 06-09-2019 at 8:52 AM..
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Old 06-09-2019, 11:33 AM
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I, sir, have heard that unfortunate argument since high school, usually reduced to "I love you, but not that way."

Sigh.

Last edited by Fedora; 06-09-2019 at 2:37 PM..
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Old 06-09-2019, 12:00 PM
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*** Note – quoting is out of sequence to original post and any emphasis is added by me ***

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Originally Posted by rplaw View Post
In illustration of how decisions made on policy are formed, the 1964 Civil Rights Act was challenged in Court and the SCOTUS ultimately decided the Act was constitutional based on policy considerations. Considerations of fairness, equal protection, and so on.

As a matter of policy, supporting the Act as constitutional was necessary to implement and adhere to existing legal precedent and statutory/constitutional language for the betterment of society. The Constitution, had it been strictly adhered to, would have required that the decision go the other way. Such a decision would have been extremely poor policy as a nation.
Which case are you referring to?

I am no civil rights scholar. However, and based only upon about 30 minutes of Google research (so take it for what it is worth) the seemingly most notable decision of the court to uphold the 1964 Civil Rights Act (Heart of Atlanta) was based on the Commerce Clause. The opinion of the court, and the concurring opinions (there were no dissenters – i.e., this was a 9-0 opinion) all found that Congress, in exercising its policy-making role, acted with sufficient authority under its constitutional power to regulate interstate commerce. A few of the concurring justices also would have found that Congress was authorized to implement the Act based on the 14th amendment – once again, relying on the written law adopted by the people through their elected representatives, rather than the justices’ sense of fairness.

Where are you seeing that the decision was related to “fairness, equal protection, and so on?” The court’s decision, and even all the concurring opinions, was all about upholding Congress’ power to make policy (via the passage of the Act) under its enumerated powers.

Quote:
SCOTUS decides policy. It doesn't take all the cases from lower courts because either the lower court followed prior precedent, or because the lower court, on policy, made the correct decision and another decision in that particular matter isn't warranted or necessary at that time.
It doesn’t take all the cases from the lower courts for a variety of reasons, not least of which is (1) purely practical reasons; and (2) justices’ personal preferences on where to expend their energy. But a denial of cert doesn’t speak to the merits of the lower court decision at all. A refusal of the court to grant a writ of cert should never be taken as a view that the lower court correctly followed precedent, or that it made the “right” policy decision. A denial of cert should be taken as: less than 4 justices wished to hear the appeal and render a decision – that’s all it is.

With respect to (1) – the court receives somewhere between 5000 – 8000 petitions for cert each year. All of these petitions are reviewable by all justices, but not reviewed by each justice, or necessarily any justice. Under an informal agreement among 7 of the 9 current justices, each petition is assigned to a specific justice, and then to one of the 4 clerks that works for that justice. The clerks review the petitions assigned to them, and write a memo for their justice about the case, the petition, and the aspects of law related thereto. The memo is then shared with the other justices. All this blather is to say that absent some personal interest taken by a justice in the specific case, most justices will take an initial view on whether to hear a case based on a memo written by one law clerk randomly assigned to review the petition; and no justice or collection of justices can personally, or even through his/her limited staff of 4 clerks, read every petition, read the underlying opinions, decisions, and relevant statutes in full, and come to a considered and informed opinion on whether to hear an appeal.

With respect to (2) – I think it is plain that certain justices believe that compelling policy issues demand more attention to certain areas of law or issues. This is most clear when we see written dissents from the courts denial of cert. And I don't doubt that justices are looking for interesting opportunities (in the form of petitions and underlying cases) to engage on those issues that they feel deserve attention. This is certainly indirect policy-making in that certain cases will be more likely granted cert, but doesn’t directly translate into the court “making policy” as a legitimate function of its opinion and holding. And even where a justice or several really want to hear a case and render a decision, it still takes the votes of 4 justices - the court is never compelled to take a case no matter its prior precedent, circuit splits, etc. (*not speaking to original jurisdiction).
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Old 06-09-2019, 8:17 PM
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No. The oral arguments will occur in October 2019. The decision will be after the oral arguments. Up until June 2020.

