Fed Court upholds MD AW ban - Kolbe v. O'Malley

[rootuser]

There is way more to these types of cases than the simple "in common use."

The order of restoring 2A is: (1) keep, (2) bear and (3) arms.

Note that "let's ban private firearms" boat has sailed, so we are in the final stages of (1).

We received a brilliant ruling in Peruta on (2) earlier this year, and already we see it incorporated into Palmer just a few weeks ago. This battle is in full swing and we are approaching the final stretch.

The "arms" litigation is in its infancy. The twisting of "dangerous and unusual" or "in common use" can only go so far before there is a case that addresses the *totality* of those arguments for what they are - a simple prohibition.

Interstingly, I'd expect the attack on AWB to come from less expected places, such as our own Pena case which is attacking roster. In this case, we have a prohibition on sale, but not possession, so safety and "for the children" is very hard to defend. As a side effect, it will have to address a "ban on class of weapons" which will be useful when addressing AWB.

Again, we are just starting with "arms" and what it means. The Democratic National Platform calls for ban of certain types of "arms," but they've abandoned ban or control of handguns. This also confirms that we're down to the last battle which is the definition of "arms."




Two comments: (1) Refusal to hear a case is not an endorsement, even though the net effect is that a law might remain standing; (2) There was a split with Drake, but neither the question nor the timing was right.

The court must first address a very narrow question of "whether the right to carry a functional firearm for self-defense in public exists."

To answer such a narrow question, the court needs either Peruta (which broadened the question of CCW into "overall right to carry,") or Palmer (which is addressing a *complete* ban on carry; it happens to cite Peruta quite a bit too.) Addressing what kind of permits might be required when the basic right hasn't been confirmed yet is premature.

I am referring to only O'Malley. That case in particular is boiling down to "in common use" which with a split or not I don't think the court will take up.

I 100% agree with you that "keep" is what is in play here, but in THIS case, I don't see much of prayer of a SCOTUS decision, split or not. Now if you expand to say there are more cases, yes, MAYBE one will reach SCOTUS but again, I doubt any time soon. I still believe they are trying to let the dust settle from Heller. Just my opinion of course.

I understand refusal to hear a case doesn't mean anything at all. What I was attempting to illustrate is that a "Split" doesn't mean a darn thing by itself. They can easily refuse to hear a case, split or not and most often do refuse. Split is one thing the court likes to resolve, but it is not the only thing that gets them to hear a case.

I think this case, O'Malley, was poorly argued and will not get us anywhere. I hope to be wrong, but the other two cases you brought up, Peruta and Palmer are quickly getting joined at the hip just about. We are more likely to see SCOTUS take on one of those types of cases some millennium. The best part about cases like Peruta is if the circuit rules one way, then uses en banc to rule another that may help the cause to argue in front of SCOTUS because, while that isn't a "Split" it really kinda is if you catch my drift

[kcbrown]

Circuit splits undermine the court itself.

The distribution of accepted cases is far from uniform - different cases have significantly different probabilities of being taken. The "split cases" on fundamental constitutional issue will have to be resolved by the SCOTUS one way or another.

"Have to" be resolved. Or else what?

[rootuser]

"Have to" be resolved. Or else what?

Or else nothing, that was my entire point. The SCOTUS doesn't have to do a damn thing, split or not. We are putting too much faith in a split as to what will get us to SCOTUS and that is just an illusion. It takes a lot more than that.

[kcbrown]

Or else nothing, that was my entire point. The SCOTUS doesn't have to do a damn thing, split or not. We are putting too much faith in a split as to what will get us to SCOTUS and that is just an illusion. It takes a lot more than that.

Or it doesn't take even that.

I expect it's purely a matter of politics on the Court intersecting with the personal interests of the individual judges. Nothing more. If the case looks sufficiently interesting to enough of them, they'll take it. Otherwise, they won't. I'd bet not a single one of the judges on the Supreme Court feels any real need to take any given case except for personal or internal political reasons.

