Kolbe en banc decision

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  • MDFF2008

    Ultimate Member
    Aug 12, 2008
    24,735
    What we're seeing WRT Heller is the judicial equivalent of the Deep State at work. Heller was perfectly clear, the courts just choose to ignore it...and SCOTUS is currently disinclined to hear another 2A case.

    That won't change with Gorsuch's confirmation, he replaces Scalia. I think it would change if Kennedy or one of the hard-core liberals retired.

    Yeah, I agree with this. I've read some hints that Kennedy got duped into signing the Heller and McDonald opinions.

    I've often thought that is the issue, when Scalia was alive, they had 4 votes, but could never get the 5th vote, and thus they chose never to hear the case, but the liberal side was too afraid that Kennedy might jump ship that they never voted up the cases in order to settle the matter either.
     

    whistlersmother

    Peace through strength
    Jan 29, 2013
    8,948
    Fulton, MD
    Kolbe says arms can be banned because they are "military". Miller says arms can be banned (regulated) because they are not military.

    My disdain for the judicial system continues to grow.

    Any chance of SCOTUS taking this or using this inconsistency in another lawsuit?
     

    fabsroman

    Ultimate Member
    Mar 14, 2009
    35,852
    Winfield/Taylorsville in Carroll
    Kolbe says arms can be banned because they are "military". Miller says arms can be banned (regulated) because they are not military.

    My disdain for the judicial system continues to grow.

    Any chance of SCOTUS taking this or using this inconsistency in another lawsuit?

    IN my Constitutional law class in law school, I had the epiphany that SCOTUS and other courts bend the law to meet their desired outcome. It continues to happen today. There isn't much guarantee in Constitutional law. Heck, I've seen contract and tort cases get bent pretty good too.

    Heck, the Obamacare fine is a "tax". Really, we get taxed for not doing something. I have no idea how they came up with those mental gymnastics either.

    Justice?
     

    abu Haqiqa

    Banned
    BANNED!!!
    Feb 10, 2017
    38
    Yeah, I agree with this. I've read some hints that Kennedy got duped into signing the Heller and McDonald opinions.

    I've often thought that is the issue, when Scalia was alive, they had 4 votes, but could never get the 5th vote, and thus they chose never to hear the case, but the liberal side was too afraid that Kennedy might jump ship that they never voted up the cases in order to settle the matter either.

    It only takes four votes to grant cert.
     

    Brooklyn

    I stand with John Locke.
    Jan 20, 2013
    13,095
    Plan D? Not worth the hassle.
    {Bolding added by moi}

    So they say the 2A does not allow “weapons that are most useful in military service”. I believe that is in direct conflict with the '32 Miller decision.


    And Heller said no such thing.


    .

    Willful cognitive disfunction. Nothing less.

    As the courts lose credibility,and as the left continues to press it's advantage.. con con is the next step. Prepare for it.
     

    Brooklyn

    I stand with John Locke.
    Jan 20, 2013
    13,095
    Plan D? Not worth the hassle.
    Here is a great article from National Review. David French is a former JAG Officer, and his work is often spot on. He breaks this down well:

    http://www.nationalreview.com/artic...to Thursday 2017-02-22&utm_term=NR5PM Actives

    As a lawyer myself with an interest in constitutional law, this decision is breath taking in its ignorance. That, and resorting to the emotional argument in the beginning as a seeming basis to begin their undermining of a constitutional civil right is frankly unprofessional. Judges are not cheerleaders, they are supposed to be neutral arbiters of the law.


    Arrogance not ignorance .

    A prime reason to remove life tenure for lower court justices.
     

    Brooklyn

    I stand with John Locke.
    Jan 20, 2013
    13,095
    Plan D? Not worth the hassle.
    IN my Constitutional law class in law school, I had the epiphany that SCOTUS and other courts bend the law to meet their desired outcome. It continues to happen today. There isn't much guarantee in Constitutional law. Heck, I've seen contract and tort cases get bent pretty good too.

    Heck, the Obamacare fine is a "tax". Really, we get taxed for not doing something. I have no idea how they came up with those mental gymnastics either.

    Justice?

    It's called sophistry.. it's why the law is mostly about power.. military force. And nothing else .

    Eventually everyone will see this...Then hell comes.

    But at this point it's a given.
     

    Mike OTDP

    Ultimate Member
    Feb 12, 2008
    3,318
    A prime reason to remove life tenure for lower court justices.

    Life tenure...but even more, pull the perks and move the courtrooms. Can anyone deny that if the 9th Circuit courthouse was physically removed from San Francisco to somewhere in the middle of the Mojave Desert, we might see that Circuit produce reasonable decisions?

