Williams v. Maryland ~ Petition for Writ of Cert

[hoffmang]

With respect, we haven't seen that kind of "even handedness" in Nordyke, either. About the only "good" thing you can say about it is that the 9th Circuit made use of some of the text of Heller.

It's probably not clear but the other side hates the Nordyke opinion even more than we do.

-Gene

[kcbrown]

It's probably not clear but the other side hates the Nordyke opinion even more than we do.

Well, considering that Nordyke turns strict scrutiny (and any other imaginable method of scrutiny) into rational basis and decrees that only laws which "substantially burden" (whatever that means) the right get any kind of scrutiny at all, I can't imagine why the other side doesn't like the opinion...

[htjyang]

SCOTUS concerned about the appearance of sour grapes? As a result of a glove slap to the face from some underling?



Seriously, though, think of the horrible precedent it sets if SCOTUS lets the underlying courts get away with going rogue. For if the underlying courts can get away with ignoring SCOTUS, then of what use is SCOTUS?

I always thought that people made too much of the Maryland court's words. I read it as nothing more than a request for additional guidance from a lower court. From this perspective, their words demonstrate deference, not defiance.

Furthermore, one should not underestimate the effects of actual, lower court defiance. Consider the Simmons v. South Carolina (1994)-Shafer v. South Carolina (2001)-Kelly v. South Carolina (2002) chain of cases. Over a period of 8 years, the state of South Carolina repeatedly insisted upon ignoring the Court's initial holding requiring certain jury instructions. In Simmons, Justices Scalia and Thomas dissented. By Kelly, they successfully pulled over CJ Rehnquist and Kennedy. Now that O'Connor has been replaced by Alito, if South Carolina challenges those precedents again, I suspect they'll prevail.

The lesson is this: If there are at least 2 justices who dissent vigorously and continuously, then that will encourage lower courts to defy the Supreme Court. Given time, the 2-justice minority might even pull over more justices and form a new majority.

That's why the narrow majorities in Heller-McDonald is so dangerous. I think we need to remember that we're talking about constitutional law here. The stakes can hardly be higher. Yet what divides the 2A with some teeth v. rational basis test that reduces it to a laughingstock is 1 vote. Ideally, when playing stakes this high, there should at least be 6 votes that can be counted upon (more or less) to provide for a margin of error. Now, there is no margin for error.

[ccmc]

I always thought that people made too much of the Maryland court's words. I read it as nothing more than a request for additional guidance from a lower court. From this perspective, their words demonstrate deference, not defiance.

Furthermore, one should not underestimate the effects of actual, lower court defiance. Consider the Simmons v. South Carolina (1994)-Shafer v. South Carolina (2001)-Kelly v. South Carolina (2002) chain of cases. Over a period of 8 years, the state of South Carolina repeatedly insisted upon ignoring the Court's initial holding requiring certain jury instructions. In Simmons, Justices Scalia and Thomas dissented. By Kelly, they successfully pulled over CJ Rehnquist and Kennedy. Now that O'Connor has been replaced by Alito, if South Carolina challenges those precedents again, I suspect they'll prevail.

The lesson is this: If there are at least 2 justices who dissent vigorously and continuously, then that will encourage lower courts to defy the Supreme Court. Given time, the 2-justice minority might even pull over more justices and form a new majority.

That's why the narrow majorities in Heller-McDonald is so dangerous. I think we need to remember that we're talking about constitutional law here. The stakes can hardly be higher. Yet what divides the 2A with some teeth v. rational basis test that reduces it to a laughingstock is 1 vote. Ideally, when playing stakes this high, there should at least be 6 votes that can be counted upon (more or less) to provide for a margin of error. Now, there is no margin for error.

Excellent post. I agree with your assessment of the MD court's words ie I never saw it as a b!tch slap of SCOTUS as many here did/do, and I've posted more than a few times how dangerous the narrow majorities in Heller-McDonald are. That's a major reason why next year's election is so important.

[hoffmang]

Well, considering that Nordyke turns strict scrutiny (and any other imaginable method of scrutiny) into rational basis and decrees that only laws which "substantially burden" (whatever that means) the right get any kind of scrutiny at all, I can't imagine why the other side doesn't like the opinion...

That's because it doesn't do that. You need to read it again.

-Gene

[yellowfin]

If it doesn't do that, then does it also not say something that anti gun courts can deliberately misread as saying that it does?

[hoffmang]

If it doesn't do that, then does it also not say something that anti gun courts can deliberately misread as saying that it does?

And your point is a poor circular argument.

Rage doesn't help.

