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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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#281
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Scrutiny is a recent invention, along with "Constitutional avoidance" and "standing". They all were adopted by the Supreme Court during roughly the same time period, the 1920s and 1930s. The problem with "scrutiny" as applied to the 2nd Amendment is that the very nature of the right to arms results in laws which infringe upon it automatically passing the primary hurdle that has seen "scrutiny" protect other rights, namely whether or not the "government interest" is "compelling". For laws imposing on the right to arms, that "interest" is always "public safety", and that is always "compelling". This renders "scrutiny" largely ineffective as a means of properly protecting the right to arms. Scrutiny, as applied to the right to arms, amounts to a declaration that the government may infringe upon it nearly at will, despite the clear prohibiting language in the Constitution that says otherwise. The entire point of a right is that the government may not infringe upon it except when there is a more important right at stake. But here, the right encompasses self-protection, which in itself is really just the assertion of the right to life. There is no more important right than that.
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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; 02-25-2019 at 9:24 AM.. |
#282
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It is you who misrepresent SCOTUS here, precisely because you refuse to acknowledge the significance of Bliss as a cited authority. Quote:
(Edit: I altered the above to say "the signficance of Bliss" because I didn't notice that you replied to some of my commentary within the quote itself. As such, I missed your statement that you were aware of the citation of Bliss. Sorry about that) Quote:
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There is no "cherry picking" in Heller as regards concealed carry, because the Court never asserted anything about concealed carry within Heller in the first place, except to note that previous courts did not regard the right to keep and bear arms as unlimited, and used as evidence the fact that those previous courts upheld prohibitions on concealed carry as a result of their belief that the right was not unlimited. That is not the same as agreeing with those courts as regards concealed carry. Quote:
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I said nothing about the strength of support of OC not being as strong as suggested in Heller. I said Heller does not rule out concealed carry as being part of the right. You seem to be of the mindset that the protected mode of carry must be one or the other. That it cannot be both. That is an indefensible position. Let me make it plain: it may be that SCOTUS ends up deciding that prohibitions on concealed carry are permissible. But Heller simply is not dispositive on any of that. I think it's more accurate to say that Heller is consistent with the notion that prohibitions of open carry are flat-out off the table. But that is not the same thing as saying that prohibitions of concealed carry are permissible. Heller makes it plain: Quote:
The only reading of Heller that I can think of that is consistent with both the above and their reference to the various cases we've been discussing is one in which the scope of the usage of those cases, and the meaning derived therefrom, is limited strictly to the context in which they were used and nothing more. That means that, in Heller, the cases in question illustrate that the right was not limited to militia duty and that the right is not unlimited (but only that -- not how the right is limited).
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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; 01-27-2019 at 5:41 PM.. |
#283
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Mrrabbit, I've made some edits to my message above because I didn't see some of your reply (it was buried in the quoted section -- if you want me to see what you write, it's probably best to close the quote, put in your response, and then open the quote again. I can describe how to do that if you'd like). Please be sure to re-read it and, if needed, edit your response to account for the changes.
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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. |
#284
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#285
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Did they "mean what they said" when they said: Quote:
So: did they mean what they said above or not? I should note that not once have I seen you actually back your position with direct quotes from Heller. But we've been at this a while, and I may be missing something or misremembering. It makes me wonder whether we'd be better off backing off and starting from scratch, with quotes and everything that demonstrate the validity of our arguments. We might come to a better understanding of each other's positions that way, and might even change some minds in the process. But for that to work, you'd have to show passages from the relevant sources that demonstrate the validity of your position (as would I). It won't do to just say "read Heller", for instance, when the person you're talking to has already done that. You'll need to be specific in order to make your case properly.
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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; 01-27-2019 at 6:16 PM.. |
#286
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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. |
#287
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I mean, the text of the 2nd Amendment is plain. The right "shall not be infringed". We know what "infringed" means, because we have the definition of that term from dictionaries written at the time. We generally know the scope of the right as it was understood at the time of ratification. And we know the purpose behind the ratification of the right, something which provides clear guidance as to the scope of the right when nothing else is available. Deciding these cases should be straightforward. I dare say that nearly every law that has been challenged would have been buried by a judiciary applying the standard of understanding as it was at the time of ratification. But instead we get "scrutiny" this and "government interest" that. The people deciding these cases don't belong on the judiciary because they refuse to even attempt to apply the original intended meaning and purpose of the Constitution to the laws facing them, when it is only the original intended meaning and purpose that matters. If we don't like the original intended meaning and purpose, we can amend the Constitution -- that's what the amendment process is for. It is not the judiciary's place to substitute their own preferences for the stated and understood preferences of the authors of the Constitution. But that is precisely what the judiciary has done, by hiding behind procedure and precedent (all the while ignoring that precedent is invalid if it conflicts with the original meaning and purpose of the Constitution).