    And those courthouses, including that of the Supreme Court, should be nondescript buildings. The judiciary is supposed to be independent, but also the juniormost branch of government. Congress, not the courts, is seniormost. Time for the judiciary to be put in its place.
     

    fightinbluhen51

    "Quack Pot Call Honker"
    Oct 31, 2008
    8,974
    Yeah, I agree with this. I've read some hints that Kennedy got duped into signing the Heller and McDonald opinions.

    I've often thought that is the issue, when Scalia was alive, they had 4 votes, but could never get the 5th vote, and thus they chose never to hear the case, but the liberal side was too afraid that Kennedy might jump ship that they never voted up the cases in order to settle the matter either.

    So it's essentially a SCOTUS game of tic-tac-toe. Do you want to play a game?

    Or mutually assured destruction if you will.

    IN my Constitutional law class in law school, I had the epiphany that SCOTUS and other courts bend the law to meet their desired outcome. It continues to happen today. There isn't much guarantee in Constitutional law. Heck, I've seen contract and tort cases get bent pretty good too.

    Heck, the Obamacare fine is a "tax". Really, we get taxed for not doing something. I have no idea how they came up with those mental gymnastics either.

    Justice?

    Meanwhile, the Eastern District of Washington & CA9 are using the public political comments/rhetoric of the administration to claim "intent." Then they forgot the Obama administration in the largest legal ruling of his administration's 8 years, forgot public political comments existed when that case was argued.

    They aren't jurists or judges; they are tyrants. They need to be called tyrants, treated as such, and shamed. They report to the people the least, but they are certainly the most impactful and influential (and not in a good way). Second to none (with the administrative bureaucracy branch, closely behind them).


    I've seen folks making comments that congress should fold all of the lower courts, leaving SCOTUS in tact and start fresh. If not that; start impeaching these bastards that don't follow natural rights!
     

    Not_an_outlaw

    Ultimate Member
    Patriot Picket
    Jan 26, 2013
    4,679
    Prince Frederick, MD
    There isn't much guarantee in Constitutional law. Heck, I've seen contract and tort cases get bent pretty good too.

    I'm a landlord. Contracts (leases) don't mean squat anymore. Neither does procedure (tenants answer late but judge says OK).

    It's hard to run a business if there are not teeth to contract law.
     

    MDFF2008

    Ultimate Member
    Aug 12, 2008
    24,735
    It only takes four votes to grant cert.

    fightingbluehen51 said:
    So it's essentially a SCOTUS game of tic-tac-toe. Do you want to play a game?

    Granting cert is a gamble. Think of it that way. You need 4 votes for cert, but you need 5 votes to win a case. Once a case is decided, it takes decades to get a second chance. Remember it took about 70 years to get a chance to overturn Plessy v. Fergeson. You don't get do-overs.

    When Scalia was alive, we had 4 reliable pro-2a votes and 4 reliable anti-2a votes.

    If you are on the Pro-2A side, if you don't feel comfortable enough that you have that 5th vote, you don't vote for cert. Same for the anti-2a side.

    None of the Pro-2A block want to be responsible for undoing Heller anymore than the Anti-2A block want to be responsible for expanding it. Neither side has enough confidence in Kennedy and to some extent, the Anti-2A side doesn't need it. As long as the Circuit Courts keep the status quo, they don't really need to risk cert.

    This is why elections are so important.
     

    danb

    dont be a dumbass
    Feb 24, 2013
    22,704
    google is your friend, I am not.
    Yeah, I agree with this. I've read some hints that Kennedy got duped into signing the Heller and McDonald opinions.

    I've often thought that is the issue, when Scalia was alive, they had 4 votes, but could never get the 5th vote, and thus they chose never to hear the case, but the liberal side was too afraid that Kennedy might jump ship that they never voted up the cases in order to settle the matter either.

    I've heard it was Roberts, who does not like overruling state legislatures on federalism grounds.

    Actually, on the dissent from the denial of cert opinions we have seen, only 2 justices signed them. Could be a myriad different reasons, really (including defects in the record - we will never know why Drake was reviewed extensively and relisted, but cert denied).

    If Kennedy or Roberts are the sticking points, I have full faith Gorsuch can bring them along. He clerked for Kennedy and some say he is Kenney's more conservative protoge.
     

    jcutonilli

    Ultimate Member
    Mar 28, 2013
    2,474
    Yeah, I agree with this. I've read some hints that Kennedy got duped into signing the Heller and McDonald opinions.

    I've often thought that is the issue, when Scalia was alive, they had 4 votes, but could never get the 5th vote, and thus they chose never to hear the case, but the liberal side was too afraid that Kennedy might jump ship that they never voted up the cases in order to settle the matter either.

    Kolbe says arms can be banned because they are "military". Miller says arms can be banned (regulated) because they are not military.

