Drake v. Jerejian (NJ CCW) [cert denied 5/5]

[dantodd]

Of a bunch of grade school kids in a school?

Even if that's the case, one should never underestimate the power of such an event happening while you're around to see the effects, if not the event itself. It adds palpability where it otherwise does not exist.


It is. And we know that we have at least 4 such justices on the Court, no?

I am surprised that you believe SCOTUS had such a different reaction to the shooting than the rest of the nation did.

[kcbrown]

Columbine?

High school. A possible candidate, admittedly. Happened in 1998.

Jonesboro?

Same as Columbine in that respect, including the rough timing.

Stockton?

That one makes for a much better point, because it involved grade school children, but it was in 1989, nearly a quarter of a century before Sandy Hook.


You've got very good points here, but time has a way of causing the horror of past events to fade, so it's not clear to me that those events would have the emotional power of persuasion that Sandy Hook would.

[kcbrown]

If commerce in firearms isn't a 2A case what is?

Um...a law applicability case?

Go ahead and search the Abramski cert petition for any mention of the 2nd Amendment. You'll find nothing.

It can't be a 2nd Amendment case if the 2nd Amendment isn't even mentioned, much less made a staple of the arguments.

[kcbrown]

I am surprised that you believe SCOTUS had such a different reaction to the shooting than the rest of the nation did.

I'm not claiming the entire Court had such a reaction. It takes only one person in the Heller 5 to have such a reaction.

Do you believe the Heller 5 member(s) who insisted on the "machine gun" language in the Heller decision are somehow not persuaded by emotional arguments on this subject? Why not, since emotional arguments are precisely the ones that are used to argue for why machine guns should not be protected by the 2nd Amendment?

[ryan_j]

High school. A possible candidate, admittedly. Happened in 1998.



Same as Columbine in that respect, including the rough timing.




That one makes for a much better point, because it involved grade school children, but it was in 1989, nearly a quarter of a century before Sandy Hook.



You've got very good points here, but time has a way of causing the horror of past events to fade, so it's not clear to me that those events would have the emotional power of persuasion that Sandy Hook would.

What about Virginia Tech? That was about a year before Heller. It was right in the same vicinity as well (VA/DC). More bodies than Sandy Hook too, and the guns were legally purchased.

Besides, didn't Lanza use a Bushmaster AR style rifle for Sandy Hook? What would this have to do with concealed carry, especially since in Woollard the argument for keeping G&S in place was that people could "bear arms" by walking down the street with such a rifle?

[ryan_j]

Um...a law applicability case?

Go ahead and search the Abramski cert petition for any mention of the 2nd Amendment. You'll find nothing.

It can't be a 2nd Amendment case if the 2nd Amendment isn't even mentioned, much less made a staple of the arguments.

That's true, it was not a 2A case but it was still a case that had to do with the accessibility of guns and undermining gun control laws.

[kcbrown]

What about Virginia Tech? That was about a year before Heller. It was right in the same vicinity as well (VA/DC). More bodies than Sandy Hook too, and the guns were legally purchased.

Yep.

But the loss of little school children has a much greater emotional impact than the loss of adults. The former are regarded as much more innocent and valuable than the latter.

Remember, this is at an emotional level, not a logical one.

Besides, didn't Lanza use a Bushmaster AR style rifle for Sandy Hook? What would this have to do with concealed carry, especially since in Woollard the argument for keeping G&S in place was that people could "bear arms" by walking down the street with such a rifle?

The antis who made that argument in favor of G&S were doing so disingenuously. They were lying.

They know that if you deny the fundamental right to carry in public, then it follows that the "exceptions" (such as open carry of rifles) can be eliminated. They also knew when making that argument that the reality is that someone who tries to carry a rifle in public will be arrested for it.

Want proof? There have been arrests and confiscation for that very thing in Texas, where protection of such is explicit.

[kcbrown]

That's true, it was not a 2A case but it was still a case that had to do with the accessibility of guns and undermining gun control laws.

Of course.

My claim is not that the Supreme Court is going to ignore all firearms cases, only those that revolve around 2nd Amendment protection. It is the latter for which the jurisprudence is new and for which recognition has far-reaching implications.

Not all firearms cases involve protection of the right to keep and bear arms, just like not all cases about pens involve protection of the right to free speech.

[LostInSpace]

There have been arrests and confiscation for that very thing in Texas, where protection of such is explicit.

I would check their laws before assuming such legal protection. Most likely, the open carrying of handguns is explicitly banned, but the law is silent on long guns. Now, what's not banned is not in itself illegal of course, except people get arrested for disturbing peace when carrying a rifle.

I've read it has been like that in Salt Lake City with open carry of handguns. So, they now passed a bill saying that merely carrying a handgun in a holster is fine. If the governor of Utah signs it, they will be able to open carry there. Arizona already has an explicit provision like that, as far as I recall.

[kcbrown]

I would check their laws before assuming such legal protection. Most likely, the open carrying of handguns is explicitly banned, but the law is silent on long guns. Now, what's not banned is not in itself illegal of course, except people get arrested for disturbing peace when carrying a rifle.

Ah, yes, I see you're right. My mistake.

Note, too, that Texas has a right to keep and bear arms encoded in its constitution.

I've read it has been like that in Salt Lake City with open carry of handguns. So, they now passed a bill saying that merely carrying a handgun in a holster is fine. If the governor of Utah signs it, they will be able to open carry there. Arizona already has an explicit provision like that, as far as I recall.

