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

[FABIO GETS GOOSED!!!]

Here's another hint, maybe you're not reading the dissenting opinion as carefully as you should be. Maybe "standard" refers to something more specific than "intermediate scrutiny" which you plopped down parenthetically into that sentence.

[kcbrown]

Sorry, but I'm not going to play "hint hint" games with you. If you have a credible counter argument to my assertion that the Heller majority rejected intermediate scrutiny, then state it. Otherwise, you are contributing nothing to this conversation.

Welcome to the same fun that the rest of us have had to put up with when engaging him.

[FABIO GETS GOOSED!!!]

Welcome to the same fun that the rest of us have had to put up with when engaging him.

I can't help it if you and Tincon are not careful readers.

[kcbrown]

I can't help it if you and Tincon are not careful readers.

"Careful" is not sufficient when your statements leave sufficient ambiguity as to be indeterminate.

[Tincon]

Here's another hint, maybe you're not reading the dissenting opinion as carefully as you should be. Maybe "standard" refers to something more specific than "intermediate scrutiny" which you plopped down parenthetically into that sentence.

I wonder if this is how you argue/brief cases in front of a judge. "Your Honor, I find opposing counsel's argument uncompelling, as I have repeatedly hinted at in my brief. I would now like to vaguely direct the Court's attention to an entire dissent, and hint further that somewhere therein lies support for my argument."

The parenthetical only addresses what the standard in Turner was. Breyer's own words clearly show that the standard he would have applied in Heller was that of Turner. Intermediate.

I respect your opinion and intellect, and I would welcome your mature legal analysis on any point. However, I have no need for, and place no value on, games with "hints" and vague references without proper cites. I would hope there is enough respect here that we can have a mutual conversation of the former type.

Welcome to the same fun that the rest of us have had to put up with when engaging him.

You are one to talk lol.

[FABIO GETS GOOSED!!!]

Let's have a look at the actual text of the dissenting opinion, in context:

In particular this Court, in First Amendment cases applying intermediate scrutiny, has said that our “sole obligation” in reviewing a legislature’s “predictive judgments” is “to assure that, in formulating its judgments,” the legislature “has drawn reasonable inferences based on substantial evidence.” Turner, 520 U. S., at 195 (internal quotation marks omitted). And judges, looking at the evidence before us, should agree that the District legislature’s predictive judgments satisfy that legal standard. That is to say, the District’s judgment, while open to question, is nevertheless supported by “substantial evidence.”

There is no cause here to depart from the standard set forth in Turner, for the District’s decision represents the kind of empirically based judgment that legislatures, not courts, are best suited to make. See Nixon, 528 U. S., at 402 (BREYER, J., concurring). In fact, deference to legislative judgment seems particularly appropriate here, wherethe judgment has been made by a local legislature, with particular knowledge of local problems and insight into appropriate local solutions.

Anyone see another "standard" here? Like, maybe, the "legal standard" (not "standard of scrutiny") by which a legislature's predictive judgments are reviewed? (Hint: the "legal standard" the dissent is actually referring to is bolded lol.) Does Turner "set forth" an intermediate scrutiny standard, or does it "set forth" the standard by which legislative predictive judgments are reviewed? Notice how the second clause of the sentence that Tincon incompletely quoted (first sentence of second paragraph) refers to legislative judgments?

[kcbrown]

You are one to talk lol.

[Tincon]

I see your argument now; that the "legal standard" Breyer refers to in your quote is not scrutiny. Instead, it must be some standard of deference to a legislature's empirical judgment, independent of the level of scrutiny. I disagree. Apparently you also would argue that Breyer did not propose an intermediate standard of scrutiny, which of course I also disagree with.

Let's take a look at section (III), for better context:

I therefore begin by asking a process-based question: How is a court to determine **2851 whether a particular firearm regulation (here, the District's restriction on handguns) is consistent with the Second Amendment? What kind of constitutional standard should the court use? How high a protective hurdle does the Amendment erect?

[So what does "constitutional standard" mean here? Indeed, what is this entire section about? Breyer tells us:

