Williams v. Maryland ~ Petition for Writ of Cert

[kcbrown]

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?

ARRRGH.

The point isn't whether or not the court is going to claim to apply strict scrutiny, it's what it will do when it does claim to be applying strict scrutiny!

The court explicitly stated what it would do, in the event it analyzes a law under strict scrutiny, for two of the three strict scrutiny analysis requirements:

1. Automatically assume a compelling interest on the part of the state
2. Automatically assume that the law is narrowly tailored.

That leaves only the "least restrictive means" requirement. The court was silent about that, but we already know that "least restrictive" is not interpreted literally as per 1st Amendment jurisprudence.

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?

That may wind up being what happens, but the 9th Circuit, in Nordyke, did not telegraph any intention to do any such thing. Rather, they appeared to say that they would use already-known forms of heightened scrutiny, and also explicitly said how they would apply strict scrutiny and their justification for it (justification which just as easily applies to intermediate scrutiny). It stands to reason that if the 9th Circuit intended to do historical analysis as Kavanaugh would, then it follows they would have had no need at all to explain how they would apply strict scrutiny. So what point are you attempting to make here that is somehow relevant to the 9th Circuit's viewpoint?

I'm not at all claiming you're wrong about the DC circuit court (why in the world would you think that?), I'm only saying that it is not alone in not being "even handed" in its 2A jurisprudence -- it is joined by the 9th circuit court in that respect.

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

What has the brevity of a point got to do with its validity?

[kcbrown]

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

I don't agree with the above, but I'll try anyway.

The point is simple, and it's this: the 9th Circuit has neutered strict scrutiny to such a degree that it approaches rational basis. Furthermore, their justification for doing so applies equally well to intermediate scrutiny, and will have the same effect on it. Therefore, whether or not the 9th Circuit does a scrutiny analysis no longer matters, because the end result is the same.

Is that succinct enough for you?

[Scarecrow Repair]

Is that succinct enough for you?

Well, it's certainly pessimistic enough for kcbrown! Welcome back. You were almost giddy with optimism once or twice and I wondered who the imposter was.

[kcbrown]

Well, it's certainly pessimistic enough for kcbrown! Welcome back. You were almost giddy with optimism once or twice and I wondered who the imposter was.

I never left. It's just that I'm optimistic about some things, and, erm, not so optimistic about others.


I don't actually think the CA9's jurisprudence will hold. Once SCOTUS gets its hands on it, it's toast as long as the Heller 5 stay true to their original statements.

[hoffmang]

I don't agree with the above, but I'll try anyway.

The point is simple, and it's this: the 9th Circuit has neutered strict scrutiny to such a degree that it approaches rational basis. Furthermore, their justification for doing so applies equally well to intermediate scrutiny, and will have the same effect on it. Therefore, whether or not the 9th Circuit does a scrutiny analysis no longer matters, because the end result is the same.

Is that succinct enough for you?

No, they did not. They did not apply strict scrutiny to the Alameda ordinance because it did not directly impact self defense.

No CA-9 court has applied scrutiny to a Second Amendment challenge yet.

Show me, with quotes from a CA-9 opinion, where what I said above is incorrect.

-Gene

[kcbrown]

No, they did not. They did not apply strict scrutiny to the Alameda ordinance because it did not directly impact self defense.

You did read the ruling, right? (Of course you did. Why do I feel the need to even ask?)

If the only thing that was relevant was that they didn't apply strict scrutiny to Alameda, then they wouldn't have outlined their position on strict scrutiny at all.


It looks like we're talking past each other. You're talking about Nordyke strictly in the context of its application to that specific case. I'm talking about the built up jurisprudence in the ruling. It may merely be dicta, but to ignore it is the same mistake as to ignore the dicta in Heller.

The 9th Circuit has telegraphed its intentions, and provided "guidance" to the lower courts. How can the way they have done so, which turns strict scrutiny into little more than rational basis, possibly be regarded as "even-handed"?

[hoffmang]

If the only thing that was relevant was that they didn't apply strict scrutiny to Alameda, then they wouldn't have outlined their position on strict scrutiny at all.

Maybe you missed this part:

Accordingly, we hold that only regulations which substantially burden the right to keep and to bear arms trigger heightened scrutiny under the Second Amendment. FN 9

FN 9: We need not decide today precisely what type of heightened scrutiny
applies to laws that substantially burden Second Amendment rights.

That was because:

they do not allege that they wish to carry guns on county property for the purpose of defending themselves while on that property

And the reason they do not is because carry licenses are exempted.

So I say again, strict scrutiny has not been applied by CA-9 because CA-9 has strongly implied that strict scrutiny is reserved for those laws that directly bear on the self defense purpose - like carry bans...

For other reasons, I think this decision is incorrect, but you're ignoring that it very strongly implies that strict scrutiny is the standard for those things that impact self defense. That point is bolstered due to the disagreement with the dissent. All of this is why the other side dislikes this decision as much or more so than us.

