3rd Circuit Appeals - Upholds LCM Ban

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  • jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    The situation I was presenting was an hypothetical one for the purpose of asking the question: is the judge merely someone who decides solely on the basis of the arguments presented to him, or is the judge also constrained by the court system's current interpretation of the Constitution and by the judicial precedent that has already been set?

    Your argument suggests that it is the former, that the judge would contradict precedent if presented with a set of arguments that conflicted with current precedent, even when those arguments do not show current precedent to be Unconstitutional.

    You already cited current precedent as to a requirement of intermediate scrutiny. While the definition of intermediate scrutiny might not contain that requirement, current precedent most certainly does. Is or is not the court constrained by current precedent, except where arguments show such precedent to be Unconstitutional?

    The court does both, they are generally limited to the arguments presented and by precedent.

    They certainly do validate that the various elements of the precedent are present.

    It is not always clear what is really needed to meet these various elements of precedent.

    I disagree. SCOTUS' main job is, and must be, to ensure that the court system and the rest of the government is consistently Constitutional. Their primary means of doing that is through point corrections to lower court decisions, because the expectation is that the lower courts will fall in line behind SCOTUS once SCOTUS has rendered a decision and that the lower courts aren't too stupid to apply the resulting precedent properly in later cases.

    Put another way, consistency is worthless without that consistency being in the correct direction. Being consistently wrong is still wrong no matter how you slice it, and one could argue that being consistently wrong is worse than randomly being wrong.

    As such, the above clearly means that SCOTUS' job is not merely to ensure consistency, but rather to ensure correct consistency.

    Every case which is decided by the lower judiciary in a way that conflicts with the original intended meaning of the Constitution is a failure of that judiciary, regardless of the reason. The job of SCOTUS is to eliminate those failures, and it is a failure of SCOTUS every time it fails to correct such failures of the lower courts, for in doing so, SCOTUS is intentionally allowing Unconstitutional laws to remain in force. This is worse than a mere mistake, this is intentional. There is no worse travesty than that for a body whose purpose is to uphold the Supreme Law of the Land above all else. SCOTUS is the topmost court. It represents the entire judiciary in its role, and that's that.

    I would say you are providing a clarification rather than a disagreement.

    If the courts interpret conflicting data as a policy choice, what makes you believe that they won't likewise interpret a direct challenge to the government's data as a policy choice as well?

    Sure, it could. But it also could make a legal decision about the validity of the data presented to it by either side, rather than declaring that a policy choice.

    There are many things the court could do. But the question here is why the court would apply the label of "policy choice" to one challenge (the case where different data is presented, with the argument, whether implicit or explicit, that the other data is invalid or less valid) and not to the other challenge (the case where the challenge is to the interpretation of the government's data). The court could just as easily claim that the interpretation of data is a matter of policy and beyond the reach of the court, no? After all, interpretation of data isn't a matter of law, is it?
    Courts typically view subjective public situations where there is no right or wrong answer as a policy choice situation. When you don't challenge the data directly, you are implicitly stating that there really is not something wrong with the data. By introducing competing data, you seem to be framing the problem as one that is subjective and best decided by a legislature.

    Whether something is a correlation or whether it demonstrates causation is not a policy choice. It is something objective that a court can decide.

    That is most certainly a possibility. But at this point, given the sheer number and breadth of cases that have been lain before it, I'm skeptical. If that really is the reason that SCOTUS has refused to take a 2A case, then we can basically expect the lower courts to generally go uncorrected for very nearly every case, due to SCOTUS' paralyzing fear of breaking something else.

    It is for reasons such as this that I argue that SCOTUS' primary duty must be to the Constitution itself, and to ensure that government stays within its bounds. Stare decisis must never override the Constitution's directives, and while the Court's decisions may have an extra-Constitutional impact on society, that problem is for the legislature to deal with. It is not the Court's problem that societal impact can arise from the Court correcting an Unconstitutional law or act -- such impact wouldn't have happened if the government had stayed within the bounds of the Constitution in the first place, which makes any such damage the direct fault of the government itself and not of the Court.