The question matters. The majority is wrong when it says that the District's law is unconstitutional “[u]nder any of the standards of scrutiny that we have applied to enumerated constitutional rights.” Ante, at 2817. How could that be? It certainly would not be unconstitutional under, for example, a “rational basis” standard, which requires a court to uphold regulation so long as it bears a “rational relationship” *688 to a “legitimate governmental purpose.” Heller v. Doe, 509 U.S. 312, 320, 113 S.Ct. 2637, 125 L.Ed.2d 257 (1993). The law at issue here, which in part seeks to prevent gun-related accidents, at least bears a “rational relationship” to that “legitimate” life-saving objective. And nothing in the three 19th-century state cases to which the majority turns for support mandates the conclusion that the present District law must fall. See Andrews v. State, 50 Tenn. 165, 177, 186–187, 192 (1871) (striking down, as violating a state constitutional provision adopted in 1870, a statewide ban on a carrying a broad class of weapons, insofar as it applied to revolvers); Nunn v. State, 1 Ga. 243, 246, 250–251 (1846) (striking down similarly broad ban on openly carrying weapons, based on erroneous view that the Federal Second Amendment applied to the States); State v. Reid, 1 Ala. 612, 614–615, 622 (1840) (upholding a concealed-weapon ban against a state constitutional challenge). These cases were decided well (80, 55, and 49 years, respectively) after the framing; they neither claim nor provide any special insight into the intent of the Framers; they involve laws much less narrowly tailored that the one before us; and state cases in any event are not determinative of federal constitutional questions, see, e.g., Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 549, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985) (citing Martin v. Hunter's Lessee, 1 Wheat. 304, 4 L.Ed. 97 (1816)).

[Breyer clearly thinks there is a standard of scrutiny under which DC's laws would survive.]

Respondent proposes that the Court adopt a “strict scrutiny” test, which would require reviewing with care each gun law to determine whether it is “narrowly tailored to achieve a compelling governmental interest.” Abrams v. Johnson, 521 U.S. 74, 82, 117 S.Ct. 1925, 138 L.Ed.2d 285 (1997); see Brief for Respondent 54–62. But the majority implicitly, and appropriately, rejects that suggestion by broadly approving a set of laws—prohibitions on concealed weapons, forfeiture by criminals of the Second Amendment right, prohibitions on firearms in certain locales, and governmental regulation of commercial firearm sales—whose constitutionality under a strict scrutiny standard would be far from clear. See ante, at 2816.

Indeed, adoption of a true strict-scrutiny standard for evaluating gun regulations would be impossible. That is because almost every gun-control regulation will seek to advance (as the one here does) a “primary concern of every government—a concern for the safety and indeed the lives of its citizens.” United States v. Salerno, 481 U.S. 739, 755, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). The Court has deemed that interest, as well as “ the Government's general interest in preventing crime,” to be “compelling,” see id., at 750, 754, 107 S.Ct. 2095, and the Court has in a wide variety of constitutional contexts found such public-safety concerns sufficiently forceful to justify restrictions on individual liberties, see e.g., Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) (per curiam) (First **2852 Amendment free speech rights); Sherbert v. Verner, 374 U.S. 398, 403, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) (First Amendment religious rights); Brigham City v. Stuart, 547 U.S. 398, 403–404, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) (Fourth Amendment protection of the home); New York v. Quarles, 467 U.S. 649, 655, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984) (Fifth Amendment rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)); Salerno, supra, at 755 (Eighth Amendment bail rights). Thus, any attempt in theory to apply strict scrutiny to gun regulations will in practice turn into an interest-balancing inquiry, with the interests protected by the Second Amendment on one side and the governmental public-safety concerns on the other, the only question being whether the regulation at issue impermissibly burdens the former in the course of advancing the latter.

[More about scrutiny, specifically how Breyer would reject strict scrutiny.

I would simply adopt such an interest-balancing inquiry explicitly. The fact that important interests lie on both sides of the constitutional equation suggests that review of gun-control regulation is not a context in which a court should effectively presume either constitutionality (as in rational-basis review) or unconstitutionality (as in strict scrutiny).

[Now this is very important, Breyer has ruled out both rational basis and strict scrutiny. But CLEARLY he is still talking about scrutiny. He proposes something in-between strict and rational, and elucidates:

Rather, “where a law significantly implicates competing constitutionally protected interests in complex ways,” the Court generally asks whether the statute burdens a protected interest in a way or to an extent that is out of *690 proportion to the statute's salutary effects upon other important governmental interests. See Nixon v. Shrink Missouri Government PAC, 528 U.S. 377, 402, 120 S.Ct. 897, 145 L.Ed.2d 886 (2000) (BREYER, J., concurring). Any answer would take account both of the statute's effects upon the competing interests and the existence of any clearly superior less restrictive alternative. See ibid. Contrary to the majority's unsupported suggestion that this sort of “proportionality” approach is unprecedented, see ante, at 2820 – 2821, the Court has applied it in various constitutional contexts, including election-law cases, speech cases, and due process cases. See 528 U.S., at 403, 120 S.Ct. 897 (citing examples where the Court has taken such an approach); see also, e.g., Thompson v. Western States Medical Center, 535 U.S. 357, 388, 122 S.Ct. 1497, 152 L.Ed.2d 563 (2002) (BREYER, J., dissenting) (commercial speech); Burdick v. Takushi, 504 U.S. 428, 433, 112 S.Ct. 2059, 119 L.Ed.2d 245 (1992) (election regulation); Mathews v. Eldridge, 424 U.S. 319, 339–349, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (procedural due process); Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563, 568, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968) (government employee speech).