You may need to read it again to catch what I'm saying.

-Gene

[kcbrown]

Maybe you missed this part:

Nope. I know what they actually held. But what they wrote vastly exceeds that.

So I say again, strict scrutiny has not been applied by CA-9 because CA-9 has strongly implied that strict scrutiny is reserved for those laws that directly bear on the self defense purpose - like carry bans...

For other reasons, I think this decision is incorrect, but you're ignoring that it very strongly implies that strict scrutiny is the standard for those things that impact self defense. That point is bolstered due to the disagreement with the dissent. All of this is why the other side dislikes this decision as much or more so than us.

And you apparently missed this:

Because the Supreme Court has already held that “the Government’s general interest in preventing crime” is “compelling,” United States v. Salerno, 481 U.S. 739, 754 (1987), the question, under strict scrutiny, would be whether the regulation is narrowly tailored to that interest.

and this:

But courts cannot determine whether a gun-control regulation is narrowly tailored to the prevention of crime without deciding whether the regulation is likely to be effective (or, at least, whether less burdensome regulations would be as effective). Sorting gun-control regulations based on their likely effectiveness is a task better fit for the legislature. Cf. Richard H. Fallon, Jr., Judicially Manageable Standards and Constitutional Meaning, 119 Harv. L. Rev. 1274, 1291 (2006) (“A test may be deemed judicially unmanageable if it would require courts to make empirical findings or predictive judgments for which they lack competence.”)

Combined together, that renders strict scrutiny little better than rational basis!

So who cares that the 9th didn't actually attempt to apply strict scrutiny in Nordyke? What they did was say exactly how they would have applied it and how they will apply it in the future! And they also, through that, told the lower courts how to apply it as well. And their justification for that applies equally to intermediate scrutiny and renders it just as impotent.


If you're going to ignore the dicta in Nordyke, then you certainly shouldn't fault anyone for ignoring the dicta in Heller, and you can no longer legitimately fault the lower courts for doing the same.

If you're going to dispute my argument, then dispute it, don't just handwave it away.

[kcbrown]

Combined together, that renders strict scrutiny little better than rational basis!

So who cares that the 9th didn't actually attempt to apply strict scrutiny in Nordyke? What they did was say exactly how they would have applied it and how they will apply it in the future! And they also, through that, told the lower courts how to apply it as well. And their justification for that applies equally to intermediate scrutiny and renders it just as impotent.

I should make something clear: I don't expect this jurisprudence to survive SCOTUS judicial review.

Which is to say, I fully expect SCOTUS to come back and tell the 9th Circuit to apply strict scrutiny properly, at whatever time the 9th attempts to do what they've said they will.

So strategically, Nordyke is a "win" in that it establishes that laws which "substantially burden" the core right get heightened scrutiny, and it's then just a question of how that scrutiny is actually applied.

However, relative to Heller, it is a loss. The reason is that Heller said that such laws are Unconstitutional on their face:

The very enumeration of the right takes out of the hands of government—even the Third Branch of Government—the power to decide on a case-by-case basis whether the right is really worth insisting upon. A constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional guarantee at all. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad.

Methods of scrutiny are precisely means by which the courts decide, on a case-by-case basis, whether or not the right is worth insisting upon. If CA9 were to hold true to Heller, they would have said that laws which "substantially burden" the right are to be struck down immediately, not that they should be subject to "heightened scrutiny".

[hoffmang]

You're selecting lines that are on a progress to their real point. Just a page later:

Thus, rather than strictly scrutinizing every law which burdens these rights, the Supreme Court has held that “the rigorousness of our inquiry into the propriety of a state election law depends upon the extent to which a challenged regulation burdens First and Fourteenth Amendment rights.” Id. at 434. Election laws trigger strict scrutiny only where the rights to vote and to associate “are subjected to ‘severe’ restrictions.” Id. (internal quotation marks and citations omitted); see also Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 451-52 (2008). Indeed, even though “the right to marry is of fundamental importance,” regulations of that right do not trigger strict scrutiny unless they “significantly interfere[ ] with [its] exercise.” Zablocki v. Redhail, 434 U.S. 374, 383 (1978). Accordingly, we hold that only regulations which substantially burden the right to keep and to bear arms trigger heightened scrutiny under the Second Amendment.

Restrictions on the right to keep and bear arms for self defense will trigger strict scrutiny.

Your pessimism is making you misread the opinion in toto.

It's wrong, we agree it's wrong, but it's not nearly as wrong as you think it is because you're being blinded by your pessimism.

"Accordingly" is according to those times that strict scrutiny are applied, so shall strict scrutiny be applied in the 2A context.

-Gene

[kcbrown]

You're selecting lines that are on a progress to their real point. Just a page later:



Restrictions on the right to keep and bear arms for self defense will trigger strict scrutiny.

The point appears to be zinging past your head.

What does "strict scrutiny" really mean? The opinion lays that out right in front of us, and it is not good for us!

