9th Circuit says Mag Capacity Restrictions Unconstitutional

[press1280]

Side note about Wrenn-For all those wrapped up in the OC vs CC debate, neither the majority or dissent (Henderson) made any issue with this.

 

[jcutonilli]

If it is conceded that Heller is an authoritative 2A case, then this stuff is not complicated:

Heller (it is “clear”) precludes balancing any “compelling” govt. “interest,” e.g., safety v. the 2A. Text, history, and tradition is the Heller mandated approach.*

Many assertions contrary to the plain language of Heller can be found among the 2A opinions of almost all Democrat and some Republican Judicial appointees. As pointed out by kcBrown the Democrats are almost completely united in their opposition to the 2A. Republican support is less than total.

Regards
Jack

*“In Judge Kavanaugh's view, "gun bans and regulations" should "be analyzed based on the Second Amendment's text, history, and tradition (as well as by appropriate analogues thereto when dealing with modern weapons and new circumstances…" He did not think judges should "re-calibrate the scope of the Second Amendment right based on judicial assessment of whether the law advances a sufficiently compelling or important government interest to override the individual right." In his view, Heller had been clear that Second Amendment cases should be decided "based on text, history, and tradition, not by a balancing test such as strict or intermediate scrutiny." https://reason.com/2018/07/09/judge-kavanaugh-and-the-second-amendment/

It is more complicated than you suggest.

Heller does indicate that the law would not meet any of the standards of scrutiny applied to enumerated rights. Intermediate scrutiny is one of those standards and evaluates whether a law furthers an important government interest by means that are substantially related to that interest.

The lower court have almost universally endorsed the intermediate scrutiny standard and SCOTUS has not stepped in to correct this.

 

[MJD438]

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.

Malpasso, my organization's case, died when it was denied cert at SCOTUS at the same time as Rogers.


Sent from my SM-G960U using Tapatalk

 

[wjackcooper]

It is more complicated than you suggest.

Heller does indicate that the law would not meet any of the standards of scrutiny applied to enumerated rights. Intermediate scrutiny is one of those standards and evaluates whether a law furthers an important government interest by means that are substantially related to that interest.

The lower court have almost universally endorsed the intermediate scrutiny standard and SCOTUS has not stepped in to correct this.

OK, I will try again:

In McDonald (as in Heller) five Justices were not receptive to interest balancing . . . Justice Alito pointed out that holding “public safety” to be a deciding factor in a Bill of Rights case would be unprecedented and rejected the argument.*

As for the lower courts . . . yep, see post # 195.

Regards
Jack

*“Municipal respondents cite no case in which we have refrained from holding that a provision of the Bill of Rights is binding on the States on the ground that the right at issue has disputed public safety implications.”
https://www.supremecourt.gov/opinions/09pdf/08-1521.pdf Opinion of the Court, page 36 paragraphs 2 and 3.

 

[Mike]

There are a number of things.

They need to challenge the government interest. While the government does have an interest in providing public safety, they do not actually protect people down to the individual level. They are actually taking away the ability of people to defend themselves, which negatively affects public safety contrary to what the government claims it is doing.

They need to directly challenge the data. All of the data provided is nothing more than correlation. They are not able to demonstrate that there is actual causation and that the effects of the law will actually accomplish what they are intending. Intermediate scrutiny requires more than speculation, which is really what a correlation without causation demonstrates. Speculation is appropriate for rational basis, but rational basis is not appropriate for these types of constitutional issues.

They also need to articulate why Turner deference is not appropriate. Turner was about policy and political matters rather than constitutional ones.

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"

What they need to do is challenge the government's interest in public safety. There are numerous cases that demonstrate that the government does not protect the individual and cannot fully protect the public. They also need to understand the societal impacts of an armed public and the public safety benefits that this provides.

Wrenn was not decided based on intermediate scrutiny, it was decided based on a categorical approach like Heller.

Deferential intermediate scrutiny is the type of intermediate scrutiny described by Kavanaugh in his Heller II dissent. The courts typically defer to the legislature over policy matters. They are not supposed to defer over legal constitutional matters. This is another problem with the way the plaintiffs have argued the cases. They challenge the data in a way that makes the court believe the case is really a policy matter rather than a constitutional matter.

I think you have nicely articulated what has been ricocheting around in my thoughts for a long time. Governments claim an interest in public safety as a means to disarm the general population, which to the contrary, harms the safety of the public because unarmed individuals cannot protect themselves, and government has no accountability to protect every individual.

Isn't there a SCOTUS or some such ruling to the effect that government has no responsibility to protect individuals? That combined with that which jcutonilli has articulated, would seem to be a firm basis to negate any law that restricts the right and duty of a law abiding citizen to be able to bear arms of any type, at any time and place, to protect themselves.

Am I wrong?

 

[Mark75H]

I think that is basically what the Heller decision says.

 

[pcfixer]

I think you have nicely articulated what has been ricocheting around in my thoughts for a long time. Governments claim an interest in public safety as a means to disarm the general population, which to the contrary, harms the safety of the public because unarmed individuals cannot protect themselves, and government has no accountability to protect every individual.