Deep breaths. You've got this.
So they were saying October...just not in reference to a decision.
Thanks for clearing up my misunderstanding.

Yes I'm as impatient as anyone where these court cases are concerned but it'll take as long as it takes.
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Old 06-10-2019, 7:16 AM
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With th denial of Kettler, should we assume SCOTUS doesn't expect NYSPRA will cover NFA law?
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Old 06-10-2019, 8:13 AM
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With th denial of Kettler, should we assume SCOTUS doesn't expect NYSPRA will cover NFA law?
I would think challenging the transportation restrictions under NFA might be easier to do if and after the NYSPRA case finds that transporting arms is protected under the Privileges and Immunities Clause and the Second Amendment.

I just hope it doesn't take having someone with an integrally suppressed upper & full auto M16 lower to have standing.
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Old 06-10-2019, 9:02 AM
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While Ketler denial is unfortunate, it is a curious data point because other 2A cases are being held. . I think this means they will reinforce the history and tradition test rather than strict scrutiny. That’s not surprising though, because they’d have to completely change the standard of review for 2A cases which is a pretty radical changes, and the rate limiting component to this judicial conundrum are justices Kavanaugh and Roberts.

I think the biggest mistake in using the history and tradition test is not necessarily that suppressors and machine guns be forever banned, but future technology which militia members would used if called to duty could be arbitrarily restricted by government, which runs completely counterintuitive to why the 2nd amendment exists in the first place. The conservative block’s reasoning is entirely dependent on how government tyranny has already been implemented (gun control) rather than the principles this country was founded on. This whole history and tradition test feels like using circular logic to implement legislative policy rather than interpreting the constitution based on judicial principles.

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Old 06-10-2019, 11:30 AM
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No, the bar will not be set that high, Roberts won't allow it. NFA/GCA will survive in whatever decision is produced.
Back at post #607.

There is no way that the composition of this court, as it stands today, will allow NFA/GCA to fall. Doing so would inflict substantial damage to the Executive and Roberts is not willing to cross that line.
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Old 06-10-2019, 2:43 PM
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While Ketler denial is unfortunate, it is a curious data point because other 2A cases are being held. . I think this means they will reinforce the history and tradition test rather than strict scrutiny. That’s not surprising though, because they’d have to completely change the standard of review for 2A cases which is a pretty radical changes, and the rate limiting component to this judicial conundrum are justices Kavanaugh and Roberts.

I think the biggest mistake in using the history and tradition test is not necessarily that suppressors and machine guns be forever banned, but future technology which militia members would used if called to duty could be arbitrarily restricted by government, which runs completely counterintuitive to why the 2nd amendment exists in the first place. The conservative block’s reasoning is entirely dependent on how government tyranny has already been implemented (gun control) rather than the principles this country was founded on. This whole history and tradition test feels like using circular logic to implement legislative policy rather than interpreting the constitution based on judicial principles.
They could phrase it something to the point that whatever the common arms of peace officers, those are in common use and historically protected, but it is unlikely they will grow courage to put it that way without too many weasel words around that..
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Old 06-11-2019, 12:28 PM
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This was already posted in another thread, but I'm posting a link to the story here as it's relevant to how this decision may go down.

https://www.yahoo.com/gma/justice-gi...184000603.html
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Old 06-11-2019, 2:39 PM
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With th denial of Kettler, should we assume SCOTUS doesn't expect NYSPRA will cover NFA law?
I think Scotus doesn't want to touch the NFA right now. But they are holding Mance so it looks like they are open to striking Federal and state laws, just not NFA
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Old 06-11-2019, 10:48 PM
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This was already posted in another thread, but I'm posting a link to the story here as it's relevant to how this decision may go down.

https://www.yahoo.com/gma/justice-gi...184000603.html
Fewer than 13 months until we win a federal Right to Bear Arms! (my guess is sometime between next Thanksgiving and Independence Day 2020)

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Old 06-12-2019, 6:36 AM
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Fewer than 13 months until we win a federal Right to Bear Arms! (my guess is sometime between next Thanksgiving and Independence Day 2020)

After the vote. So that it is not a fodder for propaganda.

