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2nd Amend. Litigation Updates & Legal Discussion Discuss California 2A related litigation and legal topics here. All advice given is NOT legal counsel. |
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#201
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Yes, I agree, SCOTUS will never recognize the right to travel in a consistent way. I find it most amusing that they treat interstate travel as a right but intrastate travel as a privilege. But I am altogether unsurprised that they have done so, since the judiciary refuses to consistently apply logic to the law. But regardless, this bolsters my point: the right to travel exists, and it is recognized as a right at some level, and yet permits which govern it are not considered by the judiciary as infringements upon the right. And if the judiciary will not recognize permits themselves as infringements upon other rights, then why should I believe that they will magically recognize the right to keep and bear arms as so sacrosanct that it is somehow above all other rights in that regard? To believe that the judiciary will treat the right to keep and bear arms in that way, most especially in light of how that same judiciary has thus far treated it even as regards in-the-home, is to believe that we live in a fairy tale, where everyone will live happily ever after, when the real situation is that we live in a dystopian society where doublespeak is routinely employed by those tasked with guarding our most fundamental rights, and far more resources are expended by our government on watching the citizenry with a baleful eye and interfering with it on a day to day basis than on protecting the liberties of it. No, the real world is a dark, nasty, and evil place. I can't help that people refuse to see the real world for what it is, that they insist on believing that they live in a fairy tale. I often wish I didn't see the real world as it is, that I, too, believed in the fairy tale. But I am wired to be evidence-driven. And the evidence before me is that the judiciary is going to smash the right to keep and bear arms into tiny bits before our eyes, that what we got from Heller is, with few exceptions, all we're going to get, and that it will be all downhill from there. It must be nice to not be as jaded as I am...
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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. |
#202
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The sad reality is that the court system has to be checkmated into doing their job. And at any time, they can simply say "you only think that is a checkmate. In reality, it isn't, and you lose", because the metric of "checkmate" is fungible.
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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 |
#203
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Your reference to Kane v. New Jersey is consistent with Supreme Court authority which I cited above with regard to intrastate travel. Had you taken the time to read the opinion it rules, "The power of a state to regulate the use of motor vehicles on its highways has been recently considered by this court and broadly sustained." (emphasis added). Therefore, states have the power to regulate the right to intrastate travel. Kane v. New Jersey supports the argument made in this thread that the Supreme Court when approaching a fundamental right will turn to analogous doctrines applied to the Privileges and Immunities Clauses of Article IV and the 14th Amendment and regulation of free speech under the 1st Amendment. The right to intra and interstate travel over the highways is not subject to dispute: http://www.bu.edu/law/central/jd/org...ts/WILHELM.pdf Interstate travel is a fundamental right subject to strict scrutiny review. Intrastate travel is a right controlled by and recognized in all states; however, the level of scrutiny applied to infringement of intrastate travel as I have amply shown varies from state to state. California applies rational basis review. The US Supreme Court will most like punt, allowing the regulation of firearms possession/use by the states. At best at some time in the next century a Supreme Court might take up an issue as to whether a state regulation of the right to bear arms is so complete as to render the right entirely meaningless or leads to absurd results. Last edited by sarabellum; 12-18-2013 at 8:47 PM.. |
#204
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We already have effectively meaningless rights, tepid enforcement of Constitutional guarantees, and absurd results. If today's conditions don't warrant broad judicial activism and legislative reimagining, then we don't have our Republic.
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Brandon Combs I do not read private messages, and my inbox is usually full. If you need to reach me, please email me instead. My comments are not the official position or a statement of any organization unless stated otherwise. My comments are not legal advice; if you want or need legal advice, hire a lawyer. |
#205
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Which, as I said, means that travel is not a fundamental right in CA.
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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 |
#206
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I told you a while back that my support for making LOC the Protected Right is not based on my beliefs, but on what SCOTUS held to be the law in Heller & in McDonald. Simple, declarative statements having zero effect on you, I'll explain that. In the (now faint) hope that you'll pay attention.
IMHO, the references to Nunn, etc in Heller are error. SCOTUS did correctly point out that "Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad." The 2A was adopted in 1791, when permits to carry were unheard of. THAT should have been the date of "enshrinement" as far as I'm concerned. Those who go around saying, "The Constitution is my carry permit" are correct. Or would be if SCOTUS had really followed the Constitution. But, we live in an impure world & SCOTUS used the 14A as the date of "enshrinement." So, that's what we have to live with. The importance of this is that I'm not arguing what I think should be the case as far as travel, "and bear," or anything else goes. I'm arguing based on what the courts have said is the legal reality we have to deal with. So, if you want to make (what you think) is a great "logical" argument to undercut what I say, you're wasting your time (and mine, for that matter) unless you can provide a ruling that backs it up. While you're doing that (IF you do that), try to not make wild claims about what I say. Stating that a claim of mine means this, or that it means that is just a lack of thinking on your part. Or it means you 'think' too much. In either event, you wind up being wrong. Quote:
Will there be times when issuing authorities will ignore the law? Of course. That has nothing to do with my arguments. That has nothing to do with why asking for a permit is an affront to a Right. A Right is something you don't have to ask for permission to do. I don't have to ask for permission to live, as just one example. But, that doesn't include every form of that right. I have a "Right of locomotion" (Kolender vs Lawson, 1983). That doesn't mean I have the right to run the Polar Express up the I-5. Nor does it include driving a car up the I-5. Quote:
I see you have no idea how the courts work. When SCOTUS issues a Ruling, instructing how & why various factors are to be judged, lower courts have to obey. They have to apply those standards to the cases before them. So, when SCOTUS rejected the idea of "IT'S DANGEROUS & SHOULD BE BANNED JUST BECAUSE OF THAT!" the 7th Circuit obeyed & applied the law on the matter. Which is to say, I HAVE answered your question directly. Why you refuse to accept that answer is because you have "seen" meaning in my statements that simply isn't there & you're hoping (in vain) for more. Quote:
WOW! There is so much FAIL in this that my mind reels. To the point that I question your ability to grasp the concepts laid before you. Try re-reading the top of this post again. Then re-read Heller & see why your claim (again, NOT mine) fails. Quote:
Wrong question. Again. The proper question is: in what way is driving Constitutionally protected? Quote:
"Amounts to" are figments in your mind. Re-read the top of the post. Quote:
Again, you don't know my arguments since you "see" things not there. Quote:
The point being that those "other things" were necessary to reach a conclusion in Heller & deciding the issue of permits was not. Why? Because we didn't make it an issue! Quote:
According to the Penal Code, incitement is also a criminal act. Where do you "see" anything at all about how this relieves rioters from their own criminal responsibility? I don't, but then I'm limited to seeing things actually present. Quote:
WOW! Quote:
WOW! I don't know to address something so disconnected from reality. Quote:
VERY good! But, did you see the part about "portions of the opinion necessary to that result" being there? Did you see how "and bear" wasn't "necessary" to the result in Heller? So, can you now see how the Circuits have been able infringe upon "and bear" for all this time? Can you now see why we have to take the damn hint & present the Courts with a case that will make "and bear" core to the 2A? I can. And this is why I keep urging that we take the damn hint. Which us back to the OP. If we think someone's effort to make LOC the Protected Right is flawed, then we should offer him help. If he wont accept our help, then should request for time at orals to present the case,. If we can't get that, we should file an amicus brief that helps the litigant make his case. It doesn't matter WHO makes the case for unlicensed LOC. What matters is that it gets made. And just like that, the thread is unhijacked, in that it addresses the "quality" of the effort (IMHO). TA DA! Quote:
If you would stop "seeing" things not there & thereby going off into wild & goofy conclusions, we might be closer in our expectations. Quote:
Yes, the court have. The court could have done a lot of things. That the court didn't is not the fault of the court. The fault is OURS because we didn't bother to ask. Quote:
It isn't Goldilockian. This wasn't hair-splitting. Or technical. This was simple & basic pleading: There's only means of "and bear" possible. LOC is, according to Heller, the Protected Right. Please agree. This is what we should have done. Quote:
You mean, has SCOTUS ever granted relief that was not asked for? I'm not aware of them ever doing so. Maybe you can provide an example of them doing so? To justify our tactics in Woollard. The Raisuli
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"Ignorance is a steep hill with perilous rocks at the bottom" WTB: 9mm cylinder for Taurus Mod. 85 |
#207
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The whole point of McDonald was to impose the protection of the US Constitution so that the states cannot go overboard. Quote:
I believe that Lawson vs Kolender covers the basics. I could be wrong. I am relying on my memory of the case & the Wikipedia entry for now as I don't have time to research the thing completely. The Raisuli
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"Ignorance is a steep hill with perilous rocks at the bottom" WTB: 9mm cylinder for Taurus Mod. 85 |
#208
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IMO he's not outlining reasons why we shouldn't ask SCOTUS for constitutional LOC.
He's outlining a prediction that SCOTUS will decline and their likely reasoning for doing so.
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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 |
#209
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And if other rights have forms that are not protected, what forms of the right to keep and bear arms are likewise not protected? Quote:
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It did not say what arms are protected. So if you limit Heller to its facts, then the only arm which we know to be protected is the handgun Dick Heller tried to get a permit for. Given that, how is Heller useful in attacking the roster, if the right is not being infringed as long as some means of exercise of the right is available? Quote:
If travel is a fundamental right, and driving is a form of travel, then it logically follows that driving is an exercise of a fundamental right. So either an exercise of a fundamental right is protected by the fact that it's a fundamental right, or it's not. You're arguing that this particular form of the exercise of the right is not protected. I agree that the courts have treated it that way. But that leads to a troubling conclusion: the mere statement by the judiciary that something is a fundamental right is not sufficient of itself to ensure that any given exercise of it is protected! You seem to have argued earlier that mere declaration of LOC as a Constitutionally protected right will be sufficient to insulate it against attempts to control it through permits. But since mere statement that something is a fundamental right is not sufficient to fully protect all exercise of that right, why should we believe that it'll be sufficient to protect some forms of it (bear, not keep) in some locations (public, not in the home) from control through permits? Quote:
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So was it necessary for SCOTUS to reach the conclusion they did by stating that their decision does not cast doubt on laws which impose upon the right in "sensitive places"? No, clearly it was not. The issue of "sensitive places" was not before them at all, not even indirectly. And yet they stated that anyway. There are quite a few things that SCOTUS stated in Heller which were not strictly necessary for arriving at the conclusion they did, and yet, they expounded upon those things anyway. So, therefore, your claim that Heller stated only what was necessary to reach the conclusion is false, and, therefore, my argument that their failure to discuss the issue of permits is troubling in light of that does carry some weight. But I guess we'll see how much, won't we? Quote:
If you're going to claim that mere enactment of a law against an action makes that action into a "criminal act" and that it is on that basis alone that said law has legitimacy, then all law has legitimacy, including laws which infringe upon fundamental rights. That is something I fundamentally disagree with. But regardless, you misunderstand my meaning. My meaning is not with respect to rioters themselves, who are taking action, but with respect to the person whose speech the rioters are using as an excuse to riot. One person merely said things, but the others actually took action, and are claiming that the speech in question somehow "compelled" them to. So in what way, aside from the mere enactment of law against it, does that somehow make the law against speech which "incites riots" anything other than an infringement upon free speech? If people are responsible for their own actions, and therefore the rioters themselves are responsible for their criminal acts, then how can the speech implicated by this law possibly be legitimately forbidden, since the speech in question does not itself cause harm and therefore does not itself represent a danger to the public? How is that law not an infringement upon free speech? Quote:
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Now, you may be right about how the judiciary is going to react to the case you're proposing, but I see no evidence in front of me that says why I should believe that, and plenty of evidence that says why I shouldn't. Quote:
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But my Goldilocks observation is actually more about the Supreme Court than anything else. It has been presented with a variety of cases covering a variety of circumstances, and has refused to hear all of them. Their refusal to grant cert to Woollard was like a refusal to grant cert to Heller on the basis that Heller failed to challenge the permit requirement. Quote:
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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. Last edited by kcbrown; 12-19-2013 at 11:09 PM.. |
#210
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Have you seen any errors in my logic? I don't see any myself, but it helps to have another set of eyes on these things.