Yeah, that's possible.

Now, all of this raises the important question: if you have to have a law explicitly allowing something for that something to be legal, was that something really a right prior to passage of said law?

I would argue that the answer to that must be "no", for a right is something that one can exercise despite the objections of the government.

[LostInSpace]

... if you have to have a law explicitly allowing something for that something to be legal, was that something really a right prior to passage of said law?

Texas RKBA is the following:

“Every citizen shall have the right to keep and bear arms in the lawful defense of himself or the State; but the Legislature shall have power, by law, to regulate the wearing of arms, with a view to prevent crime.”

so the bearing of arms is pretty murky there as a right to begin with. They like to talk big talk in Texas, but don't always walk the walk. This particular provision may have been in response to the emancipation of slaves after the civil war; the RKBA was stronger in Texas' earlier days. Here is the full history, after Volokh's article "State Constitutional Rights to Keep and Bear Arms":

Texas 1876: “Every citizen shall have the right to keep and
bear arms in the lawful defense of himself or the State; but the
Legislature shall have power, by law, to regulate the wearing of
arms, with a view to prevent crime.”

1868: “Every person shall have the right to keep and bear
arms, in the lawful defence of himself or the State, under such
regulations as the legislature may prescribe.”

1845: “Every citizen shall have the right to keep and bear
arms, in the lawful defence of himself or the State.”

1836: “Every citizen shall have the right to bear arms in
defence of himself and the republic. The military shall at all
times and in all cases be subordinate to the civil power.”

[LostInSpace]

... if you have to have a law explicitly allowing something for that something to be legal, was that something really a right prior to passage of said law?

Even where "the right to bear" is not circumscribed, there is still going to be some latitude as to where, how, and what types of arms can be borne in practice. Where ambiguities arise, they can pretty much only be settled either by the legal system or by explicit legislative protection.

As an illustration of ambiguities of a less quantifiable kind, look at this article about a rifle on a city bus:

http://www.kvoa.com/news/gun-on-a-city-bus-is-it-legal-/

Given that his hand was on the handle, even in a state as tolerant as where this took place, a case could have been made that he bore his weapon in a menacing manner. I don't know that it was though, at least I haven't run into a follow-up story.

[LostInSpace]

To assume that a Supreme Court justice can be swayed by an emotional but otherwise irrelevant event is also about the most damning accusation you could make.

I know of at least one case, where a former SCOTUS justice may have been so affected, or at least took notice of the shootings that had happened:

http://www.huffingtonpost.com/2013/01/29/sandra-day-oconnor_n_2577554.html

This was Sandra Day O'Connor sitting on a panel as a visiting judge. The case in question was about a part time upstate New York resident refused a pistol license there. Now the panel decision appears to have been sensible - to return the case to the State court for clarification whether NY State law really prevented a non-resident from obtaining a permit. Still, here's what she said,

"The regulation of firearms is a paramount issue of public safety, and recent events in this circuit are a sad reminder that firearms are dangerous in the wrong hands," she wrote. "Questions like the one before us require a delicate balance between individual rights and the public interest, and federal courts should avoid interfering with or evaluating that balance until it has been definitively struck." If I get this right, she is saying that if a judge can possibly avoid ruling on whether a gun control provision is actually unconstitutional, (s)he should definitely do so.

[kcbrown]

Even where "the right to bear" is not circumscribed, there is still going to be some latitude as to where, how, and what types of arms can be borne in practice. Where ambiguities arise, they can pretty much only be settled either by the legal system or by explicit legislative protection.

Of course.

The Supreme Court did say, after all:

the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose.

But that does not mean that the right is a right to only carry certain specific weapons in certain specific manners and for only certain specific purposes.

That what we're talking about is a right means that the restrictions must be narrowly carved out exceptions, not broad swaths of prohibition. To forbid all carry of long arms goes well beyond a narrowly carved out exception.


The question must be: would the founders of the country, who had just come out of a shooting war waged for the purpose of freeing themselves from tyranny, in which the ability to keep and bear many types of weapons was key to their victory, be comfortable with the restriction in question in that context? After all, the prefatory clause is part of the Constitution and, per Marbury v Madison, "It cannot be presumed that any clause in the constitution is intended to be without effect", so whatever other purpose the right to keep and bear arms may have, the purpose stated in the prefatory clause cannot be presumed to be inoperative. Thus, the right to keep and bear those arms which are necessary to meet the purpose stated in the prefatory clause shall not be infringed.

If we would not interpret the right to free speech in the manner that a prohibition on carrying of long arms in public would suggest we interpret the right to keep and bear arms, then we cannot interpret the right to keep and bear arms in that manner. And as long arms represents a large category of arms which certainly have use in preserving liberty against tyranny, and probably more so than any other category of weapon, the closest equivalent to a prohibition on carrying of those arms in public would be prohibition of political speech in public.


Of course, I don't believe we're ever going to get that interpretation of the 2nd Amendment out of the Supreme Court. They're too cowardly for that.

[ryan_j]

That what we're talking about is a right means that the restrictions must be narrowly carved out exceptions, not broad swaths of prohibition. To forbid all carry of long arms goes well beyond a narrowly carved out exception.

Yup, and this is exactly what NJ has. A complete "out-right ban" (DiFi) and narrow exemptions to possess. It should be the other way round.