3rd Circuit Appeals - Upholds LCM Ban

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  • TheOriginalMexicanBob

    Ultimate Member
    Jul 2, 2017
    32,176
    Sun City West, AZ
    It may not be too bad a thing that SCOTUS has booted cases. Since Roberts has become so squishy about upholding conservative and Constitutional principles it may not be advisable to have such cases be decided. If Roberts would vote with the Liberal wing of the Court we would lose big and for a long time. It may well be better to wait until there's a solid Constitutionally-based majority in the court before good Second Amendment cases are decided.

    I know we're impatient for the Court to decide properly but it might be worth the wait. Once Trump gets reelected and will likely get a few more Justices seated at SCOTUS...then it will be time for such cases to be decided.
     

    wjackcooper

    Active Member
    Feb 9, 2011
    689
    It may not be too bad a thing that SCOTUS has booted cases. Since Roberts has become so squishy about upholding conservative and Constitutional principles it may not be advisable to have such cases be decided. If Roberts would vote with the Liberal wing of the Court we would lose big and for a long time. It may well be better to wait until there's a solid Constitutionally-based majority in the court before good Second Amendment cases are decided.

    I know we're impatient for the Court to decide properly but it might be worth the wait. Once Trump gets reelected and will likely get a few more Justices seated at SCOTUS...then it will be time for such cases to be decided.

    For sure,

    Trump for another term & its game over for those that are anti 2A.

    Regards
    Jack
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    Interesting. Fair enough.

    Well, let's suppose for a moment that the judge in question believes that "intermediate scrutiny" is the proper standard, and that even mild correlation is enough to prove the validity of the law. What argument would you construct to convince that judge to accept your argument over that of the government?

    I would say that intermediate scrutiny requires that the government “must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.”

    While correlations demonstrate that there might be a link, it does not demonstrate that there is a direct and material link. A correlation is speculative without demonstrating there is also causation. Speculative evidence is acceptable under rational basis but not intermediate scrutiny.

    I thought the problem was the arguments themselves. But now it appears that the problem isn't with the arguments, but rather with the way they're communicated. Can you be more specific here? If the problem is only with the way they're communicated then that leads right back to the question of competence, since proper communication of the argument is one of the necessary skills for a competent litigator.

    Arguments are the way problems are communicated to the court.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    NYSRPA v NYC demonstrates that SCOTUS might step in if the issues are properly acknowledged. To say more than that is to assert that every other 2A case ever raised to SCOTUS, and for which cert was denied, failed to properly acknowledge the issues. And that's a wide brush to paint with.

    How about...? the Leftist judges are legislating from the bench because they are in charge, for now... plain and simple... and they're using their powers to do so with impunity. Until the makeup of the courts are changed, we(2A) will continue to lose. The "finest" lawyers on Earth can argue the 2nd Amendment any way they want... only to lose to a Leftist court. Change my mind.

    Yep.

    The obvious (at least to those who count to five) problem has been the Kennedy/Roberts fear of the 2A, i.e., guns; which served to ratify the anti 2A, emotion based rulings of Democrat Judges on the lower courts.

    Regards
    Jack

    The implication of what was said was that SCOTUS will never step in because of Roberts. I believe that is verifiably false due to NYSRPA. Why did they take NYSRPA if they knew Roberts was the problem. What is different between NYSRPA and all the other cases. No one knew that it would be mooted because NYC gave NYSRPA what they wanted.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    Holly smoke!

    I was reluctant to point out what should be easy to understand. That the court ducked out (mooted) the case actually demonstrates the continuing wimp out.*

    Regards
    Jack


    *“JUSTICE ALITO, with whom JUSTICE GORSUCH joins, and with whom JUSTICE THOMAS joins except for Part IV–B, dissenting. By incorrectly dismissing this case as moot, the Court permits our docket to be manipulated in a way that should not be countenanced. Twelve years ago in District of Columbia v. Heller, 554 U. S. 570 (2008), we held that the Second Amendment protects the right of ordinary Americans to keep and bear arms. Two years later, our decision in McDonald v. Chicago, 561 U. S. 742 (2010), established that this right is fully applicable to the States.”

