9th Circuit says Mag Capacity Restrictions Unconstitutional

jcutonilli said:

The case was Malposso v Pallozzi. It was one of the 10 cases that were denied cert back in June of this year.

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Whatever one may think about the proper approach to analyzing Second Amendment challenges, it is clearly time for us to resolve the issue.

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The right is not the same thing as the ability

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rbird7282 said:

Under that reasoning, ANYTHING can be dangerous. A piece of wood, metal, a pencil, a boot, etc.
There is almost nothing I can think of that is dangerous without human interaction, save perhaps radioactive material.
Why does it “certainly seem” that government can impose those restrictions? The Constitution does not afford them that power, no matter how many people twist it and say that it does.


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press1280 said:

The reasoning was just what I alluded to in the quoted post. It was something just believed at the time; there were no statistics saying more murders occurred from concealed than open carry, exc. society isn’t in the same place as it was back then.

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rbird7282 said:

Under that reasoning, ANYTHING can be dangerous. A piece of wood, metal, a pencil, a boot, etc.
There is almost nothing I can think of that is dangerous without human interaction, save perhaps radioactive material.
Why does it “certainly seem” that government can impose those restrictions? The Constitution does not afford them that power, no matter how many people twist it and say that it does.


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pcfixer said:

Yes, I got that. You and I both know that this request for cert wasn't the correct language or proper argument. Isn't that what we have been discussing here?

Seems to me the correct information or language used for Md CCW denial would be in Wren and Grace. If you follow.

Reading the descent in No. 10-7036 DICK ANTHONY HELLER, ET AL.,
here...https://www.cadc.uscourts.gov/internet/opinions.nsf/DECA496973477C748525791F004D84F9/$file/10-7036-1333156.pdf
APPELLANTS v.DISTRICT OF COLUMBIA, Was written by now Justice Kavanaugh. Now he wrote descent with Thomas. ROGERS v. GREWAL.

Clearly stated at least 2 would grant cert. Was it language and proper argument that must get in order.
quoted...


Funny We don't all have the ability to remain silent either. Yes We have the Right!!

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jcutonilli said:

While I agree that Malpasso should have been argued differently, it does represent a case that used Wren and Grace to try and overturn a MD CCW denial. I am not sure what you are trying to articulate.

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The Court stated rather emphatically: “We know of no other enumerated constitutional right whose core
protection has been subjected to a freestanding ‘interestbalancing’ 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.” Id page 59

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In my judgment, both D.C.’s ban on semi-automatic
rifles and its gun registration requirement are unconstitutional under Heller.
In Heller, the Supreme Court held that handguns – the
vast majority of which today are semi-automatic – are
constitutionally protected because they have not traditionally
been banned and are in common use by law-abiding citizens.
There is no meaningful or persuasive constitutional
distinction between semi-automatic handguns and semiautomatic rifles.

Semi-automatic rifles, like semi-automatic
handguns, have not traditionally been banned and are in common use by law-abiding citizens for self-defense in the home, hunting, and other lawful uses. Moreover, semiautomatic handguns are used in connection with violent crimes far more than semi-automatic rifles are.

It follows from Heller’s protection of semi-automatic handguns that
semi-automatic rifles are also constitutionally protected and
that D.C.’s ban on them is unconstitutional. (By contrast,
fully automatic weapons, also known as machine guns, have
traditionally been banned and may continue to be banned after
Heller.)
1

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pcfixer said:

Sorry I wasn't more clear. Since Kavanaugh and Thomas wrote the
Rogers V Grewal descent maybe compare that with the arguements
in Malpasso. There must be some difference language the USSC is looking for?
Ya think?

https://www.cadc.uscourts.gov/internet/opinions.nsf/DECA496973477C748525791F004D84F9/$file/10-7036-1333156.pdf

Read the descent that Kavanaugh wrote in 2010. starting at page 46. Please read on. His view also is disagreement on. He descents on interest balance tests.
If I'm not mistaken. Meaning the "compelling interest of public safety"

quoted from his lead in statements.

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That seems highly unlikely, for reasons Justice Breyer himself pointed out in dissent:

Respondent proposes that the Court adopt a “strict scrutiny” test, which would require reviewing with care each gun law to determine whether it is “narrowly tailored to achieve a compelling governmental interest.” Abrams v. Johnson, 521 U.S. 74, 82 (1997); see Brief for Respondent 54-62. But the majority implicitly, and appropriately, rejects that suggestion by broadly
approving a set of laws – prohibitions on concealed weapons, forfeiture by criminals of the Second Amendment right, prohibitions on firearms in certain
locales, and governmental regulation of commercial firearm sales – whose constitutionality under a strict scrutiny standard would be far from clear.