    And if the Court is concerned about the legal repercussions to its own jurisprudence of properly deciding a case, well, it should have properly decided the other cases leading up to it in the first place, and established proper and correct jurisprudence, and then it wouldn't have that problem. Meaning, the Court should properly decide cases and just take its medicine if doing so affects prior jurisprudence.

    I would question how much variability there actually is with respect to the 2A cases. I suspect there is very little variability with respect to 2A cases.

    I think you are misinterpreting what I have said. SCOTUS gets way more cases than they can take. They have lots of choices and can be very picky when it comes to cases it will grant. They are willing to throw away lots of cases because they have lots of cases to choose from. It is more about picking knowns over unknowns.
     

    kcbrown

    Super Genius
    Jun 16, 2012
    1,393
    The court does both, they are generally limited to the arguments presented and by precedent.

    They certainly do validate that the various elements of the precedent are present.

    It is not always clear what is really needed to meet these various elements of precedent.

    The problem comes when the arguments presented contradict precedent. Which wins, precedent or the arguments presented?

    With respect to how intermediate scrutiny has been applied in 2A cases, the answer to that is clear: the arguments presented override precedent. But if that's so, then that nullifies the effect of precedent, except perhaps when precedent is cited by an argument.

    Which is to say, it appears that with respect to the way courts have made decisions involving "intermediate scrutiny" in the 2A sphere, the order of precedence, highest to lowest, is:

    1. Arguments citing precedent
    2. Arguments which do not cite precedent
    3. Precedent itself

    But that ordering means that precedent itself, absent arguments citing it, is null and void!!

    So much, then, for stare decisis.

    You realize the implications of this, right? It means that colluding litigating parties can change precedent simply by having one arguing party raise an argument that fails to cite precedent, and which also contradicts existing precedent, while the other fails to raise a counterargument. The resulting decision will use the supplied argument to make the decision and BAM, you get new precedent that can contradict existing precedent. And if the litigating parties use that strategy all the way to the Supreme Court, then they can get their precedent-contradicting argument established as current (and thus overriding) nationwide precedent.

    This is exactly what has happened with respect to "intermediate scrutiny" in 2A cases, sans the Supreme Court bit. The precedent in the appellate courts is now that the government doesn't have to show causation, only that it has to show correlation. And that means if you were to challenge the data raised by the government now, you'd have to depend on the Supreme Court to rectify the situation because you and the government both have precedent to cite, and the court will use the latest precedent, which is correlation, to decide the issue.


    I would say you are providing a clarification rather than a disagreement.

    That's a fair characterization, of course, but the clarification I provided is crucial, and has implications well beyond the unclarified form.


    Courts typically view subjective public situations where there is no right or wrong answer as a policy choice situation. When you don't challenge the data directly, you are implicitly stating that there really is not something wrong with the data. By introducing competing data, you seem to be framing the problem as one that is subjective and best decided by a legislature.

    Hmm ... that's actually a good way to view it that I hadn't considered. So by challenging the data itself, you're making a correctness case in a way that you wouldn't if you merely supplied conflicting data. So if that's the case, we should be both supplying conflicting data and challenging the government's data (or, at least, the government's insistence that what it is supplying shows causation when it really just shows correlation).


    Whether something is a correlation or whether it demonstrates causation is not a policy choice. It is something objective that a court can decide.

    I agree that in principle it's not a policy choice, but the question is whether or not the court can view it as a policy choice. What prevents it from doing so?


    I would question how much variability there actually is with respect to the 2A cases. I suspect there is very little variability with respect to 2A cases.

    Well, we've had cases involving carry, involving age restrictions, involving magazines, involving ammunition, and a host of other topics. Certainly, the range of topics is wide. Now, I certainly agree that it may be that all of them have been argued using the same legal arguments. I can't say on that (though I would point at Norman v Florida as an example of a case that is very likely to have arguments which differ from the rest). But given the wide range of subjects and circumstances, I'm skeptical that the amount of variation in the arguments is so low that almost none of the cases have given the Supreme Court something worthwhile to consider.


    I think you are misinterpreting what I have said. SCOTUS gets way more cases than they can take. They have lots of choices and can be very picky when it comes to cases it will grant. They are willing to throw away lots of cases because they have lots of cases to choose from. It is more about picking knowns over unknowns.