Your pessimism is making you misread the opinion in toto.

It's wrong, we agree it's wrong, but it's not nearly as wrong as you think it is because you're being blinded by your pessimism.

Good. Then you should be able to point out something I missed, that somehow nullifies the logic I've presented to you, not something I saw that fails to do so.

"Accordingly" is according to those times that strict scrutiny are applied, so shall strict scrutiny be applied in the 2A context.

Of course.

Again, what does "strict scrutiny" mean here? That is the question of the day, the question the court answers, and is the very thing you're overlooking.

You seem to be assuming that "strict scrutiny" means one, and only one, thing, and that it's good for us. The opinion describes the way that can and will be arranged to not be good for us.

The Ninth is saying "laws which 'substantially burden' the right trigger heightened scrutiny, and we will define 'heightened scrutiny' in such a way that it's little better than rational basis". That is what the opinion as a whole says.

[hoffmang]

What does "strict scrutiny" really mean? The opinion lays that out right in front of us, and it is not good for us!

The Nordyke court did not apply strict scrutiny. It cites cases that do when the infringement is of the core. Those cases apply real strict scrutiny.

The difference between Nordyke and Ezell is that the Ezell panel believes that the enabling of self defense is inside the core of the right where the Nordyke panel thinks that those things that are not self defense are not in the core of the right and thus subject to strict or heightened scrutiny. You are confusing the breadth of the types of infringements subject to strict scrutiny with strict scrutiny itself. We all agree Nordyke is too narrow in the breadth that it would apply strict scrutiny, but what you keep ignoring is that there is a core that even Nordyke says is subject to real, honest, strict scrutiny. That core includes armed self defense on Alameda's fairgrounds which I'm sure your missing to believe your point.

Pictures:


I'm done trying to get you to see past your initial take to what the panel actually said. If I'm wrong, then you have to explain the difference between the majority and the concurrence because Gould was trying to duck strict scrutiny basically everywhere.

-Gene

[kcbrown]

The Nordyke court did not apply strict scrutiny. It cites cases that do when the infringement is of the core. Those cases apply real strict scrutiny.

Those cases may apply real strict scrutiny, but it doesn't follow that doing so is what the Ninth Circuit intends for 2A cases. You are assuming the Ninth Circuit is not attempting some sleight of hand here.

If you believe they will apply real strict scrutiny and not the one they outlined, then answer this very simple question: why did the Ninth Circuit in Nordyke bother to outline the approach to strict scrutiny that they did?

Do you think they were merely pontificating? That they were simply writing that down for fun?

No. Like I said, you can choose to ignore the dicta, but if you do so, you can no longer legitimately criticize others (including other courts) for ignoring Heller dicta.

The difference between Nordyke and Ezell is that the Ezell panel believes that the enabling of self defense is inside the core of the right where the Nordyke panel thinks that those things that are not self defense are not in the core of the right and thus subject to strict or heightened scrutiny. You are confusing the breadth of the types of infringements subject to strict scrutiny with strict scrutiny itself.

No I am not. I most certainly get that when heightened scrutiny is to be applied is very different from how it is to be applied, and that this court's view of when it is to be applied differs from that of other circuit courts. Please don't assume I'm an idiot.

What I'm saying is that the "strict scrutiny" the court will apply is not the one we want. They will assume the compelling interest on the part of the government, and they will also assume that the law is narrowly tailored, because they have said as much.

We all agree Nordyke is too narrow in the breadth that it would apply strict scrutiny, but what you keep ignoring is that there is a core that even Nordyke says is subject to real, honest, strict scrutiny. That core includes armed self defense on Alameda's fairgrounds which I'm sure your missing to believe your point.

Then please explain exactly what the Ninth Circuit was doing when it said that gun regulations are automatically assumed to both satisfy a compelling government interest and to be narrowly tailored.

They did not say that just for the fun of it.

If I'm wrong, then you have to explain the difference between the majority and the concurrence because Gould was trying to duck strict scrutiny basically everywhere.

I'll have to go back and look, but I should note that concurring opinions do not carry the same weight as majority opinions, and Gould may have had strategic reasons for his approach that the others in the panel believed were not of much concern.

[navyinrwanda]

Ignoratio elenchi.

Too many words have already been wasted on tiered scrutiny in lower court briefs and opinions. The Supreme Court has attempted to fashion Second Amendment doctrine without getting stuck in this briar patch. Anyone who wants them to go there should have their head examined.

[kcbrown]

Ignoratio elenchi.

Too many words have already been wasted on tiered scrutiny in lower court briefs and opinions. The Supreme Court has attempted to fashion Second Amendment doctrine without getting stuck in this briar patch. Anyone who wants them to go there should have their head examined.

Exactly.

The main error of the 9th Circuit isn't the bit about strict scrutiny, it's that they claim that laws which "substantially burden" the right are subject to "heightened scrutiny" when Heller said they're to be regarded as immediately Unconstitutional.