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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. |
#211
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Yeah, but then you ignore where I stand further down. Quote:
The problem is that you are A: not applying legal logic, B: not applying Constitutional logic, & C: asking me to answer a question the courts should answer. I.E., this is just one instance of you ignoring where I stand. Quote:
At the moment, what's protected is "in the home" as that's all that been declared (or so the Circuits have Ruled) as "core" to the 2A. All the rest has (at best) minimal protection. Which is why I keep urging that we get on the stick & take the damn hint. Quote:
How is that law so predicated? Quote:
Constitutional review didn't begin & end with Heller. To say that grenades are not allowed is not the same as saying only .22s are. As for the Roster, the Commerce Clause is (IMHO) the better tool to attack that. Quote:
As my stance is based on what the courts have done, this is all I need. Quote:
Because that's what the courts have done. A preacher can't be required to get a permit to be a preacher. But a permit can be required to build a church. Is this less than perfect logic? Yeah. But, it's also reality & a reality-based guy like you should accept that & just deal. Right? Quote:
Anything that starts out with a claim that I said such-n-such, when I haven't actually said it. Quote:
This is another example of how you fool yourself. I never used the word "only" when referring to Heller. I stated that the subject of "and bear" was not necessary to the conclusion reached. If you're going to claim that you reach conclusions based on reality, you should stick to reality. Quote:
The "mere enactment" is all the courts need. And since that's the context in which I write, all I need as well. Quote:
The difference being that driving is not a Constitutional Right. The permits that can be imposed on speech in public places are allowed NOT on the speech itself, but on the effect on the streets (or parks, or whatever), & CANNOT be imposed where there's no effect on streets (or parks, or whatever). I.E., differing levels of scrutiny are in play. Quote:
And again, I never claimed any such thing. Quote:
And the reason I expect better is because we have yet to place a proper case before any of the Circuits. Quote:
From your lips to the "right people's" ears. Quote:
No. You're not applying legal or Constitutional logic (which is before you) to how the courts are likely to react. Quote:
No, we asked for a permit. That would include carrying concealed. That the permit would also allow carrying openly would have been a factor ONLY IF we had made it one. We didn't. My conclusion (and here I'll state that it is ONLY my conclusion) is that this was all the 4th needed to weasel out & kick the issue upstairs to SCOTUS. Quote:
As for SCOTUS, no, they have NOT been presented with a "variety" of cases. They've been presented variations on the same theme: Shall Issue CCW should be the protected Right. The Circuits have shot them all down & SCOTUS hasn't said they were wrong to do so. Because they weren't wrong to do so. CONCEALED CARRY ISN'T THE PROTECTED RIGHT. It isn't now. It isn't going to be. Quote:
No, my actual argument is that we have yet to present SCOTUS with a case that actually involves a "fundamental Constitutional right." The Raisuli
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"Ignorance is a steep hill with perilous rocks at the bottom" WTB: 9mm cylinder for Taurus Mod. 85 |
#212
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the truly goldilockian thing to do would be to ask for three bears.
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. “Keep it up, America, keep telling your youth that mud and danger are fit only for intellectual pigs. Keep on saying that only the stupid are fit to sacrifice, that America must be defended by the low-brow and enjoyed by the high-brow. Keep vaunting head over heart, and soon the head will arrive at the complete folly of any kind of fight and meekly surrender the treasure to the first bandit with enough heart to demand it.” (Robert Leckie) |
#213
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If that is the "logic" you are applying, then it is little wonder that this debate is going the way it is: I'm using formal logic and you're not! I am deriving conclusions, while you are merely asserting them (something the courts like to do. It is not a compliment). Quote:
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Look, you can assert whatever you like, and I can do the same. But that doesn't really get us anywhere, because real conclusions can't be drawn from mere assertions unless one applies a set of conclusion-deriving rules to those assertions, such as logic. That is what I'm doing here. It appears to not be what you're doing. Rather, you appear to be asserting things and then, when I show the logical implications of those assertions, saying that those logical implications are not what you said, as if formal logic were entirely meaningless here. My stance is based on evidence and logic. I try to avoid merely asserting things, and instead to use evidence as my fact base and formal logic as the mechanism from which I derive conclusions, since those are the methods of science, the human endeavor which has been tailored over hundreds of years for the explicit purpose of figuring out how the real world works and how to predict things in/about it. Is it possible that you'll turn out to be correct and I'll be incorrect? Of course. But this is the real world we live in, and I'm applying the tools that have been proven to work as regards predicting the real world. Ignoring the results of that is probably unwise. But, of course, you're free to do so anyway. Quote:
All the arguments about "dangerousness" and such are related to that. Quote:
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Hence, if it is your claim that LOC is the right and that permits cannot be used to govern the right, then the law in Illinois fails to satisfy Moore because, at a minimum, it still infringes upon the right and because, even if concealed carry were the right, it governs it through the use of permits on the basis of "public safety", i.e. "dangerousness". So: I see no way that the law passed by the Illinois legislature can possibly be consistent with Moore if you are correct in your assertion that open carry is the right and that the right, whatever it may be, cannot be controlled through permits. Quote:
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So the reality supports my position much more than it does yours, because my position is that the attempt you're pinning all your hopes upon will fail utterly. But then, I believe that to be the case for any and all attempts to secure the right outside the home. The approach you're favoring here is not special in that regard. Finally, there is one consistent truth to the forms of exercise of rights that the courts have struck down the use of permits to govern: there was no "public safety" justification shown by the opposition. But I have already outlined the "public safety" argument that the opposition will use to justify the use of permits to govern carry in public. Now, the courts might not buy that argument, but that such an argument exists at all is cause for concern, precisely because the courts have been quite consistent (but not entirely so) as regards treating fundamental rights as being subservient to "public safety". Quote:
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In what way does that make the fact that something is a "criminal act" in any way "special" as regards whether the law in question is an infringement upon a right? Quote:
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Kinda hard to argue against someone who insists he didn't say what he directly said... Quote:
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Why do you keep insisting that Woollard was, in any way, about concealed carry when it wasn't about any specific form of carry at all? Quote:
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Why is the Supreme Court unable to or unwilling to simply come out and say that open carry is the right when presented with a case (Woollard) that enables it to do so? It is because they didn't that I believe they are done with us.
