Peņa v. Cid (Handgun Roster) **CERT DENIED 6-15-2020**

[Offwidth]

Exactly. What I was trying to explain to those people. Glad to see a person with actual professional experience to agree.

[pacrat]

Why does not Ginsburg die?

Because under the robe, she is actually an indestructible "TARDIGRADE"

https://www.bing.com/search?q=tardigrade+indestructibility&form=PRACE1&pc=ACTE&mkt=en-us&httpsmsn=1&refig=171494fc88a34d5cb17114314aabf9df&sp=8&qs=AS&pq=tardigrade&sk=LS2AS4&sc=8-10&cvid=171494fc88a34d5cb17114314aabf9df

Click the link and you will agree.

[LVSox]

No, the compelling interest is in prevention of overthrow of the government, however that might happen. Overthrow would almost certainly happen due to the actions of many people, but you don't have the effective option of preventing overthrow by preventing people from associating with each other (any attempt to try that will just fail, because there's no effective way to control the purpose of association, particularly when it's under circumstances where the people in question have compelling reason to lie about their reasons). So you've no choice but to deal with the issue at the level of individuals. And you can't control minds, so you can't control, to the point of prevention, whether or not an individual is of a mind to overthrow the government (because whether they are of that mind depends on the circumstances). So the only effective option you're left with is controlling the power that individuals can bring to bear against the government for the purpose of overthrowing it, and that requires removing their access to arms.

So: a total ban on firearm possession by the citizens is indeed the least restrictive means.

No. Just no. In your fantasyland where the government has nearly unfettered discretion to quash potential rebellious uprisings, there remain numerous less restrictive means of accomplishing that goal. They could mobilize the army and put them on every street corner, enact curfews, institute large scale video monitoring of public areas, and obtain warrants for search and seizure of suspected rebels. All of these are not only less restrictive, but likely more effective than implementing a ban on firearms potential rebels would surely ignore. And you haven’t even touched on the burden the government faces in SHOWING EVIDENCE proving that there is no less restrictive manner when a law is subject to SS.

You are, again, simply swallowing the rule. Under your silly interpretation of the strict scrutiny test, basically any law survives. I’m not going any farther around the bend of kookville on it with you. The fact is, you’re not EVER going to get a BETTER standard for Second Amendment analysis than strict scrutiny. And we will almost certainly - if not now, than in the coming decades - get worse.

[kcbrown]

No. Just no. In your fantasyland where the government has nearly unfettered discretion to quash potential rebellious uprisings, there remain numerous less restrictive means of accomplishing that goal. They could mobilize the army and put them on every street corner, enact curfews, institute large scale video monitoring of public areas, and obtain warrants for search and seizure of suspected rebels. All of these are not only less restrictive, but likely more effective than implementing a ban on firearms potential rebels would surely ignore. And you haven’t even touched on the burden the government faces in SHOWING EVIDENCE proving that there is no less restrictive manner when a law is subject to SS.

Really? Then explain how speech advocating for overthrow of the government is somehow not protected, if the government has a less restrictive means of preventing overthrow.

You are, again, simply swallowing the rule. Under your silly interpretation of the strict scrutiny test, basically any law survives.

I respectfully disagree. Not every law serves a "compelling government interest". Not every law really is as narrowly tailored as it could be. And not every law really does use the least restrictive means it can.

But that said, even those laws which don't survive strict scrutiny in the most literal sense have still survived. Laws requiring permits for public demonstrations, for instance. And, by your argument above, laws forbidding speech that advocates for violent overthrow of the government.

I’m not going any farther around the bend of kookville on it with you. The fact is, you’re not EVER going to get a BETTER standard for Second Amendment analysis than strict scrutiny. And we will almost certainly - if not now, than in the coming decades - get worse.

It's not my fault that the Court has seen fit to decide that speech which advocates for overthrow of the government is not protected, despite them not being the "least restrictive means" of preventing violent overthrow of the government.

