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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  
Old 01-27-2019, 4:38 PM
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Originally Posted by Phiremin View Post
I’m not sure the 2 are mutually exclusive, in fact they address different issues.
Scrutiny differs from text/history/tradition because scrutiny is a means of determining whether or not a given infringement of the right is somehow allowable anyway. Text, history, and tradition tell us whether or not the right itself encompasses the forbidden action.

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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  #282  
Old 01-27-2019, 5:05 PM
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Originally Posted by mrrabbit View Post
What you keep accusing me of is what OTHER people are doing, not I. People keep doing the following:

1. Misrepresenting SCOTUS and cited authorities.
Then show that I have misrepresented SCOTUS and the cited authorities. As I said, one of the cited authorities is Bliss.

It is you who misrepresent SCOTUS here, precisely because you refuse to acknowledge the significance of Bliss as a cited authority.


Quote:
2. Cherry picking SCOTUS in Heller v. DC and from within cited authorities.
This is something you are doing by your steadfast refusal to recognize the significance of Bliss. That's not something the Court did. It explicitly recognized Bliss in Heller, specifically as one of the cases that establishes that the right to bear arms is not limited to carrying of arms in a militia. In fact, Bliss was mentioned FIRST in the list of those cases.

(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:
3. Cherry picking between the cited authorities.
If that is your assertion about the arguments I raise, then justify it. Show how I'm doing that.


Quote:
4. Claiming to know the "why" on the basis of a declined cert for which no comments were issued.
My claim is that the fact that comments were issued for some specific cases where cert was declined but not for others, in a way that is the exact opposite of what one would expect if your assertions about Heller were true, is an indication that your assertions are incorrect. It is not dispositive in and of itself.


Quote:
#1-3 is why I keep telling people to read Heller v. DC and the cited authorities.
You don't get it. I have read Heller and the cited authorities, multiple times.

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:
#4. is why I keep telling people, "you don't really know."

We really don't know why Norman was declined cert. I have a conspiracy theory that is was a case with baggage. It's just a theory, nothing more.
So what? It's not merely that it was declined cert that is noteworthy. What is noteworthy is that it was declined without comment from anyone who signed onto Heller.


Quote:
You have theory something along the lines that support of OC is not a strong as suggested in Heller v. DC. It's just a theory, nothing more.
No. You keep putting words in my mouth. Much like you do seem to do with SCOTUS, I might add.

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:
Originally Posted by District of Columbia v Heller
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.
(emphasis mine). The only question with respect to concealed carry is whether or not the founding generation understood it to be part of the right. Bliss is the only case that informs us on that, and it says that concealed carry is part of the right. Argue all you want, but the view you have of Heller is irreconcilable with their own statement above, unless you can show that the founding generation didn't, despite Bliss, regard concealed carry as part of the right. I've found nothing in Heller or anything it references that indicates any such thing, only cases that were decided by later generations. And those don't count, because they weren't decided by members of the founding generation. Insisting that they count is tantamount to insisting that beliefs do not change on a generational basis, something that is demonstrably false.

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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  #283  
Old 01-27-2019, 5:40 PM
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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.

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  #284  
Old 01-27-2019, 5:53 PM
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Originally Posted by Bhart356 View Post
For those interested in timing I am posting the following SCOTUSblog article. I am not an authority on SCOTUS proceeding beyond an upper division Political Science course (decades ago). So comments and clarifications are welcome.

https://www.scotusblog.com/reference...urt-procedure/

Cert was granted 1/22/19
- NYSPRA has 45 days to file Merits Brief from date of Cert
- NYC has 35 days to file Respondent’s Brief from date Merits Brief is filed
- NYSPRA has 30 days to file Reply Brief from date Respondent’s Brief is filed
- Which adds up to 110 days
This puts us into early May. Given this timline, I don’t see how the case will be heard until next October at the earliest unless SCOTUS accelerates the deadlines. I am willing to be corrected on this however.