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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. |
#288
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Yes, probably - and it deserves its own thread, as that discussion, while both interesting and significant, is well off topic for the NY case thread which now groans under the weight of the threadjack.
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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. |
#289
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Which forum should it go into? If you have the ability to move individual messages to different threads, then it might be a good use of that capability if you were to move the OC-related messages from this thread to that one (once it's created, of course).
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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; 01-27-2019 at 6:29 PM.. |
#290
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I also agree “public safety” will meet the “compelling interest” test of strict scrutiny. However, strict scrutiny also comes with a presumption of the law being unconstitutional. The government has the burden to prove effectiveness. Also, the law must be narrowly tailored and the least intrusive means of meeting the objective. In Breyer’s dissent from Heller, he opined almost gun control no laws, even long-standing prohibitions, would survive strict scrutiny. Whether it’s a higher level of scrutiny or something else, it’s means of effectiveness in protecting the 2A is only as good as lower courts respecting it and SCOTUS being willing to defend it. |
#291
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That leaves only "narrowly tailored". And as I've noted elsewhere, that is a subjective judgment and is not rigorously applied, either. The permit requirement for public demonstration is an excellent example of something that passed "strict scrutiny" despite the fact that it's not the least restrictive means of achieving the compelling state interest (prior notification is less restrictive). No, I stand by my claim that "strict scrutiny" will yield scant protection for the right to arms. More than "intermediate", perhaps, but in light of the above, I rather doubt it. In any case, "scrutiny" here is truly a means of determining, on a case by case basis, whether the right is really worth insisting upon, since it yields different results for infringement of the same right across multiple cases. That's something the Court explicitly said is disallowed. I'm skeptical that they really meant it. I hope I'm wrong about that last. In essence, the nature of the command of the 2nd Amendment is such that if the right is being infringed, that alone should be enough to strike the infringing law. To do anything less would be to disobey a direct Constitutional command. Quote:
It'll be interesting to see how much SCOTUS has changed in this regard since Kennedy's departure.
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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; 01-27-2019 at 6:46 PM.. |
#292
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Any chance we can have a thread that isn’t a pissing match of speculation and instead just gets updated when, you know, there are UPDATES to the case this thread is about?
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#294
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But the open carry vs concealed carry argument has gone on with the same 8-15 people ~4 years in many different threads. |
#295
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I think I'll just leave this one essentially alone, rather than move to a new thread - a restart should, in a reasonable world, result in a better chain of argument. (Kind of a dead horse, IMVHO, but I'm not the one investing time in it - so long as it stays polite, following one's hobby should be OK.) (( By which I mean I don't think discussing the subject here is going to influence the Court; I want the court to make up its flippin' collective mind and rule on the point, and then we'll know. But that does not mean other people should be deprived of their pleasure gained from the discussion. )) Quote:
But instead of reading the string of posts, read only the very first one in the thread. Prwterbird is updating that one with events. That does mean, however, that you must exercise those rarest of qualities: understanding of, and tolerance for, the court's glacial pace. ETA Scotusblog has a clean page with just developments; that is also linked in Prwterbird's originating post.
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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. Last edited by Librarian; 01-27-2019 at 9:50 PM.. |
#296
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In case it wasn't obvious, nothing I write here should be interpreted as legal advice. |
#297
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Several justices are really upset about it because they don't care about playing games, they care about the end result. Reminds me of desegregation at the universities - administrators could come up with all sorts of "sound admission processes," yet one only needed to look at whether there were any black students on campus to determine whether segregation was still in place. The process really doesn't matter as long as it is clear that it is used to propagate discrimination. The same goes for gun control. If we cannot "bear," it doesn't matter how the courts maneuvered themselves to that conclusion. SCOTUS is likely to put a stop to this practice. They had 10 years to watch lower courts play the game, so they should have a pretty good idea about how to fix it. The two step process is not likely to be part of it...
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#298
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If the court adopts scrutiny model, it will likely explicitly address "public safety" and how this interest cannot conflate criminal use of guns and law abiding citizens using guns legally.
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#299
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'... being necessary to the security of a free state ...' means an armed public is all the public safety one really needs in this matter so arguements using public safety as part of scrutiny are essentially mooted.
