9th Circuit says Mag Capacity Restrictions Unconstitutional

[wjackcooper]

The problem is not the intermediate scrutiny standard itself. The problem is how the plaintiffs argue the case. The government usually uses correlations that are not backed up by causation. Instead of arguing that the government is using speculative evidence, which is allowed under rational basis, the plaintiffs dispute the evidence with other evidence. This causes the court to perceive the problem as a policy dispute between two valid issues. SCOTUS has already acknowledged that the legislature is entitled to deference in these issues and defers to the legislature's choices in these cases. This ensures defeat because the law is against us.

No deference should be afforded the legislature because these cases are not policy issues, they are constitutional ones.

If there is relevant, authoritative, or credible support for your assertions, links and quotes would be appreciated.

Regards
Jack

 

[jcutonilli]

If there is relevant, authoritative, or credible support for your assertions, links and quotes would be appreciated.

Regards
Jack

See Turner or Turner II for deference referenced in many 2A cases

In matters of policy, the role of the court is to ensure that the legislature has “drawn reasonable inferences based on substantial evidence,” Turner II 520 U.S. at 195 quoting Turner 512 U.S. at 666.

Rational Basis allows speculation

Without these reasonable inferences based on substantial evidence, the intermediate scrutiny standard evaluated under Turner devolves to rational basis, a lower standard. This is because rational basis does not require substantial evidence; instead, it can be based on "rational speculation unsupported by evidence or empirical data." FCC v. Beach Communications, Inc. 508 U.S. 307, 315 (1993)

Why no deference should be afforded in matters of law.

"‘The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.’ Marbury v. Madison, 1 Cranch 137, 176, 2 L.Ed. 60 (1803). Our respect for Congress's policy judgments thus can never extend so far as to disavow restraints on federal power that the Constitution carefully constructed. ‘The peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional.’ Chief Justice John Marshall, A Friend of the Constitution No. V, Alexandria Gazette, July 5, 1819, in John Marshall's Defense of McCulloch v. Maryland 190–191 (G. Gunther ed. 1969). And there can be no question that it is the responsibility of this Court to enforce the limits on federal power by striking down acts of Congress that transgress those limits. Marbury v. Madison, supra, at 175–176.” Nat'l Fed'n of Indep. Bus. v. Sebelius 567 U.S. 519, 538 (2012)

 

[wjackcooper]

See Turner or Turner II for deference referenced in many 2A cases

In matters of policy, the role of the court is to ensure that the legislature has “drawn reasonable inferences based on substantial evidence,” Turner II 520 U.S. at 195 quoting Turner 512 U.S. at 666.

Rational Basis allows speculation

Without these reasonable inferences based on substantial evidence, the intermediate scrutiny standard evaluated under Turner devolves to rational basis, a lower standard. This is because rational basis does not require substantial evidence; instead, it can be based on "rational speculation unsupported by evidence or empirical data." FCC v. Beach Communications, Inc. 508 U.S. 307, 315 (1993)

Why no deference should be afforded in matters of law.

"‘The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.’ Marbury v. Madison, 1 Cranch 137, 176, 2 L.Ed. 60 (1803). Our respect for Congress's policy judgments thus can never extend so far as to disavow restraints on federal power that the Constitution carefully constructed. ‘The peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional.’ Chief Justice John Marshall, A Friend of the Constitution No. V, Alexandria Gazette, July 5, 1819, in John Marshall's Defense of McCulloch v. Maryland 190–191 (G. Gunther ed. 1969). And there can be no question that it is the responsibility of this Court to enforce the limits on federal power by striking down acts of Congress that transgress those limits. Marbury v. Madison, supra, at 175–176.” Nat'l Fed'n of Indep. Bus. v. Sebelius 567 U.S. 519, 538 (2012)

None of the referenced material offers more than indirect generalities which are not helpful when looking for the specific ramifications of the SC’s rejection of interest – balancing in the Heller/McDonald decisions.

Interest-balancing * (here the of weighing public safety v. the right to keep and bear arms using intermediate scrutiny) is plainly precluded by Heller/McDonald.