    That's no excuse. One need only look at the docket of cases the Court has decided to grant cert to in order to see that. Cases such as those involving obscure tax code, as but one example. My argument here isn't that SCOTUS has enough bandwidth to consider every case that comes before it. But it is that it may have enough bandwidth to consider every case involving fundamental Constitutional law errors that come before it, most especially those involving newly-recognized Constitutional protections. At a minimum, I believe the Court is failing to properly prioritize cases, given that the Constitution is the supreme law of the land and thus demands the highest priority.

    Of course, that's a bit of an idealistic view, one that presumes that the justices on the Court are wholly apolitical. The fundamental disagreement in Heller and especially McDonald make it clear that they are anything but. And that being the case, it follows that political considerations will come into play insofar as which cases they will grant cert to, since the outcome clearly matters. It's on that basis, and on that basis alone, that I give the Court a pass as regards the fact that it has not granted cert to so many 2A cases. But if the Court really is apolitical as you seem to suggest, then the Court has no such excuse.
     
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    press1280

    Ultimate Member
    Jun 11, 2010
    7,878
    WV
    The court does both, they are generally limited to the arguments presented and by precedent.

    They certainly do validate that the various elements of the precedent are present.

    It is not always clear what is really needed to meet these various elements of precedent.



    I would say you are providing a clarification rather than a disagreement.


    Courts typically view subjective public situations where there is no right or wrong answer as a policy choice situation. When you don't challenge the data directly, you are implicitly stating that there really is not something wrong with the data. By introducing competing data, you seem to be framing the problem as one that is subjective and best decided by a legislature.

    Whether something is a correlation or whether it demonstrates causation is not a policy choice. It is something objective that a court can decide.



    I would question how much variability there actually is with respect to the 2A cases. I suspect there is very little variability with respect to 2A cases.

    I think you are misinterpreting what I have said. SCOTUS gets way more cases than they can take. They have lots of choices and can be very picky when it comes to cases it will grant. They are willing to throw away lots of cases because they have lots of cases to choose from. It is more about picking knowns over unknowns.

    So anything you saw from NYSRPA that explains why it got cert over all the others?
    It's obviously not over a circuit split, which is one of the main criteria for a grant (but certainly doesn't guarantee it).
     

    pcfixer

    Ultimate Member
    May 24, 2009
    5,948
    Marylandstan
    The court does both, they are generally limited to the arguments presented and by precedent.

    They have lots of choices and can be very picky when it comes to cases it will grant. They are willing to throw away lots of cases because they have lots of cases to choose from. It is more about picking knowns over unknowns.
    Yes.


    kcbrown
    Of course, that's a bit of an idealistic view, one that presumes that the justices on the Court are wholly apolitical. The fundamental disagreement in Heller and especially McDonald make it clear that they are anything but. And that being the case, it follows that political considerations will come into play insofar as which cases they will grant cert to, since the outcome clearly matters. It's on that basis, and on that basis alone, that I give the Court a pass as regards the fact that it has not granted cert to so many 2A cases. But if the Court really is apolitical as you seem to suggest, then the Court has no such excuse.

    press1280
    So anything you saw from NYSRPA that explains why it got cert over all the others?
    It's obviously not over a circuit split, which is one of the main criteria for a grant (but certainly doesn't guarantee it).


    https://thefederalist.com/2020/06/19/7-times-john-roberts-was-a-leftist-hack/

    I agree with the author in this federalist article. "7 time Roberts a leftist hack."

    Don’t Hold Your Breath
    As the Supreme Court continues to issue rulings with clear and catastrophic implications for religious liberty, free speech, conscience protections, and more, conservatives should relinquish any delusion that Roberts will uphold the rule of law and the integrity of the Constitution.

    In order for the Supreme Court to take a case, only four of the nine justices must agree to hear an appeal. Despite the fact that four conservatives besides Roberts occupy the bench and that those conservatives bemoan that “the Second Amendment is a disfavored right in this Court,” they just passed on 10 gun rights-related cases, indicating they don’t trust Roberts with the Second Amendment. That a so-called conservative justice cannot be counted on to uphold the Bill of Rights is telling.