    My disdain for the judicial system continues to grow.

    Any chance of SCOTUS taking this or using this inconsistency in another lawsuit?

    IN my Constitutional law class in law school, I had the epiphany that SCOTUS and other courts bend the law to meet their desired outcome. It continues to happen today. There isn't much guarantee in Constitutional law. Heck, I've seen contract and tort cases get bent pretty good too.

    Heck, the Obamacare fine is a "tax". Really, we get taxed for not doing something. I have no idea how they came up with those mental gymnastics either.

    Justice?

    I don't believe that SCOTUS is holding back its vote. They have a limited schedule and a lot of time to wait for the most appropriate cases. Most/all of the 2A cases they get are essentially the same arguments in different jurisdictions. They passed on the argument the first time around, why would the second time be any different.

    I think cases are decided on the arguments presents. As fabsroman points out, each judge is going to weigh the facts differently. As a result, you will get different results with the same argument (with different judges). They hard part is trying to craft the argument to address the way the judge will weigh the facts.

    Judges don't really say how they will weigh the facts until after the fact. Instead of try to explain why the interpretation facts are wrong, lawyers will present an alternative set of facts and let a clueless judge decide. You can see this in the Kolbe case. The state cites a correlation linking "assault weapons" to mass shootings. Instead of pointing out why this correlation is not causation, using their own facts against them, they cite other examples of how they are not used very often in crimes. The judge did not know how to deal with these inconsistencies and instead deferred to the legislature.

    Whether SCOTUS will take the case will depend on the arguments presented. Assuming that Kolbe argues the inconsistency with Miller, I would guess that they would Grant Vacate and Remand the case back to the 4th circuit with instructions to fix the inconsistency. Based on them passing on similarly argued cases, I do not see them addressing this case themselves.
     

    kcbrown

    Super Genius
    Jun 16, 2012
    1,393
    Arrogance not ignorance .

    A prime reason to remove life tenure for lower court justices.

    It wouldn't help.

    Judges don't issue decisions like this because they're not on a clock. They issue them because that is what they were selected to do in the first place.

    Seriously, what in the world do you guys expect when it is politicians who select judges for the bench in the first place? Do you seriously expect the resulting judges to not side with the government when the sole reason they were selected is that they would side with it, the Constitution be damned?

    Judges generally contravene the Constitution and destroy liberty as a result because that is their true purpose for being there, the reason they were selected to begin with. When they actually side with the Constitution as it was written and as its authors clearly intended, it is either because the liberty being protected is one they happen to like (and, generally, one that those who selected them also like), or because the people who selected them made a mistake in the selection process, i.e. unintentionally selected someone who actually cares about properly interpreting the Constitution with the methods that are used for reading and interpreting any written instructions. The latter case is exceedingly rare.
     

    Brooklyn

    I stand with John Locke.
    Jan 20, 2013
    13,095
    Plan D? Not worth the hassle.
    Life tenure...but even more, pull the perks and move the courtrooms. Can anyone deny that if the 9th Circuit courthouse was physically removed from San Francisco to somewhere in the middle of the Mojave Desert, we might see that Circuit produce reasonable decisions?

    And those courthouses, including that of the Supreme Court, should be nondescript buildings. The judiciary is supposed to be independent, but also the juniormost branch of government. Congress, not the courts, is seniormost. Time for the judiciary to be put in its place.


    My first proposal is to provide, by law for SCOTUS to remove judges for cause. Let the seperation of powers remain for now.. the issue here is willful non enforcement of precident. Not even a 1L can give this crap respect.

    Let the court discipline their own.. for now..

    If that does not work...Then we move on to the next step..
     

    Brooklyn

    I stand with John Locke.
    Jan 20, 2013
    13,095
    Plan D? Not worth the hassle.
    It wouldn't help.

    Judges don't issue decisions like this because they're not on a clock. They issue them because that is what they were selected to do in the first place.

    Seriously, what in the world do you guys expect when it is politicians who select judges for the bench in the first place? Do you seriously expect the resulting judges to not side with the government when the sole reason they were selected is that they would side with it, the Constitution be damned?

    Judges generally contravene the Constitution and destroy liberty as a result because that is their true purpose for being there, the reason they were selected to begin with. When they actually side with the Constitution as it was written and as its authors clearly intended, it is either because the liberty being protected is one they happen to like (and, generally, one that those who selected them also like), or because the people who selected them made a mistake in the selection process, i.e. unintentionally selected someone who actually cares about properly interpreting the Constitution with the methods that are used for reading and interpreting any written instructions. The latter case is exceedingly rare.


    Then the executive is at liberty to ignore the decision. Let the Marshalls service get to work ;)

    The court does not have and never did have a monopoly on interpretation.. let the games begin.
     

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