By the way, I agree with you that we're not actually likely to get anything better than strict scrutiny. I'm just not very impressed with what I expect to be its protective effects in the 2nd Amendment context. Maybe I'm wrong and it'll prove to be substantially more potent than I expect. But in light of how the lower courts have managed to turn intermediate scrutiny into rational basis, why should we expect strict scrutiny to do much better for us?

[LVSox]

Really? Then explain how speech advocating for overthrow of the government is somehow not protected, if the government has a less restrictive means of preventing overthrow.

Are you seriously trying to rely on a 70 year-old case that the Supreme Court repeatedly walked back in the decades following, and is certainly no longer good law? Were you citing Korematsu up until last year, too?

I respectfully disagree. Not every law serves a "compelling government interest". Not every law really is as narrowly tailored as it could be. And not every law really does use the least restrictive means it can.

But that said, even those laws which don't survive strict scrutiny in the most literal sense have still survived. Laws requiring permits for public demonstrations, for instance.

No. "Laws requiring permits for public demonstrations, for instance," don't "survive" strict scrutiny; they aren't subject to strict scrutiny because they're content neutral.

It's not my fault that the Court has seen fit to decide that speech which advocates for overthrow of the government is not protected, despite them not being the "least restrictive means" of preventing violent overthrow of the government.

You should totally join us here in the 21st century. Climate change has made for some great weather.

[kcbrown]

Are you seriously trying to rely on a 70 year-old case that the Supreme Court repeatedly walked back in the decades following, and is certainly no longer good law? Were you citing Korematsu up until last year, too?

18 USC 2385 is still on the books, no? I wasn't able to find anything more recent that's on point as regards that law. Did I miss something?

Admittedly, I'm limited to using Google Scholar to look these things up, so maybe I'm missing things due to using poor search terms or something.

No. "Laws requiring permits for public demonstrations, for instance," don't "survive" strict scrutiny; they aren't subject to strict scrutiny because they're content neutral.

You are absolutely right. I never realized that, for some reason. Learn something new every day.

You should totally join us here in the 21st century. Climate change has made for some great weather.

[LVSox]

18 USC 2385 is still on the books, no? I wasn't able to find anything more recent that's on point as regards that law. Did I miss something?

[kcbrown]

Hmm...and there's certainly no real incentive to mount a facial challenge, I guess, so it won't be struck by the courts until enforcement happens at some point.


OK, so obviously you have some reason to believe that if a facial challenge were to be mounted, the law would be struck (the law isn't content-neutral so strict scrutiny would be in play). Which cases guide your assessment to that effect?

[LVSox]

Hmm...and there's certainly no real incentive to mount a facial challenge, I guess, so it won't be struck by the courts until enforcement happens at some point.


OK, so obviously you have some reason to believe that if a facial challenge were to be mounted, the law would be struck (the law isn't content-neutral so strict scrutiny would be in play). Which cases guide your assessment to that effect?

[kcbrown]

Who would have standing to bring a facial challenge?

Presumably, anyone who claims that, but for 18 USC 2385, they would actively advocate for (so as to "incite") overthrow of the government. This, of course, would array pretty much everyone in the court against them, but it would presumably give them standing.


Ah, I misinterpreted you, then. I thought you meant that Yates was the last case which upheld the Smith Act and thus didn't materially impact its meaning. I've now read the relevant parts of it so have a better understanding of it now than I did before.

OK, so: if someone advocates for overthrow of the government in such a way as to incite action, that is still punishable as a violation of the Smith Act, based on Yates. But that raises a question that is material here: would that particular interpretation of the Smith Act pass strict scrutiny? That can be, of course, different from whether or not the courts would still uphold the act. There is other jurisprudence that gives them reason to. This question is solely about strict scrutiny.

I ask because at least some of the things you pointed out as being less restrictive than an outright prohibition on firearms seem to also be less restrictive than an always-operative restriction on speech, since the things you pointed out are situational (or so I presume, e.g. I presume you didn't mean to imply the government imposing a permanent curfew in the absence of an immediate threat of overthrow) and, in any case, are available independently of speech restrictions.