Will be either cherry on top or a consolation prize.
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Old 06-12-2019, 10:26 AM
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I think the biggest mistake in using the history and tradition test is not necessarily that suppressors and machine guns be forever banned, but future technology which militia members would used if called to duty could be arbitrarily restricted by government, which runs completely counterintuitive to why the 2nd amendment exists in the first place. ...
Don't forget about Caetano.
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Old 06-12-2019, 11:14 AM
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*** Note – quoting is out of sequence to original post and any emphasis is added by me ***


Which case are you referring to?

I am no civil rights scholar. However, and based only upon about 30 minutes of Google research (so take it for what it is worth) the seemingly most notable decision of the court to uphold the 1964 Civil Rights Act (Heart of Atlanta) was based on the Commerce Clause. The opinion of the court, and the concurring opinions (there were no dissenters – i.e., this was a 9-0 opinion) all found that Congress, in exercising its policy-making role, acted with sufficient authority under its constitutional power to regulate interstate commerce. A few of the concurring justices also would have found that Congress was authorized to implement the Act based on the 14th amendment – once again, relying on the written law adopted by the people through their elected representatives, rather than the justices’ sense of fairness.

Where are you seeing that the decision was related to “fairness, equal protection, and so on?” The court’s decision, and even all the concurring opinions, was all about upholding Congress’ power to make policy (via the passage of the Act) under its enumerated powers.



It doesn’t take all the cases from the lower courts for a variety of reasons, not least of which is (1) purely practical reasons; and (2) justices’ personal preferences on where to expend their energy. But a denial of cert doesn’t speak to the merits of the lower court decision at all. A refusal of the court to grant a writ of cert should never be taken as a view that the lower court correctly followed precedent, or that it made the “right” policy decision. A denial of cert should be taken as: less than 4 justices wished to hear the appeal and render a decision – that’s all it is.

With respect to (1) – the court receives somewhere between 5000 – 8000 petitions for cert each year. All of these petitions are reviewable by all justices, but not reviewed by each justice, or necessarily any justice. Under an informal agreement among 7 of the 9 current justices, each petition is assigned to a specific justice, and then to one of the 4 clerks that works for that justice. The clerks review the petitions assigned to them, and write a memo for their justice about the case, the petition, and the aspects of law related thereto. The memo is then shared with the other justices. All this blather is to say that absent some personal interest taken by a justice in the specific case, most justices will take an initial view on whether to hear a case based on a memo written by one law clerk randomly assigned to review the petition; and no justice or collection of justices can personally, or even through his/her limited staff of 4 clerks, read every petition, read the underlying opinions, decisions, and relevant statutes in full, and come to a considered and informed opinion on whether to hear an appeal.

With respect to (2) – I think it is plain that certain justices believe that compelling policy issues demand more attention to certain areas of law or issues. This is most clear when we see written dissents from the courts denial of cert. And I don't doubt that justices are looking for interesting opportunities (in the form of petitions and underlying cases) to engage on those issues that they feel deserve attention. This is certainly indirect policy-making in that certain cases will be more likely granted cert, but doesn’t directly translate into the court “making policy” as a legitimate function of its opinion and holding. And even where a justice or several really want to hear a case and render a decision, it still takes the votes of 4 justices - the court is never compelled to take a case no matter its prior precedent, circuit splits, etc. (*not speaking to original jurisdiction).
Just as in Roe, the SCOTUS "found" a reason to support the Civil Rights Act.

Why? Because, as in Roe, the Constitution wasn't directly on point for the particular issue. In fact, on the issue of the Civil Rights Act, the Constitution by the original language from the founders was decidedly against supporting the Act.