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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. Last edited by kcbrown; 12-20-2013 at 6:57 PM.. |
#214
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Why? Because your position (on the expected outcome, not necessarily on the actions that must be taken) is irrational, and your arguments are likewise irrational. You are arguing from assertion, and insisting, when faced with the logical consequences of your assertions, that you are not stating that which logically follows from those assertions. Your position is (for lack of a better word) a religious one, not a rational one. And now, in the above, you are insisting that I should apply whatever irrationality you appear to be applying to the arguments in question. That is not rational discourse. Rational discourse has formal logic (a.k.a. rationality) as its central component. This appears to not be such. While that doesn't automatically make you incorrect, it does make it pointless to debate you, because debate with someone who insists on adhering to a position despite it being logically contradictory is literally impossible. All one can do is show that the position in question is logically contradictory and leave it at that. I probably haven't done that terribly well, but that was not my goal when I started out, because I started with the presumption that your position was a rational one, malleable through the application of logic. I see now that I was incorrect in that assumption. I won't make that mistake again.
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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. Last edited by kcbrown; 12-21-2013 at 4:41 AM.. |
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IMO the problem he is basing his arguments on things he feels the court MUST do, when
1) there is no evidence that anything he suggests can legally compel the court to do what he says they will do 2) history shows no evidence that the court was ever compelled to do that what he suggests they will do. Unless, of course, he isn't saying they're compelled to follow his predictions, and he just feels the odds are good that that they will. The latter case is not logic, it is just palm reading, and claiming that such a position is an iron clad sure thing is utter foolishness.
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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 |
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While that evidence is circumstantial, in that the arguments he's proposing be made have not been made in exactly the way he proposes, it does exist. Quote:
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Worst of all, however, is the fact that if LOC in public is declared a fundamental right by the Supreme Court (i.e., if he actually proves right on that prediction), the very first thing the losing government will do is enact a law to control LOC through permits, probably through the same mechanism that is used to control access to concealed carry, and the end result will be factually identical (or nearly so) to Woollard, a case that the Supreme Court turned its back on. That means there is already evidence that the Supreme Court will ignore the resulting case. His answer to that is permits cannot be used to control access to a fundamental right, when they are used to control access to a fundamental right (or particular exercises thereof) in cases where public safety is implicated by such access. The evidence strongly shows that fundamental rights generally lose to "public safety". His answer to that is to handwave the problem away, by decreeing that the permits are not controlling access to the right but instead are controlling something else, as if it's perfectly fine for a fundamental right to be "collateral damage" to the methods the government chooses to use to control those other things. In the alternative, he claims that the particular exercise of the right (driving, for instance) is not, itself, a right, as if there is some magic difference between the right and particular exercises thereof (and while the courts have indeed treated driving as if it were a privilege, that only weakens his case for carry in public being immune to control through permits, as LOC in public is a particular exercise of "and bear", not the entirety of it). He further goes on to claim that there is a difference between a fundamental right and a fundamental Constitutional right, when the courts have actually been kinder to some of the former (e.g., abortion) than some of the latter (e.g., speech). He fails to realize that every argument he puts forth in defense of the existing infringements of other rights (arguments that I do not necessarily believe he personally buys, but it's possible he does) are, since they are arguments the judiciary has bought with respect to those infringements, arguments the judiciary will give great weight to with respect to the right to openly carry firearms in public. Those things weaken his position, rather than strengthening it. There is no real consistency in the approach the courts take to the issue of rights, Constitutional or otherwise. The degree to which they protect a right appears to be primarily dependent upon how much they like the right, and little else. And the right to keep and bear arms is one they hate much more than any other, even more than civil rights for blacks, as proven by their own actions. Quote:
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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. Last edited by kcbrown; 12-21-2013 at 4:02 PM.. |
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Although there is another kind of consistency the courts follow: that of judges' personal biases. You can definitely make accurate predictions based on that.
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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 |
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That is about as close as it gets to incontrovertible proof that the decisions judges issue are based primarily on their own personal biases, as their personal biases and their political affiliation tend to be strongly linked for those things on which the political parties differ significantly (such as the right to keep and bear arms). And while it is not a perfect predictor, that is only because it is currently impossible to crawl into the head of another. One can only examine the actions someone has taken and derive from that their viewpoints. Hence, those who claim that the decisions issued by the judiciary are the result of an unbiased look at the law are not only incorrect, they are willfully so if they continue to adhere to that viewpoint when presented with the above. As always, there are exceptional cases. There are some judges who actually do set aside their biases to at least some degree (e.g., Posner on the 7th Circuit). But the evidence I've seen thus far convinces me that such people really are exceptional, and that judges who decide primarily based on their own biases are the ones who comprise the majority of judges in the land. And that really should not come as any surprise. People who are able to suppress the temptation to use their power for their own ends are exceptional. This has always been so, and is something that the founders of the country were keenly aware of. It's why they created a representative republic with competing branches of government, and not a monarchy.