Also of interest in the article is the second to last paragraph. It is my understanding that the circulation of opinions involves discussion and negotiations between the Justices. This is where the scope of the decision can be adjusted, or where qualifying language might enter into a written opinion. For example in Heller it is reported that Scalia included his qualifying paragraph about “long-standing prohibitions...” in order to get Kennedy to agree to sign on to the opinion. I think we can all agree that the inclusion of that paragraph created a lot of wiggle room and opportunity for mischief in the lower courts.

My point is that the circulation of opinions is one of the keys to what kind of ruling we get out of this case. It establishes the scope of the ruling. And as we see from Heller, small insertions or deletions can dramatically effects the ruling itself as well as downstream interpretations in the lower courts.
Thanks for trying to get this thread back on track. Although I find the debate entertaining.
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  #285  
Old 01-27-2019, 5:57 PM
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Originally Posted by mrrabbit View Post
KC Brown, take your copy of Heller v. DC and put it through the shredder.

You're taking the "they didn't mean what they said" position,
Am I now?

Did they "mean what they said" when they said:

Quote:
Originally Posted by District of Columbia v Heller
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.
If they really meant that, then it immediately takes most of their cited post-ratification-era cases out of the equation as regards whether or not concealed carry is part of the right. Bliss is the only cited case that would be left standing for that determination under their own standard.


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..
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  #286  
Old 01-27-2019, 6:07 PM
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Originally Posted by mrrabbit View Post
From the PDF you linked to, page 12 (as numbered in the document -- it's the 15th page of the PDF):

Quote:
Justice James Wilson interpreted the Pennsylvania Constitution’s arms-
bearing right, for example, as a recognition of the natural
right of defense “of one’s person or house”—what he called
the law of “self preservation.” 2 Collected Works of James
Wilson 1142, and n. x (K. Hall & M. Hall eds. 2007) (citing
Pa. Const., Art. IX, §21 (1790)); see also T. Walker, Intro-
duction to American Law 198 (1837) (“Thus the right of
self-defence [is] guaranteed by the [Ohio] constitution”);
see also id., at 157 (equating Second Amendment with
that provision of the Ohio Constitution). That was also
the interpretation of those state constitutional provisions
adopted by pre-Civil War state courts. [9] These provisions
demonstrate—again, in the most analogous linguistic
context—that “bear arms” was not limited to the carrying
of arms in a militia.

[9] See Bliss v. Commonwealth, 2 Litt. 90, 91–92 (Ky. 1822); State v.
Reid, 1 Ala. 612, 616–617 (1840); State v. Schoultz, 25 Mo. 128, 155
(1857); see also Simpson v. State, 5 Yer. 356, 360 (Tenn. 1833) (inter-
preting similar provision with “common defence” purpose); State v.
Huntly, 25 N. C. 418, 422–423 (1843) (same); cf. Nunn v. State, 1 Ga.
243, 250–251 (1846) (construing Second Amendment); State v. Chan-
dler, 5 La. Ann. 489, 489–490 (1850) (same).
Do tell how Bliss could possibly be cited for illustrating that "bear arms" was not limited to the carrying of arms in a militia if the form of bear it covered was not part of the right in the first place.
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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.

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  #287  
Old 01-27-2019, 6:10 PM
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Originally Posted by mrrabbit View Post
Not to steal your boat, but notice the difference in reading cases before and after.

Before, easy to read, comprehend, short and simple.

Early carry cases, "Test 1, Test 2, Test 3, guilty on Test 2..." done.

After, it seems each "tool" invented by any "body" has the effect of making the simple less tenable, the published more convoluted - a house of cards effect.

I find reading post-depression era cases damn tedious.

=8-(
I completely agree.

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.
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  #288  
Old 01-27-2019, 6:12 PM
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Originally Posted by kcbrown View Post
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. .
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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  #289  
Old 01-27-2019, 6:17 PM
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Originally Posted by Librarian View Post
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.
Fair enough.