Square that with "original intent of the framers" argument versus the policy need for the Civil Rights Act. Then explain how Congress passing the CRA is better than a Constitutional Amendment which wouldn't have required a SCOTUS decision, and which would have enshrined the policy into the founding documents so that no future Congress or Court could change it.
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Old 06-12-2019, 11:36 AM
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Fewer than 13 months until we win a federal Right to Bear Arms! (my guess is sometime between next Thanksgiving and Independence Day 2020)

If I had to place a wager, I'd say probably around July-August '19 for the case to be heard, and the decision in Spring 2020.

My CCW appointment with the San Diego Sheriff's Office is in the Spring of 2020 so I'm hoping they publish a favorable decision before then and I can just put "lawful self defense" as my "good cause" and save me a bunch of bureaucratic crap!
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Old 06-12-2019, 12:00 PM
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If I had to place a wager, I'd say probably around July-August '19 for the case to be heard, and the decision in Spring 2020.

My CCW appointment with the San Diego Sheriff's Office is in the Spring of 2020 so I'm hoping they publish a favorable decision before then and I can just put "lawful self defense" as my "good cause" and save me a bunch of bureaucratic crap!
SCOTUS usually stops hearing cases in March. They start their summer break at the end of June. They don't start hearing cases again until Oct.

Sheriff Gore is regularly and readily issuing CCWs to San Diego Co residents nowadays. Go over the last page of posts at: https://www.calguns.net/calgunforum/...400940&page=10

Keep your money....
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Old 06-12-2019, 12:32 PM
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Just as in Roe, the SCOTUS "found" a reason to support the Civil Rights Act.

Why? Because, as in Roe, the Constitution wasn't directly on point for the particular issue. In fact, on the issue of the Civil Rights Act, the Constitution by the original language from the founders was decidedly against supporting the Act.

Square that with "original intent of the framers" argument versus the policy need for the Civil Rights Act. Then explain how Congress passing the CRA is better than a Constitutional Amendment which wouldn't have required a SCOTUS decision, and which would have enshrined the policy into the founding documents so that no future Congress or Court could change it.
OK, whatever.

In support of your argument that the SC rightly decides policy rather than just decides cases and controversies under law, you cite a unanimous decision of the court *upholding* the policy choices of the congress and president in passing and signing into law an act that the congress found was within its power under the commerce clause. The court's decision had nothing to do with "deciding" policy. And commerce clause jurisprudence had been around for well over a century at that point. Also, the court didn't "find" a reason to find the Act constitutional - the congress expressly found that it had the power to do so under the commerce clause. The court didn't hunt around for some obscure reason to find congress acting under its enumerated powers - it evaluated congress' own finding that it had power.

If you object to the court's long history of decisions around the commerce clause, fine, make an argument on that basis. Or at least point out how the constitution "by the original language of the founders" is decidedly against supporting the Act. As it is, your argument had nothing to do with the court deciding policy.

And I have no interest in arguing over whether congress should have passed a law or a constitutional amendment. That's up to congress (it's congress' policy choice!). And congress' choice to pass the Act didn't "require" the court to make a decision. The court decides controversies, and citizens and businesses have the right to argue that a given law is unconstitutional. A hotel owner argued against the constitutionality of the Act, and both the lower court and the SC found otherwise.

There is *zero* in your example that actually supports your argument that the court should properly, as part of its role, "decide" policy for the good of the nation.
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Old 06-13-2019, 6:20 AM
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OK, whatever.

In support of your argument that the SC rightly decides policy rather than just decides cases and controversies under law, you cite a unanimous decision of the court *upholding* the policy choices of the congress and president in passing and signing into law an act that the congress found was within its power under the commerce clause. The court's decision had nothing to do with "deciding" policy. And commerce clause jurisprudence had been around for well over a century at that point. Also, the court didn't "find" a reason to find the Act constitutional - the congress expressly found that it had the power to do so under the commerce clause. The court didn't hunt around for some obscure reason to find congress acting under its enumerated powers - it evaluated congress' own finding that it had power.

If you object to the court's long history of decisions around the commerce clause, fine, make an argument on that basis. Or at least point out how the constitution "by the original language of the founders" is decidedly against supporting the Act. As it is, your argument had nothing to do with the court deciding policy.

