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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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#121
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And just like that, the law passes "strict" scrutiny. Why people think "strict scrutiny" is some sort of magic formula for upholding rights is beyond me ...
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The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional. The real world laughs at optimism. And here's why. |
#122
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Of course not. It was over when we dropped two atomic bombs on Germany.
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#123
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It's enough to compare statistics on long guns vs. handguns to sink any AWB.
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NRA Benefactor Member |
#124
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But just as we've already seen with intermediate scrutiny, courts are perfectly capable of misapplying their own standards when it suits them. Why should we expect any different here? No, I think what helps us here is more that the district court will know that the very same panel that issued this decision would be the one that would be taking the inevitable appeal, so it may as well issue a decision that said panel would approve. Assuming this doesn't get overturned en banc, of course, which is a very real possibility.
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The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional. The real world laughs at optimism. And here's why. |
#125
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CA firearms laws timeline BLM land maps In interpreting this text, we are guided by the principle that “[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.” United States v. Sprague, 282 U. S. 716, 731 (1931) -Scalia majority opinion in Heller |
#126
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Since this case was initially decided via judicial fiat versus a trial, and the CA4's decision makes clear that there are still unanswered questions concerning both sides evidence, I doubt that either the en banc request or the SC appeal will do anything other than delay the actual trial. I, for one, am looking forward to how the gov't will try to twist their emotional plea into a logical argument that will meet the strict scrutiny standard...should be enjoyable reading.
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"Everything I ever learned about leadership, I learned from a Chief Petty Officer." - John McCain "Use your hammer, not your mouth, jackass!" - Mike Ditka There has never been a shortage of people eager to draw up blueprints for running other people's lives. - Thomas Sowell Quote:
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#127
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In the US smart *** ...
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ΜΟΛΩΝ ΛΑΒΕ Quote:
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#128
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Sorry, I couldn't resist. Sent from my iPhone using Tapatalk
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Former political prisoner who escaped on 9-24-23. |
#129
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#130
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I hope a 28j letter flies out the door to the 9th Circuit en banc panel that's considering Peruta !
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#131
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completely overlooked that till now...
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ΜΟΛΩΝ ΛΑΒΕ Quote:
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#132
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If only it mattered. Thomas was trying to align CA-9 with carry cases in CA-2/3/4 and away from CA-7. Strict scrutiny on "arms" case is unlikely to register on his radar as anything but "meh."
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#133
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The reasoning for the remand to the lower court is what is getting approval here.
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ARCHIVED Calguns Foundation Wiki here: http://web.archive.org/web/201908310...itle=Main_Page "The object of life is not to be on the side of the majority, but to escape finding oneself in the ranks of the insane."Ann Althouse: “Begin with the hypothesis that what they did is what they wanted to do. If they postured that they wanted to do something else, regard that as a con. Work from there. The world will make much more sense.” Not a lawyer, just Some Guy On The Interwebs. |
#134
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I don't see how it would be relevant. Chester establishes strict scrutiny in the home with lower standards outside the home. This case has nothing to do with carry.
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#135
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Oh Mr. Lower Court - please stay after class to write "strict scrutiny" 1000 times on the chalkboard.
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#136
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One thing I've been wondering, is there a reason why the panel bumped the case back down to be considered under strict scrutiny, rather than do it themselves? The opinion seems to lay out a pretty good argument on why an awb goes against Heller and McDonald, and stops just short of saying it fails constitutional muster.
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#137
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Proud CGN Contributor USMC Pistol Team Alumni - Distinguished Pistol Shot Owner of multiple Constitutionally protected tools |
#138
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#139
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#140
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Yes, but the judge can just quote my 6 year old "you believe what you want to believe and I'll believe what I want to - case dismissed"
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#141
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== The price of freedom is eternal litigation. == |
#142
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If a higher court doesn't call them on it, that's that. As long as SCOTUS has abdicated any authority to enforce Incorporation, whatever happens in the lower courts stands.
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The Rifle on the Wall "“[S]cientific proof” of both gun-rights and gun-control theories “is very hard to get”; therefore, requiring “some substantial scientific proof to show that a [firearm] law will indeed substantially reduce crime and injury” is tantamount to applying strict scrutiny to, and almost certainly will lead to invalidation of, the law." - Kamala Harris Lawyers and their Stockholm Syndrome |
#143
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If most of the courts were really listening to the facts, then we would rarely have decisions like Friedman.
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The Constitution is not "the Supreme Law of the Land, except in the face of contradicting law which has not yet been overturned by the courts". It is THE SUPREME LAW OF THE LAND, PERIOD. You break your oath to uphold the Constitution if you don't refuse to enforce unadjudicated laws you believe are Unconstitutional. The real world laughs at optimism. And here's why. |
#144
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The Supreme Court may have to rule on the right to keep and bear AR-15s
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#145
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Excellent news! Happy dance time!
Yes yes I know. This is just the beginning of months or even years long wrangling before we know the outcome for Maryland, let alone any larger implications to apply to California. But still, after years of bad news from the Federal Courts it's awfully nice to see something in the win column for once! When was the last time we heard good news? Probably when the 7th struck down the Illinois CCW law, and that was back in December 2012.
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Guns don't kill people, Democrats kill people |
#146
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WILL, probably not.
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#147
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Wow, the writer of this article speculates that judges are going to be handing out AR15s like Halloween candy?