    “John Roberts is terrified of the liberal op-ed columnists. They know they hold him captive. They can easily sway his opinions by issuing their ‘warnings’ to him through their columns,” conservative commentator Dan Bongino correctly diagnosed. “He’s not a judge anymore, he’s a politician.”

    Today. I think President Trump is very capable making the appointment of a supreme court justice. Constitutionally, He will and think Senator McConnell will bring a nominee to the floor. ( 43 days to election today 9/20/2020) Does the Senate have time to confirm? Time will tell and I will not speculate on that.!
    I we as a country want a constitutional republic then pray that happens. President Trump would not want to see a 4/4 court that may, just may have to certify the election.
     

    wjackcooper

    Active Member
    Feb 9, 2011
    689
    “In order for the Supreme Court to take a case, only four of the nine justices must agree to hear an appeal. Despite the fact that four conservatives besides Roberts occupy the bench and that those conservatives bemoan that “the Second Amendment is a disfavored right in this Court,” they just passed on 10 gun rights-related cases, indicating they don’t trust Roberts with the Second Amendment. That a so-called conservative justice cannot be counted on to uphold the Bill of Rights is telling.”

    Has to be a record, the obvious has been pointed out here two times in less than forty eight hours !!!

    No doubt it will be disputed.

    Regards
    Jack
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    So anything you saw from NYSRPA that explains why it got cert over all the others?
    It's obviously not over a circuit split, which is one of the main criteria for a grant (but certainly doesn't guarantee it).

    I believe it was because the lower court based their decision solely on the conjecture of a person and there was no empirical evidence to support the conclusion.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    “In order for the Supreme Court to take a case, only four of the nine justices must agree to hear an appeal. Despite the fact that four conservatives besides Roberts occupy the bench and that those conservatives bemoan that “the Second Amendment is a disfavored right in this Court,” they just passed on 10 gun rights-related cases, indicating they don’t trust Roberts with the Second Amendment. That a so-called conservative justice cannot be counted on to uphold the Bill of Rights is telling.”

    Has to be a record, the obvious has been pointed out here two times in less than forty eight hours !!!

    No doubt it will be disputed.

    Regards
    Jack

    ...but I see this and I'm basing my opinion on emotions and feewies...?
    No Jack... J.C. says we're wrong.:rolleyes:

    There certainly are no facts that back up the conclusion that it is Roberts.

    I have read some of the 10 cases that they reviewed (including Rogers) and agree that they were not the right cases to pick. Neither Alito nor Gorsuch joined the dissent so there may be other conservative justices that feel the same way.

    If you are not going to base your opinions on facts "emotions and feewies" seem like the next logical option.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    The problem comes when the arguments presented contradict precedent. Which wins, precedent or the arguments presented?

    With respect to how intermediate scrutiny has been applied in 2A cases, the answer to that is clear: the arguments presented override precedent. But if that's so, then that nullifies the effect of precedent, except perhaps when precedent is cited by an argument.

    Which is to say, it appears that with respect to the way courts have made decisions involving "intermediate scrutiny" in the 2A sphere, the order of precedence, highest to lowest, is:

    1. Arguments citing precedent
    2. Arguments which do not cite precedent
    3. Precedent itself

    But that ordering means that precedent itself, absent arguments citing it, is null and void!!

    So much, then, for stare decisis.

    You realize the implications of this, right? It means that colluding litigating parties can change precedent simply by having one arguing party raise an argument that fails to cite precedent, and which also contradicts existing precedent, while the other fails to raise a counterargument. The resulting decision will use the supplied argument to make the decision and BAM, you get new precedent that can contradict existing precedent. And if the litigating parties use that strategy all the way to the Supreme Court, then they can get their precedent-contradicting argument established as current (and thus overriding) nationwide precedent.

    This is exactly what has happened with respect to "intermediate scrutiny" in 2A cases, sans the Supreme Court bit. The precedent in the appellate courts is now that the government doesn't have to show causation, only that it has to show correlation. And that means if you were to challenge the data raised by the government now, you'd have to depend on the Supreme Court to rectify the situation because you and the government both have precedent to cite, and the court will use the latest precedent, which is correlation, to decide the issue.