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jcutonilli said:

I believe the language that SCOTUS is looking for is why the deferential intermediate scrutiny the lower courts use is not appropriate and what is the correct way to decide these types of cases.

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Allen65 said:

Yup, that's the core of the problem. So what lines of argument could be used to successfully attack the deference with the current SCOTUS?

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‘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. Sebelius567 U.S. 519, 538(2012)

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krucam said:

Petition for rehearing en banc submitted...to no surprise for me...

https://dl.airtable.com/.attachment.../DuncanvBecerraPetitionforRehearingEnBanc.pdf

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whistlersmother said:

And a bigger shocker will be the make-up of the panel...

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whistlersmother said:

And a bigger shocker will be the make-up of the panel...

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wjackcooper said:

kcBrown a
Kennedy and/or Roberts (by blocking cert) put the icing on the Democrat judiciary’s cake. The obvious solution is a Trump victory.

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jcutonilli
I believe the language that SCOTUS is looking for is why the deferential intermediate scrutiny the lower courts use is not appropriate and what is the correct way to decide these types of cases. YES

I don't believe the arguments have changed much since 2010. Most courts use the same deferential intermediate scrutiny standard used in the Heller II case.
Not really understanding of deferential intermediate scruity!

I believe Kavanaugh explained back then why SCOTUS is unlikely to accept strict scrutiny as the appropriate standard. YES

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That seems highly unlikely, for reasons Justice Breyer himself pointed out in dissent:

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Respondent proposes that the Court adopt a “strict scrutiny” test, which would require reviewing with care each gun law to determine whether it is “narrowly tailored to achieve a compelling governmental interest.” Abrams v. Johnson, 521 U.S. 74, 82 (1997); see Brief for Respondent 54-62. But the majority implicitly, and appropriately, rejects that suggestion by broadly
approving a set of laws – prohibitions on concealed weapons, forfeiture by criminals of the Second Amendment right, prohibitions on firearms in certain
locales, and governmental regulation of commercial firearm sales – whose constitutionality under a strict scrutiny standard would be far from clear.

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Longstanding regulations aside, then, the Amendment shields at least the ability to carry common arms in self-defense for citizens who are commonly situated in the ways just mentioned. Yet the District's good-reason law bars most people from exercising this right at all. To be sure, the good-reason law leaves each D.C. resident some remote chance of one day carrying in self-defense, but that isn't the question. The Second Amendment doesn't secure a right to have some chance at self-defense. Again, at a minimum the Amendment's core must protect carrying given the risks and needs typical of law-abiding citizens. That is a right that most D.C. residents can never exercise, by the law's very design. In this way, the District's regulation completely prohibits most residents from exercising the constitutional right to bear arms as viewed in the light cast by history and Heller I.

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We pause to draw together all the pieces of our analysis: At the Second Amendment's core lies the right of responsible citizens to carry firearms for personal self-defense beyond the home, subject to longstanding restrictions. These traditional limits include, for instance, licensing requirements, but not bans on carrying in urban areas like D.C. or bans on carrying absent a special need for self-defense. In fact, the Amendment's core at a minimum shields the typically situated citizen's ability to carry common arms generally. The District's good-reason law is necessarily a total ban on exercises of that constitutional right for most D.C. residents. That's enough to sink this law under Heller I.

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It appears that a handful of States throughout the country prohibit citizens from carrying arms in public unless they can establish “good cause” or a “justifiable need” for doing so. The majority of States, while regulating the carrying of arms to varying degrees, have not imposed such a restriction, which amounts to a “a[n] on the ability of most citizens to exercise an enumerated right.” Wrenn, 864 F. 3d, at 666.

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pcfixer said:

Absolutely.!!

Sir, I is not really clear that any scruity test is used. That is very evident by the Opinion in Wrenn v DC writtern by Griffith

and.

Interestingly Henderson dissented.

Any again the dissenting Supreme Court says the same thing.
ROGERS v. GREWAL


The question whether a State can effectively ban most citizens from exercising their fundamental right to bear arms surely qualifies as such a matter. We should settle the conflict among the lower courts so that the fundamental protections set forth in our Constitution are applied equally to all citizens.

Need an en banc for Malpasso. There is NO "compleling government interest in public safety" that over rides the Keep and Bear Arms" 2 A in Maryland. There is no good and substantial that over rides the 2 A to carry concealled for self defense in public any longer.

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Deferential intermediate scrutiny is the type of intermediate scrutiny described by Kavanaugh in his Heller II dissent.

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One of the problems is that all the plaintiffs concede part of the case. Specifically, they acknowledge that the government has a compelling interest in public safety. They do not really address why "there is NO "compleling government interest in public safety" that over rides the Keep and Bear Arms"

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pcfixer said:

jcutonilli



okay. Thank You. I will read that descent for sure.



How did this impact the case or did this cause the Henderson dissent?

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