And I have no interest in arguing over whether congress should have passed a law or a constitutional amendment. That's up to congress (it's congress' policy choice!). And congress' choice to pass the Act didn't "require" the court to make a decision. The court decides controversies, and citizens and businesses have the right to argue that a given law is unconstitutional. A hotel owner argued against the constitutionality of the Act, and both the lower court and the SC found otherwise.

There is *zero* in your example that actually supports your argument that the court should properly, as part of its role, "decide" policy for the good of the nation.
I did not say the court "should decide" policy. What I said was the SCOTUS decides policy.

The Courts are a co-equal branch of government. That gives them authority and powers to make determinations which affect the other 2 branches as well as the general population. There's a framework they have to operate inside, as does Congress and the Administrative, but how that framework is applied is up to them.

When they use that framework to craft a decision not expressly delineated in a law or the Constitution, that's a policy decision because it defines the National policy of the US.

Roe; The Civil Rights Act of 1964; Dred Scott; McColloch v. Maryland - there's an entire line of cases in our history going back to the founding which are all policy decisions. Those decisions define our nation and our society as a whole in areas where there are no laws to provide guidance or governance.

Only the SCOTUS can do this. Lower courts are subject to SCOTUS deciding differently and reversing or modifying their decisions in this area, but SCOTUS is the ultimate decisionmaker on policy. Even Sates and Congress are subject to SCOTUS determination as to whether their legislative efforts are lawful, and thus subject to a policy determination should SCOTUS deem one necessary in order to achieve a justifiable and equitable decision.

SCOTUS may not 'initiate" such policy decisions, but that doesn't mean it cannot make them once those cases and controversies come before the courts.
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Old 06-13-2019, 6:52 AM
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SCOTUS usually stops hearing cases in March. They start their summer break at the end of June. They don't start hearing cases again until Oct.

Sheriff Gore is regularly and readily issuing CCWs to San Diego Co residents nowadays. Go over the last page of posts at: https://www.calguns.net/calgunforum/...400940&page=10

Keep your money....
October seems like so long from now lol.

And yeah, been keeping up with the going-ons with the San Diego County Gun Owners. I'm fixing to become a paying member, they're doing some really valuable 2A work on the local level.

I do believe that Sheriff Gore sees the writing on the wall and wants to get into the good graces of gun owners here in San Diego before he's forced to do it pending any potential ruling in this case that the right to bear arms extends outside the home. It's also not a bad way of making sure he has a secure voting block to back him at the next election.
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Old 06-13-2019, 12:33 PM
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*** Note - pulling quotes from numerous prior posts ***

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I did not say the court "should decide" policy. What I said was the SCOTUS decides policy.
Look, I don’t think we’re all that far apart on how the SC is likely to resolve some of these issues, nor on the methods the court might use to get there.

But you’re all over the map on your reasoning, grabbing whatever tool at hand at that moment to try and make a point.

This back-and-forth started when I pointed out that you’d arrived at what you think the right policy was, and you were constructing a legal argument to support that position. In response, you said:

Quote:
The job of SCOTUS is to decide policy.
If you don’t think the SC should decide policy, where does this statement and the related argumentation come from?

You further posted:

Quote:
However, the role of the Courts is to be able to place limits on both the administrative and legislative branches as well as the general public. In order to do this, the courts must take public policy into account in addition to the law.
Again, I think I am fairly interpreting your argument as a view that the SC *should* be a policy-maker. “The courts must take public policy into account in addition to the law.” My view is that the court must follow the law, unless and until it determines that the law exceeds the power of the elected branches who created the law.

And:

Quote:
There are constraints on their ability to decide things in certain ways. Constraints they can push slightly but they must also obey the restrictions in the document which governs them and their position of power. They are not omnipotent.
No arguments here. But how does this square with:

Quote:
There's a framework they have to operate inside, as does Congress and the Administrative, but how that framework is applied is up to them.
So are there constraints, or are any supposed constraints up to them as to how it fits in a framework?