    I still not sure you are really understanding what is happening. It is a recognition problem.

    If the government fails to provide adequate data then the law will not meet intermediate scrutiny. The government does present data and on its surface appears to be the type of data that would be needed to justify intermediate scrutiny. After all correlations can represent causation. The problem is that the data is insufficient to actually demonstrate causation. The court does not recognize the issue because it was not raised by the plaintiff.

    The appellate courts have never said that the government does't have to show causation. The issue has never come up. If the data is challenged, like in duncan v becerra, then the other cases can be distinguished because the other cases never really challenged the data.



    Hmm ... that's actually a good way to view it that I hadn't considered. So by challenging the data itself, you're making a correctness case in a way that you wouldn't if you merely supplied conflicting data. So if that's the case, we should be both supplying conflicting data and challenging the government's data (or, at least, the government's insistence that what it is supplying shows causation when it really just shows correlation).

    I agree that in principle it's not a policy choice, but the question is whether or not the court can view it as a policy choice. What prevents it from doing so?

    I would say the lack of conflicting data would negate the courts ability to see the issue as a policy. I would argue the difference between intermediate scrutiny and rational basis is causation. With just correlation, you simply have rational basis

    Well, we've had cases involving carry, involving age restrictions, involving magazines, involving ammunition, and a host of other topics. Certainly, the range of topics is wide. Now, I certainly agree that it may be that all of them have been argued using the same legal arguments. I can't say on that (though I would point at Norman v Florida as an example of a case that is very likely to have arguments which differ from the rest). But given the wide range of subjects and circumstances, I'm skeptical that the amount of variation in the arguments is so low that almost none of the cases have given the Supreme Court something worthwhile to consider.

    I think part of the problem is what they are asking the court to do. They want them to adopt strict scrutiny. Read Kavanaugh's dissent in Heller II to understand why that is unlikely to happen.

    That's no excuse. One need only look at the docket of cases the Court has decided to grant cert to in order to see that. Cases such as those involving obscure tax code, as but one example. My argument here isn't that SCOTUS has enough bandwidth to consider every case that comes before it. But it is that it may have enough bandwidth to consider every case involving fundamental Constitutional law errors that come before it, most especially those involving newly-recognized Constitutional protections. At a minimum, I believe the Court is failing to properly prioritize cases, given that the Constitution is the supreme law of the land and thus demands the highest priority.

    Of course, that's a bit of an idealistic view, one that presumes that the justices on the Court are wholly apolitical. The fundamental disagreement in Heller and especially McDonald make it clear that they are anything but. And that being the case, it follows that political considerations will come into play insofar as which cases they will grant cert to, since the outcome clearly matters. It's on that basis, and on that basis alone, that I give the Court a pass as regards the fact that it has not granted cert to so many 2A cases. But if the Court really is apolitical as you seem to suggest, then the Court has no such excuse.

    The problem is that they actually need to resolve the issue at the end of the case. If the path to the end of the case is unclear, unknown, or treads on issues they don't want to get into, they cast that case aside and wait for a better one to come along.

    Nobody is wholly apolitical. I would say most judges are reasonably apolitical. The problem is how the 2A cases are argued and the lack of definitive guidance on how to handle public safety vs the right. So long as the data appears to suggest that the law may accomplish its goals, I suspect most left leaning judges will gravitate to that answer. Once you demonstrate that the law will not accomplish its goals using the data supplied by the government, I suspect very few will gravitate to that answer.
     

    pcfixer

    Ultimate Member
    May 24, 2009
    5,948
    Marylandstan
    Nobody is wholly apolitical. I would say most judges are reasonably apolitical. The problem is how the 2A cases are argued and the lack of definitive guidance on how to handle public safety vs the right. So long as the data appears to suggest that the law may accomplish its goals, I suspect most left leaning judges will gravitate to that answer. Once you demonstrate that the law will not accomplish its goals using the data supplied by the government, I suspect very few will gravitate to that answer.

    RGB was not apolitical. She was by all accounts a judicial activists. Hillary knew that when her and Bill nominated RBG.
    It's not a doubt that Chief Roberts has turned steering the court in the wrong direction. "Text, History and Tradition"? Is that out the window too?

