Supreme Court Takes Major NRA Second Amendment Case from New York

[jcutonilli]

not really. Just dicta.

Really. They were the holdings of the cases cited. Not just dicta.

 

[777GSOTB]

The 5 carry cases before the court are from states where they do not distinguish between open and concealed carry so the court will not need to either.

Correct, but it's with the plaintiffs not distinguishing that they want to open carry and that right, that's the right, not concealed carry TOO, is being denied is where these cases fail. Just my opinion, but we'll soon find out if Kennedy was the real holdup with these carry cases or its been with the presented argument.

 

[jcutonilli]

To bear arms one must carry them. Once that is accepted, how becomes the issue. Let that up to the states. It’s really not that difficult. Why can’t the legal whiz kids see it?

The problem is that they have acknowledged that no right is absolute. Public safety is one of those reasons that the court has accepted as a reason to curtail rights.
The federal government is not typically the one that is infringing on the right. State and local government are the predominate defendants in most 2A cases.

It does not really matter what you or I think about the issue. The court makes the ultimate determination and they real issue is how do you convince them otherwise. They have not accepted the arguments made to date.

 

[press1280]

The problem is a combination of existing precedent and the arguments that are presented.

Courts tend to stick with precedent even if it is wrong on the assumption that it provides consistency. Precedent can be overcome but it is difficult.

The lower courts have argued that they are simply following court precedent. The problem with the arguments is that they do not really help the court to understand what really needs to be changed.

Peruta never really challenged why concealed carry was wrong. They argued that since open carry was banned the court should allow concealed carry. The court came back and said concealed carry is not part of the right.

The KY clerk was not jailed because they did not issue marriage licences, they were jailed because they defied a court order.

What precedent?

 

[Occam]

To bear arms one must carry them. Once that is accepted, how becomes the issue. Let that up to the states. It’s really not that difficult. Why can’t the legal whiz kids see it?

There is NOBODY who can’t see it. But there are a lot of people who don’t like it. Enough of them and deeply enough that they’re willing to put some states in the circumcstances we’re in and consider doing so a virtue (for which they are rewarded by most of the media/celebrity industrial complex).

 

[rambling_one]

There is NOBODY who can’t see it. But there are a lot of people who don’t like it. Enough of them and deeply enough that they’re willing to put some states in the circumcstances we’re in and consider doing so a virtue (for which they are rewarded by most of the media/celebrity industrial complex).

It’s just so frustrating to see decades pass without corrective action. Verbal gymnastics get tiring real soon.

 

[jcutonilli]

What precedent?

The lower courts argue they are following Heller and a number of other precedents.

While Heller does not specifically address the appropriate level of scrutiny, it appears to suggest that you can get the same answer with intermediate scrutiny. The lower courts have used that ambiguity to define the standard as intermediate scrutiny. Heller does not detail its use of intermediate scrutiny nor does it define how to use it. This is where other precedents are used.

The real problem is figuring out where the errors are so they can be corrected. Most of the plaintiffs including this one have argued that strict scrutiny should be used.

 

[rbird7282]

The problem is that they have acknowledged that no right is absolute. Public safety is one of those reasons that the court has accepted as a reason to curtail rights.
The federal government is not typically the one that is infringing on the right. State and local government are the predominate defendants in most 2A cases.

It does not really matter what you or I think about the issue. The court makes the ultimate determination and they real issue is how do you convince them otherwise. They have not accepted the arguments made to date.

Please stop with your belief that the case wasn’t argued correctly. You say that about almost EVERY gun case. The fact that the courts have accepted the “public safety” BS as an excuse to curtail or even deny the peoples rights is atrocious behavior on the part of the courts as well as local, state, and federal government.


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[jcutonilli]

Please stop with your belief that the case wasn’t argued correctly. You say that about almost EVERY gun case. The fact that the courts have accepted the “public safety” BS as an excuse to curtail or even deny the peoples rights is atrocious behavior on the part of the courts as well as local, state, and federal government.


Sent from my iPhone using Tapatalk

I think you need to reread what I said.

It does not really matter what you or I think about the issue. The court makes the ultimate determination and the real issue is how do you convince them otherwise. They have not accepted the arguments made to date.

How do you propose getting the court to change their decisions? Simply telling me to shut up is not going to get the courts to change their decisions.

 

[press1280]

The lower courts argue they are following Heller and a number of other precedents.