I guess we can only agree to disagree.

Regards
Jack

*https://www.law.cornell.edu/wex/balancing_test A subjective test with which a court weighs competing interests, e.g. between an inmate's liberty interest and the government's interest in public safety, to decide which interest prevails.

 

[pcfixer]

See Turner or Turner II for deference referenced in many 2A cases okay.

In matters of policy, the role of the court is to ensure that the legislature has “drawn reasonable inferences based on substantial evidence,” Turner II 520 U.S. at 195 quoting Turner 512 U.S. at 666.

Rational Basis allows speculation

Without these reasonable inferences based on substantial evidence, the intermediate scrutiny standard evaluated under Turner devolves to rational basis, a lower standard. This is because rational basis does not require substantial evidence; instead, it can be based on "rational speculation unsupported by evidence or empirical data." FCC v. Beach Communications, Inc. 508 U.S. 307, 315 (1993)

Why no deference should be afforded in matters of law.

"‘The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written.’ Marbury v. Madison, 1 Cranch 137, 176, 2 L.Ed. 60 (1803). Our respect for Congress's policy judgments thus can never extend so far as to disavow restraints on federal power that the Constitution carefully constructed. ‘The peculiar circumstances of the moment may render a measure more or less wise, but cannot render it more or less constitutional.’ Chief Justice John Marshall, A Friend of the Constitution No. V, Alexandria Gazette, July 5, 1819, in John Marshall's Defense of McCulloch v. Maryland 190–191 (G. Gunther ed. 1969). And there can be no question that it is the responsibility of this Court to enforce the limits on federal power by striking down acts of Congress that transgress those limits. Marbury v. Madison, supra, at 175–176.” Nat'l Fed'n of Indep. Bus. v. Sebelius 567 U.S. 519, 538 (2012)

From Turner v Safley 482 U.S. 78 (1987) NOT sure how to find Turner II. Help with that please.
Held:

1. The lower courts erred in ruling that Procunier v. Martinez, 416 U. S. 396, and its progeny require the application of a strict scrutiny standard of review for resolving respondents' constitutional complaints. Rather, those cases indicate that a lesser standard is appropriate whereby inquiry is made into whether a prison regulation that impinges on inmates' constitutional rights is "reasonably related" to legitimate penological interests.
In determining reasonableness, relevant factors include

(a) whether there is a "valid, rational connection" between the regulation and a legitimate and neutral governmental interest put forward to justify it, which connection cannot be so remote as to render the regulation arbitrary or irrational;
(b) whether there are alternative means of exercising the aserted constitutional right that remain open to inmates, which alternatives, if they exist, will require a measure of judicial deference to the corrections officials' expertise;
(c) whether and the extent to which accommodation of the assserted right will have an impact on prison staff, on inmates' liberty, and on the allocation of limited prison resources, which impact, if substantial, will require particular deference to corrections officials; and
(d) whether the regulation represents an "exaggerated response" to prison concerns, the existence of a ready alternative that fully accommodates the prisoner's rights at de minimis

If I understand correctly this case explains relevant factors of "reasonably related" or the No Deference.

 

[pcfixer]

See Turner or Turner II for deference referenced in many 2A cases okay.

posted error

 

[Boats]

stand back, boys....these lawyers is fightin'...if ya get too close you might get a tongue lashin' like you ain't never did have.

Skip to the end when our elected officials start realizing that "shall not be infringed" is. not. debatable.

sigh...I wish.

Instead we get a war of attrition based on case law which is tiresome to sift through, basically a bunch of legal nerds trying to out nerd each other with who knows the more obscure ruling that will either vindicate or villify what the founding fathers already stated:

"The right of the people to keep and bear arms, shall not be infringed."

 

[babalou]

lol

stand back, boys....these lawyers is fightin'...

Skip to the end when our elected officials start realizing that "shall not be infringed" is. not. debatable.

sigh...I wish.