    What is happening to BOR's with guaranteed fundamental rights, liberty and Property?
     

    Allen65

    Ultimate Member
    MDS Supporter
    Jun 29, 2013
    7,063
    Anne Arundel County
    What is happening to BOR's with guaranteed fundamental rights, liberty and Property?

    The Left has redefined the word "right" to mean what were formerly called "entitlements". In other words, "rights" are now free sh*t paid for by other taxpayers, not stuff the GOV can't do to you.
     

    rascal

    Ultimate Member
    Feb 15, 2013
    1,253
    I did not say that in post 57. I said that in post 45. They say the same thing, namely that the basis for mooting the court originates with the NYC. The court played no role in giving the plaintiffs what they were asking for.
    '
    The composition of the court and the interests and poltical beliefs of the people on it played every role.

    We know it for even more certain after denial of cert in the conferences on the ten following cases,

    Almost everyone, including all the long time professional expert court watchers know this was about ROBERTS signaling/threatening that if forced he would vote against 2A rights.

    This position by roberts was suspected after NY case revelations, and confirmed as a certainty after the denials of cert on the other ten cases.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    RGB was not apolitical. She was by all accounts a judicial activists. Hillary knew that when her and Bill nominated RBG.
    It's not a doubt that Chief Roberts has turned steering the court in the wrong direction. "Text, History and Tradition"? Is that out the window too?

    What is happening to BOR's with guaranteed fundamental rights, liberty and Property?

    I don't believe anyone is claiming that a particular judge is apolitical. The real question is whether they can set aside those political beliefs and make judgments with a reasonable level of apoliticism.

    RBG certainly has written opinions striking down judicial activism. https://www.westernjournal.com/even-rbg-smacked-judicial-activism-unanimous-scotus-decision/ She has even spoken out against it. https://news.yahoo.com/justice-ruth-bader-ginsburg-talks-judicial-activism-144807768--politics.html

    I am not trying to defend her. I am trying to get people to understand that the problems that we face may not entirely be the fault of the judges.

    Our rights ARE being whittled away. After reading the arguments, I don't believe it is really the judges fault. There certainly is a basis for the other sides argument that is not effectively rebutted. If you really want your rights back you are going to need to learn how to better argue these cases.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    '
    The composition of the court and the interests and poltical beliefs of the people on it played every role.

    We know it for even more certain after denial of cert in the conferences on the ten following cases,

    Almost everyone, including all the long time professional expert court watchers know this was about ROBERTS signaling/threatening that if forced he would vote against 2A rights.

    This position by roberts was suspected after NY case revelations, and confirmed as a certainty after the denials of cert on the other ten cases.

    What facts support your assertion that the problem is Roberts? Why did the court take NYSRPA v NYC if Roberts is such a problem?

    Have you actually read the cert petitions that were rejected? Maybe there is a problem with the arguments presented and not with Roberts.
     

    kcbrown

    Super Genius
    Jun 16, 2012
    1,393
    I still not sure you are really understanding what is happening. It is a recognition problem.

    If the government fails to provide adequate data then the law will not meet intermediate scrutiny. The government does present data and on its surface appears to be the type of data that would be needed to justify intermediate scrutiny. After all correlations can represent causation. The problem is that the data is insufficient to actually demonstrate causation. The court does not recognize the issue because it was not raised by the plaintiff.

    So the court isn't capable in and of itself of determining whether the data shows causation?


    The appellate courts have never said that the government does't have to show causation.
    The issue has never come up.

    That's not the point. The point is that the court has a certain standard that use of evidence must adhere to as a result of precedent, and the court is not following that standard when it declares (by claiming that the law passes intermediate scrutiny) that the data shows causation. After all, the court has to declare, if only implicitly, that the evidence shows causation because that's a requirement of intermediate scrutiny.


    If the data is challenged, like in duncan v becerra, then the other cases can be distinguished because the other cases never really challenged the data.

    It'll certainly be interesting to see where Duncan goes with this.


    I would say the lack of conflicting data would negate the courts ability to see the issue as a policy. I would argue the difference between intermediate scrutiny and rational basis is causation. With just correlation, you simply have rational basis

    Yeah, well, the problem is that the courts have had only correlation and they claimed that it was enough to meet intermediate scrutiny requirements.