    18-280 New York State Rifle & Pistol Assn., Inc. v. City Of New York (04/27/2020)https://www.supremecourt.gov/opinions/19pdf/18-280_ba7d.pdf

    The court did not moot the case, NYC did. Even Kavanaugh agreed. Maybe he is a problem also.
     

    kcbrown

    Super Genius
    Jun 16, 2012
    1,393
    I would say that intermediate scrutiny requires that the government “must demonstrate that the recited harms are real, not merely conjectural, and that the regulation will in fact alleviate these harms in a direct and material way.”

    How does that convince a judge who has already decided that correlation alone is sufficient? Merely citing precedent doesn't help if the judge is already aware of the precedent and bases his position on other precedent. Cases in which the government failed to demonstrate causation but for which the court claimed that the intermediate scrutiny analysis supported the government's position are exactly what would provide such other precedent.

    These judges weren't born yesterday. They're fully aware of the precedent. But they engage in incorrect use of intermediate scrutiny anyway. Why, then, do you believe a precedent-based argument would sway them? Where does the job of the litigants stop and the job of the judges start? Is it the role of the litigants to tell the judges how to do their jobs? If not, then why would you expect a case to be decided on the basis of intermediate scrutiny in favor of a government litigant who provides only correlation when the causation standard is well-understood precedent?


    While correlations demonstrate that there might be a link, it does not demonstrate that there is a direct and material link. A correlation is speculative without demonstrating there is also causation. Speculative evidence is acceptable under rational basis but not intermediate scrutiny.

    Any case in which the government failed to demonstrate causation and which the court sided with the government due to an intermediate scrutiny analysis is a case which contradicts the above. And since the Supreme Court has not stepped in to correct that, it follows that the approach is acceptable to it.

    Unless, that is, nobody has properly noted in their appeal to the Supreme Court that the lower court failed to adhere to the causation requirement of intermediate scrutiny. That's a possibility.

    I don't seem to be able to find any good resource in which to search cert petitions and plaintiffs briefs with respect to those petitions (if you know of one that is accessible by ordinary people, please share!), so I'm not in any good position to say whether or not there were any such petitions/briefs. But it only takes one.



    Arguments are the way problems are communicated to the court.

    Yes, and a necessary skill for a litigator is to craft clear and persuasive arguments. If the litigators in question have a solid understanding of Constitutional law and are formulating the correct arguments on that basis (note that I distinguish between a correct argument and a persuasive argument. The former is a question of getting the logic, precedent, supporting facts, and conclusions right. The latter is a question of how the argument is worded so as to cause the listener to understand and agree with it), then all that's left is the wording of the argument.

    Which is it that you believe the litigators here are failing? In the correctness of their arguments, or in their wording of them? Or something else that I missed (if so, what?) ?
     

    Applehd

    Throbbing Member
    MDS Supporter
    Apr 26, 2012
    5,285
    Not to point fingers... but the way lawyers twist this shit up. Sometimes... the trees that you're looking at... yes, the ones directly in front
    of you... are, in fact, the forest. Plain and simple. But layman opinions matter not.
     

    rascal

    Ultimate Member
    Feb 15, 2013
    1,253
    The implication of what was said was that SCOTUS will never step in because of Roberts. I believe that is verifiably false due to NYSRPA. Why did they take NYSRPA if they knew Roberts was the problem. What is different between NYSRPA and all the other cases. No one knew that it would be mooted because NYC gave NYSRPA what they wanted.

    Actually I think you can draw the opposite concussion from what happened with NYNRA. That was reason for the scathing dissent at Roberts antics..

    What is verifiably true is that due to his antics, SCOTUS in current configuration, would not step in on 2A after NY case because Roberts has communicated that he is going to take a certain position.