All this is really just a way of dancing around the more fundamental question: what's the least restrictive means by which the government can prevent its own overthrow? Ostensibly, any law that imposes anything more than that for that purpose would fail strict scrutiny, right?

In the Second Amendment context, a similar strict scrutiny analysis would invalidate laws that generally prohibit the collection or amassing of firearms, but MAY find permissible those that are held for the clear and present intent of violent overthrow. The former being overinclusive, and the latter arguably narrowly-tailored.

Most certainly, the latter would pass the narrowly-tailored test, but I don't know that it would pass the least restrictive means test. A law that prohibited public carry or transport of firearms with the clear and present intent of violent overthrow would be less restrictive than a law that prohibited possession of firearms for that purpose.

[LVSox]

Presumably, anyone who claims that, but for 18 USC 2385, they would actively advocate for (so as to "incite") overthrow of the government. This, of course, would array pretty much everyone in the court against them, but it would presumably give them standing.

If you really mean challenging the Act on the basis of actual incitement, you’d probably lose based on Schenck and it’s progeny. But before getting there, your case would likely be dismissed for lack of standing because the statute has been neither enforced nor attempted in over 60 years. “The question is whether the claimant has an ‘actual and well-founded fear that the law will be enforced against them.’” Virginia v. Am. Booksellers ***’n, Inc., 484 U.S. 383, 393 (1988).

[LVSox]

OK, so: if someone advocates for overthrow of the government in such a way as to incite action, that is still punishable as a violation of the Smith Act, based on Yates. But that raises a question that is material here: would that particular interpretation of the Smith Act pass strict scrutiny? That can be, of course, different from whether or not the courts would still uphold the act. There is other jurisprudence that gives them reason to. This question is solely about strict scrutiny.

And my answer is, maybe. It's certainly the kind of question that could elicit contradictory rulings in the district court, COA, and Supreme Court, with dissenters in the latter two. But no matter the case, such a law is a far cry from a categorical ban on firearm possession.

I ask because at least some of the things you pointed out as being less restrictive than an outright prohibition on firearms seem to also be less restrictive than an always-operative restriction on speech, since the things you pointed out are situational (or so I presume, e.g. I presume you didn't mean to imply the government imposing a permanent curfew in the absence of an immediate threat of overthrow) and, in any case, are available independently of speech restrictions.

I would actually be quite comfortable arguing that a permanent curfew in the absence of an immediate threat of overthrow (or any other blood in the streets scenario) would be less restrictive than a categorical denial of the right to bear arms. Whether you frame the curfew as a restriction on the right to travel under the DPC, or the right to peaceably assemble, the fact remains, it is a restriction rather than an outright ban. It still presents some opportunity to exercise those rights whereas you'd have completely negated an expressly enumerated right with the handgun ban.

All this is really just a way of dancing around the more fundamental question: what's the least restrictive means by which the government can prevent its own overthrow? Ostensibly, any law that imposes anything more than that for that purpose would fail strict scrutiny, right?

Well, when those measures conflict with a fundamental right, yes.

Most certainly, the latter would pass the narrowly-tailored test, but I don't know that it would pass the least restrictive means test. A law that prohibited public carry or transport of firearms with the clear and present intent of violent overthrow would be less restrictive than a law that prohibited possession of firearms for that purpose.

Courts routinely conflate/combine the latter two tests, and you'd be laughed out of court trying to impose the type of minutiae you suggest for the least restrictive means. "But your honor, the law could just require those intending to assassinate the President to just keep .380 ammo in their handguns. Those would never have the penetration to kill, with his BMI."

[lostinsd82]

Those would never have the penetration to kill, with his BMI."

[OleCuss]

Fun arguments to be sure.

But the arguments will not even be influential let alone precedential so it might be more productive to see what the courts do and then determine just what that means to us in real life.

The one thing which is clear is that it will be better to have Trump appointing Justices than Kamala or any of the other wannabes.

[numpty]

This thread is like watching tennis, and not understanding the rules.