Quote:
Even Sates and Congress are subject to SCOTUS determination as to whether their legislative efforts are lawful, and thus subject to a policy determination should SCOTUS deem one necessary in order to achieve a justifiable and equitable decision.
If the SC deems a policy decision “necessary in order to achieve a justifiable and equitable decision” in your view, then how am I mistaken in seeing your view that it is the “job of SCOUTS to decide policy.” If a justifiable and equitable outcome is required, then who cares what the elected branches dictate, regardless of whether their dictates are authorized under their constitutional powers? I see this as advocating for a “super-legislature” that gets to overrule elected branches so long as it is justifiable and equitable (without regard to determinations of other branches under their own constitutional powers).

I won’t argue that SCOTUS and lower courts have usurped policy-making prerogatives of the elected branches – I’m arguing (strenuously, but perhaps not effectively) that such activity is inappropriate. Even though you say that courts *shouldn’t* decide policy but that they do – it is pretty clear to me that you approve of that approach, so long as the “right” policy choices are being made. I’ll repeat what I said much earlier in the thread:

Quote:
I am only pushing back on your stated view of the role of the courts in a republic with a written constitution and written laws. Your arguments here make it seem as if you believe the courts to be some sort of "super legislature" that gets to override the policy preferences of the elected branches and/or interpret previously passed laws (including the constitution) in accordance with new policy preferences or circumstances.

It is not an uncommon view; but it is a pretty unappealing view, IMHO, for one who wishes to live under a rule of law, in a republic, with policy preferences expressed through the people's elected representatives, subject only to constitutional restrictions on the majority's ability to affect enumerated rights belonging to individuals regardless of the will of the majority (absent a constitutionally acceptable method to change such rights - i.e., a constitutional amendment).
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Old 06-17-2019, 8:29 PM
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https://www.foxnews.com/politics/cla...de-speculation

https://en.wikipedia.org/wiki/Gamble_v._United_States

Gamble v. United States decision was released today (June 17). It was heard Dec. 6th.

It is a legally and constitutionally important decision, but not about an issue that will have people marching/protesting in the streets about, unlike abortion, homo marriage and guns. Yet the Court took more than 6 months to write their opinion and to deliver it.

Lesson? Even if NYSRPA orals are scheduled for next Oct, do not assume the decision will be released in a timely manner. The Court could hold it until late next June.

This from June 10:

Quote:
Ginsburg spoke about the court’s intense ideological divide during a judicial conference on Friday, and said she doesn’t expect the justices’ current cohesion to take root.

“Given the number of most-watched cases still unannounced, I cannot predict that the relatively low sharp division ratio will hold,” she said.

Napolitano said Ginsburg may be tipping her hand to the public and gearing up for a bitter battle with the court’s conservative members.

“Is she telling us that these hot button cases like the census question and the so-called gerrymandering cases are going to go 5-4 against her and she and her liberal colleagues are authoring bitter dissents and we should be prepared for this,” he asked. “If that’s the case, why telegraph it as if it were politics?”
More at: https://www.foxnews.com/politics/jud...-supreme-court

If someone knows the names of the "census question" and "gerrymandering" cases, we should also compare their dates of oral arguments to their opinion release dates.

FWIW, for now, I'm telling people we should get a major win in NYSRPA sometime between next Thanksgiving and the 4th of July, 2020. (Using holidays makes it easier for them to remember). We should know in ~3 weeks when orals are scheduled for it.

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Old 06-17-2019, 9:22 PM
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TrappedinCalifornia TrappedinCalifornia is offline
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Quote:
Originally Posted by Paladin View Post
https://www.foxnews.com/politics/cla...de-speculation

https://en.wikipedia.org/wiki/Gamble_v._United_States

Gamble v. United States decision was released today (June 17). It was heard Dec. 6th.

It is a legally and constitutionally important decision, but not about an issue that will have people marching/protesting in the streets about, unlike abortion, homo marriage and guns. Yet the Court took more than 6 months to write their opinion and to deliver it.
The Gamble decision can be found... Here.
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