Future SCOTUS Justice ACB now what in regards to 2A??

jcutonilli · Sep 27, 2020

Inigoes said:
4 if you count Caetano, which states the 2A extends outside the home. For some reason, everyone is ignoring it because it was a taser.

Caetano was not about extending the 2A outside the home. All it really did was to say that the State Court's reasoning conflicts with existing precedent. Applicability of the 2A outside the home was not mentioned at all. The reasoning in Caetano centered around the fact that the 2A applied to modern arms and was not restricted to those around during the founding era. There also did not need to be a "readily adaptable to use in the military"

See https://en.wikipedia.org/wiki/Caetano_v._Massachusetts for a more detailed summary

jcutonilli · Sep 27, 2020

danb said:
Well, stop counting your chickens before they are hatched.

The committee hearings start the 12th, there are 4 days of hearings, then they hold in committee for a week. The nominee will go to the floor maybe Oct 26th or so, and there will be a few days of debate. The final vote will be extremely close to the election***.

There will be 5 weeks of protests, riots, unrest, wailing, and gnashing of teeth. If the confirmation vote does not happen before the election, it wont happen at all is my guess: if it does not happen before, its because some Senators in tight races lose their nerve. Generally, Senators are not known for backbone.

Also, I would add, all the prognostications of Gorsuch and Kavanaugh being good for the 2A have generally been wrong (including me). You should assume we will be in the status quo for quite some time, and if Biden wins its ill get worse. If the Dems win the Senate back, there is a fair chance that they eliminate the filibuster and pass a weapons ban. It would take a decade for that to reach the court, even if Barrett is confirmed.

*** of course, lots of people will have already mailed in their ballot or early voted this year, so maybe people will think that the die is cast.

If the confirmation does not happen before the election, then the results of the election will likely impact the likely hood of the vote. If Trump wins and the Republicans win the senate, then I suspect the vote will still happen. If one or the other loses, then the vote may not happen.

I am not sure why you think Gorsuch and Kavanaugh have not been good for the 2A. Both Justices have joined dissents in cert denials for 2A cases. Both still seem to support and will likely still support 2A cases.

It will not take a decade for a new case to reach SCOTUS. It may take several years, but definitely not a decade.

Allen65 · Sep 27, 2020

jcutonilli said:
Caetano was not about extending the 2A outside the home. There also did not need to be a "readily adaptable to use in the military"

But doesn't that then conflict with Miller?

Master_P · Sep 27, 2020

Non-lawyerly view:

Two options SCOTUS has to correct lower courts include a per curiam (Caetano), and plenary review (Heller, McDonald, NYSRPA).

Per curiam - from my learnings on here - typically require 6 justices in agreement to summarily reverse the lower court. 5 is not enough.

Pros: The judgment is simultaneous w/the cert grant = immediate result. The gov't cannot moot the case.
Cons: ? Not sure. Perhaps PC is proper if the lower court incorrectly apply prior plenary case. Plenary review is appropriate for a new holding.

Plenary review - requires 4 votes to happen, 5 to win, and 1+ years from cert grant to decision.

Pros: Bullet-proof result.
Cons: Time, takes longer = anti-states will try to moot (NYSRPA) which screws up our chances at a good win, negative publicity from a hostile media.

So given the above options, and a prospective Justice Barrett, how might the future look?

One approach is for the court to use Per Curiam when lower courts fails to apply Heller correctly, on narrow points from Heller, without reaching a decision expanding the 2A. e.g. if Pena was still active, they could PC/GVR and say "Heller said arms in common use are protected. You didn't apply this test well enough. Try again."

Pros: No chance to moot! Immediate relief after a case reaches SCOTUS. This would nudge appellate courts that SCOTUS now takes Heller seriously, that errant interpretations will be corrected, and states can't moot the case.

Cons: We'd be limited by Roberts as the 6th vote. Given his political nature, we'd see an incremental approach to restoring Heller, at the risk of the other 5 justices putting the court in the limelight for plenary review (and the threats of packing the court, per Democrap senators threats in NYSRPA).

This is an attractive approach for a political jurist like Roberts because:
A) SCOTUS can dispose of a controversial topic quickly, possibly on technical grounds, and avoid long, high-profile cases
B) Affirm SCOTUS prior rulings
C) States can't play mooting games
D) Keeps the other 5 conservative justices a little happier for a while.

jcutonilli · Sep 27, 2020

Allen65 said:
But doesn't that then conflict with Miller?

Heller does not think so. In the Heller vernacular, the Miller court was trying to determine if the firearm in question was in common use. They found that the record did not support this conclusion, but the record did not rule it out either. They remanded the case for further development on the issue.

Glaron · Sep 27, 2020

Master_P said:
Cons: We'd be limited by Roberts as the 6th vote. Given his political nature, we'd see an incremental approach to restoring Heller, at the risk of the other 5 justices putting the court in the limelight for plenary review (and the threats of packing the court, per Democrap senators threats in NYSRPA).