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#300
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As our late Justice once said:
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#301
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WTB: Magazines for S&W M&P 9c |
#303
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If we come to terms with that, there are 2 things the court can do to defend the 2A. 1) Require “strict scrutiny”, just like the rest of the Bill of Rights. This includes a presumption that the law is unconstitutional and proof must be provided as to its effectiveness. It must be narrowly written and the least intrusive means of achieving the objective. 2) The court must take an active role is smacking down activist judges that defy its order. For example, after Brown v Board of Ed, the court had to grant cert and take many cases to defend its decision and show it meant what is says. |
#304
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WTB: Magazines for S&W M&P 9c |
#305
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For me, it's not that it can be abused. It's what it represents: a claim by the judiciary that it's okay for the government to infringe upon a right even in the face of a direct command by the Constitution that says otherwise.
Which is to say, the reason I don't like it is that it supplies the judiciary with a formal and official means of violating the Constitution. And that is plainly and unequivocally unacceptable.
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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. |
#306
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It would be a definite plot twist if Roberts wants to help RBG go out with a bang and take this opportunity to completely hose the 2nd amendment.
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#307
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"promises to be a disastrous pro-gun legacy." I guess that depends on how you define disastrous. "Kavanaugh .... appears ready to toss out as many restrictions as he can." We sure hope so. "A far greater risk to public safety than leaving handguns in empty apartments is the nationwide effort to sanctify the right to carry weapons, concealed or openly, in public places." Really? Where does the Constitution place any restriction on the right to bear arms? I did not see the word "except" after the word infringed. Why look a gun deaths? Every time a good guy shoots and kills a violent bad guy, that is a gun death. We need more not less of such gun deaths to make us safer. Like you said, Libs take notice while we stand back and watch their butt pain and |
#308
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I somehow doubt he'd go back on Heller and McDonald. He had ample opportunity to jump ship then but signed on to both majority opinions. Stranger things have happened, though.
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#309
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I would be a twist. But, what you may be failing to consider is that if RBG goes out with a bang or otherwise, it would allow Trump to appoint Hardiman rendering Roberts a nullity, as long as Thomas is still on the Court.
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#310
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Whomever voted for cert either believes they have a good idea of how Roberts will vote or doesn't object so much to the uncertainty around how Roberts will vote. If it's the latter, which I believe to be the case (based on nothing, as demanded by my high standards of wild, uninformed speculation), then it's not unreasonable to think this case is little more than a test probe. It's high time to find out how the new kids will vote on a real, actual firearms 2A case. It's time to get another data point on how far to the left Roberts has drifted. And it's a heckuva choice. Not too offensive, not too controversial, not too much blood in the streets, so Roberts and the new kids might not be overly triggered. One among the liberals might not even wet their bed -- at the very least Kagan can relate to this case on a personal level as a lifetime urban dweller who has driven to go shooting in the past. And legally, there are other paths available aside from directly attacking / supporting the 2A, so a concurrence can still get the victory you want, and will still relay some of the information sought by the probe. Not too much need be at stake, either, if such a thing can ever be said about civil rights, if those voting for cert might believe they can negotiate, as a fallback position, a per curiam loss as opposed to an expansive opinion. So politically it's a very astute choice. But best laid plans and all that, so we'll have to see.
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#311
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The question is not whether we get a pro-2A ruling, but the extent of such ruling. At the minimum, we will get that "2A exists outside the home," which is sufficient at the moment to resolve the "bear" part of 2A. The last piece will be the definition of "arms," which is what we might or might not get at this time. That's where the whole "framework" speculation in this thread kicks in.
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NRA Benefactor Member Last edited by IVC; 01-29-2019 at 9:59 AM.. |
#312
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I know this thread has gone complete speculation and sometimes a little OT, but this is the most entertaining thread I've seen here in a long time.
R.I.P, relevant updates |
#313
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Conventional wisdom suggests that Kennedy and Roberts got cold feet after Heller and were uncomfortable solidifying/expanding the right. However, they weren’t going to further restrict it either, denying both sides the 4th vote needed for cert. Roberts, agrees with the conservatives in theory that Heller should to be solidified, but he’d rather not deal with it. This would explain the passionate dissents from cert (those weren’t strategic denials, it was real frustration over Kennedy/Roberts). With a new sheriff in town (Kavanaugh), they have their 4th vote and will drag Roberts along as much as they can. This is what I tend to believe. My twist in your theory would be the “they know something about RBG we don’t” hypothesis. The liberal wing knows her days are numbered and the Trump has the votes in the Senate for a very conservative justice. While they don’t expect Roberts to side with them, they know he will moderate the majority. With another conservative, Roberts becomes irrelevant. So, the liberals vote for cert now knowing they will lose, but this is their best hope for a more moderate outcome. |
#314
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I do not think any of the libs voted for cert. First, I think that NYC was way too far over the top even for Roberts so they know they have the 5th vote. The question is just how far the conservatives can push Roberts. And, as you say, if anything should happen to RBG that would be a moot issue.
