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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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  #1  
Old 11-19-2018, 12:28 PM
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Default National Review article on SCOTUS treatment of 2A

https://www.nationalreview.com/2018/...ndment-rights/

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... After determining, for the first time in its 200-year history, that the Second Amendment recognizes an individual right to bear arms in District of Columbia v. Heller (2008), and applying the right against state governments in McDonald v. City of Chicago (2010), the Court has refused to hear another gun-control case. It has so far refused to address state limits on permits to carry concealed weapons; bans on certain types of guns, ammunition, and magazines; and expanded background checks. In a series of dissents from these denials of certiorari (the writ whereby the Court grants review of a case), Justice Clarence Thomas has lamented the Court’s unwillingness to stand up for its Second Amendment precedents in the face of resistance from some lower courts and state governments alike. “The lower courts are resisting this court’s [Second Amendment] decisions,” Justice Thomas wrote earlier this year, “and are failing to enforce the Second Amendment to the same extent that they protect other constitutional rights.” He further observed, “If a lower court treated another right so cavalierly, I have little doubt that this Court would intervene. But as evidenced by our continued inaction in this area, the Second Amendment is a disfavored right in this Court.” Justices Alito and Gorsuch have joined Justice Thomas’s objection.
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  #2  
Old 11-19-2018, 1:32 PM
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TrappedinCalifornia TrappedinCalifornia is offline
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I'm a bit concerned regarding the author's parting thought...

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Constitutional rights are legal equals. They should be treated as such.
However, we have discussed that in previous threads. Natural rights are not the same as legal rights; i.e., the former are not dependent on Government and the latter are solely bestowed by Government. Natural rights can be codified as legal rights; but, such codification will, by definition, impose the 'limitation' of Government's ability to alter and/or rescind the legal aspects of the right. Thus, to my mind, natural rights supersede legal rights; thus, they are not 'equal.'

Be that as it may, I think the actual key to the issue is found in the first paragraph of the piece...

Quote:
...Despite the text of the Second Amendment, supporters of a right to bear arms have rooted their arguments in a murky pre-constitutional right to self-defense. As a result, the Supreme Court has shied away from halting the spread of federal and state schemes for gun control, for which the cries will only rise higher after the recent mass shootings. Unless the new conservative majority on the Court, solidified by Justice Brett Kavanaugh’s arrival, places the right to bear arms on a par with the rest of the Bill of Rights...
In his 'compromise language' to obtain a positive decision in Heller, Scalia didn't do us many favors insofar as future decisions. This is why Scalia himself was 'anxious' for more litigation on the issue of firearms to further clarify limitations for both the Government and We the People. Unfortunately, that has not happened and the anti-gun/anti-civil rights crowd has been playing the 'grey areas' left by the language in Heller.

This has been the basis of Thomas' lamentations, that the Court has been allowing them to 'get away' with eroding the 2nd Amendment by not clarifying what was implicitly intended by Heller, as evidenced by the explicit language used in dissents to denial of cert by individuals such as Scalia and Thomas, along with even Kennedy in other cases. This seems to be what the author is taking the long way 'round the barn to stating; claiming a need to develop a 'new theory' to, essentially, explain what the Founders clearly and/or most likely intended...

Quote:
...As the Declaration of Independence simply stated, they believed that all men, as rational beings created by God, held certain inalienable rights. But uncertainty continues to exist over whether they expected a Constitution or courts to enforce those rights if they did not appear in written law. If courts and legislatures today can enforce an individual right to bear arms, which is recognized by, but also preexists, the Second Amendment’s text, it must be because the Framers assumed that the federal government could protect natural rights over the passing legislative fancy. Central among those natural rights, as explained by John Locke and his successors at the time, would be the right to self-defense, which a right to bear arms only implements, like a tool...
The problem is that SCOTUS does not need to develop a 'new theory.' Instead, they only need rely on existing precedent and previous dissents to pen the language. I've covered the language used by Thomas, Kennedy, Scalia, etc. extensively in other threads. But, if you wish to use language from Justices typically considered to be more "left-leaning" or "liberal" then...

In the dissent by Marshall and Brennan in U.S. v. Salerno (1987)...

Quote:
This case brings before the Court for the first time a statute in which Congress declares that a person innocent of any crime may be jailed indefinitely, pending the trial of allegations which are legally presumed to be untrue, if the Government shows to the satisfaction of a judge that the accused is likely to commit crimes, unrelated to the pending charges, at any time in the future. Such statutes, consistent with the usages of tyranny and the excesses of what bitter experience teaches us to call the police state, have long been thought incompatible with the fundamental human rights protected by our Constitution. Today a majority of this Court holds otherwise. Its decision disregards basic principles of justice [p756] established centuries ago and enshrined beyond the reach of governmental interference in the Bill of Rights.
Of course, there's also the well-known language from the majority decision in West Virginia State Board of Education v. Barnette (1943)...

Quote:
The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.
In essence, it's what the author appears to be getting at. In other words, there's no need to develop a 'new theory' so much as a need to re-emphasize what the Court has long held when it comes to other, enumerated rights. This would, most likely, bring strict scrutiny to bear, forcing 'minimal restrictions' and 'alternatives' on legislation that the Court might deem Constitutional rather than the hybrid levels of scrutiny which have become a matter of course in the lower courts.