Im still waiting for the allegations that Roberts flew on the Lolita express. Making some of his decisions curious. If so, he should step down.

fred55 · Sep 27, 2020

Glaron said:
Im still waiting for the allegations that Roberts flew on the Lolita express. Making some of his decisions curious. If so, he should step down.

If true he is in his own bed. The Dems will threaten him if he leaves under a Republican President and if he stays. I hope it’s not true, but it it is I agree he needs to resign. fred55

teratos · Sep 27, 2020

Glaron said:
Im still waiting for the allegations that Roberts flew on the Lolita express. Making some of his decisions curious. If so, he should step down.

If someone has that kind of dirt on him, I’m sure there is a “you can’t step down” clause.

Boats · Sep 27, 2020

teratos said:
The fact that folks in government are not held to the standard of being true to the Constitution is very disturbing.

You said it, doc.

Boats · Sep 27, 2020

boothdoc said:
They view the constitution way to limit us not the government. It is completely upside down.
The constitution was put in place to limit the government rights not ours.

I love you, man (nohomo)

JohnnyE · Sep 27, 2020

boothdoc said:
They view the constitution way to limit us not the government. It is completely upside down.
The constitution was put in place to limit the government power not ours.

FIFY.

Governments don't have rights, only people have rights. Governments have power which must be controlled or curtailed by the people!

hodgepodge · Sep 27, 2020

All I know is she's a thousand times better than anyone Biden would even consider.

press1280 · Sep 28, 2020

tallen702 said:
If we get Barrett on the bench, I suspect you'll see a lot of states drop appeals that could result in overturning laws in other states/districts. The Dem AGs aren't uncoordinated in their assault on the 2nd, so they'll take smaller losses at state and district levels to minimize the national impact.

I think they'll continue to fight at the district/circuit/state levels and if SCOTUS grants cert they'll magically try to moot the case if possible. Of course, in many cases it just won't be possible without a complete capitulation. Example would be a CCW/open carry case where plaintiff has not even tried to demonstrate any "specialized need", like in Young.

Kharn · Sep 28, 2020

A per curiam or two would definitely teach the antis they need to bring their A-game.

What happened to NYSRPA on remand? Is that able to work is way back up against the new law in the CCA, or must they start at the district court? Giving NYC a judgement before they can moot the case again would be karma.

lemmdus · Oct 1, 2020

First off, face it, Roberts is a liberal or a coward. He's a snake. He pretended to be a conservative to get on the bench and then changed. Secondly, requiring a license to buy a firearm or carry one turns the right into a privilege. Finally, it the Democrats refuse to meet with her then why even have a confirmation hearing. We shouldn't have them anymore because they do nothing now except allow the other party to insult the candidate. Mitch should just move it right to a floor vote, but for some stupid reason the Republicans want to stick with procedure.

rascal · Oct 3, 2020

Glaron said:
Im still waiting for the allegations that Roberts flew on the Lolita express. Making some of his decisions curious. If so, he should step down.

He doesn't need to have had to explain what is going on with him. It is more likely he is simply intoxicated by the power of being the swing vote Another way to look at it is he is almost completely consistent in supporting big business, and throwing civil liberties that conservatives favor under the bus to appear to be centrist.

On 2A issues he telegraphed and threatened. It was widely reported by the insider court reporters that he outright threatened to vote against the ten cases that were in conferences, which is why they were denied cert.

Roberts has become so brazen in his anti-2A stance, that he is telling other justices how he will rule even beofre the case is heard by SCOTUS.

rascal · Oct 3, 2020

Two GOP senators on judiciary committee have come down with covid. Those who test positive wont be able to attend committee hearings unless they are virtual

ShafTed · Oct 3, 2020

rascal said:
Roberts has become so brazen in his anti-2A stance, that he is telling other justices how he will rule even beofre the case is heard by SCOTUS.

I guarantee you Roberts never said he would vote against 2A, if the leftists on the court thought they could count on Roberts' vote then 2A would now be a long-distant memory. I would be willing to bet he did come right out and tell the other 8 that he would vote against whichever group forced him to take a 2A case. Justice Barrett could well render Roberts moot for at least a while.

rambling_one · Oct 3, 2020

ShafTed said:
I guarantee you Roberts never said he would vote against 2A, if the leftists on the court thought they could count on Roberts' vote then 2A would now be a long-distant memory. I would be willing to bet he did come right out and tell the other 8 that he would vote against whichever group forced him to take a 2A case.. Justice Barrett could well render Roberts moot for at least a while.

Why?

ShafTed · Oct 3, 2020

Ten cases but no cert. Four to grant but five to win, both sides knew they couldn't trust Roberts this is my guess at to how they knew.

Future SCOTUS Justice ACB now what in regards to 2A??

The #1 community for Gun Owners of the Northeast

Member Benefits:

Ultimate Member

Ultimate Member

Ultimate Member

Member

Ultimate Member

Camp pureblood 13R

Senior

My hair is amazing

Broken Member

Broken Member

Ultimate Member

Senior Member (Gold)

Ultimate Member

Ultimate Member

Active Member

Ultimate Member

Ultimate Member

Ultimate Member

Ultimate Member

Ultimate Member

Users who are viewing this thread

Log in

Forum statistics