While Heller does not specifically address the appropriate level of scrutiny, it appears to suggest that you can get the same answer with intermediate scrutiny. The lower courts have used that ambiguity to define the standard as intermediate scrutiny. Heller does not detail its use of intermediate scrutiny nor does it define how to use it. This is where other precedents are used.

The real problem is figuring out where the errors are so they can be corrected. Most of the plaintiffs including this one have argued that strict scrutiny should be used.

But they are essentially making a new precedent which has no backing anywhere else.
Let's take public carry for instance. When the first carry cases were filed in district courts after Heller, they said the right was home-bound and Heller was limited to its facts only. Then, the circuits realize this isn't going to pass so they come up with a standard that as long as someone who "needs" it can carry, then that passes "intermediate" scrutiny.
No other right has been subjected to and upheld under a "need" standard that I'm aware of. This is 100% a creation of our circuit courts.

 

[wjackcooper]

press 1280 wrote:

"But they are essentially making a new precedent which has no backing anywhere else."

Yep.

For those interested, some light reading.

Scalia wrote:

“We know of no other enumerated constitutional right whose core protection has been subjected to a freestanding "interest-balancing’ 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. Constitutional rights are enshrined with the scope they were understood to have when the people adopted them, whether or not future legislatures or (yes) even future judges think that scope too broad. We would not apply an “interest-balancing” approach to the prohibition of a peaceful neo-Nazi march through Skokie. See National Socialist Party of America v. Skokie, 432 U. S. 43 (1977) (per curiam). The First Amendment contains the freedom-of-speech guarantee that the people ratified, which included exceptions for obscenity, libel, and disclosure of state secrets, but not for the expression of extremely unpopular and wrong-headed views. The Second Amendment is no different. Like the First, it is the very product of an interest-balancing by the people-which JUSTICE BREYER would now conduct for them anew. And whatever else it leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home.” (62-63)

The last sentence (ignoring its context in the entire paragraph) is the tool must often used by progressive judges to confine the 2A. to the home, shift the argument to safety v. keep and bear, then use intermediate scrutiny to find a balance that does not favor the 2A and no, the weight of the evidence (i.e., what the studies show) nor who is responsible for safety will determine the result. Before progressive and some “conservative” decision makers “bear” gets out weighed almost every time interest – balancing (safety v. 2A) comes into play.

Regards
Jack

 

[jcutonilli]

But they are essentially making a new precedent which has no backing anywhere else.
Let's take public carry for instance. When the first carry cases were filed in district courts after Heller, they said the right was home-bound and Heller was limited to its facts only. Then, the circuits realize this isn't going to pass so they come up with a standard that as long as someone who "needs" it can carry, then that passes "intermediate" scrutiny.
No other right has been subjected to and upheld under a "need" standard that I'm aware of. This is 100% a creation of our circuit courts.

That is not correct. I am not aware of any circuit court that has overturned the intermediate scrutiny precedent for 2A cases.

I don't believe that it was the circuit court that created the precedent. It was the state defendants that created the argument that led to the precedent. Heller never limited the right to be home-bound. They stated it was strongest in the home, which leads one to conclude that the right is weaker outside the home. The fact that the right is weaker outside the home is what led the court to accept intermediate scrutiny as the appropriate scrutiny standard.

While the "need" standard is how things are implemented, it is not the basis of the precedent. The basis is the ability of the government to provide public safety and the fact that the "need" standard is somehow substantially related to this government interest.

 

[jcutonilli]

The last sentence (ignoring its context in the entire paragraph) is the tool must often used by progressive judges to confine the 2A. to the home, shift the argument to safety v. keep and bear, then use intermediate scrutiny to find a balance that does not favor the 2A and no, the weight of the evidence (i.e., what the studies show) nor who is responsible for safety will determine the result. Before progressive and some “conservative” decision makers “bear” gets out weighed almost every time interest – balancing (safety v. 2A) comes into play.

Regards
Jack

I believe that the courts will argue that they are not using Breyer's interest balancing approach. They are using the courts intermediate scrutiny standard, which Heller acknowledge would fail in that case.

We do not know if arguing the case differently will change the result because the arguments have been consistent across the cases.

If you dispute the evidence with other evidence as has been tried, the court perceives the issue as political. This is because there is no correct answer. They then defer to the legislature allowing the law to stand.