-Gene

[kcbrown]

That's because it doesn't do that. You need to read it again.

Okay, then please point out specifically what's incorrect about my analysis here.

[hoffmang]

Okay, then please point out specifically what's incorrect about my analysis here.

The short answer is that had the Alameda ordinance prohibited possession of any gun in any home or not had an exception for carry licenses for carry in public, the Nordyke court would have considered it a substantial burden on the right to keep and bear arms. The Nordyke panel's opinion has none of the "not in the home" poppycock in it you will note.

What the Nordyke court is really saying is that some zoning of sales isn't necessarily a substantial burden, but it might be so go back to the lower court and prove that. We disagree based on, at minimum, some of the other birth control cases, but that doesn't mean they took the RKBA un-seriously. They just took it less seriously than we all (and the Supreme Court it would seem) think they should.

-Gene

[kcbrown]

The short answer is that had the Alameda ordinance prohibited possession of any gun in any home or not had an exception for carry licenses for carry in public, the Nordyke court would have considered it a substantial burden on the right to keep and bear arms. The Nordyke panel's opinion has none of the "not in the home" poppycock in it you will note.

Dude, did you even bother to read my analysis? I cover that possibility in detail (in fact, it comprises the bulk of my analysis). The problem with Nordyke isn't what is and is not considered a "substantial burden", it's what the court will do with it if it is.

[hoffmang]

Dude, did you even bother to read my analysis? I cover that possibility in detail (in fact, it comprises the bulk of my analysis). The problem with Nordyke isn't what is and is not considered a "substantial burden", it's what the court will do with it if it is.

But the reverse is equally possible given the right judge or panel. That drives the other side equally nuts.

-Gene

[kcbrown]

But the reverse is equally possible given the right judge or panel. That drives the other side equally nuts.

But that's true no matter the ruling, so it's of no use to this particular discussion. Which is to say, you're now making the very mistake you accuse Yellowfin of making.


The ruling is what it is. My analysis shows that the ruling, if used as it was stated, would result in "heightened scrutiny" being the equivalent (or very nearly so) of rational basis, with the final result being that the law being considered would be given the equivalent of a rational basis examination regardless of whether or not it was considered to "substantially burden" the right.

Your original statement was that the Heller II appeals court was the only court thus far that hasn't been even-handed with respect to the 2A jurisprudence that SCOTUS is building. My point is that you can add CA9 to that list, and the Nordyke ruling is proof of that.

[hoffmang]

But that's true no matter the ruling, so it's of no use to this particular discussion. Which is to say, you're now making the very mistake you accuse Yellowfin of making.

No. It's pointing out that your argument is no different than Yellowfin's. Nothing in Nordyke rules out strict scrutiny on possession or carry bans for example.

The ruling is what it is. My analysis shows that the ruling, if used as it was stated, would result in "heightened scrutiny" being the equivalent (or very nearly so) of rational basis, with the final result being that the law being considered would be given the equivalent of a rational basis examination regardless of whether or not it was considered to "substantially burden" the right.

You are incorrect. If the Alameda ordinance impacted the self defense aspects of the RKBA directly (instead of indirectly) it would have been subject to intermediate or strict scrutiny and the majority/dissent argument shows it would have been subject to strict.

-Gene

[kcbrown]

No. It's pointing out that your argument is no different than Yellowfin's. Nothing in Nordyke rules out strict scrutiny on possession or carry bans for example.

You are totally missing my point. The above is irrelevant. "Strict scrutiny" to the 9th Circuit is now essentially the same thing as rational basis. If you dispute that, then please explicitly address my analysis.

You are incorrect. If the Alameda ordinance impacted the self defense aspects of the RKBA directly (instead of indirectly) it would have been subject to intermediate or strict scrutiny and the majority/dissent argument shows it would have been subject to strict.

Who cares what level of scrutiny it would have wound up being, if all levels of scrutiny wind up being explicitly treated as something near rational basis by the court??



It looks like you haven't bothered to read my analysis at all.

[hoffmang]

You are totally missing my point. The above is irrelevant. "Strict scrutiny" to the 9th Circuit is now essentially the same thing as rational basis. If you dispute that, then please explicitly address my analysis.

I scanned your analysis. No case at the CA-9 has applied strict scrutiny yet so how the heck can you divine that Nordyke doesn't require it? Further, why isn't Kavanaugh correct and none of us are going to apply strict scrutiny but will instead be required to apply 1790 and 1870 as an historical analysis instead?

You should be able to make your point in 1 to 3 sentences if it's valid.

-Gene