Isn't there a SCOTUS or some such ruling to the effect that government has no responsibility to protect individuals? That combined with that which jcutonilli has articulated, would seem to be a firm basis to negate any law that restricts the right and duty of a law abiding citizen to be able to bear arms of any type, at any time and place, to protect themselves.

Am I wrong?

No.

https://www.barneslawllp.com/blog/p...had,even a child, from harm by another person.

In the 1989 landmark case of DeShaney v. Winnebago County Department of Social Services, the U.S. Supreme Court held that the failure by government workers to protect someone (even 4-year-old Joshua DeShaney) from physical violence or harm from another person (his father) did not breach any substantive constitutional duty

 

[jcutonilli]

OK, I will try again:

In McDonald (as in Heller) five Justices were not receptive to interest balancing . . . Justice Alito pointed out that holding “public safety” to be a deciding factor in a Bill of Rights case would be unprecedented and rejected the argument.*

As for the lower courts . . . yep, see post # 195.

Regards
Jack

*“Municipal respondents cite no case in which we have refrained from holding that a provision of the Bill of Rights is binding on the States on the ground that the right at issue has disputed public safety implications.”
https://www.supremecourt.gov/opinions/09pdf/08-1521.pdf Opinion of the Court, page 36 paragraphs 2 and 3.

You can try as many times as you like. It still does not change the fact that the lower courts have almost universally endorsed the intermediate scrutiny standard and SCOTUS has not stepped in to correct this.

All of these courts have acknowledged that that the 2A is binding on the States so they are in compliance with McDonald also.

 

[rambling_one]

It does not impact the case it impacts essentially every case. The cases appear to be a policy issue associated with public safety vs an individual that is still able to exercise the right in some capacity. It is not hard to see why judges would find for the government.

It really needs to be framed as a constitutional issue where the government does not really provide all of the public's safety vs the ability of the public to protect themselves in a way the government cannot.

Asking for edification - are you admitted to practice before the SC? Have you done so?

 

[Mike]

I think you have nicely articulated what has been ricocheting around in my thoughts for a long time. Governments claim an interest in public safety as a means to disarm the general population, which to the contrary, harms the safety of the public because unarmed individuals cannot protect themselves, and government has no accountability to protect every individual.

Isn't there a SCOTUS or some such ruling to the effect that government has no responsibility to protect individuals? That combined with that which jcutonilli has articulated, would seem to be a firm basis to negate any law that restricts the right and duty of a law abiding citizen to be able to bear arms of any type, at any time and place, to protect themselves.

Am I wrong?

No.

https://www.barneslawllp.com/blog/p...had,even a child, from harm by another person.

In the 1989 landmark case of DeShaney v. Winnebago County Department of Social Services, the U.S. Supreme Court held that the failure by government workers to protect someone (even 4-year-old Joshua DeShaney) from physical violence or harm from another person (his father) did not breach any substantive constitutional duty

The title on your link:
"The Police are Not Required to Protect You"... I thought that was what I wrote... no responsibility to protect individuals. We have a God-given right to protect ourselves however we see fit, as long as we do not infringe on other law abiding persons.

 

[jcutonilli]

Asking for edification - are you admitted to practice before the SC? Have you done so?

I am not a member of the SCOTUS bar. If you know anyone that is and would like to help write an amicus brief let me know.

 

[rambling_one]

I am not a member of the SCOTUS bar. If you know anyone that is and would like to help write an amicus brief let me know.

Appreciate your response. I have no one to suggest.

 

[Trumpet]

Didn't read all 22 pages, but could this hopefully have bearing on MD, NJ, NY, etc?

 

[tallen702]

Didn't read all 22 pages, but could this hopefully have bearing on MD, NJ, NY, etc?

IF (and that's a big IF) it stands and the law is struck down as unconstitutional, it would create a split that would ultimately need to be reconciled by SCOTUS. That's about the only way it would be favorable to us.

 

[Abuck]

IF (and that's a big IF) it stands and the law is struck down as unconstitutional, it would create a split that would ultimately need to be reconciled by SCOTUS. That's about the only way it would be favorable to us.

A split? Like this?

3RD CIRCUIT FEDERAL APPEALS COURT SAYS LARGE-CAPACITY MAGAZINE BANS ARE OK

https://libertarianhub.com/2020/09/...urt-says-large-capacity-magazine-bans-are-ok/

The 3rd covers PA, NJ, Delaware, and the USVI.

 

[jcutonilli]

A split? Like this?

3RD CIRCUIT FEDERAL APPEALS COURT SAYS LARGE-CAPACITY MAGAZINE BANS ARE OK

https://libertarianhub.com/2020/09/...urt-says-large-capacity-magazine-bans-are-ok/

The 3rd covers PA, NJ, Delaware, and the USVI.