After all, they answer to absolutely nobody, and the only people who can possibly have any effect on anything they might care about are sitting on the same court with them. Why, then, should they take cases except upon their personal whims or for political maneuvering that is for the ultimate purpose of satisfying their personal whims? What incentive could they possibly have beyond that?

[rootuser]

Or it doesn't take even that.

I expect it's purely a matter of politics on the Court intersecting with the personal interests of the individual judges. Nothing more. If the case looks sufficiently interesting to enough of them, they'll take it. Otherwise, they won't. I'd bet not a single one of the judges on the Supreme Court feels any real need to take any given case except for personal or internal political reasons.

After all, they answer to absolutely nobody, and the only people who can possibly have any effect on anything they might care about are sitting on the same court with them. Why, then, should they take cases except upon their personal whims or for political maneuvering that is for the ultimate purpose of satisfying their personal whims? What incentive could they possibly have beyond that?

Is that how you would perform on the court? To your personal whims, politics and self interests?

[kcbrown]

Is that how you would perform on the court? To your personal whims, politics and self interests?

How I would? No. But then, I am not someone who craves the power to sit in judgment over others and to see the power of the government wielded against them; and I am not so conceited as to believe that I could do a better job of that than most others. And so, that job is not one I would take unless it were forced upon me.

[rootuser]

How I would? No. But then, I am not someone who craves the power to sit in judgment over others.

I am not sure all the justices fall in to that category (probably some do). I think it is presumptuous to assume the justices just do whatever they'd like taking nothing else into consideration besides their own feelings, whims etc.

I certainly think I could look at the facts of a case and make a decision based on the constitution, case law, and general jurisprudence despite my own fancy of the day, however, I have no desire to be a judge either.

The Heller decision for example didn't seem like a whim at all. It seemed completely thought out, including its curbs and balances to not go too far. I don't agree with every decision of the SCOTUS but none the less, it's what we got and we have to live with it.

I am not sure who I would want the Supreme Court to report to because I think that would make it much more dangerous of an entity than it already is. Maybe some check like a 16 year term limit or something might be in order, but I don't want the court to constantly be changing and deciding on only issues of the day without some perspective.

As for them taking on an 2A splits any time soon, I still don't see it.

[kcbrown]

I am not sure all the justices fall in to that category (probably some do). I think it is presumptuous to assume the justices just do whatever they'd like taking nothing else into consideration besides their own feelings, whims etc.

You don't need to presume such a thing. Just look at the decisions to see such a thing in action.

Look at Breyer's dissent in Heller, for one excellent example. Look at Kelo. Look at the majority decision in NLRB v Noel Canning.


Yes, there are some judges who ground their decisions in the Constitutional foundation. But they are rare, and even more rare is to see them consistently refuse to interject their own personal opinions into the mix.


Were that not the case, jurisprudence would have a much stronger resemblance to the Constitution, and bastardizations of it (e.g., Slaughterhouse, Carolene Products, etc.) would be footnotes of history instead of primary jurisprudence.

The Heller decision for example didn't seem like a whim at all. It seemed completely thought out, including its curbs and balances to not go too far. I don't agree with every decision of the SCOTUS but none the less, it's what we got and we have to live with it.

Of course. Nevertheless, what we have and what we have to live with is precisely because we are dealing with the end result of a large number of people who craved the power to sit in judgment over others and to wield that power to achieve their own personal vision.

I am not sure who I would want the Supreme Court to report to because I think that would make it much more dangerous of an entity than it already is. Maybe some check like a 16 year term limit or something might be in order, but I don't want the court to constantly be changing and deciding on only issues of the day without some perspective.

I would want the Supreme Court to ultimately answer to the people. More precisely, to the liberty of the people. That's why my view is that the people should be able to overturn, through a minority vote, any SCOTUS decision that upholds a law or regulation of the people, and the justices who upheld such a law should be held accountable for their decision -- upholding such laws should increase the danger to them of being kicked off the bench.

As for them taking on an 2A splits any time soon, I still don't see it.

Neither do I. I think they're done with the 2nd Amendment. It will be the first time that I'm aware of that SCOTUS has refused to back a newly-recognized right. But their behavior at this point already appears to diverge from that of the past.