Instead we get a war of attrition based on case law which is tiresome to sift through, basically a bunch of legal nerds trying to out nerd each other with who knows the more obscure ruling that will either vindicate or villify what the founding fathers already stated:

The right of the people to keep and bear arms, shall not be infringed.

where is that Wile E. Coyote Avatar guy?

 

[RoadDawg]

stand back, boys....these lawyers is fightin'...if ya get too close you might get a tongue lashin' like you ain't never did have.

Skip to the end when our elected officials start realizing that "shall not be infringed" is. not. debatable.

sigh...I wish.

Instead we get a war of attrition based on case law which is tiresome to sift through, basically a bunch of legal nerds trying to out nerd each other with who knows the more obscure ruling that will either vindicate or villify what the founding fathers already stated:

"The right of the people to keep and bear arms, shall not be infringed."

The truth never gets old.

And the only “interests” this case should consider... is the US citizen’s interest as it applies to the strict adherence to the rights provided to said US citizen within the plain language of the COTUS 2A.

 

[pcfixer]

https://michellawyers.com/wp-content/uploads/2020/08/2020-08-28-Petition-for-Rehearing-En-Banc.pdf

9th Circuit Petition for Enbanc

Before: Consuelo M. Callahan and Kenneth K. Lee,
Circuit Judges, and Barbara M. G. Lynn,* District Judge.
Opinion by Judge Lee;
Dissent by Judge Lynn

 

[wjackcooper]

stand back, boys....these lawyers is fightin'...if ya get too close you might get a tongue lashin' like you ain't never did have.

Skip to the end when our elected officials start realizing that "shall not be infringed" is. not. debatable.

sigh...I wish.

Instead we get a war of attrition based on case law which is tiresome to sift through, basically a bunch of legal nerds trying to out nerd each other with who knows the more obscure ruling that will either vindicate or villify what the founding fathers already stated:

"The right of the people to keep and bear arms, shall not be infringed."

Nailed it!

Thanks

Regards
Jack

 

[pcfixer]

GOA https://gunowners.org/goa-gof-sue-atf-after-alabama-nics-exemption-reversal/


The GOA/GOF suit explains the legal problems with the ATF’s position: “Federal law – not ATF — explicitly exempts those with Alabama concealed carry permits from the NICS requirement. Alabama law clearly qualifies for the federal exemption, and the existence of one or two bad apples does not give ATF a blank check to start revoking states’ CCP exemptions.”

Erich Pratt, Senior Vice President of GOA and GOF, stated, “This is an example of the dangers of requiring government preclearance to exercise God-given rights. When the ability to purchase a firearm is left up to the whims of unelected bureaucrats, our rights are no longer rights — but mere privileges.”

I've read somewhere that GOA would like to have nation NICS eliminated. "Praying for that".

What ever happened to the FIx NICS act?

 

[adit]

where is that Wile E. Coyote Avatar guy?

I could be wrong but I though that was pcfixer at some point. pc?

 

[babalou]

I dunno

I could be wrong but I though that was pcfixer at some point. pc?

I believe the guy did not have as many posts as pc. I could be wrong. The guy add Jc would go at it for pages and pages siting things. Very interesting reads.

 

[jcutonilli]

None of the referenced material offers more than indirect generalities which are not helpful when looking for the specific ramifications of the SC’s rejection of interest – balancing in the Heller/McDonald decisions.

Interest-balancing * (here the of weighing public safety v. the right to keep and bear arms using intermediate scrutiny) is plainly precluded by Heller/McDonald.

I guess we can only agree to disagree.

Regards
Jack

*https://www.law.cornell.edu/wex/balancing_test A subjective test with which a court weighs competing interests, e.g. between an inmate's liberty interest and the government's interest in public safety, to decide which interest prevails.

I am not sure why you believe it is plainly precluded by Heller/McDonald.