If you attack the evidence directly and explain why they drew unreasonable inferences, then they will likely loose. It is no longer a political issue, it becomes a legal one that the courts can answer.

In every case the plaintiffs concede that public safety is an important government interest. There is no argument about who actually provides public safety. The problem is that the government does not actually protect any particular person. The government's interest is more general and not specific. You get a different answer when you look at the details.

 

[Fedora]

How do you propose getting the court to change their decisions?

In 1973 the Court found abortion to be a new Constitutional right. It was created out of whole cloth. If there is any doubt, J. Douglas used the novel phrase "penumbras, formed by emanations" to support the new right, and the majority accepted it. What action would not be constitutional if dressed in such specious terms?

There has never been such enthusiasm for the 2nd Amendment, an enumerated right. It is thus impossible to credibly assert that the Supreme Court is politically neutral.

The Court was, is, and always will be a cabal whose purpose is to justify the majority's political ends. The only way to change their decisions is to change the Court, to "our" cabal from "their" cabal. I like to think that is happening. If Trump (a) remains in office and (b) continues his judicial appointments we might, over the next five years, begin our turn at four or five decades in the sun.

Thus it seems to me.

 

[jcutonilli]

In 1973 the Court found abortion to be a new Constitutional right. It was created out of whole cloth. If there is any doubt, J. Douglas used the novel phrase "penumbras, formed by emanations" to support the new right, and the majority accepted it. What action would not be constitutional if dressed in such specious terms?

There has never been such enthusiasm for the 2nd Amendment, an enumerated right. It is thus impossible to credibly assert that the Supreme Court is politically neutral.

The Court was, is, and always will be a cabal whose purpose is to justify the majority's political ends. The only way to change their decisions is to change the Court, to "our" cabal from "their" cabal. I like to think that is happening. If Trump (a) remains in office and (b) continues his judicial appointments we might, over the next five years, begin our turn at four or five decades in the sun.

Thus it seems to me.

It seems to me you are arguing my point. Arguments matter and if argued correctly, the court can accept issues that were not directly addressed in the Constitution. The downside is that arguments can be made to undermine those that are already there and can be seen with 2A rights.

If we wait, the issues become even harder to overcome and don't really address the real problem. What is needed are better arguments.

 

[wjackcooper]

jcutonilli wrote: “What is needed is better arguments.”

Why the S.C. has not previously intervened (excepting Caetano) could be because Kennedy may have been reluctant to restrain the judicial interest balancing via intermediate scrutiny test being used by progressive Judges in the lower courts, or perhaps Roberts developed cold feet, or both.

In any event, petitions for cert (prepared by the most experienced, skilled 2A litigators in the country, including Alan Gura, Paul Clement, & Stephen Halbrook, supported by the numerous able lawyers among the amici curiae brief writers) to date have been denied. So during hundreds of hours of research, study, conferencing, brief writing, & many court appearances the many lawyers in the arena for the 2A, and their many supporters all remained completely oblivious to the “better arguments” which were “needed.”

Thanks for pointing this out.

Wow!

Regards
Jack

 

[pcfixer]

CAETANO v. MASSACHUSETTS
on petition for writ of certiorari to the supreme judicial court of massachusetts
No. 14–10078. Decided March 21, 2016

Caetano v. Massachusetts, 577 U.S.
Per Curiam.
The Court has held that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” District of Columbia v. Heller, 554 U. S. 570, 582 (2008) , and that this “ Second Amendment right is fully applicable to the States,” McDonald v. Chicago, 561 U. S. 742, 750 (2010) .
In this case, the Supreme Judicial Court of Massachusetts upheld a Massachusetts law prohibiting the possession of stun guns after examining “whether a stun gun is the type of weapon contemplated by Congress in 1789 as being protected by the Second Amendment.” 470 Mass. 774, 777, 26 N. E. 3d 688, 691 (2015).

So. Why doesn't this extent to semi auto rifles know as AR's and 20/30 round magazines?

 

[danb]

CAETANO v. MASSACHUSETTS
on petition for writ of certiorari to the supreme judicial court of massachusetts
No. 14–10078. Decided March 21, 2016

Caetano v. Massachusetts, 577 U.S.
Per Curiam.
The Court has held that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” District of Columbia v. Heller, 554 U. S. 570, 582 (2008) , and that this “ Second Amendment right is fully applicable to the States,” McDonald v. Chicago, 561 U. S. 742, 750 (2010) .
In this case, the Supreme Judicial Court of Massachusetts upheld a Massachusetts law prohibiting the possession of stun guns after examining “whether a stun gun is the type of weapon contemplated by Congress in 1789 as being protected by the Second Amendment.” 470 Mass. 774, 777, 26 N. E. 3d 688, 691 (2015).