That is not a really a split. It simply reaffirms what the 3CA said previously that "LCM" bans are OK. It is consistent with every other circuit that decided a LCM ban except for the Duncan v Becerra case in the 9CA

 

[wjackcooper]

It is more complicated than you suggest.

Heller does indicate that the law would not meet any of the standards of scrutiny applied to enumerated rights. Intermediate scrutiny is one of those standards and evaluates whether a law furthers an important government interest by means that are substantially related to that interest.

The lower court have almost universally endorsed the intermediate scrutiny standard and SCOTUS has not stepped in to correct this.

Ok, another try:

The fact that "the lower courts have almost universally endorsed the intermediate scrutiny standard” has led directly to almost universal defeat for the 2A by “lower court” Democrat judicial appointees – joined by a few Republicans. These Judges have skirted the plain language of Heller/McDonald, and Roberts is apparently in denial (no pun intended).

It is important to keep in mind that (despite the open rebellion of the Democrat Judges and the Kennedy/Roberts wimp out) SC rulings are the “law of the land.”* The proper approach to a 2A problem (under the SC’s “binding” Heller/McDonald rulings) is “text, history and tradition,” not interest – balancing via intermediate scrutiny.** Again this stuff is not really complicated unless credibility is assigned to the twisted logic of those lower court Judges who are determined to use safety v. 2A balancing to undermine the 2A.

Links (in addition to the two below) showing authoritative, credible support for the above assertions are located in posts # 154, 195, & 200. If there is relevant, authoritative, or credible support (which automatically excludes Democrat judicial opinions) for any contrary assertions, links and quotes would be appreciated.

Regards
Jack

*The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts . . . .”
https://constitutioncenter.org/interactive-constitution/article/article-iii

** “For those reasons, I would follow what I believe to be the direction of the Supreme Court and focus our approach “based on text, history, and tradition” rather “than under an interest-balancing test.” Heller II, 670 F.3d at 1275 (Kavanaugh, J. dissenting)”. See pages 30 thru 32 of Judge Matey’s (Trump appointee) dissent.
https://www2.ca3.uscourts.gov/opinarch/193142p.pdf

 

[press1280]

You're correct, of course it seems the further the time passes between Heller/McDonald and the present the more the lower courts simply look to each other for the answers since their cases are "on point".
This seems to be similar to what happened after the Miller case in 1939 where that opinion was pretty limited, but was extended to the 2A being a collective right by the circuits in the years following.

 

[Ngrovcam]

You're correct, of course it seems the further the time passes between Heller/McDonald and the present the more the lower courts simply look to each other for the answers since their cases are "on point".
This seems to be similar to what happened after the Miller case in 1939 where that opinion was pretty limited, but was extended to the 2A being a collective right by the circuits in the years following.

Yet another reason to ensure this president gets four more years...with Justice Ginsburg (with whom I disagree on just about everything, but for whom I have respect)
about to hang it up, and possibly one other,
we need to be sure their replacements are
right thinkers, not left learners.

 

[jcutonilli]

Ok, another try:

The fact that "the lower courts have almost universally endorsed the intermediate scrutiny standard” has led directly to almost universal defeat for the 2A by “lower court” Democrat judicial appointees – joined by a few Republicans. These Judges have skirted the plain language of Heller/McDonald, and Roberts is apparently in denial (no pun intended).

It is important to keep in mind that (despite the open rebellion of the Democrat Judges and the Kennedy/Roberts wimp out) SC rulings are the “law of the land.”* The proper approach to a 2A problem (under the SC’s “binding” Heller/McDonald rulings) is “text, history and tradition,” not interest – balancing via intermediate scrutiny.** Again this stuff is not really complicated unless credibility is assigned to the twisted logic of those lower court Judges who are determined to use safety v. 2A balancing to undermine the 2A.

Links (in addition to the two below) showing authoritative, credible support for the above assertions are located in posts # 154, 195, & 200. If there is relevant, authoritative, or credible support (which automatically excludes Democrat judicial opinions) for any contrary assertions, links and quotes would be appreciated.

Regards
Jack

*The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts . . . .”
https://constitutioncenter.org/interactive-constitution/article/article-iii

** “For those reasons, I would follow what I believe to be the direction of the Supreme Court and focus our approach “based on text, history, and tradition” rather “than under an interest-balancing test.” Heller II, 670 F.3d at 1275 (Kavanaugh, J. dissenting)”. See pages 30 thru 32 of Judge Matey’s (Trump appointee) dissent.
https://www2.ca3.uscourts.gov/opinarch/193142p.pdf

The problem is not the intermediate scrutiny standard itself. The problem is how the plaintiffs argue the case. The government usually uses correlations that are not backed up by causation. Instead of arguing that the government is using speculative evidence, which is allowed under rational basis, the plaintiffs dispute the evidence with other evidence. This causes the court to perceive the problem as a policy dispute between two valid issues. SCOTUS has already acknowledged that the legislature is entitled to deference in these issues and defers to the legislature's choices in these cases. This ensures defeat because the law is against us.

No deference should be afforded the legislature because these cases are not policy issues, they are constitutional ones.