jcutonilli
Ultimate Member
- Mar 28, 2013
- 2,474
not really. Just dicta.
Really. They were the holdings of the cases cited. Not just dicta.
not really. Just dicta.
The 5 carry cases before the court are from states where they do not distinguish between open and concealed carry so the court will not need to either.
To bear arms one must carry them. Once that is accepted, how becomes the issue. Let that up to the states. It’s really not that difficult. Why can’t the legal whiz kids see it?
The problem is a combination of existing precedent and the arguments that are presented.
Courts tend to stick with precedent even if it is wrong on the assumption that it provides consistency. Precedent can be overcome but it is difficult.
The lower courts have argued that they are simply following court precedent. The problem with the arguments is that they do not really help the court to understand what really needs to be changed.
Peruta never really challenged why concealed carry was wrong. They argued that since open carry was banned the court should allow concealed carry. The court came back and said concealed carry is not part of the right.
The KY clerk was not jailed because they did not issue marriage licences, they were jailed because they defied a court order.
To bear arms one must carry them. Once that is accepted, how becomes the issue. Let that up to the states. It’s really not that difficult. Why can’t the legal whiz kids see it?
There is NOBODY who can’t see it. But there are a lot of people who don’t like it. Enough of them and deeply enough that they’re willing to put some states in the circumcstances we’re in and consider doing so a virtue (for which they are rewarded by most of the media/celebrity industrial complex).
What precedent?
The problem is that they have acknowledged that no right is absolute. Public safety is one of those reasons that the court has accepted as a reason to curtail rights.
The federal government is not typically the one that is infringing on the right. State and local government are the predominate defendants in most 2A cases.
It does not really matter what you or I think about the issue. The court makes the ultimate determination and they real issue is how do you convince them otherwise. They have not accepted the arguments made to date.
Please stop with your belief that the case wasn’t argued correctly. You say that about almost EVERY gun case. The fact that the courts have accepted the “public safety” BS as an excuse to curtail or even deny the peoples rights is atrocious behavior on the part of the courts as well as local, state, and federal government.
Sent from my iPhone using Tapatalk
How do you propose getting the court to change their decisions? Simply telling me to shut up is not going to get the courts to change their decisions.It does not really matter what you or I think about the issue. The court makes the ultimate determination and the real issue is how do you convince them otherwise. They have not accepted the arguments made to date.
The lower courts argue they are following Heller and a number of other precedents.
While Heller does not specifically address the appropriate level of scrutiny, it appears to suggest that you can get the same answer with intermediate scrutiny. The lower courts have used that ambiguity to define the standard as intermediate scrutiny. Heller does not detail its use of intermediate scrutiny nor does it define how to use it. This is where other precedents are used.
The real problem is figuring out where the errors are so they can be corrected. Most of the plaintiffs including this one have argued that strict scrutiny should be used.
But they are essentially making a new precedent which has no backing anywhere else.
Let's take public carry for instance. When the first carry cases were filed in district courts after Heller, they said the right was home-bound and Heller was limited to its facts only. Then, the circuits realize this isn't going to pass so they come up with a standard that as long as someone who "needs" it can carry, then that passes "intermediate" scrutiny.
No other right has been subjected to and upheld under a "need" standard that I'm aware of. This is 100% a creation of our circuit courts.
The last sentence (ignoring its context in the entire paragraph) is the tool must often used by progressive judges to confine the 2A. to the home, shift the argument to safety v. keep and bear, then use intermediate scrutiny to find a balance that does not favor the 2A and no, the weight of the evidence (i.e., what the studies show) nor who is responsible for safety will determine the result. Before progressive and some “conservative” decision makers “bear” gets out weighed almost every time interest – balancing (safety v. 2A) comes into play.
Regards
Jack
How do you propose getting the court to change their decisions?
In 1973 the Court found abortion to be a new Constitutional right. It was created out of whole cloth. If there is any doubt, J. Douglas used the novel phrase "penumbras, formed by emanations" to support the new right, and the majority accepted it. What action would not be constitutional if dressed in such specious terms?
There has never been such enthusiasm for the 2nd Amendment, an enumerated right. It is thus impossible to credibly assert that the Supreme Court is politically neutral.
The Court was, is, and always will be a cabal whose purpose is to justify the majority's political ends. The only way to change their decisions is to change the Court, to "our" cabal from "their" cabal. I like to think that is happening. If Trump (a) remains in office and (b) continues his judicial appointments we might, over the next five years, begin our turn at four or five decades in the sun.
Thus it seems to me.
CAETANO v. MASSACHUSETTS
on petition for writ of certiorari to the supreme judicial court of massachusetts
No. 14–10078. Decided March 21, 2016
Caetano v. Massachusetts, 577 U.S.
Per Curiam.
The Court has held that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” District of Columbia v. Heller, 554 U. S. 570, 582 (2008) , and that this “ Second Amendment right is fully applicable to the States,” McDonald v. Chicago, 561 U. S. 742, 750 (2010) .
In this case, the Supreme Judicial Court of Massachusetts upheld a Massachusetts law prohibiting the possession of stun guns after examining “whether a stun gun is the type of weapon contemplated by Congress in 1789 as being protected by the Second Amendment.” 470 Mass. 774, 777, 26 N. E. 3d 688, 691 (2015).
So. Why doesn't this extent to semi auto rifles know as AR's and 20/30 round magazines?
jcutonilli wrote: “What is needed is better arguments.”
Why the S.C. has not previously intervened (excepting Caetano) could be because Kennedy may have been reluctant to restrain the judicial interest balancing via intermediate scrutiny test being used by progressive Judges in the lower courts, or perhaps Roberts developed cold feet, or both.
In any event, petitions for cert (prepared by the most experienced, skilled 2A litigators in the country, including Alan Gura, Paul Clement, & Stephen Halbrook, supported by the numerous able lawyers among the amici curiae brief writers) to date have been denied. So during hundreds of hours of research, study, conferencing, brief writing, & many court appearances the many lawyers in the arena for the 2A, and their many supporters all remained completely oblivious to the “better arguments” which were “needed.”
Thanks for pointing this out.
Wow!
Regards
Jack
petitions for cert (prepared by the most experienced, skilled 2A litigators in the country, including Alan Gura, Paul Clement, & Stephen Halbrook, supported by the numerous able lawyers among the amici curiae brief writers)
If this kind of showing satisfies heightened scrutiny, then this Court did not mean what it said in Heller. And if that is truly the case, the word that Heller and McDonald amount to no more than rational basis or apply to nothing beyond flat bans should come from this Court
CAETANO v. MASSACHUSETTS
on petition for writ of certiorari to the supreme judicial court of massachusetts
No. 14–10078. Decided March 21, 2016
Caetano v. Massachusetts, 577 U.S.
Per Curiam.
The Court has held that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” District of Columbia v. Heller, 554 U. S. 570, 582 (2008) , and that this “ Second Amendment right is fully applicable to the States,” McDonald v. Chicago, 561 U. S. 742, 750 (2010) .
In this case, the Supreme Judicial Court of Massachusetts upheld a Massachusetts law prohibiting the possession of stun guns after examining “whether a stun gun is the type of weapon contemplated by Congress in 1789 as being protected by the Second Amendment.” 470 Mass. 774, 777, 26 N. E. 3d 688, 691 (2015).
So. Why doesn't this extent to semi auto rifles know as AR's and 20/30 round magazines?