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#315
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It makes absolutely zero sense that NOW, clearly in the minority, the Liberal justices would try to do this. If they didn't do it with Kennedy, who was a wobbler on gun rights and occasionally voted with the liberals, in what alternate universe would they do it when he has been replaced with Kavanaugh? It defies logic. Can we put this to bed, and get back to endless, unsubstantiated gossip about how narrow or wide the conservative led ruling is going to be?
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#316
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SCOTUS invented scrutiny so SCOTUS can abolish scrutiny. The whole concept of tier rights is flawed.
Consider there are rights so obvious they are not even mentioned. How much if everyday life is rolled into 'life, liberty and the persuit of happiness' that scrutiny negates because said rights are not specifically enunerated. Specifically enumerated rights are not the most important but they are those most likely to be trampled. I don't think for a second SCOTUS will use this case to scrap scrutiny but that would be quite something if they did. |
#317
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This means that we still need to put forth a sound case to clarify "arms," while there is still a reliable conservative majority on the SCOTUS, thus we have only about 3-4 years... unless RBG "retires" in the next 4-5 months OR the current Administration prevails in 2020. In the latter case we have another decade at least; in the former we might have as many as 6 years. If it's done right then the jurisprudence should hold for our immediate progeny, freedom lives for another generation, and the battle is transferred to our grandchildren. "Bear" is a nice-to-have, but if "arms" isn't clarified by SCOTUS in favor of the People within the next 10 years in any case, then your children will grow up oppressed. Your CCW is useless in opposing a tyrannical government, and some form of that will emerge the minute the populace has no tactical relevance against the State's apparatus for violence.
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Get the hell off the beach. Get up and get moving. Follow Me! --Aubrey Newman, Col, 24th INF; at the Battle of Leyte Certainty of death... small chance of success... what are we waiting for? --Gimli, son of Gloin; on attacking the vast army of Mordor Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death! --Patrick Henry; Virginia, 1775 Last edited by jwkincal; 01-29-2019 at 9:00 AM.. |
#318
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It's similar to how this case is about "transportation of firearms in one city," yet it can completely cover the "bear" through establishing that the right exists outside the home. In case of "arms," anything that defines the framework for judicial review can give us what we need for the "arms" part of 2A, without ever addressing it directly.
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#319
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If Heller and McDonald have taught us anything, it's that the SCOTUS has to be absolutely specific when it comes to the 2nd Amendment, otherwise lower courts have shown that they are comfortable in applying any number of bizarre twists in their interpretation of the US Constitution.
The SCOTUS isn't going to do away with the levels of scrutiny, as other posters have said. This case will only serve to clarify "bear," and it will do so in a way that most folks here will consider too narrow. It's a win, for sure, but it ain't paying a huge dividend.
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Get the hell off the beach. Get up and get moving. Follow Me! --Aubrey Newman, Col, 24th INF; at the Battle of Leyte Certainty of death... small chance of success... what are we waiting for? --Gimli, son of Gloin; on attacking the vast army of Mordor Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death! --Patrick Henry; Virginia, 1775 |
#320
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1) Demand Strict Scrutiny. 2) Go on the “text, history, and tradition” interpretation. 3) Define "Bear" as "On the Person Where ever legal to transport". 4) Strike down Registration as Unconstitutional. To address each point: 1) Amendments that Strict Scrutiny applies: U.S. courts apply the strict scrutiny standard in two contexts: when a fundamental constitutional right is infringed,[1] particularly those found in the Bill of Rights and those the court has deemed a fundamental right protected by the Due Process Clause or "liberty clause" of the 14th Amendment, or when a government action applies to a "suspect classification", such as race or national origin. The Second doesn't apply here. 2) Kavanaugh, for his part, has written that public safety should not be a determining factor—only “text, history, and tradition” really matter. 3) An overriding issue at stake, then, is whether the Court will decide that the right to “bear” arms is tantamount to a broad right to travel with them. (Justice Clarence Thomas has said, with regard to an earlier case, that he emphatically believes it is.) 4) Kavanaugh, in a 2011 dissent, that the District of Columbia should not be allowed to ban semi-automatic assault rifles, largely because they were “in common use.” He added that asking people to register their guns is unconstitutional. The case is about bearing, travel and a permit not just to carry but even to possess in one's home. I specifically voted for Trump to appoint Supreme Court Justices and fill lower courts that Obama ignored for 8 years. If RBG is by some miracle alive in 2020 I'll vote for him again |
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