For those who have a problem with any regulations, bear in mind that the author is correct that "Some regulations would be constitutional" and that "Perhaps the day will come when the people will determine that the best way to curb gun violence is to cull the Second Amendment from the Constitution." Certainly, such possibilities grate; but, as we've seen in various threads/polls on this site, some regulations would been seen by enough gun owners as 'acceptable' that we're unlikely to stop ALL such legislation.

However, as the article indicates, we'd be far better off if SCOTUS would definitively delimit and demarcate SOME boundaries, beyond the unacceptability/unconstitutionality of a total ban. Unfortunately, I'm still a bit dubious that we have yet to achieve the proper 'balance' on the Court to accomplish that.

Last edited by TrappedinCalifornia; 11-19-2018 at 1:37 PM..
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Old 11-19-2018, 2:13 PM
TruOil TruOil is offline
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He did not say that they were "legal" rights, he said that these rights are equal in the eyes of the law, or at least should be, as stated by Justice Thomas, joined by Alito and Gorsuch. (One could argue that the 2A has a greater status than some others, specifically those that have built-in limitations, such as the right to be free from UNREASONABLE searches and seizures as the most obvious example.)
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Old 11-19-2018, 2:27 PM
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TrappedinCalifornia TrappedinCalifornia is offline
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Quote:
Originally Posted by TruOil View Post
He did not say that they were "legal" rights, he said that these rights are equal in the eyes of the law, or at least should be, as stated by Justice Thomas, joined by Alito and Gorsuch. (One could argue that the 2A has a greater status than some others, specifically those that have built-in limitations, such as the right to be free from UNREASONABLE searches and seizures as the most obvious example.)
Try reading what I said again...

Quote:
Originally Posted by TrappedinCalifornia
However, we have discussed that in previous threads. Natural rights are not the same as legal rights; i.e., the former are not dependent on Government and the latter are solely bestowed by Government. Natural rights can be codified as legal rights; but, such codification will, by definition, impose the 'limitation' of Government's ability to alter and/or rescind the legal aspects of the right. Thus, to my mind, natural rights supersede legal rights; thus, they are not 'equal.'
What he is suggesting, however, is that it is up to SCOTUS to define the legal limitations/boundaries of the right. True enough, insofar as it goes. Just bear in mind that any such 'legal' codification is going to come with the possibility that those limitations/boundaries can be altered and/or rescinded. That is antithetical to the definition of 'natural right.'

In a sense, what he's trying to get at is that there must exist a 'balance' to the enforcement of natural rights as something other than absolute with the limitations found within the legal rights bestowed by Government. This is why he's arguing that a 'new theory' needs to be developed. In other words, in his mind, SCOTUS needs to...

Quote:
Originally Posted by TrappedinCalifornia
...as the article indicates, we'd be far better off if SCOTUS would definitively delimit and demarcate SOME boundaries, beyond the unacceptability/unconstitutionality of a total ban.
My argument is that a 'new theory' isn't needed so much as a 'return' to the thinking that has been prevalent in past SCOTUS decisions, along with prior and current SCOTUS Justices. However, saying that 'natural' rights are equal to 'legal' rights, which seems to be his desire with a 'new theory,' opens up a potential Pandora's Box.

Last edited by TrappedinCalifornia; 11-19-2018 at 2:31 PM..
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Old 11-19-2018, 2:35 PM
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Good article and to the point. But in reality, who reads the National Review... the choir, so to speak. It is interesting in the credits (emphasis added):

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— John Yoo is the Emanuel S. Heller Professor of Law at the University of California, Berkeley, a visiting scholar at the American Enterprise Institute, and a visiting fellow at the Hoover Institution at Stanford University. James C. Phillips is an attorney in private practice and a non-resident fellow at Stanford Law School’s Constitutional Law Center.
Two bastions of liberal think.
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Old 11-20-2018, 11:47 PM
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Originally Posted by mshill View Post
Good article and to the point. But in reality, who reads the National Review... the choir, so to speak. It is interesting in the credits (emphasis added):



Two bastions of liberal think.
John Choon Yoo (born July 10, 1967) is a Korean-American attorney, law professor, and author. Yoo is currently the Emanuel S. Heller Professor of Law at the University of California, Berkeley. Previously, he served as the Deputy Assistant U.S. Attorney General in the Office of Legal Counsel, Department of Justice (OLC), during the George W. Bush administration. He is best known for his opinions concerning the Geneva Conventions that attempted to legitimize the War on Terror by the United States. He also authored the so-called Torture Memos, which concerned the use of what the Central Intelligence Agency called enhanced interrogation techniques including waterboarding.
https://en.wikipedia.org/wiki/John_Yoo

James C. Phillips, a non-resident Fellow with the Constitutional Law Center at Stanford Law School, recently published a study which concludes that conservatives and libertarian law professors face discrimination from elite, top-tier schools compared to liberal or moderate professors.
https://www.campusreform.org/?ID=11278
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