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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. Last edited by kcbrown; 12-21-2013 at 4:35 PM.. |
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And that would be why you are unable to understand what I say to you. Courts use their own logic. I understand that. This is why you can't understand why I'm not making mere assertions. The logic courts use when deciding Constitutional issues. Quote:
The words I keep using are "We should take the damn hint." I expect that the 10th will act as they hinted they would. I expect SCOTUS to do the same thing. Is this really beyond you???? Quote:
Firstly, if you're not using the logic of the people being discussed, you're a fool. Secondly, if you make a claim that I "said" something when I didn't actually say it, you're dishonest. Quote:
Unwise is ignoring the reality that we're not discussing the real world. We're discussing the strange & wonderful land of the courts. Quote:
Untrue. Your question was, "Then the next logical question follows: what forms of the right are protected and what forms are not? And if other rights have forms that are not protected, what forms of the right to keep and bear arms are likewise not protected?" Which I answered. Quote:
Presuming we've taken the damn hint & gotten a clear-cut Ruling that LOC is NOT the Protected Right, I'll agree with you that we've lost the battle & that's now time to hit the reset button. Either Con-Con II or Civil War II. Quote:
Unless the 7th doesn't agree with me. Which is part of the problem as I have defined it. Quote:
I see that a simple analogy is beyond you. I'll try again. To say that .22s are protected doesn't mean that .38s aren't protected. Quote:
In the way that the courts have held that driving isn't a Constitutional Right. Quote:
You have perfectly captured the reason for us to take the damn hint. Quote:
No, the reality (that you keep ignoring) is that the 10th Circuit (and SCOTUS) have given us a real strong hint as to what approach will work. My suggested approach is that we should at least try it. Quote:
The only reason to be concerned over an argument is if it wins. If I'm right, it won't. The Raisuli
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"Ignorance is a steep hill with perilous rocks at the bottom" WTB: 9mm cylinder for Taurus Mod. 85 |
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First, I'll remind that my comment was about your dishonesty on making a claim that I said something I didn't say. Now then, #1 is true & never disputed by me. #2 is untrue. #3 is based on a false "therefore" & an assumption about why a question was unasked (and you know what people say about that). #4. In spite of that, SCOTUS could ignore precedent & impose permits for LOC. I just don't think it likely. Quote:
So far! Which is why we need to take the damn hint. So that The State can't use "mere enactment" to ban LOC anymore. Quote:
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"Driving" is neither. So, this is a stupid question. WOW! No. What matters is what has Constitutional Protection & what doesn't. Quote:
You're not providing a FULL quote. This is dishonest. What was the subject? What was the level of scrutiny being discussed? Quote:
There's only two ways to carry. We keep putting the one not protected in front of the courts. It isn't a matter of being "just right." It's a matter of us putting completely wrong in front of the courts. Quote:
We didn't expect Woollard to fail. Clearly you "see" me saying otherwise. This would not be reality based. The 'why' is as before. Quote:
The first half explains why/how we erred in our tactics. The second half explains (yet again) that we need to take the damn hint. So that the Circuits can't play this game. Quote:
Because concealed carry was a part of the permit sought, & because we didn't say that a permit for open carry would have been OK by us. To repeat, it ain't about LOC unless we say that it is. Quote:
See above. Which was the error. Not "some form" is. LOC is. Such is the hint from SCOTUS & the 10th Circuit. Quote:
Maybe it's because Woollard wasn't seen to be about LOC? The Raisuli
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"Ignorance is a steep hill with perilous rocks at the bottom" WTB: 9mm cylinder for Taurus Mod. 85 |
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No, you don't value rational debate, in that you don't value HONEST debate. If you want to claim that my stated position is inconsistent because it fails to conform in some way to some other point, that's just fine. You can feel free to point out inconsistencies all day long. But when you claim that I have said something that I have not actually said, then you are dishonest. You lie. There is no other way to put it. You also lie when you say your base your arguments on reality. "Reality" does NOT include what is NOT said. But it isn't just that you're dishonest. You also fool yourself. By seeing that which is not there, you also ignore what is there. I "expect" an outcome from the 10th Circuit based on what they actually said. Could I be wrong? Sure. But based on the reality of what they did say, I don't think so. You think that a "religious" belief? Your choice. But don't claim that your disputation is based on reality. Rational discourse also includes recognition of how the subject of discussion behaves. If the subject doesn't always use formal logic (as the courts don't necessarily do so), the assigning of the formal rules of logic to the subject is stupid. Add in that you think that what "logically follows" a statement is an actual statement, this is doubly so. Whether it is pointless to debate me is hard to say since you have yet to try. The Raisuli
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"Ignorance is a steep hill with perilous rocks at the bottom" WTB: 9mm cylinder for Taurus Mod. 85 |
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I've never said that the courts are "compelled" to do anything (other than follow directives from SCOTUS). This discussion isn't about "the courts." My claim is about what the 10th Circuit (and SCOTUS) will do if we present Bonidy to them in a certain way. This isn't palm reading. Further, I never (ever) said that this is "iron clad." Which is why my position isn't utter foolishness. My position is that trying to make Shall Issue CCW the Constitutional Right will continue to fail. My position that we have have a District Court flat-out saying that Open Carry is the protected Right. My position is that (given the dicta in Peterson) the 10th Circuit is likely to Rule likewise. My position is that (given the references to Nunn & the other 19th Century carry cases in Heller) it is likely that SCOTUS will also Rule that Open Carry is the Protected Right. My position is that (as permits to exercise Constitutional Rights are anathema to the Constitution) unlicensed LOC can be established as the Constitutional Right. My position is that this will be a Real Good Thing. Is the issue clear & unambiguous? No. Are there other cases in play? Sure. Could I be wrong? Sure. The Raisuli
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"Ignorance is a steep hill with perilous rocks at the bottom" WTB: 9mm cylinder for Taurus Mod. 85 |
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The same happened with Kachalski. The same with Peterson. The same with Peruta (although now the circumstances have changed). |
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But I will try to be more explicit about such things in the future. Quote:
Which is to say, the problem here is that the "logic" being applied by the subject has resulted in multiple decisions that are inconsistent with each other at nearly every level. Our disagreement is with respect to which of those decisions will wind up being "controlling" as regards the hypothetical LOC case the Supreme Court will be presented with, and the consequences thereof. My point is simply this: the very fact that the same entity (the Supreme Court) has produced multiple decisions that are inconsistent with each other at a fundamental level (to the point that even the enumeration of the right in the Constitution, or lack of such enumeration, is not a useful predictor of how the Court will treat the right. See abortion as an example of a right that the Court treats as even more sacrosanct than speech) means that any claim about how the Court will treat the right under consideration has to give greatest consideration to, firstly, cases it has already considered that involve that right (you've done well on that as regards Heller, except perhaps with respect to the problem of permits) and, secondly, cases it has refused to consider that involve that right (something you've essentially handwaved away). When one does that, the most logical conclusion is that the Court is more likely to uphold permits than not, at least as regards exercise of the right in public, and is also reasonably likely to deny cert to a carry case, even if it is a pure LOC case. You could still be right. I hope you are right, because all the other approaches are most certainly failing. But the argument you present in support of your position is not compelling in the face of the evidence I see before me. That in no way implies that we shouldn't try the approach you advocate -- we most certainly should -- but it does mean that we shouldn't expect it to succeed.
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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. Last edited by kcbrown; 12-22-2013 at 6:33 PM.. |
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I fully agree with you as regards the 10th Circuit. While I think there is a small chance they'll refuse to uphold LOC as the right, I think the most probable outcome is the one you state. I've not seen courts anywhere else call out open carry as the right. Going stepwise on the rest: Quote:
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However, I nonetheless think it's unlikely that we'll succeed in that attempt. It must be made, but my expectation is that the attempt to do so is even more likely to fail, by a rather large margin, than the attempt to establish the right to carry in the first place, at least at the Supreme Court level. To whatever degree I've misunderstood your meaning and mangled your words previously, you have my heartfelt apologies, sir!
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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. |
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"Ignorance is a steep hill with perilous rocks at the bottom" WTB: 9mm cylinder for Taurus Mod. 85 |
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The only thing that predicts their actions with any accuracy is their biases. Because no external logic/reason compels them to do the "right" thing, you can bet the farm on their biases entirely controlling their actions above all else, and the result being them (ex post facto) rationalizing their entirely bias based actions with some laughable simulacrum of legal logic. It is becoming increasingly obvious that the law (and even dicta) mean nothing to judges in CA, except to provide the flimsiest of facades of objectivity, and then only to justify their decisions by cherry picking whatever weak "logic" is required. The peanut gallery can complain all they want that incompetent representation (or pleadings, or whatever other technicalities) is costing us our rights when they lose case after case after case, but that is huge red herring. The fact is that the opposition can be as completely incompetent (or even corrupt) as they want, and the CA courts will play along and fix (or ignore) whatever defects exist in the opposition's case to get the results they want.
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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 |
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Yes, but open carry of long guns isn't helpful. It isn't desired either. Which is to say that I don't see how this contradicts my conclusion/guess that we lost because we didn't make Woollard simply & only about LOC. Quote:
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I see CCW (as the Constitutional Right) as completely DOA. It just ain't gonna happen. I started saying that 5 years ago & subsequent events have proven me to be correct. There have been flies in the ointment in that certain cases aren't as clear-cut about the matter, but there's NOTHING to give support to the thought that CCW is going to become the Constitutional Standard. Quote:
As for refusal to grant cert., I do wave that away. There are THOUSANDS of cases being presented to SCOTUS. Making a firm conclusion about why a case is denied calls for deeper tea leaf reading than even I'm willing to do. But I do have a guess. The first step for review of an issue is to ask, "Is there an infringement on a Constitutional Right?" If "no," then the matter dies regardless of anything else. By presenting 'CCW is the Constitutional Right' kind of cases, we die on the first step (because CCW ain't the Constitutional Right & it ain't gonna be). Which means that there isn't a conflict for SCOTUS to look at. We didn't ask for something we're not entitled to; the opposition presented a Constitutionally apt argument & the Circuit made the correct Ruling. In short, things have gone as they should & there's nothing for SCOTUS to do. Sure, SCOTUS could take the case, but why the hell should they? This changes if we fight Bonidy as we should. In Peterson, the 10th has quoted the same cases from Heller that I do. They said this is why the challenge to the ban on CCW failed, but went to to give that BIG damn hint (that a challenge to Denver's ban on Open Carry might succeed). If it is US quoting from Heller, we should win. The 10th wouldn't have given us the hint otherwise. This is why I'm so very optimistic that we can win in the 10th. Now, Denver will certainly appeal. That means we'd be presenting to SCOTUS a case that is NOT like the losers we've been presenting. WE would be quoting Heller (Nunn & all those other carry cases). WE would be arguing for something we ARE entitled to. WE would be making the Constitutionally apt argument. Which is to say that, for the first time, we would be presenting a case that SCOTUS does not have "adjust" things to give us what we want (but are too afraid to ask for). THIS could (SHOULD) be enough to get us cert. Quote:
I think the situation to be better than that. Heller didn't mention Nunn and those other carry cases just for fun. Even SCOTUS is at least a little limited by the legal fact that they can't Rule on something not before them, & "and bear" wasn't before them. Still, this was a "case of first impression" & they gave us hints (dicta) to follow. I believe I am following the hint. There's only two ways to "and bear" & if CCW ain't it, then LOC has to be. If I'm wrong, if even the presentation of a nice, clean case that does take the damn hint ain't enough to get cert, then the only logical, rational conclusion to be drawn is that "and bear" is dead as a doornail in its entirety as a Protected Right. Which makes it time for ConCon II at the very least. Quote:
That's why I keep mentioning Bonidy by name. Quote:
In addition to what I wrote above (as to why I am optimistic), there's the fact that the 10th added that comment at all. They are 'plugged in' to what SCOTUS thinks a little better than you & I are. If SCOTUS were really & truly four-square against LOC, then I don't think they would have commented as they did at all. I agree that this is severe tea leaf reading. Quote:
For the above reasons/guesses/conclusions, I am still optimistic. Quote:
I am suffering from a bit of "holiday blues" lately. This has made just a but more "prickly" than usual. Sorry. The Raisuli
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"Ignorance is a steep hill with perilous rocks at the bottom" WTB: 9mm cylinder for Taurus Mod. 85 |
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As regards PRK judges, I believe this to be completely true. As for SCOTUS, I don't discount it entirely. Still, the "bias" of SCOTUS (and the 10th Circuit) seems to be toward LOC as the Protected Right. Or so the dicta leads me to believe. The Raisuli P.S. I somehow only posted part of my response. Rather than correct things, I'll just leave it as it is.