    I think part of the problem is what they are asking the court to do. They want them to adopt strict scrutiny. Read Kavanaugh's dissent in Heller II to understand why that is unlikely to happen.

    I was under the impression that they were asking for a number of alternative things that would give them what they were after. They'd argue that strict scrutiny was the proper standard, but in every submission I've seen, they also argue that the law would fail even under intermediate scrutiny. And yet, the court ends up disagreeing with the plaintiff on that.


    The problem is that they actually need to resolve the issue at the end of the case. If the path to the end of the case is unclear, unknown, or treads on issues they don't want to get into, they cast that case aside and wait for a better one to come along.

    That may be what they do, but that doesn't make it excusable. The Court is tasked with resolving the issue one way or the other, particularly when the issue in question is a matter of a fundamental Constitutional right. Being afraid of the consequences is no excuse. The Constitution says what it says and means what it means, and that's pretty much that. It's not the role of the Court to decide whether or not the implications of what the Constitution says are too "disruptive" or "uncertain" to address. The fact that the Constitution is the supreme law of the land demands that the court address cases where Unconstitutional laws or actions on the part of the government are present. That's its job.


    Nobody is wholly apolitical. I would say most judges are reasonably apolitical.

    I would agree with this with respect to most things. But some things are more politically charged than others, and the right to arms is probably the most politically charged Constitutional rights issue there is, eclipsing even abortion.


    The problem is how the 2A cases are argued and the lack of definitive guidance on how to handle public safety vs the right. So long as the data appears to suggest that the law may accomplish its goals, I suspect most left leaning judges will gravitate to that answer. Once you demonstrate that the law will not accomplish its goals using the data supplied by the government, I suspect very few will gravitate to that answer.

    Except that you've already said it yourself: it's not enough that the law may accomplish its goals, intermediate and strict scrutiny demand that that law does or will accomplish its goals. Causation must be present for the law to pass either level of scrutiny. You quoted the precedent for that yourself.

    So why would left leaning judges allow for a more lenient threshold than what precedent demands, while right leaning judges do not, if not because of the former's political leanings?
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    So the court isn't capable in and of itself of determining whether the data shows causation?


    That's not the point. The point is that the court has a certain standard that use of evidence must adhere to as a result of precedent, and the court is not following that standard when it declares (by claiming that the law passes intermediate scrutiny) that the data shows causation. After all, the court has to declare, if only implicitly, that the evidence shows causation because that's a requirement of intermediate scrutiny.


    It'll certainly be interesting to see where Duncan goes with this.


    Yeah, well, the problem is that the courts have had only correlation and they claimed that it was enough to meet intermediate scrutiny requirements.


    I was under the impression that they were asking for a number of alternative things that would give them what they were after. They'd argue that strict scrutiny was the proper standard, but in every submission I've seen, they also argue that the law would fail even under intermediate scrutiny. And yet, the court ends up disagreeing with the plaintiff on that.


    That may be what they do, but that doesn't make it excusable. The Court is tasked with resolving the issue one way or the other, particularly when the issue in question is a matter of a fundamental Constitutional right. Being afraid of the consequences is no excuse. The Constitution says what it says and means what it means, and that's pretty much that. It's not the role of the Court to decide whether or not the implications of what the Constitution says are too "disruptive" or "uncertain" to address. The fact that the Constitution is the supreme law of the land demands that the court address cases where Unconstitutional laws or actions on the part of the government are present. That's its job.


    I would agree with this with respect to most things. But some things are more politically charged than others, and the right to arms is probably the most politically charged Constitutional rights issue there is, eclipsing even abortion.


    Except that you've already said it yourself: it's not enough that the law may accomplish its goals, intermediate and strict scrutiny demand that that law does or will accomplish its goals. Causation must be present for the law to pass either level of scrutiny. You quoted the precedent for that yourself.

    So why would left leaning judges allow for a more lenient threshold than what precedent demands, while right leaning judges do not, if not because of the former's political leanings?