Trick or Treat. Another highlight from the 4th's dissenting opinion: "the AR-15, functions almost identically to the military’s fully automatic M16" semi-auto, full-auto....a difference so minor it's not even worth mentioning. Last edited by R-Cubed; 02-05-2016 at 3:50 PM.. |
#148
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Kolbe v Omalley Decision (2/4/16):Maryland AWB Case
The way I see it the 4CA set up an interesting dilemma for the Attorney General. Any appeal (en banc or Supreme Court) would not be to argue the Assault Weapon Ban. It would be to argue the application of strict scrutiny. So the AG has two choices:
1. Let the ruling stand and likely lose the case as it is remanded to the District Court. But then the standard of strict scrutiny is enshrined in the case assuming it goes up the appeals ladder again. (This is true even if the District judge dishonestly misapplies strict scrutiny while ruling for the State, and if she did she would likely be overturned at the appellate level.) 2. Appeal the standard of strict scrutiny. The AG could appeal at the Supreme Court but what a risk. If they rule in favor of strict scrutiny then we win all the marbles. Even if they decline the case it sends somewhat of a message to all the other CAs. So I predict the AG will instead go the en banc appeal route. Nothing to lose, everything to gain, and the decision to risk it all at the Supreme Court can be deferred until the en banc process plays out. Sent from my iPhone using Tapatalk Last edited by Bhart356; 02-05-2016 at 8:54 PM.. |
#149
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I don't think the court is going to be willing to overturn Chester. Just too big a departure from its rules. |
#150
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Fantastic news! I was so excited when I heard this! (sorry - about a day behind here obviously...)
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"They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety." --- Benjamin Franklin Freedom isn't free. Read the Declaration of Independence everyday - it'll keep the New World Order away. Quote: Army: "Your ignorant liberal puke rhetoric is tiresome." We live in a society of extreme behavior with no electronic self control. |
#151
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Not sure if it was mentioned before but the MD AG is also one of the authors of the law that is in question here (when he was a legislator and chairman of the judicial committee). He will absolutely appeal or request enbanc. He has a lot to lose politically if not. .
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#152
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Not surprising when you realize that the author wrote: "It will now likely have to answer this question: In a country where one bloody massacre seems to follow another, and 33,636 people were killed by firearms in 2013, does the court want to be in the business of handing out AR-15s like so much Halloween candy?" |
#153
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I agree. Repeal the NFA |
#154
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Truly a Day of Days
What a majestic ruling (4th circuit appellate re: Kolbe v. Hogan)
That being said lets be fair, rights are not enumerated they are God given. Buy Buy Buy! Identify primary, secondary and tertiary impediments to your God given rights. This actually sums it up: My situation here has become a difficult one. I've been officially accused of murder. The alleged victims were double agents. We spent months uncovering and accumulating evidence. When absolute proof was completed, we acted. We acted like soldiers. The charges are unjustified. They are in fact, under the circumstances of this conflict, quite completely insane. In a war, there are many moments for compassion and tender action. There are many moments for ruthless action — what is often called ruthless, what may in many circumstances be only clarity — seeing clearly what there is to be done and doing it directly, quickly, awake, looking at it. As for the charges against me, I am unconcerned. I am beyond their timid, lying morality, and so I am beyond caring. |
#155
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Excellent point for those who are a bit confused about what the ruling is about.
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#156
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I'd probably take the latter. Strict scrutiny properly applied would be the big win, but it seems, as KC pointed out, ultimately toothless and easily perverted in the face of judges who are failing to do their duty. However a ruling which says, "You can't touch their EBRs, standard cap mags or AKs" seems to leave no wiggle room for the antis, and sets a baseline beneath which we cannot fall.
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#157
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It would have to be handled delicately because there are no rights afforded to retired policemen in the constitution. So when a judge has to elaborate that people don't have 2nd amendment rights, but retired policemen do, that judge must tap dance in his/her brief.
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** 3 Rules of Skeet: Head on the gun, eye on the target, and proper lead M1a - If you can see it, you can hit it Friends don't let friends vote demorat |
#158
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Between the two, I would choose the "strict scrutiny" any time. It's much more important to get a method for evaluating 2A cases than to thwart a particular attack on our rights because the former is a superset of the latter - if we get strict scrutiny for "arms" (or "keep" or "carry,") then we also get a virtual game over for gun control on that issue (more specifically, it's game over for "gun grabbing" under the guise of "gun safety") even if it takes a bit longer. For example, if we had strict scrutiny from SCOTUS on "arms," we'd have no roster, no magazine limits, no 50 BMG ban, no bullet buttons, not even ban on NFA items in CA. If all we got was the reversal of the AWB, we'd be litigating each one of the above on merits and waiting for years just to get some of the bans upheld under intermediate scrutiny. As for "tinkering with strict scrutiny," it's a possibility but it's a far, far stretch at this time since strict scrutiny has been applied to a host of highly controversial and unpopular issues. If there was a way to bypass strict scrutiny we would have seen it by now on other highly contentious issues such as abortion. There are likely enough judges who very strongly disagree with abortion *and* who would be willing to bend the rules on strict scrutiny if they think they could save lives AND get away with it.
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#159
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In the event a state or locality violated that ruling, one would have to sue and appear before those judges.
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"Did I say "republic?" By God, yes, I said "republic!" Long live the glorious republic of the United States of America. Damn democracy. It is a fraudulent term used, often by ignorant persons but no less often by intellectual fakers, to describe an infamous mixture of socialism, miscegenation, graft, confiscation of property and denial of personal rights to individuals whose virtuous principles make them offensive." - Westbrook Pegler |
#160
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Now you have the AWB upheld, so the legislators can move on to ban internet sales of ammunition, require background checks, permits, fingerprinting and video recording of purchases, ban 223/556 by caliber (same as 50 BMG,) etc.
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