Justice Breyer moves on to make a broad jurisprudential point: He criticizes us for declining to establish a level of scrutiny for evaluating Second Amendment restrictions. He proposes, explicitly at least, none of the traditionally expressed levels (strict scrutiny, intermediate scrutiny, rational basis), but rather a judge-empowering “interest-balancing inquiry” that “asks whether the statute burdens a protected interest in a way or to an extent that is out of proportion to the statute’s salutary effects upon other important governmental interests.” Post, at 10. After an exhaustive discussion of the arguments for and against gun control, Justice Breyer arrives at his interest-balanced answer: because handgun violence is a problem, because the law is limited to an urban area, and because there were somewhat similar restrictions in the founding period (a false proposition that we have already discussed), the interest-balancing inquiry results in the constitutionality of the handgun ban. QED.

We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding “interest-balancing” approach. 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. We would not apply an “interest-balancing” approach to the prohibition of a peaceful neo-Nazi march through Skokie. See National Socialist Party of America v. Skokie, 432 U. S. 43 (1977) (per curiam). The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views. The Second Amendment is no different. Like the First, it is the very product of an interest-balancing by the people—which Justice Breyer would now conduct for them anew. And whatever else it leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.

The "interest-balancing" approach proposed by Breyer is plainly precluded, but I see nowhere where they say intermediate scrutiny is precluded. They also say that

Under any of the standards of scrutiny that we have applied to enumerated constitutional rights,[Footnote 27] banning from the home “the most preferred firearm in the nation to ‘keep’ and use for protection of one’s home and family,” 478 F. 3d, at 400, would fail constitutional muster.

The footnote clarifies this to mean strict scrutiny and intermediate scrutiny, but not rational basis. The first amendment is routinely judged with strict and intermediate scrutiny.

Where does is actually say the of weighing public safety v. the right to keep and bear arms using intermediate scrutiny is plainly precluded

 

[jcutonilli]

From Turner v Safley 482 U.S. 78 (1987) NOT sure how to find Turner II. Help with that please.
Held:

1. The lower courts erred in ruling that Procunier v. Martinez, 416 U. S. 396, and its progeny require the application of a strict scrutiny standard of review for resolving respondents' constitutional complaints. Rather, those cases indicate that a lesser standard is appropriate whereby inquiry is made into whether a prison regulation that impinges on inmates' constitutional rights is "reasonably related" to legitimate penological interests.
In determining reasonableness, relevant factors include

(a) whether there is a "valid, rational connection" between the regulation and a legitimate and neutral governmental interest put forward to justify it, which connection cannot be so remote as to render the regulation arbitrary or irrational;
(b) whether there are alternative means of exercising the aserted constitutional right that remain open to inmates, which alternatives, if they exist, will require a measure of judicial deference to the corrections officials' expertise;
(c) whether and the extent to which accommodation of the assserted right will have an impact on prison staff, on inmates' liberty, and on the allocation of limited prison resources, which impact, if substantial, will require particular deference to corrections officials; and
(d) whether the regulation represents an "exaggerated response" to prison concerns, the existence of a ready alternative that fully accommodates the prisoner's rights at de minimis

If I understand correctly this case explains relevant factors of "reasonably related" or the No Deference.

Turner is Turner Broadcasting System, Inc. v. FCC, 512 U.S. 622 (1994)
Turner II is Turner Broadcasting System, Inc. v. FCC, 520 U.S. 180 (1997)

 

[jcutonilli]

where is that Wile E. Coyote Avatar guy?

I believe you are referring to kcbrown

 

[Applehd]

I believe you are referring to kcbrown

Beat me to it...

 

[Steel Hunter]

I feel like this is relevant. Brownells has ponied up $50,000 towards the fight in winning this case. https://www.thetruthaboutguns.com/b...-to-crpa-for-california-magazine-limit-fight/

 

[babalou]

ding ding ding

I believe you are referring to kcbrown

winner winner chicken dinner. He would get in arguments with you, Wolfwood, etc. Actually I liked the back and forth. Like watching 4D chess in a 2D world.

 

[Applehd]

winner winner chicken dinner. He would get in arguments with you, Wolfwood, etc. Actually I liked the back and forth. Like watching 4D chess in a 2D world.

He's still around...