    It is rational because I believe the lawyers do have a good understanding of the 2A amendment and how to litigate constitutional law. The problem is not the skillset of the person. The problem is figuring the best way to communicate that to the courts.
    Not on this issue, it is virtually entirely partisan. In this case, on this issue, pure 4:4 partisan with Roberts playing swing
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    How does that convince a judge who has already decided that correlation alone is sufficient? Merely citing precedent doesn't help if the judge is already aware of the precedent and bases his position on other precedent. Cases in which the government failed to demonstrate causation but for which the court claimed that the intermediate scrutiny analysis supported the government's position are exactly what would provide such other precedent.

    These judges weren't born yesterday. They're fully aware of the precedent. But they engage in incorrect use of intermediate scrutiny anyway. Why, then, do you believe a precedent-based argument would sway them? Where does the job of the litigants stop and the job of the judges start? Is it the role of the litigants to tell the judges how to do their jobs? If not, then why would you expect a case to be decided on the basis of intermediate scrutiny in favor of a government litigant who provides only correlation when the causation standard is well-understood precedent?

    If a judge has already decided then the case is usually over and any errors committed by the judge need to be raised and argued in the next higher court.

    Judges base their decisions on the arguments presented. It is the litigants job to raise appropriate issues so that the judge can come to the appropriate decision based on the arguments presented. If the litigants fail to raise an issue then it will not likely be considered by the judge.

    My point is that the plaintiffs are not raising the issue so the judges are not considering it.

    Any case in which the government failed to demonstrate causation and which the court sided with the government due to an intermediate scrutiny analysis is a case which contradicts the above. And since the Supreme Court has not stepped in to correct that, it follows that the approach is acceptable to it.

    Unless, that is, nobody has properly noted in their appeal to the Supreme Court that the lower court failed to adhere to the causation requirement of intermediate scrutiny. That's a possibility.

    I don't seem to be able to find any good resource in which to search cert petitions and plaintiffs briefs with respect to those petitions (if you know of one that is accessible by ordinary people, please share!), so I'm not in any good position to say whether or not there were any such petitions/briefs. But it only takes one.

    You are missing the role of the court. It does not decide cases on its own. It relies on the litigants to inform it of the relevant issues. If the relevant issues are not raised then they are not really relevant to the case. SCOTUS is primarily concerned with the consistency across arguments. They are really looking to see if the appropriate standards are followed based on the arguments presented. They are not really concerned if the wrong answer is reached.

    SCOTUS started requiring electronic filings since the end of 2017 so any cases filed since then can be found on their website. SCOTUSblog has filings of some the more prominent cases. https://michellawyers.com/ contains a lot of 2A cases.

    Yes, and a necessary skill for a litigator is to craft clear and persuasive arguments. If the litigators in question have a solid understanding of Constitutional law and are formulating the correct arguments on that basis (note that I distinguish between a correct argument and a persuasive argument. The former is a question of getting the logic, precedent, supporting facts, and conclusions right. The latter is a question of how the argument is worded so as to cause the listener to understand and agree with it), then all that's left is the wording of the argument.

    Which is it that you believe the litigators here are failing? In the correctness of their arguments, or in their wording of them? Or something else that I missed (if so, what?) ?

    I am not sure I would categorized the problem in terms of correctness vs persuasiveness. They certainly present and support their position correctly. The problem is not really the wording, but how they go about it. They certainly do challenge the data, but they do it by offering other data rather than challenge the government data directly. You or I would look at the data and conclude the government is wrong, but that conclusion is based on a lot of other data that was not presented. The judge looks and evaluates only what is presented. The real problem is that they have not challenged the government data directly so it is assumed valid. One dataset says one thing and the other says the opposite. It looks a lot like a political question. The default action for the court is to defer to the legislature, which is essentially what is done in these cases.

    We are getting what appear to be political answers because the plaintiffs are framing the problem as a political one.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    Umm yeah... keep dreaming...:rolleyes:

    Exactly. They don’t follow the laws they judge by feelings and intentions

    Not to point fingers... but the way lawyers twist this shit up. Sometimes... the trees that you're looking at... yes, the ones directly in front
    of you... are, in fact, the forest. Plain and simple. But layman opinions matter not.