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.

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  #290  
Old 01-27-2019, 6:19 PM
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Originally Posted by kcbrown View Post
The problem with "scrutiny" as applied to the 2nd Amendment is that [...]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.
I agree that “scrutiny” as applied by the courts today is s joke. And, unless SCOTUS is willing to take a more active role is stemming judicial activism, any level of scrutiny is subject to abuse.

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.
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  #291  
Old 01-27-2019, 6:38 PM
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Originally Posted by Phiremin View Post
I agree that “scrutiny” as applied by the courts today is s joke. And, unless SCOTUS is willing to take a more active role is stemming judicial activism, any level of scrutiny is subject to abuse.

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.
That's true as far as it goes. From https://legal-dictionary.thefreedict...Scrutiny+Test:

Quote:
Once a court determines that strict scrutiny must be applied, it is presumed that the law or policy is unconstitutional. The government has the burden of proving that its challenged policy is constitutional. To withstand strict scrutiny, the government must show that its policy is necessary to achieve a compelling state interest. If this is proved, the state must then demonstrate that the legislation is narrowly tailored to achieve the intended result.
But that flies in the face of the lower courts' insistence that it is not their place to dispute the weighing of evidence considered by the legislatures (or, it seems, any other evidence for that matter). Which is to say, the lower courts will simply claim that the fact that the legislature passed the law is all the proof it needs to say that the law will achieve a compelling state interest (the "compelling state interest" part is automatically met by the "public safety" claim).

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:
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.
Which, in the case of the 2nd Amendment, boils down to "it's only as good as SCOTUS being willing to defend it", since the lower courts have unequivocally demonstrated their willingness to bend over backwards to ensure that the right to arms is buried deep in the ground.

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.

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  #292  
Old 01-27-2019, 6:50 PM
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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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Old 01-27-2019, 7:21 PM
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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?
No.
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  #294  
Old 01-27-2019, 7:22 PM
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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?
I think speculation about this case and possible implications is great.

But the open carry vs concealed carry argument has gone on with the same 8-15 people ~4 years in many different threads.
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  #295  
Old 01-27-2019, 7:35 PM
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Originally Posted by kcbrown View Post
Fair enough.

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).
This forum - Heller and its sources are fine bits of litigation to discuss.

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:
Originally Posted by scbauer View Post
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?
This is the internet - of course not.

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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Old 01-28-2019, 7:21 AM
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https://www.newyorker.com/magazine/2...-down-gun-laws


Libs take notice
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Old 01-28-2019, 7:50 AM
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Originally Posted by Phiremin View Post
“History, text, and tradition” are first used to first used to determine if a core constitutional right are being burdened by a gun control law (or if a gun control law is presumptively lawful because its “longstanding”). But if a core part of the right is being burdened, then Heller is less clear on what happens next.
The above approach was adopted by the courts that wanted to uphold gun control. It's just a procedural maneuver to provide cover for continual infringement.

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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Old 01-28-2019, 7:57 AM
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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.
That's pretty much it.

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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Old 01-28-2019, 9:49 AM
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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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Old 01-28-2019, 9:52 AM
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As our late Justice once said:

Quote:
Originally Posted by Scalia
I am not a fan of different levels of scrutiny. Strict scrutiny, intermediate scrutiny, blah blah blah blah. That’s just a thumb on the scales.
http://nymag.com/news/features/anton...10/index1.html
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Old 01-28-2019, 2:28 PM
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Let's say a pro bear case comes to fruition and congress passes national reciprocity. The states are never going to win that case, because the federal government is completely within their right to pass that law. Just like they passed drivers licensing reciprocity when there is an entire array of different state laws saying at what age and what requirements someone needs to get their license.
Please identify where Congress passed drivers licensing reciprocity.
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Old 01-28-2019, 2:36 PM
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You are correct they did not. It was brought about via agreement of the states.
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Old 01-28-2019, 3:52 PM
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As our late Justice once said:

Originally Posted by Scalia
I am not a fan of different levels of scrutiny. Strict scrutiny, intermediate scrutiny, blah blah blah blah. That’s just a thumb on the scales.
I get it. I get that scrutiny, at any level, can be abused. I get most of us here (myself included) don’t like handing a scale to a judge who wants nothing more than to bescumber the 2A and will look for any excuse to side with control. However, it’s become the generally accepted test by the court for a law that encraches on a right. As such, I think we are going to have to live with it like it or not.
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.
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Old 01-28-2019, 4:29 PM
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You are correct they did not. It was brought about via agreement of the states.
Thanks for responding. And, now that I've established that I can be a sanctimonius asshat, see here for an explanation of how Congress could enact a reciprocity bill.
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Old 01-28-2019, 5:08 PM
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I get it. I get that scrutiny, at any level, can be abused.
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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Old 01-28-2019, 6:11 PM
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However, if the cert was voted for by Ginsburg, Kagan, Sotomayor AND Breyer . . . I can see them pushing for some "level of scrutiny".

Do we know who voted for cert?

=8-P
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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Old 01-28-2019, 7:32 PM
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"a radical view of gun rights in District of Columbia v. Heller, in 2008" What is radical is that the Heller court did not simply say what part of "shall not be infringed" do you not understand?
"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
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Old 01-28-2019, 7:42 PM
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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.
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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Old 01-28-2019, 7:47 PM
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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.
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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Old 01-28-2019, 8:01 PM
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I agree...

If the cert was voted for by Thomas, Gorsuch, Kavanaugh and Alito, I expect their inclination is to enforce the "historical context and analysis" of Heller v. DC and flat out tell NYC, "Can't do that..."

However, if the cert was voted for by Ginsburg, Kagan, Sotomayor AND Breyer . . . I can see them pushing for some "level of scrutiny".

Do we know who voted for cert?

=8-P
Of course not. Cert votes are never made public. And the absence of such information is the vacuum which sucks in wild, irresponsible, uninformed speculation, such as what follows:

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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Old 01-28-2019, 8:40 PM
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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.
We know who "the whomever" are, we know how Roberts will vote.

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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Old 01-28-2019, 9:55 PM
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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

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Old 01-28-2019, 11:49 PM
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I agree...

If the cert was voted for by Thomas, Gorsuch, Kavanaugh and Alito, I expect their inclination is to enforce the "historical context and analysis" of Heller v. DC and flat out tell NYC, "Can't do that..."

However, if the cert was voted for by Ginsburg, Kagan, Sotomayor AND Breyer . . . I can see them pushing for some "level of scrutiny".

Do we know who voted for cert?

=8-P
It’s an interesting theory, but I’d put a different twist on it.

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.
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Old 01-29-2019, 6:40 AM
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....So, the liberals vote for cert now knowing they will lose, but this is their best hope for a more moderate outcome.
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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Old 01-29-2019, 8:35 AM
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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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Old 01-29-2019, 8:50 AM
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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.
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Old 01-29-2019, 8:58 AM
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The last piece will be the definition of "arms," which is what we might or might not get at this time.
There's no way we're getting that from this case. It's clearly a "bear" case and if it were expanded to cover "arms" in a meaningful way the strength of the ruling would be compromised by such an overreach. I doubt that the majority would sign on to something that convoluted.

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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Old 01-29-2019, 10:04 AM
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There's no way we're getting that from this case. It's clearly a "bear" case and if it were expanded to cover "arms" in a meaningful way the strength of the ruling would be compromised by such an overreach. I doubt that the majority would sign on to something that convoluted.
What I meant was an indirect way to cover "arms" via defining the judicial framework for lower courts when handling 2A cases.

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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Old 01-29-2019, 10:26 AM
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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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Old 01-29-2019, 12:37 PM
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Originally Posted by Califpatriot View Post
She/they are going to be very disappointed with the ruling as I believe it will:
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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