So. Why doesn't this extent to semi auto rifles know as AR's and 20/30 round magazines?

It does!


The issue is that the appellate courts are ignoring this.

 

[jcutonilli]

jcutonilli wrote: “What is needed is better arguments.”

Why the S.C. has not previously intervened (excepting Caetano) could be because Kennedy may have been reluctant to restrain the judicial interest balancing via intermediate scrutiny test being used by progressive Judges in the lower courts, or perhaps Roberts developed cold feet, or both.

In any event, petitions for cert (prepared by the most experienced, skilled 2A litigators in the country, including Alan Gura, Paul Clement, & Stephen Halbrook, supported by the numerous able lawyers among the amici curiae brief writers) to date have been denied. So during hundreds of hours of research, study, conferencing, brief writing, & many court appearances the many lawyers in the arena for the 2A, and their many supporters all remained completely oblivious to the “better arguments” which were “needed.”

Thanks for pointing this out.

Wow!

Regards
Jack

Why don't you stop the hyperbole and address the reasons why they are denying cert to all of the cases.

Heller acknowledged that the DC law would not survive intermediate scrutiny. All most all 2A cases now use intermediate scrutiny.

What is the explanation that the

petitions for cert (prepared by the most experienced, skilled 2A litigators in the country, including Alan Gura, Paul Clement, & Stephen Halbrook, supported by the numerous able lawyers among the amici curiae brief writers)

From NYSRPA petition (although common to most every 2A cert petition):

If this kind of showing satisfies heightened scrutiny, then this Court did not mean what it said in Heller. And if that is truly the case, the word that Heller and McDonald amount to no more than rational basis or apply to nothing beyond flat bans should come from this Court

<sarcasm>What a brilliant argument They are geniuses!!!!!!!!! With out a doubt, SCOTUS must be corrupt for not accepting such a brilliant argument. </sarcasm>

• Do they point out the flaws in the data? No they do not challenge the data directly. They use other data, which allows the court to perceive the issues as political rather than legal.
• Do they point out that governments do not protect individuals? No they do not.
• Do they point out that people provide public safety? No they do not.
• Do they allow the government to be the sole provider of public safety? Yes they do because they do not challenge what the government's interest in public safety actually is.
• Do they point out how other people have had their rights destroyed due to the actions of others (eg Korematsu)? No they have not.

This is not some vague notion that we need to do better. There are lots of specifics backing up my we need better arguments argument.

 

[777GSOTB]

CAETANO v. MASSACHUSETTS
on petition for writ of certiorari to the supreme judicial court of massachusetts
No. 14–10078. Decided March 21, 2016

Caetano v. Massachusetts, 577 U.S.
Per Curiam.
The Court has held that “the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding,” District of Columbia v. Heller, 554 U. S. 570, 582 (2008) , and that this “ Second Amendment right is fully applicable to the States,” McDonald v. Chicago, 561 U. S. 742, 750 (2010) .
In this case, the Supreme Judicial Court of Massachusetts upheld a Massachusetts law prohibiting the possession of stun guns after examining “whether a stun gun is the type of weapon contemplated by Congress in 1789 as being protected by the Second Amendment.” 470 Mass. 774, 777, 26 N. E. 3d 688, 691 (2015).

So. Why doesn't this extent to semi auto rifles know as AR's and 20/30 round magazines?

Caetano didn't have a license and possessed a stun-gun for self-defense...AND was ARRESTED for that. The arrest created the damage/injury needed for the SCOTUS to consider the case. It was a damage upon her 2nd Amendment right to self-defense. If someone isn't going to do that with the semi-autos, we'll have to wait until there's enough circuit court splits for them to hear a case. They MAY take the Wilson v. Cook County, Illinois case, as the plaintiffs there have in their possess those types of weapons for self-defense. But, they also possess FOID cards and licenses(contracts), so those may be the deciding factor in the SCOTUS not taking the case. They won't take the Mass case because they WANT to possess those types of weapons and don't possess them for self-defense.