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

[aBrowningfan]

We should know by mid April if the SCOTUS will grant cert on the case. Until then we wait and speculate.

Would be nice to walk into my LGS and buy the latest and greatest handgun out there.

Why mid-April?

[lostinsd82]

yea, id love to not have to pay 2x the retail price for the new glocks ;/

[SDCarpenter]

We should know by mid April if the SCOTUS will grant cert on the case. Until then we wait and speculate.

Would be nice to walk into my LGS and buy the latest and greatest handgun out there.

and not pay over twice the value of it

[ZNiner]

So are we gonna defeat the roster?

We should know by mid April if the SCOTUS will grant cert on the case. Until then we wait and speculate.

Would be nice to walk into my LGS and buy the latest and greatest handgun out there.

[Offwidth]

Unlikely.

[Lightstrider]

So are we gonna defeat the roster?

[numpty]

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

[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.

[lostinsd82]

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

[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."

[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).

[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]

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]

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]

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?