[Hmmm, which standard of scrutiny do those case apply?]

In applying this kind of standard [this is important, because this is the same "standard" he is talking about in reference to Turner. When he said "this" he is referring the preceding paragraphs (dealing with scrutiny).] the Court normally defers to a legislature's empirical judgment in matters where a legislature is likely to have greater expertise and greater institutional factfinding capacity. See Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180, 195–196, 117 S.Ct. 1174, 137 L.Ed.2d 369 (1997); see also Nixon, supra, at 403, 120 S.Ct. 897 (BREYER, J., concurring). Nonetheless, a court, not a legislature, must make the ultimate constitutional conclusion, exercising its “independent judicial judgment” in light of the whole record to determine whether a law exceeds constitutional boundaries. Randall v. Sorrell, 548 U.S. 230, 249, 126 S.Ct. 2479, 165 L.Ed.2d 482 (2006) (opinion of BREYER, J.) (citing Bose Corp. v. Consumers Union of United States, Inc., 466 U.S. 485, 499, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984)).

[paragraph omitted]

Here, we have little prior experience. Courts that do have experience in these matters have uniformly taken an approach that treats empirically-based legislative judgment with a degree of deference. See Winkler, Scrutinizing the Second Amendment, 105 Mich. L.Rev. 683, 687, 716–718 (2007) (describing hundreds of gun-law decisions issued in the last half-century by Supreme Courts in 42 States, which courts with “surprisingly little variation,” have adopted a standard more deferential than strict scrutiny). While these state cases obviously are not controlling, they are instructive. Cf., e.g., Bartkus v. Illinois, 359 U.S. 121, 134, 79 S.Ct. 676, 3 L.Ed.2d 684 (1959) (looking to the “ experience of state courts” as informative of a constitutional question). And they thus provide some comfort regarding the practical wisdom of following the approach that I believe our constitutional precedent would in any event suggest.

And there is "standard" again, talking about scrutiny. Breyer does not have two meanings for the word in his dissent. When he says standard he means scrutiny. And when he discusses the standard the Supreme Court has adopted in so many cases which he cites to (including Turner), the standard is intermediate scrutiny. And the Heller Majority rejects this standard.

[curtisfong]

I'm still unclear on what other "standard" there is. In any case, it appears to be equivalent to the null set, again.

So what relevance is there to the legal name one gives to equally ineffective and pointless standards?

[Tincon]

So what relevance is there to the legal name one gives to equally ineffective and pointless standards?

Shockingly, not everyone believes that tripe.

[curtisfong]

Shockingly, not everyone believes that tripe.

The person who wrote this does:

In fact, deference to legislative judgment seems particularly appropriate here, where the judgment has been made by a local legislature, with particular knowledge of local problems and insight into appropriate local solutions.

[Tincon]

The person who wrote this does:

Maybe so, but note that you are quoting from the losing side.

[ifilef]

My prediction is that the court, if it rules on 11/22/13 in Pena, should hold that part of the UHA unconstitutional which requires microstamping, lci, and mag disconnect. The reasoning might be, in part, due to the fact such a requirement is unduly burdensome, represents a restriction on handguns commonly used in this country for lawful purposes, and represents redundant 'safety' features that aren't really necessary and should not withstand scrutiny. I am not an expert in this area, but micro-stamping requirement alone is going to defeat that part of the Act because it does not exist and the requirement essentially bans all semi-automatic handguns hereafter produced for sale in this state.

[curtisfong]

Maybe so, but note that you are quoting from the losing side.

His is not the opinion of the losing side in the big picture, in my judgement. From what I can tell, when it comes to the 2A, most judges feel that the courts should defer to the legislature, if not under intermediate scrutiny, certainly rational basis.

[curtisfong]

My prediction is that the court, if it rules on 11/22/13 in Pena, should hold that part of the UHA unconstitutional which requires microstamping, lci, and mag disconnect. The reasoning might be, in part, due to the fact such a requirement is unduly burdensome, represents a restriction on handguns commonly used in this country for lawful purposes, and represents redundant 'safety' features that aren't really necessary and should not withstand scrutiny. I am not an expert in this area, but micro-stamping requirement alone is going to defeat that part of the Act because it does not exist and the requirement essentially bans all semi-automatic handguns hereafter produced for sale in this state.

As outlined before, I see no reason for this optimism.

Even if Pena's case were not fatally flawed (which many claim it is), it is likely that every court (short of SCOTUS) will defer to legislative judgement, up to, and including intermediate scrutiny.