    It is not the court's job to litigate the case for the plaintiffs. The court decides the case based on the arguments presented and the precedents that they need to follow. In this case the courts do not need to validate causation. The requirement is more vague. The government simply needs to demonstrate that the law is substantially related to its interest. The government supplies data that is backed up by experts claiming that the law will accomplish the government's interest. The court simply needs to validate that the evidence is appropriate and is backed by experts. If you want the court to further explore causation, then the data itself must be challenged.


    You are correct that the plaintiffs do argue that the case would also fail under intermediate scrutiny, but that is contrary to the lower court decision that the law passes intermediate scrutiny. The plaintiffs never really indicate what the lower court got wrong. SCOTUS rarely take cases that represent the misapplication of a properly stated rule of law. If you cannot indicate what was wrong you are essentially stating that it is the misapplication of a properly state rule of law. In NYSRPA they identified the lack of any data as the reason the court got it wrong and SCOTUS took that case.


    2A cases appear political because SCOTUS has not definitively determined how these cases should be evaluated. There is enough leeway in the precedents to produce either answer. What is needed is an explanation as to why the court is not properly applying the intermediate scrutiny standard.
     

    kcbrown

    Super Genius
    Jun 16, 2012
    1,393
    It is not the court's job to litigate the case for the plaintiffs.

    No. But it is the court's job to hold the litigants to precedent whenever the litigants insist upon a conclusion that relies, or is supposed to rely, on said precedent, or whenever the litigants make arguments that contradict precedent (and that don't show said precedent to be Unconstitutional).


    The court decides the case based on the arguments presented and the precedents that they need to follow.

    Bolded emphasis mine. Exactly. And my point is that the court is failing to do this. You already quoted the precedent that is supposed to control, and my point is that the court is failing to follow that precedent when it reaches its conclusion that the law passes intermediate scrutiny. It is the court that reached that conclusion, not just a litigant. It is the court that made the decision, not the litigants. It is the court that justifies that decision, not the litigants. However much the court may rely on the litigants to supply it with arguments, it is the court's decision, not that of the litigants.

    If you nevertheless insist that the court can use only reasoning supplied by the litigants, then my comment about colluding litigants, and the precedent that such litigants could set, stands unchallenged.


    In this case the courts do not need to validate causation. The requirement is more vague.

    Wait. Is or is not the causation standard for intermediate scrutiny precedent?

    If it is, then the court is obligated to follow it whether or not a litigant raises it (because the precedent controls the court, not the litigants). If it's not, then it doesn't matter whether the plaintiff shows that the data doesn't show causation, the court could still claim that the law passes intermediate scrutiny, because causation wouldn't then be a precedential requirement of intermediate scrutiny, and the court could then claim that correlation is sufficient for the intermediate scrutiny standard.

    Which is it?


    You are correct that the plaintiffs do argue that the case would also fail under intermediate scrutiny, but that is contrary to the lower court decision that the law passes intermediate scrutiny. The plaintiffs never really indicate what the lower court got wrong.

    I thought they had, but I'm just going off of a very poor memory. I'd have to read all of the briefs to be able to say one way or the other. I'll presume you're right here until I discover otherwise.


    SCOTUS rarely take cases that represent the misapplication of a properly stated rule of law. If you cannot indicate what was wrong you are essentially stating that it is the misapplication of a properly state rule of law. In NYSRPA they identified the lack of any data as the reason the court got it wrong and SCOTUS took that case.

    The government didn't cite any data at all? That's surprising. It certainly is a departure from the other cases, so I think you've got a point here.


    2A cases appear political because SCOTUS has not definitively determined how these cases should be evaluated. There is enough leeway in the precedents to produce either answer. What is needed is an explanation as to why the court is not properly applying the intermediate scrutiny standard.

    I certainly agree that any failures on the part of the government need to be pointed out by the plaintiffs. I was always under the impression that in litigation, you need to always bring up every possible argument that your opponent is wrong. I've never understood why counsel wouldn't do so in these cases, and that's why I brought up the question of competence. A competent litigator will attack the opponent's every weakness, and give his opponent nowhere to go. How, then, can the plaintiffs' counsel in these cases be considered anything other than incompetent if they've consistently failed to do that?
     
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