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"Ignorance is a steep hill with perilous rocks at the bottom" WTB: 9mm cylinder for Taurus Mod. 85 |
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Adding on to this. You have defined the "why" we should be working on getting unlicensed LOC as the Constitutional Standard. "Give a man an inch....." applies even more so to the idiots wearing robes here in the PRK. We need to have a standard that allows ZERO "interpretation" on the part of the judiciary. The Raisuli
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"Ignorance is a steep hill with perilous rocks at the bottom" WTB: 9mm cylinder for Taurus Mod. 85 |
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In any case, I most certainly agree that those that practice law live in their own world, oblivious (willfully so, I'd wager) to the detrimental real-world effects their machinations have. Predictions about what they will do will thus have to be limited only by the biases of the judges in question and the "precedence" they have to work with. And it should be noted that one can find "precedence" for anything one wishes. You'll note that even the Supreme Court has, more than once, even gone so far as to reach across the pond for "guidance" (which is, more often than not, code for "excuses") for their decisions, as if the US were still a commonwealth of England or something. Quote:
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Moreover, we know that SCOTUS is taking lots of cases that involve trivialities, so the claim that they're inundated with cases loses its persuasiveness in light of that. Quote:
I agree that the Supreme Court could be playing the role of a legal "Goldilocks", as it were, insisting upon having exactly the right case in front of it before it will say anything at all. But there is not, to my knowledge, any other fundamental right (Constitutional or otherwise) that it treats in that manner. Quote:
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After all, they did say that laws prohibiting the right in "sensitive places" were not being called into question by their decision, and that is well beyond the scope of what was before them. Quote:
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Well, here's hoping your holidays have gotten better! And don't worry about it. Now that I understand your position better, I can discuss the issue with you with a bit less frustration on both our parts. And in any case, here's hoping the rest of your holidays are full of cheer!
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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. |
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One would think that the statement in the 2nd Amendment is as clear as a bell. But the judiciary has insisted upon "interpreting" it away into nothingness regardless.
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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. |
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They are perfectly happy letting state and local legislatures do whatever they want without restriction, and letting the lower courts sort it out however they see fit with absolutely no oversight. SCOTUS simply doesn't care whether or not the 2nd enumerates a fundamental right, and feel absolutely no compulsion to apply real any legal logical conclusions that should follow accordingly. Scalia might (personally), but that is about it. The idea that the court (any court) *must* follow legal logic to its full conclusion has been proven folly again and again. No "ideal", perfectly "qualified" lawyer is going to compel a court to do something it simply does not want to do. Heller is as far as SCOTUS will go, and if the lower courts feel it is toothless, SCOTUS is fine with that. I don't see them taking an open carry case for this reason. That said, I have no problem with people at least trying.
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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 Last edited by curtisfong; 12-28-2013 at 12:46 PM.. |
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Generally, I have the same point of view as KC and it appears Curtisfong. Let me, while not agreeing with what I am about to say, offer it as a devil's advocate point of view.
Recently, Justice Ginsburg talked about Roe Vs. Wade being too sweeping too quickly. She basically lamented that abortion rights would be stronger if the SCOTUS had not jumped ahead of the nation and forced something when so much of the nation was against it. She did this when commenting on the recent cases regarding gay marriage. Equality advocates wanted something more sweeping, but she basically said, equality will be on stronger footing if we take a little longer to let the nation adjust. Is it possible that SCOTUS is doing the same thing with gun rights? Just 6 years ago, we were truly concerned that all guns could be banned. Now, our concern is greatly lessened by the Heller and MacDonald rulings that have made it clear that, in the home at least, we MUST be allowed to own a handgun. There has been an adjustment period wherein even dirt bags like Sen. Chuck Schumer have stated that we have a right to own handguns. That never would have happened pre-MacDonald.
