kcbrown
Super Genius
- Jun 16, 2012
- 1,393
There is a way to know in advance whether or not a given challenge will be done so correctly. It is called look at other cases.
If that were true then there wouldn't be a statistical variation in the decision on the basis of nominating party. But there is. Because there is, that means that who hears your case will have a major impact on the outcome. And because one cannot know in advance who will be hearing your case, past cases are not a 100% predictor of future success and, therefore, there is no way to be 100% certain prior to filing the case whether or not one will succeed in the challenge to the law.
Look at Peruta for example. The plaintiffs won at the 3-judge panel level. But that was overturned by the en banc panel, thus turning a win into a loss. There is no better example of the arbitrariness of the outcome than that, when everything remains the same save for those who are making the decision.
And in any case, some case has to be first, and that first case will have no prior cases to reference to begin with.
And finally, if it were that simple, then don't you think that competent counsel would have figured that out and done precisely that? After all, why should this principle you espouse be one that is limited to the 2A arena? Constitutional law litigation has been going on ever since the Constitution was ratified, so it's not like there isn't centuries of experience on this. And yet, somehow, we're to believe that plaintiffs' counsel have somehow forgotten all of the lessons of past Constitutional litigation?
A number of people argue that the Constitution is based on the common law. The constitution certainly does not spell out in detail what everything means. Our legal history is based on the common law that fills in the details. Do you believe the 1A only applies to congress, because that is what the text says.
And prior to the 14th Amendment, that's what the text meant.
Again, it doesn't matter that the Constitution is based on common law. It's the Constitution, not common law, that is the supreme law of the land. You can't legitimately use something other than the original intended meaning of Constitution itself as the litmus test for correctness of a decision about the Constitution. Nothing legitimately overrides the Constitution. That's what it means for the Constitution to be the supreme law of the land.
I certainly have read cases involving the 1A and the 4A, where public safety is used to restrict those rights in certain circumstances. I can't say that I have read every single one.
I have a suspicion that you haven't read every single one. And it certainly wouldn't be reasonable to expect you to.
If the plaintiffs want to challenge the evidence via causation, then they need to challenge the evidence directly. They have not challenged the evidence directly.
They did challenge it directly! That's my point: stating that the evidence the government uses is invalid, and providing correct data, is a direct challenge!
What wording in the briefs makes you believe that it's not a direct challenge? Please supply that wording so I can see exactly where you're coming from here.
If the government does not supply valid evidence then the law will not pass scrutiny.
Yeah, well, it did pass scrutiny. So we know from experience that this is incorrect.