    Judges are not the only ones that judge by feelings and intentions. You may want to look in a mirror.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    Actually I think you can draw the opposite concussion from what happened with NYNRA. That was reason for the scathing dissent at Roberts antics..

    What is verifiably true is that due to his antics, SCOTUS in current configuration, would not step in on 2A after NY case because Roberts has communicated that he is going to take a certain position.


    Not on this issue, it is virtually entirely partisan. In this case, on this issue, pure 4:4 partisan with Roberts playing swing

    How is something that happened after the case was granted actually relevant to whether it demonstrates if they will grant a 2A case?

    Kavanaugh was also part of those "antics", yet was also part of the Rogers dissent. Alito rejected Kavanaugh's opinion, yet did not join the Rogers dissent? Maybe Roberts is not really the problem.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    on Scotus and 2A? he is manifestly the problem.
    He is a political animal and has demonstrated he had decided already -- and signaled how he would rule on 2A.

    You mean his votes in Heller, McDonald and Caetano?

    According to https://www.scotusblog.com/statistics/ Roberts and Kavanaugh have voted alike in 93% of the cases this year (tied for highest of any two justices). Should we be worried about Kavanaugh also?
     

    Applehd

    Throbbing Member
    MDS Supporter
    Apr 26, 2012
    5,285
    Judges are not the only ones that judge by feelings and intentions. You may want to look in a mirror.

    Hmm... case after case after case involving the 2A lose in court. Over time, a pattern develops, but you refuse to see it. I need to look in the mirror...? Because I see a pattern...? I am not the only one that sees this based on comments by other folks here and elsewhere. YOU ALWAYS have a better idea. I read your Amicus brief and for a non-lawyer, know-nothing, I understood what you wrote. Bravo... I applaud your effort with the brief. However, you also seem to be judging the way these cases are being presented as if you are the supreme jurist over and above Roberts, yet I need to look in the mirror. I'm not so arrogant as to believe that I know everything about anything. But I do know a little about alot. My opinion is mine and I own it. I'm not always right and have no problem learning, but I'm not always wrong either.
    I don't need a college degree to have an opinion... and just because you have a college degree, doesn't mean your opinion is always the right one. There is a long list of distinguished 2A attorneys and you won't find my name on that list... apparently, yours either. So we do have that in common.

    Apologise for derailing with my non-lawyer-ishness.
     

    wjackcooper

    Active Member
    Feb 9, 2011
    689
    The court did not moot the case, NYC did. Even Kavanaugh agreed. Maybe he is a problem also.


    Good grief!

    This stuff cannot be that hard to understand.

    It should not be necessary to point out NY did not (and does not) have the power to “moot” a pending SC case. NY simply postured the case so the SC could wimp out.*

    Apparently Kavanagh (look at his concurrence) went along with the wimp out believing the Court would take at least one pending 2A case, but got blindsided by the wimp out in Chief who blocked all 10.

    Regards
    Jack

    *”By incorrectly dismissing this case as moot, the Court permits our docket to be manipulated in a way that should not be countenanced.”
    https://www.supremecourt.gov/opinions/19pdf/18-280_ba7d.pdf
     

    TheOriginalMexicanBob

    Ultimate Member
    Jul 2, 2017
    32,176
    Sun City West, AZ
    I'm thinking Kavanaugh went the way he did because he knew if any of the Second Amendment cases were heard it would likely end up a loss for the Constitution. He must have decided a strategic retreat was the best move until a solid pro-Constitution majority fills the Court.

    At least...it's my opinion until events prove otherwise.
     

    wjackcooper

    Active Member
    Feb 9, 2011
    689
    I'm thinking Kavanaugh went the way he did because he knew if any of the Second Amendment cases were heard it would likely end up a loss for the Constitution. He must have decided a strategic retreat was the best move until a solid pro-Constitution majority fills the Court.

    At least...it's my opinion until events prove otherwise.

    Could be, pure speculation on my part is - he got played by Roberts.

    Regards
    Jack
     

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