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Let me handle your property needs and I will donate 10% of the brokerage total commission to CG. Buy or sell a home. Property management including vacation rentals. We can help with loans and refi's. 10% of all commissions will be donated to CG. Serving the greater San Diego area. Aaron Ross - BRE #01865640 CA Broker |
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Is it Ginsburg's argument that the civil rights of minorities are insufficiently protected today because the Court dealt with those issues too quickly? If so, then what infringements are occurring now that wouldn't be had the Court not acted as quickly as it did? No, actually, I believe Ginsburg to either misunderstand the situation completely, or to be deliberately misleading. The fact of the matter is that the longer infringements on rights are tolerated, the more difficult those infringements are to rectify later, precisely because they become "longstanding" in nature, something the court system places inherent value upon irrespective of their infringing nature. She also fails to understand that infringements build upon prior infringements. We see that clearly in California, where ever more onerous laws are being passed precisely because less onerous laws had previously been passed and remain standing. No, between the nature of building infringements and the Court's reluctance to make wholesale changes to the fabric of law, it should be quite clear that, completely contrary to Ginsburg's claim, a slower approach to protecting a right will result in a weaker right, not a stronger one.
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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. |
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KC, I normally agree with your position, and I don't necessarily agree with the argument I put forth. However, your arguments have some holes in them.
First, I find it hard to believe that you understand jurisprudence and law better than a SCOTUS justice. It doesn't matter to me that she has a different ideology than I do. Is she being misleading? Perhaps, but I don't think so. Second, there are clearly places in the abortion debate where the right is being curtailed. One of Sandra Day O'Connor's complaints after leaving the Court was that the conservative justices were undoing some of her case law. All one has to do is watch the news to hear about fights over varying portions of abortion law going on all over the country. I don't know the details, because I don't research that conflict very much. However, the fight is clearly still going on all over our nation in the courts and legislatures. Finally, the debate over gay marriage is not finished. The recent rulings by the Court were limited in such a way as to still allow quite a bit of variation in different states. Her comments appear valid to me, and sit as a possible reason the SCOTUS is waiting on more gun cases.
__________________
Let me handle your property needs and I will donate 10% of the brokerage total commission to CG. Buy or sell a home. Property management including vacation rentals. We can help with loans and refi's. 10% of all commissions will be donated to CG. Serving the greater San Diego area. Aaron Ross - BRE #01865640 CA Broker |
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It is not one of jurisprudence, it is one of the real world effect of that jurisprudence. Protection of a right isn't a mere legal technicality, it's a real world action. Quote:
Furthermore, even assuming there are such infringements and such protections that are yet to be put into place, that alone doesn't validate her viewpoint. For her viewpoint to have real validity, she would need an example of a right which starts off being greatly infringed and which, as a result of slow and deliberate construction of jurisprudence, results in a right which is more greatly protected than abortion already is. I know of no such right. I do know of a right or two that, perhaps because of the slow rate at which "protection" has been built, exists in name only. An example is that of travel. So we have evidence which contradicts her thesis, and no evidence (that I am aware of, at any rate) which confirms it. And since we're talking about real-world effects here, this isn't something that can be handwaved away as being in the realm of "judicial logic". Quote:
No, Ginsburg can believe what she wants, but she cannot argue against real-world evidence that contradicts her view unless she has real-world evidence of her own.
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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. Last edited by kcbrown; 12-28-2013 at 7:02 PM.. |
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The only court that can undermine SCOTUS is SCOTUS itself.
Now Ginsberg may argue that pushing too hard at the SCOTUS level may be counterproductive, and that gaining insufficient consensus early on may invite backsliding on later SCOTUS cases... but when faced by lower courts that refuse to fall in line, that are almost universally openly defiant of SCOTUS, I see absolutely no advantage to taking a measured approach. Consensus building is not needed. SCOTUS does not need the support of lower courts in any way, shape, or form. If anything, giving defiant lower courts an inch will only embolden them to take a mile, and everybody suffers.
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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 |
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There is an additional point that I must make here.
The problem with rights such as gay marriage (which I actually view as an equal protection issue, but still) and abortion is that these rights are ones that require explicit acknowledgement by the courts because there is no definitive reference, that I know of, that calls them out as being rights. They have to be built up, bit by bit, their scope explored and refined over time. This isn't a problem shared by the right to keep and bear arms. That right is, even more than any other right, explicitly called out as being protected in the Constitution. It has the immediate status of law as of the ratification of the Bill of Rights. There should be no question that it exists, nor should there be any question of why it exists or what its scope is, for those things are easily determined through historical textual analysis and a bit of research into its purpose and what those who penned the Bill of Rights believed those to be. Which is to say, this is ground that has already been well-covered by the very people who penned the Bill of Rights, among others. So it follows that Ginsburg's lament is not applicable here at all. Of all rights we have, this is one that should be fully protected from the foundation of the country forwards, for its enumeration occurred almost immediately after the Constitution itself was penned. There is, therefore, no excuse for SCOTUS to dilly-dally on protecting this right. That it has completely failed to protect it until now should make it clear that SCOTUS has utterly failed in its fundamental duty to uphold the very Constitution that empowers it to operate at all. It illustrates that the Supreme Court is a joke, a body of people who do what they do only because they wish to, and for no other reason. For them, the Constitution is not operative at all except where they wish it to be. The authors of the Bill of Rights would be horrified (but probably not surprised) by what the Supreme Court has done with their charge.
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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. Last edited by kcbrown; 12-28-2013 at 7:26 PM.. |
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KC, your arguments seem weaker here than normal. A little bit of thought will preclude the sweeping generalizations you are making.
For instance, even after the rulings of Heller and MacDonald, the antis are attempting to make inroads that "nibble at the edges" of the 2A Right. The civil rights platform, which you seem to think was a singular, large ruling, was the result of 16? years of smaller legal steps prior to Brown. It's possible, and I'm not a legal scholar, that the Brown ruling was much more broad because of the platform constructed prior to that ruling. Every single courtroom conflict over social norms and culture continues even after the broadest of rulings. The fight over the 2A is a cultural argument. It stands to reason that building a platform of smaller rulings will pre-empt some of the fights that are bound to occur after a sweeping win for either side.
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